SHABANI RASHID NJAMBI VERSUS MALOLO VILLAGE COUNCIL

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO 4666 OF 2024 (Arising from Land Application No. 76 of 2018 before the District Land and Housing Tribunal for Singida) SHABANI RASHID NJAMBI…………………..…….…………..……….1ST APPELLANT ALLY RASHIDI…………………………………………..……………..…..2ND APPELLANT VERSUS MALOLO VILLAGE COUNCIL…………………………………….………..RESPONDENT JUDGMENT Date of Last Order: 06/08/2024 Date of the Judgment: 26/09/2024 LONGOPA, J.: The appellants and respondent were respondents and applicant respectively before the District Land and Housing Tribunal where the 1st Respondent sued the appellant for trespass to 10 acres of forest land belonging to the 1st respondent. It was alleged that 1st respondent sometimes back allowed the appellant to use 4 acres of land forming part of 90 acres of forest reserve within the village land in order to ensure that 1st appellant takes care of the forest to prevent planted trees from destruction by termites. However, the 1st appellant gave the land to the 2nd 1|Page appellant who in turn invaded more forest land up to 10 acres. The 2nd appellant commenced to sell the land in question thus a dispute between the parties. The District Land and Housing Tribunal entered judgment dated 15th February 2024 and decree extracted on 26th February 2024 in favour of the respondent and declared the respondent as the rightful owner of the disputed land with costs. The appellants were aggrieved by the whole of the decision of the Tribunal thus on 6th March 2024 they preferred an appeal against the whole of the decision on the following grounds, namely: 1. That, the Trial Tribunal erred in fact and law in finding as it did that the suit land was handed over by the respondent to the 1st appellant for cultivation to prevent the planted trees from destruction by termites, as such the land belongs to the respondent whereas there is no cogent evidence to prove it. 2. That, the Trial Tribunal erred in fact and law in holding that the appellants’ ownership of the suit land is 2|Page doubtful as they do not have documentary evidence to prove that it is their land while their allegation is that they cleared virgin land and used it for agricultural activities for almost 45 years before the dispute arose. 3. That the Trial Tribunal erred in fact and law in deciding the case against the weight of evidence adduced by both parties at trial thus occasioned a miscarriage of justice. It was the appellants prayers that this Honorable Court be pleased to allow the appeal with costs. On 6th August 2024, the parties agreed that the appeal was disposed by way of written submission. The parties complied with the scheduling orders. With regard to the first ground of appeal, the appellants argued that it is one of the cherished fundamental principles of the law of evidence that he who alleges must prove if he wants to succeed. This principle is embodied in sections 110 and 111 of the Law of Evidence Act, [Cap.6 R.E. 2019]. 3|Page According to the applicants, the said principles have been a subject of interpretation in several judicial decisions of courts of record and for the purpose of this appeal we implore the Honorable Court to make reference to the decision of the Court of Appeal of Tanzania in Anthony M Masanga vs. Penina (Mama Mgesi) & Another, Civil Appeal No. 118 of 2014 CAT (Unreported), which states that where the person alleging fails to discharge the burden of proof then he fails in the matter. It was the appellants’ contention that the Respondent herein failed to discharge the burden of proof that the suit land belong to her as such the trial Tribunal should have dismissed the Application with costs for the following reasons: (i) There was no cogent evidence which proved that the suit land was previously owned by the (undisclosed) District Council, and later handed over the land to the Respondent herein (ii) No documentary evidence was ever produced witnessing the handing over of the suit land between the undisclosed District Council and the Respondent. (ii) No witness was called from the alleged District Council to come and confirm that previously the land belonged to her and that she later handed it over to the respondent at a certain date, month and year. iii) No witness testified that he was present at the handing over exercise or that the in 4|Page handing over was done on what date, month and year. iv) All the testimonies as to the planting and keeping of trees in the suit land by the alleged PALANGYO, the trees that allegedly later were destroyed by termites leaving the land bare are hearsay evidence is not admissible and cannot be used to prove a fact in a contentious matter like the present one. v) The alleged minutes of the village meetings dated 21st January, 2017, 16th March, 2020, 3rd January, 2017 and 23rd April, 