PASCAL MBEGEZE scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 28855 OF 2024 (Originating From Application No. 90/2020, Bagamoyo District Land and Housing Tribunal) PASCAL MBEGEZE...... .................................................................... .1st APPELLANT REHEMA MBONEA............................................................................................... 2ndAPPELLA GRACE WINFRED MOSHI....................................... 3rd APPELLANT HOSEA YOHANA...................................................................................................4thAPPELLA AUGUSTINO DAMIAN..................................................................................... .....5thAPPELLA

VERSUS AIDAN KAUDE....................................................................................RESPONDENT

JUDGMENT 12th to 20th February, 2025 E.B. LUVANDA, J In the memorandum of appeal, the Appellant named above, raised three grounds to challenge the decision of the Tribunal which dismissed the Appellant's suit on the grounds inter alia that the Respondent is protected by the doctrine of adverse possession and long occupation. And that the facts adduced by the Appellants that immediately after purchasing the suit land on 23/03/1999, the First Appellant commenced construction of a house where he has been living there to date, which the Tribunal ruled that differs with what the Appellants pleaded in their application (pleading) on that those facts were not pleaded. i Briefly, the title of the Second Appellant (in respect of three acres) and Third Appellant (four acres), is rooted from the title of the First Appellant who alleged to have purchased a total of ten acres located at Kiharaka Suburb at Mapinga Bagamoyo, from Kilwa Nakabeleka on 23/08/1999 vide a sale agreement exhibit KM1. The Second Appellant disposed one acre to the Fourth Appellant who along the Third, Fifth Appellant did not show up to prosecute their claims. On the other hand, the Respondent alleged to have acquired ten acres located at Changwahela Mapinga Village, by way of purchasing from Salehe Mipoko, on 29/06/2003, as pe a sale agreement exhibit Kill. The said vendor to wit Salehe Mipoko appeared at the

Tribunal where he testified as DW5, however he refuted allegation of vending any land to the Respondent and disowned completely knowing the Respondent. Both parties alleged to have developed the suit land by way of constructing permanent residential houses and crops and to have been living at the suit land after purchasing. Having considered the testimony tendered before it, the Tribunal dismissed the Appellants' claim as aforesaid. The ground of appeal, goes thus: One, the judgment lacks essential contents of a proper judgment according to law hence in serious contravention of Order XX rule 4 of the Civil Procedure Code, Cap 33 R.E. 2019; Two, the trial Tribunal 2 erred in law and fact by misapprehending the evidence and failing to consider evidence relevant to the material issues thus occasioning serious injustice to the Appellants; Three, Tribunal seriously misdirected itself in law in implying and holding that the Respondent found the suit land without occupants and stayed at suit land for twelve years without disturbance from anyone. Mr. Juma Ahmed Mwakimatu, learned Advocate for Appellants, for ground number one, he prefaced by citing regulation 20(1) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations 2002 (sic, GN. 173 of 2003), that it judgments of the Tribunal to consist of: a brief statement of facts, finding of the issues, a decision and

reason for the decision. He submitted that the impugned judgement does not give a brief statement of facts of the dispute. It does not show exactly what the facts constituting the dispute between the parties are. He submitted that failure to do this also resulted into confusion and lack of clarity to the court in dealing with the issues before it resulting into miscarriage of justice, arguing that the Tribunal did not at all address itself to the dispute. He submitted that the impugned judgment does not clearly outline the framed issues and finding thereto. He cited Mariana Mwamakula vs Stephen Mleo [2024] TZCA 831 tanzlii, for a proposition that it deliberated on the contents of a judgment by quoting Order XX rule 4 Cap 33 (supra) which is pari materia to regulation 20(1) HN 173 of 2003 (supra). 3 For ground number two, the learned Counsel submitted that this being the first appellate court, it has powers to re-evaluate Tribunal's evidence and the exhibits tendered, citing Emmanuel Stephano Ngega (Administrator Of The Estate of the Late Ngega Stephano Kiboko) vs Butiama District Council & Masurura Village Council [2024] TZCA 282 tanzlii. He submitted that the trial records reflect, the Appellants had three witnesses to wit Pascal Alex Mbegeze (PW1) who tendered a sale agreement exhibit KM1, Abdallah Ally Abdillahi (PW2) and Rehema Mbonea Mlindoko (PW3). He submitted that the

