JUDGMENT OF TWAISHI MWASAMPETA VS AMAN MWAKAPYANILA

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO. 18797 OF 2024 CASE REFERENCE NO. 202408041000018797 (From Application No. 43 of 2022 in the District Land and Housing Tribunal For Rungwe at Tukuyu) TWAISHI MWASAMPETA (MSIMAMIZI WA MIRATHI YA MAREHEMU MENATH MWABUKA MWAKIPESILE) ................... APPELLANT VERSUS AMANI MWAKAPYANILA ........................................................ RESPONDENT JUDGMENT 4th December 2024 & 20th February 2025 NONGWA, J. In Application No. 43 of 2022 of the District Land and Housing Tribunal for Rungwe at Tukuyu, the applicant in the capacity as administrator of Menath Mwabuka Mwakipesile sued the respondent on a claim for recovery of piece of land located at Kisegese village and ward within Rungwe district in Mbeya region (the disputed land). He prayed for a declaration that the disputed land is the property of the deceased, the respondent is the trespasser in the disputed land he has built and cost of the suit. 1 Briefly, the appellant’s claim was for trespass over piece of land its size was not disclosed but it boarders with Menath Mwabuka Mwakipesile in all four directions. It was alleged that it was owned by the late Menath Mwabuka Mwakipesile since 1971 after clearing the bush until his demise in 2014. Further that the respondent trespassed on 22/9/2022. In his written statement of defence, the respondent refuted the claim and stated he purchased it in 1998 from Adamson Mwakasege. During hearing the appellant testified as PW1 and said the respondent was given the disputed land by the deceased in 2012 for temporary use. When he was appointed as the administrator and required the respondent to vacate has refused and is claiming to have bought from Adamson Mwakasege. He was supported by Yuda Mwakasege (PW2) and Uswege Menath Mwakasege (PW3), they said the respondent was given the disputed land for temporary use in 2012. In defence, the respondent stated he purchased the disputed land from Adamson Mwakasege in 1998 for Tsh. 50,000/=. He was supported by Aliko Musa Mwambije (DW2) who said he was involved in showing boundaries of the disputed land. Further that in 2006 a boundary dispute erupted with Uswege and was resolved by hamlet chairman. 2 Daudi Moses Mwapagata (DW3) who on his part said as a hamlet chairman in 2006 was involved in resolving boundary dispute between the respondent and Uswege. Last was Richard Panandi Mwakalile (DW4), he said in 2000 was hired by the respondent to plant bananas. Upon full trial, the chairman was satisfied the appellant had failed to prove his claim and dismissed the application without costs. Aggrieved the appellant has filed memorandum of appeal consisting of three grounds of appeal one, that the trial tribunal erred in law and fact by deciding in favour of the respondent without adhering to the principle of law regarding standard of proof in civil cases; two, that the trial tribunal erred in law and fact by failing to properly analyse and evaluate the testimonies adduced by the witness before it hence arriving into wrong decision and three, that the trial tribunal erred in law and fact by not addressing the contradiction and inconsistence testimonies of the respondent during the trial. He prays the appeal to be allowed with cost and judgment and order of District Land and Housing Tribunal for Rungwe at Tukuyu to be quashed and set aside. When the appeal came up for hearing both sides appeared in person, unrepresented. The appellant prayed to argue the appeal by filing written submission and the respondent had no objection. Indorsing 3 the prayer, the court drawn a scheduling order and parties complied with. In the first ground that standard of proof was not observed, the appellant submitted that he was summoned together with his witnesses and proved the case to the standard required specifically that the respondent was accommodated for short time as an invitee. He stated although the respondent claimed to have bought the suit land, no sale agreement was tendered and the seller was not called to testify. He supported the argument with the case of Ally Said Lilangala (Administrator of the estate of the late Yahaya Said Lilangala) Vs. Aja Building Contractors Ltd, Civil Appeal No. 168 of 2022 [2023] TZHC 23140 (16 November 2023; TanzLII) and Paulina Samson Ndawavya vs Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017 [2018] TZCA 218 (12 October 2018; TanzLII). He rested his submission in ground one that he proved his case. Arguing ground two on analysis and evaluation of evidence, the appellant submitted that the tribunal failed to evaluate evidence of PW2 who said the respondent was a neighbour and the respondent was given as a shelter. He said evidence of DW4 has no value as he was only employed to clear the land. Further that evidence of PW2 was not 4 corroborated by ten cell leader on the previous dispute he was involved to resolve with Uswege Mwakasage. In ground three on contradiction and inconsistence in testimony of the respondent’s case, the appellant has submitted that there was contradiction on how the respondent came into possession of the disputed land particularly on when he bought. He maintained that the disputed land belonged to the late Menath Mwabuka Mwakasege. And prayed the appeal to be allowed. In reply the respondent submitted that it is the law that parties are bound by their pleadings and the court has to sustain evidence which is heavier that the other on a particular fact to be proved. He referred the court to paragraph 6(a)(iii) of the application and stated what was pleaded is different from evidence in support of the claim. He explained that while the appellant pleaded that the respondent invaded the disputed land in 2022 during hearing he said was accommodated as invitee by his grandfather in 2012. He cited the case of Martin Fredrick Rajab vs Ilemela Municipal Council & Another, Civil Appeal No. 197 of 2019) [2022] TZCA 434 (18 July 2022; TanzLII) to support the stance that parties are bound by their pleading. He submitted that the appellant departed from his pleadings on the nature of claim. 