JUDGMENT MODESTA NZUNDA

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO. 94 OF 2023 CASE REFERENCE NO. 20231031000537485 (Originating from Application No. 42 of 2022 of the District Land and Housing Tribunal for Mbeya at Mbeya) MODESTA ANDSON NZUNDA ................................................ 1ST APPELLANT NDELE GEORGE (MSIMAMIZI WA MIRATHI YA MAREHEMU FANISHA VWALAZYE MWAMBENE) ...........................2ND APPELLANT VERSUS PHILIBATI MWAPELELE (MSIMAMIZI WA MIRATHI YA KATEMBWE MWAPELELE NSIMBA) ........................................... RESPONDENT JUDGMENT Date of hearing: 25/7/2024 Date of judgment: 5/9/2024 NONGWA, J. At the centre is a piece of land measuring 30 acres located at Shigamba hamlet Ileya village within the district of Mbarali in Mbeya region “the suit land”. The first appellant in Application No. 42 of 2022 in the District Land and Housing Tribunal Mbeya sued the respondent on allegation that he is interrupting with the development of the suit land of 1 which he was the lawful owner after purchasing it from the late Fanisha Vwalazye Mwambene herein to be referred “the seller”. The second appellant who was the second respondent in the tribunal joined as a necessary party. From the pleadings, the first appellant pleaded that he bought the suit land from the seller in 2011. He adduced evidence that the sale was before the village leader and a sale agreement was tendered in evidence as exhibit P1. He said that in 2021 when he embarked in developing the land, the respondent interrupted and claimed ownership over it. In support he summoned Emelda Nzunda (PW2) a witnessed the sale agreement. The second appellant through his written statement of defence alleged that the suit land belonged to Fanisha Vwalazye Mwambene and used for long time before he sold it to the first appellant. He testified that the land was allocated to the late Fanisha Vwalazye Mwambene by the village and used for long time before disposing it to the first appellant. He was supported by Charles Mwandemba (DW7), Picha Sikumoja (DW8) and Grace Njangaje (DW9). Substance of their evidence was that the suit land was allocated to the seller by the village and they are neighbours. On his part, the respondent through his written statement of defence alleged that the suit land belonged to his late father Katembwe 2 Mwapelele Nsimba after being allocated by chief Mpepete Ndongole in 1962, since then has never transferred ownership save the seller was given temporary use and returned it in 1999. Further that after the dispute had erupted between the seller and his family the matter was reconciled before Itaka village and the seller agreed to return the farm to the respondent. He was supported by Samweli Willson Valanzye (DW2), Midian Kajanja (DW3) Anos Ndongole (DW4) and Emmanuel Mbojela (DW5). DW2, DW4 and DW5 testified on what transpired during the reconciliation meeting, the minutes was tendered by DW2 and admitted as exhibit D2. Upon trial, the tribunal found in favour of the respondent, the holding was based on one, outcome of the reconciliation meeting held on 27/11/2021; two, that DW2 was related to Fanisha Vwalanzye Mwambene thus, could not testify against his relative; three, that the first appellant was warned by the respondent before purchasing and four, that sale agreement was done before unknown village leader. The above decision aggrieved the appellants who preferred the memorandum of appeal on five grounds; 1. That the Tribunal erred in law and facts to declare that the suit land is lawful owned by the respondent while ignored to put into record testimony of a key witness of the appellants who is actually the neighbor to the suit land as testified in favour of the appellants. 3 2. That the chairman erred in law and facts when ignored to proper recording evidence of the Appellants’ witnesses hence denied principle of natural justice of the right to be heard as the result miscarriage of justice. 3. That the chairman of the District land and Housing Tribunal erred in law and facts to declare that the suit land is lawful owned by the respondent basing on the documentary evidence that the original owner the late Fanisha Vwalazye consented to hand over the suit to the respondent while is not in considering that Fanisha Vwalazye attended the ward tribunal reconciliation and signed the summons for the District Land and Housing tribunal suing the respondent over the suit land. 4. That the chairman for the District Land and Housing tribunal erred in law and facts for not considering that the 1st Appellants lawful bought the suit land from the 2nd appellants and used that suit land for a long time while the respondent knew about it but did take any legal action against the 1st and 2nd appellants. 