RAMADHANI MSENGI VERSUS ZAINABU JACOB MUSUKUMA JUDGMENT

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO. 1571 OF 2024 (Arising from the District Land and Housing Tribunal for Iramba at Kiomboi in Land Application No 21 of 2023) BETWEEN RAMADHANI MSENGI……………………………………..………..…..…….APPELLANT VERSUS ZAINABU JACOB (AS ADMINISTRATOR OF THE ESTATE OF LATE JACOB MSUKUMA KIPWELELA………………..…..RESPONDENT JUDGMENT Date of Last Order: 10/09/2024 Date of the Judgment: 19/09/ 2024 LONGOPA, J.: This is an appeal against the Judgment and decree of the District Land and Housing Tribunal for Iramba at Kiomboi in favour of the respondent relating to ownership of 11.3 acres located at Mtoa Hamlet, in Mtoa Village, Mtoa Ward in Iramba District as part of the estate of later Jacob Msukuma Kupwelela and the appellant was declared as a trespasser 1|Page who was permanently restrained from interfering with the suit land in whatsoever manner with costs. The appellant was dissatisfied with the whole of the decision and decree thus appealed to this Court. On 29th January 2024, the appellant filed an appeal on five grounds of appeal, namely: 1. That, the trial Tribunal erred in law and in facts by pronouncing judgment in favour of respondent without considering that evidence of the appellant was strong and managed to prove ownership of the said land in dispute. 2. That, the trial Tribunal erred in law and in facts by pronouncing judgment in favour of the respondent without considering that evidence of the respondent was so weak to prove ownership of the land in dispute. 3. That the whole of the judgment and proceedings of the trial Tribunal was marred by illegality. 4. That the trial Tribunal erred in law and facts for not holding the suit was brought out of time. 2|Page 5. That, the trial Tribunal erred in law and facts by pronouncing judgment in favour of the respondent without considering that evidence of the respondent was very weak to prove ownership of the land in dispute. The appellant prayed for the honourable Court to allow the appeal with costs. On 10th September 2024, the parties appeared before me for viva voce hearing of the appeal. The appellant was represented by Mr. Denis Odhiambo, learned advocate and the respondent was represented by Liberata Switbert, learned advocate. The Counsel for the appellant, Mr. Denis Odhiambo, advocate submitted that 1st ground of appeal relates to the proof by the appellant on ownership of land. The appellant proved by DW 1 stated that the land was bought by his father from Marieta Kiula on 30/05/1993 and tendered Exhibit D. 1, where the Hamlet Leadership witnessed the same. This was corroborated by DW 2 at page 26 of the proceedings. The land was inherited after the administrator had given it to the appellant as the rightful heir. DW 3, at page 30 stated to have been the administrator of the estate 3|Page of the late appellant’s father. All these witnesses proved that the ownership was belonging to the appellant thus entitled to be declared the rightful owner. On the second ground on the weaknesses of the respondent’s evidence, PW 1 stated at page 5 that the disputed land belonged to her father in 1993 thus the land remained in the hands of Martha Nathan Mkolo, the aunt of the respondent. This person was not called to testify in the trial Tribunal. Section 127(1) of the Evidence Act apply to the situation as she was material witness thus the trial Tribunal ought to have considered to have adverse inference. According to the appellant, PW did not establish that the land in disputed belonged to the respondent’s father. The evidence of the respondent was so weak. This applies also to the 5th ground of appeal. On the fourth ground relating to the matter being time-barred application before the trial Tribunal, it was submitted that PW 1 stated that trespass commenced immediately after the death of her father in 1993. PW 2 also reiterated the same. The matter was instituted in 2023 almost 30 years since the alleged trespass commenced. The appellant cited Sections 4|Page 9(1) and 35 of the Law of Limitation Act, Cap 89 R.E. 2019 to illustrate that time started running on death of the owner. The recovery measures ought to have been preferred timely within 12 years which is the period allowed in law to institute a claim on land ownership. On illegality which is the third ground, it was submitted that opinion of the assessors was not accommodated. At page 20 it is indicated that one of the assessors was attending treatment in Dar es Salaam upon hearing of the applicant’s case. It was reiterated that on strengths of submissions in all the grounds, the appellant prayer was that this Court be pleased to allow the appeal and quash the proceedings and set aside the decision of the District Land and Housing Tribunal for Iramba at Kiomboi. On the other hand, the respondent was of the view that in the first ground DW 1 did not state the location of the land in dispute. It was added that DW 1 stated that he was not present at the time the land was purchased. Exhibit D1 did not bear any boundaries of the land in question. He admitted that size and boundaries of the land in dispute was not provided for in the documentary evidence tendered as Exhibit D1. 