MUSSA OMARI V KASHINDE SAID 8 OTHERS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA LAND APPEAL NO. 5126 OF 2026 MUSSA OMARI.................................................................................. APPELLANT

VERSUS KASHINDE SAID MASOUD (Administrator of The Estate of Said Masoud Mihambo)................................... 1st RESPONDENT MASOUD SAID MASOUD....................................................... 2nd RESPONDENT ASHA SAID MASOUD............................................................. 3rd RESPONDENT MRISHO SAID MASOUD........................................................ 4th RESPONDENT RAJABU SAID MASOUD......................................................... 5th RESPONDENT NASORO SAID MASOUD........................................................ 6th RESPONDENT KALEKWA SAID MASOUD...................................................... 7th RESPONDENT OMARI SAID MASOUD.......................................................... 8th RESPONDENT TAUSI SAID MASOUD........................................................... 9th RESPONDENT

JUDGMENT 22/8/2024 & 24/9/2024 ROBERT, J:- This appeal arises from the decision of the District Land and Housing Tribunal (DLHT) for Mwanza in Land Application No. 108 of 2020, concerning the ownership of Plot No. 623, Block FF, Nyakato Sites and Services Area, Mwanza Municipality. The Appellant, Mussa Omari, challenges the Tribunal's decision on several grounds, alleging both procedural and substantive errors in its findings. The Appellant asserts rightful ownership of the disputed property, claiming that he holds a valid certificate of occupancy and that he personally constructed a house on the suit premises. He further alleges that, in 1994, his late brother, Said Masoud Mihambo (the Respondents'father), requested permission to reside in the said house, as he had no alternative accommodation for himself and his family. However, following the death of their father in 1997, the Respondents allegedly refused to vacate the premises. Conversely, the Respondents maintain that they inherited the suit property from their late father, Said Masoud Mihambo, who, they assert, was the lawful owner of the disputed property until his death. The Tribunal, after evaluating the evidence, ruled against the Appellant, finding that he had fraudulently obtained the certificate of occupancy. Aggrieved, the Appellant preferred this appeal raising five grounds of appeal as follows: 1. That the trial Tribunal erred both in law and in fact by determining the issue of forgery or difference in the applicant's signature while forgery or 2 difference in the applicant's signature was not among the raised issues for determination and was not pleaded in the pleadings.

2. That the trial Tribunal erred in law and fact to hold that the applicant was required to prove that his name was Mussa Omari while this issue was not among of the framed issues or point of controversy between the parties having regards that the respondents did not dispute the name of the applicant in their written statement of defence.

3. That the allegations of forgery was not properly pleaded and was not established in evidence on a higher degree ofprobability as required in law.

4. That the trial tribunal grossly erred in law and fact by failing to properly consider, evaluate or analyze the evidence presented at the trial Court.

5. That the trial tribunal misapplied the principle of the balance ofprobability, thereby reaching a conclusion that was notjustifiable in tight of the evidence presented. Submitting on the 1st, 2nd, and 3rd grounds together, the appellant's counsel, Mr. Duttu Faustine Chebwa, argued that the District Land and Housing Tribunal (DLHT) erred in determining the issue of forgery or discrepancies in the appellant's signature, as these issues were neither pleaded nor framed for determination. Citing the legal principle that fraud must be specifically pleaded and proven to a higher standard than ordinary civil matters, the appellant relied on Omari Yusuph vs Rahman Abdulkadri (1987 TLR 169), asserting that allegations of fraud cannot be raised without being included in the pleadings or framed issues. 3 Mr. Chebwa contended that the chairman of the DLHT improperly concluded that the appellant had fraudulently obtained the certificate of occupancy based solely on differences in signatures. He further emphasized that pleadings bind the parties and the court, as reflected in Saulo Malima vs Petro Kingoni (Civil No. 154 of 2022). By addressing the appellant's identity as Musa Omari without it being raised in the pleadings, the chairman acted beyond his mandate, which is against Order VIII Rule 2 of the Civil Procedure Code (CPC). In addition, Chebwe argued that, if the

respondents questioned the appellant's name, the burden of proof lay with them, per Section 110 of the Evidence Act. In response, Counsel for the respondents, Mr. Joseph Madukwa, countered that the Tribunal had the right to consider discrepancies in the appellant's signature. He cited Section 75(1) of the Evidence Act, which allows a court to compare signatures, even without explicit allegations of fraud being pleaded. Mr. Madukwa argued that the Tribunal's determination of fraud, though not a framed issue, was justifiable since both parties had an opportunity to challenge the evidence during cross-examination. He also pointed to Leonard A. Munghor vs Novart Kaijage Zedekiah (Civil Case 4 No. 04 of 2021) to support the notion that a court can examine documents to verify the authenticity of signatures. Regarding the issue of identity, Madukwa submitted that the DLHT found inconsistencies in the appellant's evidence regarding his name, which led to the conclusion that the appellant had not sufficiently proven that he was Musa Omari. The respondents maintained that the appellant failed to demonstrate his lawful ownership of the land. Coming to the 4th and 5th grounds, Mr. Chebwa argued that the DLHT misapplied the principle of balance of probability, reaching an unjustifiable conclusion. He contended that the Tribunal focused solely on the issue of forgery without properly