testimonies of all three witnesses for the Appellants along exhibit KM1, have not been considered in arriving at the judgment, arguing the judgment of the Tribunal is silent on the testimonies of the Appellants' witnesses specifically PW2 and PW3. He submitted that the Respondent during trial brought six witnesses along witness number five who was alleged by the Respondent to have sold the said dispute land to the Respondent, who categorically denied ever having sold the dispute land to the Respondent and that DW5 categorically denied the signature on the Respondent's sale agreement to be his, argued DW5 turned hostile. He submitted that sadly, all this information and testimony is not considered in the trial judgment, arguing is highly irregular and serious injustice to the Appellants. He submitted that DW5 openly denied having signed Respondent's sale 4 agreement exhibit Kill, arguing that despite the outright denial, the Tribunal still based its decision by comparing the Appellants' exhibit KM1 to the said KU1. He submitted that mishandling of evidence and ignoring part of evidence adduced is contrary to law, citing Emmanuel Stephano Ngega (supra). For ground number three, the learned Counsel submitted that the principle intended to be relied upon by the learned trial Chairperson was the principle of adverse possession - whereby in our laws if one allows a stranger to stay

in his land for more than twelve years undisturbed then ownership goes to the stranger. He submitted that according to law, for the principle to apply, there should be no claim of ownership through purchase, citing Abdallah Mabula Versus Sophia Masanilo [2024] TZCA 882. He submitted that in this matter, at the Tribunal, the Appellants claimed to have purchased the suit land and submitted proof to that effect, arguing that the principle cannot apply. He submitted that he noted with concern that in the impugned judgment, the Tribunal raised new issues of consideration while writing the judgment including the issues of twelve years occupancy (adverse possession) by the Respondent and also the issue of necessary party and that of limitation of time, citing paragraph two of page two and paragraph two of page three of the judgment. He submitted that in our jurisprudence, a court can raise additional issues for 5 consideration, the law requires the parties to the suit be accorded an opportunity to be heard on the new issues. He submitted that the Appellants were not heard on the new issues deliberated upon by the Tribunal in judgment. He cited Attorney General & The Chief Executive Officer Tanzania National Roads Agency vs Itex Seri [2024] TZCA 465 tanzlii. He submitted that the trial record, PW1 testified under oath how the Appellants had been living at the suit property until 2019

when the Respondent through the police, invaded the premises with graders and forcefully removed the Appellants therefrom. He submitted that the Tribunal seriously erred in law and fact for incorrectly and suo motu holding that the Respondent had stayed at the suit land for twelve years without disturbance, on the explanation that: the evidence adduced at trial does not support this assertion and these issues were raised without according the parties right to be heard on the same hence contrary to law. In reply, Mr. Raphael Lefi David learned Counsel for Respondent, prefaced by arguing that parties are bound by their own pleadings, citing Scan Tan Tours Ltd vs The Catholic Diocese of Mbulu, Civil Appeal No. 78 of 2012, CAT; Peter Ng'homango vs The Attorney General, Civil Appeal No. 114 of 2011, 6 CAT and Charles Richard Kombe Eva rani Mtungi and Three Others, Civil Appeal No. 38 of 2012, CAT. He submitted that the Appellants who filed their joint application claiming that both (sic, all) of them to be declared by the Tribunal as lawful owners of the disputed land and that the Respondent is a trespasser, could not even give description of their respective land, citing Masti Fredrick Rajab vs Ilemeia Municipal Council, Civil Appeal No. 197 of 2019, CAT; Dickson Namakonde vs Kinanja Msalanji and Three Others, Land Appeal No. 17 of 2023. He submitted that the Appellants never gave

description of their properties or land in dispute, neither stated the size of the land they are claiming nor indicated neighbours. For ground number one, the learned Counsel submitted that this ground has no merit. He submitted that the proceedings of the Tribunal dated 25/10/2022 indicates that the issues were framed on that date: One, who is the lawful owner of ten acres at Kiharaka; what reliefs are the parties entitled to. He submitted that page three of the judgment reflects the issues and the reasons why the Appellants lost their case. He submitted that the allegation that regulation 20(1) GN 173 of 2003 (supra) was not complied with, is unfounded. He submitted that the judgment at page two there is a statement reflecting the facts which gave rise to the filing of the application at the Tribunal. He submitted that the 7 findings and reason are on page three of the judgment. He submitted that the statute has never said how shorter the judgment of the Tribunal should be. For ground number two, the learned Counsel submitted that the First Appellant testified as PW1, the Second Respondent testified as PW2, while the Third, Fourth and Fifth Appellant they never appeared to testify before the Tribunal. He submitted that it is ridiculous for the Appellant to appeal and challenge the evidence which they don't know, arguing that is why they failed to know exactly the suit land is