5 Replying to ground two that the tribunal did not analyse evidence, it was the respondent’s submission that the chairman made proper analyse of evidence and reached to the correct decision. He added that he testified on how he got the disputed land, developed it and was supported by DW2 and DW3 the then hamlet chairman. That presence of local leader in the transaction who sanctioned the transaction was important as per customs of the area. The respondent maintained that he proved his title over the disputed land and prayed the appeal be dismissed with costs. During rejoinder, the appellant stated his evidence was in support of the application. Further that he proved the claim to the standard required in civil suit. I have considered the rival submission and record of appeal; the only issue which crops is whether the appellant proved his claim. The law under section 110(1) of the Evidence Act [Cap 6 R: E 2022] is that he who alleges must prove his allegation to succeed in a suit. A party who has the burden of proof must discharge his burden on balance of probabilities in terms of section 3(2) of the Evidence Act regardless of the weakness in the case of his opponent. This means that, the court will sustain and uphold such evidence which is more credible compared to the other on a particular fact to be proved. See African Banking 6 Corporation T. Ltd vs T-Better Holdings Co. Ltd, Civil Appeal No. 207 of 2017 [2024] TZCA 165 (6 March 2024; TanzLII). 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. See Paulina Samson Ndawanya (supra). Proof of a case entails the allegation which is filed in the court. In civil suit we refer to Pleadings. Order VI rule 1 of the Civil Procedure Code [Cap 33 R: E 2019] define pleading to means a plaint or a written statement of defence (including a written statement of defence filed by a third party) and such other subsequent pleadings as may be presented in accordance with rule 13 of Order VIII. Simply, pleading refers to written presentation by a litigant in a law suit setting forth the facts upon which he/she claims legal relief or challenges the claims of his opponent. It includes claims and counter claim but not the evidence by which the litigant intends to prove his case. In civil suit pleadings constitute the foundation of a case, hence it is time honoured principle of law that that parties are bound by their own pleadings and they cannot be allowed to raise a different matter without amendments being properly made. That, no party should be allowed to 7 depart from his pleadings thereby changing his case from which he had originally pleaded. Furthermore, the court itself is as bound by the pleadings of the parties as they are themselves. In Maria Amandus Kavishe vs Norah Waziri Mzeru & Another, Civil Appeal No. 365 of 2019 [2023] TZCA 31 (20 February 2023; TanzLII) the court approved the decision in the Kenyan case of David Sironga vs Francis Arap Muge & 2 Others [2014] Eklr, in which the Court of Appeal of Kenya emphasized that; ‘It is well established in our jurisdiction that the court will not grant a remedy, which has not been applied for, and that it will not determine issues, which the parties have not pleaded. In an adversarial system such as ours, parties to litigation are the ones who set the agenda, and subject to rules of pleadings, each party is left to formulate its own case in its own way. And it is for the purpose of certainty and finality that each party is bound by its own pleadings. For this reason, a party cannot be allowed to raise a different case from that which it has pleaded without due amendment being made. That way, none of the parties is taken by surprise at the trial as each knows the other's case is as pleaded. The purpose of the rules of pleading is also to ensure that parties define succinctly the issues so as to guide the testimony required on either side with a view to expedite the litigation 8 through diminution of delay and expense. [Emphasize supplied]. Similar position in James Funke Ngwagilo vs Attorney General [2004] TLR 161. Guided by the above principle, the respondent has submitted that evidence of the appellant on nature of claim was at variance with his pleading. The appellant had contrary view he stated evidence he adduced supported facts in the application. To resolve the point, it is crucial at this juncture to revisit the appellant's application filed in the tribunal, under paragraph 6(a) he pleaded; ‘(iii) kwamba mnamo tarehe 22/9/2022 mjibu maombi bila kuwa na haki yoyote na kwa makusudi amevamia eneo la mgogoro na hata nilipomuuliza mimi kama msimamizi wa mirathi alidai kuwa eneo hilo ni mali yake bila kuwa na uthibitisho wowote. (iv) kwamba nilipomtaka mjibu maombi aache kitendo chake cha kuvamia eneo la mgogoro alikataa ndipo nilipoenda baraza la kata la Kisegese ambako baada ya kulalamika mjibu maombi aliitwa baraza likasuluhisha bila mafanikio (nakala ya hati ya kushindwa kusuluhisha ya baraza la kata Kisegese inaambatanishwa kama kielelezo TM3). 