LAND APPEAL 20045 SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 20045 OF 2024 (Originating from the Decision of the District Land and Housing Tribunal for Mkuranga at Mkuranga in Application No. 37 of2020) SELEMANI RAMADHANI KASONSO (As administrator of the estates of the late RAMADHANI ATHUMANI KASONSO)............................................... APPELLANT VERSUS MWAMVITA KASSIM MPULAKI............................... 1STRESPONDENT ZAINA KASSIM MPULAKI...................................... 2ndRESPONDENT SHANGWE MUHEMA.............................................. 3rdRESPONDENT MOSSES LUKAS....................................................... 4™RESPONDENT JUDGMENT Date of last Order: 15/10/2024 Date of Ruling: 31/10/2024 LALTAIKA, J. The Appellant herein SELEMANI RAMADHANI KASONSO (As administrator of the estates of the late RAMADHANI ATHUMANI KASONSO), aggrieved by the judgment and decree of the District Land and Housing Tribunal for Mkuranga at Mkuranga (the DLHT) in Application No. 37 of 2020, Page 1 of 12 has appealed to this Court by way of a Petition of Appeal containing five grounds. Irrespective of a few grammatical and typographical errors, I choose to reproduce them below (in their original) for ease of reference and record keeping purposes. 1. THA T, Hon. Chairperson erred in law and facts by disregarding the testimony of the Appellant on the payment of the purchase price of the suit premise to the tune ofTshs. 10,000/- without assigning reasons thereto. 2. THA T, Hon. Chairperson erred in law and facts by making a decision on the issue of non-payment of Tshs. 5,000 which was among of the issues which were in contention between the parties before the trial Court without affording the parties the right to be heard. 3. THA T, Hon. Chairperson erred in law and facts by his failure to declare the Appellant as the lawful owner of the suit premise and the 2nd,3rd and 4th Respondents are trespassers. 4. THA T, Hon. Chairperson erred in law and facts by his failure to declare that the 1st Respondent had no power to sell the suit premise to the 2nd, 3rd and 4th Respondents. 5. THA T, Hon. Chairperson erred in law and law by his failure to properly evaluates the evidences, testimonies and exhibits from the parties hence reach into unfair and injustice decision against the Appellant. When the appeal was called for mention on 12/09/2024 Messrs. Hardson Mchau and Abel Ngalaba, learned Advocates, appeared for the Appellant and Respondents respectively. Parties opted to dispose of the appeal by way of written submissions. With a nod of approval by this Court, the following Page 2 of 12 schedule was ordered: Appellant's written submission in chief to be filed on or before 25/09/2024, Respondents' reply 10/10/2024, Rejoinder 17/10/2024, Mention for necessary orders to schedule the date of Ruling 17/10/2024 at 10:10. I take this opportunity to register my commendations to the learned V. Counsel for spotless compliance with the scheduled order. The next part of this Judgment is a summary of the submissions by both parties followed by my analysis based on the applicable law and the resultant verdict. Mr. Mchau, Counsel for the Appellant, argued in support of the appeal, asserting that, on the first ground, it was an undisputed fact before the trial tribunal that the late Ramadhani Athumani Kasonso had purchased the disputed land from the late Seif Salum Mbonde on October 2, 1985, for a sum of Tshs. 10,000. He contended that the 1st Respondent waited until 2015 to start selling the land to the 2nd, 3rd, and 4th Respondents, despite the fact that Ramadhani had passed away in 2012. Mr. Mchau pointed out that the trial tribunal disregarded the Appellant's testimony regarding this payment without providing reasons. Page 3 of 12 He elaborated that during the trial, the Appellant, identified as PW-1, testified that the full purchase price of Tshs. 10,000 had been paid, and this statement was supported by PW-2, the wife of the deceased. He argued that there was no dispute regarding the payment, yet the Hon. Chairperson raised this issue on their own in the judgment without involving the parties. Mr. Mchau emphasized that each witness is entitled to credibility unless there are valid reasons for doubting their testimony, as noted in Goodluck Kyando v. The Republic [2006] TLR 363. However, Counsel reasoned, the Hon. Chairperson provided no rationale for rejecting PW-l's testimony, corroborated by PW-2. On the second ground, Mr. Mchau