Tauta Lekindeti

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 7414 OF 2024 (Originating from Land Application No. 15 of 2020, District Land and Housing Tribunal for Simanjiro at Orkesumet) TAUTA OLEKINDETI.....................................................................APPELLANT VERSUS GEORGE ELIAS......................................................................... RESPONDENT JUDGMENT 14th August & 10th October, 2024 D. C. KAMUZORA, J. This appeal originates from Land Application No. 15 of 2020 before the District Land and Housing Tribunal for Simanjiro (hereinafter referred to as the trial tribunal). The appellant sued the respondent for recovery of piece of land measuring about 99 acres situated at Ndovu area Okutu village (hereinafter referred to as the suit land). The evidence shows that Okutu village was part of Naberera before it was designated to become a village. The appellant decided to institute a suit against the respondent praying for a declaration that he is the lawful owner of the suit land. This was after he had received a letter stopping him from using the suit land Page 1 of 14 without respondent's permit. He prayed for the respondent to be declared as trespasser to the suit land, an injunction restraining the respondent from entering the suit land, general damages and costs of suit. The respondent filed a written statement of defence in which, he disputed the appellant's claim. After hearing the parties, the trial tribunal dismissed the appellant's claims and declared the respondent as lawful owner of a piece of land measuring about 70 acres. The appellant was aggrieved with the trial tribunal's decision and preferred the instant appeal on four grounds which after a careful scrutiny are reduced into one ground of appeal as follows; That, the learned trial tribunal chairman erred in law and in fact for failure to properly evaluate the evidence on record. When the appeal was called for hearing, Mr. Jeremia Mjema, learned advocate appeared representing the appellant while Mr. Deogratius Njau, learned advocate represented the respondent. The appeal was disposed orally. In his submission in support of the appeal, Mr. Mjema faulted the trial tribunal for failure to properly evaluate the evidence on record. He submitted that, exhibit PI which was tendered by the appellant was found by the trial tribunal to be insufficient for it did not show boundaries of the Page 2 of 14 suit land. That, the appellant clearly stated the boundaries of the disputed land as vividly seen at page 15 of the typed proceedings of the trial tribunal. That, during cross examination the appellant clearly described the marks that are found on the suit land. That, the boundaries of the suit land were also started in Form No. 1 which initiated the application before the trial tribunal. He argued that, it was wrong for the trial tribunal to find that the appellant did not state the boundaries of the disputed land. The appellant's counsel further faulted the trial tribunal for finding that the appellant did not state the size of the trespassed land by the respondent. He referred page 16 of the typed proceedings of the trial tribunal and insisted that the appellant stated the size of the trespassed land as 50 acres when he was cross examined by the counsel for the respondent. He also faulted the trial tribunal for finding that the appellant did not mention the size of the land which was allocated to him. He referred page 15 of the typed proceedings and exhibit PI and insisted that the appellant mentioned the size of the disputed land allocated to him. He added that, it is even not a requirement to state the size of the land in form No 1 which is used to institute disputes before the trial tribunal. That, it was wrong for the trial tribunal to find that the appellant failed to state the size of the land in his application. Page 3 of 14 The learned advocate for the appellant submitted further that since the appellant did not mention the trespassed land, it was wrong for the trial tribunal to declare the respondent a lawful owner of 70 acres of land. He argued that, even in the written statement of defence by the respondent which was filed before the trial tribunal on 26/8/2020, the respondent did not claim ownership of such land. That, the respondent claimed to own the land which is distinct from the land claimed to be trespassed on therefore, it was wrong for the trial tribunal to declare the respondent as lawful owner of the suit land. The learned Advocate for the Appellant also submitted that the finding by the trial tribunal that, the testimony of SM2 one Emanuel Njokolo corroborated the testimony of the respondent and that of SU2 Vicent Abrahamu and SU3 Focas Kipele was wrong. He referred the opinion of one of the assessors that SM2 had no capacity of issuing, approving or allocating land to the appellant. That, the