E.M. Trucking Company Limited vs Jitegemee Trading Company Limited & Others (Civil Appeal No. 618 of 2022) [2025] TZCA 857 (13 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NDIKA, J.A., KENTE, J.A.. And MANSOOR. J.A.^ CIVIL APPEAL NO. 618 OF 2022 E.M. TRUCKING COMPANY LIMITED.............................................APPELLANT VERSUS JITEGEMEE TRADING COMPANY LIMITED ............................ 1 st RESPONDENT MAJEMBE AUCTION MART LTD............................................ 2 n d RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Land Division at Dar es Salaam) ( Mzuna, J.) dated the 22n d day of June 2018 in Land Case No. 25 of 2014 JUDGMENT OF THE COURT 28t hJuly & 13t hAugust, 2025 NDIKA. J.A.: The appellant, E.M. Trucking Company Limited, lost a lawsuit against Jitegemee Trading Company Limited and Majembe Auction Mart Ltd., the first and second respondents respectively, regarding ownership and possession of a piece of land at Bonde la Buguruni, Ilala Municipality, Dar es Salaam. The High Court of Tanzania, Land Division in Dar es Salaam (henceforth referred to as "the trial court") further compounded the loss by awarding the first respondent on a counterclaim US$ 1,687,200.00 in outstanding rent, mesne profits from May 2009 and 7% interest per annum on the decretal sum. i

Briefly, the appellant claimed in its plaint that it owned "a piece of land located at Bonde la Buguruni within Ilala Municipality, Dar es Salaam," which it had acquired as unsurveyed land in 2002 and turned into a building for offices, storage, a garage and a fuel station. Furthermore, the appellant claimed that on 15th June 2006, it signed a lease with the first respondent, the owner of a neighbouring property, over 15,200 square metres of land, which was a portion of an adjacent parcel of land registered as Plot No. 2360. It turned out that the first respondent had given the appellant the incorrect piece of property when they were developing the leased site as a commercial facility. Allegedly, the first respondent pledged to hand over the right plot and reimburse the expenses incurred at the time. Even though the promises were never kept, the appellant was shocked to receive a series of letters from the first respondent demanding unpaid rent for the period from 1s t July 2006 to December 2012 in respect of lease over land described as Plot No. 1010, not Plot No. 2360. The appellant denied the allegations, claiming that it had never occupied Plot No. 1010. Its immediate complaint was that the second respondent, acting on the instructions of the first respondent, attempted to evict it from its own land on the ground that it was in default of payment of rent since July 2006. On that basis, it filed a lawsuit against the respondents primarily for being adjudged the rightful

owner of the suit property as well as for injunction, general damages and costs of the action. The respondents denied the appellant's allegations in their amended written statement of defence. According to them, the first respondent was the registered owner of Plot No. 2360, which was the subject of the lease between it and the appellant. Initially, that property was a farm held under Certificate of Title No. 37269. The property was later renamed Plot No. 1010/1 and that it was held under Certificate of Title No. 115624. Upon a counterclaim, the first respondent demanded payment in the sum of US$ 1,234,973.50 in outstanding rent for the period from May 2009 until February 2014. It also claimed for vacant possession of the leased property as well as payment of mesne profits, interest and costs. The appellant asserted in its defence to the counterclaim that the contested land was its property and that it was not a part of Plot No. 2360 or Plot No. 1010. It reaffirmed its previous stance that the first respondent had given it the incorrect plot of property, despite acknowledging the existence of the lease between it and the first respondent over Plot No. 2360. As a result, it rejected any liability for the unpaid rent. Based on the pleadings, the trial court formulated the following five issues for trial: 3