2016 which appear to have had influenced the trial Tribunal in the decision making, ought not to have been relied upon due to the fact that (a) they were all photocopies and no explanation as to whereabouts of their originals was given prior to the tendering thereof, and (b) they were un-procedurally admitted as exhibit “P1” collectively in a blanket form through a procedure which in law is termed “omnibus procedure”. Documentary evidence received in this form is unacceptable in law and in a similar instance in the case of Anthony M. Masanga vs. Penina (Mama Mgesi) & Another (supra) the Court of Appeal of Tanzania expunged the same as they were worthless. The appellants reiterated that appellants that the suit land comprising 15 acres was obtained through the 1st Appellant’s clearing virgin forested 5|Page land and began to make use for cultivation since 1978 then handed over to his young brother (the 2nd Appellant) in 1992, who has been using it for agricultural activities since then till 2017 when the dispute arose, on balance of probabilities clearly shows that the Respondent failed to prove ownership of the same. The evidence of the 1st and 2nd appellants who testified as SU1 (SHABAN RASHIDI NJAMBI) and SU2 (ALLY RASHID NJAMBI) was well backed by the evidence of SU3 (BARNABAS ARON IBRAHIM) who was an ex-employee as “BWANA MITI WA TARAFA YA MTINKO” who clearly said he was called on 5th January, 2017 by the Respondent to go and show the boundaries of the village trees’ Farm that comprised 70 acres because the village leadership did not know the boundaries and when they arrived there, they found the appellants carrying their agricultural activities on the land that is outside the village trees farm. The witness further said even during the planting of trees in the village farm which at the time was bare land (without trees) they found the 1st appellant already there carrying out his agricultural activities in the suit land which was outside the village farm. 6|Page According to the appellants, if the evidence of SU1 and SU2 is read in the light of that of SU3 the suit land clearly belonged to the appellants and not to the respondent. This ground of appeal has merits in our opinion and we pray the Honorable Court to take it so, as such it deserves to be allowed. On second ground of appeal, the appellant argued that it was appellants’ evidence that the suit land was acquired through clearing virgin forested land and occupied it and went on using it for agricultural activities. It was argued that SU1 and SU2 testified so unanimously. Their testimony was cemented by that of BWANA MITI (SU3) who said when they went to plant trees in the village trees shamba, they met the 1st Appellant there in occupation and use of the disputed land which is outside the village farm. It was reiterated that principle in the case of Anthony M. Masanga vs. Penina (Mama Mgesi) & Another (supra) the respondents who had asserted the disputed land was acquired by them through clearing and occupation were declared owners thereof and the person who had documents (the appellant) lost the case. This decision emphasizes the fact that land may be acquired by clearing virgin land and occupying it, when the occupation is not objected to then the occupier becomes the owner 7|Page thereof. This being the reason, it is our contention that the Appellants herein had proved ownership of the suit land to be theirs unlike the Respondent because even the minutes which the trial tribunal relied upon to decide the matter were not cogent evidence of ownership of the suit land by the Respondent. It was totally wrong to anticipate the appellants to produce documentary evidence of their ownership of the suit land where there was no evidence showing that their ownership was documented. On the third ground, it was argued that the evidence of the appellants herein outweighed that of the respondent. The decision ought to have been in favor of the Appellants and not the Respondent because on the balance of probability the respondent failed to discharge the burden of proof in the matter that is why even the respondent played a trick to move the Tribunal not to visit the locus in quo which was very important in the present case without any good reason. In the circumstances where there was evidence alleging that the appellants had their land separate from that of the Respondent, locus in quo was important to be visited. All in all, the evidence of the appellants was heavier than that of the respondent at trial. 