5|Page It was further submitted that DW 2 admitted that there is no size and boundaries of the land stated in the written agreement. Further, DW 3 stated that he had administered the land by distributing the same to the heirs. The size was 8 acres. The same was located at different places that is not the disputed land. It is the law under Order VII Rule 3 of the Civil Procedure Code which requires that description of the property disputed in the suit must be sufficient to identify it. Respondent described the disputed property categorically in her testimony. She stated the size and location of the land. On the second ground, it was submitted that the respondent’s evidence was so strong. PW 1 described the land in very articulate manner, in terms of size of the land and location. PW 2 and PW 3 corroborated the same as they testified that the land belonged to the respondent. It was stated that one Martha Mkola left for Mwanza after being sick on 2013. Thus, material witness was prevented by a very solid and good cause. It was PW 2’s evidence that trespass commenced in 2014 and that such land has never been sold to anyone. 6|Page On the 4th ground of appeal, it was submitted that the matter is not time barred. The evidence on record is that trespass commenced in 2014 thus recovery of land is within 12 years which have not lapsed as PW 1 and PW 2 stated that they commenced dispute resolution immediately but the same failed. The matter was instituted within time required by law on the institution of suits on recovery of land. On the third ground regarding assessors, it is submitted that Section 23(3) of the Land Disputes Courts Act, Cap 216 R.E. 2019 allows the Tribunal to proceed with a single assessor. Also, in the Case of Emmanuel A. Majebele versus Anthony Francis Sapila and Another, Land Appeal No. 292 of 2021, at page 6, the Judge observed that reasons for the non -involvement of the assessors where reasons are stated for not involving the same. In the decision leading to instant appeal, at page 4 of the Judgment the trial Tribunal Chairman stated the reasons for failure to involve the assessors. At this juncture, it was the prayer of the respondent that this appeal deserves dismissal. The parties were heard fairly and called the witnesses. 7|Page The appellant had no strong evidence. It was the respondent’s prayer for dismissal of the appeal with costs as the appeal is devoid of merits. Having heard both parties’ submissions, I have dispassionately perused thoroughly the Judgment, decree and proceedings of the District Land and Housing Tribunal for Iramba in Land Application No. 21 of 2023 in light of the preferred grounds of appeal to establish whether the appeal has merits or otherwise. The first ground challenges the judgment of the tribunal on account of failure to consider the appellant’s evidence that was strong and managed to prove ownership of the land in dispute. Evidence of the appellant was characterized by calling of a total of three witnesses. DW 1, one Ramadhani Msengi stated to have inherited the land from his father who purchased the same through a written undertaking from one Marietha Kiula thus tendered Exhibit D1. DW 1 was not present when the land was bought. The size and boundaries of the land in question are not stated in Exhibit D 1. DW 2 Jumapili Mkoma Shilla stated to have witnessed the sale of the land from Marietha Kiula to Msengi Shango in 1993. In the agreement, no boundaries or size are indicated. Neighbours to 8|Page the land were not involved. However, size is around 11 acres. DW 3, one Almasi Haji stated to had divided his brother’s properties to heirs including the appellant. DW 3 admitted that he was not present when appellant’s father bought the land in question. DW 3 described the land to be located at Kisonga Hamlet in Kisonga village within Ndago Ward. The size of the land is 8 acres. That is the appellant evidence in its totality. This evidence of the appellant has several limitations. First, it seems that such evidence does not tally with pleadings. Paragraph 3 of the Application stated that: 3. ANWANI NA SEHEMU LILIPO SHAMBA KUWA; Eneo linalogombaniwa lipo katika Kitongoji cha Mtoa, Kijiji cha Mtoa Kata ya Mtoa Wilaya ya Iramba. Eneo hili lina ukubwa wa eka 11.3 na mipaka ya eneo la mgogoro linalobishaniwa ni kama ifuatavyo: - upande wa Mashariki limepakana na Mkilanya Mbutu, Magharibi limepakana na mto, Kaskazini limepakana na mto na Kusini limepakana na mto. 9|Page The appellant’s Response to the Application in Paragraph 2 states lucidly that: “Kwamba Mjibu Maombi hana pingamizi katika Maelezo ya aya ya 3 ya Maombi ya muombaji kwani yanahusiana na taarifa za eneo gombaniwa.” It is settled law in this jurisdiction that parties are bound by their own pleadings. In Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) (TANZLII), at page 13, the Court of Appeal reiterated the role of pleadings in the following words: The other remark which we find ourselves compelled to make relates to pleadings. In doing