Awe Darus Lohay vs Mohe Darus Lohay (Land Appeal No. 000032847 of 2025) [2026] TZHC 3067 (9 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA LAND APPEAL NO. 000032847 OF 2025 AWE DARUS LOHAY...............................COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS MOHE DARUS LOHAY...............................RESPONDENT / DEFENDANT JUDGMENT MAHIMBALI, J This appeal arises from the Judgment and Decree of the District Land and Housing Tribunal for Karatu (hereinafter referred to as "the Tribunal") delivered on 20th November 2025 in Land Application No. 55 of 2024. By its decision, the Tribunal declared the Respondent, Mohe Darus Lohay, to be the lawful owner of the disputed parcel of land measuring approximately ten (10) acres situated at Bashay Village, Umbe Hamlet, Qurus Ward, Karatu District. The Tribunal further restrained the Appellant, Awe Darus Lohay, from interfering with the Respondent's possession and occupation of the said land. Page. 1

Being dissatisfied with that decision, the Appellant lodged the present appeal before this Court. According to the gathered facts in the record of appeal, reveals that the parties are biological brothers and that the dispute concerns ownership of a parcel of land measuring approximately ten (10) acres located at Bashay Village within Karatu District. The Respondent's case before the Tribunal was that he acquired the suit land through allocation by the Bashay Village Council in the year 1994. According to him, his ownership was subsequently challenged by the Village Government, culminating in litigation that was ultimately determined in his favour by the High Court in or about 1998. He maintained that since then he had remained the lawful owner and occupier of the land. The Appellant, on the other hand, contended that the land originally belonged to their father and that in the year 2007 he inherited the same through a family arrangement. He therefore disputed the Respondent's claim of ownership and asserted that the Respondent had no lawful title over the suit property. Upon hearing the parties and their witnesses, the Tribunal accepted the Respondent's case and entered judgment in his favour. It is that decision which has given rise to the present appeal. Page. 2

Although the Memorandum of Appeal contains several grounds, the same may conveniently be condensed into the following complaints:

1. That the Tribunal erred in law and fact in declaring the Respondent the lawful owner of the suit land without proof of lawful acquisition.
2. That the Tribunal improperly admitted and relied upon Exhibit P3 and matters not pleaded by the parties.
3. That the Tribunal erred in raising and determining the issue of limitation of actions suo motu without hearing the parties.
4. That the Tribunal relied upon hearsay and inconsistent evidence.
5. That the Tribunal failed to properly evaluate the Appellant's evidence relating to inheritance. The disposition of the appeal was done by way of written submissions. Learned counsel for the Appellant, Mr. Emmanuel Sood, attacked the decision of the Tribunal on both factual and legal grounds. He submitted that the Respondent failed to establish the root of his title to the disputed land. According to counsel, the Respondent's claim that the land was allocated to him by the Bashay Village Council in 1994 was legally untenable because, at the material time, the applicable law governing rights of occupancy was the Land Ordinance, Cap. 113 of 1923. Page. 3

Counsel argued that under that legal regime, only the Governor possessed authority to grant rights of occupancy and that village councils had no power to allocate land capable of conferring proprietary rights. He further submitted that Exhibit P3, which formed the cornerstone of the Respondent's case, was neither authentic nor legally capable of proving ownership. According to counsel, the document was signed by a Village Executive Officer and not by any authority legally empowered to allocate land. Counsel further contended that the Tribunal fell into grave error by invoking the Law of Limitation Act, Cap. 89, despite limitation never having been pleaded or made an issue in the proceedings. He argued that by raising and determining the issue suo motu without inviting submissions from the parties, the Tribunal violated the Appellant's constitutional right to be heard guaranteed under Article 13(6)(a) of the Constitution of the United Republic of Tanzania. In support of his arguments, counsel relied on, among other authorities, Barelia Kirangirangi v. Asteria Nyalambwa, Civil Appeal No. 237 of 2015 (CAT); Charles Christopher Kombe v. Kinondoni Municipal Council , Civil Appeal No. 81 of 2017 (CAT); and Paulina Samson Ndawaya v. Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017 (CAT). Page. 4

