Tanzania Railways Corporation vs Haruna Mohamed Abeid & Others (Civil Appeal No. 651 of 2024) [2025] TZCA 1173 (6 November 2025)

\ IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: NPIKA, J.A., KIHWELO. J.A. And NGWEMBE. J.A.) CIVIL APPEAL NO. 651 OF 2024 TANZANIA RAILWAYS CORPORATION...........................................APPELLANT VERSUS HARUNA MOHAMED A B E ID .............. . ................... . .............. 1 st RESPONDENT PETER MOSES MOWO ............................................................. 2 nd RESPONDENT SEIF S A ID ..................................................................... . ....... 3 rd RESPONDENT RAMADHAN THABIT SAID ......... . ............................................4™ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dodoma) (Masabo, J.) dated the 17th day of November, 2023 in Land Case No. 19 of 2017 JUDGMENT OF THE COURT 3rd October & 6th November, 2025 KIHWELO. J.A.: The genesis of the appeal before the Court is Land Case No. 19 of 2017 ("the suit") which was filed in the High Court of Tanzania at Dodoma by the respondents against the appellant. The suit was in relation to parcels of land described as Plot No. 1 Block L, Plots No. 6 and 8 Block M, Plot No. 8 Block L and Plot No. 8 Block K at Manyoni, Singida. We shall henceforth refer to the described premises simply as "the suit properties." The factual background to this matter is as follows: In July, 2017 the appellant through the then Reli Assets Holding Company (RAHCO) served the appellants with a thirty (30) day notice within which to demolish their respective buildings and/or structures and vacate the suit properties on account that they encroached on a railway strip. Enraged by the appellant's unbecoming conduct, the respondents engaged the legal services of R.K. Rweyongeza & Co. Advocates who swiftly replied to the appellant's notices to the respondents expressing that the respondents were rightful owners of the suit properties which were lawfully allocated to them. The letter from Rweyongeza & Co. Advocates warned the appellant to desist from any attempt to evict and demolish the respondents' structures else legal action would follow. As the appellant would not take no for an answer, the respondents were compelled to vindicate their ownership and consequently the suit was lodged before the High Court as alluded to before. In the suit before the High Court the respondents sought to move it among other things, to declare them as lawful owners of the suit properties and an order restraining the appellant from interfering with their peaceful enjoyment. In the alternative, but without prejudice to the earlier prayers, 2 the respondents prayed that the appellant pay them respective compensation to the tune of the total of TZS. 437,000,000.00. On the adversary side, the appellant sturdily contested the claims on account that, the suit properties were within 30 metres of the railway strip and hence the respondents unlawfully encroached upon it. When the suit was ripe for hearing, the High Court framed two issues for determination. One, whether the respondents were lawful owners of the suit properties and, two, to what reliefs are the parties entitled to. In the ensuing case before the High Court the respondents who were plaintiffs produced five witnesses and a host of documentary exhibits (exhibit PI to exhibit P8). On the adversary side, the appellant featured two witnesses and a host of documentary exhibits (exhibits D1 to D9). At the height of the trial, on 17th November 2023, the High Court (Masabo, J.) found out that the 3rd and 4th respondents proved that they are lawful owners of Plot No. 8 Block "L" and Plot No. 8 Block "K" respectively, and therefore, they cannot be held to have encroached on the railway strip. The High Court dismissed the claims by the first and the second respondents. It was further ordered that a survey be carried out to ascertain the extent to which the railway strip stretches into Plot No. 8 Block "L" and Plot No. 8 Block "K" and subsequently, a valuation be conducted by a 3 Government Valuer and the 3rd and 4th respondents be paid compensation accordingly. Each party was to bear their own costs. In the result, the appellant filed this appeal which is grounded upon four points of grievance, namely: 1) That the tria l Judge erred to disregard the testim ony o f the appellant's witnesses and declare them hearsay. 2) That the tria l Judge erred to hold that there was no evidence to prove that paym ent o f compensation was made. 3) That the tria l Judge erred to declare that the J d and 4 h respondents were law ful owners o f the law fully reserved railw ay strip fo r urban areas. 