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IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO. 2154 OF 2023 (Arising from Land Application No. 05/2023 of the District Land and Housing Tribunal for Kyela). MOSES A. MWAKASONGOLO………….…….………1ST APPELLANT WILLY L. TWEVE…………….…………………………2ND APPELLANT NIZAR KAWAWA………………………………...........3RD APPELLANT VERSUS ELIA JONAS MWAKALINGA…………………………RESPONDENT JUDGMENT Date: 28 May 2024 & 18 July 2024 SINDA, J.: The respondent instituted Land Application No. 05 of 2023 at the District Court and Housing Tribunal for Kyela (the DLHT) claiming to be a lawfully owner of the farm, located at Lubele village, Ikimba ward, Kyela District (the Disputed Land). He alleged that he bought the Disputed Land from 1 Steven Mwaipaja on 11 December 2003 and the appellants invaded his land. The appellants denied allegations. The first appellant claimed that he was given the Disputed Land by his father during his life time. The second and the third appellants claimed to bought the Disputed Land from the first appellant. The DLHT find that the Disputed Land belongs to the respondent. Dissatisfied with decision, the appellants lodge this appeal with four grounds of appeals as follows: 1. The DLHT erred in law and fact to consider and base its judgment on uncertain, unclear and ambiguous contract. 2. The DLHT erred in law and fact for ruling in favor of the respondent basing on the contradictory testimony of witness about the size of the suit plot. 3. The DLHT erred in law and fact to rule that the suit plot belongs to the respondent while the plot was never visited neither measured by any party on the respondent side. 4. That the DLHT erred in law and fact to consider the oral testimony which contradict with the written contract of the respondent contrary to principle of the law. 2 At the hearing the appellant was represented by Michael John Mwaipasi, learned counsel while the respondent was represented by Good Otto Mgimba, learned counsel. The appeal was argued by way of written submission. The appellant advocate argued the first, second, third and fourth grounds together. He submitted that the DLHT first, erred to base its decision on the uncertain and unclear contract. Secondly, the DLHT erred to accept the respondent application together with oral testimony to amend the written contract contrary to the cardinal principles of the law. He stated that the DLHT relied on the sale agreement (Exhibit S3) tendered by respondent which did not provide the size, boundaries and location of the Disputed Land. He prayed this honorable court not to give weight to Exhibit S3. He referred to the case of Precision Air Service PLC vs Masoko Agencies (T) Limited. (Civil Appeal No.60 of 2021) CAT to support his argument. He further submitted that the DLHT erred to accept and consider amendment of Exhibit S3 done by the respondent during oral testimony by clarifying location, size and boundaries. He referred the cases of Joseph F. Mbwiliza vs Kobwa Mohamed Lyeselo Musukuma and Two Others. (Civil Appeal No. 227 of 2019) CAT at page 23-24 and Nuru 3 Finance and Business Services Co. LTD vs Benjamini Adamson Masuba, (Civil Appeal No. 284 of 2020) CAT. In reply the respondent submitted that it is not true that the DLHT based on Exhibit S3. The decision of the DLHT based on various facts such as the respondent used the Disputed Land without any interference for more than 17 years since he bought it in 2003. The same was the testimony of the third appellant. He submitted that in relation to the size during the visitation of the Disputed Land, the respondent and the appellants testified that it was the same Disputed Land which was in conflict in term of size and boundaries. Mr. Mgimba further submitted that the appellants did not dispute that the respondent bought the Disputed Land. Also, those who participated in the contract testified at the DLHT. So, there was no any amendment done by the respondent so the contract was certain and clear. In rejoinder the appellants counsel stated that the ownership of land cannot be claimed to have been acquired simultaneously through transfer (sale) and adverse possession. He referred the case of Halima Waraka & Others vs Jeremiah M. Mkama (Civil Appeal no. 493 of 2020) [2024] TZCA page 08. 