situated either at Changwehela or Kiharaka Suburb. He submitted that DW2 who was the Chairperson at Mapinga Village in 2004, made it clear that Mapinga Village had got six suburbs, namely: Mapinga, Mtambani, Kwa Kiboshya, Kimere, Kiharaka, Udindivu and Changwehela. He submitted that the Appellants were claiming the land which they never knew where it is located. He submitted that PW2 was not supporting the testimony of PW1 rather was fighting for her own right. He submitted that the Appellants failed to establish that they had heavier evidence to justify ownership than the Respondent, citing Mary Agnes Mpelumbe vs Shekha Nasser Hamad, Civil Appeal No. 136 of 2021. For ground number three, the learned Counsel submitted that the Respondent got his land in 2003 citing exhibit DI (sic, KU1), arguing that his land is located 8 at Chingwahela and not Kiharaka Suburb as alleged by the Appellant, he submitted that Martin Frank DW4 testified that he was an employee for the Respondent since 2003 who assisted to clear debris at the suit land. He submitted that if the Appellants were there, queried as to why they stayed mute till 2020 when decided to sue the Respondent who was in occupancy. He submitted that if the First Appellant got it in 1999, queried as to where he was between 2003 to 2020 when he decided to sue. He distinguished the cases cited by the learned Counsel for the

Appellants, on the ground that are irrelevant, arguing each case must be decided based on its own facts. On rejoinder, the learned Counsel for Appellant submitted that the Respondent raises a new ground of appeal in his reply arguing that during trial the Appellants application did not give description of the suit land. He submitted that the proper way of raising this new ground should have been through a cross appeal and not to ambush the Appellants appeal. He alluded to the Respondent's contention that parties are bound by their pleadings, arguing nowhere during trial did the Respondent raise this matter before trial Court (sic, Tribunal). For ground number one, he submitted that the Respondent did not specify which paragraph at page two of the judgment reflecting facts which gave rise 9 to the application. He submitted that at page two of the judgment, paragraph one the learned Chairperson discusses the opinion of the assessors; paragraphs two, three and four discusses limitation of time as to when it started to run. He submitted that the learned Chairperson does not at al! give a brief statement of facts as required under regulation 20(1) GN No 174 of 2003 (supra). For ground number two, the learned counsel submitted that the Respondent is misleading this Court regards the second ground of appeal. He submitted that the Appellants refer to evidence adduced in Court (sic,

Tribunal) by witnesses under oath, but the learned Chairperson did not consider it and left it out in the judgment. He submitted that the second ground does not refer to evidence not presented in Court (sic, Tribunal), rather testimonies of witnesses who appeared and gave testimony in chief, cross examined by the Respondent and were asked questions for clarification by both assessors and Chairperson, but their evidence is not deliberated in the judgment, citing PW2; PW 3 and that of DW5. He submitted that failure to consider and deliberate on the testimonies of the Appellants' witnesses during trial is a serious omission and irregularity that goes to the root of the matter hence occasioning the Appellants grave injustice. He submitted that this cannot be cured under Section 45 Cap 226 (supra) which io encourages reliance on substantive justice as against legal technicalities if the technicalities do not cause injustice. For ground number three, he submitted that the Respondent did not address himself on this ground. He submitted that whereas the ground relates to incorrectness of raising the concept of adverse possession yet both parties trace their ownership to purchasing the suit property, arguing that adverse possession cannot exist if the parties bought the property. He submitted that the Respondent misleads himself and starts counting number of years of purchase and

comparing names of locality of the suit premises. He submitted that again, the Respondent also did not reply to the issue of the learned Chairperson raising issues suo motu during judgment without allowing the parties to be heard. I will start deliberating on the first ground of appeal. At the rejoinder, the learned Counsel for Appellants narrowed down a scope of his complaint on ground number one to the extent of arguing that the learned Chairperson did not capture a brief statement of facts giving rise to a suit, arguing it offended regulation 20(1) GN No 174 of 2003 (supra). It is true that regulation 20(l)(a) GN 173 of 2003 (supra), impose a requirement for the judgment of the Tribunal to consist a brief statement of facts. However, the rule is silent as to whether ii the said facts should be prefaced at the beginning, introduction, middle etc. Regard, being there is no hard and fast rule on how a judicial officer or Chairperson should start crafting his or her judgment. The bottom line is judgment writing is an art, where every writer is trying harder to grasp facts presented into a case and create a suitable story which will not be boring to the readers. What matters, is that all essential elements should be contained in the judgment. In Mariana Mwamakula (supra), it was held, 'Suffice it to say, while recognizing that when composing judgments individuals have different

