Kihawa Mwendwa Kihawa @Danwell Mwendwa vs Mohamedi Jumanne Sunta (Land Appeal No. 25016 of 2025) [2026] TZHC 2980 (8 June 2026)
Judgment
1 | P a g e IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO. 25016 OF 2025 (Originating from Land Case No. 04 of 2023 in the District Land Housing Tribunal for Iramba at Kiomboi) BETWEEN KIHAWA MWENDWA KIHAWA @DANWELL MWENDWA KIHAWA KIHAWA MWENDWA @ DANWELL MWENDWA KIHAWA MWENDWA MUNA @ DANWELL MWENDWA MUNA KIHAWA MWENDWA MUNA KIHAWA …………………………………………………..APPELLANT VS MOHAMEDI JUMANNE SUNTA …………………….………RESPONDENT JUDGMENT Date of last Order: 07/05/2026 Date of Judgment: 08/06/2026 LONGOPA, J.: This is an appeal against the Judgment and decree of the District Land and Housing Tribunal for Iramba at Kiomboi in Land Case No. 04 of 2023. The disputed land measuring 9 acres is located at Mjenga Hamlet in Ndulungu Village and Ward Ndago Division within Iramba District Upon conclusion of the hearing of the matter, the trial District Land and Housing
2 | P a g e Tribunal entered judgment and decree in favour of the respondent by declaring him as the lawful owner of the piece of disputed land while dismissing the case of the appellant for lack of merits. The appellant was dissatisfied with the whole of the judgment and decree of the District Land and Housing Tribunal hence preferred this appeal on the following grounds of appeal namely:
- That, the trial tribunal erred in law and facts by holding that the Respondent is lawful owner of the suit land without thorough evaluation and/or assessment of evidence adduced by the appellant’s witnesses.
- That, the trial tribunal erred in law and facts by holding to the effect that the Respondent is lawful owner of the suit land without presenting proper/ reasonable/ justifiable reason.
- That, the trial tribunal erred in law and facts by holding that the Respondent is lawful owner of the suit land without considering Exhibits tendered by the Appellant which was neither disputed or cross-examined in its admission by the Respondent.
- That, the trial tribunal erred in law and facts by holding to the effect that the Respondent is lawful owner of the
3 | P a g e suit land without taking consideration that the evidence of the Appellant was stronger than that of the Respondent. 5. That, the trial tribunal erred in law and facts by entering into shoes of the Respondent by criticizing the authenticity of the Exhibits of the Appellant while the same was neither disputed nor cross-examined in its admission by the respondent. On 7 May 2026, the parties appeared in person each fending for oneself and were heard viva voce in this Court. The appellant adopted all the grounds of appeal as contained in the petition. On the first ground, on failure by trial Tribunal erred by not evaluating evidence and consider the evidence of the appellant. Appellant stated that, there were oral and documentary evidence of appellant, especially exhibits P4 and P5 which indicate the transfer of ownership of land from the original owner to second and third. The first owner was his grandfather Muna Kihawa, the second was his father Mwendwa Muna Kiwaha and third owner was himself Kihawa Mwendwa Kihawa. Exhibit P4 was the Gift Deed from his grandfather to his father who used the land from 1979 to 1985.
4 | P a g e Exhibit P5 was a Gift Deed from his father to himself in 1985 and used the land for 37 years from 1985 to 2022. Exhibit P6, and P7 were the lease agreements between himself and the respondent’s mother from 1988 to 2000 and the second agreement 2000 to 2012 where she was paying the rentals. The witnesses who witnessed the Gift Deeds testified in court as well as those who witnessed the lease. Exhibit P8 was the Settlement Deed between himself and Hamis Juma Mangu@ Mzee Njiku Nyamufoi who borders western side of the land mentioned in P4, P5, P6 and P7 was reduced from 10 acres approximately to 9 acres approximately. The witnesses attended and testified to that extent of witnessing. There was Exhibit P3 nd P12 which are agreements indicating that appellant had leased land to respondent. These contain Minutes of the family meeting and lease agreement, the first piece of land among four which appellant had leased is the disputed land. The respondent returned three pieces of land while the disputed land was not returned back upon expiry of the lease agreement.
5 | P a g e Exhibit P3 was for nine years from 2012 to 2021 thereafter appellant leased it to another person as the Respondent at that time leased the house alone which is Exhibit P12 where there were four houses without other plots of land. This was for 2021 agreement of lease for six months. Respondent was paying rent. Witnesses attended and testified on existence of P3 and P12. Also, there were Exhibit P10, P14 and P15 are notices that appellant had written to the respondent on the expiry of time of lease and on rent that was in arrears. Exhibit P11 and Exhibit P12 were agreements of other persons appellant had leased the land to them on different times. P11 was lease agreement from 1 Dec 2021 to 31/05/2022 while P13, Abdi Salum Nkambi 01/07/2022 to 30/05/ 2023 when the respondent invaded the land. These persons come to Tribunal. Witnesses were SM1 Danwell Mwendwa Kihawa, SM2 Hashimu Stephen Magawa, SM3 Shaban Ntandu Mwendwa, SM4 Bertha Mwendwa Kihawa, SM5 Ally Said Mdiu, SM6 Juma Hamis Bangu, who is neighbour on
6 | P a g e western side of disputed land. SM7 was Kassim Makuza, SM8 Iluka Muna Kihawa, SM9 Shaban Jumanne Sunta, SM10 Abdi Salum Nkambi, neighbour on the southern part. In case the Tribunal would have evaluated all the testimonies and documentary evidence above, it would easily declare appellant as the rightful owner. On second ground, it was submitted that weight of the documentary evidence was not considered despite all the documentary being admitted without objection nor questioned during cross examination. All the documentary evidences were never objected. They were admitted without reservations whatsoever. If these were considered, the tribunal would have rightly declared appellant as the owner. On third ground, it was submitted that appellant evidence was stronger than that of the respondent. The totality of the oral and documentary evidence of appellant was stronger for reasons that: one, pages 137, 138 and 146-157 of the proceedings indicate that evidence of respondent cemented the evidence of the appellant. Shaban Jumanne Sunta testified that land belonged to Kihawa vide land lease. Also, Mohamed Jumanne Sunta testified that disputed land does not belong to
7 | P a g e the respondent. The appellant stated that in 1988, respondent and her mother went to stay at Kihawa’s place. The tribunal never considered the stronger evidence that was on record. On 4 th ground, it was submitted that criticizing the documentary evidence that were never challenged. At page 8 of the Judgment stated existence of reasonable doubts on the ownership of the land by appellant. The tribunal ought to have granted ownership to appellant. On 5 th ground, it was submitted there were no reasons for the decision. The tribunal stated that respondent did inherit from his mother. It was not possible to inherit land one had leased himself before. It was not correct for the respondent to inherit land which was leased. From pages 68 to 160 of the proceedings are revealing all these aspects appellant have submitted clearly. In conclusion, Hemed Said vs Mohamed Mbilu (1984) TLR 113, where the court said that person with stronger evidence deserves a judgment. Appellant prayed that this appeal be allowed with costs.
8 | P a g e On the other side, respondent submitted that the trial Tribunal was correct to enter judgment and decree in his favour as he acquired land vide inheritance in 2012 upon demise of his mother. Respondent was the administrator of the estate their mother though he has never been appointed by any court. It was a family arrangement. All the documentary evidence had no weight at all, given that village authorities nor hamlet authorities were involved in witnessing the lease nor the gift intervivos. Respondent mother got the land as gift intervivos in the year he do not know. One Hamis Jumanne Sunta testified to the effect that respondent mother got the land as a gift inter vivos. Ramadhan Shaban Senge who is Hamlet leader also testified that the land was obtained as a gift intervivos by respondent mother. Also, Mohamed Said Mdiu who is neighbour of eastern side who testified that land belong to respondent mother. Respondent mother was buried on the same land. On strong evidence, it was submitted that respondent evidence was so strong compared to the appellant’s evidence.
9 | P a g e On the question of the evidence of appellant being disregard, it was submitted that the same had no merits. Respondent relatives who testified in favour of the appellant were not correct. Though they are elder than respondent but they were not proper witnesses. One Hamis Jumanne Sunta testified in respondent favour. The appeal has no merits whatsoever as respondent evidence was stronger than that of the appellant given that respondent called even the Hamlet leader. Hamlet leader testified on both; land being given to respondent mother as he was a leader from 1994 to 2004 and acquisition of land as gift inter vivos. He was aware that his grandfather was original owner. Respondent prayed the appeal be dismissed with costs. During rejoinder appellant stated that the burial of the late mother of the respondent was done at Kiwaha’s family/clan burial site. She was buried where other relatives were buried. Appellant reiterate that the appeal be allowed with costs. Having heard both sides versions of story, this Court is enjoined to determine validity of this appeal or otherwise while guided by the pleadings
10 | P a g e of the parties, proceedings of the trial Tribunal, judgment and decree as well as the applicable statutory and case law principles in light of the grounds of appeal preferred by the appellant. This Court being the first appellate court on this matter has fully powers to analyse and re-evaluate the available evidence on record to come up with its own independent finding. The court is guided by the principle in the case of Athumani Amiri vs Hamza Amiri & Another (Civil Appeal 8 of 2020) [2022] TZCA 772 (6 December 2022) (TANZLII), at page 13, the Court of Appeal stated lucidly that: Before doing so, it is crucial to state that, this being a first appeal, it is in the form of a re-hearing, therefore the Court, has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and, if warranted arrive at its own conclusion of fact … This court has divided grounds of appeal into two limbs; the first limb this court will discuss on evaluation and assessment of the evidence, reasonable and justifiable reason, and consideration on stronger evidence; and the second limb will be on grounds related to exhibits.
11 | P a g e The first limb on the issues on evaluation and assessment of the evidence, reasonable and justifiable reason, and consideration on stronger evidence. The appellant at the trial tribunal has 10 witnesses and respondent had 4 witnesses. Appellant stated that he was given the disputed land as a gift and tendered Exhibit P5 which shows it 10 acres. In the said land appellant stated that there are four houses, which before the respondent to lease them, it was leased to respondent mother since 1988 and after the demised of respondent mother, respondent took over and leased the same houses and plots in 2012 as it is shown on Exhibit P3. But respondent after expiry of the lease agreement he refuse to vacate the premises and there were arrears which appellant claimed against respondent. Despite the appellants efforts to demand payment from the respondent such efforts have proved futile. The appellant witnesses in the trial tribunal all supported evidence of the appellant. In a nutshell PW2 (SM2) Hashimu Stevin Msagawa stated that he witnessed leased agreement between appellant and respondent at 25/11/2012; PW3 (SM3) who is also the grandfather to both appellant and respondent, who was also a tencell leader for 40 years since 1964 to 2004,
12 | P a g e and also he witnessed when the appellant father was given a land a a gift – as it is shown in Exhibit P16 in the proceeding but in actual exhibit it is marked “Kielelezo P15 which has words “kitabu cha ubalozi”, he witnessed also when appellant father was given a land to appellant as a gift, he also witnessed when the respondent mother was leased the said land, he also witnessed when the respondent leased the said land after his mother demised for nine years for the payment of 60 buckets of millet per year. But respondent refuse to pay it after the expiry of the lease agreement. PW8 (SM8) who is a sister to appellant father and respondent mother stated that their brother who was appellant father was given the disputed land by their father as a gift, the same land the appellant father gives to appellant as a gift and it is the same land her sister who is respondent mother leased from the appellant after her dispute with her husband at Sepuka village; and it is the same land respondent leased for 9 years after the demised of his mother but respondent failed to pay rent and dept reached to Tshs 10,800,000/=. But respondent called her (PW8) to inform her that he reduced the dept first by 400,000/= and later by 500,000/=.
13 | P a g e PW9 (SM9) who is the brother to respondent (same father and mother) stated inter alia that the disputed land belonged to appellant and their mother was just a tenant to that land. And their mother leased the said land when respondent had one year old and the payment was 1 goat per year, at the second time payment was 1 goat and 3 chickens per year. In 2012 respondent rented the said land and PW9 was respondent witness to the lease agreement between appellant and respondent after the death of their mother. On the other hand, the evidence of the respondent at the trial tribunal stated that the disputed land belonged to the appellant. Except that their grandfather showed favoritism by giving that land to the appellant ’s father, and the appellant ’s father also showed favoritism by giving the same to the appellant; therefore, respondent feels that it is not fair. For easy refence this is the quotation of what respondent stated at the trial tribunal:- Nimezaliwa mwaka 1987 katika Kijiji cha Sepuka, mwaka 1988 tulikuja na mama yetu kwa ndugu Kihawa, kwa sababu mama alikuwa na mgogoro wa ndoa na baba yetu, sisi tulijua tunakuja nyumbani kwa babu mzaa mama, tulikuta babu alishafanya upendeleo wa kumgawia baba yake na mleta maombi eneo lile, badala ya kuwagawia
14 | P a g e watoto wake wote akiwemo mama yetu, baba wa mleta maombi naye akamgawia mwanaye ambaye ni mleta maombi, ambapo jambo hilo sio sawa la kugawiana wao kwa wao tu……..kama ndugu zangu wao wanaona hawana haki pale, mimi naona nina haki pale, babu mzaa mama hakutenda haki kumpa eneo lile mtoto wake mmoja wa kiume tu, wakati alikuwa na Watoto 8 na mama yetu niwa tatu kuzaliwa. Babu hakutenda haki, mimi napigania haki ya marehemu mama yetu ambayo aliikosa kwa baba yake kumgawia mtu mmoja na huyo mtu naye akamgawia mwanaye, kwanini wagawiane wao kwa wao……. Mwaka 2012 wakati naingia mkataba nilikuwa sina pa Kwenda hivyo nilikuwa sijielewi, nikajikuta nimeingia mkataba wa kukodi eneo langu mwenyewe, ndio maana baadaye nikawa nasumbua kulipa kodi ya pango kwasababu naona sio sawa, haki haijatendeka, kwanini nikodi eneo langu mwenyewe ambalo nimerithi kwa mama yangu, na mwaka 2021 kile kikao kilinishawishi nikajikuta napanga tena nyumba zangu mwenyewe kwa miezi 6. The standard and burden of proof in this country is well established in the laws. Sections 3(2) (b), 117 and 118 of the Evidence Act, Cap 6 R.E. 2023 provide essentially that standard of proof in civil cases is balance of
15 | P a g e probabilities and that it is the duty of the person who alleges to prove existence of a particular fact. The principles on standard and burden of proof was reiterated in the case of the Registered Trustees of Joy in The Harvest vs Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139 (28 April 2021) (TANZLII), at pages 16-17, the Court of Appeal reiterated that: With the above evidence at our disposal, and in order to decide whether the respondent managed to prove the case at the required standard we had to revisit the trite principles in the law of evidence; the general concept of the burden and the standard of proof in civil litigations. The concept is "he who alleges must prove," and it means that the burden of proof lies on the person who positively asserts existence of certain facts. The concept is embodied in the provisions of section 110 (1) and (2) of the Evidence Act [Cap 6 R.E. 2019] which provides that: - "(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
16 | P a g e Certainly, the position that he who alleges must prove is part of our jurisprudence as per this Court's decisions in The Attorney General v. Eligi Edward Massawe , Civil Appeal No. 86 of 2002 and Ikizu Secondary School v. Sarawe Village Council , Civil Appeal No. 163 of 2016 (both unreported) and the standard of proof, in civil cases is on the balance of probabilities, see the decision in Manager, NBC Tarime v. Enock M. Chacha [1993] TLR 228. In the instant appeal, it was the foremost duty of the appellant to prove that he was the rightful owner of the disputed property. And the evidence on record reveals that has discharge that duty effectively, the respondent only cemented on the appellant evidence. Apart from that on page 5,6, and 7 of the judgment the trial Tribunal chairman stated that the evidence of the appellant in this case has no relation with the application, as the plaint is unclear. Parties are bound by their own pleadings. Treatment of the evidence that is in variance with pleaded facts was illustrated in the case of Barclays Bank T. Ltd vs Jacob Muro (Civil Appeal 357 of 2019) [2020]
17 | P a g e TZCA 1875 (26 November 2020) (TANZLII), at page 11, the Court of Appeal stated that: We feel compelled, at this point, to restate the time- honoured principle of law that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not support the pleaded facts or is at variance with the pleaded facts must be ignored - see James Funke Ngwagilo v. Attorney General [2004] TLR 161. See also Lawrence Surumbu Tara v. The Hon. Attorney General and 2 Others , Civil Appeal No. 56 of 2012; and Charles Richard Kombe t/a Building v. Evarani Mtungi and 3 Others , Civil Appeal No. 38 of 2012 (both unreported). The principle also was reiterated in Equity Bank Tanzania Limited vs Ndume Ng'okorome Maswale T/A Ndume General Supply (Civil Appeal No. 443 of 2022) [2024] TZCA 1268 (12 December 2024) (TANZLII), at pages 15-16, the Court of Appeal stated that: But the law on pleadings is clear that a party is not permitted to lead evidence which is not in conformity with the pleadings. In the event it happens, as herein, the trial court was required to
18 | P a g e disregard such evidence for a reason that such evidence is inadmissible . The Court restated the position in the case of Maria Amandus Kavishe v. Norah Waziri Mzeru (supra) where the Court remarked: - We also feel compelled, at this point, to restate the time honoured principle of law that parties are bound by their own pleadings and they cannot be allowed to raise a different matter without amendment being properly made. That no party should be allowed to depart from his pleadings by changing his case from which he had originally pleaded. Furthermore, the court itself is as bound by the pleadings of the parties as they are themselves . The principle in the above cited precedents is clear that parties are bound by their own pleadings. Also, the court is enjoined to respect the pleadings of the parties and it cannot on its own amend the pleadings of the parties. As such the parties must produce evidence that tally with pleadings and in case evidence produced is different from the pleaded facts that evidence must be ignored. Also, such varied evidence either oral or documentary is not admissible.
19 | P a g e The only exception to the general rule that both parties and courts are bound by parties’ pleadings is when there is amendment to the pleadings. It is of paramountcy importance to ascertain if there were any amendments to the pleadings before the trial Tribunal upon which the parties ’ evidence was based. Having thoroughly perused the available records, this court ascertained without flicker of doubts that the records of the trial Tribunal and at pages 66 and 67 of the proceedings reveal that amendment of pleadings occurred and granted by the trial Tribunal. The proceedings indicate to the effect that: Mleta maombi:- Mh. Mwenyekiti, mimi mleta maombi naomba kufanyia marekebisho Hati ya Maombi kwenye nafuu zinazoombwa na mwombaji [mleta maombi] kwenye ukurasa wa 42, kwenye kipengele cha 7(a) na 7 (b) kwenye Hati ya Maombi, kuhusu eka 55, kwa kuwa wakati kesi ikiendelea kusikilizwa, mjibu maombi aliachia eka 49 za mbugani mwezi April 2024, na hizo eka 49 nimelima shamba la mihogo mwezi huo huo April 2024, ila mjibu maombi bado ameshikilia eka 9 za nyumbani.
20 | P a g e Majibu ya Mjibu maombi:- Ni kweli eneo la mbugani halina mgogoro kwenye shauri hili, kwa kuwa nilishaachia eka 49 za mbugani tangu mwezi wa nne 2024, na mleta maombi ameshalima shamba la mihogo hizo eka 49. Baraza:- Kwa kuwa mjibu maombi amekiri kuwa eneo la mbugani la eka 49 hazina mgogoro na mleta maombi ameshalima shamba la mihogo hizo eka 49, basi baraza litatoa mwongozo wa marekebisho Hati ya Maombi ya mleta maombi kwenye nafuu zinazoombwa kwenye kipengele cha 7(a) na 7(b) kwenye Hati ya Maombi kuhusu eka 55. Mwongozo wa Baraza:
- Badala ya Mleta maombi kwenda kufanyia marekebisho hati ya maombi kwenye kipengele cha 7(a) na 7(b) kwenye nafuu zinazoombwa; Basi mleta maombi atayaeleza marekebisho hayo kwa njia ya mdomo, kuhusu mjibu maombi kuachia eka 49 kati ya eka 55 na kubaki eka
- Mhe Mwenyekiti, atayazingatia na atayarekodi marekebisho hayo ya njia ya mdomo ya mleta maombi kuhusu mjibu maombi kuachia eka 49 kati ya eka 55 na kubaki eka 9 ili kuokoa muda wa kusikiliza shauri hili.
21 | P a g e Imesainiwa B. Colex, Mwenyekiti 10/12/2024 Therefore, from the above quotation of the proceedings of the trial Tribunal it is lucid that the application was amended orally at the direction of the trial Tribunal and this clears the doubt of unclears application. As a result, the appellant evidence that surround on the land approximately 10 acres was proving his case based on the application before the trial Tribunal. There alleged variance of one acre appears to be insignificant given that there was no actual survey conducted in this unsurveyed land hence the appellant evidence in trial Tribunal was tallying with the application. It is important to state that court records are regarded as authentic. It is settled principle that court records are considered as authentic and should not be casually impeached. The principle is illustrative in Stanley Murithi Mwaura vs Republic (Criminal Appeal No. 144 of 2019) [2021] TZCA 688 (22 November 2021) (TANZLII), at pages 17-19, the Court stated that:
22 | P a g e Determination of this ground will not take a lot of our time. We will approach it with two established principles of law in this jurisdiction. One is that court records are deemed to be accurate and authentic such that they represent what actually transpired in court - see Shabir F. A. Jessa v. Rajkumar Deogra , Civil Reference No. 12 of 1994 (unreported). Other decisions on the same position are Paulo Osinya v. R , [1959] EA 353, Halfani Sudi v. Abieza Chichili, [1998] TLR 527 and Ex D. 8656 CPL Senga s/o Idd Nyembo (supra) . For instance, in Halfani Sudi it was observed that; "(i) A court record is a serious document. It should not be lightly impeached; (ii) There is always a presumption that a court record accurately represents what happened." As the records of the trial Tribunal reveal that the land application in question was amended to the effect that both the appellant and respondent were of the firm view that disputed land was around 9 acres of the land, the trial Tribunal seriously erred in law and fact by basing its decision on the application before amendment that was referring to 55 acres or 49 acres. The whole analysis on pages 5- 7 of the trial Tribunal’s judgment was erroneously as it was in forgetfulness of existence of the
23 | P a g e order of the trial Tribunal that dispute is only on ownership of 9 acres of land. The question is whether there was a proof of ownership of land by the parties. To establish such ownership, the trial Tribunal was duty bound to ascertain the mode of acquisition of land. There are four well known and recognised modes of land acquisition in Tanzania. These are grand of land by the government, inheritance, grant of land as gift inter vivos and acquisition by sale/purchase of the disputed land. At the onset, that mode of acquisition falls within the legal position was articulated in the case of Serikali Ya Kijiji Karumo vs Wahalalika Siyonka (Land Appeal 2 of 2021) [2022] TZHC 817 (25 March 2022) (TANZLII), at pages 13-15, the High Court noted categorically that: It is the principle of law that, in this country land may be acquired for ownership by an individual via the following methods, one, by one person purchasing it from another. In that process, the vendor must be the lawful owner having also acquired the land legally before he passes title to the purchaser. Secondly, land may also be acquired by government or land allocating authority allocating to any person a piece of land on the conditions attached to that
24 | P a g e grant. Thirdly , land may be used by way of inheritance where a person with good title dies and the persons entitled to inherit his estate inherit the land from among the estate of the deceased relative. Fourthly , land may be acquired as a gift by a person with good title giving it to another person out of love and affection. In all these four modes of acquisition, the holder of land must have proof of how he acquired the land. For instance, in government allocation, it is expected for a person to prove by offer or right of occupancy/title deed, bearing his or her name . In the mode of acquisition by way of purchase, the person is expected to prove the acquisition and ownership by exhibiting the sale agreement or where the land is registered by transfer. While where the same is by inheritance, he is expected to show the probate and administration process which really passed the said land from the deceased to him or her. Last, if the acquisition is by way of gift, then the owner is expected to prove it by the deed of gift (Emphasis added). Either of the parties was required to prove to have acquired land through one of the above modes of acquisition. It is on record that appellant produced two important documentation related to how the
25 | P a g e acquisition of the land vide gift inter vivos passed to him from his father and also the manner in which his father got the land from his grandfather. The oral evidence on pages 74 to 78 reflects that chain of the ownership from the appellant’s grand father to the appellant father then to the appellant. On pages 82 and 83, it is lucid that the appellant tendered the written gift deeds dated 01 November 1979 and 7 July 1985 which were dully admitted by the trial Tribunal as Exhibit P 4 and P5 respectively. Further, it is on record that at pages 94 to 95 reveal that the respondent did cross examine on the two documentary exhibits and nothing watered down such evidence in our analysis. It should be noted that tendering of the documentary evidence for the appellant’s case was not seriously objected at all. In law, once the admissibility of the document is not objected, its contents are also admitted. This was the principle in the case of Kilombero Sugar Co. Ltd vs Commissioner General (TRA) (Civil Appeal No. 261 of 2018) [2020] TZCA 308 (19 June 2020) (TANZLII), at pages 11-13, the Court observed that:
26 | P a g e What it says is that whenever a document is admitted in course of trial 'without objection' it unquestionably goes to say that the contents of the document are also admitted. More significantly, however, the Court in that decision acknowledged the principle enunciated by the Supreme Court of India in the case of P.C. Purushottama Raddiar v. S. Perumal, AIR 1972 S. C. 608 thus:“... where certain reports were marked without any objection it was not open to the respondent to object to their admissibility and that once such document was properly admitted, the contents of the document were also admitted into evidence though these contents may not be conclusive evidence .” [emphasis added]. Further, in Makubi Dogani vs Ngodongo Maganga (Civil Appeal 78 of 2019) [2020] TZCA 1741 (21 August 2020), at page 15, the Court held that: It is apparent, at pages 72 to 74 of the record of appeal that during the trial, the appellant did not object to the admissibility of the said exhibits. It is a settled law that the contents of an exhibit which was admitted without any objection from the appellant, were effectually proved on account of absence of any objection. Therefore, since the appellant did not utilize
27 | P a g e that opportunity, challenging the said exhibits at this stage is nothing but an afterthought. The contents of Exhibit P4 and P5 tally squarely with oral evidence of PW 1, PW 3, PW 4, that the appellant’s grandfather did clear virgin forest land, occupied the same since 1950s, transferred the same to appellant’s father in 1979 and the land was finally transferred to the appellant as gift inter vivos. It is also on record that respondent’s mother was a lessee of the land from the appellant. Thus, there is a clear chronology on how the appellant got the land in question. However, there is nothing on part of the respondent to validate that land belongs to the respondent. respondent stated categorically that his mother got the land as a gift intervivos from her father who is also appellant’s father in 1988. No witness was present nor called any witnesses to show how the land passed to him. There is nothing indicating that there were administration of estates of the respondent’s mother that would have allowed the respondent to acquire land vide inheritance. There is also conspicuously absence of evidence that respondent was given the land
28 | P a g e during the life time of his mother. As such, the respondent’s evidence never met criteria for acquisition of land inter vivos or inheritance. It is settled law that for the grant of land vide a gift inter vivos, there are few mandatory conditions that must be proved, namely: First, intention to give the land. Second, acceptance of the same by the recipient. Third, the effective occupation of the land by the recipient or donee. These aspects fall within the principle in the case of Hamis Sultan Mwinyigoha vs Zainabu Sultan Mwinyigoha (Civil Appeal No. 447 of 2020) [2024] TZCA 150 (29 February 2024) (TANZLII), at pages 5-6, the Court stated that: We have therefore underscored in the context of this case that, validity of a gift essentially lies on the intention to give and acts incidental to that intention which may include the physical handing over of the gift. See Micky Woodley, Osborn's concise Law Dictionary (supra) at page 200-201. It is also essential and paramount for the gift to be voluntary on the part of the donor and without any element of consideration on the part of the donee. As per the commentaries contained in Justice Y.V. Chandrachud, P Ramanatha Aiya Concise Law Dictionary, 3rd Edition, Lexis Nexis Butterworths
29 | P a g e Wadhwa , page 493; love, affection, spiritual benefit and many others may enter into the intention of the donor to give or make a gift. In the law of property therefore, three elements must exist for a gift to be legally valid. One is, as alluded to above, intent to give by the donor, two, delivery of the gift to the recipient, the donee and three, is the acceptance of that gift by the donee. These three elements, by any standard, are exhibited by way of evidence, no more no less. It is to say, in the instant appeal, there must be evidence proven on balance of probabilities that the late Sultan Mwinyigoha granted the suit property to the appellant by way of a gift. In accordance with totality of evidence on record, those elements exist in respect of the appellant alone. He took acceptance of the gift and immediately stated leasing the land lawfully to other persons in exchange of payment for the lease. That is indicative that appellant had possession of land at all the times. In the circumstances, the evidence of the appellant both oral and written is weightier than that of the respondent. Indeed, there were no reasons whatsoever for the trial Tribunal to find in favour of the respondent
30 | P a g e as all evidence on record points to only a singular direction that the appellant is the rightful owner of the land in question. Therefore, first, second and third grounds of appeal are meritorious and are hereby upheld. The second limb is based on grounds related to exhibits. All the exhibits admitted in the trial tribunal proceedings were pleaded on the appellant ’s land application . The appellant had tendered exhibits that show chronologically how he owned the disputed land. As the disputed land first was owned by the appellant and respondent grandfather, who by virtue of Exhibits P4 he gave that land as a gift to his male child, who is the father of the appellant. The appellant ’s father by virtue of contents of Exhibits P5 gave that land as a gift to his child, who is the appellant in this matter. Exhibits P6 and P7 were lease agreement between appellant and respondent ’s mother. Exhibits P3 was lease agreement between appellant and respondent. During the hearing of the appeal appellant stated that all exhibits were valid but the respondent stated all the documentary evidence had no weight at all, given that village authorities nor hamlet authorities were involved in witnessing the lease nor the gift intervivos. Exhibit P3 is a
31 | P a g e lease agreement between appellant and respondent which at large proves the claims in this matter, therefore the court has to check on its validity. The guidance on the validity of an agreement stems from the provision of section 10 of the Law of Contract Act, Cap 345 R.E. 2019. It provides that: 10. All agreements are contracts if they are made by the free consent of parties competent to contract , for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void: Provided that, nothing herein contained shall affect any law in force, and not hereby expressly repealed or disapplied, by which any contract is required to be made in writing or in electronic form or in the presence of witnesses, or any law relating to the registration of documents (Emphasis added). There are few important aspects to note at this juncture in relation to this provision of the law of contract. First, it provides for elements of valid contract namely (a) free consent (b) competence of the parties (c) presence of lawful consideration and (d) lawful object. Second, it requires such agreement should not be declared by the law explicitly to be void.
32 | P a g e Third, the proviso has effect of not excluding the requirements of other laws relating to registration or those requiring the agreement to be in writing. The ingredients of a valid contract were fully demonstrated and articulated in the case of Amos Njile Lili vs Nyanza Cooperative Union (1994) Ltd & Others (Civil Appeal No. 126 of 2020) [2024] TZCA 13 (31 January 2024), pages 17-18, where the Court of Appeal illustratively held that: Taking into account the above contending positions, the underlying issue is whether the disputed contract is valid. To determine this, we are guided by the provision of section 10 of the Law of Contract Act which provides: "10. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object; and are not hereby expressly declared to be void: Provided that nothing herein contained shall affect any law in force, and not hereby expressly repealed or disapplied, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents." [emphasis added].
33 | P a g e Indeed, section 10 of the Contract Act outlines the fact that free consent of parties competent to contract for a lawful consideration and object are essential components in establishing a valid contract. Exhibit P3 is a valid agreement as it was freely made by the parties with sound mind, there were lawful consideration at paragraph 5 sub 5.2 of the contract and there was a lawful object which was stated at paragraph 5 sub 5.1. Take into consideration the evidence of the respondent that he enters into agreement but when he was alone, he feels that it was not correct as the land initially was belonging to his grandfather so he has all the right to be the owner of the said land, while he forgets or tend to forget that his grandfather gave away the land to the appellant father as a gift. A person can decide to give away his property to whoever he likes and is not crime. It is lucid that from pages 81 to 91 of the proceedings reveal that the appellant tendered Exhibits P3, P4, P5, P6, P7, P8, P9, P10, P11, P12, P13, P14 and P15 without any serious objections from the respondent. There were four sets of the documents: one, the ownership documents in terms of mode of acquisition by gift intervivos for Exhibits P 4 and P5; Minutes of
34 | P a g e Clan meetings on disputes over the land; notice on expiration of contractual arrangements and lease agreements. Generally, in this case the appellant did tender valid agreements for lease of land between the appellant and respondent’s mother, appellant and other third parties as well as appellant and respondent. For the agreement between appellant and respondent dated 25 November 2021 was entered into by parties competent to contract, who entered into voluntarily and for lawful consideration and object. Totality of all those documents have revealed that: one, the appellant acquired land as a gift inter vivos from his father during lifetime of both the donor and donee. Also, that appellant’s father rightfully owned the land upon obtaining it as a gift intervivos from appellant’s grandfather who cleared the virgin land in 1950s. Two, the appellant was the owner of the land throughout since 1985 when he obtained it as gift inter vivos as he leased the land to various persons at different times including the respondent’s mother and the respondent. Three, contents of the documents revealed that respondent trespassed to the land in question
35 | P a g e after the initial invitation came to an end. Four, all oral evidence on record supports the appellant’s ownership of the land in question. There are two minor aspects that should be considered before the final orders are made. The first one is on variance of the pleadings and evidence especially on size of land. The pleadings especially the land application has consistently on cause of action and prayers referred to disputed land as 9 acres of the land. The trial Tribunal’s Chairman noted that the pleadings have stated to be 55 acres or 46 acres while the evidence in particular documentary evidence is 9 acres. Having established that Exhibit P4 and P5 reveal that ownership was a gift inter vivos, the size stated is 10 acres which varies slightly with 9 acres of land. In humble view of this court is that such variance is so minor that it cannot impair the appellant’s case. In the case of Rajabu Ramadhani Mayugwa vs Athumani Jafari Manjanjagala and 6 Others (Land Case Appeal No. 47 of 2023) [2023] TZHC 22933 (6 November 2023) (TANZLII), at pages 6-7, the High Court held that: In the first place I wish to state that the law on contradictions or discrepancies is that it is not every
36 | P a g e discrepancy in the prosecution that will lead to the complainant's case to flop - see Said Ally Ismail v. Republic , Criminal Appeal No. 242 of 2010 (unreported) while citing the case of Bakari Hamis Ling’ambe v. Republic , Criminal Appeal No. 161 of 2014 (unreported) and Said Ally Saif v. Republic , Criminal Appeal No. 240 of 2008 (unreported). Moreover, the Court of Appeal has constantly guided that contradictions by witness or between witnesses is something which cannot be avoided in any particular case. See Dickson Elia Nsamba Shapwata v. Republic, Criminal Appeal No.92 of 2007 (unreported) and Deus Josiah Kilala @Deo (supra). This position was also taken in the case of Issa Hassan Uki (supra) while citing with approval the High Court's decision in Evarist Kachembeho and Others v. Republic [1978] LRT 70 where it was stated as follows: ”Human recollection is not infallible. A witness is not expected to be right in minute details when retelling his story.” In the same case of Issa Hassan Uki (supra) the Court also referred to the case of John Gilikola v. Republic , Criminal Appeal No. 31 of 1999 (unreported) where it was stated that due to frailty of human memory and if the discrepancies are on details, the Court may overlook such discrepancies.
37 | P a g e The second aspect relates to the evidence on record revealing that the respondent’s mother was an invitee to the land in question. Apart from lease agreements with the appellant, the same land was later on leased to the respondent and other third parties. Such demonstrates consistency on ownership by the appellant. For instance, in the case of Kija Weja Machanya vs Doto Msagilo (Land Appeal No. 79 of 2022) [2023] TZHC 22156 (1 September 2023) (TANZLII), at pages 6-7, the Court held that: The Court is of the considered position that since the Appellant and his late father were invitees to the suit land, hence neither of them can claim adverse possession as so rightly established by the trial tribunal. The Respondent and her witnesses testified that on several times, she claimed for vacant possession of the suit land since after the death of her own husband and consequently the Appellant's father. Third aspect is that both parties are not in dispute on size of the land. At page 66 to 67 of the proceedings, parties categorically admitted that what was in dispute between the parties was 9 acres of land where there are mud-houses that allegedly the respondent leased from the appellant.
38 | P a g e That being the case, the trial Tribunal could not rise the question of size as an important aspect to determine the lawful owner of the land in question. In totality of the events, the remaining grounds of appeal have merits as the trial Tribunal Chairperson serious erred to discard the evidence of the appellant. In fact, the principle applied that where there are doubts the same should be resolved in favour of opponent party was categorically misapplied. The evidence in civil cases is weighed to find which one is weightier than the other. When a question of ownership is weighed, it tilts towards the appellant alone. There is nothing tangible from the respondent to warrant respondent being awarded the judgment and decree. Therefore, the third and fifth ground of appeal has merit. Therefore, this appeal is meritorious as this court have indicated that all the grounds of appeal demonstrated that appellant had proved his case against respondent before the trial Tribunal. It was unfortunately that trial Tribunal acted in total disregard of the established legal principles on proof of ownership of the disputed land, admissibility of documentary evidence as well as who had a duty to prove.
39 | P a g e In the circumstances of the appeal, it is pertinent that the Judgment of the District Land and Housing Tribunal for Iramba at Kiomboi in Land Case No 04 of 2023 be quashed and the decree thereto is set aside in its totality. Consequently, this Court entered judgment and decree in favour of the appellants to the extent that:-
- The appellant herein managed to prove the case to the required standard of balance of probabilities before the trial Tribunal. Thus, deserved the judgment and decree of the trial Tribunal.
- That, the appellant is declared to be the rightful owner of the disputed land measuring 9 acres is located at Mjenga Hamlet in Ndulungu Village and Ward Ndago Division within Iramba District.
- That the respondent, one Mohamedi Jumanne Sunta is the trespasser and he is ordered to vacate the said land.
- That, the respondent had to pay the debt of 9,955,000/= to the appellant.
- That the respondent, is consequently restrained permanently in person or acting through other persons, agents, or employees from interfering with the land in question.
40 | P a g e 6. The appellant is entitled to costs of the case at the Tribunal and before this Court. It is so ordered. DATED and DELIVERED at Dodoma this 8 th day of June 2026. E.E. LONGOPA JUDGE 08/06/2026.