4 I have considered court records, grounds of appeal and submissions by parties. I find the appeal can be disposed under one issue of Whether the respondent in this appeal at the trial tribunal proved his case to the required standard. It is a settled position of law that he who allege on occurrence of particular facts must prove. Section 110 (1) of the Evidence Act, Cap. 6, R.E 2022 (the Evidence Act) provides “(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” This was emphasized in the case of Paulina Samson Ndawavya vs Theresia Thomas Madaha, CAT at Mwanza, the Court of Appeal, It was stated that; "It is again trite that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his duty and that the burden of proof is not diluted on account of the weaknesses of the opposite parts case” In this case at the DLHT the respondent testified that he bought the Disputed Land from Steven Mwaipaja on 11 December 2003. He tendered Exhibit S3 which was sale agreement. The appellants complained firstly, 5 that Exhibit S3 was uncertainty for failure to describe boundaries, location and size of Disputed Land. Secondly, the DLHT erred to accept the respondent application together with his oral testimony to amend the written the Exhibit S3 contrary to the law. I have gone through exhibit S3, I wish to reproduce its contents as follows: “LEO TAREHE 11-12-2003 Mimi Sitifini Mwaipaja nimemuuzia shamba langu ndugu Eliya Jonasi Mwakalinga kwa bei ya shilingi laki moja na amsini elufu 150,000/= Mbele ya mashahidi wafuatao….” Starting with the second complaint that the DLHT accepted the respondent application together with his oral testimony which amended the contents of the written contract contrary to the law. Section 100 (1) of the Evidence Act states that: “100.-(1) When the terms of a contract, grant, or any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant, or other disposition of property, or of such matter except the document itself, or secondary evidence of its contents in 6 cases in which secondary evidence is admissible under the provisions of this Act.” In the case of Umico Limited Versus Salu Limited, Civil Appeal No. 91 OF 2015 at page 15, The Court of Appeal directed that: "So long as the lease agreement was in writing there is no room for oral evidence to come in." I have gone through the court records, as correct submitted by the appellant counsel, the respondent in application together with oral testimony amended some facts in Exhibit S3 which was location, size and boundaries. I wish to produce as follows: “3. sehemu na anwani ya eneo lenye mgogoro ni shamba, kwamba, shamba hilo lipo kitongoji cha Lubele kata ya Ikimba wilaya ya Kyela, ambalo linaukubwa wa upande wa juu upana mita 24.20, upana upande wa chini mita 21, urefu upande wa kulia mita 129, urefu upande wa kushoto mita 133 na limepakana na ndugu Amanyisye Mwakasongolo, Obadia Mwambene na Nizar Kwawa kushoto, Ngugu Cheyo na Bapuge Kanakibwage kulia, ndugu Daudi Mwanyasi upande wa juu.” The above fact about boundaries, size and location was not found in Exhibit S3. The same facts were testified by the respondent and his witnesses during hearing. In that regard I find the respondent added 7 some facts in application and oral evidence which did not existed in Exhibit S3. The respondent evidence contravened the above provision of the law and authority. Therefore, I disregard the evidence of the respondent concerning the location, size and boundaries of the Disputed Land. Now the issue is whether the remaining evidence which is Exhibit S3 tendered by PW1 is conclusive evidence and proved the respondent case on the balance of probabilities at the DLHT to the required standard. Section 29 of the Law of Contract Act, Cap 345, R.E 2019 provides that: “An agreement, the meaning of which is not certain, or capable of being made certain, is void” Going through Exhibit S3, as correct argued by the appellant counsel the said sale agreement did not state the boundaries, location and size of the Disputed Land. Therefore, the sale agreement is void due to the uncertainty already stated above. In absence of those descriptions this court cannot assume that the Disputed Land stated in Exhibit S3 is the same as the one now in dispute. Exhibit S3 cannot be used as evidence to prove this case. I find that respondent case at the DLHT was not proved to the required standard. The appeal is allowed with costs. 8 Dated at Mbeya on this 17 day of July 2024. A. A. SINDA JUDGE 9