Francis Kyando vs Christopher Mwashitegula and 2 Others (Land Appeal No. 15406 of 2025) [2026] TZHC 3086 (8 June 2026)
Judgment
THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF TANZANIA (MBEYA SUB - REGISTRY) AT MBEYA LAND APPEAL NO. 15406 OF 2025 Case Reference No. 202506261000015406 FRANCIS KYANDO …………………………………………………… …… APP EL LANT VERSUS
- CHRISTOPHER MWASHITEGULA
- FARAO MTAFYA .…………………… RESPONDENTS
- HADIJA SHABANI (Appeal from the Judgment and Decree of the District Land and Housing Tribunal for M b a rali at Rujew a) (Hon. A . M apunda , Chairperson ) Dated the 2 5 th day of April 2025 in Land Application No. 0 4 of 2024
JUDGMENT Date of Last Order: 0 8 .05.2026 Date of Judgment : 08 . 0 6 .2026 KALUNDE, J. : Through Land Application No. 04 of 2024 filed before the District Land and Housing Tribunal for Mbarali sitting at Rujewa (hereinafter “the trial tribunal ”), the appellant, FRANCIS KYANDO, instituted proceedings against the respondents, CHRISTOPHER MWASHITEGULA, JANUARY FARAO and HADIJA SHABANI, claiming ownership of a disputed agricultural land measuring approximately
2 4.5 acres situated at Ilolo Hamlet, Igurusi, in Mbarali District (hereinafter “the suit land ”) . The appellant claimed to have acquired the suit land through purchases made in 2006 and 2007 from Sadick Mdiminyula and the third respondent, respectively. He asserted that he initially purchased three acres of land from one Sadick Mdiminyula on the 24 th day of August 2006 and subsequently acquired an additional 1.5 acres from the third respondent, Hadija Shabani, through transactions conducted on 19 th day of December 2007 and 4 th day of January 2008. According to the appellant, these acquisitions resulted in his ownership of a total of 4.5 acres, which he continuously occupied and cultivated for rice farming for more than seventeen years without interference. He claimed further that t he dispute started in November 2023 when the first and second respondents allegedly entered the land and prevented the appellant from accessing and cultivating on the land. According to the pleaded facts , the first and second respondents claim ed that the land belonged to them having purchased it from the third respondent. The appellant maintained that such sale was invalid because the third respondent had already sold the land to him years earlier.
3 Based o n the above allegations, the appellant sought for judgment and decree against the respondents jointly and severally as follows: one, a declaration that the disputed land was his lawful property; two, a declaration that the subsequent sale allegedly made by the third respondent to the first and second respondents was null and void; three, a declaration that the first and second respondents were trespassers upon the disputed land; four, an order for their eviction and permanent injunction restraining t hem, their agents or any person claiming through them from entering, occupying or undertaking any activity on the land; five, costs of the proceedings; and six, any such o ther reliefs as the trial tribunal might deem just and appropriate in the circumstances of the case. In reply, t he respondents filed a joint written statement of defence in which they denied the appellant’s claim and challenged his alleged ownership of the suit land. They maintained that the land lawfully belonged to the first and second respondents by virtue of a purchase made from the third respondent and contended that the appellant had no valid interest therein. Accordingly, they prayed that the appellant’s application be dismissed in its entirety for being devoid of merit, with costs. At the trial, the appellant’s case was that he was the lawful owner of the disputed land. According to FRANCIS KYANDO (SM1),
4 he purchased three acres from Sadick Amiri Mdiminyula in 2006 for a consideration of TZS 210,000/= and a further 1.5 acres from HADIJA SHABANI, the third respondent, through transactions concluded in 2007 and 2008. He testified that he continuously cultivated the land from 2006 until December 2023 when CHRISTOPHER MWASHITEGULA and JANUARY FARAO entered the land and commenced cultivation, prompting him to report the matter to the police. In support of his claim, he tendered three sale agreements relating to the purchases . The said agreements were admitted in evidence and collectively marked as Exhibit P1 . He also tendered water user receipts evidencing payment of irrigation charges from 2006 to 2023 . The receipts were admitted as Exhibit P2 . The appellant’s account was supported by BELAMINO AGUSTINO NGILIULE (SM2), an irrigation scheme leader . He testified that the land was sold to the appellant by HADIJA SHABANI and her son Sadick Mdiminyula in 2006 . The scheme leader said that from 2007 the appellant had been recognized within the irrigation scheme as the owner and user of the land. According to SM2, the first and second respondents purchased different parcels of land from the third respondent and only entered into the disputed land in 2024. However, d uring cross - examination, SM2 conceded that he was not present when the alleged sale to the appellant took place . He stated that his
5 knowledge of the transaction came from records handed over by previous leaders and information given to him by the third respondent. In further cross - examination, SM2 admitted further that the suit land originally belonged to the third respondent and that Sadick Mdiminyula was not the lawful owner . The appellant further called ABEL BANUNU MWAIPASA (SM3), a neighbouring farmer, who testified that he had cultivated land adjacent to the disputed property since 2006 . SM3 said that since then he had seen the appellant continuously using and cultivating the disputed land until shortly before the dispute arose. Equally, SM3 admitted , in cross - examination , that he was not present during any sale transaction and did not know whether the appellant had purchased or leased the land. JOYCE MWAGANGA (SM4), another neighbouring farmer , testified that she had cultivated in the locality since 2003 and had cultivated alongside the appellant from 2007. She stated that her late husband had informed her that the appellant purchased one portion of the land from Sadick Mdiminyula and another from the third respondent. Again, l ike SM2 and SM3, SM4 also candidly confessed that her knowledge of the alleged purchases was based entirely on what her late husband had told her and that she did not person ally witness any of the transactions.
