PAULO BUNGE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

ARUSHA SUB REGISTRY

AT ARUSHA LAND APPEAL NO. 3305 OF 2024 (C/F Land Application No. 8 of 2019 before the District Land and Housing Tribunal for Karatu at Karatu)

BETWEEN PAULO BUNG'E............................................................................ APPELLANT

VERSUS KILIANI HARWERI....................................................................................... 1stRESPONDENT DEODATUS KILIANI....................................................................................2ndRESPONDENT TLATLAA BUNG'E........................................................................................ 3rdRESPONDENT

JUDGMENT 14/11/2024 & 22/11/2024 MWENDA, J.: This appeal arises from the judgement and decree of the District Land and Housing Tribunal for Karatu at Karatu (herein referred to as the trial tribunal), dated 12th December 2024 in Application No. 8 of 2019. In that matter, the present appellant unsuccessfully sued the respondents for allegedly trespass into his land measuring eight (8) acres located at Sahhata Sub Village, Kambi ya Simba village, within Karatu District in Arusha Region 1 | P a g e which he alleged to have bought from his brother, the 3rd respondent herein. His prayers to be declared the lawful owner of the suit land and for an order compelling the respondents to compensate him for the damages caused to the suit land were rejected, dismissed. The pieces of evidence gathered from both sides leading to such findings are as follows. The appellant/the then applicant, alleged that he bought the land in dispute from his brother (the 3rd respondent) on 29/01/2009 and in support to that, he tendered the transfer Deed (Mkataba wa mauzo) as exhibit P.l.Futher to that it was his evidence that since then, there was no dispute over the ownership of the land until the year 2018 when the respondents encroached into that land and damaged/destroyed nature and vegetations. On his part, the 1st respondent alleged that the land in dispute belongs to him since, sometimes back during

operation vijiji, in 1975, he was once assigned the piece land which was later, on 19/7/1984, exchanged with the 3rd respondent's land as evidenced by exhibit DI. On the other hand, the 3rd respondent supported the appellant's testimony in that he truly, sold the land in dispute to him (to the appellant) in the year 2 | Page 2009, before the dispute arose in 2019 when the 1st and 2nd respondent encroached into it. Regarding the evidence from the 1st respondent, the 3rd respondent declined to have ever exchanged his land with the 1st respondent's. On his part, the second respondent who stood at DW.5 supported the 1st respondent in that the land in dispute belongs to the 1st respondent, who in turn assigned a portion to him. Summarily, the appellant summoned a total of three witnesses and tendered one documentary evidence (Exhibit Pl) while on the respondents' side, seven (7) witnesses were summoned and tendered three (3) documentary exhibits. Having analyzed the evidence before it, the trial tribunal adjudged in the 1st & 2nd respondents' favor on the ground that the appellant failed to prove his case on the balance of probability. The tribunal reasoned that the 3rd respondent had no title to pass/ to sell after he had exchanged the same with the 1st respondent first. The appellant's application was consequently dismissed with costs. Dissatisfied with the above decision, the

appellant has preferred this appeal loaded with four grounds as appearing hereunder as follows, that. 3 | P a g e 1. That, Judgment by the Tribunal is wrong in fact and law for being arrive at without proper evaluation of evidence, (sic) 2. That, Tribunal verdict is bad for being founded on contradictory evidence, (sic) 3. That, decision by the tribunal is wrong in law for being founded on basis of exhibit (Exhibit D-3) which was not properly filed, wrongly admitted and wrongly acted upon by the Tribunal Chairman, (sic) 4. That, Tribunal chairman erred in law by issuing orders which are contradictory to the findings of the framed issued for determination of dispute. At the hearing of this appeal, which was done orally, both the appellant and the 1st and 2nd respondents appeared in person, unrepresented. It however proceeded ex-parte against the 3rd respondent whom, on several occasions defaulted appearance despite the proof of service. During submission in opposing this appeal, the 2nd respondent raised a point of law in that this appeal was filed out of time. He stressed to the effect that while the judgement was delivered on 12/12/2023, this appeal was lodged on 20/2/2024. Responding to this point and argument, the appellant briefly 4 | Pa ge stated that if there was any delay, then the same was the tribunal's fault as it delayed supplying him with the copies of proceedings