trial chairperson concurred with the opinion of the assessors but yet, found that the testimony of SM2 during cross examination confirmed that he is the one who allocated the land to the respondent. He was of the view that, if SM2 had no authority to allocate land to the appellant he could not have authority to allocate land to the respondent. Page 4 of 14 In addition, the learned advocate faulted the trial tribunal for declaring the respondent as the lawful owner of the suit land. He argued that the respondent alleged that his ownership document was stollen and tendered loss report which was admitted as exhibit DEI. That, during cross examination, the respondent admitted that exhibit D1 did not show that the ownership and application letter of the disputed land were reported to have lost. That, during cross examination, the respondent admitted that the loss report was made on 19/7/2020 and his written statement of defence filed on 26/8/2020 was annexed with the ownership document but he failed to state in his written statement of defence that such document was missing. That, during re-examination, the respondent stated that the ownership document dated 4/5/1994 was not tendered because he applied for land at Nabelela village which shifted him to Okutu village which allocated him the land. The learned advocate for appellant urged this court to reappraise evidence on record and draw its inference and findings of facts. Reference was made to the case of Martha Weja vs AG & another, [1992] TLR 35, Joseph Athanaz vs Makene Musimu, PC, Civil Appeal No. 4 of 2023, page 7-9 (unreported) and NMB vs Chama cha Kutetea Haki na Maslahi ya Walimu Tanzania (CHAKAMWATA), Civil Appeal No. 17 of 2019 (unreported). Page 5 of 14 In reply, Mr. Njau prefaced with the principle in the case of Agatha Mshote Vs. Edson Emmanuel & 10 others, Civil Appeal No 1212 of 2019 Court of Appeal of Tanzania at Dar es Salaam (unreported) in which it was observed that, the first appellate court is vested with powers to re­ evaluate evidence and come to its own decision. He contended that, the trial tribunal properly analysed the evidence on record and reached to a proper and just decision. He submitted that, before the trial tribunal, two issues were raised; who is lawful owner of the suit land and reliefs entitled to the parties. That, exhibit PI which was tendered by the appellant had discrepancies for it did not show the boundaries of the land allocated to him or the name of the person who issued the letter. That, even the appellant admitted at page 16 of the proceedings that exhibit PI did not show the boundaries. That, the document was signed by Wiliam Njokolo but he contradicted himself during cross examination for he claimed that he did not know the person who signed exhibit PI. He therefore argued that, the finding by the trial tribunal that exhibit PI did not prove ownership was properly made. In relation to the size of the land, the respondent's counsel submitted that, the appellant claimed that only 50 acres were trespassed but during re-examination he said that he was allocated 99 acres of land thus, the trial tribunal was correct to hold that the size of disputed land Page 6 of 14 was not proved. That, even in his application form, the size of the land was not mentioned, although it was not among the issues framed by the trial tribunal. That, the concentration was on the ownership and the trial tribunal was correct to refer the size of the land as not proved. He added that, the respondent when testifying before the trial tribunal he claimed to be the owner of 70 acres of land. That, the respondent's evidence was corroborated by Vicent Said (SU2) and SU3 who proved that the respondent was allocated 70 acres by the allocating team. On the argument that the appellant gave the location of the suit land in Form No 1, Mr. Njau submitted that, in the said form, the appellant stated the people bordered to the suit land but that contradicts the evidence of the appellant at page 15 of the proceedings. On the argument over corroboration of evidence of SM2 and SU2 and SU3, he submitted that, the trial tribunal was proper to say that SU2 and SU3 corroborated the evidence of the respondent because, at page 19 of the proceedings, SM2 told the trial tribunal that he was the one who approved the allocation to the respondent and the document for allocation thus, corroborated the evidence by the respondent that he was allocated land by Okutu Village. As to the issue over exhibit DI, the respondent's counsel submitted that, the trial tribunal did not refer exhibit Dl in its decision as the said exhibit was intended to prove that the ownership document got lost. He Page 7 of 14 insisted that, it was the duty of the applicant to prove his case as per the case of Agatha Mshote (supra) page 18 but the appellant never proved his case on balance of