1. Whether the plaintiff is the lawful owner o f the land in dispute comprised o f Plot No. 2360 located at Bonde la Buguruni in Iia/a Municipality, Dares Salaam.
2. Whether the first defendant ever admitted having leased a wrong plot o f land to the plaintiffand whether upon that mistake the first defendant promised to lease another plot to the plaintiff plus refunding costs which the plaintiff had incurred in developing the wrong plot.
3. Whether Plot No. 2360 is the same as Plot No. 1010 following a change o f description.
4. Whether the plaintiff is a tenant o f the first defendant and, if so, whether the plaintiff owes any rental money to the first defendant.
5. To what reliefs are the parties entitled. The appellant primarily relied on the testimony of its Managing Director, Elias Ulisaja Mwanjala (PW1), to support its case. According to him, the appellant owned a 16,000 square metre land in a swampy area at Bonde la Buguruni. He had acquired and used it as a paddy farm from 1997. Without giving any meaningful description of the property, he alleged that the respondents sought to evict the appellant from that property. PW2 Isihaka Ibrahim Omary and PW3 Masoud Abdallah Said, who asserted that they had been the owners of tiny parcels of land next to the appellant's purported property since the late 1990s, backed up PWl's testimony. Additional testimony was provided by civil engineer Natupu 4

Solomon (PW4), who oversaw the appellant's development projects in the contested area. On the other hand, two of the first respondent's officials, DW1 Kinabo Charles and DW3 Hemed Said Mushinda, asserted that the first respondent acquired Plot No. 2360 from the now defunct economic wing of the ruling Chama cha Mapinduzi, SUKITA, in 2003 as demonstrated by the sale agreement (exhibit D3). They were emphatic that the said land was subsequently resurveyed and subdivided, and that it was subsequently restyled as Plot No. 1010/1 under the Certificate of Title No. 115624 (exhibit D2) issued in 2010. On this aspect, the evidence of DW1 and DW3 was propped up by DW2 Juliana Ngonyano, an official from the Ministry of Lands and Human Settlements Development, who confirmed the detail about the first respondent's ownership of the now changed Plot No. 1010/1 and that, as per her office's records, the said land was leased out to the appellant by the first respondent vide lease dated 15th June 2006 (exhibit Dl). Francis Bajungu (DW4), the Finance and Administration Manager for the first respondent, testified that as of December 2017, the appellant owed the first respondent a total of US$ 1,641,600.00 in rent arrears for the period beginning May 2009. On the first issue, the learned trial judge determined that Plot No. 2360 was the first respondent's property based on exhibits D2 and D3 and that the 5

appellant was a tenant on it. He also ruled against the appellant on the second and third issues, concluding that there was no evidence that the first respondent had leased out a wrong piece of land to the appellant and that Plot No. 1010 was unquestionably Plot No. 2360 prior to re-survey and subdivision. Regarding the fourth issue, the court determined that the appellant was the first respondent's tenant, as shown in exhibit Dl, and that at the material time, it owed the first respondent US$1,687,200.00. In the premises, the learned judge dismissed the appellant's suit but entered judgment and decree for the first respondent as stated earlier. After dropping one of the six grounds of appeal he had originally filed, Dr. Onesmo M. Kyauke, learned counsel for the appellant, pursued the appeal on the following five grounds:

1. The trial court erred in iaw and fact by holding that the land in dispute comprised o f Plot No. 2360 located at Bonde ia Buguruni in Ilala Municipality, Dar es Salaam belonged to the first respondent

2. The trial court erred in iaw and fact by holding that exhibit PI was a forgery.

3. The trial court erred in law and fact by holding that Plot No. 2360 was the same plot o f land that was changed and renamed as Plot No. 1010.

