ISLAMIC CENTRE VS ISLAMIC PROPAGATION CENTRE Draft Judgment

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO 9373 OF 2024 (Arising from the District Land and Housing Tribunal at Singida in the Land Application No. 86 of 2019). BETWEEN THE REGISTRED TRUSTEES OF ISLAMIC CENTRE ………………….... APPELLANT VERSUS THE REGISTERED TRUSTEES OF ISLAMIC PROPAGATION CENTRE……………………..………………………1ST RESPONDENT VIETTEL TANZANIA PUBLIC LIMITED COMPANY………………………………………..………..2ND RESPONDENT JUDGMENT Date of last order: 12/12/ 2024 Date of Judgment: 13/02/ 2025 LONGOPA, J.: The appellant and respondent were parties to the land dispute in the District Land and Housing Tribunal for Singida where the first respondent claimed for trespass to land against the appellant and second respondent. The 1st respondent claimed to be the rightful owner of the disputed land at Malolo village in Mtinko Ward within Singida Region. It was claimed that the appellant without any claim of right entered into lease agreement with 1|Page the 2nd respondent who erected a telecommunication tower. On the other hand, the appellant claimed to be rightful owner of the disputed land as got the same through allocation by the Malolo Village authority in 1990 and entered into lease agreement with 2nd respondent as it was the lawful and rightful owner of the land in question. The 1st respondent called a total of six witnesses while the appellant had two witnesses in order to establish their respective cases. On 30th January 2024, the trial Tribunal entered judgment and decree in favour of the 1st respondent to the extent that the application had merits; the applicant(1st respondent) was declared to be the lawful owner of the land in dispute; the lease agreement between the appellant and 2nd respondent was null and void; the appellant ordered to pay all the rent he received from the 2nd respondent from 2014 to date of judgment; the 2nd respondent was restrained not to pay the rent to appellant but it should pay to the applicant/ 1st respondent; and the appellant was condemned to pay costs to the 1st respondent herein. 2|Page Such judgment and decree aggrieved the appellant and on 22nd April 2024, the appellant preferred this appeal against the whole of the decision namely judgment and decree of the District Land and Housing Tribunal on the following grounds, namely: 1. That the trial Tribunal Chairperson erred in law and in fact by adjudicating base on weak and contradictory evidence adduced by 1st respondent. 2. That the trial Tribunal erred in law and in fact by deciding in favour of the 1st respondent basing on the disputed land being acquired through Ramadhan Mussa and Omary Said while they were acting as the principal officer of the appellant. 3. That the trial Chairperson erred in law and fact by entering judgment in favor of the 1st respondent while burying the testimonies of both SM5 (the Village Chairman from 1987 to 1999) and SU 2 who testified that the agents were from Islamic Center and not Islamic Propagation Center and they both prove the 3|Page non-existence of the 1st respondent during the acquisition of the plot in issue. 4. That the trial Chairperson erred in law and in fact by disregard the claim of loss of 1990 minutes by the 1st respondent while the same is in the possession of the appellant which allocated the land in issue to the appellant. 5. That the trial Chairperson erred in law and in fact to not inquire on the issue of the size of land in issue as the 1st respondent claimed to be 12 acres while the appellant testified on the same being of 8 acres (5 acres from Malolo village authority and 3 acres as waqfu) 6. That the trial Chairperson erred in law and in fact by ignoring the fact that the 1st respondent did not testify on what happened on the suit land from 1990 to 2014 as they claimed to be lawful owner of the suit to which the appellant herein did testify on the development made from the suit land since 1990 to date. 4|Page 7. That there are serious illegalities on trial proceedings. On 14th November 2024 by consent of the parties, this matter was agreed to be disposed of through written submissions. The appellant enjoyed the legal services of Mr. Peter Ndimbo, learned advocate while the respondent enjoyed the legal services of Luca Komba, learned advocate. Both parties complied to the scheduling order on submission as the submissions in Chief were filed on 28th November 2024, Reply Submissions on 13th December 2024 and the Rejoinder filed on 20th December 2024. It was the appellant’s submission that the trial Tribunal Chairperson erred in law and fact by adjudicating base on weak and contradictory evidence adduced by 1st Respondent. The record of the trial Tribunal in the respect 1st respondent’s evidence reveals difference in the year the suit land was obtained, who was involved, from which trustee, size of the suit land, nor proof of the allocation from 1990’s rather than the series of event took place after the lease agreement between Appellant and 2nd Respondent. 5|Page It was argued that testimonies of SM1, SM2, SM3 and SM4 are weak and contradictory as SM3 the one who claimed to have applied for the suit land with one Abdurahim Ramadhani Mussa said the same was 1997 while the entire claim is on 1990. These witnesses’ testimonies are nothing more than hearsay as there is no corroboration between and SM5 the Village Chairman from 1987 to 1999 the one who allocated the suit land despite of him be the key witness in the suit at hand. On the second ground that trial tribunal erred in law and fact for deciding in favor of the 1st Respondent basing on the disputed land being acquired through Ramadhan Mussa and Omary Saidi acting as the principal officer of the appellant, appellant submitted that this is very clear based on the testimonies of SM5 Idd Mussa as the former Village Chairman from 1987 to 1999 the one who was allocated the suit land to the afore mentioned. According to the appellant, SM 5 testified that both Ramadhan Mussa and Omary Saidi were from Islamic Centre. 6|Page Indeed, this testimony was corroborated by the testimonies of SU1 who testified that Ramadhan Mussa and Omary Saidi were leaders in Islamic Centre from 1988 to 2000 after being removed by the members through the vote of no confidence as they embezzled the trustee properties then they shifted to 1st respondent and decide to hand over the suit land while the same is property of the appellant. It was argued that if the ones allocated the suit land in 1990 was under the appellant’s supervision and not 1st respondent, how the suit land was awarded to 1st respondent who was not in the picture at that time? The third ground is that trial Tribunal’s Chairperson erred in law and fact by entering judgement in favor of the 1st respondent while burying the testimonies of both SM5 the village chairman from 1987 to 1999 and SU2 who testified that the agents were from Islamic Centre and not Islamic Propagation Centre and they both prove the non-existence of the 1st respondent during the acquisition of the land. The appellant argued that SM5 admitted that the suit land was requested by the agents of the appellant and the one who was allocated the suit land was the appellant and not 1st respondent. 