Abdallah Mabula vs Sophia Masanilo (Civil Appeal No. 604 of 2023) [2024] TZCA 882 (11 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA, 3.A.. FIKIRINI, J.A. And KENTE. J.A.^ t CIVIL APPEAL NO. 604 OF 2023 ABDALLAH MABULA ........... . ........... . ........................ . ...... .........APPELLANT VERSUS SOPHIA MASANILO .............................................. . ............... RESPONDENT (Appeal from the Judgment and Decree of the Resident Magistrate's Court Tabora, at Tabora) (Kato, Ext. Jurist Dated 6th day of October, 2021 in Land Appeal No. 14 of 2021 JUDGMENT OF THE COURT 9th August & 11th September, 2024 FIKIRINI. J.A.: The appellant, Abdallah Mabula, and the respondent, Sophia Masanilo, are embroiled in a contentious dispute over a piece of land (referred to as "suit land") in the Kitongo Maendeleo area of Nzega District. The respondent claims to have purchased the suit land from one Simon Kasungi in 2005, a claim contested by the appellant. In response, the appellant lodged a complaint with the Nzega Ward Tribunal (Baraza la Kata Nzega Mjini) under Complaint No. 158 of 2015. When the Ward Tribunal's jurisdiction limit prevented him from processing the complaint, the undeterred appellant filed an application

with the District Land and Housing Tribunal (DLHT) for Nzega in Application No. 09 of 2015, demonstrating a steadfast commitment to resolving the dispute through legal means. The sequence of events leading to the dispute can be summarized as follows: The appellant was bequeathed the suit land. After leaving Kitongo for Dar es Salaam, he returned in 2005 to find that his land had been sold to the respondent by PW2-Asha Hamisi Nimswa, who claimed that their now-deceased mother had instructed her to sell it. The suit land was sold for TZS 60,000 in 2002 to the respondent. The appellant’s complaint led to a resolution wherein PW2 was required to refund the purchase price to recover the suit land. The evidence on record indicates that the appellant had to give up his bicycle, vaiued at TZS 50,000, to recover the land from the respondent. The appellant left again in October 2005 and returned in 2013. Upon his return, he discovered that the respondent had once again trespassed onto his land and made improvements. Since his return, the appellant attempted to resolve the matter out of court by seeking alternative plots or monetary compensation from the respondent.

These efforts were unsuccessful, as evidenced by the testimonies of Eva Bwire (PW3) and Sadick Wambura (PW4) before the DLHT. The respondent, on her part, had two versions of how she came by the suit land. The first version is that she purchased the land from PW2 in 2002 for TZS 60,000, but the sale was later renounced, and she was reimbursed with a bicycle worth TZS 50,000 instead of money. The second version is that she purchased the suit land in 2005 for TZS 150,000 from Simon Kasungi. According to the background, Simon Kasungi allegedly acquired the suit land from the appellant in 1996, as per the sale agreement (exhibit D1 on page 68). This alleged sale was witnessed by DW2, Adelade Henry, and DW3, Juma Shabani Mjendwa. Later, it is said that the land was sold to the respondent in 2005, with the transaction witnessed by DW4, Mcheie Magele. After hearing the testimony from the appellant, Abdallah Mabula, his four (4) witnesses, and the respondent, Sophia Masanilo, who had her case prosecuted by her son, Adelhem Kamanda Masanilo, along with their three (3) witnesses, and tendering one (1) exhibit marked as D l, which is a collection of documents, including:- the alleged 1996 sale agreement between Simon Kasungi and 3

Abdallah Mabula (the appellant), the sale of the suit land between PW2 -Asha Hamisi, and Sophia Masanilo (the respondent) in 2002, the purported sale agreement between Simon Kasungi and Sophia Masanilo in 2005, an offer for Plot No. 162, Block "V," Kitongo - Nzega in the name of the respondent, a letter from the appellant requesting the Tribunal to visit the focus in quo, a letter from the respondent discouraging a visit to the locus in quo, a letter from the Tribunal requesting Afisa Mtendaji Kata to be present on 23rd February, 2017, when the Tribunal and parties would visit the iocus in quo, reflected on pages 68 to 73D of the record. The Chairman subsequently entered a judgment in favour of the appellant The Chairman's decision was based on several factors: one, doubt over the respondent's actions. The Chairman questioned why the respondent would repurchase the land, which was already known to have disputed ownership. Furthermore, she purchased it from a different person this time. Two, the Chairman was of the view that the respondent might have taken advantage of the appellant's absence to secure the land. Three, parties had previously taken their dispute to the Street Chairman and later to the Ward Tribunal, where the respondent admitted a mistake and agreed to compensate the

