LAND APPEAL NO

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 5255 OF 2024 (Originating from the decision in Application No. 28 of2020 of the District Land and Housing Tribunal of Mkuranga at Mkuranga and Ruling of Land Appeal No. 367of2023 in the High Court (Msafiri, J) dated 3ffh November2023) REMISIUS PROTAS................................................................. 1st APPELLANT STEPHEN FATAKI.................................................................... 2nd APPELLANT ASIF RAHEL............................................................................. 3rd APPELLANT GREDIS KAIJ AGE.................................................................... 4th APPELLANT FILBERT SHEE......................................................................... 5th APPELLANT MOHAMED MBONDE............................................................... 6th APPELLANT MARIA DEVI............................................................................ 7th APPELLANT

VERSUS HALIMA PAULO LUGWALU......................................................... RESPONDENT

JUDGMENT 22/8/2024 & 26/09/2024 GWAE, J In the District Land and Housing Tribunal of Mkuranga at Mkuranga (trial tribunal) the respondent, Halima Paulo Lugwalu successfully lodged the land dispute against the appellants herein. The appellants were aggrieved i by the judgment and decree of the trial tribunal delivered on 15th August 2023. Hence, this appeal with the following grounds;- 1. That, the trial tribunal erred in law by basing its decision on the respondent's unsupported and inconsistent evidence, while failing to consider the credibility of the appellants' evidence 2. That, the tribunal's decision was not in accordance with the relevant land ownership laws and regulations and it failed to apply the appropriate legal standards to assess ownership claims 3. That, the trial tribunal erred in law and fact in disregarding the substantial evidence adduced by the appellants herein to establish their ownership of the disputed land 4. That, the trial tribunal erred in both law and fact in not requiring the respondent herein to show the disputed property, undermines the integrity of the land ownership and sets a dangerous precedent 5. That, the Chairperson erred in law and facts by considering and basing his decision on the poor evidence given by the respondent and her witness 6. That, the Chairperson erred in law and in facts for failure to consider the strong opinion of the

assessors and failure to logical reasons upon which he differed with the opinion of the assessors. 2 Initially, the respondent claimed to have personally cleared a parcel of land measuring ten (10) acres located at Dondwe within Mkuranga District in Pwani Region and that, she had been in occupation for more than twenty years. She also claimed that, in 2018 the 2nd to 5th appellant trespassed the suit land by extracting minerals to wit; sands, the act, which resulted into damage and that, the said 2nd to 5th appellant claimed to have purchased from the 1st appellant. On the other hand, it is the version of the 1st appellant (DW1) that, he purchased 3 acres from one Ally Mohamed Muba (deceased), the pieces of land which also sold to the 4th appellant (DW1) who also sold to the 2nd appellant (DW6) and 5th appellant (DW5). It is also the contention by 7th appellant (DW9) that, she owns a pieces of land, which she purchased from different persons namely; Daudi S. Mchoki, Mgaiza Shabani and Edward A. Mdem). It was further the contention by the appellants that, the respondent does not own any piece of land located at Kidede Hamlet save at Kiwale Hamlet (DW2 &DW2) and that when the dispute was before Tengerea ward tribunal, the respondent showed a different piece of land other than those owned by the appellants. 3 Before this Court, the appellants secured an advocate known by the name

of Hemed Nassor from Michael Mantawellah Lucas-advocate DCM Legal Associates and Advocates whereas the respondent appeared in person. On 22nd April 2024 when this appeal was called for hearing, it was consensually agreed that the appeal be disposed of by way of written submission. Subsequent to the leave of the Court, the appellants did file their joint written submission in chief while the respondent refrained from filing the same. In essence, the appellants' grounds of appeal are based on the impugned analysis of the evidence adduced by the parties before the trial tribunal. However, when passing through the parties' pleadings, evidence adduced during trial as well as impugned decision of the trial tribunal, I found the respondent's evidence and her Amended Application are quite at Variance. For example the prayers by the respondent is all about, ownership of the disputed piece of (10 acres), permanent injunction against the appellant, an order nullifying the sale agreements to the appellant, general damages and costs. Nonetheless, when the respondent appeared before the trial tribunal for testimonial purposes, she prayed for payment of compensation 3million 4 shillings for an acre for the damages she sustained following the alleged extraction of sands by the appellants. For sake of clarity, parts of her testimony is reproduced;- "Mh. Mwenyekiti mimi niiishinda katika Baraza