8|Page The appellants concluded their submission that in the upshot, the appeal is meritorious and they prayed for this Court to allow the same with costs. On the other hand, the respondent stated from the outset that appellants’ submission is devoid of merits, and worst of all that “the appellants’ submission at hand is incompetent, misconceived, and bad for being wrongly filed in great breach of the court order dated, 06th day of August, 2024.” It was the respondent’s averments that the appellants did not comply with scheduling orders of this court. It was respondent’s submission that despite the appellant being required to file the submission by 21st August 2024, but failed to file the same timely. This is synonymous with being absent on the hearing date without good cause or notice. Order XXXIX Rule 17 (1) of the Civil Procedure Code [Cap. 33 R.E. 2019] cater for the effect of failure appear on hearing of the appeal which is dismissal of the appeal with costs for want of prosecution. This was cemented by the case of Marian Boys High School v. Rugaimukamu Rwekengo, Miscellaneous Labour Application No. 367 of 2020, High Court of Tanzania at Dar es Salaam (unreported) at pp.2-3. 9|Page Indeed, the overriding objection principle cannot be used to abrogate Order XXXIX Rule 17(1) of the Civil procedure Code [Cap 33 R.E. 2019] which is the mandatory provision of the law as it was held in the cases of Mohamed Chambuso and 2 others Vs Saidi Mwinyimkuu, Miscellaneous Application No.189 [unreported] and John Marco Vs Seif Joshua Malimbe, Miscellaneous Land application No. 66 of 2019 (unreported). The respondent stated the only remedy for the appellants is to apply for a leave in order to adduce his sufficient reasons for the delay or his non-appearance, otherwise the respondent prayed that this appeal be dismissed with costs. On merits of the grounds of appeal, the respondent argued that on first ground of appeal, it was the respondent’s view that it is a well- established principle that the party where evidence is heavier than that of the other is the one must win the case, as stated in Hemed Said v. Mohamed Mbilu [1984] TLR 113. It was submitted that the respondent adduced evidence by calling three (3) witnesses, who are former chairpersons and one (1) witness who 10 | P a g e is the current chairperson, also the Respondent tendered minutes of the village meetings (Exhibit P-1) to discharge its burden of proof as required under Section 110 of the Evidence Act, [Cap.6 R.E 2022]. Both four witnesses proved that the disputed land is part and parcel of the village land forest reserve, and the first Appellant was permitted by the Respondent to use the said suit land so as to prevent the planted trees from destruction by termites within the suit land, later on the second Appellant paid rent of Five Thousand Shillings (TZS. 5000/= per acre) to the respondent for the agricultural use of the suit land. On cross examination by the respondent’s State Attorney, the first appellant admitted that the respondent is the legal owner of land in dispute. The 1st appellant further admitted that he did not seek permission from the respondent (Village Council) who is the owner of the said land. Moreover, it was argued that evidence of the appellants was weaker than the evidence of the respondent; also, there was a contradiction between the first appellant’s evidence (SU1), on one hand, and the second appellant’s evidence (SU2), on the other hand, as to what he said in the minute dated 03/01/2017 as stated on page 4 of the Trial Judgment. 11 | P a g e In the first ground, the appellants alleged that the procedure was not followed by the trial court. The respondent submits that the procedure was complied by praying before the trial Tribunal to file notice to rely on secondary evidence and the prayer was granted by the trial Tribunal (on page 35 of the typed proceedings) and was properly served to the appellants. The application to use secondary evidence was not objected by filing counter affidavit to object the notice, as stated in the case of Mohamed Enterprises (Tanzania) Limited and Another v. Shishir Shyamsingh, Civil Case No. 03 of 2021, High Court of Tanzania at Kigoma (unreported) at pp.3-4. Also, those documents were dealt with one after the other, and the appellants were given an adequate opportunity to be heard and were supported by the witnesses; hence, the cited case of Anthony M. Masanga v. Penina (Mama Mgesi) & Another, Civil Appeal No.118 of 2014 CAT (Unreported), is different with our matter at hand. On the second ground, the respondent argued that the appellants were not the owners of the said disputed land, but the first appellant was the invitee or licensee because he was given permission to use the disputed land (Exhibit P-1) and this is why the appellants failed to produce 12 | P a g e any documents from the village to prove their ownership. The appellants alleged that they occupied the suit land for a long time, but an invitee cannot own a land to which he was invited to the exclusion of his host whatever the length of his stay. It does not matter that the said invitee had even made unexhausted improvement