Victoria john 1016 scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 1016 OF 2025 (Arising from the judgment of the District Land and Housing Tribunal for liaia in Land Application No. 91 of2019 by Hon. S.H Wambiii, Chairman) BETWEEN VICTORIA JOHN............. .................................................... APPELLANT AND MWITA MARIBA.......................................................... 1st RESPONDENT RASHID KHALIFA.............. ......................................... 2nd RESPONDENT FRANCIS SWAI............................................................ 3rd RESPONDENT JUDGMENT 19/02/2025 & 18/03/2025 A. MSAFIRI, J. The appellant being aggrieved by the judgment of the District Land and Housing Tribunal of Ilala (the trial Tribunal) in Land Application No. 91 of 2019, have lodged the instant appeal advancing four (4) grounds of appeal as follows: 1. That, the Honourable trial Chairperson erred in law and facts for failure to evaluate weight of the evidence adduced by the Appellant during the hearing. 2. That, the Honourable trial Chairperson erred in law and facts for failure to determine that standard of proof is based on balance of probabilities. Ari n- i 3. That, the Honourable trial Chairperson erred in law and facts to determine the matter for not considering the evidence adduced by the Appellant's witnesses. 4. That, the Honourable trial Chairperson erred in law and facts to consider matter of size of land with dispute that was not in dispute among the parties. The hearing of the appeal was viva voce and the appellant was presented by Mr Edson Sostenes, learned Advocate while the respondents were represented by Mr Salim Abubakar, learned Advocate. On the first ground, Mr Sosthenes submitted that the DLHT did not consider the evidence of the appellant which was adduced on 11/11/ 2019. That in her evidence as PW1, the appellant has said that she bought the disputed area from one Samwel Mosi Kichogo on 14/3/2010 before the Street Government of Kivule. That in her evidence, PW1 tendered a sale agreement which was admitted as exhibit Pl. That this evidence was not challenged/ countered by the respondents considering that the 1st respondent who was important witness was exparte. Mr Sosthenes submitted further that the appellant is aggrieved that the DLHT did not determine this evidence at all. He added that what was pleaded and prayed for by the appellant was not considered and determined/ evaluated by the DLHT. /nr a - 2 The counsel pointed that the DLHT went contrary to the principle set in the case of Hemed Said vs Mohamed Mbilu, 1984 TLR 113 where it was held that the party which has heavier evidence is the one to win the case. On the second ground, Mr Sosthenes submitted that the DLHT failed to determine the standard of proof on balance of probabilities. He said that, in civil cases, the standard of proof is on balance of probabilities. That, despite the requirement of the provision of Section 111 of the Evidence Act, Cap 6 R.E 2022, this doctrine of standard of proof has to be determined by the court by weighing the evidence of both parties. That, this was discussed in the case of Paulina Samson Ndawavya vs Teresia Thomas Madaha, Civil Appeal No. 45 of 2017 whereby the Court of Appeal discussed the relationship of Section 111 of Evidence Act and the doctrine of standard of proof on balance of probabilities. Mr Sosthenes averred that the DLHT based its decision on the size of the disputed area which was not among the issues in dispute. That the trial Chairman did not analyse the evidence of both parties in his judgment. Therefore, the DLHT shifted on its core duties. He said that the Tribunal dis not analyse the evidence and weigh the evidence by the standard of balance of probabilities as required. JVI I n - 3 On the third ground, Mr Sosthenes averred that the DLHT did not consider the evidence adduced by the appellant’s witnesses. That, during the hearing at the trial, the appellant brought a total of three witnesses. PW2 was the second witness one Ayoub Warioba. He was the one who witnesses the sale agreement when the appellant was buying the disputed land. There was also PW3 Asteria Charles. This was the Cell Member and Member of the Street Government who witnessed the sale. That, PW4 was one Samwel Musi Kichogo, who was the seller/ vendor who sold the disputed land to the appellant. That, surprisingly, the evidence of these witnesses was never analysed, discussed and determined by the DLHT. That, in the impugned judgment, none of the witnesses' evidence is shown. On the fourth ground, Mr Sosthenes submitted that the DLHT based and