Reginald Martin Mushi vs Sijali Jafari & Others (Civil Appeal No. 612 of 2022) [2025] TZCA 992 (24 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: KOROSSO. J.A.. MAKUNGU. J.A.. and RUMANYIKA J.A.^ CIVIL APPEAL NO. 612 OF 2022 REGINALD MARTIN MUSHI . ............................................... APPELLANT VERSUS SIJALI JAFARI ........................................................ 1 st RESPONDENT JUMA DINTO .......... . ...............................................2 nd RESPONDENT RAMADHANI UPO .....................................................3 rd RESPONDENT HAMISI HARUNA ....................................................... 4 th RESPONDENT HERIKI MREMA ................................. . ....... . .............5™ RESPONDENT SAID KITELEKO ........... . ........................... . .................. 6 th RESPONDENT MDINI KASIMU .................. . ...................................... 7™ RESPONDENT HAJI SAIDI..................................................................8™ RESPONDENT RAMADHANI JAFARI ................................ . ........................................... 9™RESPOND ABDALLAH HUSENI..................................................... 10™ RESPONDENT JOSEPH DATI..............................................................11 th RESPONDENT MSHAM MUSA....................................................... . 12 th RESPONDENT HARUNA CHANDE . .......................................................13™ RESPONDENT HAMADI HADI............................................................ 14™ RESPONDENT RAJABU ADUDALA ................... . ................................. 15™ RESPONDENT FELIKISI MRIGO.................................... . ................... 16™ RESPONDENT YASINI SILANDA .................................................... 17™ RESPONDENT MWANAISHA MOHAMEDI............................................ 18™ RESPONDENT SALMA SHOMARI . .............................. . ........................19™ RESPONDENT SAIDI MBEGU.............................................................20™ RESPONDENT SAIDI MACHO........................................... . .................21 st RESPONDENT NURU ALLY...................................... . ......................... 22 nd RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Land Division at Dar es Salaam) ( Mqevekwa, J.) Dated the 24th day of November, 2021 in Land Case No. 252 of 2014 JUDGMENT OF THE COURT l

01st August & 24th September, 2025 KOROSSO. JA.: The genesis of this appeal is claims filed by the appellant, Reginald Martin Mushi against 22 respondents herein in the High Court of Tanzania, Land Division sitting at Dar es Salaam (the trial court). In the suit, the appellant sought vacant possession of land measuring 2 acres situated at Kiaraka/Tungutungu village (suit land). The appellant claimed to have acquired the suit land through a sale transaction between himself and the late Mohamed Dadi at the price of Tshs. 230,000/=. The appellant asserted that the sale transaction was actualized by a sale agreement dated 13/11/1999 and was witnessed by Kiaraka/Tungutungu village authority (Exhibit PI). Other reliefs sought by the appellant included declaratory orders that he was the rightful and lawful owner of the suit land; compensation for destroyed crops and orders for demolition of the structures erected therein by the respondents; permanent order of injunction, general damages and any other reliefs. It should be noted that at the High Court, the filed suit was originally dismissed for non-appearance (Kente, J as he then was.) as discerned at page 32 of the record of appeal. The dismissal order was set aside in a ruling in Misc. Civil Application No. 141 of 2017 (Mango, J.) allowing the hearing of the suit to proceed on merit.

The evidence of the appellant who testified as PW1, was that he purchased the suit land in 1999 from the owner already mentioned earlier. He tendered Exhibit PI to reinforce his contention. Jubilee Benjamin (PW2) testified that the suit land was located at Kiaraka Bagamoyo and contained an assortment of trees such as banana, mango, cassava and cashewnuts. He contended that it was the appellant who owned the suit land and had visited him there several times. By way of a joint written statement of defence, the respondents disputed the appellant's assertions and claims, demanding strict proof from the appellant. The respondents stated that Mohamed Dadi had no title to pass to the appellant and that they had acquired the suit land through a gift deed from Florian Tilya, and sales transactions between Hatibu Mbemba and Mohamed Jojorio for consideration of Tshs. 30,000/= on 02/6/1983. In his testimony, Florian Tilya (DW1) informed the trial court that his acquisition of the suit land was made through his uncle, the deceased. He contended that the said uncle had purchased the land for him and handed it. DW1 stated that he had sold part of the suit land to the villagers after he responded to a request from the Tungutungu street office. DW2, the Village Chairman corroborated DWl's evidence, who 3

acknowledged that he witnessed when DW1 gave the portion of land to the villagers. Upon hearing the evidence from the rival sides, the trial court dismissed the suit and entered judgment in favour of the respondents, satisfied that they proved their case on balance of probabilities. Aggrieved by the decision of the trial court, the appellant knocked on the doors of the Court by way of memorandum of appeal premised on five grounds which paraphrased, fault the trial court for the following:

1. Having found that the respondents have no justification for ownership to the land claimed by the appellant, its failure to hold that they are trespassers to the claimed land.

