Yohanes Mbavai vs Ng'ida Loisullie Mollel (Civil Appeal No. 329 2020) [2023] TZCA 17725 (4 October 2023)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MWARIJA. J.A.. KEREFU, J.A.. And MAKUNGU. J.A.^ CIVIL APPEAL NO. 329 OF 2020 YOHANES MBAVAI..................................................................... APPELLANT VERSUS NG'IDA LOISULIE M OLLEL........................ . .............................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Arusha) (Mzuna. J.) dated the 7th day of February, 2020 in Land Case No. 76 of 2017 JUDGMENT OF THE COURT 22n d September & 4th October, 2023 MAKUNGU. J.A.: This appeal arises from the decision of the High Court of Tanzania at Arusha (Mzuna, J) in Land Case No. 76 of 2017 (hereinafter "the suit"). In that court (the trial court), therespondent, Ng'ida Loisulie Mollel (now deceased) instituted the suitagainst thepresent appellant, Yohanes Mbavai seeking to be declared a lawful owner of a piece of land measuring five (5) acres of which about 1.5 acres are located on the side of Oldadai area and about 3.5 acres are located at Sokon II area, both in Sokon II Ward ("the suit land"). i

The respondent contended that he was the legal occupier of the suit land in which he obtained the same from his father Loisulie Longine in 1983 before his death in 1984. At the trial, the respondent who testified as PW1, claimed that the appellant had invaded and trespassed into the suit land. The appellant totally refuted the respondent's claim in his written statement of defence. He claimed that the suit land was given to him by his late father Mbavai in 1995, he started to develop the same and had already erected several buildings. It was his testimony that, even before 1995 the suit land was owned by his late father who inherited it from his grandfather. It seemed to be a highly contested trial, both sides summoned three witnesses and the trial court had two witnesses at the locus in quo. The respondent's case was founded on Ng'ida Loisulie Mollel (PW1), Ndulumi Mitinyiku (PW2) and Laban Malalo (PW3) while the appellant relied on the evidence of Yohanes Mbavai (DW1), Nathanael Meng'oriki Mollel (DW2) and Gidion Ngaeni Mollel (DW3) and for the trial court Edward/Bosco Mollel (C T W 1) and Nengariba Mbavai (CTW2). The material facts as may be gleaned from the record of appeal are as follows: -

The respondent alleges that the suit land was given to him by his late father in 1983 before he passed away in 1984. It was trespassed by the appellant on 15th October, 2016. He claimed that the dispute started way back between his father and the appellant's father where in 1980 the clan meeting was convened to settle the dispute whereof the respondent's father wanted to break the pot (traditional, cultural, spiritual believes) but to avoid the calamities the appellant's father promised to return the suit land to the respondent's father. The appellant's father passed away in 2002 before he could fulfil his promise. That move prompted the respondent to institute the suit praying for the above declaration. On the other side, the appellant denied the claim of the respondent in his written statement of defence. As shown above, he claimed to be the lawful owner of the suit land after being allocated the same by his late father way back in the year 1995 after which he started developing it. He denied having trespassed into that land. In the final analysis, the respondent emerged a winner and was declared the lawful owner of a piece of land measured Vi acre only. That decision did not amuse the appellant hence this appeal. 3

In this appeal the appellant has accessed the Court seeking to impugn the trial court's decision through a memorandum of appeal premised on nine grounds as follows: 1 . That, the trial judge erred in law and in fact in accepting and rely on documentary evidence which was not pleaded in the pleadings and not served to the appellant contrary to the principles of natural justice. 2. That, the trial court erred in law and in fact in holding that the land in dispute was part of the land narrated in document tendered as ID I a fact which has never been proved. 3. That, the trial court erred in law and in fact when it turned itself into a witness instead of an umpire during visiting locus in quo. 4. That, the trial court erred in law and in fact in holding that the appellant late father admitted not owned the disputed land. 5. That, the trial court erred in law in entertaining a matter which is time barred. 6. That, the trial court erred in law and in fact in terming the appellant and his late father as invitees contrary to what was pleaded and proved in court. 7. That, the trial court totally misconceived and misapplied the term trespasser.

