Cosmas Anton Itungulu vs Timoth M. Irunde (Civil Appeal No. 235 of 2023) [2025] TZCA 1086 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: NDIKA. J.A- KIHWELO, J.A. And NGWEMBE, J.A.) CIVIL APPEAL NO. 235 OF 2023 COSMAS ANTON ITUNGULU (As Administrator of the estate of the late MTINANGI ITUNGULU) ..... ....................... APPELLANT VERSUS TIMOTH M. IRUNDE..................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dodoma) ( Kaoomba, J.) dated the 30th day of August, 2021 in Land Appeal No. 09 of 2018 JUDGMENT OF THE COURT 7th & 13th October, 2025 KIHWELO. J.A.: The appellant herein, seeks the reversal of the decision of the High Court of Tanzania at Dodoma (Kagomba, J.) in Land Appeal No. 09 of 2018, dated 30th August, 2018 which disallowed his appeal against the decision of the District Land and Housing Tribunal (the Tribunal) for Singida which was decided in favour of the respondent. i

The pith and marrow in the instant matter is the battle over ownership of a piece of land described as Plot No. 144 Block "A" situated at Ikungi District in Singida Region (henceforth "the suit property")- The genesis of the dispute dates way back to 19thAugust, 2016 when the respondent lodged an application before the Tribunal, Land Application No. 74 of 2016 (the impugned application). In that impugned application, the respondent sought to move the Tribunal to declare him the rightful owner of the suit property and the appellant a trespasser. Before the Tribunal, the case for the respondent was built up through the testimonies of two witnesses, the respondent himself who testified as PW1 and Joseph Hema Kibwanda who testified as PW2. In his testimony the respondent informed the Tribunal that he acquired the suit property back in 1982 following official allocation by the then Singida District Council prior to the establishment of the current Ikungi District Council. It was the respondent's further testimony that, subsequently he was issued with a Letter of Offer as evidence of ownership of the suit property, but quite unfortunately that Letter of Offer got lost and the respondent reported the matter to the police and a police loss report dated 27th June, 2016 was issued.

According to the respondent, in 1986 he erected a building in the suit property but afterwards he left Ikungi and as civil servant was transferred from one region to the other between 1986 to 2014. He testified further that, when he came back, he was surprised to find the appellant's father trespassed onto the suit property and built a number of shops which compelled him to formally complain to the District Executive Director of Ikungi who advised him to lodge a formal application before the Tribunal, following which the respondent lodged the impugned application. The respondent tendered before the Tribunal a complaint letter he wrote to the District Executive Director which was admitted in evidence as exhibit PI. He further tendered a response letter from the District Executive Director which was also admitted in evidence as exhibit P2. The respondent's testimony was supported by the evidence of PW2 a mason who built his house on the suit property way back in 1983 and affirmatively confirmed to have known the respondent as the owner of the suit property who spent most part of his life living outside Ikungi before retirement from civil service. On the other hand, the appellant (DW1) stoutly resisted the application and his line of argument was that, the suit property belonged to his late 3

father who purchased it on 21s t June, 1996 from one Said Hassan of Matale Village and that in 1996 he erected a building on the suit property. In his further testimony he told the Tribunal that his father died on 2n d November, 1996 and he inherited the suit property in April 1997. According to his further testimony, originally the said Said Hassan bought the suit property' from the respondent on 29^ October, 1992 and that the last time the respondent paid land rent was in 1988 while the appellant paid land rent for the last time in 2012 and tendered in evidence the land rent receipt as exhibit Dl. The appellant has built a number of shops in the suit premises, he finalized. Apart from the appellant, one Hamis Salimu Muomba (DW2) testified in his support. In his testimony, DW2 testified to have known the appellants father and the fact that he owned the suit property after acquiring it from one Said Hassan and that he witnessed the sale transaction when the respondent's father sold to Said Hassan and when Said Hassan sold it to the appellant's father. At the height of the trial the Tribunal found that the respondent proved that he was the rightful owner of the suit property through the exhibits which were tendered in evidence, he was thus, declared the rightful owner and the appellant was declared a trespasser. The application was found to be