5. That the chairman of the District Land and Housing Tribunal erred in law and facts to declare that the costs of the suit be paid by the 2nd appellants while the suit was initiated by the 1st appellants. When the appeal came up for hearing, the appellants appeared in person, whereas the respondent was represented by Mr. Pacience Maumba, learned counsel. Parties agreed to dispose the appeal by filing written submissions and complied to the drawn scheduling order. In their submission the appellants argued ground one and two conjointly, they stated, the chairman did not consider strong evidence of 4 DW7 who is a neighbour to the land. That his evidence was not properly recorded and evaluated. Dealing with DW7’s evidence, the appellants submitted that DW7 gave unchallenged evidence that the land was allocated to Fanisha Mwambene during villagisation. They added that evidence of DW7 was vital because he was referred by both sides and all witnesses as a neighbour to the suit land. Further submission was that exhibit D2 was not evaluated in its proper perspective leading to wrong decision. In ground three that the late Fanisha Vawalazye Mwambene consented to return the suit land, the appellants submitted that it was not true that the seller admitted and consented to return the suit land to the respondent during the meeting. Counsel doubted exhibit D2 for not being signed by the chairperson and members who attended. They added that DW3 said Fanisha Mwambene refused to hand over the land to the respondent. The appellants wondered why the meeting was conducted in the village the suit land is not located. They argued that exhibit D2 shows that late Fanisha said he was owner of the suit land after obtaining from the village government while he was the chairman. That per evidence of DW7 found at page 52 of proceedings, Mzee Fanisha refused to hand over the suit land contrary to holding of the chairman. 5 Submitting in ground four, that the respondent did not take any action since 2011, the appellants stated that the land was sold in 2011 and the respondent knew that. Further that the first appellant used to clear the bush but it was until 2021 when the dispute emerged. The appellants worried inaction of the respondent to take actions within time to challenge the appellants. Regarding ground five on payment of costs, the appellants submitted that the chairman was not justified to order the second appellant to pay costs of the suit because costs is awarded to the winning party against the person who initiated proceedings in court. The appellants found no fault on party of the second appellant for he was also dragged in court by the first appellant, the case of Bahati Moshi Masabile T/A Ndono Filing station, Civil Appeal No. 216 of 2018, High Court of Tanzania at Dar es salaam (TanzLII) was cited to support the argument. Finally, the appellants prayed the court to allow the appeal with costs. In rebuttal, counsel for the respondent submitted that Fanisha and Katembwe were allocated the land by village leader in 1960’s, that of Fanisha is at Kavirwa while of Katembwe at Shigamba. As to ownership, it was stated that the respondent proved through DW2, DW3, DW4 and DW5 that in early 1990’s Fanisha used the land as invitee. Counsel 6 contended that before the sale the respondent warned the first appellant that the land did not belong to the seller but was surprised to hear that it was sold in his absence. Counsel for the respondent insisted that based on the principle of nemo dat quod non habet, the seller had no good title to pass to the first appellant per evidence DW2, DW3 and DW5 who said Fanisha agreed to return the land to the respondent. He added that in early 1990’s Fanisha used the land for three years after being given by Katembwe and returned it. Minutes of meeting conducted on 27/11/2021 between the family of the late Fanisha Vwalazye and late Katembwe Mwapelele to resolved the matter amicably was referred by the counsel. He stated in that meeting, the late Fanisha Vwalazye admitted that the shamba he sold belonged to the late Katembwe Mwapelele and promised to return