NDULA NHIGA V NDEKEJA MAHONA MADUKA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA LAND APPEAL NO. 2362 OF 2024 {Arising from the Decision of the District Land and Housing Tribunal for Nzega in Land Application No. 29 of2022) NDULA NHIGA................................................................................. APPELLANT VERSUS NDEKEJA MAHONA MADUKA (Administrator of the Estate of the Late Maduka Lukanguji @ Mwanja)..................................... RESPONDENT JUDGMENT Date of Last Order 21/08/2024 Date of Delivery: 27/08/2024 KADILU, J, In 2022, the appellant filed a land case in the District Land and Housing Tribunal (DLHT) for Nzega claiming to be the lawful owner of Seven (7) hectares of land located at Ipelelo Hamlet, Kalangale Village in Igurubi Ward within Igunga District in Tabora Region. He alleged that he acquired the said land by way of purchase from one Nyerere Maduka in 1984. The appellant avers that in 2019, the respondent trespassed on his land and started cutting some trees and grazing his cattle thereon. The appellant tried different ways to resolve the matter but in vain. He, thus, filed a land dispute in the DLHT praying to be declared the rightful owner of the disputed land, an eviction order against the respondent, an injunction order to restrain the respondent and his agents from interfering with the appellant's peaceful enjoyment of the suit land, and costs of the case. Having heard both sides, the Hon. Chairman of the DLHT decided the case in favour of the respondent. Aggrieved by the tribunal's decision, the i appellant filed in this court the instant appeal praying for the court to quash and set aside the tribunal's judgment and decree, and declare him the rightful owner of the suit land allegedly because: 1. The trial Chairman of the tribunal erred in law and facts to hold that no evidence was adduced to prove the sale of the suit land between the appellant and Nyerere Maduka whereas the evidence by PW1 and PW2 proved sufficiently the claims on the balance of probabilities. 2. The trial Chairman of the tribunal erred in law and facts to place undeserving heavy weight on the evidence of DW1, DW2, DW3, and DW4 who jointly concocted and adduced unreliable and hearsay evidence. 3. The trial Chairman of the tribunal erred in law and facts to hold that the appellant's non-production in the court of a witness who was neighbouring a suit land should be adversely interpreted against him while himself as PW1 and his wife, PW2 were competent and reliable witnesses in proving the claims. 4. The trial Chairman of the tribunal erred in law and facts to decide the case without properly analyzing and evaluating the adduced evidence by both sides thereby arriving at a wrong decision. 5. The trial Chairman of the tribunal erred in law and facts to overlook the fact that the appellant had a long occupation and use of the suit land for 35 years from 1984 to 2019 when the dispute arose. 6. The trial Chairman of the tribunal erred in law and facts to hold that the disputed land belonged to Maduka Lukanguji whereas it was owned by Nyerere Maduka. Based on the strength of these grounds, the appellant urged the court to allow the appeal with costs and overturn the decision of the DLHT. During the hearing of the appeal, the appellant appeared in person as he had no legal representation. The respondent was represented by Mr. Fadhili Kingu, 2 the learned Counsel. Submitting on the 1st ground of appeal, Mr. Ndula Nhiga submitted that he bought the disputed land from Nyerere Maduka. According to him, he gave Nyerere 12 herds of cattle in exchange for the land in dispute. He added that the transaction was witnessed by the Hamlet Chairman and two other persons. The appellant averred that the land belonged to Nyerere but having used the said land for 35 years, Nyerere's father emerged claiming the land to be his. Concerning the 2nd ground, the appellant submitted that evidence of DW1, DW2, DW3, and DW4 was not supposed to be accorded heavy weight because it was hearsay evidence and the witnesses came from Nyerere's family. About the 3rd ground, the appellant stated that he testified as PW1 and his wife as PW2 and were competent and reliable witnesses, but only evidence of the respondent's family members was considered by the DLHT. On the 4th ground of appeal, the appellant repeated what he had submitted on the 3rd ground. Regarding the 5th ground, the appellant submitted that he stayed on the disputed land for 35 years from 1984 to 2019 and the respondent was present but he did nothing. Lastly, he submitted that the disputed land belonged to Nyerere which is why he sold it to the appellant. He, however, explained that Nyerere did not give him any evidence to show that the land was his. Responding to the 1st ground, Mr. Fadhili Kingu submitted that PW1 and PW2 did not prove the case to the required standard. The appellant was the one who filed the case. Therefore, he was required to prove it to the balance of probabilities. The learned Advocate cited the case of Barelia 3 Karangirangi v. Asteria Nyaiambwa, Civil Appeal No. 237 of 2015, Court of Appeal at Mwanza, and Abdul Karimu Haji v. Raymond Nchimbi Aioyce & Another [2006] TLR419. Mr. Fadhili elaborated that in paragraph 6 (a) (ii) of the application, the appellant indicated that he purchased the disputed land in 1984. On page 6 of the proceedings, he stated that there was no writing because it was during the colonial era. He also said he bordered Dode Kandago on the North, but he testified that he bordered Maduka on the North. In