6 In reply to the appellants case, t he respondents’ case was that the disputed land belonged to HADIJA SHABANI (SU3) and that the first and second respondents lawfully acquired their respective portions from her. In this context, SU3 was the central witness in the respondents’ case in that both , first and second respondents , traced their alleged rights to the disputed land through her. In her testimony SU3 testified that the land belonged to her . She denied having sold the disputed portion to the appellant. In addition to that, SU3 denied authorising Sadiki Amir Mdiminyula to sell the suit land on her behalf to the appellant or any person . According to her, although Sadiki Amir Mdiminyula was her son, he was not the owner of the disputed land and therefore had no authority to transfer ownership thereof. She maintained that she remained the lawful owner of the land until she subsequently sold portions of it to CHRISTOPHER ZAWADI MWASHITEGULA (SU1) and JANUARY FARAO (SU2). For his part, SU1 testified that in July 2021 the third respondent offered to sell him one acre of land. He said that a fter inspecting the land in the company of village leaders and completing the transaction, he took possession thereof. He stated that when he later attempted to cultivate the land, he found the appellant using it and claiming ownership. He subsequently rep orted the matter to the Igurusi Ward
7 Tribunal where, according to him, the third respondent confirmed having sold the land to him . JANUARY FARAO (SU2) similarly testified that he purchased his portion of the disputed land directly from SU3 . SU2 said that he all along knew that SU3 was the lawful owner of the suit land. He confirm ed that the transaction was conducted openly and in the presence of local leaders, after which he took possession and commenced utilizing the land. According to him, the land sold to him formed part of the property owned by SU3, and he lawfully acquired it f rom her. The evidence of SU3, SU1 and SU2 was supported by JAPHET ADEN MWAKIBIBI ( SU4 ) and GODRICK ISMAEL MPINGA ( SU5 ) , who were village leaders involved in the transactions. They testified that they were present when SU3 sold the disputed land to SU1 and SU2 and that they witnessed and authenticated the relevant sale transactions. In total, t heir evidence was that the transactions were conducted openly in their presence and that the portions occupied by SU1 and SU2 were acquired from SU3. In resolving the dispute , the tribunal Chairperson framed three issues for determination, namely ; who was the lawful owner of the disputed land; whether the first and second respondents were
8 trespassers ; and what were the reliefs available to the parties. Upon evaluating the evidence, the t ribunal found that the sale agreement relied upon by the appellant did not bear the name or signature of the third respondent and was therefore incapable of proving the alleged purchase. The learned t ribunal Chairperson held further that the appellant’s witnesses merely established his long occupation and cultivation of the land, which, by itself, did not constitute proof of ownership under section 119 of t he Evidence Act [Cap. 16 R.E. 2022 ] . Relying on the above reasoning, the learned t ribunal Chairperson rejected part of the evidence of appellant as hearsay under section 62(1)(a) of t he Evidence Act . The learned t ribunal Chairperson found that the appellant had failed to call Sadick Mdiminyula, from whom he claimed to have purchased part of the land, thereby warranting an adverse inference against him. In reaching that conclusion, the trial tribunal relied on the decision of the Court of Appeal in the case of Splendors T. Ltd vs David Raymond D'souza & Another (Civil Appeal No. 7 of 2020) [2023] TZCA 23 (17 February 2023) TanzLII . On the other hand, the trial tribunal accepted the respondents’ evidence that the first and second respondents purchased the disputed land from the third respondent . The t ri al Chairperson was
9 satisfied that the third respondent established that the suit land belonged to her and not to Sadick Mdiminyula. Having found that the appellant failed to prove either a valid purchase from the third respondent or that Sadick Mdiminyula possessed a transferable title, the tri al Chairperson concluded that the respondents’ evidence outweighed that of the appellant and that the disputed land lawfully belonged to the first and second respondents. Accordingly , it held that the respondents could not be regarded as trespassers . In that regard, the trial tribunal concurred with the assessors’ opinion that the impugned sale , from the third respondent to the first and second respondents was lawful and ultimately dismissed the application with costs. Aggrieved by that decision, the appellant lodged the present appeal challenging both the findings of fact and conclusions of law reached by the trial tribunal . In the memorandum of appeal filed to this court on the 23 rd day of June 2025, the appellant raises four grounds of complaint. First , he contends that the trial tribunal erred in law and fact in holding that the suit land was lawfully sold to the respondents despite the absence of any admitted sale agreement in support of the respondents’ claim and no twithstanding material contradictions in their evidence concerning the alleged sale and acquisition of the land. Secondly , he faults the trial tribunal for failing