meritorious and the appellant was ordered to demolish his fixtures from the suit property. Unhappy, the appellant approached the High Court armed with three grounds of appeal challenging the impugned decision. After hearing to the parties, the High Court found in the balance of probabilities that the evidence of the respondent was more credible than that of the appellant and therefore, disallowed the appeal as hinted earlier. This is what precipitated the present appeal before us. The appellant has filed this appeal which is grounded upon three (3) points of grievance. One; the trial Tribunal and the first appellate court erred in holding that the respondent proved the case on the balance of probabilities. Two; the trial Tribunal and the first appellate court erred in making a finding that the sale agreement had no legal basis, and three; the trial Tribunal and the first appellate court erred in not finding that by the respondent's abandoning the suit property it had passed to the appellant by way of adverse possession. We heard the parties on 7th October, 2025 and Mr. Christopher Malinga, learned counsel appeared for the appellant while Mr. Deus Nyabiri, learned counsel appeared representing the respondent. At the outset Mr.

Malinga prayed and was granted leave to abandon the third ground of appeal and therefore, he remained with the first and the second grounds only. Addressing us on the first ground, Mr. Malinga contended that before the Tribunal, the appellant ably proved that he was the rightful owner of the suit property. Elaborating, he argued that, the respondent relied on the loss report indicating that the Letter of Officer was lost, however in his view, he was of the considered opinion that this was not sufficient to prove ownership. Referring us to page 25 of the record of proceedings of the letter of complaint to the District Executive Director (exhibit PI) and the response from the District Executive Director (exhibit P2), he submitted that these did not confer upon the respondent ownership but rather they were mere letters of complaint and an advice on what should the respondent do. The learned counsel cited section 117 (1) of the Evidence Act, Cap 6 R.E. 2023 (the Evidence Act), for the proposition that he who alleges must prove and, in his view, the respondent did not prove ownership of the suit property as the two letters did not confer ownership. He took the view that, in the contrary the appellant's evidence outweighed that of the respondent taking rider to the testimony of DW1 who informed the Tribunal that the respondent's father

sold the suit property to someone else which was also confirmed by DW2 at page 32 of the record. In support of the second ground of appeal, the learned counsel was fairly brief and contended that, it was wrong and incorrect to hold that the sale agreement had no legal base simply because ownership was not transferred and there was no approval by the Commissioner for Lands or authorized officer. Insistently, the learned counsel argued that, the sale agreement complied with all the requirements for transfer purposes. In all, he urged us to allow the appeal with costs. Mr. Nyabiri prayed to adopt the written submission which was lodged earlier on in terms of rule 106 (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules). We hasten to remark that, in the course of this judgment, we will not be able to recite each and every fact comprised in the submission but we can only allude to those which are conveniently relevant to the determination of the matter before us. Conversely, Mr. Nyabiri argued in response to the first ground of appeal that, the law is very settled, he who alleges a certain fact is duty bound to prove existence of that fact and cited to us the provisions of section 110 (1) of the Evidence Act, Cap 6 R.E. 2022 now section 117 (1) of the R.E. 7

2023. To facilitate the appreciation of the proposition put forward by the learned counsel, he referred us to the case of Moliel Electrical Contractors Limited v. Mantrac Tanzania Limited [2022] TZCA 316, TANZLII, Happy Kaitira Burilo T/A Irene Stationary and Another v. International Commercial Bank (T) Ltd [2022] TZCA 286 TANZLII and Helmina Nyoni v. Yeremia Magoti [2022] TZCA 170 TANZLII. Arguing further this ground, Mr. Nyabiri contended that the appellant did not prove his case and in the contrary the respondent ably proved ownership of the suit property before the Tribunal through the two letters that were tendered in evidence as exhibits PI and P2 which is a clear testimony that the respondent is recognized as the rightful owner of the suit property. Elaborating further, Mr. Nyabiri argued that, the appellant had nothing on record to support his claim that he was the rightful owner of the suit property except for the land rent receipt, exhibit D1 which did not prove ownership. He was of the view that, the sale agreement which was the basis of the claim was not admitted in evidence and only remained as annexure since it was not admitted as an exhibit. It is common ground that, annexures cannot be relied upon in determination of the matter before the court.

