Land Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND APPEAL NO. 269 OF 2023 (Originating from the Decision of the District Land and Housing Tribunal for iiaia at the Ministry of Land Buiiding-Kivukoni in Land Application No 77 of 2019) MWAJUMA SALUM TAMBWE........................................ APPELLANT VERSUS JOHN MAGANGA..................................................1st RESPONDENT RAPHAEL MASELE........................................................................... 2ndRESPONDENT KELVIN NIBU................................................................................... 3rdRESPONDENT NIUS ANDREW................................................................................. 4thRESPONDENT NIKOLAUS BATHOROMEO PAULO.................................................. 5thRESPONDENT HAMIS HUSSEIN.............................................................................. 6thRESPONDENT JUDGMENT Date of last Order: 15/10/2024 Date ofJudgment: 28/10/2024 LALTAIKA, J, The Appellant, MWAJUMA SALUM TAMBWE is dissatisfied with the decision of the District Land and Housing Tribunal for llala at the Ministry of Land Buiiding-Kivukoni "the DLHT" in Land Application No 77 of 2019. She Page 1 of 15 has appealed to this Court by way of a Petition of Appeal containing the following grounds: 1. That the trial chairperson erred in law and fact in holding that SELEMANI SIMBA had land at Buyuni Zavala area. 2. That the trial chairman erred in law and fact in holding that the suit land had the genesis from SELEMANI SIMBA, as the Respondents did purchase the same from LA TIFA SELEMANI, the daughter of SELEMANI SIMBA. 3. That the trial chairperson erred in law and fact in holding that the Appellant had failed to prove that she is the lawful owner of the suit land. 4. That the trial chairperson erred in law and fact in holding that the Appellant was in the suit land white the Respondents were developing the suit land. 5. That the trial chairperson erred in law and fact in failing to analyze the evidences before him thus arriving to a wrong decision. Parties agreed to dispose of this appeal by way of written submissions. Whereas the Appellant appeared through Mr. Naibu Korn bo, learned Advocate, the Respondents enjoyed the legal services of Mr. Mlyambelele Ng'weli, learned Advocate. A schedule to that effect was ordered accordingly. The next part of this Judgment is a summary of submissions by both parties, my analysis and the consequential verdict. Mr. Kambo, Counsel for the Appellant, submitted in support of the appeal that, regarding the first ground, there was no documentary evidence led by the Respondents to establish that SELEMANI SIMBA owned land at Buyuni Zavala. He argued that only DW1, MOHAMED RAMADHAN, had made Page 2 of 15 a statement before the trial tribunal claiming that the Respondents purchased the land from various individuals, including SELEMANI SIMBA, yet failed to support this claim with any documentation. Mr. Kambo observed that the other witnesses, DW2, DW3, and DW4, did not provide any oral or documentary evidence indicating they had purchased land from SELEMANI SIMBA, rendering DWl's testimony hearsay and unsupported by the other Respondents’ evidence. Counsel referred to a section on page 4 of the judgment, where DW1 mentioned his acquaintance with SELEMANI SIMBA, describing him as owning substantial land and recognizing the Respondents as legitimate owners. However, Mr. Kambo argued that none of the Respondents actually purchased any land from SELEMANI SIMBA, making DWl's statements conflicting with the evidence of DW2, DW3, and DW4, thus lacking evidential value. On the second ground, Mr. Kambo submitted that no evidence was provided to establish that the disputed land originated from SELEMANI SIMBA. He reiterated that while DW1 attempted to present evidence that the Respondents purchased the suit land from SELEMANI SIMBA, this was not corroborated by the Respondents. Instead, the Respondents testified to Page 3 of 15 purchasing the suit land from LATIFA SELEMAN, daughter of SELEMANI SIMBA, and produced sale agreements demonstrating her role as vendor. To further his argument, Mr. Kambo invoked the Latin maxim "nemo dat quod non habet," emphasizing that no one can transfer a title they do not own. He argued that the trial tribunal erred in relying on DW5's, LATIFA SELEMAN SIMBA's, testimony to conclude that the land originated from SELEMANI SIMBA, as her testimony lacked evidential weight and reliability. Referring to page 6 of the tribunal's judgment, where DW5 testified that her father