styles, what matters is that the essential ingredients should be there...' In the impugned judgment, the learned Chairperson did not start with a traditional or convention mode of crafting a judgment by commencing with an introduction, brief facts, issues for determination, reasoning, decision and verdict. Instead, took a different approach by recapitulating that it was a version of a judgment crafted in compliance with the directives of this Court. Thereafter the learned Chairperson embarked into deliberating on what wise assessors opined for the matter to start afresh for non joinder of necessary parties. Thereafter explained as to why he was about to differ with opinion of the wise assessors. At page two second, third and fourth paragraph, it is where the learned Chairperson sneaked into explaining brief facts giving raise to the dispute, by summarizing evidence adduced by both parties and examining it vis- 12 a-vis what was pleaded into the Appellants' pleading (application) filed at the Tribunal. At page three, third paragraph, the learned Chairperson managed to scale down the issue for determination, reasons for decision and verdict into a single paragraph of only six lines. This might be the reason as to why the learned Counsel for Appellant was unhappy. In fact, this was in compliance to the dictate of the said rule 20(1) GN 173 of 2003 (supra) which require judgment of

the Tribunal to be always short and written in a simple language. Again, this a foregoing version is missing into the general procedural law to wit Order XX rule 4 Cap 33 (supra) which the learned Counsel for Appellant opined it being in pari material regulation 20(1) GN 173 of 2003 (supra). Having said as above, the argument of the learned Counsel for the Appellant is devoid of any merit and his complaint was premised on the wrong assumption. Had the learned Counsel directed his mind properly by going into details of the impugned judgment, as I have attempted to narrate above, he could had discovered that the impugned judgment was crafted in compliance to the dictate of the law. For ground number two. It is common ground that the title of the Second, Third, Fourth and Fifth Appellant is derived from the First Appellant, the latter vowed to have disposed three acres to the Second Appellant and four acres to the 13 Third Appellant, where the First Appellant retained three acres. The Second Appellant disposed one acre to the Fourth Appellant who along the Third, Fifth Appellant did not turn to prosecute their claims. First Appellant alleged to have purchased a total of ten acres located at Kiharaka Suburb at Mapinga Bagamoyo, from Kilwa Nakabeleka on 23/08/1999 vide a sale agreement exhibit KM1. The testimony of the First Appellant (PW1) regarding acquisition of suit land,

construction and usage or occupancy of the suit land, feature at page two, third paragraph of the impugned judgment, where the learned Chairperson was discussing in reference of what was pleaded or not pleaded in the pleading (application). The learned Chairperson ruled that the question of construction of a house or it being currently occupied by the Respondent was not pleaded. This finding was the bases of the learned Chairperson to rule that the Respondent is protected by the adverse possession, although to my view, this doctrine was wrongly invoked, as I will explain hereinbelow in ground number three. The undertaking by the Chairperson was grounded from what can be discerned from the testimony presented by both parties who suggest their occupation at the suit land co-existed, every body suggesting having embarked into developing the suit land by erecting permanent residential houses along physical occupation of the suit land immediately after purchasing. That is why the Chairperson slept into an error of attempting to invoke a doctrine of adverse 14 possession, which to my view, it was an attempt to show that he was persuaded that it was the Respondent who was in actual physical occupation of the suit land as from when he purchased in 2003. For the sake of argument, I embark into further re-evaluating evidence presented at the Tribunal by PW1, PW2, PW3 and DW5, along exhibits tendered (specifically, exhibit KM1), as per Emmanuel Stephano Ngega (supra), ' The High Court being the first appellate court, handling of the appeal before it amounted to a rehearing which would entail carrying out a critical analysis, re evaluation of the evidence which includes the exhibits admitted before the lower court or