appellant due to developments on the suit land. However, they could not agree on the amount of compensation, as the appellant kept increasing the recovery price. Four, the Chairman noted contradictions in the evidence concerning the suit land, precisely the confusion between Plot No. 168 and Plot No. 162, Block "V," Kitongo, in which it was unclear if they were two different plots. Based on the above considerations, the Chairman decided in favour of the appellant. Aggrieved by the decision, the respondent appealed to the High Court. The case was transferred to the Resident Magistrate's Court at Tabora to be heard by a Resident Magistrate with extended jurisdiction and was registered as Land Appeal No. 14 of 2021. The Senior Resident Magistrate with extended jurisdiction, overturned the DLHT's decision and declared the respondent the lawful owner. The Senior Resident Magistrate was convinced that the respondent had legitimately purchased the suit land from Simon Kasungi. He also considered Simon Kasungi to have acquired the suit land adversely after owning it for approximately twenty-five (25) years, as indicated on page 196 of the record. Additionally, it was concluded that Plot Nos. 162 and 168, Block "V," Kitongo area, Nzega District, referred to as the suit land, were the same.

Displeased with the decision, the appellant preferred the present appeal, having three (3) grounds, namely:-

1. The learned Senior Resident Magistrate-Ext. Juris erred in both law and fact in holding that exhibits tendered by the respondent herein, which are the sale agreem ent which shows the respondent bought Plot No. 168, Block "V" Kitongo, and the letter o f offer with reference No, CID/M2/9911/1, which allocates Plots No. 162 Block "V" Kitongo , refers to the same piece o f land, which is the disputed land.
2. The learned Senior Resident M agistrate-Ext Juris erred, in fact, in holding that Simon Kasungi, who sold the land to the respondent, has occupied the land for more than twelve (12) years while the same has never been sold.
3. The learned Senior Resident M agistrate -E x t Juris erred, in fact, in holding that at a ll the m aterial time, the appellant was present at Nzega and was aware o f the land transaction between Simon Kasungi and the respondent, while it is not what the tria l D istrict Land and Housing Tribunal proceedings reflect Both parties filed their respective written submissions under Rules 106(1) and 106(7) of the Tanzania Court of Appeal Rules, 2009 (the Rules). On the hearing date, both parties appeared in Court unrepresented.

When invited to amplify their submissions, the appellant had nothing additional but requested that the appeal be allowed with costs. Conversely, the respondent urged the Court to thoroughly review the record and her submissions and ultimately dismiss the appeal. We have carefully reviewed the record, the grounds of appeal, and the written submissions filed by both parties. In our determination of this appeal, we will address the grounds of appeal seriatim, starting with the first ground: Whether the land claimed to have been purchased from Simon Kasungi, also referred to as Plot No. 168, Block "V" Kitongo and/or Plot No. 162, Block "V" Kitongo, is the same piece of land in dispute before the DLHT, as concluded by the 1st appellate court. Before addressing the grounds of appeal, it is pertinent to refer to the principle established in our previous decision in Mary Agness Mpelumbe v. Shekha Nasser Hamud (Civil Appeal No. 136 of 2021) [2022] TZCA 408 (8th July 2022; TANZLii). We held that the burden of proof lies with the party who makes an allegation, and in a civil case, the standard of proof is on a balance of probabilities. This

means the Court will uphold evidence that is more credible than that presented by the opposing party regarding a fact to be proven. To begin our deliberation, we must first ascertain the description of the suit land. A review of Application No. 09 of 2015, which might have described the suit land, did not reveal any specific details. As reflected under item 3 of the application, the appellant (then applicant) described the suit land as follows: "The su it prem ises/land is situated at Kitongo Maendeleo within Nzega D istric t " This description contrasts with the respondent's description of the suit land. According to the respondent, the suit land is described as Plot No. 168, Block "V" and/or Plot No. 162, Block "V," which she allegedly purchased from Simon Kasungi in 2005. She contends that these references describe the suit land. The respondent explained that the confusion regarding the plot numbers arose when she applied for a land offer from the land office and received an offer with reference No. CID/M2/9911/1 dated 20th September 2007. Instead of being allocated Plot No. 168, Block "V," she was allocated Plot No. 162, Block "V" Kitongo Maendeleo. 8