10 to accord due weight to his long, peaceful, and uninterrupted occupation and use of the suit land for a period exceeding seventeen years before the respondent's interference . Thirdly , he argues that the trial tribunal improperly disregarded the credible and consistent evidence adduced on his behalf while placing reliance on contradictory and unreliable testimony from the respondents, thereby arriving at an erroneous conclusion. Fourthly , he contends that the trial tribunal erred in finding that the suit land belonged exclusively to the third respondent despite evidence indicating that he had acquired portions of the land through separate transactions involving both the third respondent and Sadick Mdiminyula. Wherefore , the appellant pray ed that this appeal be allowed; that the judgment and decree of the trial tribunal in Land Application No. 4 of 2024 be set aside and reversed; that judgment be entered in his favour as prayed in the application; and that he be awarded the costs of this appeal as well as the costs incurred before the trial tribunal . In support of the appeal, Mr. Emily Ernest Mwamboneke, learned counsel for the appellant, submitted that the trial tribunal erred in holding that the suit land had been lawfully sold to the respondents despite the respondents’ failure to produce the alleged sale agreements upon which their claim was founded. The l earned
11 counsel argued that while the appellant tendered written sale agreements, admitted as Exhibit P1, the respondents relied solely on oral assertions. To support the proposition that documentary evidence is the primary and most reliable proof of contractual t ransactions and ordinarily prevails over inconsistent oral testimony, he relied on the cases of Agatha Mshote vs Edson Emmanuel & Others (Civil Appeal No. 121 of 2019) [2021] TZCA 323 (20 July 2021) TanzLII; and Leopold Mutembei vs Principle Assistant Registrar of Titles, Ministry of Lands Housing and Urban Development & Another (Civil Appeal No. 57 of 2017) [2018] TZCA 213 (11 October 2018) TanzLII . The l earned counsel submitted further that the trial tribunal wrongly discounted Exhibit P1 after admitting it into evidence. In support of the distinction between admissibility and subsequent evaluation of documentary evidence, he cited the cases of Anna Moises Chissano vs Republic (Criminal Appeal 273 of 2019) [2021] TZCA 468 (14 September 2021) TanzLII ; Eupharacie Mathew Rimisho t/a Emari Provision Store & Another vs Tema Enterprises Limited & Another (Civil Appeal No. 270 of 2018) [2023] TZCA 102 (13 March 2023) TanzLII; and J oseph Deus @ Sahani & Another vs Republic (Criminal Appeal No. 564 of 2019) [2022] TZCA 411 (11 July 2022) TanzLII . He also relied on the case
12 of Leopold Mutembei vs Principle Assistant Registrar of Titles and O ther s (supra) for the proposition that documentary instruments relating to land transactions constitute important evidence of both ownership and the underlying transactions giving rise to title. Mr. Mwamboneke submitted further that the appellant established ownership through the sale agreements and his uninterrupted occupation of the land for over seventeen years. He argued that the respondents failed to produce any lease agreement or other evidence supporting their assertion that the appellant was merely a tenant. The learned c ounsel contended that the trial tribunal misapplied section 119 of t he Evidence Act , now section 127 of the Evidence Act [Cap. 6 R.E. 2023] , by treating long possession as incapable of supporting ownership. He maintained that the appellant’s long occupation corroborated the sale transactions and that the trial tribunal erred in drawing an adverse inference against the appellant for failing to call Sadick Mdiminyula while not drawing a similar inference against the respondents who equally failed to call him. The l earned counsel also argued that the respondents’ evidence contained material contradictions concerning the sale transactions, ownership history of the land, and the circumstances under which the