and judgement. I have put this point under scrutiny and, it is not in dispute that the trial tribunal's judgment which is subjected to this appeal was delivered on 12/12/2024 but this appeal was filed on 23/2/2024. From the proceedings, after the judgment was delivered on 12/12/2023, the appellant wrote a letter to the tribunal requesting to be supplied with the certified copies of the judgment, decree and the proceedings, and that was on 13/12/2023. He however could not get positive response thus on 01/2/2024 he wrote a reminder and, the same was not availed to him until 13/2/2024. By counting from 13/2/2024 to 23/2/2024 when this appeal was filed, the appellants was not time barred. In essence, by excluding the period requisite for obtaining a copy of the judgment and the decree,one may note that this appeal was filed within the timeline which is forty-five (45) days from the date of receipt of the said papers. That position is per Section 19 (2) of the Law of Limitation Act, Cap 89 R.E 2019 which provides that: "In computing the period of limitation prescribed for an appeal, an application for leave to appeal, or an application for review of judgment, the day on which the 5 | P a ge judgment complained of was delivered, and the period of time requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed, shall be excluded." On the reasons

above, this court is of the view that the raised point of objection has no merit thus, it is hereby overruled. Back to the merits of this appeal, having prayed the grounds of appeal to be adopted to form part of his oral submission, the appellant supported his appeal by arguing them generally. He commenced by stating that it is not true that the 1st respondent was assigned the land in Sata area for he tendered no evidence to prove the same. Further to that he said that the 1st respondent was assigned land at Siaya Juu. Further to that he faulted DW3's evidence alleging that he was a member of the land allocating committee which assigned land to the 1st respondent in 1974 while there was no operation vijiji by that time. The appellant also challenged the evidence of the 2nd respondent who testified that in 2019, he checked with the village office and noted that the appellant's document was forged while it was not true. He also complained that the trial tribunal disregarded his exhibit which 6 | Pa g e was tendered by the village authority. So, he prayed this appeal to be allowed. On his side, the 1st respondent briefed that he is the owner of the suit land as he was assigned with 18 acres in 1962. According to him, 9 acres were allocated to him during operation Vijiji while the remaining 9 acres were allocated to him after operation Vijiji. Responding to the appellant's argument

alleging contradiction over the respondents' evidence, he partly conceded by opining that the same was minor regarding the size of land. He concluded by praying this appeal to be dismissed. On his part, while supporting the 1st respondent's submission, the 2nd respondent submitted that at first, the appellant informed the tribunal that all his witnesses are dead but surprisingly, he later brought a witness who tendered some documents from the village office while he was neither connected to it nor an employee of the said office. Further to that he averred that the appellant also summoned a witness who testified that between 1974 & 1975 he was the village secretary while at that time that village was nonexistent as it was yet to be registered until 1976. Regarding exhibit D3, the 2nd respondent opined to the effect that the same was properly tendered by an employee of Kambi ya Simba village after the tribunal had ordered it 7 | P a ge to be filed first and serve the copy to the parties. In conclusion, while praying this appeal to be dismissed he said that all the issues were considered by the trial tribunal. Having keenly considered the rival arguments advanced by both parties and after examining the record of appeal before this court, the main issue for consideration is whether this appeal is merited. From the record, the appellant impleaded the respondents for