so we cannot do better than reiterate what we said in James Funke Gwagilo vs. Attorney General [2004] TLR 161 whereby we underscored the function of pleadings being to put notice of the case which the opponent has to make lest he is taken by surprise. From that same decision we reiterated another equally important principle of law that parties are bound by their own pleadings 10 | P a g e and that no party should be allowed to depart from his pleadings thereby changing his case from which he had originally pleaded. It means that evidence on record must support the pleaded facts in the pleadings and the effect of having disparities between facts pleaded and evidence results into discarding the evidence. The principle in the case of Barclays Bank T. Ltd vs Jacob Muro (Civil Appeal 357 of 2019) [2020] TZCA 1875 (26 November 2020) (TANZLII) is illustrative on the treatment of the evidence in variance with pleadings. At page 11, the Court of Appeal reiterated that: We feel compelled, at this point, to restate the time- honoured principle of law that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not support the pleaded facts or is at variance with the pleaded facts must be ignored - see James Funke Ngwagilo v. Attorney General [2004] TLR 161. See also Lawrence Surumbu Tara v. The Hon. Attorney 11 | P a g e General and 2 Others, Civil Appeal No. 56 of 2012; and Charles Richard Kombe t/a Building v. Evarani Mtungi and 3 Others, Civil Appeal No. 38 of 2012 (both unreported). It is on record that evidence for DW 3 who allegedly was administrator of the estate of Msengi Msango differ on two main aspects. First, the location of the land in question and size of the land. Second, the location of land. The appellant in pleadings admitted that size of land is 11.3 acres and the location was at Mtoa Hamlet in Mtoa Village within Mtoa Ward in Iramba District. In oral evidence reflect that the land is located at Kisonga Hamlet in Kisonga village within Ndago Ward. Its size is 8 acres. This is evidence of the person was administrator who divided the land to appellant as part of his late brother estate. This is at clear variance with pleadings in Clause 2 of the Reply to the Application. Second, the documentary evidence i.e. Exhibit D 1 sale agreement of the land was not reliable and credible evidence. It does not describe the size, location and neighbours to the land in question. Exhibit D 1 cannot be used to establish ownership of land in disputed area with certainty. It has 12 | P a g e uncertain terms. As the source of land to the appellant originated from sale agreement whose details cannot be found in the document itself any oral evidence tending to state about size, location and neighbours is precluded by the law. In the case of Martin Fredrick Rajab vs Ilemela Municipal Council & Another (Civil Appeal 197 of 2019) [2022] TZCA 434 (18 July 2022) (TANZLII), at pages 13-14, the Court stated that: This is evident in the sale agreements at pages 121 to 123 of the record of appeal which, besides showing the names of the sellers, buyer, the respective prices and those who witnessed the sale including PW4, nothing is stated on the location, size and neighbours to the said suit property. Therefore, the size of 5600 square meters in the appellant's evidence is not compatible with the sale agreements exhibited at the trial which is against the dictates of section 100 (1) of the Evidence Act which stipulates: 13 | P a g e " 100 (1) When the terms of a contract, grant, or any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form o f a document, no evidence shall be given in proof of the terms of such contract, grant, or other disposition of property, or of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of this Act." Indeed, analysis of the trial Tribunal on page 5 of the Judgment is explicit on the evidence of the appellant. The trial Tribunal Chairman expounded the weaknesses of the appellant’s evidence in detailed manner leaving nothing untouched. I concur with that analysis. This ground of appeal on the appeal lack merits and it is hereby dismissed for being devoid of merits. There is a ground of appeal touching on assessors’ participation and manner of handling the absence of assessors. As a general rule, the District Land and Housing Tribunal is properly composed when the 14 | P a g e Chairman sits with two assessors who must be involved throughout the hearing of the case, provide written opinions at the end of the hearing and that such opinion of the assessors must be read before the parties in the Tribunal prior to composition of the judgment by the tribunal. This general rule is elaborated in the case of Elibariki Malley vs Salimu H. Karata (Civil Appeal 67 of 2022) [2023] TZCA 226 (3 May 2023) (TANZLII), at pages 8-10, where the Court of Appeal illustratively stated that: From the provision, it is clear that a tribunal must be composed of at least a Chairman and not less than two assessors. Besides actively and effectively participating in the process, the assessors' are required at the end of the hearing to give their opinion before the judgment is composed