IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(LAND DIVISION)
AT PAR ES SALAAM

LAND APPEAL NO.17 OF 2021

(Arising from tho JudgnGnt and DecrGG from District Land and Housing Tribunal for
liaia at Mwaiimu House in Land Application No. 299/2014 delivered on 24^^
December 2020 by Hon. A. R Kirumbi)

RAMADHANI NASSORO MAYUGUMBI

(as administrator of the estate of the late
OMARY NASSORO MUYUGUMBI) APPELLANT
VERSUS

NIKO SAMWELI ASAPH RESPONDENT

JUDGMENT

Date ofLast Order: 30/11/2021

Date ofJudgment:02/03/2022

T. N. MWENEGOHA.J.

The appellants have preferred this appeal to this Court after being
aggrieved by the Judgment and Decree delivered by Hon. A. R Kirumbi at
the District Land and Housing Tribunal for Ilala at Mwaiimu House in Land
Application No. 17 of 2021 delivered on 24^^ December 2020. Brief facts
of the matter are that the appellants have filed their Memorandum of
Appeal with the following grounds;
1. That the Honourable Chairperson erred in law and in fact by
delivering the Judgment on the favour of the respondent
without proving on the standard required by the law;
 2. That the honourable Chairperson erred in law and facts by
holding that the appellants were jealously as the
respondent was benefiting from the disputed property;
3. That the Honourable Chairperson erred in law and facts by
his failure to evaluate the evidence of the appellants
together with relaying on evidence not tendered by
respondent as to reach the fair and just decision;
4. That the Honourable chairperson erred in law and fact by
his act to grant the 9million to the respondent without any
colour of right and justification of the said amount;
5. That the Honourable Chairperson erred in law and facts by
his act of omission to analyze the opinion of assessors to
the Judgment as required by the law.
6. That the trial Tribunal erred in law and fact by entering the
Judgment against the dead person (2"^ respondent in
original application);

This appeal was agreed to by both parties to be disposed of, by way of

written submissions. The appellants had the services of Mr. Ubaid Hamidu
(advocate) while respondent was represented by Mr. Nehemia Gabo
(advocate).

Mr Hamidu submitted that, the Chairperson failed by declaring the

respondent owner of disputed land without proving on the standard of
proof on civil matters, proof on balance of probability. That the suit land
was purchased by respondent's father from the appellant(Omary Nassoro
Muyugumbi) on 4^'^ September 1999 while the respondent was only 6
years. He submitted that, the respondent did not provide a sale
agreement and the Tribunal relied on the exhibit PI (lease agreement).
He further submitted that the evidence of PWl and PW2 are contradictory
as PWl stated that after he was given land by his father, he built a single
room on the suit land followed by six business frames, while PW2 testified
that two rooms house was built after respondent was given the suit land
in 2010 by his father. Also, he submitted that the power of attorney issued
to PW2 was for lease agreement but in her testimony PW2 stated that she
bought building materials for constructing, but in nowhere there is power
of attorney for constructing.

He further submitted that, PW3 (who was not Chairman of Serikali za

Mitaa in 1999) was the only witness who testified that Samwel Asaph
bought the disputed land as in Annexture 1 though not tendered as exhibit
but both of them state the buyer of suit land was Niko Asaph. Hence for
the ground of appeal, the standard of proof was not applied into
reaching Judgment in favour of the respondent herein.
For the 2"^ ground of appeal, he referred to page 10 paragraph 11 of the
Tribunal's impugned Judgment which reads;
" whatis seen isjealousy ofthe respondent after seeing
the applicantis benefiting from the suitiand'.
He submitted that the appellants could not be jealous since they did not
institute the application before the trial Tribunal and that if appellant was
jealous, he would have re-sold the suit iand since the remaining balance
was yet to be settled since 1999 to 2014 when dispute arose.
Submitting on the 3^^ ground concerning evaluation of evidence that the
buyer of suit land one Niko Samwel Asaph is not the one who appeared
in the trial Tribunal, there appeared a new face from the one who
purchased the suit iand. That the Tribunal failed to evaluate evidence that
failure to pay the remaining purchase price (Tshs. 150,000/-) within a
month after sale agreement was entered resulted to breach of sale
agreement. He submitted that the Chairperson erred by relying on Exhibit
Pi which is the lease agreement which not prove ownership of suit land.
On the 4^^^ ground of appeal on grant of damages to the tune of 9 million,
he submitted that the chairperson grant of damages was unjustified it was
contrary to what the respondent prayed which was Tshs. 650,000/= per
month from 31^ October 2014 to the date of determination of suit. He
submitted that the rent agreements were cooked and lacked
corroboration for its genuineness making damages granted with no
enough proof.