2. Failure to hold that the respondents' testimonies are hearsay, incredible and no documentary evidence was adduced to backup them.

3. Discrediting the appellant's sale agreement tendered into evidence as Exhibit PI and failure to find that there was sufficient evidence to prove that the appellant was the rightful owner of the suit land.

4. Impropriety in admitting into evidence the sale agreement submitted by the respondents as annexure DM.

5. That the delivered judgment did not resolve the controversies and indirectly granted the respondents right to free access of the landed property. On the day the appeal was called for hearing, the appellant appeared in person, unrepresented and the respondents enjoyed the services of Mr. Dominicus Nkwera, learned advocate. When granted leave to elaborate his grounds of appeal, the appellant had little to say, preferring to adopt the written submission in support of his appeal filed on 28/2/2023 and urged us to consider it, allow the appeal and grant the prayers sought. Having scrutinized the grounds of appeal, particularly grounds one, two and five we are of the view that the central issue for determination is who has the better title/rightful ownership to the suit land. On the part of the appellant, addressing the above issue, in his written submission, he contended that at the trial, he did prove his claims and warrant to be declared the owner of the suit-land. He submitted that his witnesses adduced sufficient evidence supported by tendered and admitted documentary exhibits such as Exhibit PI to prove how he acquired the suit land. The appellant further argued that if the evidence adduced by his witnesses and that from the respondents7witnesses is to be properly 5

scrutinized, there will be no argument that he is the rightful owner of the suit land since the respondents side failed to substantiate their claims of being its bonafide owners. He questioned why the trial court upon finding that the respondents have failed to prove being rightful owners of the suit land, it failed to declare them to be trespassers and order their removal from the suit land. The appellant further faulted the judgment of the trial court for not resolving who is the rightful owner of the suit land, which was an issue before it for determination. Furthermore, the appellant castigated the trial court, for its failure to properly evaluate the evidence of PW1 and PW2 which then led it to wrongly conclude that the appellant failed to prove his claims on balance of probability. He argued that when carefully examined, the evidence of the respondents' witnesses was essentially hearsay and contradictory. He contended further that neither DW2 nor DW3 managed to identify the suit land and no proof was provided to justify claims of ownership of the suit land on the respondents' part while DW4, DW5 and DW6 were unable to add weight to their oral testimonies with any documents to fortify their assertions of ownership of the suit land. 6

Regarding grounds three and four, which basically addressed propriety in admission and the value accorded to exhibit PI, the appellant argued that, had the trial court properly considered the evidence of PW1 and Exhibit PI (which passed the test of section 10 of the Law of Contract, Cap 345) it would not have been left with any doubt on proof of ownership of the suit-land by the appellant. He also questioned reasons that led the trial court to deliberate on issues which were not disputed such as the requirement for description and details of the suit land especially when Exhibit PI provided the necessary details. The appellant further questioned the trial court's consideration of annexures to the pleadings, such as the sale agreement referred to by DW8 while it was only annexed to the written statement of defence and not tendered and admitted in court. He further faulted the trial court for according weight to such evidence and relying on them in determination of the case. He thus prayed for the appeal to be allowed and sought prayers to be granted. On the respondents' side, Mr. Nkwera on the issue of who holds rightful ownership of the suit land and propriety in admitting and giving value to exhibits, invited us to first consider the fact that the trial court was not given an opportunity to hear the evidence of some important witnesses who were not called to testify. According to him, the important