argued that the Hon. Chairperson erred by deciding on the matter of Tshs. 5,000—an amount purportedly unpaid— which was not one of the issues in contention, thus denying the parties the right to be heard on this matter. He asserted that if the issue had been raised earlier, the Appellant would have had the opportunity to defend himself, questioning why the 1st Respondent waited until 2015 to sell the land or why the late Seif Salum Mbonde had not reclaimed it during his lifetime. Page 4 of 12 He further contended that the parties had agreed on three issues in the trial tribunal's judgment. These did not include any dispute over non­ payment of Tshs. 5,000. Nonetheless, the Hon. Chairperson raised this issue unilaterally in the judgment, an action Mr. Mchau argued rendered the judgment in favor of the Respondents null, referencing Director of Public Prosecutions v. Al-Halil Omar Kombo, Civil Appeal No. 66 of 2023 (CAT at Zanzibar), where it was held that unilaterally raising and deciding on an issue without hearing the parties compromised the proceedings. Addressing the third ground, Mr. Mchau submitted that the Hon. Chairperson erred by not declaring the Appellant as the lawful owner of the property and by failing to recognize the 2nd, 3rd, and 4th Respondents as trespassers. He argued that the Appellant had lawfully purchased the land in 1985, a fact established by exhibit P2 and supported by the testimony of PW-3, who maintained the land for 18 years undisturbed. Regarding the fourth ground, he submitted that the Hon. Chairperson erred by not declaring that the 1st Respondent had no authority to sell the land to the other Respondents, as it was clear from the evidence, specifically exhibit P2, that the land had been lawfully acquired by the Appellant from the original owner. Page 5 of 12 On the fifth ground, Mr. Mchau highlighted that the Hon. Chairperson's failure to consider the entirety of the evidence, especially the testimonies of PW-2 and PW-3, led to an unjust ruling. Citing James Bulow & Others v. R [1981] TLR 283, he stressed that a trial judge must evaluate the full body of evidence before reaching a decision. Concluding, Mr. Mchau requested that the appeal be allowed with costs. Mr. Ngalaba, Counsel for the Respondents, beginning with the first ground of appeal, noted that the appellant had claimed that the Chairperson erred in law and fact by disregarding the appellant's testimony regarding payment of Tsh 10,000 as the purchase price for the suit premises without providing reasons. Mr. Ngalaba expressed surprise at this assertion, questioning how the appellant's counsel arrived at such a conclusion. He pointed out that the appellant had testified to having paid only Tsh 5,000, with no evidence showing the date or year when the remaining amount was paid. He further observed that the purported sale agreement, which was submitted as evidence, only indicated payment of Tsh 5,000. Citing section 110(1) of the Evidence Act, Cap 6 R.E. 2002, he emphasized that the burden of proof lies with the party who asserts the existence of facts. Page 6 of 12 Mr. Ngalaba went on to explain that the trial tribunal had provided reasons for its decision on page 13 of the judgment, citing section 10 of the Law of Contract Act, Cap 345 R.E. 2019. He argued that the absence of details on the completion of the purchase payment led to the conclusion that the appellant had not demonstrated full payment for the disputed land between SEIF SALUM MBONDE (the seller) and Ramadhani Athuman Kasonso (the buyer). Mr. Ngalaba clarified that the tribunal did not raise the issue of the unpaid Tsh 5,000 suo mote, but rather, it was a topic of significant discussion during ■ the appellant's examination-in-chief and cross-examination. He invited the court to review the tribunal's record, emphasizing that the dispute was about land ownership, and thus, the tribunal could not declare someone the owner without evidence of how the ownership was acquired. Regarding the third ground of appeal, Mr. Ngalaba asserted that the tribunal could not declare the appellant as the owner of the disputed land, as he was not the owner, and therefore, the respondents were not trespassers. He argued that the appellant had failed to establish his claimed ownership of the property. Page 7 of 12 Addressing the fourth, fifth, and sixth grounds of appeal collectively, Mr. Ngalaba stated that the first respondent had the authority to sell the disputed land, as it had been gifted