7|Page According to the appellant, the testimony of SM 5 was corroborated by the appellant witness SU1, when further cross examined SM5 testified that he do not know the 1st respondent then or now rather than the village authority allocated 12 acres to the appellant the suit has the 2nd respondent’s communication tower. The appellant argued that in the entire case of 1st respondent before the trial Tribunal there was no evidence more probable and heavier than that of SM5 as the one allocated the suit land but the same was disregarded without adducing any reason. In respect of the fourth ground of appeal it was argued that though 1st respondent stated that allocation was substantiated by Minutes of 1990 and those of 1997 nothing was produced to prove either of them the fact which was disregarded by the trial Tribunal because 1990 minute is in possession of the appellant and was duly attached in the appellant pleadings in the trial Tribunal’s application. It was improper for the Tribunal to determine the matter in favour of the 1st respondent relying on hearsay and contradicting evidence. The suit land was requested to be allocated by Ibrahim Mussa and Omary Saidi or Ramadhan Mussa and Omary Saidi on behalf of the appellant, thus it was improbable testimonies of PW 2 as 8|Page Malolo Village Chairman from 2015 to 2019 to have knowledge of what happened in 1990. According to the appellant, there was no inquiry made to prove the loss of 1990 minutes while the same minutes was challenged to be admitted before the trial tribunal base on not certified by the authority which possess the original as the records indicate. It was appellant’s averment that the authority which is claimed to be in possession of the original document issued new minutes, not a copy of 1990 because the 1st respondent allegedly lost its copy, and the new minutes was issued based on assertions by Ibrahim Musa and Omary Saidi are currently under 1st respondent and not when they were with the appellant the time the land was allocated. Further, the appellant challenged the decision through the fifth ground by attacking failure by the trial Tribunal’s Chairperson to inquire on size of the land in issue as the 1st respondent claimed to be 12 acres while the appellant testified on the same being of 8 acres (5 acres from Malolo village authority and 3 acres as wakf). The 1st respondent evidence is so 9|Page contradictory. One, PW 1 stated that the suit land was 10 acres from Malolo Village plus 2 acres as wakf from Saidi Ngoi. Two, PW 2 stated that land said the suit land is of 4.8 hectors which is approximately 10 acres. Three, PW 3 stated that land is 8 acres from Malolo village plus 2 acres from Saidi Ngoi. Four, PW 4 said the land was 12 acres from Malolo village plus 2 acres from Saidi Ngoi. Five, PW 5 testified that land is 12 acres allocated by the village. Six, the appellant story was that the suit land has 5 acres from the village authority plus 3 acres from wakf of Saidi Ngoi. It was submitted that despite all this contradiction the trial tribunal did not inquire as to the size of the suit land or draw inference as to who may be more probable on the size of the suit land and why the trial Tribunal acted on it. The trial Tribunal adjudicated in favor of the 1st respondent with neither proof of size of the suit land nor proof of the said wakf and who was given to. The appellant challenged the failure by the trial Tribunal Chairperson to ignore the fact that the 1st respondent did not testify on what happened on the suit land from 1990 to 2014 as they claimed to be lawful owner of 10 | P a g e the suit. On the other hand, the appellant testified on the development made from the suit land since 1990 todate. PW 2 testified that there were people who leased the land from the 1st respondent for cultivating but neither of those was called. Silence on what happened on the disputed land for all those years from 1990 to 2014 implicitly indicates that it was not the 1st respondent’s land. That was the submission in the sixth ground. On the last ground on illegalities, the appellant argued that there are serious illegalities on trial proceeding minutes of 26th May 1990 from Malolo village which allocated the suit land to the appellant and as material evidence to prove the allocation was made to the appellant and not the respondent with his perjuring was not admitted while met all the procedure requirement as provided by Section 85(1) of the Evidence Act [CAP 6 R.E 2022] which stated that: “Every public officer having the custody of a public document which any person has a right to inspect shall give that person, on demand, a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of the copy that it is a true copy of that 11 | P a g e document or part thereof, as the case may be, and such certificate shall be dated and subscribed by the officer with his name and official title, and shall be sealed if the officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies.” It was submitted that the said minutes was duly certified by the State Attorney of Singida District Council who presides villages to include Malolo village at Ilongero with the written certification that the minutes certified as true copy of original on 12th July 2023 which is done after the payment made to be furnished with the said copy which was illegally not admitted despite being relevant to the case, tendered by competent person, valid document and abide by the provisions of the afore cited section. The trial Tribunal misinterpreted section 85(1) of the Evidence Act (supra) and proceed to not admit the material evidence of the case illegally as the same minutes was deemed to be lost by the respondent but strangely enough the trial Tribunal despite the refusal for admitting the same did not draw any inference to the Respondent claim of the minutes 12 | P a g e being lost and the minutes allocated the suit land to the Respondent the fact which is a total lie. It was the appellant’s submission that justice should not only be done, but seen to be done appellant seek this Court interference to honor this noble maxim as it is vivid clear that the rule of law and sole purpose of the court to dispense justice was ignored as the result the trial tribunal reached the decision with series of illegalities analyzed above but also the reason behind the decision is erroneous and weak to stand as the Court judgement. It was the appellant’s prayer that this appeal is meritorious and should be allowed by this court with costs and set aside the judgement and decree of the District Land and Housing Tribunal for Singida. On the other hand, the 1st respondent argued that first and foremost that trial Tribunal delivered its judgment in favour of the 1st respondent upon considering the evidence tendered before it which proved on balance of probability that the land in dispute was allocated to the 1st respondent herein in 1990. According to 1st respondent, the appellant’s submission that the learned trial Tribunal’s Chairperson gave judgment basing on the 13 | P a g e quantity and