SHABANI ZAIDI AND MUSA ZAIDI Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA LAND APPEAL NO. 71 OF 2023 (Arising from the Judgment and decree of District Land and Housing tribunal for Iramba at Kiomboi in Land Application No. 41 of 2018 dated 25/04/2023) SHABANI ZAIDI………...…………………….……….…………………….1ST APPELLANT MUSA ZAIDI………………………..………………….………………….….2ND APPELLANT Versus ADAMU NSUNZA...…………..……….……………………………....………RESPONDENT JUDGEMENT Date of last order: 23rd August, 2024. Date of Judgment: 04th October, 2024. E.E. KAKOLAKI, J. In this appeal appellants are dissatisfied with the decision of the District Land and House Tribunal for Iramba at Kiomboi (the DLHT) in Land Application No. 41 of 2018 handed down on 25/04/2023, which declared them trespassers in the respondent’s parcel of land estimated at 95.07 acres located at Nkalakala village, within Mkalama District, Singida Region. They have expressed their grievances in three (3) grounds of appeal going thus: 1. That, the trial chairperson erred in deciding the dispute in favour of the respondent despite of lack of cogent evidence proving ownership of the land. 2. That, the trial chairperson misdirected himself in law and facts by declaring that the Appellants trespassed the suit land while there was no evidence showing that the appellant so trespassed. 1 3. That, the trial chairperson erred in law and facts by entering the decision in favour of the respondent basing on weak evidence adduced by the respondent disregarding the appellants’ evidence. The facts leading to the present matter as harvested from the record are simple to narrate. Before the DLHT for Iramba at Kiomboi in Application No. 45 of 2018, the respondent successfully sued the appellants for trespassing in his land measuring 95.07 acres located at Nkalakala village Mwinyi suburb, within Mkalama District in Singida region. In displaying his ownership to the disputed land, the respondent (PW1) relied on the judgment in Land Application No. 47 of 2009 exhibit P1, that awarded to the appellants 21 acres of land out of 116.6 acres leaving him in possession of 95.07 acres as also proved by the land surveyor for Mkalama District Council (PW2) who tendered in the Tribunal the survey map showing respondent’s land measuring 95.07 acres out of 116.07 acres as well as 21 acres owned by the appellants. Since appellants were claimed to have unjustifiably occupied part of the land in the said 95.07 acres, the trial Tribunal seated with assessors declared them as trespassers to the suit land on the ground that, the respondent is the lawful owner of the said land hence permanently restraining them or their agents or workmen from interfering with the respondent’s quite possession and use of land. Appellants were further ordered to bear costs of the suit. It is from that decision which seem to have irritated the appellants this appeal is preferred. 2 When the appeal was called on for hearing parties who appeared unrepresented in Court were ordered to proceed by way of written submissions the order which was complied with as they all filed their submissions in time. In the course of preparation of judgment this Court noted that, the letter dated 18/02/2019 and survey map of the disputed land that were tendered and admitted before the Tribunal by PW2 on 16/08/2021 for identification purposes as ID Doc collectively, were later on 08/11/2022 admitted by the same Tribunal as exhibit PE2 collectively without any indication that, the said PW2 was re-summoned and sworn in before tendering them as exhibit. Having so noted and given the fact that the exhibit largely formed part of the impugned decision of the Tribunal, this Court had to pause and invite all parties for addressing it on the correctness or otherwise of the procedure adopted and competence of the Tribunal’s proceedings during admission of the said exhibits and luckily all appeared on 23/08/2024. Having been introduced to the issue raised by the Court suo motu it was 1st appellant’s submission which was also adopted by the 2nd appellant that, according to his research the PW2 who tendered the original documents (a letter from District Commissioner’s office and the survey map collectively) as exhibit P2 collectively, did so while not under oath hence their admission was in contravention of the law. He thus prayed the court to expunge them from the record and allow their appeal as there is no supporting evidence regarding respondent’s ownership of the disputed land. 3 In his reply submission the Respondent admitted the fact that, the said surveyor did not take oath when re-appeared before the Tribunal for tendering the original exhibits as he did before since he could not be allowed to further render his testimony if not taken oath. Both appellants had nothing to rejoin upon admission by the respondent on such fact. I have paid due consideration to the submission from both parties regarding admission of the exhibit P2 collectively tendered by PW2, which exhibit no doubt formed basis of the trial Tribunal’s decision on who is the lawful owner of the disputed land measuring 95.7 acres. From the record there is no dispute that, following failure by PW2 to tender the said exhibit on 16/08/2022 after being received for identification purposes collectively as ID Docs P1 for being photocopies, the witness was subjected to cross examination and re- examination before he resurfaced in the proceedings on the 08/11/2022 and tendered the original documents that were admitted as exhibit P2 collectively. The law under section 147(4) of the Evidence Act, [Cap. 06 R.E 2022] provides that, upon permission by the Court a witness already closed his testimony any be re-summoned for further examination in chief or cross – examination as if so done parties will have a right to cross- examine or re-examination. It follows therefore that, when re-summoned a witness must take oath before proceeding to render his/her