la Kata iakini baadaye Hiamriwa kuwa kiia anayehusika ashitakiwe. Ndipo niiipofungua shauri hili. Hivyo nimekuja hapa kwa ajiii ya kudaifidia ya machimbo ya mchanga. Kwa sasa ekari 10 zote zimechimbwa na wadaiwa. Nadai fidia ya Shs. 3 miiioni kwa kiia ekari." Ni hayo tu Imesainiwa R. L. Chenya Mwenyekiti 24.06.2022 Xx. Madai yangu ni kuharibiwa kwa eka 10 zangu Imesainiwa R. L. Chenya Mwenyekiti 24.06.2022 It is due to the above pieces of evidence adduced by the respondent before the trial tribunal; I have found serious variance between the respondent's evidence and her pleadings and felt compelled to be addressed by the parties on the said irregularity and non-joinder of one mzee Kuwi Mohamed/ Ally Mohamed Muba. 5 The appellants' advocate addressed that on the two issues raised by the Court suo moto by starting that, the respondent's evidence before the trial tribunal was serious inconsistent to her pleadings. On the other hand, the respondent, a layperson admitted to have given evidence, which is consistent with her amended application. Having considered the respondent's amended application duly filed on 21st April 2021 and her evidence as depicted herein, it is thus found that the respondent's evidence and their pleadings are at variance not justifying this court to re-assess the parties' evidence in its totality and come into right conclusion. In the case of Said Salim

Mutomekela vs. Mohamed Abdallah Mohamed, Civil Appeal No. 149 of 2019, (Civil Appeal No. 149 of 2019) [2023] TZCA 15 (15 February 2023), the Court of Appeal held; "That said, since the pleading is a basis upon which the claim is found, it is settled law that, parties are bound by their own pleadings and that any evidence produced by any of the parties which is not supportive or is at variance with what is stated in the pleadings must be ignored." The Court of Appeal went on stating that "It is glaring that since parties are bound by their pleadings, neither the parties nor the court can depart from such 6 pleadings except where the court has granted leave to amend the requisite pleadings." The Court of Appeal also stressed the same position in James Funke Ngwagilo vs. Attorney General (2004) TLR 161 by stating; "The function ofpleadings is to give notice of the case which has to be met. A party must therefore so state his case that his opponent will not be taken by surprise. It is also to define with precision the matters on which the parties differ and the points on which they agree, thereby to identify with clarity the issues on which the Court will be called upon to adjudicate to determine the matters in dispute. If a party wishes to plead inconsistent facts, the practice is to allege them in the alternative and he is entitled to amend his pleadings for that purpose. I am

aware of the fact that, the respondent was not represented unlike some of the appellants who were duly represented by advocate Pendo Ulomi yet the irregularity committed is not mere technicality, which cannot be left to stand undisturbed. I have also noted that, the respondent's omission to join an administrator of the late Ally Mohamed Muba @ mzee Kuwi Mohamed as 7 respondent or be joined by the appellants as a third party would not render the decree ineffectual in case the appellants loose their case. Given the nature of the parties' dispute, and errors that apparent, the proceedings, judgment and decree of the trial tribunal are quashed and set aside. As to the way forward, the respondent or appellants are advised to institute the matter afresh before the trial tribunal, which will expedite the hearing and determination by joining an administrator of the estate of the late Ally Mohamed Muba @Mzee Kuwi Mohamed. It is so ordered DATED and delivered at Dar es salaam this 26th September 2024 Court: Right of appeal to the Court of Appeal of Tanzania and its requisite processes fully explained ____ M. R. GWAE

JUDGE 26/09/2024 8 Court: Judgment delivered in the presence of Mr. Hemed Nassoro, the learned advocate for all appellants who are present save the 1st and 3rd appellant and in the respondent's presence 9