the same as per exhibit D2. Further that the meeting was attended by DW1, DW2, DW3, and DW5 who said Fanisha agreed to return the farm. He added that DW2 is the brother of the late Fanisha Vwalazye and common sense infer that no prudent man could have doubted his evidence which offends the interest of his brother the late Fanisha Vwalazye. On exhibit D2 not being signed, it was submitted that there is no law or rule which require such document to be signed. That evidence of 7 DW7 had no value after the late Fanisha Vwalazye had admitted in exhibit D2 that the land belonged to Katembwe Mwapelele. Alternatively, that there was no evidence of disposition of land in absence of contract of sale between the late Fanisha Vwalazye and the first appellant. Mr. Maumba attacked exhibit P1 as not qualifying to be sale agreement as did not indicate the real location of the land and its size, consideration and mode of payment, names of witnesses, names of neighbours on each side and names of Kitongoji who participated in the transaction. He referred the decision of this Court in the case of Ambidwile Mwaikenda and Another vs Emily John Chengula, Dc. Civil Appeal No. 1 of 2014, High Court, Mbeya- Sub Registry (Unreported). The respondent’ counsel dismissed the complaint that evidence of the appellants’ witnesses was not properly recorded. On payment of costs in ground five, Mr. Maumba came up with his own story and submitted that the second appellant was not related to the late Fanisha Mwambene and did not attend the meeting held on 27/11/2021. He added that there was no reason why the previous administrator Mistian Fanisha was substituted with the second appellant. The respondent prayed the appeal be dismissed with costs. During rejoinder, it was submitted that principles of natural justice was not observed as counsel for the second appellant was not given 8 opportunity to cross examine the first appellant. On submission that Fanisha and Katembwe were allocated land in 1960’s it was refuted that at that time they lived in Havirwa and during villagisation moved to Ileya village. They said that Fanisha Mwambene did not admit and agree to return the land, the reason he referred the matter to the village leader and ward tribunal before his demise. Evidence of DW2, DW3, DW4 and DW5 was prayed to be disregarded for are not neighbours to the suit land. Having considered the record of appeal and rival submissions made for and against the appeal, I will start with ground three, then ground five and last will be ground one, two and four to be dealt conjointly. Starting with ground three that the seller Fanisha Vwalazye Mwambene agreed to return the suit land to the respondent, it has been submitted by the appellants that the seller did not agree to return to the respondent and referred to evidence of DW7 who was present in the reconciliation meeting. They added that minutes of the meeting exhibit D2 was not signed by the person who chaired the meeting. Further that while the land is located in shigamba hamlet the meeting was conducted at Itaka hamlet. In reply it has been submitted that DW2, DW3 and DW5 proved that the land belonged to Katembwe Mwapelele and Fanisha Mwambene was given for temporary use and returned it after three years. That the seller 9 and buyer approached the respondent for sell of the land but were informed that it did not belong to the seller, they went back and never returned. Further that the seller agreed to return to the respondent on the meeting of 27/11/2021, before DW2, DW3 and DW5 as seen in exhibit D2. And last that DW2 who was related to the seller could not have testified against his relative. To begin is evidence that the seller and the first appellant approached the respondent who told them that the land did not belong to the seller. It is undisputed that the first appellant and the seller went to respondent in his personal capacity as the chairman of the Ileya village to inform him of the intended sale transaction. Evidence as to what transpired varied between the first appellant and the respondent, while the first appellant testified that the respondent refused because he wanted to purchase it, the respondent said, he informed them that the land did not belong to the seller. In the judgment the chairman stated; ‘Mdai alikiri hapa barazani kuwa ni kweli mdaiwa wa kwanza alimuonya kuwa asilinunue shamba hilo. Na kuwa muuzaji siyo mmiliki. Jambo la kushangaza ni kuwa mdai aliendelea kununua shamba hilo kabla ya kutatuliwa mgogoro kati ya mdaiwa wa kwanza na marehemu Fanisha Vwalazye...’ Literally translated that; 10 ‘The complainant confessed before the elders that it was true that the 1st Respondent warned him not to buy the said farm. That the seller is not the owner. Surprisingly the complainant went on buying the farm before the ownership dispute between the 1st respondent and the deceased Fanisha Vwalazye….’ The above holding is not supported by evidence in record, the first appellant and the respondent gave different story on the reason the chairman declined to bless the sale. The chairman opted to believe the respondent, but on my the two being the only witnesses to the conversation, it becomes very hard to pick the one telling the truth. This implies that such evidence has to be considered along with other evidence in record. Another area is the submission that the seller agreed to return as shown in exhibit D2. Through evidence of DW1, DW2, DW3 and DW5 it was stated that on 27/11/2021 a meeting to resolve the land dispute between the seller and the respondent was held. That in that meeting the seller agreed to return the land to the respondent, minute of such meeting was tendered as exhibit D2. The tribunal in its judgment reproduced below, held; ‘Sababu ya kwanza ni kuwa kabla ya shauri hili kufika mahakamani kulikuwa na jitihada za kumaliza suala hili zilizochukuliwa na viongozi wa kijiji katika kikao cha usuluhishi 11 mbele ya mwenyekiti wa kitongoji Samwel Vwalazye, mzee Fanisha ambaye alikuwa hai wakati huo tarehe 21/11/2021 alikiri kuwa shamba siyo mali yake na kuwa atarudisha shamba hilo kwa Katembwe. Makubaliano hayo yaliandikwa na kutolewa hapa kama Exhibit D2. Makubaliano hayo yalishuhudiwa na kiongozi wa serikali ya kijiji Samwel Vwalazye DW2 ambaye pia ni kaka yake na ndugu wa karibu wa mzee Fanisha Vwalazye. Ukiachana na huyo kuna wazee wengine pia walioshuhudia akiwemo makubaliano hayo amabao walitoa ushahidi apa brazani ambao ni DW3, DW4 na DW5. Baraza lilikuwa na mtazamo tofauti na wa mdai na mdaiwa wa pili kuwa mzee Fanisha hakukubali kurudisha shamba hilo kwa kuwa imeandikwa kwenye muhtasari, na pia kiongozi wa kitongoji na wazee walioshuhudia walitoa ushahidi huo. Tofauti na mtazamo wa mleta maombi, mhustasari wa kikao hicho unadhihirisha kuwa mzee fanisha alikubali kurudisha shamba bishaniwa kwa familia ya maiwa wa kwanza.’ The above holding is subject to attack in this appeal, one that the seller did not agree to return, the appellants’ argument is based on what is recorded in exhibit DW2 when the seller narrated how he got the land. Two, that exhibit D2 was not signed by the chairman and members, and three, that it was conducted in the village the suit land is not located. The respondent only replied to a claim that exhibit D2 was not signed. I have gone through the testimonies of DW2, DW3 and DW5 in its totality they testified that meeting resolved that the suit land belonged to 12 the respondent’s father. I have read exhibit D2, each part was given chance to give the story, for purpose of completeness, I reproduce part of a narration; ‘Laison alieleza kwamba shamba ni la baba yao Katembwe, ni shamba lake alianza kulima mwaka 1962, na mtu wa kwanza kupewa shamba hilo alikuwa ni Mwasisya aliyelilima kwa muda wa miaka (3) akaondoka akaliacha, na mtu tuliepakana naye ni Chalesi Mwademba. Fanisha alisema yeye shamba hilo alilipata wakati selikali ilisema kila mtu awe na heka za kulima yeye alikuwa mwenyekiti. Wajumbe walihoji kila mmoja kulingana na maelezo yake. Anosi kama chifu alieleza kuwa eneo ni la katembwe. Mwishoni Fanisha alikili kosa na kuliacha shamba alimwachia Laison kiongozi wa familia ya Katembwe.’ Simple translation; ‘Laison narrated that the farm belongs to their father Katembe, it is a farm he started to cultivate in 1962 and the first person to be given that farm was Mwasisya who cultivated for the period of (3) years, he went and left the farm and the person we are bordering is Charles Mwademba. Fanisha said he got that farm when the government said every person should have farm to cultivate. Himself was the chairman of the village. 13 Member interviews every one according to explanation given. Anosi as chief narrated that the area belongs to Katembwe. At the end Fanisha admitted the offence to leave the farm, he left it to Laisoni head of Katembwe family.’ I have given a thorough thought the above incept, in my view it was not the reconciliation meeting but adjudication meeting. The seller from the beginning was resolute that the land belonged to him, what is said to be the admission, as it appears from exhibit D2 was after the members has deliberated on evidence given and came with the resolution as to ownership. This is inferred from the testimony of DW3 who said “mzee Fanisha na mzee laison walivutana sana katika kikao hicho, sisi kama wazee katika kikao kile tuliona kuwa eneo ni la mzee Katembwe”. Simple translation, mzee Fanisha and Mzee Laison argued vehemently in that meeting, we as elders in that meeting, we concluded that the farm belongs to mzee Katembwe.’ When DW3 was cross examined by the first appellant, he said “Fanisha alipoitwa mbele ya serikali ya kijiji alikataa kukiri kurudisha lile eneo, mzee fanisha hakusaini kukubali” Simple translation; when Fanisha was summoned before the village government he refused to admit to return the farm, mzee Fanisha did not sign to admit. 14 The above evidence tallies with that of DW7 who attended the reconciliation meeting, he said “mzee Fanisha hakurudisha shamba hilo siku tulipoenda kwa mwenyekiti was kitongoji …. Samwel Valanze ndiye alisimamia kikao hicho” in simple translation; “Mzee Fanisha did not return that farm the day we went to the hamlet chairman … Samwel Valanze is the one who chaired that meeting”. Given the above evidence, exhibit D2 cannot be taken as a wholesale, in the very exhibit, Mzee Fanisha did not admit that the land belonged to Mzee Katembwe, even those who attended the meeting that is DW3 and DW7 were clear in their evidence that mzee Fanisha did not admit. In that sense, it was the misdirection on part of the tribunal to rely on exhibit D2 that the Mzee Fanisha admitted to return the farm to the respondent’s family. Had the chairman considered evidence of DW2, DW3, DW5 and DW7 in details he would have not given exhibit D2 and only evidence of DW3, DW4, DW5 such heavy weight as he did, worse enough DW4 said he did not attend the reconciliation meeting. There is a holding that DW2 and Fanisha are close relatives, in my perusal of evidence, I have not sported any word from the mouth of DW2 to that effect, what DW2 said is that “Dembe na Samwel tulikuwepo kwa upande was familia ya mzee Fanisha”. Literaly translated “we, Dembe and Samwel were there for Mzee Fanisha Family side”. This statement is 15 different from the holding of the chairman that DW2 was a close relative of Fanisha. Therefore, the statement DW2 is a brother of Vwalazye Fanisha is extraneous matter not reflected in record thus the reasoning that DW2 could not have testified against the interest of his relative becomes redundant. On why the meeting was conducted in the village the suit land is not located, I have reviewed evidence in record and found that the said meeting was viewed as a family one and there was no complaint from those who attended that there was a complaint from the late Fanisha Vwalazye on place the meeting was conducted. I therefore find it as minor with no consequential effect. There is complaint that exhibit D2 was not signed by chairman and members, I have perused and found that it is signed by Samwel Wilson as the chairman. For members, I find it not to be very necessary and did not have any side effects on rights of parties. In its totality on the analysis made above, ground three ha merit. Coming to the first, second and fourth grounds which touches on weight of evidence. Generally, in civil case, in terms of sections 110 and 111 of the Evidence Act [Cap 6 R.E. 2022] the burden of proof lies on the party who alleges anything in his favour. In that regard the court is required to sustain such evidence which is more credible than the other 16 on a particular fact to be proved. See: Nuru Finance & Business Services Co. Ltd vs Benjamin Adamson Masuba, Civil Appeal No. 284 of 2020 [2024] TZCA 169 (8 March 2024; TanzLII) and Stanslaus Rugaba Kasusura and Another vs Phares Kabuye [1982] TLR 338. In this appeal, first appellant pleaded and testified to purchase the suit land from Fanisha Vwalazye Mwembene and tendered the sale agreement, exhibit P1, he added that the agreement was witnessed by Elmeda, PW2 and Mistian who did not testify. The agreement was challenged by the respondent as being a mere letter. I have read exhibit P1 and it had all trite of agreements in terms of section 10 of the Law of