4. The trial court erred in iaw and fact by finding that the appellant was the first respondent's tenant. 6

5. The trial court erred in law and fact by holding that the appellant was liable to the first respondent outstanding rent in the sum o f US$ 1,687,200.00. Dr. Kyauke and the appellant's learned counsel, Mr. Rabin Mafuru Muyenjwa, both made arguments based on their prior written submissions. Although we thought the written submissions were a little long and hazy, we have given them thoughtful consideration. Since the first and third grounds of appeal are intertwined, we believe they should be addressed together. They bring up two closely related questions: first, what is the identity or description of the property in dispute; and secondly, who owns the property in question. We start with the description of the land the appellant claimed to own. Paragraphs 4 and 5 of the plaint basically state that the appellant is the legitimate owner of a "piece o f land located at Bonde ia Buguruni in Ilala Municipality, Dar es Salaam"anti nothing else. It is obvious that this is a typical case of poor pleading, if not disingenuous drafting. It blatantly violated Order VII, Rule 3 of the Civil Procedure Code, Cap. 33, which requires that every plaint involving immovable property provide a description that makes the claimed property identifiable. Details concerning the land's borders or other adjoining properties should have been pleaded to identify it

as the property in dispute, even though it may not have been surveyed in 2014 when the appellant filed the plaint. At this point, it should be recalled that the first issue framed by the trial court questioned whether the appellant was the lawful owner of the land in dispute, which was described as Plot No. 2360 located at Bonde la Buguruni in Ilala Municipality, Dar es Salaam. It is extremely puzzling that Plot No. 2360 was referred to as the land in dispute because the appellant did not describe its property as such, even though the parties had agreed on this matter as framed. It should be underlined that the evidence shows that Plot No. 2360, measuring 15,200 square metres, was the subject of the lease (exhibit Dl) between the appellant and first respondent. The despondency of the appellant's claim was further compounded by the failure of its main witness (PW1) to provide any meaningful description of the supposed property in dispute in his testimony. We note that at page 204 of the appeal's record, he stated that "the disputed plot is mine", that it measured "16,000 square metres" and that it was lying on a swampy area adjacent to a property owned by Badru Construction. All this material, in our view, was too insufficient to identify the alleged property with specificity. More importantly, as can be seen at page 211 of the appeal's record, PW1 adduced the following when pressed in cross-examination to identify the property in question:

"I took 16,100 acres (sic) as my plot. I still own it. I have built a godown, a storey house as an office; a petrol station and a wall fence.... The plot is within Iia/a Municipal Council. [...] What is disputed is only 15,200 square metres while I own 16,100 square metres. The 15,200 sqm was given to me by Jitegemee [the first respondent herein]. [...] The two plots are 2 - 3 kms apart" We understood PW1 to be indicating the appellant's ownership of the claimed land, even though it appeared that he was talking to his own personal ownership. We believe that the foregoing excerpt makes it clear that the land that was allegedly the appellant's property was the 16,100 square metre land, while the first respondent gave the appellant the other one measuring 15,200 square metres. The latter property is undoubtedly the one that the first respondent leased to the appellant. No claim to ownership of the former property was ever made by the first respondent. Plot No. 2360, as shown in exhibit Dl, was without a doubt the leased property. Now, resolving the question of ownership of Plot No. 2360 as framed by the trial court, without any hesitation we find it preeminent, on the evidence on the record, that it belongs to the first respondent. Besides the testimonies of DW1 and DW3 on how the land was acquired from SUKITA in 2003 by the first respondent as Plot No. 2360 as unveiled by the sale 9

agreement (exhibit D3), and that it was subsequently resurveyed, subdivided and restyled as Plot No. 1010/1, the land officer (DW2), supported the first respondent's claim in all respects. She confirmed the first respondent's title to that land as per her office's records. She also validated the fact that Plot No. 2360 was subsequently changed to Plot No. 1010/1 and that it was held under the Certificate of Title No. 115624 (exhibit D2) issued in 2010. We are alert that a certificate of title is, in terms of section 40 of the Land Registration Act, Cap. 334, admissible proof of, among others, ownership of the land concerned. On this basis, we uphold the trial court's finding that Plot No. 2360 belongs to the first respondent and that the said land is now known as Plot No. 1010/1. Accordingly, the first and third grounds of grievance fall by the wayside. We turn to the contention in the second ground of appeal that the trial court erred in law and fact by holding that exhibit PI was fabricated. This relates to the second framed issue, which required the trial court to inquire into whether the first respondent ever admitted having handed over a wrong property to the appellant upon the lease and whether the first respondent promised to hand over another property to the appellant along with an undertaking to refund costs that the appellant had incurred in developing the wrong plot of land. 10

