rajabu ramadhani mayugwa vs athumani jafari manjanjagala and 6 others 2023 tzhc 22933 6 november 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT SONGEA LAND CASE APPEAL NO. 47 OF 2023 (From the Decision of the District Land and Housing Tribunal of SONGEA at SONGEA in Land Case No. 16 of 2023) RAJABU RAMADHANI MAYUGWA............................................. ..APPELLANT VERSUS ATHMANI JAFARI MANJANJAGALA ................ 1st RESPONDENT MFAUME JAFARI MANJANJAGALA .............. 2nd RESPONDENT SHABAN JAFARI MANJANJAGALA .......... 3rd RESPONDENT MWAJUMA HAMISI .............. .................................. 4™ RESPONDENT SELEMANI SHAIBU............................ 5™ RESPONDENT HUSENI SHAIBU............ ............... ....... ............................. 6th RESPONDENT ANUNU SHAIBU ......... 7th RESPONDENT JUDGMENT Dated: 27th October &. 6th November, 2023 KARAYEMAHA, J. This appeal is against the decision of the District Land and Housing Tribunal for Songea at Songea (DLHT) in respect of Land Application No. 16 of 2023. The said application was instituted by the appellant. The subject matter of the proceedings in the DLHT was a piece of iand measuring 8 acres (suit land) situated at Mputa street, Masugulu village, within Mchomoro Ward in Namtumbo District. These proceedings were terminated in the respondents' favour. In the said proceedings, the appellant prayed for a declaration that he i$ the lawful owner of the suit 11 P a g e land; that the respondents were trespassers and should immediately give vacant possession and costs of the suit. The suit land is alleged to belong to Ally Shaweji Mayungwa the native owner of the suit land. He was the appellant's grandfather. In 1974 the appellant was entrusted with the suit land. The appellant contended that he thereafter continued to use the suit land with his family without disturbance till 2019 when the respondents trespassed in it claiming to be rightful owners and started making developments. Efforts to settle the dispute amicably by himself and the Ward Tribunal were fruitless. That then triggered the appellant to enlist the intervention of the DLHT through an application that bred the instant appeal. The application was heard ex-parte because despite being duly served, the appellants did not appear before the DLHT. In its judgement, the DLHT dismissed the application on two basic reasons. Firstly, that the evidence raised new matters which were not pleaded. Secondly, that the appellant's evidence was tainted with substantial contradictions. Finding the contradictions corroding the central story, the trial Chairman adjudged that the appellant failed to prove ownership of the suit land. 2 | Page This finding has caused a serious disquiet on the part of the appellant, hence his decision to take a ladder up, through the instant appeal which has listed three (3) grounds of dissatisfaction, reproduced hereunder as follows: 1. That the trial tribunal erred in law and, facts for failure to consider strong evidence of the applicant herein the appellant 2. That the trial tribunal erred in law and facts for deciding the matter in favor of the respondents herein the respondents too, for considering the minor discrepancies which do not affects the roots of the case. 3. That the trial tribunal erred in law and facts for failure to note that the application only basing on explanation of cause of action and not the evidence of the whole matters in dispute. The appellant enlisted the legal services of Mr. Nestdry Nyoni, learned counsel. All respondents neither filed any document in defence nor appeared albeit being properly served. On 26/9/2023, this court ordered the appeal to proceed ex-parte against them. In arguing the appeal, Mr. Nyoni argued the 1st and 2nd grounds of appeal together and argued the 3rd ground separately. 3 [ Page Submitting on the combined grounds of appeal, the learned counsel admitted that the appellant and his witnesses, to wit, PW1 and PW2 gave contradictory evidence regarding the year in which the dispute arose:. He said that while PW1 and PW2 testified that the dispute arose in 2019, PW3, said 2009. Mr. Nyoni admitted further that the appellant said he was given the suit land by his grandfather in 1974 contradicting Hawa Ally, PW3, who said that he got it in 1975, Nevertheless, the learned counsel swiftly and vehemently argued that the contradictions were minor which would not lead to the appellant losing his right. He relied on the case of Deus Josiah Kilala @ Deo v. R, Criminal Appeal No. 191 of 2018 CAT-DSM (unreported) at pages 10 and 11 to underscore that minor discrepancies are normal due to lapse of time and that it is not expected for witnesses to have similar evidence. He argued further that contradictions must go to the root of the matter. He cited the case of Emmanuel Lyabonga v. R. Criminal Appeal No. 257 of 2019 CAT-Iringa (unreported) at page 10 cited in the case of Evarasto Kachembeo that contradictions are normal only that they should not go to the root of the matter. He submitted further that since the dispute arose in 2019 and since the witnesses have not differed on the suit land, it was improper for the DLHT to consider the 4 | Pag e contradictions as the base of the appellant's failure to. prove