Contract Act, the argument that it was a mere letter is not supported by any law. In fact, there is no any format of the sale agreement of the land stipulated by the law, what matters is free consent, subject matter, consideration and intention of the parties to make the transaction and approval from the relevant authorities. Having viewed exhibit P1 the above condition was complied, making the argument unmerited. Exhibit P1 was challenged for location of the suit land not being disclosed, the argument sounds good but it is more suitable to disputes related to location and boundaries of the subject matter which is not the case here. Upon my perusal of evidence in record, the suit land was well 17 known to parties the reason each described to be thirty acres located at Shigamba hamlet and was able to mention neighbours. Akin scenario was discussed in the case of Yusuf Khamis Hamza vs Juma Ali Abdalla, Civil Appeal No. 25 of 2020 [2021] TZCA 734 (3 December 2021; TanzLII) and the court held that; ‘From the above pleadings it is evident that the boundaries described by the respondent are different from the ones described by the appellants. Nonetheless, we are settled in our minds that the parties were disputing over the same three acres of land situated at Kama area in West Region of Unguja. This is because of the clear evidence on record. For a start, the allegation of ownership of the disputed property as described by the respondent in his plaint was vehemently disputed by the appellants in his written statement of defence. Hence, the appellants knew that the respondent was referring to the disputed property which he, the appellants, claimed to have obtained by way of purchase from PW5.’ There is holding by the chairman that exhibit P1 was signed by unknown village executive officer. I have perused pleading and found that sale agreement was pleaded under paragraph 6(a)(ii) of the amended application and disputed under paragraph 7 of the amended written statement of defence filed by the respondent, however there was no issue framed to that effect. In his evidence PW1 said the sale was conducted before the village executive officer, Anne. When it was turn of DW1 he 18 the village executive officer was Msafiri, when cross examined by second appellant said he did not know Anne. It behoved to note here that no any other witness testified or was question on who was the village executive office in 2011. In the judgment by the tribunal the chairman held; Kitendo cha mleta maombi kuendelea na mauziano mbele ya viongozi wa kijiji wasiojulikana ilionyesha uzembe wa hali ya juu kwa mleta maombi kwa kukaidi onyo hilo. Literaly translated as “the act of complainant continuing with sale agreement in front of unknown the village leaders demonstrated negligence of its apex by the complainant.” Having considered the testimony of PW1 and DW1 it is clear that there was a war as to who was the village executive officer in 2021. I have already stated, although it was disputed in pleading no issue was framed for parties to bring evidence. Now PW1 and DW1 were locked horn, being the factual issue, it becomes had to choose who between PW1 and DW1 was telling the truth on that area. Under section 59 of the Evidence Act Cap 6 the court is permitted to take judicial notice of some of the matters. particularly section 59(1)(e) reads; ‘59(1) A court shall take judicial notice of the following (e) the accession to office, names, titles, functions and signatures of the persons holding any public office in any part of 19 the United Republic, if the fact of their appointment to such office is notified in the Gazette; In exhibit P1 is shown that it was witness by the village executive office of Ileya who embossed it with the official rubber stamp, there is no dispute on the rubber stamp. In my view if the tribunal and parties choose not to call evidence as to who was the village executive office of Ileya in 2011 and the respondent having no dispute with the rubber stamp embodied in the sale agreement, then exhibit P1 had blessings of the village leader, bearing that there is no required number of village leader required to witness sale of the land owned by an individual. Having resolved some of the matters I venture to say were preliminaries, I move to whether the first appellant proved the case. It upon the first appellants to prove that he bought the suit land from the person who had title to pass on the