4) That the tria l Judge erred to raise a new issue suo moto and erroneously ordered s u rv e y v a lu a tio n and paym ent o f compensation to the J d and 4 h respondent. In terms of rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the parties lodged written submissions in support of or opposition to the appeal which they prayed to adopt. They further lodged in Court earlier on list of authorities in terms of Rule 34 of the Rules and which they prayed to rely upon during their oral clarifications. However, we hasten to remark that, it will not be possible and practical to recite each and every argument comprised in the submissions but we can only allude to 4 those which are conveniently relevant to the determination of the matter before us. In support of the appeal, Ms, Jenipher Kaaya learned Senior State Attorney teamed up with Ms, Pauline Mdendemi and Ms. Jane Kassanda also learned Senior State Attorneys as well as Mr. Stephen Kimaro and Mr. Fabian Sefu, learned State Attorneys. Arguing in support of the first ground of appeal, Ms. Kaaya faulted the judge of the High Court for what she termed erroneously finding that the testimony of the appellant's witnesses was hearsay and therefore, accorded no weight. She criticised the High Court judge for coming up with that conclusion simply because the appellant's witnesses were not in office when events occurred in 1985. Ms. Kaaya contended that, the finding by the High Court judge was a misconception considering that the appellant's witnesses gave testimony based on records that were kept by the appellant which record were admitted in evidence. She thus, argued that the evidence of the appellant's witnesses was genuine and pure oral evidence and not hearsay as the High Court judge erroneously held. She cited to us the foreign case of Subramaniam v. Public Prosecutor [1956] 1 WLR 965 and our earlier decision in Jongo Mwikola v. Geita Gold Mining Limited [2024] T7CA 125 for the proposition that the appellant's witness testimony was not hearsay since they testified on what they saw and read from the office records and which were tendered on evidence. On the adversary side, Mr. Denis Nyabiri, learned counsel who advocated for the respondent had an opposing view. He maintained that the evidence of the appellant's witnesses was mere hearsay for the reasons that both of them were not employed by the Manyoni District Council when events occurred in 1985 and therefore, their testimonies solely depended on the evidence on record and hence it was hearsay. In relation to the cases cited by the learned state counsel, Mr. Nyabiri argued that, they were inapplicable in the circumstances before the Court. To him, to see or hear through the medium of one's sense, meant to see the actual act and not to see or read a report. Having scrutinized the evidence on record and considering the contending submissions of the learned trained minds, it is, therefore, our view that, we need not travel a long distance on this matter. Trying to define hearsay, Sarkar on Evidence, 15th Edition at page 1042 states that: "...It is a fundam ental rule o f the English law o f Evidence that Hearsay is not admissible. It is one o f the rules which is more known than understood, the reason being that the word \hearsay' is capable o f various meanings and is 6 ambiguous in the extreme. Stephen says: "...the word "hearsay" is used in various senses. Som etim es it means whatever a person is heard to say; som etim es it means whatever a person deciares on inform ation given by someone eise; som etim es it is treated as neariy synonymous with "irrelevant." The law relating to oral evidence in this jurisdiction is covered under subsection (1) of section 67 of the Evidence Act, Cap 6 R.E. 2023 (the Evidence Act) which requires that, oral evidence be direct. That provisions provides: "Oral evidence shall, in a ll cases whatever , ■ be direct evidence; that is to say if it refers to- (a) a fact which could be seen, it m ust be the evidence o f a witness who says he saw it; (b)a fact which could be heard, it m ust be the evidence o f a witness who says he heard it; (c) a fact which could be perceived by any other sense, or in any other manner, it m ust be the evidence o f a witness who says he perceived it by that sense or in that manner; (d) N /A " Based on the foregoing, hearsay refers to evidence given by a witness in relation to information received from a third party, himself not being the 7 person who saw or heard or even perceived it by any other sense. In other words, direct oral evidence means the evidence of a person who heard by himself or saw himself or the person who perceived by any other