Indeed, PW1 presented exhibit PI to bolster the appellant's argument that, following the execution of the lease with the first respondent, the appellant was given a parcel of land by the first respondent that later turned out to belong to a third party. In its letter dated 3r dAugust 2006 (exhibit PI), the first respondent allegedly apologised to the appellant for the confusion, promised to turn over another property, and agreed to reimburse all the expenses paid up to that point because the appellant had supposedly spent a lot of money developing it. It seems that Mr. Hemed Mushinda, the Manager of the first respondent, signed the letter. For his part, Mr. Mushinda (DW3) strenuously denied that exhibit PI was written by him. He claimed that his signature on exhibit Dl, which he said was his real signature, was significantly different from the alleged signature on that document. He went on to say that, in his capacity as Manager, he lacked the authority to impose the obligation to reimburse the first respondent for the money, the exact amount of which was unknown. That authority, he noted, was vested in the first respondent's Board of Directors. According to Dr. Kyauke, there was no evidence that the letter was fake. He asserts that the first respondent should have presented a handwriting expert opinion to prove the alleged forgery if it is true, as claimed, that the first respondent reported the incident to the police. Citing 11

Hemed Said v. Mohamed Mbilu [1984] T.L.R. 113 as support, he urges us to draw adverse inference against the first respondent for failing or neglecting to call such expert witness. On the other hand, Mr. Muyenjwa acknowledges, citing Ratilal Gordhanbhai Patel v. Lalji Makanji [1957] EA 314, that an allegation of fraud in a civil case must be strictly proved although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, but something beyond a mere preponderance of probabilities is required. He argues that, apart from the alleged author of the document denying having signed and issued it, the trial court rightly noted the dissimilarities between the purported signature on exhibit PI and the genuine signature on exhibit Dl. DPP v. Shida Manyama @ Seleman Mabuba [2013] TZCA 168 is pertinent to the matter at hand. In this case, this Court summarised the position after reviewing sections 47, 49, and 75 of the Evidence Act, Cap. 6, Revised Edition 2002 (now renumbered as sections 52, 54, and 81 of the Evidence Act, Cap. 6, Revised Edition 2023, respectively) regarding proof of handwriting or signatures thus: "Generally, handwriting or signatures may be proved on admission by the writer or by the evidence o f a witness or witnesses in whose

presence the document was written or signed. This is what can be conveniently called direct evidence which offers the best means o f proof. With such evidence, the prosecution need not waste its resources on the other methods. More often than not, such direct evidence has not always been readily available. To fill in the lacuna, the Evidence Act provides three additional types o f evidence or modes o f proof. These are opinions o fhandwriting experts (s. 47) and evidence o f persons who are familiar with the writing o f a person who is said to have written a particular writing (s. 49). The third mode o fproof under s. 75 which ; unfortunately, is rarely employed these says, is comparison by the court with a writing made in the presence of the court or admitted or proved to be the writing or signature of the person". [Emphasis added] The extract above makes clear that there are other ways to verify a handwriting or signature than the opinion of ahandwriting expert. Therefore, it makes no difference if the first respondent failed or neglectedtoprovide such expert evidence at the trial. Indeed, in resolving the issue, the trial court gave credence to DW3's denial of authorship. It saw the witness and took him at his word. Besides, 13