8. That, the trial court erred in law in relaying on a sketch map and measurements which were neither pleaded nor availed to the parties.
9. That, the trial court erred in law and in fact in relying on contradictory evidence in the respondent case hence arriving into a wrong verdict. When the appeal came for hearing before the Court on 20th February, 2023, the record shows that, the Court was informed by Mr. Maeda that the respondent passed away on 2022 but he was not aware if any appointment has been made of an administrator of the deceased's estate. He prayed for the hearing to be adjourned to give the deceased's family or other interested party an opportunity to process the appointment of an administrator of the deceased's estate so as to comply with rule 105 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). Accordingly, the hearing was adjourned in terms of rule 38A (1) of the Rules. When the appeal came for hearing before us on 18th September, 2023, the respondent or any family member did not appear in Court. Mr. Maeda prayed for leave of the Court to adjourn the hearing of appeal within the ongoing session to ascertain the actual date of the respondent's 5

death so as to decide on the way forward. We adjourned the hearing until on 22n d September, 2023. At the hearing of the appeal on 22n d September, 2023, Mr. Elibariki Maeda, learned advocate, appeared representing the appellant who was also present in Court. On the other side, Mr. Joseph Moses Oleshangai, also learned advocate appeared representing the respondent. At the outset, Mr. Oleshangai sought leave to withdraw his service from representing the respondent for the reason that he received the notice of hearing but he had no proper instruction from him or his family. We granted the prayer and he was discharged from the conduct of the case. During the hearing, Mr. Maeda informed us that he received a letter from the Ward Executive Officer of Sokoni II Ward which confirmed that, the respondent passed away on 23r dJuly, 2021. On that basis, he prayed to proceed with the hearing in the absence of the respondent since twelve (12) months had already lapsed in terms of rule 105 (2) of the Rules, and so far no action has been taken on the part of the respondent's family to appoint an administrator. We granted the prayer and ordered that the matter should proceed with the hearing of the appeal in the absence of the respondent. The parties, had duly lodged their written submissions in terms of rule 106 (1) and 106 (7) of the Rules. 6

Mr. Maeda adopted the written submissions in support of the appeal. He confidently, said that the submissions sufficiently clarified the grounds of appeal. However, he prayed just to elaborate on the few of them. He argued the above first and second grounds together then grounds six and eight separately. On the first and second grounds, Mr. Maeda submitted that the respondent lodged his plaint without any annexed documents in support of his claim as required under the Civil Procedure Code. He submitted further that the respondent tendered his documentary evidence at the time when his last witness had finished testifying and the respondent's case was closed. He referred us to pages 32 and 33 of the record of appeal. He added that the appellant did not have the chance to cross- examine on them which is contrary to the principles of natural justice of the right to be heard. He went on to state that, the learned trial Judge misdirected himself when he held that the land in dispute was also the subject matter in document tendered as IDI (Judgment in Misc. Land Appeal No. 8 of 2015) while there is no any evidence in that judgment which shows that the description of the land in dispute is part of the land in dispute in the said judgment. Further to that, the judgment itself did not disclose the boundaries similar to the land in dispute to warrant the trial court making such conclusion, he added. He referred us the case of 7

Abdalla Abas Najim v. Amini Ahmed AM [2006] T.L.R. 55. He concluded that it was wrong for the trial judge to admit those documents and also to take judicial notice as he did. He prayed for the two grounds to be allowed. On ground six, the appellant faults the trial court for terming them as the invitees and not trespasser as pleaded in the plaint. The learned advocate submitted that, parties are bound by their pleadings and it is the pleadings that enable the parties to frame issues and prove them in court. He elaborated that the trial judge erred when he termed the appellant and his late father as invitees to the suit land while it was not among the framed issues and there is no point the respondent in his pleadings asserts the same, but rather he pleaded that the appellant and his father are the trespassers. He referred us at page 89 of the record of appeal and in respondent's plaint at paragraph 4. The appellant's learned advocate pointed out that in his testimony the respondent (PW1) alleged his aunt to have invited the appellant's father but she was not called as a witness to prove the invitation. He concluded that the question of the appellant's father as invitee was never raised in pleadings and the trial court erred in entertaining and deciding on it without inviting the parties especially the appellant, to bring witnesses and evidence to that effect. He prayed that this ground be allowed. 8

The last ground discussed by Mr, Maeda was ground eight related to a sketch map and measurements which were neither pleaded nor availed to the parties. He submitted that the sketch map with information leading to it was not availed to the parties which is irregular. He submitted further that the respondent failed to prove 5 acres that he pleaded in his plaint and the learned trial Judge erred in pronouncing judgment in favour of the respondent by awarding V 2 acre without any measurement or proof where V 2 acre came from. He prayed this ground also to be allowed. Lastly, he prayed the Court to consider the oral submission on those grounds and the written submission on the rest of the grounds. He prayed the appeal be allowed. Replying, on the first and second grounds of appeal, the respondent in his written submission, submitted that at page 33 of the record of appeal shows, among other things, that, the trial Judge received two copies of court decisions for identification purposes only, one being of Enaboishu Primary Court in Shauri la Mirathi No. 18 of 2017 and Misc. Land Appeal No. 8 of 2015 of the High Court. He urged the Court to disregard the case of Abdalla Abass (supra) cited by the appellant as irrelevant and distinguishable. He prayed the two grounds be dismissed. 9