He submitted on the 5*^^ ground of appeal on omission to consider

assessors' opinion that, there is nowhere on the record where it shows
opinion of assessors were given or read out to parties. He prayed for the
Judgment of the Tribunal be quashed and set aside.
For the ground he submitted that the Tribunal entered Judgment
against two respondents one being the dead person one Omary
Muyugumbi which is shown on the title of the Tribunal s Judgment.
On reply Mr Gabo submitted on the 1^ ground of appeal that PWl and
PW2 testified that the suit land was purchased by the respondent's father
one Asaph Samwei as the respondent was a minor. He further submitted
that the purchase price was paid by two instalments and thereafter a two-
room house was built in 2000. He submitted that the DWl and DW2
admitted that the suit land was sold to the respondent's father and later
handed to respondent when he attained age of majority. He submitted
that despite that the sale agreement being rejected by the trial Tribunal
due to legal technicalities, the Tribunal fairly considered strong oral
evidence of PWl and PW2 together with Exhibit 1 and 2 to establish there
was sale between Omary Muyugumbi and the respondent herein.

He submitted that the claims of the appellant were raised in 2014, about
14 years from the sale agreement entered on 1999 of which those claims
are time barred Case of Ismail Haiidi Mmingwa vs. Mohamad Saleh
Amour, Land Casa No. 83 of 2014, HCT Land Division,
(Unreported).

He submitted on the 2"*^ ground of appeal that it was correct for the trial
Tribunal to associate the trespass of the appellant into suit land In 2014
with jealous since both parties agreed they entered into sale agreement
since 1999 and the same was developed In 2000 and as soon as the
respondent built the house and frames of business, the appellants were
tempted and trespassed to suit land In 2014.
With regard to 3'"'' ground of appeal he submitted that the trial Tribunal
delivered Judgment in favour of the respondent after considering evidence
adduced by PWl,PW2 and PW3 despite the fact that respondent's father
did not appear to testify before the trial Tribunal since he had already
handed over the suit land to the respondent when he attained majority
age. He submitted that there is no required number of witnesses to prove
a case and with this he referred to Section 143 of Law of Evidence
Act, Cap 6 R. E. 2019 and the case of Joshua Chipanha @ Kidyani
vs. R, Criminal Appeal No. 336 of 2020, Court of Appeal of
Tanzania at Dodoma (Unreported).

On the 4^*^ ground of appeal, he submitted that it is in record that the

appellants invaded and destroyed a fence on respondent's land and took
away all fence poles and stopped 30 petty traders who were renting at
the business premises at the suit land and as a result caused loss to the
respondent. That the trial Tribunal granted damages after considering
those facts/ evidence and the injuries suffered in connection with the said
destruction.

He submitted on the 5^*^ ground of appeal that at page 9 paragraph 2 of

the Tribunal's Judgment, assessors' opinion is that the application be
granted and it is in Tribunal's records that the said assessors' opinion was
read over to parties before delivery of Judgment hence this ground of
appeal is baseless. He submitted for the ground of appeal that the
respondent's counsel had written a letter to the trial Tribunal on the error
of names on the Tribunal Judgment and the trial Tribunal had made
corrections to the error and the correct Judgment was also served to the
applicant.

In his brief rejoinder Mr. Hamidu reiterated what he submitted in chief

and further stated that, the standard of proof of civil matters that is on
balance of probabilities, the weight of evidence and its substance
determines the number of witnesses to be called to testify. He submitted
that the witnesses that were called to testify to the Tribunal were
irrelevant since nobody testified on purchasing the disputed land and no
documentary evidence tendered to verify the purchase of suit land while
PWl was a minor, PW2 was absent during purchase and PW3 was
unknown person at the time of purchase.
I will now go straight to determine whether the appeal has merits by
addressing the grounds of appeal as they were submitted. On the 1®
ground of appeal that the Judgment was delivered without proof on
balance of probability, appellant's counsel submitted that the respondent
herein did not give enough evidence to prove ownership of suit land by
tendering any document before the Tribunal to prove ownership or
transfer of ownership from Samwel Asaph to the respondent. This is
governed by the principle laid down in numerous cases as in the case of
Anthony M. Masanga vs Penina (Mama Mgesi) & Lucia (Mama
Anna), Civil Appeal No. 118 of 2014(unreported) which held that:

"..Jet's begin by re-emphasizing the ever-cherishedprincipie

ofiaw thatgeneraiiy, in civii cases, the burden ofproofiies on
the party who aiieges anything in his favour."
Since the respondent herein was the one who instituted the
application/suit before the trial Tribunal claiming ownership of suit land
against the appellant herein, he was duty bound to prove his ownership
on suit land. The respondent submitted that the suit land was given to
him by his father in 2010 after attaining age of majority, the land which
was purchased by his father for him in 1999. He submitted further that
the sale agreement was tendered before the trial Tribunal but was not
admitted due to technical Issue. However, there is the evidence of PW2
who is the mother of the respondent, she testified that the suit land is the
property of the respondent after it was purchased for him in 1999 when
he was a minor. The testimony of PW2 supported the allegation of the
respondent herein that he is the owner of suit land. In addition to that it
is not disputed that the suit land was sold to the father of the respondent
one Samwel Asaph. I therefore find the trial Tribunal was correct to hold
that the respondent is the owner of suit land considering the weight of
evidence tendered before It to prove ownership which is the testimony of
PWl, PW2. The ground of appeal has no merit.
Moving to the 2"^ ground of appeal that the appellant was jealous after
seeing the respondent benefiting in the suit land, I will directly go to the
course of action which led to this matter. The respondent filed the
application after the appellant has allegedly trespassed to the suit land
and destroyed fence in 2014. It is also on record that the suit land was
developed from 2000. The appellant did not contest this fact. It has thus
taken approximately 14 years as rightly put by the respondents counsel,
for the appellant to enter and claim ownership on the suit land. It is
puzzling as to why he did not take action earlier if he was aggrieved.
Where was he the whole time when the construction was on going and
the business frames were rented? Whereas I do not see the basis of
associating the appellants' actions with jealous sentiments, I concur with
the trial Tribunal finding that, it is unusual for the appellant to keep quiet
seeing the suit land being developed and after 14 years come to claim
ownership of suit land. As such claim will not succeed. I find this 2"^
ground of appeal has no merit.

For the 3'"'' ground of appeal, the trial Tribunal at page 9 paragraph 2 and
3 when read together, clearly stipulates that the Tribunal evaluated the
evidence tendered by the applicant and respondent therein. It is evident
the trial Tribunal considered evidence tendered before it into reaching its
decision. From the foregoing the 3^^^ ground holds no water.
On the 4^"^ ground of appeal, the applicant submitted in Court for a prayer
of specific damages to the tune of Tshs. 650,000/= that is the monthly
income from 31^^ October 2014 to date of determination of the suit. He
outlined the breakdown to the amount that; Monthly rent of six shops
240,000/=, Monthiy rent from 30 petty traders 300,000/=, monthiy rent
for two room house 60,000/= and monthly rent for public toilet and birth
rooms 50,000/= totai 650,000/=. In his testimony the respondent before
the trial Tribunal testified that, "/ was very affected in business because
the tenants vacatedforfearandremained oniy with two tenants.Irequest
the Court to determine and deciare thatIam the true iegai owner ofthe
suit iand, be paid costs, damages for destruction".
It is trite law that specific damages are to be specificaiiy pleaded and
strictly proved.(See the case of Anicet Mugabe vs. Zuberi Augustino,
1992 TLR 137). In the testimony of the respondent at the thai Tribunai
there is no proof given of specific damages daimed. The Tribunal gave
order for payment of"general damages to the tune of Tshs. 9,000,000/=".
From the prayer of the applicant therein, he did not pray for general
damages but rather specific damages which in turn were not strictly
proved. I therefore find the 4'^'^ ground of appeal has merit.
Moving to the 5^^^ ground which wiil not dwell me much, the impugned
Judgment at page 9 paragraph 1 cleariy stated the opinion of assessors
that the application should be granted and they gave their reason for
holding so. Their separate opinions are in Tribunal's file records. Ms. Jokha
Lemli signed on 13/10/2020 while Mr. T. Mwakalasya signed on
15/7/2020. The respondent's counsel submitted that the opinion of
assessors was read over to the parties. In his rejoinder appeliant s counsel
did not answer to this issue that the assessors' opinion was read over to
parties and it therefore implies he conceded to that fact that assessors
opinion was indeed read over to parties. Hence the 5^^ ground has no
merit.
For the 6^^ ground that the Tribunal entered Judgment against a dead
person, this as submitted by the respondent was cleared after the
respondent's counsel had notified the Tribunal. A copy of the correct
Judgment was served to the appellant herein and he has not contested to
that. I therefore find the 6^^ ground without merit.

From the foregoing I concur with the decision of the trial Tribunal save
for the issue of damages which the Tribunal granted an order for the
appellant herein to pay Tshs. 9,000,000/= with no specific proof. Appeal
is partly allowed with no order to costs. Each party bear own costs.
Rights of Appeal Explained.

Dated at Dar es salaam this 22"''day of March, 2022.

T WENEGOHA

JUDGE
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