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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO 19619 OF 2024 (Originating from Land Application No. 44/2022 of DLHT for Rungwe at Tukuyu)) YESAYA MWANGOMO (The Administration of Estate of the Late Ulinyelusya Mwangomo)………………………….APPELLANT VERSUS OLIPA KAMBONI (The Administratrix of Estate of the Late Agnes Peter Kamboni)…………………………RESPONDENT JUDGMENT Date: 11 October 2024 & 9 January 2025 SINDA, J.: The appellant is aggrieved and wishes to challenge the decision of the District Land and Housing Tribunal for Rungwe at Tukuyu (the DLHT). The brief facts of the case are that the respondent, who is the administratrix of the estate of the late Agnes Peter Kamboni (the Deceased) claims that in 1974 the Deceased temporarily gave one acre of 1 land located in Ngulubwaje ‘A’ village (the Disputed Land) to the appellant’s father, one Ulinyalusya Mwangomo. But in 2020, when they wanted their land back, the appellant refused by saying the land belonged to him. However, the appellant claimed that in 1976 the appellant’s father arrived at the village and worked for a Moravian church, where he was given the Disputed Land and built a house. That, the Deceased was only a neighbor to the Disputed Land. After the dispute arose, the respondent herein successfully sued the appellant at the DLHT. Dissatisfied with the decision of the DLHT, the appellant brought this appeal on the following grounds: 1. THAT, the learned Chairman of the trial tribunal erred in law and fact to enter the judgment in favour of the respondent without considering the principle of adverse possession. 2. THAT, the learned Chairman of the trial tribunal erred in law and fact for failure to properly evaluate and analyzing the evidence tendered before reaching its decision. 2 Hearing of appeal was by way of written submissions. The appellant appeared in person, unrepresented. The respondent was represented by Mr. Victor Mkumbe, learned counsel. In his submission in chief, the appellant argued that his father was the owner of the Disputed Land, which was allocated to him by local chiefs in 1976. That, he has made developments on the Disputed Land and has been in occupation for 48 years, without interference from anyone. The appellant added that his father buried his son and wife on the Disputed Land. He explained that the Deceased lived in another area, not the Disputed Land. The appellant was of the view that the principle of adverse possession is evident in this matter because the appellant used the Disputed Land from 1976 to 2022. That during all that time, when the appellant’s father was making developments, the respondent and his family did nothing to stop him. Supporting his argument, the appellant cited the case of Nassoro Ahadi vs. Mussa Karunge, Civil Appeal No. 17 of 1997 (1982) TLR 303 HC Dar es Salaam and that of Balikalije Mpunaki vs. Nzwili Mashengu (1968) HCD No. 20. Addressing the second ground, it was the appellant’s submission that his witnesses' evidence was strong. He added that in civil cases, the evidence 3 is weighed on the balance of probabilities, as provided in the case of Miller vs Minister of Pensions (1947) 2 ALL ER 372. The appellant urged this court, being the first appellate court, to reevaluate the evidence, as it was provided in the case of Dinkerrai Ramkrishan Pandya vs. Republic (1957) EA No. 336. In his reply submission, on matters of adverse possession Mr. Mkumbe argued that the appellant’s late father was invited to the Disputed Land by the Deceased in 1974 i.e., fifty years ago. That this piece of evidence was not strongly opposed. The counsel submitted that the appellant gave contradictory evidence on how his late father acquired the Disputed Land. First, the appellant stated he was given the Disputed Land by leaders of his church in 1979 but he did not name the church nor did he bring leaders of the said church to testify in court. Second, the defence witnesses, particularly DW2, DW3 and DW4 stated that the appellant’s father was given the Disputed Land by the local chiefs in 1976. That, the witnesses failed to answer when cross-examined whether they were aware that the chiefdoms were abolished in the country in 1963. The counsel added that the appellant stated that since the appellant’s father occupied the Disputed Land for over 48 years without disturbance, the ownership of the Disputed 4 Land shifted to his father, irrespective of whether his father was an invitee or not. Mr. Mkumbe refuted such allegations by citing the cases of Samson Mwambene vs. Edson James Mwanyingili, PC Civil Appeal No. 42 of 1998 and Musa Hassani vs. Barnabasa Yohanna Shedafa, Civil Appeal No. 101 of 2018, High Court (Unreported) and the CAT. Civil Appeal No. 305 of 2020 (Unreported). Moving to the second ground, Mr. Mkumbe argued against the contention that the defense evidence was strong. He argued that the said evidence was weak because there were incurable contradictions as stated in the first