9 (V) Kwamba kitendo cha mjibu maombi kuvamia eneo la mgogoro na kuendelea kulitumia bila sababu zozote za msing kimeniathiri kisaikolojia na kimenizuia kuendelea kutekeleza majukumu yangu ya kisheria kama msimamizi wa mirathi.’ (emphaisis supplied) The above tells that it was on 22/9/202 when the respondent trespassed the disputed land and claimed to be his. The matter was unsuccessfully mediated by Kisegese ward tribunal. The invasion of the disputed land by the respondent has caused psychological and prevented the appellant from discharging his duties as administrator. When he (the appellant) was testifying, he stated; ‘Mjibu maombi alipewa eneo na babu menath Mwabuke Mwakipesile kwa ajili ya kukaa pale kwa muda kwenye mwaka 2011 au 2012. Baada ya hapo babu akafariki mwaka 2014 wakati mjibu maombi anaendelea kulitumia hilo eneo. Tuliendelea kuishi na mjibu maombi kutokana na maelezo aliyokuwa ametupatia babu yetu.’ (emphasis supplied). Translated ‘the respondent was given the area by grandfather Menath Mwabuke Mwakipesile to stay temporary in the year 2011 or 2012. Then grandfather died in 2014 the respondent continued to use the area. We continued to live with the respondent according to instruction given by our grandfather…’ 10 PW2 stated; ‘… Ilikuwa mwaka 2012 Amani alikuja kwa mzee Menath Mwabuka Mwakipesile kumuuomba eneo la kijituliza kutokana na mgogoro kwenye familia yao. Mzee Mwakipesile akampatia eneo la kukaa (nyumba)…’ Translated it was in 2012 Aman came to elder Menath Mwabuka Mwakipesile to request area for shelter due to family dispute. Elde Mwakipesile gave the area to stay (house). And PW3 said ‘Mimi ni mmoja wa wanafamilia ya mzee Menati Mwabuka Mwakipesile. Alipokuwa hai alituita sisi watoto wake kututambulisha kuwa Amani Mwakapyanila anaomba kuishi na familia yake. Siyo kwamba alikuwa anaomba auziwe au aishi milele hapo aliomba hifadhi ya muda mfupi. Baba alimkaribisha akaanza kuishi. Ilikuwa kwaka 2012….’ Translated I am one of the family members of elder Menath Mwabuka Mwakipesile. When he was alive called, we children and introduced Aman Mwakapyanile wanted to live with his family. Not that he purchases or live forever there, it was a temporary shelter. Father welcomed and started to live. 11 Looking the quoted and bolded contents of the application filed by the appellant and evidence adduced in support, the nature of cause of action as pleaded is at variance with evidence adduced. While the appellant pleaded that the respondent trespassed the disputed land in 2022, evidence sought to prove that the respondent is the invitee in the disputed land since 2012. It is settled law that parties are bound by their pleadings. In the case of Makori Wassaga vs Joshua Mwaikambo & Another [1987] TLR 88, the court stated that; ‘A party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence; hence he is not allowed to set up a new case.’ In the premises, the appellant was required to parade evidence to support what he had earlier pleaded and not to depart from his pleadings in respect of how the respondent entered into the disputed land. From what is gathered in the application he filed and oral account at the trial, evidence paraded was not proving his claim. Thus, the claim that the respondent trespassed in 2022 remained unsubstantiated and unproved. Taking the respondent was the invitee in the disputed land though not PW1, PW2 and PW3 testified that the respondent was given in 2012. I have noted that PW1, PW2 and PW3 did not give any detailed account, 12 be it in their examination -in chief or cross - examination, as to the number of witnesses who were present, the names of the witnesses and what was specifically discussed. Conversely, the respondent stated to have bought the land in 1998 from Adamson Mwakasege and was supported by DW2 who said was involved in showing boundaries and that in 2006 erupted a boundary dispute with one Uswege Mwakasege and the matter was reported to village chairman on Daudi Mwapagata who testified as DW3. In his evidence DW3 said in 2006 reconciliated the respondent with Uswege Mwakasege. DW4 said in 2000 was hired to plant bananas. The point I gather from the above, is that the respondent was in the disputed land before 2012 as claimed by the appellant. On the sequence of events testified by DW1, DW2, DW3 and DW4, I am convinced that the respondent has been in the suit since 1998. Thus, even the un-pleaded claim that the respondent gained possession of the disputed land in 2012 was not proved by the appellant on balance of probabilities. I have not spotted any contradiction in the respondent’s case as complained. In the circumstances, apart from nature of claim as pleaded by the appellant being at variance with evidence he paraded, he has failed to 13 prove his case on the balance of probabilities. The appellant's criticism on the tribunal’s analysis of the evidence is unjustified. In view of what I have endeavoured to discuss, I do not find cogent reasons to vary the decision of the tribunal. Consequently, I hereby dismiss the appeal in its entirety with costs. V.M. NONGWA JUDGE 20/2/2025 Dated and Delivered at Mbeya at this 20th February 2025 in presence of the Respondent and absence of the appellant. V.M. NONGWA JUDGE 14