LAND APPEAL 14729 OF 2024 YUSUPH MAJEBHEJEBHE VS FRANSI KELEGO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND APPEAL NO. 000014729 OF 2024 YUSUPHU MAJEBHEJEBHE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS FRANSINSI KELEGO NCHIYIKI .............................. RESPONDENT / DEFENDANT JUDGMENT NKWABI, J, 13 & 17/02/2025 The respondent successfully sued the appellant in the District Land and Housing Tribunal for Kasulu. The respondent claimed for a disputed piece of land having the size of seven acres. In testimony, however, the respondent testified that he clashes with the appellant over a piece of land which has the size of four acres. Among other contradictions one was about how the respondent acquired the piece of land be it, by being gifted by his father or by inheritance after the death of this father. The tribunal assessors opined that the respondent had failed to prove his claim. The learned tribunal chairman rebuffed their opinions and concluded that the respondent had proved his demands and declared him owner of the disputed piece of land among other reliefs. Piqued by the decision of the trial tribunal, the appellant filed this appeal. He has three grounds for wailing against the decision of the trial tribunal which are: 1. That, the honourable chairman of the District Land and Housing Tribunal grossly erred in law and fact when he differed with opinion of the assessors who sat with him who were of the opinion that the appellant’s evidence on record were more credible than the respondent’s evidence on record and hence the appellant had proved on the balance of probabilities that the suit land belongs to the group which was represented by him before the said tribunal. 2. That considering the entire evidence on record the honourable chairman ought to have dismissed the respondent’s case and hence declared that the suit land belongs to the group which had been represented by the appellant in the trial district land and housing tribunal. 3. That, alternatively, the district land and housing tribunal grossly erred in law and fact when it entertained and determined the case against the appellant in the absence of other necessary parties as they were mentioned by the appellant in his evidence on record that the same had been allocated the suit land with the Page. 1 same. The appellant is conspicuous on the reliefs he is aspiring from this Court. They could be re-echoed thus: 1. The appeal be allowed. 2. The decision of the trial District Land and Housing Tribunal be reversed. 3. Alternatively, the proceedings, judgment and decree of the trial District Land and Housing Tribunal be quashed. 4. Cost incurred by the appellant in this appeal and in the lower tribunal be awarded against the respondent. 5. Any other relief be provided for. When the appeal was called on for hearing which proceeded by way of oral submissions, the appellant was represented by Mr. Method Kabuguzi, learned counsel, The respondent appeared in person, unrepresented. Before all else Mr. Kabuguzi informed this Court that they appeal against the decision of the trial tribunal which was on the dispute was over a piece of land. He said, the disputed piece of land is situated in Buhigwe district and that the respondent won the case. He went on to tell the Court that he would argue the 1st and 2nd grounds together as alternative and would start arguing the 3rd ground of appeal. Straight on the 3rd ground of appeal, Mr. Kabuguzi addressed the Court making it clear that they complain that the trial tribunal wrongly entertained the suit without joining necessary parties. He sought I see the testimonies of DW1, DW2 and DW3. He elaborated that the disputed piece of land was allocated to a group of 32 persons for irrigation cultivation and beefed up that that evidence was not controverted. Mr. Kabuguzi amplified that 31 persons were not impleaded to defend their rights. He took a stand that the non-joinder of the necessary party is fatal to the proceedings and judgment and the decree. Mr. Kabuguzi yearned that the proceedings, judgment and decree of the trial tribunal be quashed. He accentuated that the village council of Bulimeni village in Buhigwe district ought to have been sued which renders the trial tribunal to have no jurisdiction. Then, Mr. Kabuguzi regressed to venture on the 1st and 2nd grounds of appeal. He declared that, on balance of probabilities, the appellant proved the disputed piece of land is his own property owning with other group members. He stood his ground that the evidence of the appellant, DW2 and DW3 proves this contention. Mr. Kabuguzi recounted that, the piece of land was allocated to them by the village council in the year 1991 and added that the appellant has been in occupation for a long time. He charged on the evidence of the respondent which says he was given during lifetime of his father but again claims that he inherited the piece of land. Mr. Kabuguzi finally invocated the appeal be allowed with costs. In a counterstatement the respondent disputed the appeal. He was adamant that the group appointed the appellant to represent the other members of the group. Yet, he stated that he does not accept that they appointed the appellant to represent them. He too disputed that the trial tribunal had no jurisdiction to entertain the matter. He went on to opine that the chairman of the village council of the then claimed that he distributed the piece of land without any writing. He beseeched this Court to sue the appellant