sense or any other manner and not from a third person. In the matter before us, the appellant's witnesses DW1 and DW2 testified in relation to events that occurred in 1980s which information was found in the office records that were admitted in evidence as exhibits. In our considered opinion, we find this to be direct evidence of what they saw and read on record consistent with subsection (1) of section 67 of the Evidence Act, and therefore, not hearsay as the High Court judge held. For that matter, we find considerable merit in the submission by the learned state counsel and therefore this ground has merit. Ms. Kaaya argued grounds two and three conjointly whose gist of complaint is that the High Court judge erred to find that the 3rd and 4th respondents were not compensated in respect of Plot No. 8 Block "L" and Plot No. 8 Block "K" respectively subject to unexhaustive improvements and therefore, it was erroneous to declare them lawful owners of those plots which were within the railway strip. In her submission, she contended that, it was a total misconception on the part of the High Court to arrive to that conclusion bearing in mind that, the 3rdand 4th respondents were not eligible s for compensation since no unexhaustive improvements were made in their respective plots and this was borne out of the evidence on record. Ms. Kaaya argued further that, the 3rd and 4th respondents were unable to prove that they had unexhaustive improvements during evaluation no wonder there was no any building permit. She thus contended that, the 3rd and 4th respondents were unable to prove that they were entitled to any compensation citing the provisions of section 110 (1) of the Evidence Act, Cap 6 R.E. 2002, now section 117 (1) of the Evidence Act, Cap 6 R.E. 2023. Reliance was placed on the case of Registered Trustees of Joy in the Harvest v Hamza K. Sungura [2021] TZCA 139 TANZLII and Paulina Samson Ndawavya v. Theresia Thomas Madaha [2019] TZCA 453 TANZLII in which we restated the principle enunciated in section 110 of the Evidence Act, now section 117 of the Evidence Act R.E. 2023 that governs burden of proof in civil litigation. Ms. Kaaya urged us to hold that, the 3rd and 4th respondents were unable to prove that they were entitled to compensation and in any case, trespassers are not entitled to any compensation, she argued and cited the case of Tenende Budotela and Another v. Attorney General [2012] TZCA 401 TANZLII. Submitting further, Ms. Kaaya contended that, the finding by the High Court judge that the 3rd and 4th respondents were lawful owners of Plot No. 9 8 Block "L" and Plot IM o. 8 Block "K" was erroneous as it contravened the Railways Act, No. 10 of 2017 more specifically, section 24 (1) which prohibits any human activity within the railway strip which according to section 3 (1) a railway strip is defined to mean, land on both sides adjacent to the railway track measuring thirty meters in width from the center line of the track. Elaborating further, she argued that, since the two plots are within twenty and twenty-four meters from the railway strip, they are within the prohibited area of the railway strip. In response, Mr. Nyabiri spiritedly resisted the argument that the 3rd and 4th respondents did not make any unexhaustive improvements in Plot No. 8 Block "L" and Plot No. 8 Block "K" while there was ample evidence on record indicating that the 3rd and 4th respondents erected buildings way back in 1973 and 1975 respectively. He went on to submit that, this was also supported by the appellant's witnesses who testified that when the railway was built in 1985 the respondents' buildings were already in existence. It was his contention that the respondents did not make any unexhaustive improvements on Plot No. 8 Block "L" and Plot No. 8 Block "K" is unfounded. He further submitted that, the argument that the 3rd and 4th respondents did not have building permits is groundless, since there was no issue on whether the buildings were illegally erected on the two plots in dispute. 