Mwajuma Ramadhani & Another vs Amina Mrisho Lugowi (Civil Appeal No.. 0001628 of 2024) [2025] TZCA 1138 (16 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CQRAM l GALEBA, J.A.. MGEYEKWA, J.A. And MLACHA. J.A.- > CIVIL APPEAL NO. 0001628 OF 2024 MWAJUMA RAMADHANI ................................................ 1 st APPELLANT SADA HASSAN................................................................. 2 nd APPELLANT VERSUS AMINA MRISHO LUGOW I................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Mgrnfrj, J,) Dated the 18th day of October, 2024 in Land Appeal No. 26741 of 2023 J U D G M E N T O F T H E C O U R T 6th & 16th October ■ 2025 GALEBA. J.A.; The parties to this appeal are neighbors. They are also quite senior citizens, because at the trial of the case from which this appeal arises in 2023, none of them was below 66 years of age. The dispute between them is essentially a misunderstanding as to where the boundary demarcating their respective pieces of land is traceable. It was lodged in the District Land and Housing Tribunal for Tabora (the DLHT) in Land Application No. 70 of 2020, where the respondent was mainly seeking a declaration of ownership over Plot No. 476, Block 'BB'

Kiloleni area, Tabora Municipality (the suit land), along with a perpetual injunction restraining the appellants from trespassing upon it. The background facts of the case are that, in the year 2003, the respondent bought a parcel of land from one Haji Ally Mwinula at Kiloleni area in Tabora. The sale was witnessed by one Ramadhani Swalehe, the first appellant's father in the capacity of a local ten-cell leader. It appears however that, the land had been surveyed, and in 2013 the respondent was issued with a Certificate of Title No. 845 (exhibit P2), which shows that she is the lawful owner of the suit land. At a certain stage, the respondent came to learn that the appellants were encroaching on her plot, and that is when she filed Land Application No. 70 of 2020 at the DHLT. On the other hand, the first appellant alleged that she was given the land by her deceased father one Ramadhani Swalehe, in 2011. The second appellant's position was that her family, meaning her husband and herself bought the land in 1959, and have since been occupying it. After hearing the case, on 9th September, 2022 the DLHT (Waziri, Chairman) declared the respondent Amina Mrisho Lugowi as the lawful owner of Plot No. 476 Block "BB" Kiloleni in Tabora. That decision aggrieved the appellants. So, they lodged Land Appeal No. 3 of 2022 (the first appeal) to the High Court at Tabora.

That appeal was transferred to the Court of the Resident Magistrate at Tabora where it was heard by Kato PRM with extended jurisdiction. At pages 138 and 139 of the record of appeal, in his judgment, Kato PRM made the following observation and order; "Having gone through the evidence on recordI have observed that the appellants are complaining to be the lawful owners o f disputed land for long time before land survey. At the same time, the respondent is complaining that she is a lawful owner o f the trespassed plot o f land. The respondent may be allocated that land after survey but no evidence that the appellants were compensated after land survey, when the plot was allocated as Municipal land/surveyed area. Therefore, forjustice to be done, the trial court was bound to summon the Municipal Land Officer to state on how he allocated the disputed land to the respondent without paying compensation to the appellants. According to section 47 of the Evidence Act Cap . 6 R.E. 2019, the expert was key witness in this case to testify on how he surveyed the disputed land and allocated it to the respondent, instead, he was not summoned, hence justice was not fairly 3

done . With my findings with regard to the evidence on record, no independent witness who was summoned as independent witness but the appellants and the respondent. Therefore , it is dear that the case/matter was not sufficiently proved at the lower court/District Land and Housing Tribunal. Therefore, with my findings, this matter must be heard afresh at the District Land and Housing Tribunai before another Hon . chairman with competent jurisdiction. Therefore, appeal is partly allowed and each party to bare its own costs." [Emphasis added] In compliance with the above order, the original record was remitted to the DLHT for a hearing de novo in compliancewith the directives above. At the DLHT, the matter was assigned to Mourice, Chairman. It was then reheard and the parties closed their respective cases. In an attempt to fully comply with the above order, after closure of the case following a retrial, the DLHT at pages 185 of the record of appeal, observed: "BARAZA: Pia Baraza Hmempigia simu Mkuu wa Idara ya Upimaji Bwana Dickson Juma Washokera Hi ajef na alikubali kuwa atakuja hata leo baada ya kumpigia simu na kuahidi

atafika muda si mrefu. Baraza iimemsubiri kwa muda mrefu bi/a mafanikio. Hivyo shauri Utaendelea na hatua nyinginezo. AMRI: 1. Majumuisho tarehe 15/09/2023. 2. Hukumu: 20/09/2023. Mourice Mwenyekiti 13/09/2023" Therefore, without any evidence from the Municipal Land Office as ordered, the DLHT went ahead to pronounce judgment on 20/09/2023. In that judgement the appellants lost for the second time in favour of respondent. They were aggrieved, so they filed Land Appeal No. 26742 of 2023 (the second appeal) in the High Court at Tabora. The High Court, Mambi J. considered the parties' grounds of appeal, and dismissed it on 18th October, 2024. This appeal is challenging that dismissal. The appellants raised 5 grounds of appeal, but one of them may be paraphrased thus: "the learned Judge erred in law and fact when he decided in favor o f the respondent based on the survey plan indicating Plot No. 476 Block "BB" Kiloleni as the respondent's property, while disrespecting the old boundaries since 1961."