not quality of evidence is highly denied. It is the trite law that parties to the suit cannot tie but it is the one whose evidence is heavier than the other who is likely to win as per decision in Hemed Said vs Mohamed Mbilu (1984) TLR. 113 (HC). It was reiterated by 1st respondent that evidence tendered from the 1st respondent's side proved on balance of probability that it is the 1st respondent who was allocated 10 acres by Malolo Village Council and 2 acres were given to her as wakf by said Ngoi giving a total of 12 acres and not 8 acres as being alleged by the appellant. Furthermore, 1st respondent stated that the judgment of trial Tribunal was not based on weak and contradictory evidence as alleged by the appellant. It was argued that the evidence of 1st respondent's witnesses was clear as sky less cloud that it was the 1st respondent who was allocated the suit land in 1990 through its leaders. It was argued that such evidence was also corroborated by SM 5 who was the Village Chairman of Malolo village by then and the evidence was clear and straight and not a hearsay as being alleged by the appellant herein. It was noted that the 14 | P a g e appellant also speaks the story of being allocated the suit land in 1990 hence there is no dispute that the suit land was allocated to the 1st respondent in 1990. According to 1st respondent, it is undisputed fact that the land in dispute was allocated to the respondent through their leaders’ SM 3 and SM 4 who were leaders of both parties herein by then. This evidence can be gathered from the evidence tendered by them at page 64 and 67 of the proceedings of the trial tribunal. In their testimony SM 3 and SM 4 did not say that they were principal officers of the appellant but they said that they were leaders of the appellant and the 1st respondent herein. The appellant applied for land comprising of 40 acres located at Ginnery area within Singida Municipality while the land in dispute at Malolo was located to the 1st respondent. The allegation that the said leaders were removed by members for vote of no confidence and upon being removed they shifted to the 1st respondent's side is just a mere allegation of SU 1 as the same has not been proved and there is no evidence corroborating the allegation and even if they shifted to the respondent still they could not transfer the suit land to her (Respondent) if real the said land was allocated to the 15 | P a g e appellant as they could not do so basing in the fact that the land was not allocated to them as their personal proper hence it is clear and undisputed fact that the land was allocated to the 1st respondent herein. With regard to the appellant's submission that the evidence of SM 5 testified that the land comprising of 12 acres was allocated to the appellant is highly disputed by the 1st respondent. The respondent submitted that SM 5’s evidence cannot corroborate the appellant's evidence who said that disputed land was 8 acres. The 1st respondent re-emphasized that it is clear that the land alleged to be allocated to appellant appears to be different from the land in dispute allocated to the 1st respondent. Regarding the loss of the minutes of the meeting issued to the respondent in 1990 and subsequent minutes issued in 1997, first it must be noted that the said minutes were sent to Singida District Council land office for purpose of surveying the suit land as the 1st respondent prayed the land to be surveyed so that they could be issued with title deed. However, according to the 1st respondent, the minutes were misplaced by the said authority which led to them to apply to be re-issued with the said minutes at Malolo Village Council the prayer which was 16 | P a g e granted by the said village Council and the minutes issued to the respondent cannot be said that its original is being possessed by the appellant as the size of land in the said minutes are quite different. If that is the case how can the appellant be heard saying that they have the original minutes of the meeting issued to the 1st respondent herein? The minutes of the 1st respondent comprises of 10 acres while that of the appellant comprises of 5 acres, these are two different minutes of the village meeting Council on allocation of the suit land. Worse still, both sets of minutes were not admitted as exhibits at the trial Tribunal hence the appellant's complaint on documents which were not part to the proceedings at the trial court as they were rejected to be admitted as evidence/exhibits is baseless. That being the position the trial Tribunal based her judgment on the oral evidence tendered by the parties before it which is as good as documentary evidence. With regard to the size of the suit land, it was submitted that there was clear that evidence tendered from 1st respondent's side proved on balance of probability the suit land to comprise of 12 acres, 10 acres being 17 | P a g e allocated by the Village Council of Malolo and 2 acres being given to the respondent by one said Ngoi as wakf. Moreover, on appellant’s complaint for refusal to admit minutes has nothing meritorious in nature. The trial Tribunal lucidly and categorically stated the reasons for refusal to admit the same. The certifying officer was not present by then where the said land is said to be allocated to the appellant and he did not saw the original one before certifying the said minutes and did not say where the original was. Moreover, the appellant's witnesses did not say why they tendered certified copy instead of tendering original one. In such circumstances the trial Tribunal Chairperson was right to reject its admission as evidence/exhibit at the trial Tribunal. In winding up the submission, it was reiterated that 1st respondent joins hand with the appellant's conclusion in her submission that justice should not only be done but seen to be done and according to evidence in record. In the 1st respondent’s view, the case of the 1st respondent was proved her case on balance of probability entitling her to be declared the lawful owner of the suit land. That being the position, it is the humble 18 | P a g e submission of the 1st respondent that this appeal be dismissed with costs as the same has no merit and the judgment and decree of the trial tribunal be upheld. This court is enjoined to determine the merits or otherwise of the appeal dispassionately. To achieve such goal, it is pertinent to consider the submissions, pleadings of the parties, the evidence on record, applicable legal principles of statutory nature and those of judicial precedents in order to be able to properly and finally determine the appeal. The first and foremost aspect is that this court is the first appellate court with all powers and mandate of the trial Tribunal’s powers. This court as the first appellate court is empowered to re-evaluate the evidence on record and come up with its own independent finding. In the case of Agatha Mshote vs Edson Emmanuel & Others (Civil Appeal No. 121 of 2019) [2021] TZCA 323 (20 July 2021) (TANZLII), at page 19, the Court of Appeal of Tanzania stated that: 19 | P a g e In terms of Rule 36 (1) (a) of the Tanzania Court