10 In response to the argument that the 3rd and 4th respondents encroached upon the railway strip, Mr. Nyabiri had an opposing argument to that of Ms. Kaaya. He strongly challenged the appellant for relying on exhibit D1 a letter which had no legal basis and there was no indication that it was acted upon. Arguing further, the learned counsel faulted the appellant for seeking to rely acquisition of the land in dispute based on the East Africa Railway Corporation Engineering Manual as the basis of the thirty meters from the railway strip knowingly that the manual had no legal basis and also considering that the 3rd and 4th respondents' structures were erected prior to the construction of the Manyoni-Singida railway and they were outside the fifteen meters required by section 4 of the Railways Act, 2002 which also came into force when the 3rd and 4th respondents had already erected their structures. Mr. Nyabiri invited us to take inspiration from the case of GBP (T) LTD v. Tanzania Railways Corporation (TRC) [2020] TZHC 329 TANZLII to support his proposition. Put differently, we understood Mr. Nyabiri to mean that, the thirty metres concept is inapplicable in the circumstances of the case before us, as it was introduced later on, when the Railways Act, No. 10 of 2017 was enacted in 2017 while the 3rd and 4th respondents had acquired the properties in dispute way back in 1970s. We have studiously examined the record of appeal in light of the competing submissions of the learned trained minds in relation to the two grounds which are essentially interwoven. Our starting point in the deliberation of these grounds will involve revisiting the impugned judgment, more particularly at page 652 of the record of appeal where it reads: "As to the documentation renderedexhibit D1 shows that the railw ay reserve had a size o f 30 m eters from the railw ay track. Unfortunately, it is silent as to its legal basis. To unravel the truth , I have carefully read the relevant law starting with the Tanzania Railway Corporation , 1977 which was in force in 1985. However, it is silen t on this issue. Its successor, the Railways Act, 2002sheds some light. It described the size o f the railw ay reserve (ra il strip) to mean the land on both sides o f the railw ay track measuring, in urban areas, 15 m eters and in rural areas 30 m eters from the center line o f the track. Section 2 o f the Railways Act, 2002 which was repealed by the Railways Act, 2017 described the size o f the railw ay track measuring, in urban areas, 15 m eters and in rural areas, 30 m eters from the centre line o f the track. Only after the enactm ent o f the Railways Act, 2017 did the size o f the ra il strip for urban areas ascended from 30 m eters to 60 meters, that is 30 meters from the centre line o f the railw ay track on each side." 12 Furthermore, the High Court went on to provide at pages 652 and 653 : "Be it as it may, the J d and 4 h plaintiffs cannot be held to have encroached into the railw ay reserve as the railw ay found them legally occupying the plots. It follow s that, if a t the construction o f the railw ay in 1985 it appeared that the designated 15 or 30 meters, railw ay reserve stretched into Plot No. 8 Block L and Plot No. 8 Block K and thereby making them candidates for com pulsory acquisition, the owners o f such plots ought to benefit from the provisions o f the Land Acquisition A ct This A ct sets out the conditions to be com plied with in sim ilar circum stances...." From the above excerpt, a number of issues emerge for our consideration before we can fault the impugned judgment as urged by the appellant. Clearly, the East Africa Railway Corporation Engineering Manual which was the basis for the thirty meters from the railway strip had no legal basis at all. The Tanzania Railway Act, 1977 which was repealed by section 62 (1) of the Railways Act, 2002, was still in force in 1985 when the Manyoni-Singida railway was constructed. This Act was conspicuously silent on the railway strip. It was not until when the Railways Act, 2002 was enacted and which came into force on 26th April, 2002, that the railway strip 13 was defined by section 4 to mean the land on both sides of the railway track measuring, in urban areas, 15 meters and in rural areas 30 meters from the center line of the track. It has to be noted that the appellant by the time the Railways Act, 2002 was enacted they had already erected the structures in the plots under dispute. We further wish to point out that, the thirty meters in width from the centre line of the track on both sides adjacent to the railway track was introduced for the first time when the Railways Act, No. 10 of 2017, Cap. 170 of the R.E. 2023 was enacted and came into force on 13th October, 2017. There is no denying that the Railways Act, No. 10 of 2017 which is the basis of the thirty meters from the railway strip the subject of this dispute came into force while the suit subject of this appeal was already pending in court, considering that it was lodged in court for the first time on 25th August, 2017 while the law came into force on 13th October, 2017. We therefore, find considerable merit in the submission by Mr. Nyabiri that, there was no legal basis for the appellant's claim that the 3rd and 4th respondents encroached into the thirty meters