We encountered difficulties in answering this crucial question due to several unresolved issues: one, we have asked ourselves as to whether the unspecific suit land described by the appellant was surveyed at some point, resulting in the designation as Plot No. 168, Block "V" Kitongo Maendeleo? Two, there is no clear evidence if Plots No. 168 and No. 162 are distinct parcels of land or were somehow related. Three, did the alleged two plots fall within the boundaries of the suit land, forming part of it? According to the respondent's account, Simon Kasungi purchased land from the appellant, known as Plot No. 168, Block "V" Kitongo Maendeleo area, in 1996. This sale was witnessed by DW2, Adelade Henry, and DW3, Juma Shabani Mjendwa. Later, Simon Kasungi allegedly sold the same suit iand to the respondent in 2005, the sale witnessed by DW4, Mchele Magele. As we shall explain, this sequence of events raises significant doubts about the reliability of the respondent's evidence on ownership of the suit land. In 2002, as evidenced by the appellant's own account on page 38 and PW2 (the appellant's sister) on page 42 of the record, the appellant was away in Dar es Salaam. During his absence, PW2 sold the suit land to the respondent for TZS 60,000. Upon returning in 9

2005, the appellant contested the sale and demanded the return of his land. Consequently, PW2 recovered the land after the respondent was reimbursed with a bicycle worth TZS 50,000 instead of the original purchase money. We asked ourselves, if the appellant had sold the suit land in 1996 to Simon Kasungi, then why did Simon Kasungi not complain or take action against PW2 in 2002 when the suit land was sold to the respondent and later recovered? The record does not indicate that Simon Kasungi was absent or unable to take action between 2002 and 2005. His failure to challenge and recover the sold land raises concerns about the credibility of his claim that the suit land belonged to him since 1996. Moreover, we wonder how could the respondent again engage herself in a second sate transaction over the same land she had problems with the appellant in 2002. This time, purchasing it from a different person, Simon Kasungi. We would likely be less concerned if the transaction involved a different piece of land. Since the dispute involves the same land, we are troubled by why the respondent did not investigate or exercise due diligence. One is generally expected to obtain detailed information 10

before entering into a sale transaction, especially when dealing with a previously contested property. Another factor that leads us to believe that the appellant's land is indeed the one that was trespassed upon is the testimony of PW4, Sadick Wambura. He said the appellant lodged a complaint with the Kitongo Government office. When the respondent was summoned, she attended the meeting with her husband and son. At the Kitongo Government offices, the respondent admitted the claim and agreed to compensate the appellant. Initially, the compensation was set at T2S 200,000, which the appellant declined. The amount was then increased to TZS 400,000, which was also rejected. The appellant instead demanded TZS 3,000,000, which the respondent refused. Consequently, the matter was referred to the Ward Tribunal. The appellant's claim before the DLHT was for a suit land. It matters nothing if the same became Plot Nos. 168 and 162 later on. As stated above, we are inclined to agree with the appellant's assertion that the documents in the respondent's possession could be forgeries. If the 1st appellate court had properly reviewed and re evaluated the evidence on record, it might not have reached the decision it did. ii

Before the DLHT, the respondent did not file a counterclaim regarding ownership of the suit land; she only submitted exhibits to prove her ownership. These documents were inconsistent, yet the Senior Resident Magistrate with extended jurisdiction overturned the DLHT decision and declared the respondent the lawful owner of the suit land, a determination not originally within the scope of the appeal. The law is dear that a court cannot grant a relief that was not specifically requested. See: Melchiades John Mwenda v. Gizelle Mbaga & Others (Civil Appeal No. 57 of 2018) [2020] TZCA 1856 (13th November 2020; TANZLii). The first ground alone would have sufficed to dispose of the appeal entirely. However, we decided to consider the remaining grounds as well, though briefly. The second ground asserts that Simon Kasungi occupied the suit land for more than twelve (12) years, the claim controverted by the appellant that it had never been sold. First and foremost, the first appellate court incorrectly applied the doctrine of adverse possession. For this doctrine to apply, there should be no claim of ownership through purchase, which is the situation here. 12