of Appeal Rules, 2009, being the first appellate court in this matter, we shall re-consider and re-evaluate the trial evidence and if warranted, draw our own conclusions on the facts, subject to there being no evidence to support a particular conclusion; or if it is established that the trial Judge failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong (Emphasis added). Summary of evidence on record is as follows: SM 1 (PW 1), one Shaban Hussein Senge stated that the Registered Trustees of the Islamic Propagation Centre is the rightful owner of the land in dispute. It applied for allocation of land from Malolo Village in 1990 and they were allocated 10 acres while Saidi Ngoi donated 2 acres as Wakf property. The Registered Trustees of Islamic Propagation Centre were availed with a Letter of Allocation from the village and in 1995 the Islamic Propagation Centre requested the District Land Office to survey the land. The District 20 | P a g e Development Officer required the Islamic Propagation Centre to submit the Minutes of the Village Authority to allocate land. According to PW 1, nothing happened until 2014 when the Islamic Propagation Centre found that 2nd respondent had constructed a communication tower on the land. The Islamic Propagation Centre inquired from the Village but later learnt that it was the Islamic Centre who had leased the land to 2nd respondent. Further, PW 1 averred that the original minutes regarding the Malolo Village decision to allocate land was in the office District Land Officer and they had requested for the same evidenced vide letters from the District Executive Director dated 23rd April 2023 and 5th June 2023 which were collectively admitted and marked as Exhibit P. 1. In cross-examination, PW 1 stated that he became Secretary of the Islamic Propagation Centre in 2012 but he is unaware of number of persons who held that position before he became one. SM 2 (PW 2), Haji Abrahamani Hongoa stated to have been the Village Chairman of Malolo Village from 2015 to 2019. PW 2 only knew 21 | P a g e about the dispute in 2016 when the Islamic Propagation Centre complained to the Village authority whereby both appellant and 1st respondent appeared at Malolo Village Office, produced similar documents save for heading. The former Village Chairman stated that applicants for land allocation were Ibrahim Mussa and Omari Saidi Wawa. In cross examination, PW 2 stated that the application for allocation of land from the Malolo Village was made on behalf of the Islamic Propagation Centre. SM 3 (PW 3), Omary Saidi Wawa testified that he arrived in Singida in 1987 where he was a leader of Islamic Centre as he was accommodated there. Islamic Propagation Centre requested for them to look for land and he went with Abdulrahim Ramadhani Mussa who was the Chairman of Islamic Propagation Centre to Malolo Village to request for allocation of land. The Village Chairman was Iddi Mussa Kiteu. A total of 8 acres of land was allocated. PW 3 stated that Islamic Propagation Centre in 1995 applied for the land to be surveyed and they had a survey map but the same was not approved by the Ministry for Lands. In cross examination, PW 3 stated that he was a Secretary of both Islamic Propagation Centre and Islamic Centre since 1984 to 1997. He reiterated that they conduct their prayers at 22 | P a g e Islamic Centre Mosque at Mtinko and it was agreed orally that Islamic Centre should build the classes before the communication tower was installed. SM 4 (PW 4), Abdulrahim Ramadhani Mussa stated that he was a Chairman of Islamic Propagation Centre from 1988 to 2010 and that in 1990 they applied to Malolo village for allocation of land whereby the Village allocated 12 acres of land. In cross examination, PW 4 admitted that in 1990, Omari Saidi Wawa was Secretary of the Islamic Centre and it is the Islamic Centre that built the two classrooms between 1997/1998. SM 5 (PW 5), Iddi Mussa stated that in 1990 one Ramadhani Mussa and Omari Saidi from Islamic Centre Mosque Mtinko applied the land for building a school from the Village authority. PW 5 stated that he was the Village Chairman at the time of application and allocation of land as he served between 1987 to 1999. In cross-examination, PW 5 reiterated that applicants were from Islamic Centre Mosque and they were allocated 12 acres of land. PW 5 denied to have known the institution called Islamic Propagation Centre. 23 | P a g e SM 6 (PW 6), Ally Selemani Nkungu testified that in 2016 he was a member of the Village Council and Acting Village Executive Officer when leaders of Islamic Propagation Centre requested for certification/ issuance of new Minutes for allowing them to survey the disputed land. According to PW 6, he is not aware the owner of the school building that is on disputed land but he knows existence of Islamic Centre Mosque at Mtinko. SU 1 (DW 1), Ahmed Shaban stated that the disputed land is in Malolo Village and it was allocated to the Islamic Centre by the Malolo Village on 26th May 1990. It was DW 1’s testimony that before being allocated by the Village Council already they got some 3 acres from Saidi Ngoi as wakf property. DW 1 reiterated that in 2012, they made bricks, constructed a building for two classrooms and an office and in 2014 the Islamic Centre entered into lease agreement with Viettel Tanzania for installation of the communication tower. The agreement was signed by Idd Labia, the Islamic Centre Mosque Imam and tendered as Exhibit D 1. It was stated that the 1st respondent was present when this agreement (Exhibit D1) was entered. According to DW 1, in 1990 Islamic Centre was 24 | P a g e one institution whereby Ramadhani Mussa and Omari Saidi were the Imam and Secretary of the Islamic Centre Mosque before they were stripped off the leadership positions in 2000. They duo were Islamic Centre leaders from 1987/1988 to 2000 and it was upon being removed from the Mosque leadership when they joined another institution. It was DW 1‘s evidence that surprisingly, the duo wishes to take away ownership of the land and emphasized that the Village Chairperson testified that land belonged to Islamic Centre. In cross-examination, DW 1 stated that Islamic Centre entered into agreement with Viettel Tanzania in 2014 and that land was allocated to them Islamic Centre in 1990. SU 2 (DW 2), Selemani Nhenwa testified that he is a Member of the Board of Trustees of Islamic Centre and he knows Ramadhani Mussa who was Imam of the Islamic Centre Mosque while Omari Saidi Wawa was the Secretary of the Mosque until 2000. DW 2 stated that the land was allocated to Islamic Centre in 1990 and in 2012 the applicant constructed uncompleted two classrooms and an office and in 2014 entered into lease agreement for Viettel Tanzania to install the communication tower. DW 2 stated further that when the former Village Chairman was asked as to 25 | P a g e whom the land was allocated, his response was that it was Islamic Centre Mosque that was given the land. To ably determine this matter, it is pertinent to reiterate the principles guiding the standard and burden of proof. First, the standard of proof is that of balance of