allegedly trespass unto the land in dispute. The evidence is also cogent in that the 1st and 2nd respondent are still in occupancy of the said land. As submitted herein above, the appellant alleged to have bought the said land in 2009 from the 3rd respondent who is his brother. At the trial stage, the 3rd respondent supported the appellant's evidence in that he sold the suit land to the appellant and denied of there being any agreement for the exchange of land between himself and the 1st respondent herein. On his part, the 1st respondent testified that he exchanged his part of land with the 3rd respondent's and his evidence was supported by the 2nd respondent and other witness as well as the documentary evidence tendered and admitted as exhibit DI. 8 | P a g e Principally, the law has it that he who alleges the existence of certain facts must also prove, thus in the present matter, the appellant being the accuser, had a burden of proof. The said position has been well articulated in several decisions as in the case of ABDUL KARIM HAJI V. RAYMOND NCHIMBI ALOIS AND ANOTHER, Civil Appeal No. 99 of 2014 (Unreported), in which the Court held that: ".... It is an elementary principle that he who alleges is the one responsible to prove his allegation." From the record, both the appellant and, the first and second respondent allege to be assigned the land in dispute by the 3rd

respondent herein. Among the two transfers, the record shows the 1st respondent tendered in the evidence supporting that he was assigned the said land in 1984.That transaction was reduced into writings and entitled. "MKATABA/MAKUBALIANO YA KUBADILISHANA MASHAMBA BAINA YA TLATLAA BUNG'E NA KILIAN HAREWRI WOTE WA KIJIJI CHA K/SIMBA MWAKA... 19/07/1984". This agreement was witnessed by several individuals, including the 3rd respondent and, it was signed before the Primary Court magistrate. Before 9 | P a ge the trial tribunal, the same was tendered without any objection by the appellant and the 3rd respondent as it was admitted as exhibit D.l.However in defence, while attempting to support the applicant's case by asserting that he assigned the same in 2009, the 3rd respondent did not say anything regarding the said agreement with the 1st respondent but during cross examination he denied having exchanged the said farm with the 1st respondent in 1984. With the said agreements on record, the court asked itself if both are legit in the eyes of law. Beginning with the respondent's agreement exhibited by D.l, this court is of the view that it is legit on the following reasons. One, that the said agreement was signed by the 1st respondent, the 3rd respondent and witnessed before the trial magistrate. Two, the said agreement (exhibit D.l) was tendered without any objection from the 3rd

respondent and in his defense, he did not delve on it at all save during cross examination. This made the court believe the same to me legit and, had there been any problem it, the 3rd respondent would have raised the same before the tribunal or even having taken other legal actions against the 1st respondent. His denial during cross examination is of no help to him, since oral testimony cannot surpass the documentary evidence. Principally, when the terms of a contract, grant or other disposition of property, or any 10 I P a g e matter required by law to be reduced to the form of a document, have been proved, no evidence of any oral agreement or statement shall be admitted, (see Section 101 of the evidence Act). On his part, the, the appellant, the then applicant, alleged that he was assigned the said land by the 3rd Respondent, and he tendered the transfer deed as exhibit P.l. From it, the signing date appears to be 29/1/2009. With it on record, the court asked itself over its legality only to find that by the time the 3rd respondent transferred it to him, he had not good title to pass to the appellant as he had already exchanged the said land with the 1st respondent way back in 1984. It is the principle of the law that he who does not have legal title to land cannot pass good title over the same to another. The same was held in the case of FARAH MOHAMED V. FATUMA

ABDALLA [1992] TLR 205 it was held that: "He who has no legal title to the land cannot pass good title over the same to another." Guided by the cited authority, although the 3rd respondent testified at the trial tribunal that he never exchanged his land with the 1st respondents, since the 3rd respondent did not challenge to the tendering of exhibit DI when it 11 | P a g e was tendered and admitted as exhibit, nor did he challenge his signature found on the said exhibits, then this court agrees with the decision of the Hon. chairman at the trial tribunal that the 3rd respondent had no any good title to pass to the appellant after the exchange which was made way back in 1984 between him and the 1st respondent. In the event, this appeal is hereby dismissed with costs. Ordered accordingly. DATED at ARUSHA this 22nd day of November 2024. (Jw I A.Y. MWENDA

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JUDGE 12 | P a ge