balance of probability in terms of section 3(2)(b) of the Evidence Act, that is the court is required to sustain such evidence which is more credible than the other on a particular fact to be proved. Connected to the above is the principle that the first appellate court, is vested with the mandate to re-appraise, re-evaluate and re-consider the evidence on record and draw own inferences of fact. This was well stated in the case of Registered Trustees of Joy in the Harvest vs 20 Hamza K. Sungura, Civil Appeal No. 149 of 2017 [2021] TZCA 139 (28 April 2021; TanzLII) when the Court stated; 'The law is well settled that on first appeal, the Court is entitled to subject the evidence on record to an exhaustive examination in order to determine whether the findings and conclusions reached by the trial court stand...’ At hand, it was pleaded and testified that he bought the suit land from Fanisha, he supported such averment by tendering sale agreement exhibit P1. He was supported by PW2 and DW6 who said Fanisha sold the land to the first appellant. Whether the land was owned by Fanisha before he sold to the first appellant, DW7, DW8 and DW9 gave uncontroverted evidence that it was allocated to him by the village of Ileya and they were neighbours to the land. On part of the respondent on how Katembwe got the suit land DW1 said was allocation by chief Tepete Ndongozi, DW4 said Fanisha and Katembwe were allocated by chief but during cross examination admitted that his evidence on allocation was based on history and was not present when chief was allocating farms. Evidence of DW2, DW3, DW4 and DW5 was based on the meeting of which I have already given my verdict. In the submission the appellant faults the chairman for improper evaluation of evidence Charles Mwandemba (DW7) who was referred by 21 both sides and some witnesses as neighbour to the suit land. Adversely Mr. Maumba moved the court to disbelieve this witness and instead take evidence of DW2. Having considered the arguments, it is trite law that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness. See Goodluck Kyando vs The Republic [2006] TLR 363. Also, in resolving complaints occasionally it has been insisted to read the evidence as whole and not in piecemeal. I have perused the judgment of the tribunal and found there was no effective evaluation of evidence from both parties and their witnesses. The whole judgment was based on evidence of DW2, DW3, DW4 and DW5 together with exhibit D2. This was a misdirection on part of the chairman, he was duty bound to evaluate evidence of both sides and their witnesses by weighing it against each other before he came to the conclusion he reached. Being the first appellate court as stated earlier, I will step into the shows of the tribunal and try to evaluate evidence in record. Starting with evidence of DW2 and DW7 where parties are locked horn. In the first place, I agree with the appellants that DW7 was a witness of great importance on the following reasons; one, a neighbour to the suit land, 22 apart from evidence of parties to the case, he was also referred by PW2, DW2, DW3, DW4, DW7 himself and DW9 as a neighbour to the suit land. In this case he testified in favour of the appellants. Two, he attended the reconciliation meeting, in his evidence he said Fanisha did not agree to return the land, the evidence which tallies with that of DW3 who was called by the respondent but said Mzee Fanisha did not agree to return the farm. As opposed to DW7, evidence of DW2 was only in regard to what transpired in the meeting he chaired to which I have already given my verdict elsewhere in this judgment. Upon my evaluation and assessment of the evidence of parties put in record, I have come to the conclusion that the evidence of the appellants was heavier than that of the respondent on the following reasons, one, allocation, the second appellant testified that Fanisha was allocated by village during villagisation in 1974, this testimony was complimented by some neighbours DW7 and DW9 that Fanisha got the suit land through allocation by the village of Iyela. This evidence was not tested by the respondent during cross examination, it is trite law that, a party who fails to cross examine a witness on a certain matter is deemed to have accepted and will be estopped from asking the court to disbelieve what the witness said, as the silence is tantamount to accepting its truth. 