and delivered. The manner those opinions should be given has been provided for in Regulation 19 (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations of 2003 (the Regulations). It is noteworthy, to state that in dealing with disputes at the 15 | P a g e DL & HT the Chairman has to read in tandem the LDCA and the Regulations. Based on the provision of section 23 (2) of the LDCA and regulation 19 (2) of the Regulations, the Chairman who sits with assessors, is undoubtedly required to comply conjunctively with four conditions: (i) that the assessors actively participate, (ii) that at the end of the hearing, each of the assessors files a written opinion, (iii) that the written opinion filed must be read over to parties before the judgment is composed and (iv) that those written opinions must be part of the record. In the instant appeal, it is lucid that the hearing of case commenced on 24th July 2023 with two assessors, namely Mr. Omary Hassan Rukumbwe and Mrs. Agnes Kitundu Mbazi. However, on 21st August 2023 when the case come for defence hearing the assessors were not presented. It was recorded that one of the assessors was ill thus hearing adjourned. On 11th September 2023, the parties were informed of the passing on of Mr. Omary Hassan Rukumbwe. 16 | P a g e It is on record at pages 18 of the proceedings that Tribunal ordered that hearing of defence case shall proceed with the remaining assessor, Mrs. Agness Mbazi Kitundu within the confines of section 23(3) of the Land Disputes Courts Act, Cap 216 R.E. 2019. Further, on 16th October 2023, the remaining assessor was not present before the Tribunal and the hearing was adjourned to 6th November 2023 where the Tribunal informed the parties that remaining assessors Mr. Mbazi was ill and travelled to Dar es Salaam for treatment for an indefinite period of time. Given the adjournments have been for almost two months when the assessor was away and her return date was unknown, the Tribunal ordered the matter to proceed without the assessors in terms of section 23(3) of the LDCA. This is stated lucidly in page 20 of the trial Tribunal’s proceedings. From the record of the Tribunal, it is evident that conditions set in dealing with assessors were not complied with. The assessors were not involved at the hearing of the defence case, no opinions were filed before tribunal nor read prior to preparation of the judgment. 17 | P a g e The parties are at disparities on the effect of unfolding events of non- involvement of the assessors in instant appeal. I should hasten to concur with the respondent’s counsel that law provides a clear way forward. The principle is illustrative in the case of Emmanuel A. Majebele (Administrator of the Estate of the Late Ester Kabeno Karume vs Antony Francis Sapila & Another (Land Appeal 292 of 2021) [2022] TZHCLandD 12371 (5 October 2022) (TANZLII), at page 6, the High Court observed that: Section 23(3) of the LCDA provides a "leeway" in case one or both assessors cannot proceed with the trial. That the Chairman can proceed, but he should record the reason for the inability of the assessor(s) to proceed to qualify him to invoke Section 23 (3) of the LCDA. The Court of Appeal of Tanzania has guided on the way forward in the circumstances on this nature. In B.R. Shindika t/a Stella Secondary School vs Kihonda Pitsa Makaroni Industries Ltd (Civil Appeal No. 128 of 2017) [2021] TZCA 258 (16 June 2021) (TANZLII), at pages 11-12, the Court of Appeal guided that: 18 | P a g e It is plain, in the instant case, that the requirements under Rule 5F of the High Court Registries (Amendment) Rules 2001 were not complied with. Since the trial began with Kimolo and Mtumba as assessors when PW1 testified, then in terms of the law applicable at that time, the trial court was bound to proceed with them till finalization of the case and in the event either of them was unable to attend court, the trial court was obligated to proceed with the remaining assessor. And, in the event both assessors could not turn up, obviously the trial judge was bound to proceed alone to the conclusion of the case instead of sitting with a new set of assessors as it happened in this case. The trial Tribunal’s Chairman complied strictly with tenets of the law in respect of treatment of assessors and their absence thereto in the proceedings. Tribunal put it on record at pages 18 and 20 of the 19 | P a g e proceedings, the reasons for deciding to proceed with a single assessor and later on to proceed without the remaining assessor for inability of the assessor to appear as was attending medical treatment in Dar es Salaam for indefinite period. Indeed, page 4 of the judgment summed up all these aspects on grounds for non-involvement of the assessors at a later stage of the hearing and conclusion of the case before the Tribunal. The 3rd ground of appeal on the illegality on account of failure to adhere to law related to assessors has no merits, thus it is hereby overruled for its unmeritorious. On the 4th ground of appeal relates to suit being time-barred whereas the decision of the Tribunal is challenged for failure to find that it was time- barred. This ground is not difficult to determine. It is on record that PW 1 and PW 2’s evidence that trespass commenced in 2014 and attempts were made to resolve the matter amicably before the Ward Tribunal to no avail. This evidence was not controverted. 