He ultimately prayed that the appeal be allowed, the judgment of the Tribunal be set aside, and the proceedings declared a nullity. On the other hand, learned counsel for the Respondent, Mr. Bungaya Panga, opposed the appeal. He submitted that the suit land was allocated to the Respondent in 1994, long before the enactment of the Village Land Act, and that ownership could validly be established through oral evidence and community recognition. Counsel argued that the evidence of PW2 and PW3 sufficiently corroborated the Respondent's account regarding allocation and occupation of the land. As regards Exhibit P3, counsel submitted that the document was admitted into evidence without objection and therefore became part of the evidentiary record properly available for consideration by the Tribunal. Regarding limitation, counsel submitted that the Tribunal merely referred to the Respondent's long occupation as part of the factual background and did not base its decision solely on limitation principles. He further argued that the Appellant's claim of inheritance remained unsupported by documentary evidence and that the alleged donor, namely the parties' father, was never called to testify. Counsel therefore urged the Court to dismiss the appeal with costs. Page. 5

In a brief rejoinder, learned counsel for the Appellant maintained that the Tribunal's reliance on limitation was substantive rather than incidental. He reiterated that village authorities lacked legal power to confer proprietary rights under the Land Ordinance and insisted that Exhibit P3 was incapable of proving lawful acquisition of the land. Counsel accordingly prayed that the appeal be allowed. I have carefully considered the rival submissions of learned counsel for the parties, the record of appeal, the proceedings and judgment of the District Land and Housing Tribunal for Karatu, as well as the applicable law. Although the memorandum of appeal contains several grounds, a careful examination thereof reveals that the appeal substantially raises the following issues for determination:

1. Whether the Respondent proved lawful acquisition and ownership of the suit land;

2. Whether the Tribunal properly admitted and relied upon Exhibit P3 and other evidence tendered by the Respondent;

3. Whether the Tribunal erred in law by raising and determining the issue of limitation suo motu without affording the parties an opportunity to be heard; Page. 6

4. Whether the Tribunal properly evaluated the evidence adduced by both parties; and

5. Whether the identified errors and irregularities occasioned a miscarriage of justice warranting appellate intervention. Whether the Respondent Proved Lawful Acquisition and Ownership of the Suit Land. The burden of proving ownership of land rests upon the party asserting such ownership. It was therefore incumbent upon the Respondent, as claimant before the Tribunal, to establish not only his occupation of the suit land but also the legality of the root of his title. The Respondent's case before the Tribunal was that he acquired the disputed ten (10) acres through allocation by the Bashay Village Council in the year 1994 and that his entitlement was later confirmed through court proceedings culminating in a decision rendered in 1998. The Appellant challenged that claim and maintained that the land belonged to their late father and was subsequently transferred to him by way of inheritance. A careful examination of the record reveals that the Tribunal accepted the Respondent's assertion of allocation largely on the strength of oral testimony and Exhibit P3, being minutes purportedly emanating from the Village Council. The difficulty with that conclusion is that the Tribunal did not adequately address the legal basis upon which the alleged allocation was made. Page. 7

The Appellant's contention that the allocation was inconsistent with the land tenure regime applicable at the material time was neither fully examined nor resolved by the Tribunal. Indeed, while the Tribunal accepted the Respondent's claim of allocation as a settled fact, it failed to interrogate the legal authority under which such allocation was made and whether the same was capable of conferring enforceable proprietary rights. It is trite law that ownership of land cannot be established merely through assertion. The court or tribunal must be satisfied that the alleged title originates from a legally recognizable source. In my considered view, the Tribunal failed to sufficiently examine the legality of the Respondent's alleged acquisition before proceeding to declare him the lawful owner of the suit land. That omission constituted a material misdirection. The next issue for consideration, concerns the evidential value of Exhibit P3, i.e Whether the Tribunal properly admitted and relied upon Exhibit P3 and other evidence tendered by the Respondent . The Respondent argued that Exhibit P3 was properly admitted as an additional document without objection from the Appellant. That proposition is correct as far as admissibility is concerned. However, admissibility and evidential weight are distinct legal concepts. The mere admission of a document does not automatically render its contents reliable, authentic, or conclusive. The tribunal remains under a duty to assess Page. 8