13 appellant occupied the suit land . He therefore urged the c ourt to allow the appeal with costs . In reply, the respondents submitted that the trial tribunal properly directed itself on both the law and the evidence. They argued that under sections 117 and 118 of the Evidence Act , the burden of proof rested upon the appellant as the party asserting ownership. In support of that proposition, they relied on Sarkar on Evidence (LexisNexis Edition), Hemed Said v Mohamed Mbilu (1984) TLR 113, Bright Technical Systems & General Supplies Limited vs Institute of Finance Management (Civil Appeal No. 12 of 2020) [2023] TZCA 17284 (30 May 2023) TanzLII ; Ziad Mohamed Rasool General Trading Co. L.L.C vs Anneth Joachim Mushi (Civil Case 21 of 2020) [2021] TZHC 5755 (13 August 2021) TanzLII ; Benedict Mhagama vs Kalaita Yohana (Civil Appeal No. 135 of 2021) [2024] TZCA 673 (1 August 2024) TanzLII , and Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) TanzLII . According to the respondents, the appellant failed to discharge that burden because he did not call the alleged vendor, village leaders, or other attesting witnesses capable of proving the authenticity and validity of Exhibit P1. They further argued, relyi ng on Republic vs Robert Bernado Steven (Criminal Sessions No.86
14 of 2022) [2023] TZHC 18936 (28 March 2023) TanzLII , which referred to Stephen Jason & Another v Republic , Criminal Appeal No. 79 of 1999, that admissibility of evidence is distinct from the weight ultimately attached to it. Accordingly, they maintained that the trial tribunal was entitled to admit Exhibit P1 and yet find it insufficient to prove ownership. The respondents also disputed the appellant’s reliance on long occupation. They cited Attorney General vs Mwahezi Mohamed & Others (Civil Appeal No. 391 of 2019) [2020] TZCA 27 (26 February 2020) TanzLII ; Registered Trustees of Holy Spirit Sisters Tanzania vs January Kamili Shayo and Others (Civil Appeal No. 193 of 2016) [2018] TZCA 773 (6 August 2018) TanzLII which cited Mbira v Gachuhi [2002] E.A. 137 ; Moses v Lovegrove [1952] 2 QB 533, and Hughes v Griffin [1969] 1 All ER 460 , for the proposition that a claim founded on purchase cannot simultaneously be sustained on principles associated with adverse possession. The respondents submitted further that the trial tribunal correctly identified material contradictions in the evidence of SM1, SM2, SM3 and SM4 regarding the boundaries of the land, the alleged sale transactions, and the source of their knowledge. R elying on Hemed Said v Mohamed Mbilu (supra) , t he respondents argued
15 that the trial tribunal properly drew an adverse inference from the appellant’s failure to call Sadick Mdiminyula. The respondents also relied on the decision of the Court of Appeal in the case of Attorney General and Others vs Eligi Edward Massawe and Others (Civil Appeal No.86 of 2002) [2006] TZCA 187 (30 May 2006) TanzLII , in support of the proposition that failure to prove ownership entitled the trial tribunal to dismiss the claim. Relying on the above arguments , the respondents prayed that the appeal be dismissed with costs. In rejoinder, Mr. Mwamboneke submitted that the appellant sufficiently discharged the evidential burden by tendering the sale agreements and giving direct evidence regarding the transactions. Relying on the case of Jasson Samson Rweikiza vs Novatus Rwechungura Nkwama (Civil Appeal 305 of 2020) [2021] TZCA 699 (29 November 2021) TanzLII , he argued that once such evidence was adduced, the evidential burden shifted to the respondents to rebut it. The l earned counsel contended further that the respondents could not rely on the distinction between admissibility and weight of evidence to undermine Exhibit P1 because, in land transactions, a written sale agreement constitutes the primary proof of acquisition.
16 He also invoked section 143 of the Evidence Act, arguing that no particular number of witnesses is required to prove a fact and that the appellant’s case could not fail merely because he did not call every person connected with the transactions. The learned c ounsel reiterated that the appellant’s reliance on seventeen years of occupation was not intended to establish adverse possession but rather to corroborate the genuineness of the sale and the appellant’s peaceful enjoyment of the land following the purchase. He maintained that the trial tribunal misdirected itself in its interpretation of section 127 and urged the c ourt to allow the appeal with costs. For my part, h aving carefully considered the proceedings and judgment of the trial tribunal , the grounds of appeal, and the submissions of the parties, I am of the considered view that the appeal may conveniently be resolv ed through the following issues ; one, w hether the appellant proved, on a balance of probabilities, that he lawfully acquired ownership of the disputed land through the alleged purchases from Hadija Shabani and/or Sadick Mdiminyula; and two, w hether the trial tribunal was justified in dismi ssing the appellant's claim and entering judgment in favour of the respondents. In my considered opinion , t hese issues sufficiently encompass all the grounds of appeal advanced by the appellant .