20 | P a g e This appeal originates from Land Application No. 21 of 2023 which was filed on 13th April 2023. It is a period of nine (9) years from alleged trespass in 2014. Though the counsel for appellant reiterated that provisions of section 9 and 35 of the Law of Limitation Act, Cap 89 R.E. 2019 state the action to accrue on death of the owner of land, I am not concurring that cause of action arose in 1993 as alleged. It was unchallenged evidence of the respondent that trespass began on 2014 after the respondent’s aunt who was taking care of land left for Mwanza. Section 3 of the Law of Limitation Act, Cap 89 R.E. 2019 and the Item 22 of Part I to the Schedule provides the time limitation for suits on recover of land is twelve years. Having observed that cause of action arose in 2014 when trespass commenced then twelve years should come to an end by 2026. The application for this appeal was instituted in 2023 well within time. The 4th ground of appeal is dismissed for being destitute of merits. The last set of grounds relate to weak evidence of the respondent to warrant the trial Tribunal’s entering judgment and decree in respondent’s 21 | P a g e favour. This was 2nd and 5th grounds respectively. The evidence on record for the respondent reveals that: PW 1 stated that the land was part of the estate of her late father on Jacob Msukuma Kipwelela. PW 1 is an administratrix of the estate. The land was trespassed on 2014. The land is located at Mtoa Village which is bordered by Mswaga river in the South and Mtoa river in the west and there is a river in the North while East is bordered by Mkilanya Mbutu. One Martha Nathan Mkolo took care of land from 1993 to 2013. PW 1 described the size of trespassed land to be 11 acres. The land was acquired through clearing the virgin land. PW 2 stated that land sold to the appellant’s father was different from the suit land. Also, PW 3 testified that he assisted his parents to cultivate the land in question. The same was trespassed in 2014. The land was under care of the respondent’s aunt from 1993 to 2013. It has never been sold to anyone. Weighing the available evidence on record reveals two diverse stories. The appellant’s evidence is characterized by the weak, inconsistent and contradictory in nature of the evidence thus incredible. On the other hand, the evidence of the respondent is plausible and credible. 22 | P a g e The evidence of the respondent herein was consistent and lucid. It categorically stated the boundaries and neighbours as well as size of the land. It provided for the locality of the land in dispute too. The evidence of PW 1 was corroborated by PW 2 and PW 3. Such consistency and description of the disputed land has revealed that respondent who was the applicant had established the case to the required standard. On page 6 of the Judgment reveals that the trial Tribunal found that on balance of probability the applicant had established the claims satisfactorily to the required standard. Having reviewed the whole evidence on record, it is the respondent’s evidence which appears to be more plausible and consistent than that of the appellant. In law, it is the evidence of the party which is weightier than the other party who should win the case. This was the principle in Hemedi Saidi v. Mohamed Mbilu [1984] TLR 113 where the High Court (Sisya, J.) observed that a party whose evidence is weightier than the other party, that party is entitled to the decision of the Court. 23 | P a g e Also, the Court of Appeal has reiterated in Agatha Mshote vs Edson Emmanuel & Others (Civil Appeal No. 121 of 2019) [2021] TZCA 323 (20 July 2021) (TANZLII), at page 19, that: We are aware that it is trite law that he who alleges has a burden of proof in terms of section 110 of the Evidence Act [CAP 6 RE 2002] (the Evidence Act). Thus, in civil cases, the standard of proof is on balance of probabilities which is to the effect that the Court will sustain such evidence which is more credible than the other on a particular fact to be proved. The instant respondent’s (applicant’s) evidence is more credible and consistent to warrant entering judgment and decree in favour of the instant respondent. It is therefore evident that the 2nd and 5th grounds challenging the strengths of the evidence of respondent were destitute of merits and deserve to be overruled. In totality of events, all the grounds of appeal are devoid of merits thus the appeal collapses naturally for being preferred unmeritorious. The judgment and decree of the District Land and Housing Tribunal for Iramba 24 | P a g e in Land Application No. 21 of 2023 is correct and valid decision in law having adhered to all tenets of the law. I shall proceed to dismiss the appeal with costs. It is so ordered. DATED at DODOMA this 19th day of September 2024. E.E. LONGOPA JUDGE 19/09/2024. 25 | P a g e