this situation, there is no way the appellant can be said to have proved his case to the required standard. He supported his argument with the case of Makori Wasaga v. Joshua Mwaikambo & Another [1987] TLR 88 where it was held that a party is bound by his pleadings. According to Mr. Fadhili, the appellant failed to show where Nyerere got the land in dispute. He did not conduct due diligence hence; he purportedly purchased the land from the person who was not the owner thereof. Concerning the 2nd ground, the Advocate submitted that the respondent's witnesses gave satisfactory evidence to justify the decision of the tribunal in favour of the respondent. None of them gave hear-say evidence as alleged and none of them belonged to the respondent's family. The appellant did not object to the respondent's witnesses on the ground that they were relatives. Nevertheless, the law does not prohibit members of the family from testifying. On the 3rd ground, Mr. Fadhili argued that the appellant failed to prove that there was a sale agreement. He only summoned his wife to testify in his favour alleging that all other witnesses had died. He did not call even the 4 neighbours with whom they were bordering. Regarding the 4th ground, the learned Counsel opined that the tribunal analyzed the evidence properly as seen on pages 4 to 5 of the typed judgment, which is why the tribunal found that the disputed land did not belong to Nyerere Maduka. The appellant's evidence consisted of empty words without tangible proof. The record indicates that the land in dispute had tombs, trees, cattle boma, and a hut. The appellant failed to prove his ownership. PW4 was all along using the land bordering the disputed land but he averred to have ever seen the appellant using the land in dispute. On the 6th ground, Mr. Fadhili insisted on what he had submitted on the 4th ground and concluded that Nyerere Maduka had no title to pass to the appellant. By way of rejoinder, the appellant argued that the Advocate does not know the boundaries of the land in dispute because he does not live there. It was common in that area to sell and purchase land without having sale agreements. The witnesses who were present during the sale are already dead so those who were called were not relevant. He narrated that when he purchased the land in dispute, there were no tombs and even today, there are none. I have gone through the tribunal's records, the grounds of appeal, and submissions by the parties. Now, the task before me is to determine whether or not the appeal has merit. In doing so, I will discuss the 1st and 3rd grounds of appeal jointly as they both challenge the way the trial Chairman treated the appellant's evidence proving ownership of the disputed land. The appellant alleges that the learned Chairman erred in holding that he failed to prove that he purchased the suit land from Nyerere Maduka while the 5 appellant's wife and himself proved it sufficiently. He contended in addition that the trial Chairman considered his failure to summon witnesses who are his neighbours on a suit land as fatal. Before the DLHT, the appellant asserted that the respondent had trespassed on the suit land in 2019 without any claim of right and started using it. Accordingly, to prove that the respondent did indeed trespass into the disputed land, the appellant had the burden to prove ownership in the first place. To prove ownership of unregistered land in Tanzania, one has to produce a sale agreement, deed of gift, customary right of occupancy, proof of inheritance, or long occupation after abandonment by the owner under the famous doctrine of adverse possession. In the case at hand, the appellant contended that he purchased the disputed land from Maduka Nyerere in 1984. For that reason, he was expected to tender a sale agreement. On the contrary, the appellant told the trial court that the sale agreement was in oral form. He added that the transaction was witnessed by four persons but three of them had already died. He, did not, however, summon the surviving witness. He testified himself as PW1 and summoned his wife as PW2. Throughout the trial, the appellant described the boundaries of the suit land and indicated his neighbours in all directions. Unexpectedly, he did not call any neighbour to testify on his part. Those who were called by the respondent denied having ever seen the appellant using the land in dispute which would imply that he was the owner thereof. The appellant was categorical that he had no contractual document to support his claim that he purchased the suit land as the sale agreement was 6 made orally. I am thus, convinced by the argument by the Advocate for the respondent that the appellant's evidence consisted of empty words without tangible proof that he purchased the land in dispute. In Issa Ahmad v. Mussa Abdul Mohamed, Misc. Land Case Appeal No. 72 of 2010, it was held that: "In any civil action, the question of ownership is not established by mere plain words but dear and cogent evidence that will resistibiy and specifically point to the source of acquisition and occupation of the property under the contest." For the foregoing discussion, it is the finding of this court that the 1st and 3rd grounds of appeal are wanting of merit hence, I dismiss them. On the 2nd ground of appeal, the appellant complains that the trial Chairman erred in placing undeserving heavy weight on the evidence of DW1, DW2, DW3, and DW4 who jointly concocted and adduced unreliable and hearsay evidence. The basis of the appellant's complaint on this ground is that