gave her the disputed land, Mr. Kambo highlighted that there was no documentation to support this claim, nor details such as the time of transfer, the acreage, or boundaries of the land. He questioned the safety of relying solely on DW5's oral testimony without corroborative evidence. Mr. Kambo emphasized that it would be unsafe to depend on DW5's unsupported testimony to justify taking the suit land from the Appellant, as DW5 lacked a good title to pass to the Respondents. The evidence led by the Respondents and their witnesses, Mr. Kambo averred, did not suggest Page 4 of 15 that the suit land stemmed from SELEMANI SIMBA, as DW5 presented no proof other than her statements. He argued that DW5's claim that her father possessed ownership documents, which she declined to tender, along with her failure to call a family witness to corroborate her testimony, weakened the reliability of her account. Mr. Kambo contended that the trial chairman overlooked these shortcomings; had he properly assessed the evidence, he would not have concluded that the suit land originated from SELEMANI SIMBA. On the third and fourth grounds, Mr. Kambo submitted that the Appellant had proven her lawful ownership of the suit land through evidence from PW2 and PW3, which supported PWl's claim and that PW1 provided a sale agreement to establish her purchase of the land in dispute. On page 7 of the trial tribunal's judgment, Counsel asserted, it was recorded that there was no dispute over PWl's ownership of land in Zavala, Buyuni, as acknowledged by witnesses from both sides and even by the first Respondent. However, Mr. Kambo noted, the tribunal questioned the size of the trespassed land, but he emphasized that exact measurements were impractical under trespass circumstances, where only estimates are possible. Page 5 of 15 Further, he argued that the trial tribunal erred in using the lack of action by PW1 while the Respondents developed the disputed land as proof of her failure to establish trespass. He asserted that PW1 did not testify to witnessing the Respondents developing the land, as the tribunal claimed, and clarified that her absence from the disputed area when the alleged trespass occurred did not negate her ownership claim. On the fifth ground, Mr. Kambo submitted that the trial chairman would not have dismissed the application if he had accurately analysed the evidence. He emphasized the pivotal role of DW5's testimony, as DW5 was allegedly the source of the land transferred to the Respondents. He argued that DW5 lacked a valid title to transfer, which the tribunal should have recognized, and that her unsupported claim of inheritance from her father was insufficient to establish ownership. In closing, Mr. Kambo requested that the appeal be allowed with costs. Mr. Ng’weli, Counsel for the Respondents, argued that after thoroughly reviewing the Appellant's submission in chief, he found it misdirected and unconvincing to warrant overturning the trial Tribunal's well- founded decision, which dismissed the suit with costs after hearing from both parties. Page 6 of 15 Addressing the first ground of appeal, Mr. Ng'weli noted that Selemani Simba was the original owner of the disputed land before it passed to the Respondents through various means. He highlighted that DW5, Latifa Selemani Simba, who is Simba's daughter, testified that the land had previously been contested in Land Case No. 35 of 2016 at the Ward Tribunal of Buyuni, and a judgment was admitted as Exhibit D5. In that case, the appellant served as a witness, supporting the claim that the land belonged to Othmani Matata. To date, asserted Mr. Ng'weli, no appeal or revision has been lodged to challenge the Buyuni Ward Tribunal's decision, and since DW5's evidence went unchallenged in cross-examination, it implied the Appellant's acceptance of DW5's statement. According to Mr. Ng'weli, this alignment with DW5's account suggested that the Appellant acknowledged the land did not belong to them. He emphasized the legal principle that failure to cross-examine a key witness on certain matters implies acceptance of their testimony, as established in Jacob Mayani v. Republic, Criminal Appeal No. 558 of 2016, by the Court of Appeal of Tanzania, which affirmed that silence during cross- examination signifies acceptance of the truth of the witness's account. Page 7 of 15 Mr. Ng'weli asserted that the trial Chairperson was correct to conclude that the land belonged to Selemani Simba based on DWl's corroborative evidence, which he claimed sufficiently proved DW5's title to the