considered the matter on the size of the disputed land which was not a fact in dispute among the parties. That, in the civil matters, what is to be considered is the matters in dispute and not other small issues. Hence, the DLHT discussing the size of the disputed land, led to the said DLHT not discussing matters in dispute. To bolster his points, the counsel referred the case of Elifasi Yairo Urio vs Christina Nikanoru, Civil Case No 430 of 2021 at page 9, CAT. -Mj 4 The appellant counsel prayed for the court to allow the appeal, quash and set aside the decision and judgment of the DLHT. He prayed this court to declare that the disputed land is lawful owned by the appellant. And the costs of the appeal. Mr Abubakar responded on the first ground and submitted that the DLHT did not error in its decision. That, at page 3 of the impugned judgment, the DLHT asked itself about the evidence of the appellant PW1 whereby in the plaint, the appellant stated that the disputed area has a size of length of 40 meters and width of 26 meters. This is seen at paragraph 8 (a) (i) of the applicant's application. Mr Abubakar submitted further that during the hearing of evidence, PW1 said that the area he purchased has a size of 25 feet length and 40 feet in width. That the DLHT was correct to find that the appellant did not even know the area she was claiming. The counsel for the respondents said that the appellant introduced new evidence and has departed from the pleadings in her plaint and her evidence was inconsistency with what was pleaded in her plaint. Therefore, it is not true that DLHT did not analyse and consider the evidence of the appellant. It did and found that the evidence was inconsistency with the plaint/application. That, considering the referred case of the Court of Appeal in the impugned judgment, the trial was 5 correct to find that the evidence of the appellant was inconsistency with her pleadings. Mr Abubakar stated that he agrees with the principle set in the cited case of Hemed vs Said Mbilu (supra), and that in the current dispute before the DLHT, the appellant had no heavy evidence as she did not know even the area which she was claiming. On the second ground, Mr Abubakar submitted that he agrees totally with the duty of the court in considering the evidence of both parties to the suit and that this what was done by the DLHT. That, having considered the evidence of the appellant and found it wanting, there was no need of the DLHT determining the evidence of the respondents. On the third ground of appeal, Mr Abubakar submitted that the owner of the case before DLHT was the appellant, PW1. Therefore, the other witness was expected to corroborate the evidence of PW1. Unfortunately, the appellant has not said on what was the evidence of PW2, PW3 and PW4 before the DLHT. Hence if the evidence of PW2, PW3 and PW4 corroborates the one of PW1, the appellant, then their evidence had no value at all before the DLHT. This is because their evidence was 6 contradictory to the pleadings hence that evidence could not bring any changes to the DLHT's decision. On the fourth ground, Mr Abubakar submited that it is the appellant herself who initiated the issue of the size of the disputed area and this is shown in her application/ plaint at paragraph 8 (a) (i). That the appellant's claims in the application/ plaint was to be proved on balance of probabilities. That, contrary to that, during the hearing, PW1 spoke about the size of the disputed area. The size of 25 meters the length, and the 40 meters the width. Mr Abubakar was of the view that, since it was the appellant herself who failed to know the size of the land she claims, the DLHT cannot be blamed for finding that the evidence of the appellant was inconsistent. That, the size of the plot was of essence hence the DLHT was right to base on the issue of size as it the one which starts the dispute between parties. Mr Abubakar pointed that the case of Elifasi Yairo Urio (supra), is distinguishable because in that case the issue of the size of the area emerged at the hearing time. Contrary to the instant matter whereby it was the appellant herself who started the issue of the size of the disputed iand- 7 He concluded by praying for the dismissal of the appeal with costs. On rejoinder, Mr Sosthenes submitted that, on the contradiction of the appellant's evidence on the size of the disputed area, the circumstances is similar to the one in the case of Elifasi Yairo Urio at page 9. On the various cases referred by the DLHT, Mr Sosthenes submitted that all of them was decided before 2021 while the case of Elifasi Yairo Urio