ground of appeal. Second, none of the appellant’s witnesses saw when the late father of the appellant was allegedly given the Disputed Land by either the church officials or the local chiefs. Thus, the evidence by the appellant and his witnesses is hearsay. The appellant did not file any rejoinder. As I deliberate on the matter before me, I will consider the submissions from both sides and the DLHT records. In my opinion, the matter of determination is whether the appellant’s father was an invitee to the land. With that, I will proceed to discuss the first ground on adverse possession. The appellant was of the view that the Disputed Land was initially his 5 father’s and his family has been in occupation of the Disputed Land for 48 years without interference from anyone. Where during which time, improvements were made to the Disputed Land by planting trees, cultivating banana trees, building two houses, and growing other crops. He also brought witnesses to attest to what he stated in court. In my understanding, the concept of adverse possession should go hand in hand with how the Disputed Land was obtained in the first place. In his submission in chief, the appellant explained that the Disputed Land was given to his father by chiefs and traditional elders in 1976. This could also be seen from his witnesses’ testimonies before the DLHT, particularly DW2, DW3 and DW4. They all explained that after the appellant’s father arrived at the village, he was given the Disputed Land by the chiefs. However, my concern is this goes contrary to what the appellant stated in his pleadings at the DLHT. As I went through the records from the DLHT, I stumbled upon the appellant's reply dated 14 March 2023, where under paragraph one, he stated inter alia, that his father arrived in Lugombo hamlet and Ngujubwaje ‘A’ village in 1976, as a servant for a Moravian church. He was then given the Disputed Land by the church so as to build a house. 6 With that, I will be directed by the principle well established in the case of The Registered Trustees of Islamic Propagation Centre (IPC) vs The Registered Trustees of Thaaqib Islamic Centre (TIC), Civil Appeal No. 2 of 2020, CAT at Mwanza (Unreported) where the court held that; “At this point, we are constrained to recall 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.” That being the case, it is rather uncertain how the appellant’s father got into possession of the Disputed Land. Whether it was given to him by the chiefs or the church. Unfortunately, the defence witnesses at the DLHT provided that the Disputed Land was given to him by the chief, a fact which was not in the appellant’s pleadings as stated shortly above. As a result, I chose to ignore the said evidence as provided in the case of The Registered Trustees of Islamic Propagation Centre (IPC) vs. The Registered Trustees of Thaaqib Islamic Centre (TIC) (Supra). Consequently, since the appellant and his witnesses contradicted each other and thus failed to prove how possession over the Disputed Land was obtained. I find myself leaning towards the respondent’s contention that 7 the appellant’s father was merely an invitee to the Disputed Land. For that reason, the appellant can no longer rely on the principle of adverse possession, regardless of how long they have been in occupation of the Disputed Land. This was discussed in the case of Musa Hassani vs. Barnabas Yohanna Shedafa (Legal Representative of the late Yohana Shedafa), Civil Appeal No. 101 of 2018 CAT at Tanga (unreported), that provided: “We wish to underline that an invitee cannot own a land to which he was invited to the exclusion of his host whatever the length of his stay. It does not matter that the said invitee had even made unexhausted improvement on the land on which he was invited.” Moving to the second ground, in civil matters it is trite law that he who alleges must prove, as provided under Section 110 of the Evidence Act, Cap 6, R.E 2019. Also see: Zuberi Augustino vs. Vicent Mugabe [1992] TLR 137. I believe the respondent herein proved her case at the required standard, that is on the balance of probabilities for a number of reasons. First, she was present when the Disputed Land was handed over to the appellant’s father. Second, she brought witnesses who corroborated her story. 8 On the other hand, the appellant on page 27 of the proceedings admitted that most of what he knows is hearsay. As he was not present when the Disputed Land was given to his father. Also, his witnesses provided contradictory evidence from that of his own as discussed shortly above. As a result, the evidence of the respondent was undoubtedly stronger than that of the appellant. See: Hemedi Said vs. Mohamed Mbili [1984] TLR 113. From the foregoing, I find no need to depart from the findings of the DLHT. I find the entire appeal devoid of merit, and it is hereby dismissed with costs. It is so ordered. The right of appeal is explained. DATED at MBEYA on this 9 day of January 2025. A. A. SINDA JUDGE 9