on the land on which he was invited, as stated in the case of Magoiga Nyankorongo Mriri v. Chacha Moroso Saire, Civil Appeal No. 464 of 2020, the Court of Appeal of Tanzania at Musoma (unreported) at pp.12-13. On the third ground, it was argued that the trial Tribunal analyzed and evaluated the evidence adduced by both parties, but the Respondent’s evidence was heavier than the evidence of the appellants, hence the respondent must win the case as stated in the case of Hemed Said v. Mohamed Mbilu, supra, which held that:- “According to the law both parties to suit cannot tie, but the person whose evidence is heavier than that of the other must win.” It was stated that basically, the evidence adduced by the appellants and their witness was very weak, and due to that weakness, it is obvious that it was not easy for the trial Tribunal to declare them as lawful owners because of discrepancies of their evidence. 13 | P a g e Therefore, the evidence from appellants was not heavier whatsoever. The issue of the locus in quo was prayed by the respondent’s state attorney. However, the appellants became reluctant to corroborate with the respondent and the trial Tribunal to visit the locus in quo. It was the respondent’s prayer that this Honourable court be pleased to dismiss the appeal with costs and the judgment and decree of the trial tribunal be sustained. I have dispassionately considered the submission, proceedings and decision of the trial Tribunal both judgment and decree in light of the grounds of appeal. To determine this appeal, it is pertinent to address available evidence on record to determine existence of cogent evidence or otherwise. The available evidence is summed up as follows: SM 1 (PW 1) one Iddi Mussa Kiteu stated that he was Chairman of the Malolo Village from 1987 to 1999. It formerly belonged to the District Council. He stated that Forest Officer one Pallangyo informed him that one Rashid Shaban @ Hongoa was given to cultivate part of forest land which had been invaded by termites in order to control termites from affecting 14 | P a g e trees. At all that time the 1st appellant was an invitee to that land. The land is currently under the Village Council. SM 2 (PW 2) Haji Abrahamani testified that in 2015 after being elected a Village Council Chairman prepared budget on income and expenditure for the village and in village assembly meeting the matter relating to income from the forest plantation was raised thus the Committee visited all those who were using land part of forest plantation. It was his evidence that 2nd appellant informed the village authorities that he was given land by his elder brother. According to PW 2 stated that forest plantation was established in 1970 under management of the District Council and the same was transferred to the Village Council in 2000. SM 3 (PW 3) Amos Hassani Maisu stated that he is Village Council Chairman from 2019. According to PW 3 evidence that in Village assembly meeting in 2020 reiterated that forest plantation belonged to the village and the 1st appellant admitted that he was given four acres to cultivate in order to control termites to engulf the trees. The meetings recorded the discussion. PW 3 found the 1st appellant using the 4 acres of land. 15 | P a g e SM 4(PW 4) Said Athumani Msinda described the total forest plantation to be around 90 acres bordered by formerly Mtinko Village now Mwakichence Village on West, Mpipiti village on North, the villagers’ farms on East, and also villagers farm in the South. PW 4 stated that before year 2000, the forest plantation belonged to District Council and in 2000 the same was transferred to the Village Council. PW 4 stated that he found some people using the land to cultivate in order to maintain the forest plantation and the village introduced rent of TZS 5000 per acre to all those who were cultivating in the Village Forest reserve. The 2nd appellant paid rental fees for ten (10) years when PW 4 was the Village Council Chairman. PW 4 tendered Minutes of the Meetings which were five in number that reiterated on the forest reserve to belong to the Village Council. The Minutes were collectively admitted as Exhibit P.1 and contents were read out in the Tribunal. SU 1(DW 1) Shaban Rashid Njambi stated that the in dispute belongs to him as he cleared 15 acres of bushland in 1978 and used it until 1992 when he left it to the 2nd appellant. DW 1 stated that the land borders the Mpipiti Village on North, on West the government forest plantation. He stated that he once constructed a house in that land but his young 16 | P a g e brothers demolished the same. He gave the land to 2nd appellant as a gift inter vivos orally. According to DW 1 his father is still alive and did not inform his that bushland he was clearing belonged to the Village. SU 2 (DW 2) Ally Rashid Njambi stated