probabilities, a standard required in civil cases. He argued that, appellant failed to parade Parikimaro Lekindeki, a person he alleged to be with him at the time they were allocated the land. That, none of the members of the allocating committee appeared to testify. He thus urged this court to consider the respondent's testimony and the evidence of SM2 and make a finding that the appellant never proved his case and the appeal be dismissed with costs. In rejoinder, Mr. Mjema essentially reiterated his submission in chief and maintained that the appellant stated the size of the suit land which was trespassed. That, at page 17 of the typed proceedings of the trial tribunal the appellant mentioned the size of the land which he was allocated. Before I venture into the determination of this appeal, I would like to point out my observation from the trial tribunal's record. On 07/12/2021, the counsel for the respondent Mr. Mwiru Aman lodged a notice of preliminary objection with two points of objection that the applicant had no cause of action against the respondent and that there was non-joinder of parties. Unfortunately, the said points of objection were never determined by the trial tribunal. Going through the records, Page 8 of 14 both parties were represented by advocates and after the notice of preliminary objection was filed before the trial tribunal, counsel for both parties appeared before the tribunal chairman and proposed to continue with hearing of witnesses. The advocate who raised the objections never moved the trial tribunal to determined them and it proceeded with hearing of the evidence. Since the records are clear that the advocate who raised the objections appeared in court and agreed to continue with hearing and was silent over the objections he had raised, his silent raises an assumption that he opted to abandon the preliminary objections. This conclusion is made in considering that this issue was not even brought at appeal stage by either of the parties. This court found it necessary to address it to put the records clear. Turning to the determination of an appeal, I have gone through the parties' rival submissions and the record of the trial tribunal. The sole issue for determination is whether the trial tribunal properly analyzed the evidence on record which is the appellant's major complaint in the grounds of appeal. In his judgment the learned tribunal chairperson observed that the appellant failed to prove his claims because exhibit PI does not indicate the boundaries of the suit land. He further pointed out that the appellant did not explain the size of the land which the respondent trespassed. The Page 9 of 14 learned trial chairperson was satisfied that the respondent proved that he was allocated land measuring about 70 acres in 1994. He observed that the respondent's evidence that he was allocated 70 acres of land was supported by SU2 who was Okutu village chairman and SU3 who was the secretary to the land allocation committee. As aptly submitted by both learned advocates for the parties, in view of the authorities referred by the counsel for the parties, this court being the first appellate court and being guided by the decision of the Court of Appeal in Agatha Mshote (supra), I will re-consider and re-evaluate the evidence on record and where necessary, make findings on evidence. The appellant herein was claimant before the trial tribunal thus, I have carefully gone through the record to see if he established his claims on balance of probabilities as required by the law. In the application form which was filed before the trial tribunal, the size of the suit land was not stated. In his submission, the learned advocate for the appellant argued that it is not the requirement to state the size of the suit land in the application form. With due respect, I do not agree with the contention by the appellant's counsel. The size of the suit land is essential to be pleaded to enable the tribunal or court to make proper assessment of evidence and award executable decree. The said form essentially serves as plaint thus, if the appellant sought for Page 10 of 14 declaratory order that he be declared as a lawful owner of the suit land, it becomes necessary for the pleadings to specify the size and location of the suit. It is on record that the size of the suit land was neither mentioned in the application form nor stated by the appellant's in his evidence in chief but when he was being re-examined, he stated that he was allocated 99 acres of land. At this stage even the respondent's counsel could not have room to cross examine on the 99 acres of land. Similarly, in the application form, the appellant did not state size of the land allegedly trespassed into by the respondent but when he was being cross- examined, he stated that the respondent trespassed into 50 acres of land. From the above observation, it is