considering the ownership of the disputed land. The appellant had tendered documentary evidence, including a letter of offer (Exhibit KI) and a certificate of occupancy (Exhibit K2), which clearly established his ownership of the land. The respondents, on the other hand, produced no documentary proof linking the property to the late Said Masoud Mihambo, except for a Probate Cause judgment (Exhibit B), which did not mention the disputed land. 5 Mr. Chebwa also highlighted discrepancies in the respondents' evidence, such as conflicting testimonies about the appellants identity and failure to prove that the appellant was not Musa Omari. He criticized the DLHT's reliance on witnesses like SU1, SU3, and SU4, who failed to present tangible evidence, such as the appellant's picture, to support their claims of fraud. In response, Mr. Madukwa argued that the DLHT was correct in finding that the appellant was not the lawful owner of the disputed land. He maintained that the evidence produced by the respondents, including testimonies from SU1 to SU4, established that the land was originally granted to the late Said Masoud Mihambo, not the appellant. Mr. Madukwa submitted that the Tribunal's finding of forgery was supported by the evidence, which indicated that the appellant had unlawfully obtained the certificate of occupancy. Mr. Madukwa also contended that the DLHT appropriately applied

the principle of balance of probability in favor of the respondents, given that the appellant's failure to follow proper procedures in collecting the certificate of title raised suspicions about the legitimacy of his claim. 6 In his rejoinder, Mr. Chebwa reiterated that the issue of forgery was improperly introduced by the DLHT, as it was not pleaded or framed for determination. He emphasized that evidence relating to signatures and identity, raised during the defense's case, took the appellant by surprise, violating the rules of fair procedure as laid out in Dr. Richard Kigaraba vs Jonas Laurent (Civil Appeal No. 377 of 2019). Chebwa further argued that the DLHT failed to consider the appellant's documentary evidence proving ownership and unjustly focused on the issue of forgery. He urged the High Court to re-evaluate the evidence and allow the appeal. The first and second grounds of appeal challenge the DLHT's decision to delve into the issue of forgery and differences in the appellant's signature, despite this not being a pleaded issue. The appellant's counsel argued that the respondents never raised forgery in their written statement of defense, and as such, the DLHT ought not to have made a finding on this issue. Additionally, it was submitted that under the principles of civil procedure, parties are bound by their pleadings and cannot be allowed to deviate from them

during the trial. This Court agrees with the appellant's contention that the Tribunal's reliance on allegations of forgery, which were not raised in the pleadings, 7 represents a significant procedural error. In this case, the DLHT erred by introducing the issue of forgery without it being specifically pleaded by the respondents or framed as an issue for determination. The case of Omari Yusuph vs Rahman Abdulkadri (1987) TLR 169 underscores the necessity of pleading and proving fraud explicitly when it is relied upon as a ground of defense. It is settled law that fraud must be pleaded with specificity and proved to a higher degree of probability than that required in ordinary civil cases, which was not done here. Further, the principles of natural justice mandate that parties must be informed of all issues to allow for a proper defence. This Court reiterates that parties must be bound by their pleadings, as established in Saulo Malima vs. Petro Kingoni (supra). By introducing unpleaded issues, the Tribunal compromised the fairness of the proceedings. The second aspect of the appeal challenges the DLHT's decision that the appellant failed to prove that his name was Mussa Omari. The appellant's counsel submitted that the respondents did not dispute the appellant's name in their written statement of defense, and therefore, it was improper for the DLHT to require the appellant to

prove his identity. 8 Upon reviewing the record, it is clear that the respondents did not raise any dispute regarding the appellant's name in their pleadings. The requirement for the appellant to prove his name, when it was not contested, was an error in the trial process. According to the law, the party who asserts a fact has the burden of proving it under Section 110 of the Evidence Act. Since the respondents did not challenge the appellant's name in their defense, there was no need for the appellant to prove that he was indeed Mussa Omari. The Tribunal, therefore, acted beyond its mandate by raising and determining an issue that was not part of the pleadings. The fourth and fifth grounds of appeal challenge the DLHT's evaluation of the evidence and its application of the principle of balance of probabilities. The Tribunal did not adequately assess the evidence presented by the Appellant, including the certificate of occupancy and supporting documents. The evidence of the Appellant's ownership must be examined alongside the Respondents' claims regarding their long-term residence and inheritance of the property. The Tribunal appears to have improperly weighed the evidence, concluding ownership based solely on allegations of forgery without a thorough consideration of the totality of evidence. The legal principle of 9 balance of probabilities necessitates a holistic assessment

of all relevant evidence, including the history of possession and any supporting documentation. The issues raised in this appeal indicate significant procedural and substantive flaws in the Tribunal's handling of the matter. The failure to address critical issues and the reliance on unpleaded allegations necessitate a fresh hearing. As a consequence, the matter is hereby remitted to the District Land and Housing Tribunal for a fresh hearing. The Tribunal is directed to: Raise all relevant issues for the determination of this matter and provide both parties the opportunity to comprehensively present evidence on their respective cases; and ensure that all evidence, including any documentary evidence, is evaluated in accordance with the principles of natural justice and procedural fairness. The Court has also observed minor discrepancies in the manner in which the names of the parties have been written in the title of the trial Tribunal's proceedings and final judgment when compared with the names as set out in the pleadings filed before the Tribunal. In the interest of clarity and to 10 avoid unnecessary confusion, the Court advises the trial Tribunal to strictly adhere to the names of the parties as they appear in the pleadings. This appeal is hereby allowed to the extent explained above. The costs of this appeal shall be in the cause. 11