that in 1992 he was given land by his brother 1st appellant and he has been using the land since then until 2017 when he was stopped by the Village Council. DW 2 cultivate only 5 acres of land. DW 2 does not remember the age when he was given the land by his brother, 1st appellant in 1992. DW 2 stated that when one is below age of majority his property is taken care of by the guardian. It was DW 2 evidence that he has been using the land for so long time. SU 3(DW 3) Barnabas Aron Ibrahim stated that in 2017 he went to Malolo Village to show the boundaries of the forest plantation as a retired forest officer. It was his evidence that he showed the boundaries of the land and stated further in 1999 when the forest plantation was transferred from the District Council to the Village Council found Shaban Rashid cultivating outside the forest plantation. The land of Shaban Rashid was not part of the forest plantation as he was cultivating the land before planting of trees. 17 | P a g e In respect of the first ground of appeal on existence of evidence that the 1st appellant was permitted to use the land temporarily so that he can cultivate to ensure termites are controlled, it is this court’s view that evidence of the respondent was cogent to establish that fact. Evidence of PW 1, PW 2, PW 3 and PW 4 narrates the whole story describing the manner in which the disputed land came into hands of the 1st appellant. The evidence also establishes the acquisition of the forest reserve from the District Council to Malolo Village Council in 1999/2000 and the manner the Village Assembly meeting and Village Council had acted on the same regarding trespassers/ invitees to that land. I concur with the findings of the trial Tribunal that the respondent managed to prove the case on the balance of probabilities. Proof of the respondent’s case was supported by strong, lucid and consistent evidence of PW 1, PW 2, PW 3and PW 4 as well as documentary evidence contained in Exhibit P. 1 collectively. It is on evidence that DW 2 admitted to have participated in two of those meetings discussing about the village forest reserve land. Also, the evidence of PW 4 was lucid that from 2000 to 2010 when he was the Village Council Chairman all the invitees to the village forest 18 | P a g e reserve land who used for cultivation were paying rental fees including the 2nd appellant. This evidence was not seriously challenged by the appellants. It is settled law in this jurisdiction that an invitee to a land has no valid title against the owner of the land despite the long use or occupation of the land in question. For instance, in Maigu E.M. Magenda vs Arbogast Maugo Magenda (Civil Appeal No. 218 of 2017) [2018] TZCA 214 (5 October 2018) (TANZLII), at pages 12-13, the Court observed that: Being an invitee to take care of the land belonging to his brother, the respondent; the appellant made clear overtures towards exclusive possession. The record of appeal shows the evidence of an earlier attempt by a letter dated 10th May, 2003 which the appellant made to hijack the process and obtain formal title in his name instead of the respondent who had initiated the process. It seems to us that the respondent's right of action finally accrued and the twelve-year limitation period began to run against him in 2010, when upon returning back to settle on his land when he retired from the army in 2010, he found the 19 | P a g e appellant staking his own exclusive claim of ownership over the same Plot of land. This turn of events is what precipitated the respondent's claim in the Ward Tribunal in 2012. In this appeal, although the appellant has argued that he had exclusive ownership for over eighteen years before the respondent staked his claim of ownership in 2012, we do not think continuous use of land as an invitee, or by building a permanent house on another person's land or even paying land rent to the City Council of Mwanza in his own name would amount to assumption of ownership of the disputed plot of land by the appellant. In Yeriko Mgege vs Joseph Amos Mhiche (Civil Appeal 1 No. 37 of 2017) [2020] TZCA 266 (18 May 2020) (TANZLII), at pages 13, the Court reiterated that: Given the foregoing testimony, we are certain that the three courts below rightly decided that the appellant had been using the disputed land on permission by the 20 | P a g e respondent. He was therefore an invitee. He cannot therefore be saying that he acquired that land by long and undisturbed occupation. We are certain that the appellant misconceived the law when he argued that a trespasser acquires land on which he trespassed after twelve years of occupancy. To the contrary, the law is settled in this jurisdiction that no invitee can exclude his host whatever the length of time the invitation takes place and whatever the unexhausted improvements made to the land on which he was invited. Thus, the appellants being invitee to the disputed land cannot be said to have acquired a good title against the respondent as it is evident that the 1st appellant was invited to disputed land in order to take care of the trees from being affected by termites while cultivating his crops. It is on record that the 2nd appellant participated in the meetings that discussed the matter relating to disputed land to belong to the respondent. I shall therefore dismiss the 1st ground of appeal for being devoid of merits. 