It is a well-established legal principle that adverse possession can only be claimed if a person occupies someone else's land without permission and undisturbed and the property owner fails to recover it within the time prescribed by law. This is not applicable in the current case, as the land claimed was purchased rather than acquired through adverse possession. We have previously discussed this doctrine extensively in Registered Trustees of the Holy Spirit Sisters Tanzania v. January Kamili Shayo & 136 Others (Civil Appeal No. 193 of 2016) [2018] TZCA 365 (31st August 2018; TANZLii) and Bhoke Kitangita v. Makuru Mahemba (Civil Appeal No. 222 of 2017) [2020] TZCA 66 (20th March 2020; TANZLii). In both cases, the Court ascertained that the doctrine of adverse possession requires all conditions to be cumulatively satisfied. Simon Kasungi claimed to have purchased the suit land and did not acquire it through adverse possession, as incorrectly concluded by the first appellate court. This ground has merit. The last ground contends that the appellant was always in Nzega and, therefore, was aware of the land transaction between Simon Kasungi and the respondent, though the DLHT's proceedings did not support this assertion. 13

Our review of the record of the DLHT proceedings reveals no evidence to substantiate these findings. For instance, on page 220 of the record, the Senior Resident Magistrate with extended jurisdiction concluded: "Also in this matter, it's dear that the respondent is living at Nzega at a ii time and was aware that Simon Kasungi was using it and la te r..." The evidence indicates that the appellant was not continuously present in Nzega. For example, he left for Dar es Salaam in 2002 and returned in 2005, only to leave again and return in 2013, as detailed on page 38 of the record. Thus, it cannot be said that he was always present in Nzega and aware of Simon Kasungi's transactions involving the suit land. Additionally, on page 217, the Senior Resident Magistrate with extended jurisdiction found: "...and the respondent was present, but the dispute arose until Simon Kasungi died..." This assertion is also unsubstantiated. The Senior Resident Magistrate for no reason or basis, believed that the appellant waited 14

until Simon Kasungi's death to raise the issue. Simon Kasungi reportedly died in 2008, yet the appellant had been pursuing the matter since 2005 when he challenged PW2 (his sister) to sell the suit land to the respondent. Simon Kasungi was still alive at that time. According to the evidence on record, particularly the document on page 70, PW2 refunded one Peter Masanilo, the respondent's husband. Still, there is no information on Simon Kasungi's reaction after the suit land was recovered, whereas there was a reaction from the appellant upon finding that PW2 had sold his land. Under the circumstances, concluding that the appellant only acted after Simon Kasungi's death is inappropriate. Furthermore, the Senior Resident Magistrate with extended jurisdiction concluded that Plot Nos. 168 and 162 are the same because no one complained about the existence of two plots. While this might be true, the conclusion is unfounded without concrete evidence, such as a visit to the locus in quo, which could have provided a conclusive answer. The Senior Resident Magistrate also suggested that the Land Office made a mistake during the survey, resulting in two different plot numbers. This account was not verified, leading to a misleading conclusion. As noted from his remarks:- 15

" Therefore, the difference in p iot number was made by land officers who surveyed the area in dispute and is curable. It should be known that the form er transfer o f11/08/1996 was not official. Hence, a m istake may have been made by the respondent and Simon Kasungi." The first appellate court attributed the difference in plot numbers to the respondent and Simon Kasungi, claiming that the 1996 transfer was not official and thus caused confusion with the plot numbers. These facts were not supported by evidence presented at trial. By including such unsupported evidence most likely influenced the final decision, which was prejudicial to the appellant. It could be that the Senior Resident Magistrate with extended jurisdiction might have been swayed by submissions from the parties on pages 175-178 of the record, which do not constitute evidence. We have previously encountered a situation like this in A. Nkini & Associates Limited v. National Housing Corporation (Civil Appeal No. 72 of 2015) [2021] TZCA 564 (23rd September 2021; TANZLii), in which we held that submissions are not evidence.

In conclusion, the appeal is allowed with costs. We quash the judgment of the Senior Resident Magistrate with extended jurisdiction and the declaratory order resulting from that judgment. The decision by the DLHT is hereby sustained. DATED at DAR ES SALAAM this 11th day of September, 2024. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL The judgment delivered this 11th day of September, 2024 in the presence of appellant appeared in person via Video Conference linked from Nzega District Court and in the absence of the respondent, is hereby certified as a true copy of the original. 17