17 In resolving the foregoing issues, I propose to begin by setting out the guiding principles that govern the determination of this appeal. First, this being a first appeal, the law imposes upon this Court the duty to re - evaluate, re - appraise and reconsider the entire evidence on record, both oral and documentary, and thereafter arrive at its own independent conclusions on matters of fact and law. This duty has been consistently emphasized by the Court of Appeal, which has held that a first appeal is, in subs tance, a rehearing of the case because an appeal constitutes a continuation of the original proceedings. Accordingly, this c ourt is required to subject the whole of the evidence to fresh scrutiny and make its own findings while bearing in mind the issues raised before the trial tribunal and the conclusions reached thereon. At the same time, I am mindful that the trial tribunal had the distinct advantage of seeing and hearing the witnesses testify and of observing their demeanour, candour, and manner of answering questions. This c ourt, sitting on appeal, does not enjoy that advantage and therefore must accord due respect to findings founded upon such observations unless it is demonstrated that the trial tribunal misapprehended the evidence, acted on wrong principles, or arrived at conclusions that are not supported by the record.
18 I am equally guided by the settled principles governing the burden and standard of proof in civil proceedings. It is trite, and indeed elementary, that the burden of proof lies upon the party who asserts a fact. This principle is embodied in section 117 of the Evidence Act. It is equally settled that in civil proceedings the applicable standard of proof is on a balance of probabilities. In other words, the c ourt must determine which version of the evidence is more credible, probable, and consistent with the surrounding circumstances of the case. The Court of Appeal reaffirmed this principle in the case of Paulina Samson Ndawavya’s case (supra) , where it emphasized that the burden of proof remains upon the party asserting a claim and does not shift merely because the opposing party's case appears weak. The same principle was reiterated by the Court of Appeal in Jasson S . Rweikiza vs Novatus R . Nkwama (supra) , where the Court observed that in civil proceedings the party bearing the legal burden also bears the evidential burden and must establish his case on a balance of probabilities. The Court further stressed that a litigant cannot succeed by relying on defi ciencies in the opponent’s case before first discharging his own burden of proof. In arriving at that conclusion, the Court approved the principle stated in Sarkar's Laws of Evidence , 18 th Edition, by M.C. Sarkar,
19 S.C. Sarkar, and P.C. Sarkar, published by Lexis Nexis, which had earlier been relied upon in Paulina Samson Ndawavya’s case (supra) where it was stated that the burden rests upon the party who substantially asserts the affirmative of an issue and that until such burden is discharged, the opposing party is under no obligation to prove anything. The relevant passage reads: "... the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for negative is usually incapable of proof . It is ancient rule founded on consideration of good sense and should not be departed from without strong reason...Until such burden is discharged the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to discharge his b urden. Until he arrives at such a conclusion, he cannot proceed on the basis of weakness of the other party ..." [Emphasis added]. Applying the above principles to the present appeal, there can be no dispute that the burden of proof rested squarely upon the appellant. I say so because h e was the party who instituted the proceedings before the trial tribunal claiming ownership of the disputed land and seeking declarations that the subsequent sale to
20 the first and second respondents was invalid ; that they were trespassers ; and that he was entitled to the reliefs sought in the application. Accordingly , it was incumbent upon him to establish, on a balance of probabilities, that he lawfully acquired ownership of the disputed land through the transactions he alleged to have entered with Hadija Shabani and Sadick Mdiminyula. Upon my own re - evaluation and re - appraisal of the entire evidence on record, I am unable to agree with the appellant's contention that he discharged the burden of proving ownership of the disputed land on a balance of probabilities. To the contrary, the ev idence on record reveals significant gaps and inconsistencies in the appellant's case. One , it is common ground that t he foundation of the appellant's claim was that he acquired ownership of the disputed land through purchases made from Sadiki Amir Mdiminyula in 2006 and from Hadija Shaabani in 2007 and 2008. It was therefore incumbent upon him to establish not only the e xistence of those transactions but also the authority and capacity of the alleged vendors to transfer a valid title. However, despite asserting that he purchased part of the land from Sadiki Amir Mdiminyula on 24 th day of Dec ember 2006, the appellant neither joined him as a party nor called him as a witness to testify regarding the alleged sale. This omission is particularly