21 | P a g e On the second ground that trial Tribunal erred to hold that ownership of land by appellant is doubtful, it is my view that it is not difficult to determine. Two aspects are necessary. First, evidence regarding the 1st appellant acquisition of land through customary right of occupancy through clearing bushland. Second, transfer of land from 1st appellant to 2nd appellant as a gift inter vivos. On the first limb, it is on record that evidence of DW 1 (1st appellant) that he cleared bushland in 1978 when he was 18 years of age is not supported by any documentary nor oral evidence. The 1st appellant did not bring any witnesses to court to establish that they witnessed the 1 st appellant clearing the land. Indeed, the 1st appellant stated that his father was there when he cleared bushland and neighbours like Philipo Amosi. However, none of them was called to support the assertion. This aspect was not proved. On the second aspect regarding transfer from the 1st appellant to the 2nd appellant, it is pertinent that donation of land as a gift inter vivos is only the possible when it is done first and foremost between two living individuals. In the case of Victorino Fidelis Masika vs Oliver Fidelis Masika & Another (Civil Appeal No. 246 of 2021) [2024] TZCA 429 (11 22 | P a g e June 2024) (TANZLII), at pages 10-11, the Court of Appeal emphasized that gift inter vivos applies to transfer of title between two living individuals. It stated that: Furthermore, Clause 3 confirms the same perspective, namely that the donation or grant was to be implemented prior to the donor's or grantor's demise, indicating that it involved a transfer of title between two living individuals. Indeed, the evidence of DW 1 and DW 2 pointed lucidly that 2 nd appellant was given the land by 1st appellant in 1992 while both donor and donee are still alive thus squarely falling within this principle that gift inter vivos that it must be between two living individuals. However, this is not the only criterion. For the grant of land vide a gift inter vivos to be valid and uncontroverted, there are few mandatory conditions that must be proved, namely: First, intention to give the land. Second, acceptance of the same by the recipient. Third, the effective occupation of the land by the recipient or donee. These aspects fall within the principle in the case of Hamis 23 | P a g e Sultan Mwinyigoha vs Zainabu Sultan Mwinyigoha (Civil Appeal No. 447 of 2020) [2024] TZCA 150 (29 February 2024) (TANZLII). At pp. 5-6, the Court stated that: We have therefore underscored in the context of this case that, validity of a gift essentially lies on the intention to give and acts incidental to that intention which may include the physical handing over of the gift. See Micky Woodley, Osborn's concise Law Dictionary (supra) at pages 200-201. It is also essential and paramount for the gift to be voluntary on the part of the donor and without any element of consideration on the part of the donee. As per the commentaries contained in Justice Y.V. Chandrachud, P Ramanatha Aiya Concise Law Dictionary, 3rd Edition, Lexis Nexis Butterworths Wadhwa, page 493; love, affection, spiritual benefit and many others may enter into the intention of the donor to give or make a gift. In the law of property therefore, three elements must exist for a gift to be legally valid. One is, as alluded to above, intent to give by the donor, 24 | P a g e two, delivery of the gift to the recipient, the donee and three, is the acceptance of that gift by the donee. These three elements, by any standard, are exhibited by way of evidence, no more no less. The evidence on record is that 1st appellant alleges to have given the land as a gift inter vivos to the 2nd appellant. However, the evidence on record fall short to establish that actually the land was given as a gift inter vivos. The reasons include absence of evidence as modalities of the grant of land. There is no witness whatsoever for the appellants who was called to establish that actually the 1st appellant donated the disputed land to the 2nd appellant. There is no evidence that 2nd appellant accepted the donation and took occupation in 1992 as alleged. In fact, on pages 43-44 of the proceedings, DW 2 was serious challenged on his age regarding his ability to accept the donation and take occupation. It was his evidence that he did not remember what his age was at that material time. DW 2 also stated that property of a person below the age of majority is always maintained or handled by an adult person. 