was decided in 2021. So, the decision in the latter case precedes over the other referred decisions. On the second ground, the counsel submitted that the counsel for the respondents has agreed to the cited case of Saidi Mbilu (supra), hence he admits that the DLHT did not do analysis of evidence of each party to the dispute. On the third ground, the counsel for the appellant said that he does not agree that the DLHT was right not to analyse and determine the evidence of the rest of the witnesses. That, this is a gross error which was made by the DLHT. In the case of Elifasi Yairo Urio it was held that it is the Judge's duty to go through the whole evidence. On the fourth ground, the counsel for the appellant submitted that the issue of the size and measurements of the disputed land was not a vital 8 issue which could have led to the dismissal of the appellant’s case, considering that the appellant's claims were over ownership of the disputed land. He reiterated his prayers. Having gone through the submissions by the two rival parties through their counsels, now I will determine the appeal. It is my view that the first and third grounds of appeal are similar for the reason that the first ground is on grievance of the failure of the trial Chairman to evaluate the weight of evidence of the appellant, while the third ground is on grievance of the failure to consider the evidence of the appellant's witnesses. Hence, I see this is one ground whereby the appellant is aggrieved by the failure of the trial Chairman to evaluate the evidence adduced by the appellant and his witnesses. In order to determine these two consolidated grounds, I had to go through the records of the proceedings during the trial. In her application before the trial Tribunal, the appellant claimed that she is the lawful owner of the unsurveyed parcel of land measuring length of 45 meters and width of 26 meters located at Magore Street, Kivule Ward, Ilala, Da es Salaam. That she purchased the said piece of land from one Samwel Kichogo and the sale transaction was done before Local Government Office of Kivule on 14/3/2010. AJ I $ ■ 9 During the hearing, the appellant adduced her evidence as PW1. She said that she purchased the land in dispute in 2010 from one Samwel Kichogo. That the land has a size of width 25 paces and length of 40 paces. That the purchase was done before a ten-cell leader one Asteria Charles. She produced a sale agreement which was admitted as exhibit Pl. She said that in 2013, she received a call from her neighbour who told her that her land has been invaded by the 1st respondent. That she reported to the street authority which intervened by summoning the 1st respondent who refused to appear hence the appellant instituted the suit before Tribunal. PW2 was Ayubu Charles Warioba, he confirmed that the appellant Victoria purchased the disputed land from Samwel Gichoge and that the sale was effected before a Street Chairman. He, PW2 said he was a witness in the sale agreement and was the witness of Victoria, the appellant and he signed the sale agreement as a witness. That the Street Chairman who effected the sale was Asteria Charles and one member of the Street office named Koroso. PW3 was Asteria Charles Mukara who stated that she lives at Kivule A since 2017 and at one time she was a cell leader. She said that she knows Victoria John, the appellant as the one who purchased a piece of land located within her area of jurisdiction. That the appellant bought the area= io in 2010 from Sarnwel Gichogo and PW3 was the one who attested the sale agreement. That before the sale of the disputed land, it was owned by Sarnwel Gichogo. PW3 said that she had been a cell leader from 2009 to 2020. She added that she lives nearby the disputed area. PW3 said further that she knew Mwita Mariba, the 1st respondent. That during her service as a cell leader, the 1st respondent had no ownership of a landed property in PW3 cell area. She said that the disputed land is owned by the appellant. PW4 was Sarnwel Munzi Kichogho. He testified that he sold the disputed land to the appellant Victoria on 14/3/2010. That it was measured 25x40 feet, and that the agreement was entered before the cell leader and Kivule Street Chairman. That before selling the disputed land, he had purchased it from Josephat in 2008. He produced a sale agreement which was admitted as exhibit P2. He insisted that the disputed land is owned by the appellant. The respondents also adduced their evidence whereby one Rashid Halifa who is the 2nd respondent in the current appeal testified as SU1. He said that he bought the suit property