probabilities. Second, it is the duty of a person who alleges to prove the case. Third, the court always sustain evidence of the party which is weightier than the evidence of the other party. In the case of Jasson Samson Rweikiza vs Novatus Rwechungura Nkwama (Civil Appeal 305 of 2020) [2021] TZCA 699 (29 November 2021) (TANZLII), at pages 12-13, the Court of Appeal of Tanzania stated that: It is a cherished principle of law that, generally, in civil proceedings, the burden of proof lies on the party who alleges anything in his favour. We are fortified in our view by the provisions of sections 110 and 111 of the Evidence Act. It is also common knowledge that in civil proceedings, including matrimonial causes and matters, the party with legal burden also bears the evidential burden and the 26 | P a g e standard in each case is on the balance of probabilities. See, for example Godfrey Sayi v. Anna Siame as Legal Personal Representative of the late Marry Mndolwa, Civil Appeal No. 114 of 2012 (unreported). This is also provided for under section 3 (2) (b) of the Evidence Act. This means that the court will sustain such evidence which is more credible than the other on a particular fact to be proved. The evidence of the parties was supposed to be weighed to find out which of the parties’ evidence is stronger, consistent and weightier than the other. As the 1st respondent is the one who initiated the application claiming ownership of the disputed land, in principle he was obliged to prove the case to be entitled to the judgment and decree of the court. It should be reiterated that weightier of the evidence does not depend on the number of witnesses rather consistency and credibility of the evidence on record. 27 | P a g e The principle on a number of witnesses was categorically reiterated in the case of Equity Bank Tanzania Limited and Another vs Nas Hauliers Limited and 10 Others (Civil Appeal No. 382 of 2023) [2024] TZCA 959 (2 October 2024) (TANZLII), at page 35, the Court noted that: Even if assuming that PW1 said the foreign loan was not issued, while mindful of the rule that it is not the number of witnesses required to prove a fact in issue under section 143 of the Evidence Act, Cap 6, we think, his evidence considering that he has an interest to serve, could not override the testimonies of DW1, DW2, DW3, DW4, DW5 and DW6 to the effect that the loan was, indeed, disbursed by NUMORA to the 1st respondent's escrow account held with Equity Bank Kenya. This Court in KCB Bank Tanzania Limited vs Sunlon General Building Constructors Ltd & Others (Commercial Case 73 of 2013) [2016] TZHCComD 2024 (18 February 2016) (TANZLII), at page 12, the 28 | P a g e High Court (Commercial Division) (Hon. Mwambegele, J as he then was) stated that: At the outset though, I wish to point out the fact that always in evidence, it is not the number of witnesses that counts, but the weight and credence thereof. In the instant appeal, there were a total of six witnesses called by the first respondent while the appellant had rallied two witnesses. Having perused thoroughly the evidence on record as summed up in this judgment, common theme for both appellant and 1st respondent is that: First, the land originated from allocation by the Village Council/authority in 1990. Second, some part of the land was given as a wakf property from one Saidi Ngoi. Third, the Village Chairman who participated in the allocation of land is present and testified as PW 5. Fourth, neither the appellant nor the 1st respondent produced any documentary evidence relating to the allocation of the land by the Village Council. Sixth, two persons who participated in the application for the land in question from the Village Council were acting for the appellant and respondent 29 | P a g e simultaneously as they were the Imam and Secretary of the Islamic Centre Mosque in 1990 until 2000 when they were removed from that position. In fact, there is nothing other than oral testimonies to cement the position of either party to ownership of the land in question. Out of the 6 witnesses of the first respondent, evidence of PW 2 and PW 6 is a post script evidence. They only knew about that land being allocated by the Village from lamentation of the 1st respondent in 2016 after the appellant had entered into lease agreement with 2nd respondent to use part of the land to install a communication tower. Neither of PW 2 and PW 6 was there when the allocation of land was done nor produced any document found in the office stating to have been left by previous leadership on the matter. In the considered view of this court PW 2 and PW 6 has nothing tangible rather than hearsay. The testimonies of PW 2 and PW 6 has nothing of credence to support case of the either side. In fact, evidence of PW 5 has watered down evidence of PW 2 that former Chairman informed them that land belonged to 1st appellant institution. PW 5 on affirmation denied to have known the 1st respondent institution but knew PW 3 and PW 4 to 30 | P a g e have applied the land from appellant’s mosque. That is the evidence on record. The only divergence between the parties is on who is the actual owner of the disputed land. The 1st respondent claimed it to belong to it while the appellant also claim ownership over the same land. In settled view of this Court the evidence of three witnesses appear to shape the decision. Both DW 1 and DW 2 stated categorically in their respective evidence that land belonged to the Islamic Centre. The duo Ramadhani Mussa and Omari Saidi were the Imam and Secretary of the Islamic Centre Mosque from 1987/1988 to 2000 before they were removed from those respective leadership positions. They duo applied for allocation of land on behalf of the appellant institution. This evidence was never challenged at all by the 1st respondent. It is settled law that failure to cross examine on important aspect means that such evidence reflects the truth. In Tom Morio vs Athumani Hassan & Others (Civil Appeal No. 179 of 2019) [2022] TZCA 114 (16 March 2022) (TANZLII), at page 28, the Court of Appeal reiterated that: 31 | P a g e It is trite law that failure to cross-examine a witness on a crucial matter ordinarily implies the acceptance of the truth of the witness evidence See: Damian Ruhele v. R, Criminal Appeal No. 501 of 2007 (unreported). In the same parity of reasoning, it was observed in Nyerere Nyague v. R, Criminal Appeal No. 67 of 2010 (unreported) that: “It is a matter of principle; a party who fails to cross-examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said.” As the 1st respondent never challenged the such evidence, it is an informed view of this court that it is correct that both Ramadhani Mussa and Omari Saidi did apply for allocation of land on behalf of the Islamic Centre and not otherwise. This court departs from finding of trial Tribunal that aspect of PW 3 and PW 4 being leaders of the appellant at time of acquisition was not proved. By failure to cross examine on that aspect PW 3 and PW 4 accepted that to be the true state of affairs. In fact, PW 3 and 32 | P a g e PW 4 admitted on page 65, and 68-69 of the proceedings that he was a secretary of the appellant’s institution at the time of acquisition of the land. This evidence was lucidly cemented by the evidence of PW 5 who was the Village Chairman of Malolo Village at the time such allocation of land was made. According to PW 5, the applicants of the disputed land were from the Islamic Centre Mosque and that he was not aware of existence of the 1st respondent, Islamic Propagation Centre. In that respect, it is lucid that actually the disputed land was allotted to the appellant. Indeed, the evidence of the 1st respondent in particular, PW 3 and PW 4 corroborates the testimony of DW 1 and DW 2. It is on record that PW 3 and PW 4 admitted to have worked with the appellant’s institution. PW 3, Omary Saidi Wawa was the Secretary of Islamic Centre. There is nothing tangible on record to substantiate that PW 3 and PW 4 at the material time of application of the allocation of land were representing the 1st respondent. 