25 | P a g e According to evidence on record, the 2nd appellant evidence testified that in 2023 was aged 46 years old. Therefore, in 1992 he was about 15 years old. He was below the age of majority to own property. There is no evidence on record that anyone else was given the guardianship on taking care of the land during his incapacity. Further, no witnesses were called to testify that actually witnessed the 1st appellant disposing the land to 2nd appellant as a gift inter vivos. This contravenes the principle of law that for transfer of land inter vivos the party must establish through evidence of witnesses where was the transfer was done and who witnessed the same. In the case of Ernest Sebastian Mbele vs Sebastian Sebastian Mbele & Others (Civil Appeal 66 of 2019) [2021] TZCA 168 (4 May 2021) (TANZLII), at page 12, the Court reiterated that: If it is true that she witnessed the gift inter vivos, why did she not mention it in the first place when she was called to establish its existence. Worst still, she did not give any detailed account, be it in her examination-in chief or cross-examination, as to the number of witnesses who 26 | P a g e were present, the names of the witnesses and/or the place where the gift was made taking into account that the 1st respondent disputed the presence of the children at home in 1988. We think it would be wrong to place any reliance on evidence of a witness who allegedly saw the donation but failed to disclose such an important material fact in her examination in chief. On account of all these aspects, I am certain that it is true that appellants’ evidence was doubtful to establish ownership of land to the appellant as there was not cogent evidence on record to substantiate. The 2nd ground of appeal therefore is devoid of merits and it must collapse. On the third ground on failure by trial Tribunal to properly evaluate the weight of evidence by the parties thus occasioning miscarriage of justice, it is this Court view that guidance is well established that burden of proof is on the party who alleges and that standard of proof is the balance of probabilities. This is the principle established in Sections 3(2) (b) and 110(1) of the Evidence Act, Cap 6 R.E. 2022. 27 | P a g e Such principle has been articulated by plethora of authorities in our jurisdiction. For instance, in the case of Charles Richard Kombe t/a Building vs Evarani Mtungi and 2 Others (Civil Appeal No. 38 of 2012) [2017] TZCA 153 (24 March 2017) (TANZLII), at page 6, the Court stated that: We need not cite any provision of law because this being a civil matter, it is elementary that the standard of proof is always on the balance of probabilities and not beyond reasonable doubt. It is on record in particular the judgment that at pages 2-3, the trial Tribunal’s Chairman summarized the evidence of both sides and on pages 4-5 considered the evidence as a whole, critically analysed and evaluate it and reached to the finding on issues based on strengths of evidence on record. As I have pointed out in the first two grounds of appeal above, the respondent’s evidence was lucid, consistent and strong thus outweighing that of the appellants. It is the law that always court is entitled to sustain the evidence of the party whose evidence is weightier than the opponent party. This was the principle reiterated in Agatha Mshote vs Edson 28 | P a g e Emmanuel & Others (Civil Appeal No. 121 of 2019) [2021] TZCA 323 (20 July 2021) (TANZLII), at page 19, where the Court of Appeal stated 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 respondent’s evidence being cogent, consistent and lucid was found correctly to be weightier than that of the appellant which was inconsistent and weak to establish with certainty on existence or otherwise of the land ownership warranted trial Tribunal to determine the case in favour of the respondent. There in nothing tangible before this Court to interfere with the decision of the trial Tribunal. The decision was based on watertight evidence of the respondent to sustain entering judgment in favour. In totality of events, all three grounds of appeal are devoid of merits thus the appeal collapses for being preferred unmeritorious. The judgment 29 | P a g e and decree of the District Land and Housing Tribunal for Singida in Land Application No. 76 of 2018 is upheld. It is correct and valid decision in law supported by available evidence on record. I shall proceed to dismiss the appeal in its entirety with costs. It is so ordered. DATED at DODOMA this 26th day of September 2024. E.E. LONGOPA JUDGE 26/09/2024. 30 | P a g e