from the 1st respondent Mwita Mariba. He produced the sale agreement which was admitted by the Tribunal as exhibit KUl-WlL ii SU2 was Moris Nicholaus Kaombwe. He said that he lives at Kivule, Magole "A" he said further that when Rashid, the 2nd respondent purchased the disputed land from Mariba, he (SU2) was a cell leader of cell no.5. He said that he asked Mariba where he got the area and Mariba answered that he got it by also purchasing it from another person. That after the Street leaders were satisfied that Mariba owns the area, then they approved the sale transaction between Mariba, the seller/vendor and Rashid, the buyer. SU2 identified the sale agreement exhibit KU2 and identified his signature as a leader who testified the agreement. He said that there is also a signature of Street Chairman and the Street Executive Officer. He said he doesn't know Victoria, the appellant. During cross examination, the witness revealed that the sale transaction between Rashid and Mariba was done in May 2015. Francis Martin Swai testified as SU3. He said that he got his piece of the disputed land in 2015 by purchasing it from Mwita Mariba. That he bought a piece of land measuring 11x20 feet and that the sale agreement was effected before a cell leader and a Street Chairman. He produced a sale agreement which was admitted in court as exhibit KU2 collectively. Mwita Mariba who is the 1st respondent testified as SU4. He said that in 2010 he bought a piece of land from Marwa Nyangapi. That the land has 12 a size of 50x 45 feet. That after purchase, he developed the area by constructing buildings. That he sold his area to Rashid Khalifa and Francis Swai and others who are not party to the suit. That in 2015, the appellant claimed that he has invaded her area. He said that the appellant has never owned the disputed land but it belongs to him Mwita Mariba. In the first and third grounds of appeal, the appellant aggrievance is that the trial Chairman failed to consider the evidence of the appellant and her witnesses. I have read the whole impugned judgment and it is clear that the trial Chairman based his decision on the contradiction of the size of the disputed land. From page three (3) of the typed judgment, the trial Chairman found that the appellant has failed to prove her case. He gave out the reason for his finding that in paragraph 5 of the application, the appellant (then as applicant) has stated that the disputed land is unsurveyed (not measured). That at paragraph 8(a)(i), of the application/ Plaint, the applicant claimed to own the disputed land with a size of 45 length and 26 width. That according to exhibit Pl, it shows that the land purchased by the applicant to have a size of 25x40 without stating whether it was meters or feet. In her oral evidence during the trial, the applicant as PW1 stated to have purchased the land with a size of 25x40 paces. That this measurement is 13 different from the one stated in exhibit Pl and in the application. For this reason, the trial Chairman dismissed the application without considering the rest of evidence which was adduced in court by the appellants witnesses. It is true that in her application, at paragraph 5, the applicant stated that the disputed land is unsurveyed. At paragraph 8(a)(1), the application shows that the land in dispute is measured 45 meters in length and 26 meters by width. On exhibit Pl the size of the land is shown to be 25x44. During the evidence, the appellant as PW1 said the size of disputed land is width 25 paces and length of 40 paces. It is my view that these contradictions on the size of the disputed land are minor and they did not go to the root of the matter as to render the appellant evidence unbelievable. The size of the disputed land as stated in the application was slightly different as compared to the one stated in oral evidence in court and also in exhibit Pl. In the application, the size was 45 meters x26 meters, in the sale agreement exhibit Pl the size was said to be 25x40, and during oral evidence, the size was said to be 25 x40 paces. However, the location of the land was the same, at Kivule, Magore. The dispute was not on the size of the disputed land but it was on ownership whereby the applicant/appellant claimed in the application that- 14 she is the lawful owner of the disputed land and that the same has been invaded by the 1st respondent. During the trial, the issue in dispute was who is the lawful owner of the suit property. The issue of the size of the disputed property never raised during the trial. This is the reason I am finding that the trial Chairman was not supposed to end