witnesses who were not called to testify, include the Chairman of Tungutungu Village; the ten cell leader; and the appellant's wife who were all alleged to have witnessed the disputed transaction of sale of the suit land and as such would have fortified the appellant's claims. The learned counsel for the respondents argued that failure to call such important witnesses to testify, negated proof of ownership on the suit land on the part of the appellant. Furthermore, Mr. Nkwera queried the fact that the appellant had failed to provide essential details of the size of the suit land for proper identification. He also questioned the fact that the names of those who witnessed the alleged sale and were part of the sale agreement, exhibit PI they failed to establish that ownership of the suit land fell on the part of the appellant and surprising some of the evidence as that of the Village Executive Officer was absent from the pleadings, he argued. According to Mr. Nkwera, it was upon the appellant to prove the size and boundaries of the suit land which the appellant failed to do. He also invited the Court to note that upon being admitted, exhibit PI was not read over in court to enable the respondents to understand its content. The learned counsel for the respondents penned off arguing that when the evidence adduced at the trial by both sides is properly weighed, 8

the Court should find that the respondents7case refuted the appellant's claims and showed that, they had a better title to the suit land. He thus implored us to dismiss the appeal for being unmerited. The appellant's rejoinder was brief, only addressing the issue of failure to call important witnesses stating that at the time of the trial they were all demised. Regarding failure to provide details of the size of the suit land, he argued that the tendered sale agreement provides relevant details of the disputed area and it is what should be relied upon having been tendered in court as an exhibit. He urged us to grant his prayers and allow the appeal. Having heard the submissions both oral and written from the contending parties, in determining the issue on who was the rightful owner/or the one with the better title to the suit land, we are constrained to first address a concern raised by the respondents side, which we find to be pertinent on whether the suit land details were clearly described in the plaint to facilitate its identification. The respondents' counsel argued that the appellant's pleadings failed to describe in details of the suit land including the size, while the appellant contended that the plaint details on it were sufficient to describe the land particularly when dealt together with the sale agreement which was attached to the plaint and was admitted as

exhibit PI. In addressing this concern, we find it pertinent to reproduce Order VII Rule 3 of the Civil Procedure Code, Cap 33 (CPC) which states: "Where the subject matter o f the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and in case such property can be identified by a title number under the Land Registration Act, the plaint shall specify such title number . " Effectively, the above cited provision elucidates that where the subject matter of the suit is immovable property, the plaint should include a description of the property in dispute sufficient to identify it and where such property is identified by a title number under the Land Registration Act, the title number should be presented. It is expected as held in Kessy Mkambara and 6 Others v. Hassan Mkamila and 31 Others, Civil Appeal No. 471 of 2021 [2024] T7CA 1101, TANZLII, that: n This should include a statement o f the landmarks in the boundaries and neighbouring features, if any, or names o f the holders o f the pieces o f land that surround the disputed land..." In the case of Olorubare Nginyu v. Kilempu Kinoka Laizer, Civil Appeal No. 416 of 2021 [2024] TZCA 598, TANZLII, the issue was also discussed by the Court, and we reiterated the significance of laying a

description of the piece of land from the one claiming ownership (See also, Martin Fredrick Rajab v. Ilemela Municipal Council and Synergy Tanzania Company Limited, Civil Appeal No. 197 of 2019 [2022] TZCA 434, TANZLII. Delving into the matter before us, upon perusal of the plaint, the suit land description is found in paragraph 3, which states: "That the plaintiff's claim against the defendants is for vacantpossession of the suit land measuring two (2) acres which was acquired through a sale transaction through a sale agreement dated as of 13th November, 1999f issued by the Kiaraka/Tungutungu village Authority; between the plaintiff and Mohamed Dadi (deceased) at the price o f Tzs 230,000/-. The referred agreement is hereto appended as "ANNEX-RM1 "forming part of this plaint" Certainly, the description of the suit land in the plaint is very general, in that it reveals the approximate size of two acres, without details on its whereabouts, or who the suit land neighbours on each side are and the boundaries thereto. Yet again, a perusal of exhibit PI, which was also annexed to the plaint, and which the appellant submitted that it has the requisite details and description of the suit land, the iand sold by li