land. Consequently, the references to Selemani Simba or Latifa Simba as the land's owner were interchangeable, bearing the same meaning. In responding to the second ground of appeal, Mr. Ng’weli argued that it largely paralleled the first ground. He reiterated that Latifa Selemani demonstrated her ownership before transferring the land to some of the Respondents, and the Appellant did not contest this evidence. He contended that Exhibit D5, the judgment confirming Latifa Simba as the rightful owner, reinforced her legitimate title to the land in dispute, a fact further supported by DW1, a long-serving Chairperson, who identified the land as belonging to the Simba family. Counsel averred further that DW1 distinguished the land owned by the Appellant and one Kaungwa from the disputed land, which he claimed was also confirmed by DW5's sale of portions to the Respondents, except for the 4th Respondent, who had acquired their portion from Ally Masaki, who in turn purchased from DW5. Page 8 of 15 Turning to the third and fourth grounds of appeal, Mr. Ng’weli emphasized the principle that the burden of proof lies on the party making the allegations, which in civil cases must be on the balance of probabilities. He criticized the Appellant for inconsistencies in the land's alleged size, as noted in the Application Form No. 1 and the evidence from PW1 and PW2, which varied between one acre, one and a quarter acre, and three-quarters of an acre. Mr. Ng'weli argued that the Appellant's departure from her original pleadings without justification was legally untenable. Citing Makori Wassaga v. Joshua Mwaikambo & Another [1987] TLR 88, he maintained that parties must adhere to their pleadings. Mr. Ng'weli further cited Barelia Karangirangi v. Asteria Nyalwambwa, Civil Appeal No. 237 of 2017, to emphasize that the evidence must meet a binary standard of proof; if the balance of probabilities isn't met, the allegation fails. He argued that the Appellant's failure to specify the exact size of the disputed land led to a default "0" value, indicating the alleged encroachment hadn't occurred. Additionally, Mr. Ng'weli pointed out that DW2 testified that while the Respondents were constructing their properties, the Appellant, a neighbouring landowner, cooperated with them, yet this testimony went Page 9 of 15 unchallenged in cross-examination, implying the Appellant's acceptance of its truth, consistent with the rule stated in Jacob Mayani. Addressing the final ground of appeal, Mr. Ng'weli argued that the trial Chairperson had thoroughly analysed the evidence before dismissing the case, thus rendering the claim of inadequate analysis baseless. He refuted the Appellant's assertion that DW5 lacked documentation, noting that the Ward Tribunal's unchallenged judgment confirming DW5's ownership had been admitted without objection and served as a valid basis for her claim. Since DW5 was not cross-examined on her evidence, Mr. Ng'weli argued, the Appellant was legally barred from challenging it at the appellate stage. In conclusion, Mr. Ng'weli contended that all grounds of appeal lacked merit. He emphasized that the Appellant had failed to demonstrate ownership by the balance of probabilities and, therefore, should be held accountable for this shortcoming. Accordingly, he prayed the court to dismiss the appeal in its entirety with costs. In rejoinder, Mr. Kambo observed that the Respondents had argued that Selemani Simba was the original owner of the disputed land and that DW5's testimony was sufficient to establish this ownership in Buyuni Zavala Page 10 of 15 area. He respectfully disagreed with the Respondents' counsel, arguing that their submissions lacked substance. He pointed out that DW5 and the other witnesses for the Respondents had failed to present any document during the trial tribunal proceedings that might establish that Selemani Simba owned land in that area. He contended that while the Respondents portrayed DW5 as a successor of title to this land, the record contained no evidence to support that DW5 held such a title. Mr. Kambo emphasized that no document was presented connecting the disputed land to DW5, and that the Respondents had not provided any evidence proving ownership of the land in question. He reiterated his submission in Chief related to the rest of the grounds I have dispassionately considered the rival submissions in the light of the grounds of appeal. I have also taken a rather keen interest in examining the Tribunal's records. It is settled law that, in land disputes, the person who alleges ownership must