testimony the rationale being to encourage him/her render truthful testimony given the fact that, ‘Oath’ is a legally binding promise by the witness to tell the Court the truth and not lies. On the 4 importance of a witness to take oath first before rendering his testimony the Court of Appeal in the case of The Municipal Director Moshi Municipal Council Vs. Suresh Kanji Solanki and 3 Others, Civil Appeal No. 199 of 2020 (CAT) Tanzlii, having considered the provisions of sections 2 and 4 (a) of the Oaths and Statutory Declarations Act, [Cap. 34 R.E. 2019] had this to say: ’’In our respectful opinion, and by necessary implications, the Tribunal falls squarely under the ambit of that definition. The rationale is not farfetched, tak ing oath, is the means for encouraging truthful testimony by ensuring that w itnesses speak the truth and the truth only. It is a legally binding promise by witnesses to assert only true facts and not tell lies. Such is the law regarding the mandatory requirement for w itnesses to tak e oath before they give evidence in court w hich by ex tension applies to any tribunal legally entrusted to tak e evidence upon oath or affirmation in adjudicating matters before them.’’ (Emphasis supplied) Applying the above principle into perspective of the present matter it is conspicuously seen from the record that, when re-summoned for the purposes of tendering original documents of the letter from the District Commissioner’s Office dated 18/02/2019 and the survey map, exhibit P2 collectively, PW2 never took oath though was later on subjected to cross examination and re- examination. Since it was mandatory for him to take oath before proceeding with his testimony so as to give assurance to the Tribunal of truthfulness of 5 his testimony and given the fact that, this mandatory procedure also applies to the Tribunal as held in the case above cited non-compliance by the trial Tribunal, I hold vitiated the proceedings on admission of the said exhibit P2 collectively as the same was tendered by the witness who had not taken oath as did earlier on. Since the said exhibit illegally found itself in the proceedings as correctly submitted by both parties the only remedy is to expunge it from the record the course which I hereby take and order exhibit P2 collectively expunged from the record. Having so done I now move on to consider the submission by the parties regarding the raised grounds of appeal by the appellants. To start with the first ground in which the complaint is that the trial chairperson was in error to declare the respondent a lawful owner of the suit land despite of lack of cogent evidence, it was appellants’ submission that there is no documentary evidence on disposition of the disputed land proving that the respondent was given it by his mother (PW3) and her late husband. In response the respondent said, the land in dispute was owned by his parents customarily hence no title deed issued to them for the same to be transferred to him in papers. He contended that, even the appellants themselves do not have title over 21 acres owned by them. According to him since the appellants were handed with their 21 acres they have no any claim of ownership over the remaining land belonging to him. He added that, evidence of PW2 and exhibit P2 confirms that he is the sole owner of piece of land measuring 95.7 acres 6 thus this Court should dismiss this appeal with costs as he was legally declared owner of the dispute land of 95.7 acres. In rejoinder the appellant reiterated their submission in chief while insisting that, the respondent failed to prove ownership of the disputed land hence a prayer for this appeal to be allowed. I have dispassionately considered the rivalry submissions by the parties. I have as well revisited the evidence in record as adduced by both parties. It is settled law that in civil case the standard of proof is on the balance of probabilities meaning that, court is satisfied an event occurred if the court considers that, on the evidence the occurrence of the event was more likely than not. See section 3(2)(b) of the Evidence Act and the cases of Mathias Erasto Manga Vs. M/S Simon Group (T) Limited, Civil Appeal No. 43 of 2013 and Paulina Samson Ndawanya v. Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 (CAT-unreported). And regarding the burden of proof the law is that the same lies on the party who alleges anything in his favor. See sections 110(1) and (2) and 112 of the Evidence Act and the cases of Abdul Karim Haji Vs. Raymond Nchimbi Alois and Another, Civil Appeal No. 99 of 2004 and Berelia Karangirangi Vs. Asteria Nyalwambwa, Civil Appeal No. 237 of 2017 (CAT -Unreported). In Abdul Karim Haji (supra) the Court of Appeal on the burden of proof had the following observation to make: ’’…it is an elementary principle that he who alleges is the one responsible to prove his allegations.’’ 7 In the present matter it was respondent’s claim in his evidence (PW1) that he acquired the disputed land of 95.7 acres from his parents the evidence which was corroborated by her mother (PW3). There is no doubt that ownership of the said land was under customary right of occupancy since the claimed land was alleged to be owned by PW3 and her late husband for a considerable period of time before it was given to PW1. That being the type of right of occupancy it was not mandatory for the disposition to be in the form of documents as the appellants would want to suggest since the said land could be inherited under customary laws. However, there is no proof on the size of the claimed disputed land after expunging the exhibit P2 from the record. While PW1 claims it to be 95.7 acres in which he failed even to describe its boundaries, PW3’s evidence could not as well disentangle parties dispute for not being aware of the size of the disputed land as it is not certain as to whether appellants’ 21 acres already handed to them forms