because the appellant is the one who trespassed into his land. He stressed that the decision of the trial tribunal is correct. Page. 2 Mr. Kabuguzi had a witty remark. In it he reiterated his submissions in chief. He pointed out that at page 24 of the proceedings, the chairman said that the minutes were in the office. Mr. Kabuguzi pressed that the Village council is a necessary party. He was also of the stand view that the suit ought to be filed in the High Court by impleading even the Attorney General. He encouraged me to allow the appeal with costs. I have considerably considered the appeal. I think that the 2nd ground of appeal disposes of the appeal. To appreciate the 2nd ground of appeal one has to have a look at the document filed in the trial tribunal to initiate the proceedings. In the averment, in the application form, which is equivalent to a plaint, the respondent avowed in paragraph 6 (a) (i) that: “Kwamba, Eneo lenye mgogoro ni eneo ambalo limegawanyika katika sehemu kuu mbili, ambazo ni nchi kavu na bondini, ambapo nchi kavu ni sehemu ambayo ilikuwa inatumika kwa makazi bondeni kwa ajili ya kilimo na ilikuwa kabla ya mwaka, 1974 ambapo baada ya zoezi la operesheni vijiji eneo lenye mgogoro liliendelea kubaki chini ya dada wa muombaji ambaye kwa sasa marehemu Gaudensia Nkelego, baada ya kifo chake eneo hilo lilibaki chini ya familia yake pamoja na miliki ya muombaji.” But in his evidence, the respondent testified that: “Baba yangu alifariki 2014 baba alinipa kabla hajafariki nilirithi kimila. Baba aliacha wosia mdomo kuwa akifariki eneo hili ni langu. Kwa hiyo baada ya kufariki nilikabidhiwa na msimamizi wa familia Leonard Ngumba.” The testimony of the respondent as captured above, is clear departure from the pleading itself and the trial tribunal ought to have ignored the testimony of the respondent because, incontrovertibly, he changed the cause of action which is not permitted in law. For that position of the law, I parrot Barclays Bank (T) Ltd v. Jacob Muro, Civil Appeal No. 357 of 2019 CAT where it was stated thus: “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.” In Maria Amandus Kavishe v. Norah Waziri Mzeru & Another, Civil Appeal No. 365 of 2019, CAT, it was underscored that: “We also feel compelled, at this point, to restate the time-honoured principle of law 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 depart from his pleadings thereby changing his case from which he originally pleaded. Furthermore, the court itself is as bound by the pleadings of the parties as they are themselves.” See also National Insurance Corporation v. Sekulu Construction Company [1986] T.L.R. 157 and Sir. Jack I.H. Jacob in his Article entitled, “the Present Importance of Pleadings” first published in Current Legal Problems (1960) at page 174: Page. 3 “As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings ... For sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any enquiry into case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon realm of speculation.” Having ignored the evidence of the respondent in compliance of CRDB’s case (supra) it becomes clear that the respondent did not prove his case on the balance of probabilities. For instance, when deciding in favour of the respondent, the trial tribunal found among other things that: “Pia licha ya serikali ya Kijiji kuunda vikundi vya vijana vilime kwenye bonde la Nyachijima kwenye maeneo yasiyolimwa, walipofika eneo la mgogoro walimkuta Kamatu na familia ya Mleta maombi wakiwa wanapalima.” But as seen in paragraph 6 Kamau is not mentioned but rather since 1974, the piece of land was under his late sister Gaudensia Nkelego, but how a part of it fell into his ownership is not avowed. That, in law, is unacceptable, so the decision of the trial tribunal cannot remain undisturbed. I partly agree with the 2nd ground of appeal that considering the entire evidence on record the honourable chairman ought to have dismissed the respondent’s case. Regarding the prayer of the appellant that the piece of land be declared to be his property or that of the group, that is impossible as he had no counter-claim, thus the prayer violates the decision in Melchiades John Mwenda v. Gizelle Mbaga & 2 Others, Civil Appeal No. 57 of 2018, CAT, where it was authoritatively stated that: “… the evidence did not prove so on a balance of probabilities and, secondly, the second respondent did not plead ownership by way of counterclaim. It is elementary law which is settled in our jurisprudence that the court will grant only a relief which has been prayed for …” As the appellant had not pleaded in his reply to the land application that the land was allocated to the group by the village council but pleaded that the piece of land was his property, the appellant’s evidence to that effect is thus ignored and thus there is no justification to hold that there was non-joinder of necessary parties such as Bulimeni village council. The 3rd ground of appeal fails. It is for the reasons I have explained above, I find that the land case in the trial tribunal was not proved I have tried to illustrate herein above. To conclude, the appeal is therefore partly allowed for the reasons I have explained above. The judgment of the trial tribunal is thus, quashed. I also set aside the decree of the trial tribunal. The appellant is to be reimbursed his costs in this Court and the trial tribunal. It is so ordered. Page. 4 Dated at KIGOMA this 17th of February 2025 . J. NKWABI JUDGE OF THE HIGH COURT Page. 5