provide credible evidence to substantiate such a claim. In this case, the Respondents relied heavily on the testimony of DW5 to establish that the land originated from Selemani Simba. However, as highlighted by the Appellant's counsel, there is an absence of any documentary evidence connecting Selemani Simba to Page 11 of 15 the disputed land, nor is there evidence establishing DW5's status as a successor in title. Given these factors, it is my view that the trial tribunal erred in accepting the oral testimonies as sufficient proof of root ownership without any supporting documentation. On the relevance of Exhibit D5, the Appellant further argued that the trial tribunal erroneously relied on Exhibit D5, which the Respondents contended declared DW5 as the rightful owner of the suit land. The Appellant's counsel submitted that this exhibit did not pertain to the land in dispute and, thus, its consideration by the trial tribunal was misleading. Upon reviewing the record, I find merit in the Appellant's argument. Exhibit D5 lacks direct reference to the disputed land, and the Respondents did not clarify how this document could be considered decisive evidence of ownership. Legal principles demand that a document, to be deemed reliable, must be relevant and clearly applicable to the issues at hand. The trial tribunal, therefore, erred in treating Exhibit D5 as evidence of ownership over the disputed land, particularly in the absence of further proof establishing a connection between the document and the land. Page 12 of 15 The third ground of appeal is premised on the Appellants assertion that she had proven her case on a balance of probabilities. The Respondents contended otherwise, arguing that the Appellant failed to discharge this burden. The record reveals that the Appellant presented evidence, including testimonies, aimed at proving her claim to the land. Notably, the Respondents did not provide substantial evidence to counter the Appellants claims other than assertions about the original ownership of Selemani Simba and the testimony of DW5. As previously discussed, these claims were not supported by documentary evidence. In civil proceedings, a party must prove their case on a balance of probabilities. The evidence provided by the Appellant, in my assessment, meets this standard, and the trial tribunal ought to have found in favour of the Appellant on this ground. On the alleged occupation of more than two acres, Counsel for the Appellant challenged the trial tribunal's finding that the disputed land occupied by the Respondents was more than two acres, arguing that this assertion was not supported by the tribunal's records. The Appellant clarified that it was impossible to ascertain the precise area occupied by the Respondents prior to filing suit. Page 13 of 15 In land disputes, the size of the land under occupation can be a critical point, particularly if it affects the court's determination of ownership and usage rights. I find that the trial tribunal's assumption that the land exceeded two acres, in the absence of measured verification, was speculative and unsupported by the evidence on record. It was incumbent upon the trial tribunal to refrain from making unsubstantiated assumptions regarding the size of the land. The fifth ground of appeal raises the issue of whether the trial tribunal properly evaluated the evidence presented. Counsel for the Appellant contended that the tribunal chairman failed to analyze the evidence fairly, resulting in a decision that was unsupported by the facts and contrary to principles of justice. It is indeed fundamental that a tribunal should critically evaluate all the evidence before reaching a verdict. The trial tribunal's reliance on Exhibit D5, despite its irrelevance, and the acceptance of unsupported testimonies as proof of ownership indicate a failure in proper judicial assessment. This court finds that the trial chairman's analysis did not meet the standards required to ensure a fair and just determination, thereby warranting interference by this appellate court. Page 14 of 15 In the upshot, the appeal is hereby allowed. The decision of the District Land and Housing Tribunal is set aside. The court hereby declares the Appellant as the rightful owner of the disputed land. The Respondents are to vacate the land forthwith. Costs of this appeal shall be borne by the Respondents. It is so ordered. Ruling delivered this 28th day of October 2024 in the presence of Mr. Naibu Kambo, Counsel for the Appellant and Mr. Mlyambele Ng'weli Counsel for the Respondents. Page 15 of 15