part of the claimed land by the respondent or not. The dispute on the size of the disputed land and its demarcations in my opinion could be resolved by the survey map (exhibit P2) already expunged from the record. In absence of that vital evidence regarding the size and demarcations of the disputed land I find it difficult to pronounce or confirm the trial Tribunal’s decision that it is the respondent who is the legal owner of the disputed land measuring 95.7 acres. Similarly, there is no proof that the said land belongs to the appellants. Under the circumstances for the Tribunal to resolve parties’ dispute conclusively it is 8 imperative to visit the locus in quo so that, the respondent can exhibit to its satisfaction existence of the alleged 95.7 acres and the appellants show the 21 acres already handed to them as in their evidence never mentioned existence of 80 acres which they claimed in their reply to the amended Application filed in the Tribunal on 27/07/2020. I so view as parties are bound by their pleadings and must adduce evidence within their precincts since any evidence adduced outside averments in the pleading goes to no issue and must be disregarded by the court. See the cases of Charles Richard Kombe t/a Building Vs. Evarani Mtungi and 2 Others, Civil Appeal No. 38 of 2012, Astepro Investment Co. Ltd Vs. Jawinga Company Limited, Civil Appeal No. 8 of 2015 (both CAT-unreported) and Yara Tanzania Limited VS. Charles Aloyce Msemwa, Commercial Case No. 5 of 2013 (HC- unreported). As there is no any evidence tendered by respondent giving description of the size and demarcation of the disputed land I partly find merit in the first ground. Next for determination is the second ground as to whether there was justification for the trial chairperson to declare the appellants trespassers in the suit land. It was appellants’ submission that since they have been in peaceful use of 21 acres since 1998, it was wrong for the Tribunal to include the said piece of land in the disputed land. In response the respondent argued that, apart from the said 21 acres which they legally own appellants interfered with his peaceful enjoyment of 95.7 acres hence a prayer for the court to 9 dismiss the appeal. Having considered both parties’ submission I think this issue or ground need not detain this Court much. As already found herein above when determining the first issue, in absence of any evidence on description of boundaries of the 21 acres of piece of land owned by the appellants and 95.7 acres claimed by the respondent that would be established by the Tribunal had it visited the locus in quo, this Court cannot decide with precision as to who owns what hence a finding that, the trial Tribunal was not justified to declare the appellants trespassers into the disputed land in which its demarcation and size is not known. This ground of appeal I am convinced has merit and I so find. Lastly is the third ground in which the appellants’ grievance is that, the trial chairperson in arriving at his decision disregarded appellants’ evidence tendered before the trial tribunal instead based on weak evidence adduced by the respondent. In support of this ground appellants argued so brief in that, the trial tribunal appreciated respondent’s evidence which never proved his claims even on the balance of probabilities as required by the law. In countering appellant’s submission the respondent maintained that, his evidence was heavier than that of appellants hence the Tribunal was justified to declare him a lawful owner of the disputed land. It is true as submitted by the appellants that, the respondent failed to prove his claims over ownership of 95.7 acres more so in absence of exhibit P2 in which the trial Tribunal relied on to satisfy itself that, according to the survey map the demarcations 10 between the 21 acres owned by the appellants and 95.7 acres allegedly owned by the respondent were well established. Since the said exhibit has been expunged from the record then the questions as to whether the claimed 95.7 acres exist and whether the same belong to the respondent separately from the 21 acres owned by the appellants allegedly found within the same piece of land, remain unanswered. As these two questions are unanswered then I associate myself with appellants’ submission that, there was no cogent evidence for the trial Tribunal to rely on to declare the respondent a lawful owner of the suit land. This ground also I find is meritorious. Now with the above findings what is way forward? As alluded to above it is difficult to establish with precision as to who owns what, size and demarcations of each party’s land without any surveyed map or drawn sketch map after visitation of the locus in quo. The only available solution in my humble view is for the trial tribunal to collect more evidence from the parties by visiting the locus in quo and then decide on the matter basing on the adduced or collected evidence thereat as well as the available evidence on record. In view of the above, the trial tribunal’s judgment dated 25/04/2023 is hereby quashed and set aside and its orders thereto. It is hereby ordered that, the case file is remitted to the trial tribunal for visiting the locus in quo and compose a fresh judgment basing on the evidence collected from there plus other evidence available on the record. Since this is an old matter the 11 Court order should be complied with within a short period of time. The appeal is allowed to that extent. I order each party to bear own costs. Order accordingly. Dated at Dodoma this 04th of October, 2024. E. E. KAKOLAKI JUGDE 04/10/2024. Court: The Judgment has been delivered at Dodoma today on 04th day of October, 2024, in the presence of the 2nd Appellant in person, the Respondent in person and Ms. Veradina Matikila, Court clerk and in the absence of the 1st Appellant. Right of appeal explained. E. E. KAKOLAKI JUGDE 04/10/2024. 12