33 | P a g e Moreover, the circumstantial evidence might guide the determination of the matter. It is on record that both appellant and 1st respondent witnesses agree that land is question was developed by the appellant by constructing two classrooms and an office room though the same is incomplete. According to 1st respondent’s witnesses, parties agreed to the development of land by the appellant but nothing was tendered to substantiate that land belonged to the 1st respondent. Evidence is that development on the land by constructing two classrooms and an office was done by appellant. The source of funding for the uncompleted structure was contribution of the believers in the appellant’s mosque. In absence of any documentary evidence substantiating that the appellant developed the land by being allowed by the 1st respondent, the evidence of the appellant that they are the owners of disputed land remain plausible. Furthermore, there is nothing from the 1st respondent as to the whereabouts from 1997 to 2014 as at all that material time such land was on the possession of the appellant. In those circumstances, allegations that appellant trespassed into land belonging to 1st response remain mere assertions without cogent evidence. 34 | P a g e Furthermore, pleadings have a lot in relation to determination of this appeal. It is settled law that parties are bound by their own pleadings in the first place and that evidence and pleadings should tally for the court or tribunal as the case may be to enter judgment and decree in favour of a party. This principle was reiterated in the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) (TANZLII), at page 13, the Court of Appeal reiterated that: The other remark which we find ourselves compelled to make relates to pleadings. In doing so we cannot do better than reiterate what we said in James Funke Gwagilo vs. Attorney General [2004] TLR 161 whereby we underscored the function of pleadings being to put notice of the case which the opponent has to make lest he is taken by surprise. From that same decision we reiterated another equally important principle of law that parties are bound by their own pleadings and that no party should be 35 | P a g e allowed to depart from his pleadings thereby changing his case from which he had originally pleaded. This appeal arose out of the Land Application filed on 25th September 2019 by the 1st respondent herein. Upon thorough perusal of the pleadings before the District Land and Housing Tribunal for Singida in Land Application No. 86 of 2019 on cause of action, the 1st respondent who instituted the application averred as follows, quoted in verbatim: 7.(a) Cause of action/Brief Statement of the facts constituting the Claim (i)That, the applicant is a legal person capable of suing. (ii) That, the first respondent is a legal person capable of being sued. (iii) That, the second respondent is a legal person capable of being sued. (iv) That, the applicant is the lawful owner of the suit land. (v) That, despite the lawful ownership of the land by the applicant, the first respondent on 2015 unlawful entered 36 | P a g e into a contract with a mobile phone company registered under the laws of Tanzania known as VIETTEL TANZANIA LIMITED. (vi) That, the second respondent erected a telecom tower without any lawful consent of the owner who is the applicant herein. (vii) That, despite the lawful ownership of the land by the applicant, all the first and second respondents did not inform in any way the applicant the applicant upon their intention of building the telecom tower therein. (viii) That, first and second respondents up to date is (sic!) still unlawfully occupying the suit land and using it without due consent of the legal owner of the suit land. On the other hand, the Written Statement of Defence (WSD) by the 1st respondent (the appellant herein) vehemently disputed to those facts. In Paragraphs 3 to 7 of the WSD dated 7th October 2019 states it all. In summary, these paragraphs reveal that: 37 | P a g e 3. That, contents of Paragraph 7(a) (iv) of the application are vehemently disputed and the applicant be put to strict proof. However, the 1st respondent avers that it is a true owner of the land in dispute since 1990 through application in the village whereby among other applicants the 1st respondent was granted land in dispute. A copy of Minutes is hereby attached and marked as annexure IC1. 4. That, there was misunderstanding among the people concerning the 1st respondent’s ownership of the land in dispute and due to that the Office of Malolo Village approved ownership of the land in dispute on 26th December 2016 through its letter. A copy of approval letter is hereby attached and marked as annexure IC2. 5. That, the contents of Paragraph 7(a)(v) of the application are vehemently disputed and the applicant shall be put to strict proof. However, the 1st respondent 38 | P a g e states that he is a legal owner of the land in dispute and on 12th December, 2014 decided to enter into contract with the 2nd respondent for his interest and for Islamic community in general. A copy of the lease agreement is hereby attached and marked IC 3. 6. That, the contents of paragraph 7(a) (vi) of the application are partly note on erection of telecom tower the rest are vehemently disputed and the applicant shall be put to strict proof. However, the 1st respondent avers that there was no need to seek consent from the applicant because he is/was not the owner of the land in dispute. 