the court compared the signature on the contested exhibit PI with that on the undisputed exhibit Dl. This recourse was in pursuance of section 75 the Evidence Act, Cap. 6, Revised Edition 2002, which permits comparison of signature, handwriting or seal with others admitted or proved. The court correctly identified exhibit PI as a piece of forgery after concluding that the signatures were noticeably different. As a result, the second appeal ground fails. There is no merit to the complaint under the fourth ground of appeal challenging the trial court's conclusion that the appellant was the first respondent's tenant. In addition to the appellant's key witness (PW1) acknowledging the lease's existence, the first respondent provided indisputable proof of the issue. The appellant was confirmed to be a tenant for a portion of Plot No. 1010/1 by the first respondent's officials (DW1, DW3, and DW4), as if the uncontested lease (exhibit Dl), which flawlessly attests to the existence of the lease, needed to be corroborated. Furthermore, the land officer (DW2) attested to the lease, but also said that it was only recorded at the Ministry on 5th May 2017, about eleven years after it was signed. Based on this, we dismiss the fourth ground of grievance and uphold the trial court's conclusion that the appellant was a tenant. We round off with the fifth ground of appeal, which challenges the first respondent's $1,687,200.00 award for unpaid rent. Regarding this complaint, 14

Dr. Kyauke argues that the award was incorrectly calculated and lacked supporting evidence. That it contained unpleaded and unproven mesne profits. On the other hand, Mr. Muyenjwa contends that the unpaid rent for the period beginning in 2009 was adequately demonstrated, even though he acknowledges that mesne profits were not proven. It should be noted that although the lease was signed on 15th June 2006, it included a three-year grace period, and the date on which the annual rent was to start becoming payable was set for 1s t May 2009. Upon the counterclaim, the first respondent demanded payment in the sum of US$ 1,234,973.50 in outstanding rent for the period from May 2009 until February 2014. The learned trial judge granted US$ 1,641,600.00 for the period from May 2009 to December 2017 at the quarterly rate of US$ 45,600.00 based on the testimony of the first respondent's Finance and Administration Manager (DW4), whose computation was for the aforesaid period. For the January-March 2018 period, an additional US$ 45,600.00 was granted, making a total of US$ 1,687,200.00. Additionally, a mesne profits award of an undisclosed amount was given out. There are two obvious flaws in the aforesaid award. First, the trial court overreached itself by awarding payment for the time up to March 2018, even though the first respondent had pleaded for payment of rent arrears for the 15

period from May 2009 to February 2014. It goes without saying that a court of law would not typically grant a relief that was not prayed for. Secondly, even though the award of mesne profits is undoubtedly inconsequential given that its amount was not decreed, it must be stated that it was made without any legal justification. The money or gains that someone who has been occupying land illegally owes to the land's rightful owner at that time are undoubtedly referred to as mesne profits. It is essentially restitution for the usage of land that was not legally owned. Indeed, liability for mesne profits does not arise in this case since the appellant was a tenant, not a trespasser, on the demised property and it was liable for paying all the outstanding rent. In view of the foregoing, we sustain the fifth ground of appeal and hold that the first respondent is entitled to payment of outstanding rent for the period from May 2009 until February 2014 calculated on a quarterly basis at the rate of US$ 45,600.00. This adds up to US$ 1,048,800.00. Accordingly, we set aside the award made by the trial court and substitute for it the sum of US$ 1,048,800.00. We also set aside the award of mesne profits. For avoidance of doubt, the award of interest at the rate of 7% per annum on the decretal sum remains undisturbed. 16

Ultimately, except for the above adjustment of the quantum of rent arrears and reversal of the order for payment of mesne profits the appeal stands dismissed. Due to the circumstances of this case, we order each party to bear its own costs. DATED at DAR ES SALAAM this 12th day of August 2025. The Judgment delivered this 13th day of August, 2025 in the presence of Mr. Daniel Yona Masaga, learned counsel for the appellant also holding brief for Mr. Rabin Mafuru Muyenjwa, learned counsel for the respondent, is hei G. A. M. NDIKA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL 17