In response to the second ground of appeal, Mr. Nyabiri was equally brief. His contention was to the effect that, it is a legal requirement that any disposition of land and more particularly a surveyed land like the one in dispute to be preceded by approval of the Commissioner for Lands and referred us to sections 36, 37 and 38 of the Land Act, Cap. 113 (the Land Act). It was his contention that compliance with the above provisions is mandatory and in terms of section 36 (1) of the Land Act any disposition which did not comply with the provisions of section 37 and 38 is void. It is, under those circumstances, he argued that the appellant did not prove to be the rightful owner of the suit property for lack of the necessary approvals. He rounded off by submitting that the appeal before us is without merit and therefore be dismissed with costs. Upon our serious examination of the judgments of both the Tribunal and the High Court as well as considering the rival submissions of the learned trained minds, we, on our part, are of the view that, this appeal can sufficiently be disposed of within the narrow circumference of who is the rightful owner of the suit property. That renders narration of the arguments on the validity of disposition of the suit property to the appellant in respect of the sale agreement which was not admitted as an exhibit of no relevance. 9

We are alive to the principle that, it is improper and a serious error to rely on a document which was neither tendered nor admitted in court as an exhibit and we are not prepared to err. We took this position in the case of Shemsa Khalifa and Others v. Suleiman Hamed Abdallah, Civil Appeal No. 82 of 2012 (unreported). Now reverting to the matter before us, it is important to stress that, clearly, the law is perfectly settled that, in civil cases, the burden of proof lies on the party who alleges anything in his favour. We are fortified in this view by the provisions of sections 117 and 118 of the Evidence Act, which states that: "117-(1) Whoever, desires any court to give judgment as to any legal right or liability dependent on the existence o f facts which he asserts must prove that those facts exist (2) When a person is bound to prove the existence o f any fact, it is said that the burden o fproof lies on that person. 118. The burden o f proof in any suit lies on that person who would fail if no evidence were given on either side." 10

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. We think, this appeal stands or falls on the evidence of PW1 as well as exhibits PI and P2 and the reason is not far-fetched. These were the two documents that the respondent tendered before the Tribunal to prove that he was the rightful owner of the suit property. It is not insignificant to state that, both the Tribunal and the High Court relied on them in reaching to the concurrent findings that the respondent ably proved that he was the rightful owner of the suit property and the appellant failed miserably to challenge the respondent. For clarity, we wish to describe albeit briefly the contents of exhibit P2, a letter from the District Executive Director of Ikungi at page 36 of the record ii

of appeal which was in response to the earlier complaint letter by the respondent exhibit PI at page 35 of the record of appeal in relation to the appellant's trespassing the suit property. In that letter from the District Executive Director of Ikungi which was addressed to the respondent, it clearly referred to the Letter of Offer Ref. No. L.O.S 208670 dated 27 October, 1986 and cited clause 3 which gave clear instructions to the respondent on building conditions to be met in the suit property. It further advised the respondent to take appropriate actions against the appellant a trespasser. Clearly, the above, points a picture that the respondent was recognized by the authorities to be the rightful owner of the suit property no wonder they advised him to take actions against the appellant who they also considered to be a trespasser. It may not be completely irrelevant to observe that, this being a civil matter parties were required to prove their case on the balance of probabilities. The term balance of probabilities was defined by Lord Hoffman in Re B [2008] UKHL 35, in which we found inspiration in the case of Anthony M. Masanga v. Penina (Mama Mgesi) and Another (supra) to mean: 12

"If a legal rule requires a fact to be proved (a 'fact In Issue', a judge orjury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not I f the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden o fproof. I f the party who bears the burden o fprooffails to discharge it, a value 0 is returned and the fact is treated as not having been happened. I f he does discharge it, a value 1 is returned and the fact is treated as having happened." Now in the matter before us, we hasten to point out that, on the strength of the evidence on record as demonstrated above, the trial Tribunal and the High Court found it proven that, the evidence of the respondent was more credible compared to that of the appellant. We feel compelled to state that, we find considerable merit on the submission by the counsel for the respondent that the appellant did not prove that he was the rightful owner of the suit property and in the contrary the respondent ably demonstrated through exhibits PI and P2 that he was the rightful owner of the suit property. 13

For the reasons we have assigned, we do not see any basis for faulting the judgment of the High Court. We find no merit in the appeal and therefore, we dismiss it with costs. DATED at DODOMA this 13th day of October, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 13th day of October, 2025 in the presence of Mr. Deus Nyabiri, learned counsel for the respondent also holding brief for Mr. Christopher Malinga, learned counsel for the appellant via virtual Court and Ms. Christina, Court Clerk; is hereby certified as a true copy of the original. y — R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 14