DHLT In the records of the Tribunal, PW1 was record to had testified that in 1999 he visited to Mzee Abdallah Libaja (PW2) in search of a farm, who in turn led PW1 to Mzee Kilwa Nakabereka who vended to PW1 a suit farm for a consideration of TZS 800,000, it was in August 1999, vide exhibit KM1. According to PW1 a sale was done before Juma Nassoro (Chairperson) in the presence of PW2, Mohamed Kaswa and Helena Damian. PW1 asserted that in 2001 he disposed three acres to the Second Appellant (PW2) for a consideration of TZS 600,000. PW1 asserted that in 2202 he disposed to the Third Appellant four acres for TZS 600,000. PW1 alleged that in 2002 he constructed a three-bed rooms house along planting permanent crops. But going by the application jointly filed by the 15 Appellants all these facts, regarding how, where, when PW1 purchased the suit land, were not pleaded. Also, facts pertaining to or construction of a house, planting permanent crops, were not pleaded. Even a size of suit land was not pleaded let alone its description. An argument by the learned Counsel for Appellant that the learned Counsel for Respondent was bringing a new ground regarding missing description of the suit land in the pleadings filed by the Appellants, is a misplaced. It is the learned Counsel for Appellants who invited this Court to embark into evaluating evidence. To my view, that cannot be done

without checking on what was pleaded by parties. The learned Counsel for Appellant having invited this Court to embark into re- evaluation of evidence, is precluded and incapable of trying to limit the scope of the extent of re-evaluation, or by cherry picking which facts which need re- evaluation. When was cross examined, PW1 said that he did not inquire as to where and how Mzee Nakabelaka acquired the suit land, neither exhibited documentations for ownership. Again, PW1 asserted he was led to the vendor by PW2. Surprisingly in exhibit KM1, PW2 appeared to be a witness for the vendor. On the other hand, PW3 alleged to had disposed one acre to the Fourth Appellant, but that fact is missing in the pleading (application). 16 As such the testimony of PW1, PW2, PW3 along exhibit KM1 was incapable to prove a title by the First Appellant who carries the title of the rest Appellants. In reference to the testimony of DW5, as I have prefaced above that DW5 he refuted allegation of vending any land to the Respondent and disowned completely knowing the Respondent. The learned Counsel for Appellant submitted that DW5 turned hostile. On my part I decline ascribing to that conclusion, for. reason that there is no such findings and declaration by the trial Tribunal. Indeed, the Respondent did not make a prayer for the Tribunal for DW5 to be treated as such. It is in records, in particular DW1

who asserted under oath that DW5 was bedridden after wrecked hip. When DW5 appeared to testify, the records reflect that the learned Chairperson recorded that DW5 was under ailment and unable to walk (carried by someone). In the circumstances, no wonder the learned Chairperson avoided to consider his testimony. Above all, the Respondent's duty was merely to defend, the Appellants were under obligations to prove their case. At any rate, the unreliable testimony of DW5, cannot be said to have assisted to carry forward the Appellants' case which was based on weak testimony wholly based on unpleaded facts. Regarding ground number three. As alluded in ground number two, the learned Chairperson wrongly invoked the doctrine of adverse possession to ground an 17 argument that the Respondent had a better title. As alluded by the learned Counsel for Appellant, the doctrine of adverse possession could not be invoked in favour of the Respondent in a situation where he pleaded having acquired a title over a suit land by way of purchase. In the case of Abdallah Mabula (supra), the apex Court held, 'First and foremost, the first appellate court incorrectly applied the doctrine of adverse possession. For this doctrine to apply, there should be no claim of ownership through purchase, which is the situation here' In that regard, I go along the argument of the learned Counsel for Appellant that

the Tribunal slept into an error. Therefore, the finding of the Tribunal is faulted to the extent that the doctrine of adverse possession by the Respondent was inapplicable. However, this verdict cannot alter the final verdict for reason stated above in ground number two. The learned Counsel for Appellant also faulted the learned Chairperson to have introduced a new issue of limitation of time without according parties the right to be heard. Going by the impugned judgment specifically at page two, second paragraph, first line, along page three, third paragraph, third line from bottom, the learned Chairperson used a phrase "ukomo wa muda or madai" However, by reading page three, paragraph two, one will realize that the learned 18 Chairperson was meant on the context of adverse possession. But for the sake of argument and clarity, those phrases are faulted too. Therefore, the appeal flop, the decision of the Tribunal is upheld to the extent of dismissing the Appellants' claims. The appeal is dismissed. No order for costs. Judgment delivered in the presence of Mr. Juma Ahmed Mwakimatu, learned 19