to her by her late grandfather. He noted that the deed of gift was presented to the tribunal as evidence and was not contested. He asserted that the trial tribunal had evaluated both the testimonial and documentary evidence and based its decision on principles applicable to civil cases. Mr. Ngalaba further argued that the appellant failed to prove the alleged payment of Tsh 10,000 as consideration for the disputed land, which justified the tribunal's decision in reaching its judgment. Regarding the second ground of appeal, where the appellant contended that the Chairperson erred by addressing the Tsh 5,000 issue, Mr. Ngalaba responded that the appellant was misleading the court, as the issue was indeed raised during cross- examination, making it a point of contention between the parties. Additionally, Mr. Ngalaba noted that the appellant appeared to be contradicting himself by claiming in the first ground that the tribunal disregarded his testimony about paying Tsh 10,000, while in the second ground, he contended that the tribunal erred by addressing the Tsh 5,000 issue. Mr. Ngalaba remarked that the appellant's arguments implied Page 8 of 12 both a denial and an acknowledgment of the unpaid Tsh 5,000 while simultaneously questioning the inclusion of the matter in the judgment. He emphasized that in preparing a judgment, a court must rely on admitted exhibits, evidence, submissions, and pleadings, noting that parties are bound by their pleadings unless amendments are permitted. To support his argument, Counsel referenced the case of CHARLES RICHARD KOMBE t/a BUILDING v. EVARANI MTUNGI & 2 OTHERS, Civil Appeal No. 38 of 2012 CAT, (unreported). Mr. Ngalaba also emphasized that any document admitted as evidence becomes part of the court record. Referring to MOHAMED MBILU [1984] TLR 113, he observed that the trial court has a unique position to evaluate, analyze evidence, and observe the demeanour of witnesses, which the appellate court lacks. In conclusion, Mr. Ngalaba prayed that the honourable court dismiss the appeal with costs, as it lacked merit. I have dispassionately considered the rival submissions in the light of the grounds of appeal. Three issues are amenable for my determination, the burden of proof and payment evidence, the issue of TZS 5,000 payment balance, and, more importantly, Ownership of the Disputed Land Page 9 of 12 On the first issue, I agree with Mr. Ngalaba's submissions that the appellant bore the burden of proving his ownership claim, in line with section 110(1) of the Evidence Act, Cap 6 R.E. 2002. The evidence on record indicates that the appellant testified to having paid only Tsh 5,000, with no further proof provided for the claimed Tsh 10,000 purchase price. As the tribunal's judgment records, the sale agreement tendered into evidence only reflected this partial payment, leaving a significant gap in the appellant's proof. In line with the principle that the party bearing the burden of proof must establish their claims, as articulated by Mr. Ngalaba in his eloquent submission, the appellant failed to discharge this burden adequately. Moving to the second contention, the appellant's claim that the Tsh 5,000 payment balance was not a contested matter between the parties is similarly unpersuasive. The record demonstrates that this issue was raised during cross-examination and, thus, naturally fell within the tribunal’s purview to address in its judgment. Further, I am inclined to state that the Appellant's submission in this appeal appears contradictory, acknowledging the Tsh 10,000 payment claim Page 10 of 12 in one ground while challenging the tribunal's reference to the Tsh 5,000 unpaid balance in another. This inconsistency weakens the appellant's position, as the tribunal was required to evaluate all relevant issues to determine ownership. It is my finding that the tribunal evaluated the evidence, including the deed of gift presented by the first respondent, showing that she inherited the land from her grandfather. The absence of further payment evidence by the appellant called into question the completeness of his ownership claim, thus weakening his assertion of full ownership. In the upshot, the appeal is hereby dismissed in its entirety, with costs awarded to the Respondents. It is so ordered. E.I. LALTAIKA JUDGE 31/10/2024 Page 11 of 12 Court Ruling delivered this 31st day of October 2024 in the presence of Mr. Hadson Mchau Counsel for the Appellant and Mr. Abel Ngalaba, Counsel Page 12 of 12