the case to a required standard. With respect to the 3rd ground, Mr. Nyoni faulted the DLHT for misinterpreting the principle of 'parties are bound by their pleadings'. He said that in law pleadings are to explain briefly what is to transpire in court not every details. Further to that he argued that the principle of being bound by the pleadings would be invoked if the appellant introduced new issues/matters. He, therefore, concluded that the chairman was not correct to reach to the decision as he did. Having submitted as such, he prayed the appeal to be allowed and that the appellant be declared the rightful owner of the suit land. Having heard the submission of the counsel for the applicant, I entirely agree that there are inconsistencies in the evidence of the appellant adduced at the trial. These are basically on when the dispute over the suit land arose and when the suit land was given to the appellant. Whereas PW1, Rajabu Ramadhani Mayugwa and PW3 Hawa Ally testified that the dispute arose in 2019, PW2, Mustafa Daudi Makunguru said it arose in 2009, On when the suit land was given to the appellant, PW1 and PW2 said it was in 1974 but PW3 said it was in 5 | P a g .e 1978. Similarly, there are variances on when the appellant shifted from Masuguru village. PW1 said it was in 1977,tPW2 in 1976 and PW3 in 1974. The learned trial Chairman held the view that these contradictions disturbed the central story. Guided by the holding in the case of Emmanuel Abrahamu Nanyaro v. Penile Ole Saitabalu [1987] TRL 47 he concluded that witnesses were uncertain and ended up rejecting their evidence. Addressing this court and seeking guidance in the decisions in Deus Josiah Kilala @ Deo (supra) and Emmanuel Lyabonga (supra), Mr. Mapunda assailed the DUTT'S decision in three folds. He contended that one, that the difference of one year could not make the appellant lose his right over the suit land. Two, that minor discrepancies are normal due to lapse of time and that it is not expected for witnesses to have similar evidence. Three, that those contradictions did not go to the root of the matter. In the first place I wish to state that the law on contradictions or discrepancies is that it is not every discrepancy in the prosecution that will lead to the complainant's case to flop - see Said Ally Ismail v. 6 | Pa ge Republic, Criminal Appeal No. 242 of 2010 (unreported) while citing the case of Bakari Hamis Ling’ambe v. Republic, Criminal Appeal No. 161 of 2014 (unreported) and Said Ally Saif v. Republic, Criminal Appeal No. 240 of 2008 (unreported). Moreover, the Court of Appeal has constantly guided that contradictions by witness or between witnesses i$ something which cannot be avoided in any particular case. See Dickson Elia Nsamba Shapwata v. Republic, Criminal Appeal No.92 of 2007 (unreported) and Deus Josiah Kilala @Deo (supra). This position was also taken in the case of Issa Hassan Uki (supra) while citing with approval the High Court's decision in Evarist Kachembeho and Others v. Republic [1978] LRT 70 where it was stated as follows: "Human recollection Is not Infallible. A witness is not expected to be right in minute details when retelling his story." In the same case of Issa Hassan Uki (supra) the Court also referred to the case of John Gilikola v. Republic, Criminal Appeal No. 31 of 1999 (unreported) where it was stated that due to frailty of human memory and if the discrepancies are on details, the Court may overlook such discrepancies. I have considered the contradictions raised by the appellant which were leaned upon by the DLHT to question the credibility of the 7 I I'cge ............... ...... .................... witnesses and their certainty. I agree with Mr. Mapunda that there may be discrepancies in the complainant's evidence. However, I am of the considered view that they do not go to the root of the matter. They are not material to shake the credibility and reliability of the complainant's witnesses. I think, only one discrepancy regarding the difference in the year the appellant was given the suit land could be material. However, I differ completely with the learned trial Chairman that it is a material contradiction which goes to the root of the matter because of the explanation given by PW1 and PW3 that the suit land was given to the appellant by his grandfather,: one, Ally Sheweji Mayungwa, the fact that has never been controverted. I agree with the appellant's counsel that witnesses meant the same suit land and overwhelmingly established that it was the one which was being used by PW3 and eventually invaded by the respondents. 1 believe their evidence due to the fact that even when the respondents were summoned to appear in court to defend themselves, they waived their right probably leaving justice to take its course. Hence, I am satisfied that the- complainant's witnesses were credible and reliable and their evidence cannot be discredited. In this regard this ground of appeal has merit. 