Mary Agnes Mpelumbe vs Shekha Nesser Hamud (Civil Appeal No. 136 of 2021) [2022] TZCA 3035 (8 July 2022)

MARY AGNES MPELUMBE in her capacity as Administratrix of the Estate of ISAYA SIMON MPELUMBE v. SHEKHA NESSER HAMUD COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (NDIKA, KENTE, MAKUNGU, JJ.A.) CIVIL APPEAL NO. 136 OF 2021 (From the Decision of the High Court of Tanzania, Land Division at Dar es Salaam) (Nchimbi, J.) dated the 28th day of November, 2013 in Land Case No. 89 of 2013) Evidence Law- Burden of proof - person alleges existence or non-existence of a fact-Whether he has a burden to prove. Evidence Act-evidence and proof in civil proceedings- Standard of proof in civil cases. Evidence Act- Burden of proof - whether the burden of proof shifts Civil Practice and Procedure – Documentary Evidence – Authenticity of Evidence - whether the court has to examine documents. This appeal arose from the decision of the High Court of Tanzania (Land Division) in Land Case No. 89 of 2008, where the appellant, Isaya S. Mpelumbe (now deceased), sought to be declared the lawful owner of Plot No. 224, Block "D" at Tegeta, Dar es Salaam, based on a right of occupancy granted to him in 1994. The respondent, Shekha Nasser Hamud, denied the claim, asserting that the disputed land was allocated to her in 1986, supported by a letter of offer. The appellant contended that the respondent's document was forged, and the dispute over land ownership was compounded by a double allocation involving forgery, as testified by Ndemi Festo Ulomi (DW2), an official from the Ministry of Land Administration. The High Court ruled in favor of the respondent, and the appellant, aggrieved by this decision, filed an appeal. The Court directed the parties to address two specific grounds of appeal: (1) whether the High Court erred by failing to determine whether the respondent's letter of offer was a forged document, and (2) whether the High Court erred by not analyzing and evaluating the authenticity of the respondent’s letter of offer.

Held: (i) The burden of proof lies in the party who alleges, as provided under section 110 of the Evidence Act, Cap. 6 R.E. 2022, and in civil cases, the standard of proof is based on the preponderance of probabilities. (ii) The burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his burden and that the burden of proof is not diluted on account of the weakness of the opposite party's case. (iii) It is the duty of the court to examine the authenticity of documents presented, rather than focusing solely on their dates of issue, to ensure they were legally issued. Appeal allowed Statutory Provisions referred to: (i) Evidence Act, Cap. 6 R.E 2019 Sections 34 and 110 (ii) Court of Appeal Rules Rule 36(1) Cases referred to: (iii) Jamal A. Tamin v. Felix Francis Mkosamali & the Attorney General, Civil Appeal No. 110 of 2012 (unreported). (iv) Paulina Samson Ndawanya v. Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 (unreported) (v) Patman Garments Industries Limited v. Tanzania Manufacturing Ltd [1981] TLR 303 Mr. Novatus Michael Muhangwa, Learned Counsel for the appellant. Mr. Gasper Nyika, learned Advocate for the Respondent.