LAND APPEAL 711 OF 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO.711 OF 2024 (Arising from Land Application No. 94 of 2015, of the District Land and Housing Tribunal for Kibaha) SHABAN SEIF WAZIRI................................................. APPELLANT VERSUS GEORGE MUYUWA MSAFIRI................................... RESPONDENT JUDGMENT Date of Last Order:10.12.2024 Date ofJudgment:13.12.2024 T.N. MWENEGOHA, J: The Appeal originates from the Decision of the Kigamboni District Land and Housing Tribunal, hereinafter called the Trial Tribunal, vide Land Application No.94 of 2015. The dispute between the parties is on a piece of land, measuring lacre, located at Kate Estate, Mdaula, Chalinze, within Bagamoyo Municipality. Dissatisfied with the Decision of the Trial Tribunal, the appellant filed the instant Appeal, with nine grounds of Appeal as follows; - 1. That the Trial Chairperson erred in law and fact when she relied on annexure Pl without reliable witness from Mamlaka ya Mkonge Ubena in order to prove ownership of the same. 2. That the Trial Chairperson erred in law and fact when she based on respondent witnesses who failed to establish sources of acquisition of land in favour of PW1. i 3. That the Trial Chairperson erred in law and fact when she ignored strong evidence testified by the appellant compared to the respondent's evidence. 4. That the Trial Chairperson erred in law and fact when she put into consideration on extraneous matters mentioned under annexure P2 and P3 contrary to standard of proof. 5. That the Trial Chairperson erred in law and fact when she failed to draw and adverse inference against the respondent since he failed to call material witnesses from Mamlaka ya Mkonge Ubena in order to testify material fact against his case. 6. That the Trial Chairperson erred in law and fact when she failed to resolve the issues framed. 7. That the Trial Chairperson erred in law and fact when she failed to discover that, the respondent was having plots as per annexure Pl contrary with what have been alleged herein. 8. That the Trial Chairperson erred in law and fact when she awarded prayers which was not specifically indicated on PWl's pleadings. 9. That the Trial Chairperson erred in law and fact when she failed to evaluate the evidence something which affected the findings of the matter. Submitting on the 1st ground of Appeal, Mr. Emanuel Machibya, learned counsel for the appellant, insisted that, the Chairperson of the Trial Tribunal grossly misdirected himself in law and facts when he awarded the ownership of the suit land to the respondent, basing on a document (Exhibit DI), which does not prove ownership of the same to the respondent. That, his Decision is against the provisions of section 110 of the evidence Act, Cap 6, R.E 2019. 2 He went on to argue on the 2nd ground that, the Trial Chairman misdirected himself in law by failure to take into account of the final submissions filed by parties, hence suo mottu framed a new issues and decided the same without giving the parties an opportunity to be heard, contrary to Regulation 12(1) & (2) of Land Disputes Courts District Land and Housing Tribunal Regulations, G,N No. 174 of 2003. On the third ground, it was argued that, the Trial Chairman misdirected himself in law and fact in shifting the burden of proof on ownership of the suit land to the applicant, who throughout his pleadings never claimed ownership. The one who claimed to own the land in question was the respondent. As for the 4th ground, the appellant's counsel maintained that, the Trial Chairperson erred in entertaining a matter that was time barred, contrary to section 3(1) of the Law of Limitations Act, Cap 89, R.E 2019. On the 5th ground, it was argued that, the learned Chairperson erred in law and fact when he decided the matter against the weight of the evidence given by parties. That, the respondent did not prove his case on balance of probability hence he was not supposed to win the case before the Trial Tribunal. The 6th and 7th ground were argued together that, the Trial Tribunal was not properly composed during the hearing and further that the opinion of assessors were not recorded in the proceedings, contrary to regulation 19(2)) of Land Disputes Courts District Land and Housing Tribunal Regulations, G,N No. 174 of 2003 and section 23 (3) of the Land Disputes Court Act, Cap 216, R.E 2019. That, when the parties were at the site visit, only one assessor was present, therefore the quorum of the Trial Tribunal on the material date was incomplete. Lastly on the 8th ground, it 3 was argued that, the Decision of the Trial Tribunal was not clear as to which part of the land occupied by the appellant should be the one acre claimed by the respondent be given. Advocate Meneghati John Nyamoronga for the respondent, maintained that, the case was well proved on balance of probability and the respondent was declared the rightful owner of the suit land. On the 2nd ground, it was argued the same has new facts that were not addressed at the Trial Tribunal; hence it should not be regarded. Also, the respondents counsel maintained on the 3rd ground that, the same was not well defended, hence it should also be denied. On the 4th and 5th grounds, it was argued that, the Tribunal was right to decide in favour of the respondent, the matter was not time barred. On the 6th, 7th and 8th ground, it was submitted that, the assessors were there throughout the Trial and also their opinion are in the Judgment as seen at page 11 of the Judgment. The Trial Tribunal complied with the rules given in Avit Thadeus Masawe versus Isidory Assenga, Civil Appeal No. 6 of 2017, Court of Appeal of Tanzania at Arusha (unreported). In a brief rejoinder, the appellant's counsel reiterated his submissions in chief and insisted that the Appeal has merits and it should be allowed. I have considered the submissions of the parties and also gone through the records of Appeal. The issue for determination is whether the Appeal has merits or not. However, before I proceed into discussing the merits or otherwise of this Appeal, I have noted that, the appellant came up with new grounds of Appeal, which are different from that which were stated in the Memorandum of Appeal. Therefore, this Court will regard the 2nd to 9th submitted in the Memorandum of Appeal to have not been argued, 4 hence abandoned. Further, the submissions with regard to the new issues raised in the 2nd to 8th new grounds of Appeal are rejected as parties are bound by their pleadings. In YARA Tanzania Limited vs. Charles Aloyce Msemwa and 2 others; Commercial case No5 of 2015 High Court Commercial Division at Dar Es Salaam, (unreported), it was held that "/? is a cardinal principle of law of civil procedure founded upon prudence that parties are bound by their pleadings. That is, it is settled law that parties are bound by their pleadings and that no party is allowed to present a case contrary to its pleadings". Back to the 1st ground of Appeal, again, the same has no merits. There was no need of calling Mamlaka ya Mkonge Ubena in this dispute. The same is centered on private arrangements between two people, both owning a piece of land. One person decided to sell his land to the other. Mamlaka ya Mkonge Ubena, was neither a party to the transaction, nor a witness. Therefore, she could not be called to testify on something she was not aware of. The 1st ground of Appeal also is denied. In the end the entire Appeal is dismissed with costs. The Decision and orders of the Trial Tribunal are upheld. 13/12/2024 5