8 | P a ;• e The complaint in the 3rd ground of appeal is that the DLHT failed to consider the application which established the cause of action and relied upon the evidence which materially varied with the same. Mr. Nyoni contended that pleadings are to explain briefly what is to transpire in court not every details. The learned counsel is trying to convince this court that pleadings that pleadings bound the appellant if he introduced new issues/matters. I have: with greatest care gone through the record of the DLHT record. It reveals that PW1 was living in Masuguru Village in Namtumbo District since 1958 to 1997 before shifting to Litembo Village. According to him, the suit land was given to him by grandfather, namely, Ally Shaweji Mayugwa a native owner who cleared the forest. He, probably in 1997 left the suit land under the care of PW2 his paternal aunt. He also portioned some pieces of land and gave them to his relatives to cultivate but protect it. His evidence reveals that part of the suit land was used for farming and the other part was a forest. On responding to clarification questions asked by the assessors, PW1 testified that, I quote for ready made reference: "Mwaka: 1977 nillacha shamba katika ha!i ya msitu na sehemu nying/ne nlUkuwa nimekata kwa aji/i ya kulima. Sehemu 9|raga ..................................... '....... ............... ni/iyoanza kuitumia mimi iiikuwa na ukubwa wa ekari pane. Eneo ienye mgogoro ni ekari nane. Baadae eneo lililokuwa iimeiimwa kwa wakati tuiiacha kwa kuwa shangazi aiikuwa hana nguvu ya kulima ndipo iikavamiwa iote na shangazi yangu kunijuiisha." On the decision of the DLHT, I find that it was based on the fact that the appellant raised new issues in his evidence which were not pleaded. It is a trite law that parties are bound by their pleadings. See the case of Ngerengere Estate Company Limited vs. Edna William Sitta, Civil Appeal No. 209 of 2016 (CAT-DSM) and Yara Tanzania Limited vs. Charles Aloys Msemwa T/A Msemwa junior Agrovet and others, Commercial Case No. 5 of 2013 (HC-DSM) (both unreported). I have gone through paragraph 6(a)(ii) of the application. As noted by the learned trial Chairman, the appellant pleaded that and I quote for ease of reference: "(ii) Kwamba, tangu mwaka 1974 muombaji aiikuwa analitumia eneo hito Pamoja na familia yakepasipo na bughudha yoyote." The comparison of what is contained in the application and evidence reveals that there are new issues which were introduced in the evidence. For instance, firstly, PW1 testified that he was living in 10 | P a g e Masuguru Village in Namtumbo District since 1958 to 1997 before shifting to Litembo Village. This is not stated in the application. Secondly, he stated that in 1997 he left the suit land under the care of paternal aunt, namely, Hawa Ally Mayugwa and also portioned some pieces of land and gave them to his relatives to cultivate and protect it. His evidence reveals that part of the suit land was used for farming and the other part was a forest. All these facts appear in the evidence not in the application. I respectfully, agree with Mr. Mapunda's argument that in law pleadings are to explain briefly what is to transpire in court not every details. They should be concise, not involve pomposity, not contain arguments and be in a logical order. It is to be underscored that the primary function of pleadings is to reveal to the opposing party the nature of the case that he is likely to be confronted with at the earliest opportunity. To emphasise pleadings are important. They delineate the issues between the parties and inform the opposing party of the nature of the case they have to meet. This means, therefore, that pleadings should carry with them all important matters that are informative to the opposing party. The basic rule of procedure, however, is that the evidence and the judgment must substantially conform to the pleadings, 11 ] P 3 g e since the parties and the judge/magistrate must be informed of the issues that are to be decided. The statutes allow a party to amend his pleadings so that they conform to the contemplated evidence brought out at the trial, and thus he can correct any defects in his pleading prior evidence is adduced in court. A vestige of the older, stricter rule still remains, since one may not amend to a new cause of action or, as it is said, a new case. The question arises whether the variance in the instant case touches the cause of action. The cause of action in this case is that the appellant's land measuring 8 acres was invaded by the respondents and made developments. Observing with the learned trial Chairman, there are vast of variances between the application and the evidence but most importantly the cause of action has remained the same in the application and the evidence has been adduced to that effect. There is no defence indicating that the respondents did not trespass in the 8 acres or that it was the appellant who trespassed therein. In addition, there is no evidence challenging the factual issue that the appellant was given the suit land by his grandfather in 1974. In view thereof, I hold that the variances between the application and the evidence did not go to the root of the complaint but rather remote facts. r . 12 ] P a g e Consequently, the merited appeal is hereby allowed. The DLHT's decision is reversed. The appellant is declared the rightful owner of the suit land and the respondents trespassers. The appellant to have the costs of the DLHT and this court. DATED at SONGEA this 6th day of November, 2023 13 | P a g e