without doubt that the pleadings before the trial tribunal were silent on the size of the suit land hence, did not disclose sufficiently necessary information regarding the appellant's claims. While the law requires parties to be bound by their pleadings, the evidence by the parties went beyond the pleaded facts. See, the court of appeal decision in case of Masaka Mussa Vs. Rogers Andrew Lumenyela & 2 others, Civil Appeal No. 497 of 2021 (2023) TZCA, 17339 which was cited by the trial tribunal. In his submission Mr. Mjema vehemently argued that the size of the land was mentioned in exhibit PI. I have gone through the said exhibit Page 11 of 14 and the same indicates that the appellant was allocated land measuring about 99 acres but does not show the size of the land allegedly trespassed into by the respondent. The said exhibit also does not show the boundaries of the land which was allocated to the appellant. In the application form, the appellant mentioned the boundaries of the suit land as; North- Gideon, South-Saruni Lekindeti, West-road and East-cattle path (pario). However, in his testimony, the appellant pointed out different boundaries as follows; North-road, South-appellant's residence (boma), East- cattle path (pario) and West- Frank and Mama Nyangusi. Therefore, while exhibit PI does not show the boundaries of the suit land, the evidence of PW1 regarding the boundaries contradict the boundaries described in the application form. With the above observation, I agree with the trial tribunal that the appellant failed to prove the size of the suit land and in addition, he also failed to prove the location of the suit land. I am satisfied that the appellant did not prove his claim for there was no clear description of the size and boundaries of the suit land therefore, the trial tribunal correctly arrived to that conclusion. However, the trial tribunal erred by declaring the respondent as lawful owner of the suit land measuring 70 acres. The reasons for stating so are; one, while the respondent claimed to own land measuring 70 acres, his written statement of defence contains no claim for 70 acres of Page 12 of 14 land rather, a general denial of the appellant's claim. The 70 acres claim was raised when the respondent was testifying before the trial tribunal. Two, the testimony by the appellant's witness (SM2) shows that both the appellant and the respondent were allocated land by the village. He claimed to be responsible in signing exhibit PI allocating the appellant 99 acres of land but he sent the land committee to show the land allocated to the respondent. SM2 claimed not to remember the size of the land allocated to the respondent but claimed that the respondent's land was separate from the land claimed by the appellant and bordered with Artashasta. In his testimony, the respondent claimed to own 70 acres of land located at Olkripore hamlet, Ndovu Okutu village. He mentioned the boundaries as; East- David Mayala, West: Artashasta Losioki, South- Saruni and North-Road to Landanai. His allocation evidence was suppoted by SU1 and SU2 who also challenged SM2 mandate in signing exhibit PI. Upon comparing the evidence on the boundaries mentioned by the appellant with the boundaries mentioned by the respondent and his witnesses, I find that the evidence by SM2 that the land claimed by the appellant is separate from the land described by the respondent, sound credible. Therefore, there was no basis upon which the trial tribunal could have declared the respondent as lawful owner of the land measuring 70 acres while there was contradiction on the size and boundaries of the Page 13 of 14 disputed land. Had the trial tribunal considered such evidence, it could not have made a declaration over ownership in favour of the respondent and a declaration that the appellant was a trespasser without first determining the size and boundaries or location of the land in dispute. Besides, there was no claim of 70 acres that was raised by the respondent in his written statement of defence either by way of counter claim or in form of reliefs sought by the respondent. Therefore, the order awarding 70 acres was not supported by the pleadings and did not relate to the claim raised in the pleadings by the parties. Basing on the above discussion, I find that, while the trial tribunal was correct to conclude that the appellant did not prove his claim, it erred in making ownership and trespass declaration in favour of the respondent who had not pleaded such prayer in his pleadings. I therefore proceed to quash the holding of the trial tribunal declaring the respondent as lawful owner of land measuring 70 acres in the matter at hand. The appeal is therefore partly allowed and partly dismissed to the extent shown above. In the circumstance, I will not make order as to costs. DATED at BABATI this 10th Day of October, 2024. Page 14 of 14 i