This ground of appeal would not have come up, had the order of Kato PRM in the first appeal been complied with. The necessity of compliance with Kato PRM's order of summoning a relevant Municipal Officer is compounded by what one learns from the questions and answers between the second appellant and the respondent during cross examination of the former at page 181 of the record of appeal. It goes: "Amina Mrisho, question: Eneo hi/i Hmepimwa? Sada Hassan, answer: Umepimisha matape/i. Amina Mrisho, question: Mipaka ya upimaji wa ardhi si uiifanyika 1994? Sada Hassanf answer: Ni kweii. Amina Mrisho, question: Kiwanja chako ni namba ngapi? Sada Hassan, answer: Nimekisahau. Amina Mrisho, question: Kwa nini hukumshitaki afisa ardhi aiiyetupimia? Sada Hassan, answer: M/impa rushwa." In our view, the above questions surrounding surveying the land and issuing a title deed to the respondent could be better clarified by a competent municipal officer in matters of survey and land delivery from Tabora Municipal Land Office, as was ordered by Kato PRM. Only then, justice would be seen to be done. 6

In any event, Mourice, Chairman of the DLHT had no option to ignore the order of Kato PRM as he did. He was duty bound to ensure that the witness was properly summoned to attend the tribunal and give evidence. We have scrutinized the record before us, but have failed to trace a summons from the tribunal or a written communication bringing the order of Kato PRM to the attention of any appropriate officer at Tabora Municipality to attend the tribunal session and give evidence. We noted too that someone from the DLHT made a call and the person called did not attend to give evidence. That way, the order of Kato PRM, which was equivalent to the order of the High Court, was simply ignored. That non compliance was an irregularity that we cannot, in the circumstances, uphold. At the hearing before us, both sides appeared without legal representation. The appellants contended that the respondent was encroaching on their land using the title deed they do not recognize, so they want justice to be done. On the other hand, the respondent complained that she has a title deed, and has defeated both appellants before every forum to which they have complained about this matter, so we must affirm that the appellants are the ones trespassing on her registered plot.

Against the foregoing discussion, and most of all in the interest, not only of justice of the case, but also of fairness to the parties, we are of the firm position that resolving the dispute between the parties after taking into account what a relevant witness from Tabora Municipal Land Office has to say on the matter, is of critical importance. This is so because, the appellants seem to have issues with planning the area and surveying it without them knowing, which might be resolved by a witness from the Planning Authority which is Tabora Municipality. That said and done, we invoke this Court's powers of revision as per section 6 (2) of the Appellate Jurisdiction Act, and make the following orders: (1) That all proceedings and orders of the DLHT in Land Application No. 70 of 2020, up to and including the parties' respective closures of their cases at page 184 of the record of appeal, are valid proceedings. (2) The order of the DLHT, Mourice, Chairman, dated 13th September, 2023 at page 185 of the record of appeal, ignoring to summon an Officer from Tabora Municipal Land Office as a witness, is hereby nullified. (3) Both judgments of the DLHT by Mourice, Chairman dated 20th September, 2023, and that of the High Court, Mambi J, dated 18th October, 2024, are hereby quashed.

(4) The order of Kato PRM with extended jurisdiction dated 16th December, 2022, be complied with. (5) The original record of the matter be remitted to the District Land and Housing Tribunal for Tabora to issue a summons according to law, or make a deserving communication with the Municipal Authority in order to procure a proper officer who can assist the tribunal and parties on any issues or questions they may have, and to identify the boundaries of the respondent's plot. With the evidence from such officer, the Tribunal shall take into account the evidence of the parties already on record and compose a fresh judgment according to law. (6) If Mourice, Chairman and the set of assessors who assisted him in the affected proceedings are readily available, they may take up the matter. If they are not at the station or are not readily available, any new chairman and a new set of assessors may hear the matter. It is also advisable that rehearing of the parties' dispute need to be expedited because as we indicated at the beginning of this judgment, parties to this matter are not young girls or women, Sada Hassan at the hearing in 2023 was 79. At the hearing before us, she was complaining of serious impairment of her hearing ability. Amina Mrisho Lugowi cannot walk, she was brought to the open court being held like a baby in the palms by a certain young man. Mwajuma 9

Ramadhani is not young either, at the hearing in 2023, was 66 years old. Finally, considering the nature of the dispute and the parties to it, we make no order as to costs. DATED at TABORA, the 15th day of October, 2025. Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 16th day of October, 2025 in the presence of 1s t and 2n d appellants in person unrepresented, in the absence of the respondent but one Musa Juma Kangwela a son of the respondent appeared and Ms. Janekisa Bukuku, Court Clerk, is hereby certified as a true copy of the original.