none of DW1, DW2, DW3, and DW4 was born in 1940 and witnessed Maduka Lukanguji acquiring the disputed land. I hasten to hold that the ground is baseless because it does not necessarily need one's presence at a particular time for him to acquire knowledge about something. Knowledge can be acquired in many different ways and from many sources, such as facts, scientific inquiry, learning, and practice. The appellant did not contradict the evidence given by DW1, DW2, DW3, or DW4 by cross-examining them or in any other way, but he is blaming the trial court for believing them. In GoodluckKyando v. R., [2006] TLR 363, the Court held that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent 7 reasons not believing a witness. The fact that the witnesses were born after 1940 is not sufficient to make the court not trust their testimony. Therefore, the 2nd ground of appeal has also failed for being devoid of merit. Again, the appellant laments that the trial Chairman erred in deciding the case without properly analyzing and evaluating the adduced evidence by both sides hence, he arrived at a wrong decision. I have already shown that for one to prove ownership of unregistered land in Tanzania, he needs to have tangible evidence. The appellant's allegation that he purchased the land in dispute from the late Nyerere Maduka was not proved in any way. For that failure, this court finds nothing to fault the trial court for improper analysis and consideration of the evidence. More so because oral testimonies presented by the respondent's witnesses disproved the appellant's claim. As hinted, the respondent had no duty to prove that he did not trespass on the appellant's land. Nonetheless, the trial court is duty-bound to analyze the evidence of both sides. It does not, however, mean that if a certain piece of evidence is rejected, then it has not been considered. The evidence by both sides was well considered and featured in the tribunal's judgment. Thus, the 4th ground of appeal is devoid of merit and is hereby dismissed. Further, the appellant complains on the 5th ground of appeal that the trial Chairman of the tribunal overlooked the fact that he had a long occupation and use of the suit land for 35 years from 1984 to 2019 when the dispute arose. I have to point out that in the DLHT, the appellant did not plead long occupation of the disputed land or adverse possession. He stated in his application that he acquired the land in dispute by way of purchase. Throughout his testimony, he vigorously defended that stance. It is 8 surprising how he could expect the DLHT to give a decision that is not in line with the pleaded facts and adduced evidence. The law is settled that parties are bound by their pleadings and a party can only succeed according to what he has averred in his plaint and proved in evidence. See, Martin Fredrick Rajab v. liemeia Municipal Council & Another, Civil Appeal No. 197 of 2019, the Court of Appeal at Mwanza. The evidence produced by any of the parties that do not support the pleaded facts or are at variance with the pleaded facts is usually ignored. The appellant's narrative in evidence that he occupied the suit land for 35 years cannot change what he had pleaded in his pleadings for the law does not allow a party to set a new case during testimony. As such, I dismiss the 5th ground of appeal for want of merit. The other complaint by the appellant on the last ground of appeal is that the trial Chairman of the tribunal erred in holding that the disputed land belonged to Maduka Lukanguji whereas it was owned by Nyerere Maduka. This ground of appeal shall not take much of the court's time as I have already ruled out that the appellant did not prove that he purchased the suit land. Be what it may. Assuming that he purchased it, he had another obligation to prove a good root title. That is to say, the appellant was obliged to establish that Nyerere Maduka was the lawful owner of the disputed land hence, he passed a good title to the appellant. It is on record that during his lifetime, the late Maduka Lukanguji sued the appellant before Kalangale Village Council for trespassing on the disputed land and the case was decided in favour of Maduka as shown in exhibit D2. The record depicts in addition that on the land in dispute, there are cattle 9 boma, trees, and three tombs of Maduka's twin children. This is a clear indication that the land did not belong to Nyerere who was Maduka's son and who died before Maduka leaving behind the dispute between the appellant and Maduka over the same land. Since Nyerere had no title over the suit land, he could not in law sell it to the appellant. Legally, one cannot give a title he does not have to another person. That principle was well settled in the case of Furaha Mohamed v. Fatuma Abdallah [1992] TLR 205, and Gloria Irira v. Sudi Mrisho Ngwambi & Others, Civil Appeal No. 27 of 2021, Court of Appeal at Dar es Salaam, where it was held that he who does not have legal title to the land cannot pass a good title over the same land to another. Therefore, the 6th ground of appeal is also baseless and I dismiss it accordingly. Based on the foregoing analysis, this court holds that the entire appeal lacks merits. As a result, I do not find any reason to disturb the findings of the trial tribunal. I, thus, dismiss the appeal with costs. Order^EQ^dingly. KADILU, MJ. JUDGE 27/08/2024 The Judgment delivered in chamber on the 27th day of August, 2024 in the presence of Mr. Akram Magoti, holding brief for Mr. Fadhili Kingu, Advocate for the respondent. JUDGE 27/08/2024