his analysis of the evidence basing on the size only. The trial Chairman could have gone further and determine the issue of ownership and whether the plaintiff managed to prove the ownership she claims. The trial Chairman could have weighed the evidence adduced by the applicant as compared to the one adduced by the respondents and come to the conclusion as to the ownership of the disputed property. Being the court of the first appeal, I have reevaluated the evidence which was adduced during the trial and come to the conclusion that the appellant managed to prove her case by the standard of proof in civil matters i.e on balance of probabilities. The evidence of the appellant as PWl was corroborated by the evidence of PW2 who was a witness of the sale on the appellants side, PW3 a ten­ cell leader who witnessed and attested the sale agreement, PW4 the vendor who sold the disputed land to the appellant. PW4 gave evidence on how he got the disputed land that he purchased it from one Joseph in 15 2008. Two sale agreements were admitted in court to support the appellant and her witnesses' evidence. Exhibit Pl is the sale agreement which shows that in 2010, the appellant purchased the suit property from Samwel Kichogo. Exhibit P2 shows that Samuel Kichogo who according to exhibit P3, the affidavit of names also goes by names of Samwel Munsi. M, got this disputed land from Joseph Michael Niko in 2008. This shows how the vendor who sold the disputed land to the appellant got that land. Meanwhile on the respondents' part, Mwita Mariba who testified as SU4 and who claimed also to be the lawful owner the disputed property did not show how he got the disputed land. He said he bought the disputed land from Marwa Nyangapi, but this Marwa Nyangapi did not appear in court to testify and confirm SU4's claims. Furthermore, SU4 did not produce any formal proof like sale agreement to prove the sale. Therefore, the evidence of SU4 that he bought the suit land from Marwa Nyangapi remains mere verbal words from SU4. The other respondents claimed to have bought their pieces of land from Mwita Mariba but he failed to show how he came to own the piece of land he claimed to have bought from Marwa Nyangapi, even the sale of the disputed land by Mwita Mariba to the other respondents cannot stand. Jw 1 / ,. 16 Having re evaluated the evidence of both parties to the dispute, as said earlier, it is my belief that the evidence of the appellant side was more credible compared to the one of the respondents, and the trial Chairman erred when he concentrated on the contradictions which did not go to the root of the case. I find merit in the first and third grounds of appeal. On the second ground, the counsel for the appellant submitted that the trial Chairman erred for failure to determine that the standard of proof is based on balance of probabilities. It is trite law that he who alleges must prove and in the civil cases, the standard of proof is on a balance of probabilities. This was elucidated in the case of Paulina Samson Ndawavya vs Theresia Madaha,(supra) whereby the Court of Appeal held that the standard of proof in civil cases is on balance of probabilities which means that the court will sustain such evidence which is more credible than the other on a particular fact to be proved. In the present matter, the particular fact to be proved was the ownership of the disputed land. Hence, the trial Tribunal had a duty to analyse the adduced evidence and weigh the said evidence. I have already found that the evidence of the appellant was more probable and heavier than the 17 one of the respondents. The appellant discharged her duty of proof. I find merit in this ground. On the fourth and the last ground, I have already determined it when I was determining the first and third grounds of appeal. Indeed, the matter of the size of the land was not the issue in dispute. The issue was whether the applicant was the lawful owner of the suit land as she claimed. The issue which I have found that she managed to prove on balance of probabilities. The matter of the contradiction on the size of land was irrelevant as the location of the land in dispute was clear and the size was not an issue. I find merit in this ground too. In upshot and foregoing reasons, the appeal has merit. I therefore, quash and set aside the judgment and decree of the trial Tribunal in Land Application No. 91 of 2019. Being the court of the first appeal, I find the appellant to have proved that she is the lawful owner of the suit property and I declare her so. The appeal is allowed with costs. It is so ordered. JUDGE 18/03/2025 18