7. That, the contents of paragraph 7(a) (vii) and (viii) of the application are vehemently disputed and the applicant shall be put to strict proof. Three important legal aspects can be noted from the pleadings quoted above. First, the claim is too general and does not at all state the 39 | P a g e source of ownership of the land by the applicant/1st respondent. Second, is the denial of the claim. Second, evidence tallying with the pleadings. It is worthy-noting that on denial of the claim the WSD mounted by the appellant herein is quite a serious defence that traversed every allegation/claim by the 1st respondent. The appellant did not only end up denying but also lucidly stated the position of the appellant in respect of the matter in dispute by stating dates, source of acquisition as well actions taken to ensure the land benefits the owners and believers in that community. The appellant only noted about legal status of the parties with their respective status to initiate proceedings or defend the same. The appellant complied strictly to the letter as per legal requirements in pleadings. He disputed the application by the 1st respondent specifically and categorically. In the case of Equity Bank Tanzania Limited vs Ndume Ng'okorome Maswale t/a Ndume General Supply (Civil Appeal No. 443 of 2022) [2024] TZCA 1268 (12 December 2024) (TANZLII), at pages 11-12, the Court of Appeal of Tanzania categorically stated that: 40 | P a g e Guided by the provisions of Rules 3, 4 and 5 of Order VIII of the Civil Procedure Code, Cap. 33 (the CPC), the appellant (then 1st defendant) was required to specifically deny what the respondent (then plaintiff) had claimed in the plaint, otherwise, the law treats as agreed all facts pleaded in the plaint. By simply taking note as she did, the appellant, in law, is taken to have admitted the contents of paragraph 7 and 8 of the plaint. We are therefore entitled to hold that it was not disputed that the parties entered into the loan agreement (exhibit P2) on those terms. Both PW1 and DW1, in their respective testimonies in court were in agreement on these facts. In the circumstances of the appeal, there is no single aspect of claim of ownership of the land by the 1st respondent that was admitted either implicitly or explicitly. All of them were disputed thus necessitating proof of every aspect. 41 | P a g e More importantly is the question of pleadings tallying with the evidence on record. It is on record that evidence of the appellant and 1 st respondent reveal that disputed land was acquired only by two ways: one, the allocation by the Malolo Village Authority in 1990. Two, a portion of the land was acquired from one Saidi Ngoi as Wakf property. Testimonies of DW 1 and DW 2 were to the effect that such disputed land was obtained by application for allocation of land from the Malolo Village in 1990. According to DW 1 and DW 2, the application was made to the village by Ramadhani Mussa and Omari Saidi Wawa who were Imam and Secretary of the Islamic Centre Mosque respectively on behalf of the Islamic Centre, the appellant. Also, all the 1st respondent witnesses except PW 2 and PW 6, testified that the land in dispute was acquired in 1990. This evidence tallied squarely with the appellant’s pleadings and not the 1st respondent pleadings. It is the law in this jurisdiction that evidence that does not tally with pleadings should be ignored. This position was restated in Barclays Bank T. Ltd vs Jacob Muro (Civil Appeal 357 of 42 | P a g e 2019) [2020] TZCA 1875 (26 November 2020) (TANZLII), at page 11, the Court of Appeal reiterated that: We feel compelled, at this point, to restate the time- honoured principle of law that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not support the pleaded facts or is at variance with the pleaded facts must be ignored - see James Funke Ngwagilo v. Attorney General [2004] TLR 161. See also Lawrence Surumbu Tara v. The Hon. Attorney General and 2 Others, Civil Appeal No. 56 of 2012; and Charles Richard Kombe t/a Building v. Evarani Mtungi and 3 Others, Civil Appeal No. 38 of 2012 (both unreported). As the 1st respondent never pleaded in their application to have acquired land through allocation by the Malolo Village Authority, it cannot be said with certainty and clarity that evidence on record was in support of the pleadings. The 1st respondent’s failure to disclose the source of 43 | P a g e ownership and timing of acquisition in the cause of action part of the application meant nothing other than that they are unaware of the means in which such land was acquired. Thus, it is the settled view of this court that it is the appellant whose evidence on record reflect the pleadings and there is nothing on record reflecting concurring of the 1st respondent’s pleadings with evidence on record. At this juncture, it is pertinent to point out few aspects on record regarding the 1st respondent’s evidence. Furthermore, on size of the land in dispute evidence of the 1st respondent is diverse. For instance, PW 1 stated the size to be 12 acres out of which the Village authority allocated them 10 acres while 2 acres originated from wakf property of one Saidi Ngoi. PW 3 averred that land is 10 acres of which 8 were allocated by the Malolo Village while 2 acres from wakf property. PW 4 testified that Malolo Village gave them 12 acres of land while Saidi Ngoi gave 2 acres as wakf. Simply, all three witnesses have different sizes of the same land. On the other hand, DW 1 and DW 2 testified to the effect that land allotted by Malolo village was 5 acres and 44 | P a g e that from wakf property was 3 acres. Thus, DW 1 and DW 2 are consistent in terms of size. In addition, there was a question of minutes of 1990 and 1997 regarding allocation of land being lost made the proof of the 1st respondent’s case fell short of the required standard. In fact, there is nothing at all indicating that such minutes existed in the first place. A serious litigant would have simply brought a police report indicating that minutes existed and were lost. Absence of the minutes made at different times without any explanation leaves a lot to be desired. Totality of the evidence on record as demonstrated in the analysis indicates that the appellant’s evidence is more credible, consistent and tallying with the pleadings than that of the 1st respondent. As it is settled law that a party whose evidence is heavier than the other deserves a judgment and decree of the court, it is certainly that the appellant deserved to have the decision of the court. 45 | P a g e It was incumbent upon the 1st respondent (Islamic Propagation Centre) to prove that land in dispute belonged to it as the person who alleges must prove. On the part of the appellant, the evidence is lucid that they managed to show that land was allotted by Malolo Village on 1990 as per the pleadings and that it was granted to the appellant. Indeed, the evidence of 1st respondent, in particular PW 5, cemented the cause for the appellant herein. As the 1st respondent failed to discharge the obligations to prove the case to the required standard, this court concur with the submission of the appellant that trial Tribunal erred in law and in fact to enter judgment in favour of the 1st respondent. This court is indeed bound by the laid down principle in Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) (TANZLII), at pages 14-15, the Court of Appeal reiterated that: 46 | P a g e It is trite law and indeed elementary that he who alleges has a burden of proof as per section 110 of the Evidence Act, Cap. 6 [R.E 2002]. It is equally elementary that since the dispute was in civil case, the standard of proof was on a balance of probabilities which simply means that the Court will sustain such evidence which is more credible than the other on a particular fact to be proved. It is again trite that the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his and that the burden of proof is not diluted on account of the weakness of the opposite party's case. In circumstances of the instant appeal, it is certainly that the 1st respondent failed to prove to the required standard of balance of probability that the disputed land belonged to the 1st respondent. The 1st respondent was therefore not entitled to the judgment and decree of the court. I uphold the 1st, 2nd, 3rd, 4th, 5th and 6th grounds of appeal are meritorious and they are hereby upheld. 