its probative value in light of the surrounding evidence. The record shows that PW2 and PW3, who were called to support the Respondent's case, were unable to satisfactorily explain critical aspects surrounding Exhibit P3. Their evidence revealed uncertainty regarding the authority behind the alleged allocation, the circumstances under which the minutes were prepared, and the connection between the document and the disputed land itself. Indeed, portions of their testimony disclose inconsistencies regarding the history of the land and the alleged previous litigation. Such inconsistencies ought to have attracted a cautious approach on the part of the Tribunal. The Tribunal, however, treated Exhibit P3 as conclusive proof of ownership without subjecting it to rigorous scrutiny. In doing so, it accorded the document greater evidential value than the circumstances warranted. I therefore find merit in the complaint that the Tribunal improperly relied upon Exhibit P3 in reaching its conclusions. Whether the Tribunal Erred by Raising Limitation Sua Motu. One of the central complaints raised by the Appellant concerns the Tribunal's invocation of the Law of Limitation Act, Cap. 89. A reading of the judgment leaves no doubt that the Tribunal relied upon the Respondent's alleged occupation of the land for approximately twenty-six Page. 9

years as a factor supporting its decision. The Tribunal expressly referred to principles of limitation in its reasoning. The issue, however, is that, limitation was never pleaded by either party. Neither was it framed as an issue for determination during the proceedings. The law is settled that while a court may, in appropriate circumstances, raise a point of law on its own motion, fairness demands that the parties be afforded an opportunity to address the court on that issue before it forms the basis of a judicial determination. The rationale for this principle lies in the constitutional right to be heard guaranteed under Article 13(6)(a) of the Constitution of the United Republic of Tanzania. In Charles Christopher Kombe v. Kinondoni Municipal Council , Civil Appeal No. 81 of 2017 (CAT), the Court of Appeal emphasized that a court which raises a point suo motu must invite parties to make submissions thereon before relying upon it. Similarly, courts have consistently held that the right to be heard is so fundamental that its violation ordinarily renders the resulting proceedings a nullity regardless of the apparent merits of the case. In the present matter, there is nothing on record to indicate that the parties were invited to address the Tribunal on the applicability of limitation principles Page. 10

before the Tribunal relied on them. In my considered view, this constituted a serious procedural irregularity which directly infringed the Appellant's constitutional right to be heard. Accordingly, this ground of appeal succeeds. Whether the Tribunal Properly Evaluated the Evidence. It is a cardinal duty of every trial court and tribunal to evaluate all evidence before it, assign reasons for accepting or rejecting particular evidence, and demonstrate in its judgment that it has considered the case of each party. The duty is especially important in land disputes involving competing claims of ownership. Having carefully examined the judgment under appeal, I find that the Tribunal accepted the Respondent's evidence almost in its entirety without adequately addressing the concerns raised by the Appellant. Equally, the Tribunal dismissed the Appellant's claim of inheritance without undertaking a comprehensive evaluation of the evidence tendered in support thereof. While it is true that the Appellant's evidence consisted largely of oral testimony from family members, the Tribunal was nonetheless under a duty to evaluate such evidence alongside that of the Respondent and explain why one version was preferred over the other. That exercise is largely absent from the judgment. Page. 11

The result is that the Tribunal's conclusions appear to have been reached without a balanced consideration of the entire evidentiary record. I am therefore satisfied that the Tribunal failed to properly discharge its duty of evaluating the evidence before it. Whether the Errors Occasioned a Miscarriage of Justice. Having found that: (a) the legality of the Respondent's alleged acquisition was not adequately examined; (b) Exhibit P3 was accorded undue probative value; (c) limitation principles were raised and relied upon without hearing the parties; and (d) the evidence was not properly evaluated, the remaining question is whether those errors occasioned a miscarriage of justice. In my view, they did. These were not mere technical irregularities. They went to the very foundation of the dispute and materially influenced the outcome reached by the Tribunal. The cumulative effect of those errors rendered the proceedings unsafe and deprived the Appellant of a fair adjudication of his claim. Consequently, this Page. 12

Court cannot permit the judgment to stand. Having reached the foregoing conclusions, I find that the appeal has merit. However, having found that the proceedings were vitiated by procedural and substantive irregularities, it would be inappropriate for this Court to make definitive findings regarding ownership of the suit land. Such findings can only properly be made after a lawful hearing in which all relevant issues are fully canvassed and determined. Accordingly, I make the following orders:

1. The appeal is hereby allowed.
2. The Judgment and Decree of the District Land and Housing Tribunal for Karatu in Land Application No. 55 of 2024 are hereby quashed and set aside.
3. The proceedings in Land Application No. 55 of 2024 are declared a nullity.
4. The matter is hereby remitted to the District Land and Housing Tribunal for Karatu for a fresh hearing before a differently constituted panel.
5. The parties shall be at liberty to adduce such additional evidence as may be lawfully admissible during the retrial.
6. Costs of this appeal shall abide the outcome of the retrial. It is so ordered. Page. 13

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