Replying on the 6th ground of appeal, the respondent briefly submitted that in his written submission the appellant has not submitted any proof of ownership of the said land, and all key witnesses who appeared before the trial court testified that he and his father were invitees. He contended further that the appellant admitted to be a trespasser as reflected at page 10, paragraph 3 of his written submission. Therefore, this ground has no merit. As for the 8th ground of appeal regarding the sketch map, the respondent replied that both parties were present during the visit of the locus in quo and witnessed how the appellant trespassed into the respondent's land and the trial court drew a map of the said area for ease of reference. He added that the same was not at ali relied upon by the trial court in reaching its decision and that the allegation by the appellant remained to be a worthless defence that deserves a credit of dismissal. He prayed the court to dismiss the entire appeal. We have examined the record of appeal and considered the contending submissions of the parties as well as the authorities cited. In our view, the appeal turns on two main issues; first, issue touching on procedural irregularities and secondly, whether the evidence on record proved the respondent's claim. 10

The first of such irregularities relates to the trial court wrongly accepting and relying on the documents which were neither pleaded nor availed to the appellant. This was the appellant's complaints in the first and second grounds. On these grounds Mr. Maeda urged us to allow them arguing that the documents were wrongly admitted and relied upon by the trial court. He prayed for the same to be expunged from the record of appeal. The respondent supported the move taken by the trial court and found to be right. We respectfully agree with the appellant's counsel being satisfied that the record of appeal clearly shows that the respondent produced the documents during the closing of his case as shown at page 32 of the record of appeal and the trial court admitted as shown at page 33 of the record of appeal. We shall have the record speak for itself: "Court: I have carefully considered the arguments advanced for and against the prayer to tender the exhibits by the plaintiff. As a matter o f taw he ought to have annexed them to the plaint. However, I would agree to admit two judgments o f the court. Judgment and a Probate case appointing him as the administrator. They are received (2 judgments and Probate case) for information (Id) only and court is not bound to rely on them." ii

It is clear from the above order of trial judge, the documents were unprocedurally received. Another point we note is that the said documents were not the ones the respondent requested to tender. At page 32 of the record of appeal the proceeding reads as follows: "Plaintiff: I have dosed my case however, I have the exhibits I want to tender like the arobaini and dan meeting not to break the p o t" (Emphasis added) It is clear that the documents received by the trial court were not the ones produced by the respondent. It is even not clear to us on how the two judgments found their way in the trial court proceedings. We agree with the appellant counsel's submission and hereby expunge the so-called exhibit ID1 from the record of appeal as we are satisfied that its admission offended the principle reflected in so many of our previous decisions, including Robinson Mwanjisi & 3 Others v. R [2003] T.L.R. 218. The two grounds are accordingly allowed. Next in the procedural irregularities relates to the unprocedural admission of the sketch map and measurements the subject of the appellant's complaint on ground eight. Mr. Maeda invited us to expunge or disregard that document because it was prepared by the trial court 12

without involving the parties. We agree with Mr. Maeda and hereby disregard that document as we are satisfied that its preparation and admission done without involving the parties. It is our strong view that the learned trial Judge ought to have invited the parties to witness the process by putting their signatures. We think the omission by the trial Judge is an irregularity which is not curable. In the upshot, we allow this ground of appeal. Having so held, the next issue for our consideration and determination is whether the evidence on record proved the respondent's claim. The matter is straight forward as the record speaks it all. We have considered the following facts, which were established during the trial relating to the respondent's claim that, One, he failed to prove 5 acres claimed in the plaint. Two, he never had physical occupation of the suit land (see page 22 of the record of appeal). Three, he never called his aunt or any other witness to prove that the appellant and his late father were invitees. And four, which is more important, the contradictory evidence of the respondent that the appellant is trespasser at the same time is invitee. It was also not clear whether the respondent was given the suit land by his late father in 1983 or inherited from him as he was appointed as an administrator of the estate of his late father in 2017. These were the facts or matters peculiarly within the respondent's own 13

knowledge therefore, he had the burden to adduce evidence to prove the same. As we have demonstrated above, it is our firm view that the learned trial Judge would have found that the respondent's claim was not proved had he considered all evidence on record. Therefore, we agree with the submission advanced by the appellant's learned counsel that the evidence on record was not sufficient enough to give right to the respondent. In view of what we have endeavoured to discuss, the appeal is meritorious and we allow it DATED at ARUSHA this 4th day of October, 2023. The ruling delivered this 4th day of October, 2023 in the presence of Mr. Elibariki Maeda, learned advocate for the applicant and in the absence A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL of t\ is hereby certified as_aJmgcopy of the original.