23 see Bomu Mohamed v. Hamisi Amiri, Civil Appeal No. 99 of 2018 [2020] TZCA 29 [27 February 2020; TanzLII]. To the contrary it was not proved that the land was allocated to the respondent’s father by chief, it came only from DW1 who I venture to say was not present during allocation. Two, through exhibit P1 the appellants proved that the suit land was sold to the first appellant, although the respondent objected to its admissibility but was with regard to its form and not its contents, interestingly it was indorsed and rubber stamped by the village executive office of Ileya Village. Three, calling neighbours, DW7, DW8 and DW9 apart from proving that the land was allocated by Ileya village to Fanisha Vwalazye, they testified to be the neighbour of the suit land which belonged to Fanisha as opposed to the respondent who did not summon neighbours to testify in his favour. I find solace in the case of Makori Kitege vs Agnes Kichere Mwita, Civil Appeal No. 494 of 2020 [2024] TZCA 315 (7 May 2024;TanzLII) in which the court held; ‘Regarding the provenance of her father's title, she provided testimony that it was bestowed upon him by village officials during the Operation Vijiji. This testimony was predicated on her recollection of the events, considering she was of age to comprehend the situation at the time. Her testimony was 24 substantially supported by two individuals: PW2, whose father was granted adjacent land as part of the same villagisation initiative, and PW3, who had been tending cattle on the contested land since 1986 ....’ Applying the above to the case at hand DW7, DW8 and DW9 gave plausible evidence not only confined to neighbourhood but also on how the seller got ownership of the land, which proves how they were familiar with the suit land from the time of allocation to eruption of the dispute. In my view when it comes to unregistered land which must be described in form of measurement, specific location including boundaries and neighbours, evidence of neighbours on ownership of the land is of utmost importance depending on circumstances of the case. To the contrary the respondent and his witnesses their evidence was confine to a narrow scope of what happened during the reconciliation meeting forgetting that he was duty bound to challenge ownership of the seller and not the outcome of the reconciliation meeting. Even his evidence on allocation by chief was no from direct knowledge of the purported acquisition of the land by the respondent’s father, for I am sure was prior to his birth. Flowing from the above, on the balance of probability the first appellant managed to prove his title over the suit land that he bought from Fanisha Vwalazye Mwambene and was supported by the second 25 appellant and witnesses he called that the land belonged to the seller. I therefore find merit in grounds one, two and four. Last is order of payment of costs of the suit, the appellant challenged the order of the tribunal that costs be paid by the second appellant. The respondent had a different and completely different submission, he concentrated challenged appointment of the second appellant as administrator of estates of Fanisha Vwalazye Mwambene and that he was substituted without following procedures in the application before the tribunal. I don’t agree with the appellants that costs are paid to the winning party by a person who dragged other to the court but by a party who is the source of the dispute depending on the circumstances of each case. For instance, in this case the second appellant was sued as a necessary party and it is from whom the first appellant traced his title and could get redress. The nature of the decision the tribunal pronounced, all blames was upon the second appellant and thus the one to shoulder costs of the suit. Ground five fails. 26 From the discussion of grounds above, I find merit in the appeal and allow it as prayed by the appellants. I quash the judgment and any subsequent orders of the tribunal and substitute with an order entering judgment for the first appellant with a declaration that he is the lawful owner of the suit land. The first appellant shall have his costs here and, in the tribunal, while the second appellant is awarded costs only in this court. It is so ordered. V.M. NONGWA JUDGE 5/9/2024 Dated and Delivered at Mbeya this 5th September 2024 in presence of the parties and Mr. Philip Mwakilima h/b of Mr. Pacience Maumba for the Respondent. V.M. NONGWA JUDGE 27