21 significant because Sadiki Amir Mdiminyula was the very person from whom the appellant claimed to have acquired a substantial portion of the disputed land. In the absence of his testimony, the trial tribunal was deprived of direct evidence regarding the alleged transaction, the terms thereof, the land sold, and the basis upon which Sadiki purported to transfer ownership. Two , e qually problematic is the appellant's assertion that Hadija Shaabani was present during the transaction between himself and Sadiki Amir Mdiminyula. Having examined the sale agreement dated 24 th day of December 2006, I find no indication that Hadija Shaabani participated in the transaction. I am mindful that the appellant alleged that she was present, and her name was mentioned in the agreement , however, she neither signed the document as a vendor nor as a witness. More importantly, Hadija Shaabani herself expressly denied having participated in that transaction. In those circumstances, the appellant's assertion that she was present remained wholly uncorro borated. Th ree , th e appellant also stated that Joyce Mwagila , his wife, witnessed the transaction. However, he did not call Joyce Mwagila to testify or explain her whereabouts . It is clear that if she had been called, she would have been in a position to shed some light s on the circumstances surrounding the alleged sale and confirm whether the
22 transaction actually took place as alleged. Her absence left the appellant's assertions unsupported by any direct evidence from an attesting witness. Four , a careful examination of the sale agreements relied upon by the appellant reveals another significant inconveniency . The appellant pleaded and testified regarding the location and boundaries of the disputed land. However, none of the agreements produced by him contains a description of the boundaries corresponding to those pleaded in the application and repeated in his testimony. This omission , though not substantial in itself, is material because identification of the land sold is central to any claim founded on a sale transaction. Indeed, during cross - examination, the appellant conceded that the agreements did not contain the boundaries of the land. In the end, I am satisfied that, the agreements themselves do not satisfactorily connect the land described in the pleadings with the land allegedly purchased under those instruments. Fi ve , t he sale agreements dated 19 th day of December 2007 and 4 th day of January 2008 present an additional nuisance . While those documents indicate that Hadija Shaabani was the seller of one acre and a half acre respectively, the signatures appearing on the agreements are not hers but those of Sadiki Amir Mdiminyula. This discrepancy raises a legitimate question regarding the role played by
23 Sadiki Amir Mdiminyula in those transactions and the authority under which he executed the documents. If indeed Hadija Shaabani was the vendor, it was necessary to explain why the documents were signed by Sadiki Amir Mdiminyula. Conversely, if Sadiki Amir Mdiminyula was acting on behalf of Hadija Shaabani, evidence establishing such authority ought to have been adduced. In my considered view, this made Sadiki Amir Mdiminyula a crucial witness whose testimony was indispensable for the proper resolution of th e dispute. The same observation applies to the Hamlet Chairperson who affixed official stamps on the agreements. Given the questions surrounding the execution and authenticity of the documents, the chairperson was a material witness capable of clarifying the circumstances under which the agreements were prepared and executed. Yet he too was not called to testify. The cumulative effect of the failure to call Sadiki Amir Mdiminyula, Joyce Mwagila, and the Hamlet Chairperson was to deny the trial tribunal the benefit of evidence from persons directly connected with the transactions upon which the appellant's claim was founded. In those circumstances, I find no fault with the t ribunal's decision to draw an adverse inference against the appellant. The negative inference properly arising from the omission is that, had those witnesses been called, their evidence would not have supported
24 the appellant's case and might even have been adverse to his claim. This principle is well established where a party fails, without satisfactory explanation, to call material witnesses who are available and whose evidence would be expected to illuminate th e matters in dispute. Six , I do not find assistance in the evidence of the appellant's remaining witnesses. SM2 did not witness any of the alleged sales. At page 13 of the proceedings, he admitted that he was merely informed that the appellant had purchased the land. His evidence concerning the sale transactions was therefore not based on personal knowledge but on information obtained from others. More significantly, during cross - examination at page 15 of the proceedings, he acknowledged that the suit land originally belonged to Hadija Shaabani and not to Sadiki Amir Mdiminyula. That admission substantially weakened the appellant's claim that part of the land had been validly purchased from Sadiki Amir Mdiminyula. Similarly, SM3 admitted that he was not present during any sale transaction. He also expressly stated that he did not know whether the appellant had purchased the land or was merely cultivating it under some other arrangement. His evidence therefore established only occupation and cultivation, not ownership.