47 | P a g e Before I pen off, it is pertinent to address shortly on the illegalities alleged by the parties. It was submitted by the appellant that refusal of the trial Tribunal to admit the minutes in form of certified copy of the original from Singida Municipal Council violated the law. According to the appellant, such refusal denied the appellant an opportunity to present a clear evidence to prove that land belonged to the appellant. On the other hand, 1st respondent stated that rejection to admit the certified copy of the minutes was proper. The reason advanced by the counsel for 1st respondent is that the certifying officer was not present by then where the said land is said to be allocated to the appellant and he did not see the original one before certifying the said minutes and did not say where the original was. It is settled law that the appellate court in determination of the appeal is guided by evidence on record. It is pertinent therefore that anything that was not tendered as evidence cannot be considered by the appellate court to determine the appeal before it. As the certified copy of original minutes were not admitted in accordance with the law before the 48 | P a g e trial court then this court cannot rely on such minutes nor admit them at this stage unless where the court has ordered for additional evidence. There was no additional evidence adduced in this appeal thus the settled legal principle regarding fulfilling requirements of the additional evidence do not apply. In the Ismail Rashid vs Mariam Msati (Civil Appeal 75 of 2015) [2016] TZCA 786 (29 March 2016) (TANZLII), at page 5, the Court of Appeal emphasized that: Conditions to be fulfilled to justify receiving additional evidence on appeal were stated in the case of S.T.Paryani vs Choitram and Others (1963) EA 462, whereby the Court quoted with approval Lord Denning L.J as he then was in the Ladd v Marshall (4) (1954) 3 All ER 745 and clearly enunciated by the Court of Appeal for Eastern Africa in Tarmohamed and Another v LAKHANI & CO (3) (1958) E.A 567(CA): “To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence 49 | P a g e could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given would probably have an important influence on the result of a case, although it need not be decisive; third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible…” As there was no additional evidence adduced prior to determination of this appeal, it is obvious that re-admission of the minutes that were refused by trial tribunal is not contemplated. This court would have been in a better position to address the validity of the same in case such minutes were admitted to form part of the record. However, I am not concurring with the submission of the 1st respondent that a State Attorney at Singida Municipal Council would not have certified the copy of the original minutes as he was not present during the allocation of the land in dispute. This is not correct position of 50 | P a g e the law. Section 85(1) and (2) of the Evidence Act, Cap 6 R.E. 2019 is explicit on the matter. It states that: 85.-(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person, on demand, a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of the copy that it is a true copy of that document or part thereof, as the case may be, and such certificate shall be dated and subscribed by the officer with his name and official title, and shall be sealed if the officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies. (2) Any officer who in the ordinary course of his official duty is authorised to deliver copies of public documents shall be deemed to have the custody of those documents within the meaning of this section. 51 | P a g e It is lucid that this section that a public officer who is in custody of the public document, such officer is duty bound to supply a copy of such public document upon the applicant fulfilling conditions. One, that person must have a right to inspect. Two, there must be a request/demand for a copy of the public document. Three, the applicant must pay legal fees. Four, there should be endorsement on the foot of the document to be a true copy of the original. Five, the public officer should subscribe his name, title and date it. It might also be sealed in case the public officer has a seal. These are the important considerations to be considered. It is not being present at the time of allocation. Indeed, subsection (2) of section 85 of the Act cements that any public officer who in course of his official duty is authorised to deliver the public document is deemed to be in custody of that document. In circumstances of the case, the State Attorney working with Singida Municipal Council could qualify to be in custody of the complained minutes if a trail of the manner in which such minutes came into the hands of such officer prior to giving a certified copy to the appellant is well established. 52 | P a g e There is no such trail on record thus this court cannot state with certainty and precision that refusal to its admission violated the law and impaired the appellant’s case. Therefore, I find no merits on serious illegalities alleged by the appellant. This ground is destitute of merits. At this juncture, it is without any iota of hesitation this court is prepared to find that the whole of the judgment of the trial Tribunal was incorrectly entered thus erroneous decision that should not be allowed to stand. This court proceeds to quash the whole of the judgment and set aside the decree thereof. Consequently, this Court enters a judgment and decree in favour of the appellant to the extent that: (1) That, the Land Application No 86 of 2019 before the District Land and Housing Tribunal for Singida was not proved thus the same is dismissed for lack of any cogent merits; (2) That the 1st respondent, the Registered Trustees of the Islamic Propagation Centre has never owned any portion of the disputed land thus it has no claim of right whatsoever over the 53 | P a g e land in question. Simply, the 1st respondent is declared that it is not the owner of the disputed land; (3) The appellant is hereby declared to be the rightful and lawful owner of the disputed land; (4) That the respondent, is consequently restrained permanently either acting in person or through other persons, agents, or employees from interfering with the disputed land in question. (5) The appellant is entitled to costs of the case at the Tribunal and before this Court. It is so ordered. DATED at DODOMA this 13th day of February 2025. E.E. LONGOPA JUDGE 13/02/2025. 54 | P a g e