from the railway strip. We equally, find that there is unshakable evidence that the 3rd and 4th respondents were not paid compensation as the appellant was unable to prove that Plot No. 8 Block "L" and Plot No. 8 Block "K" was among the plots 14 whose compensation was paid. It bears reaffirming that, a party who alleges anything in his favour also bears the evidential burden and the standard of proof is on the balance of probabilities which 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. There is, in this regard a long line of authorities to that effect, see, for instance, Anthony M. Masanga v. Penina (Mama Mgesi) and Another [2015] TZCA 556 in which we discussed this with sufficiency lucidity but also referred to our earlier decision in Attorney General & Others v. Eligi Edward Massawe & Others [2006] TZCA 187. Under the circumstances, these grounds fail. Next, we will deliberate on the fourth ground whose criticism was that the High Court judge erred to raise a new issue suo motuand order survey, valuation and payment of compensation for the 3rd and 4th respondents into the railway strip. In support of this ground, Ms. Kaaya contended that the High Court judge raised a new issue in the course of composing judgment. Elaborating, she argued that, having decided that the 3rd and the 4th respondents are lawful owners of the disputed plots, she went ahead and raised suo moto the issue of the plight of the 3rd and the 4th respondents' ownership under the Railways Act, No. 10 of 2017. Ms. Kaaya further submitted that, having raised that issue, the High Court judge solely 15 determined it and reached to the conclusions that, a survey should be conducted to ascertain the extent to which the railway strip stretches into the 3rd and the 4th respondents' plots. Ms. Kaaya went ahead to argue that, the High Court judge further ordered that, upon survey being conducted then valuation be done by a Government valuer and then compensation be made. Ms. Kaaya was resolute that, the act of the High Court judge was contrary to the law and cited article 13 (6) (a) of the Constitution of the United Republic of Tanzania of 1977 which stresses the right to a fair hearing and cited to us the case of Said Mohamed v. Muhusin Amiri and Another [2022] TZCA 208 TANZLII and Wegesa Joseph Nyamaisa v. Chacha Muhogo [2018] TZCA 224 TANZLII for the proposition that when rights and duties of any person are to be determined that person shall be entitled to a fair hearing. On the adversary side, Mr. Nyabiri was fairly brief and to the point. He contended that, this criticism was unmerited for the reasons that it was not raised during the composition of the judgment but rather it was pleaded in the plaint and the respondents prayed in their testimonies. For that matter, Mr. Nyabiri urged us to dismiss this ground. 16 We hasten to point out that, this ground presents no difficulty. As rightly argued by Mr. Nyabiri the complaint by Ms. Kaaya has no merit and the reason is not far-fetched. A cursory evaluation of the record of proceedings clearly indicates that the respondents pleaded in the Plaint as an alternative prayer at page 163 of the record of proceedings paragraph 8. Furthermore, the 4th respondent at page 391 of the record of proceedings prayed that, in the event the defendant (now the appellant) wants the said plot of land, a valuation should be done and compensation be made to the respondents. On the other hand, the 3rd respondent at page 424 of the record of proceedings prayed that, if the defendant wants to take the area they should compensate him. We feel compelled to state that, the High Court judge did not raise that issue suo motu as the appellant sought us to believe, but rather, she was justified to consider the prayers by the 3rd and 4th respondents which was one of the issues framed by the parties for determination as we earlier on stated. In any case, this was also raised in the Plaint, and it is a peremptory principle of law that parties are bound by their pleadings and the court is also bound by the pleadings of the parties. We accordingly dismiss this ground. 17 In view of the foregoing, save for the first ground which we have allowed, we find no merit in the appeal and we are loath to meddle with the findings of the High Court and we dismiss it with costs. DATED at DODOMA this 28th day of October, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered Virtually this 6th day of November, 2025 in the presence of Ms. Mariam Selemi, learned State Attorney for the Appellant, Ms. Amina Kachenje, learned Counsel for the Respondents and Ms. Nise Mwasalemba, Court clerk, is hereby certified as a true copy of the original. 18