25 The position is no different with regard to SM4. She candidly admitted that her knowledge concerning the alleged purchase came from what her late husband had told her. She was therefore a witness of information received from another person rather than a wi tness to the transactions themselves. Her evidence was incapable of proving the existence or validity of the alleged sales. Ultimately, the evidence of SM2, SM3 and SM4 proved no more than the fact that the appellant had cultivated or occupied the disputed land for a considerable period. None of them witnessed the transactions relied upon by the appellant. None could testify fr om personal knowledge regarding the terms of the sales, the authority of the vendors, the consideration paid, or the precise land transferred. Thus , their evidence did not materially advance the appellant's burden of proving ownership. Furthermore, I agree with the t ribunal C hairperson that the irrigation records and payment receipts relied upon by the appellant did not constitute conclusive proof of ownership. At best, those documents demonstrate that the appellant was utilizing the land and paying irrigation charges. They do not establ ish the source of his title nor prove that ownership of the disputed land had lawfully passed to him. In the present case, the central dispute was not whether the appellant had been utilizing the land, for that fact was largely
26 undisputed, but whether he had acquired a valid title thereto. The irrigation records and receipts did not answer that question. The position of law is settled that evidence of occupation, development, payment of rates, rent, levies, or other outgoings connected with land does not, by itself, establish ownership where the root of title remains disputed. The Court of Appeal underscored this principle i n the case of Maigu E. M. Magenda vs Arbogast Maugo Magenda (Civil Appeal No. 218 of 2017) [2018] TZCA 650 (4 October 2018) TanzLII, where it held that long use of land, construction of developments thereon, or payment of land rent in one's own name does not necessarily translate into ownership of the land. The critical inquiry remains whether the person asserting ownership has proved a lawful root of title. Now, a pplying th e above principle to the circumstances of the present case, even if I were to assume that the appellant demonstrated that he had cultivated the disputed land for many years and consistently paid irrigation charges, such evidence could not cure the deficiencies in his proof of acquisition. As I have demonstrated above, s ince the appellant failed to establish, on a balance of probabilities, the validity of the transactions through which he claimed ownership, his occupation and payment of irrig ation charges could not, ipso facto , elevate him into the lawful owner of the disputed
27 land. In the circumstances, I hold that the trial t ribunal was faultlessly justified in treating the irrigation records and receipts as evidence of use and occupation only, and not as proof of ownership. In fine , I am of the decided view that, when all the evidence on record is considered as a whole, the appellant failed to establish on a balance of probabilities that he lawfully acquired ownership of the disputed land from either Sadiki Amir Mdiminyula or Hadija Shaabani. The trial t ribunal was therefore correct in holding that the appellant failed to discharge the burden of proof placed upon him by sections 117 and 118 of the Evidence Act. Accordingly, I find no basis for interfering with that finding. However, b efore leaving this issue, I consider it necessary to address the appellant's repeated complaint that the respondents failed to prove their ownership of the disputed land and that they did not tender the sale agreements through which they allegedly acquired the property from the third respondent. In my view, that argument overlooks a fundamental principle of the law of evidence. It is elementary law that the burden of proof never shifts to the adverse party until the party upon whom the onus lies has first discharged his burden. Equally settled is the principle that the burden of proof is not diluted merely because the opposing pa rty's case
28 appears weak. As the Court of Appeal emphasized in Paulina Samson Ndawavya’s case (supra) , and later reaffirmed in Jasson S . Rweikiza vs Novatus R . Nkwama (supra) , a litigant must succeed on the strength of his own case and not on the weakness of the opponent's case. Until the party bearing the legal burden adduces credible and sufficient evidence to establish the facts asserted, the adverse party is under no oblig ation to prove anything. In the present case, the appellant approached the trial t ribunal claiming ownership of the disputed land and seeking declaratory and consequential reliefs against the respondents. In terms of the cited authorities, t he legal and evidential burden therefore rested squarely upon him to establish, on a balance of probabilities, that he had lawfully acquired ownership of the suit property. As I have already demonstrated above , the appellant failed to discharge that burden. The evidence relied upon by him was fraught with material deficiencies, the key witnesses to the alleged transactions were not called, and the documentary evidence produced did not satisfactorily establish t he root of his title. That being the position, I am satisfied that the evidential burden never shifted to the respondents to prove their ownership of the disputed land. T he trial t ribunal was therefore not required to examine whether the respondents had proved a better title before
29 first being satisfied that the appellant had established his own. Once the appellant failed to prove the ownership he asserted, his claim was bound to fail irrespective of any weakness that might have existed in the respondents' case. Accordingly, I find n o merit in the appellant's complaint that the respondents did not sufficiently prove their ownership of the disputed property. The law did not impose that burden upon them until and unless the appellant had first established his own claim, which he failed to do. Equally , even assuming for the sake of argument that the appellant had discharged the initial burden of proof and thereby shifted the evidential burden to the respondents, I would still find that the respondents' version of events was more credible, probable and consistent with the surrounding circumstances than that advanced by the appellant. First , the respondents' case was anchored on a simple and consistent proposition, namely that the disputed land belonged to HADIJA SHABANI (SU3), who subsequently sold portions thereof to the first and second respondents. Throughout the proceedings, SU3 consist ently maintained that the land was hers and denied having sold the disputed land to the appellant. More importantly, she denied that Sadiki Amir Mdiminyula had any authority to sell the land on her behalf. This evidence was not only direct but also em anated from the
30 person whom the appellant himself identified as one of the original owners and vendors of the disputed land. Second , the respondents' evidence found support from the appellant's own witness, BELAMINO AGUSTINO NGILIULE (SM2). During cross - examination, SM2 expressly admitted that the disputed land belonged to Hadija Shaabani and not to Sadiki Amir Mdiminyula. He stated i n unequivocal terms that he knew the land as belonging to the third respondent and that Sadiki Amir Mdiminyula was not the initial lawful owner of the land . This admission r einforced the respondents' contention that any transaction purportedly entere d into by Sadiki Amir Mdiminyula concerning the land required proper proof of authority from the true owner, which proof was never supplied by the appellant. Third , unlike the appellant's witnesses whose evidence concerning ownership was derived from information received from others, the respondents called witnesses with direct knowledge of the transactions through which they claimed title. The record shows that HADIJA SHABANI (SU3), whom both parties identified as the original owner of the land, testified that the disputed land belonged to her, denied having sold it to the appellant or authorising Sadiki Amir Mdiminyula to sell it on her behalf, and maintained that she subsequently sold portions of the land to CHRISTOPHER ZAWADI
31 MWASHITEGULA (SU1) and JANUARY FARAO (SU2). Her evidence was supported by SU4 and SU5, who, as village leaders, testified that they personally witnessed the transactions between SU3 and the first and second respondents and participated in the authenticatio n of the relevant sale documents. Their evidence was therefore based on direct participation in the transactions rather than information received from third parties. Moreover, the evidence of SU3 received support from an unexpected source, namely the appellant's own witness, SM2. During cross - examination, SM2 admitted that the land belonged to Hadija Shaabani and not to Sadiki Amir Mdiminyula. That admission was consis tent with SU3's testimony and inconsistent with the appellant's attempt to trace part of his title through Sadiki Amir Mdiminyula. Fourth , the respondents' version of events provides a more plausible explanation of the difficulties appearing in the appellant's documentary evidence. As already observed, the agreements relied upon by the appellant identified Hadija Shaabani as the seller in s ome instances while bearing the signature of Sadiki Amir Mdiminyula. When confronted with this inconsistency, the appellant failed to call the very person who could explain the anomaly. The respondents' position that the land belonged to Hadija Shaab ani and that Sadiki Amir Mdiminyula lacked ownership rights was therefore not only
32 supported by their own evidence but also by the deficiencies apparent in the appellant's documents. Fifth , the appellant's case rested heavily on long occupation and cultivation of the land. However, long occupation, standing alone, is equally consistent with a number of possibilities other than ownership. It may be consistent with a lease, licence, permissiv e occupation, or occupation under a defective transaction. The respondents' evidence that the appellant was merely utilizing the land, coupled with the absence of satisfactory proof of a valid transfer of title in his favour, therefore cannot be dismi ssed as inherently improbable. Sixth , although the respondents did not tender their sale agreements, the credibility of their case did not depend solely upon those documents. The central question before the trial t ribunal was whether the appellant had established a better title than the respondents. Once the third respondent, who was alleged to be the original owner, denied having sold the disputed land to the appellant and maintained that she later sold it to the f irst and second respondents, the evidential burden upon the respondents w as considerably strengthened by the appellant's failure to establish the root of his own title.
33 In the final analysis , therefore, even if I were to assume that the evidential burden had shifted to the respondents, I would still find that their evidence carried greater probative value than that of the appellant. Their case was supported by the testimony of the alleged ori ginal owner of the land, was corroborated by witnesses with direct knowledge of the relevant transactions and was consistent with the admissions made by the appellant's own witnesses. By contrast, the appellant's case depended , to a great extent, on docume nts whose execution was inadequately explained, witnesses who lacked direct knowledge of the transactions, and long occupation which, without proof of a valid transfer, could not establish ownership. On a balance of probabilities, therefore, the respondent s' version of events was more credible than that advanced by the appellant For the foregoing reasons, I am satisfied that the appellant failed to establish, on a balance of probabilities, that he lawfully acquired ownership of the disputed land through the transactions pleaded before the Tribunal. I am further satisfied that the District Land and Housing Tribunal properly directed itself on the burden and standard of proof, correctly evaluated the evidence placed before it, and arrived at findings that are fully supported by the record. I have found no misdirection in law, no misa pprehension of the evidence,
34 and no basis upon which this Court can properly interfere with the conclusions reached by the Tribunal. Accordingly, I find no merit in this appeal. The same is hereby dismissed with costs. The judgment and decree of the District Land and Housing Tribunal for Mbarali sitting at Rujewa in Land Application No. 4 of 2024 are hereby confirmed in their entirety. It is so ordered. DATED at MBEYA this 08 TH day of JUNE 2026 . S.M. KALUNDE JUDGE