Mohamed Dadi to the appellant (the suit land) is stated to comprise of two acres, similar to what is stated in the plaint. Both the plaint and exhibit PI do not describe the area where the suit land is situated. The fact that the suit land is situated at Kiaraka/Tungutungu, Bagamoyo District from the evidence of PW1 and PW2, who however, did not provide further details in terms of the boundaries, names of neighbours of the suit land that would have provided better description for ease of its identification. The trial court did not deliberate in detail on the essentiality of details of immovable property in the plaint apart from discussing lack of details on the size of the suit land and lack of evidence to corroborate the assertion on the size of the disputed land. Conversely, on this concern, at page 153 of the record of appeal, the trial Judge observed: " The location o f the suit iand was not stated in the sale agreement Thus, it is difficult for this court to determine whether the suit land is the one in dispute or not Considering that the Tungutungu village leaders testified to the effect that Mohamed Dadi and the Plaintiff are not familiar or known to the villagers." Flowing from the above excerpt, plainly, the trial court was also unclear of the identity of the suit land due to the plaint being silent on 12

this and having no evidence before it to provide sufficient details. Without doubt, the appellant being the one to have claimed ownership of the suit land, it was incumbent upon him to have stated in his plaint the description of the suit land under Order 7 rule 3 of the CPC. Therefore, considering sections 110 (1) and (2) and 111 of the Tanzania Evidence Act, Cap 6 (the Evidence Act), the appellant had the burden to prove his claims. Guided by the principle that parties are bound by their pleadings should have prompted the appellant to ensure that his plaint, being the foundation of his case, provides clarity of the description of the suit land. In the instant case, the contents of the pleadings on the details and description of the suit land are incompatible. In that, as stated earlier, while paragraph 3 of the plaint only states the suit land measures two acres acquired in the sale agreement of 13/11/1999, witnessed by Kiaraka/Tungutungu village authority, PW1 stated the suit land is situated in Kiaraka Bagamoyo and that he has the Title Certificate, however, the said Title is not detailed in the plaint as required. In light of the above, we agree with the learned counsel for the respondents, that the appellant failed to provide sufficient description and details even the location of the suit land to enable the trial court to identify 13

the land in dispute and distinguish it from the rest of the land located in Kiaraka/Tungutungu village. Noteworthy is that this fact was also noted by the trial court. Suffice it to say, exhibit PI did not add any further details and description of the suit land as contended by the appellant. Therefore, the threshold of description of suit land set out by the law was not met. This rendered the plaint deficient and incapable of standing on its own and thus not proved. With the above finding, the question that remains is the consequence of the defective plaint and its impact on the proceedings that found this appeal? The appellant had nothing to state on this only to reiterate his stance that there were sufficient details provided in exhibit PI, therefore the suit land was known and fully identified. The learned counsel for the respondents submitted that the anomaly renders the case unproven and the appeal should thus be dismissed. The law is settled that a party must give description sufficient enough to identify the suit land in the pleadings and not during the trial. In the case of Braison Mpinge v. The Registered Trustees of Roman Catholic Iringa Dioceses (Ng'ingula Parish), Civil Appeal No. 297 of 2023 [2025] TZCA 290, TANZLII, facing a similar concern as in the present case, the Court held: 14

"... if the pleadings do not contain sufficient information to establish the claim , there is no way in which a party can discharge his burden o f proof so as to enable the opposite party to bring his defence. In the case at hand, the appellant was supposed to plead facts describing the suit land as required by Order VII rule 3 o f the CPC, but he did not do so.... The facts which he was supposed to plead could be the basis upon which he could build his case. The absence o f those facts means that, he had no basis upon which to build his case." Therefore, as observed in the above excerpt, where the pleadings fail to provide sufficient information to establish the claim, similar to what was faced in this appeal, it cannot be said that the burden of proof was discharged. Failure to show the essential details of the suit land essentially means that the appellant failed to provide details and description of the suit land in his pleadings which would have formed the basis of his claims. Essentially, it means that the appellant had no base to ground his claims against the respondents and in the process the respondents were dented important information to enable them to properly respond to the appellant's claims. For the foregoing, we find grounds one, two and five to lack merit, In the nutshell, considering the above, we are of the view that, 15

determination of the said three grounds is sufficient to dispose of the appeal, there being no essential need to consider and determine the remaining grounds. In the end, the appeal lacks merit and is dismissed. Taking account of the circumstances of this case, we make no order as to costs. DATED at DODOMA this 17th day of September, 2025. W. B. KOROSSO JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered this 24th day of September, 2025 in the presence of the Mr. Silvanus Mayenga, learned counsel for the appellant and Mr. Dominicus Nkwera, learned counsel for the respondents connected via video conference and Mr. Leopard L. Mabugo, Court Clerk, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL