Godfrey Malongo and Others vs Anangisye Nyobendeta (Land Appeal No. 29716 of 2025) [2026] TZHC 2988 (5 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA LAND APPEAL NO. 29716 OF 2025 (ORIGINA TING FROM THE DECISION OF THE DISTRICT LAND AND HOUSING TRIBUNAL FOR MBARALI ATRUJEWA IN APPLICATIONS NO.25, 26 AND 29 OF2024) GODFREY MALONGO..............................................................FIRST APPELLANT NICKSON DANIEL...............................................................SECOND APPELLANT NOA MWASUMBI...................................................................THIRD APPELLANT JOSEPH MAIKO MWASAKYENI .......................................... FOURTH APPELLANT VERSUS ANANGISYE NYOBENDETA.........................................................RESPONDENT JUDGMENT Date of the Last Order: 21.05.2026 Date of the Judgment: 05.06.2026 A.E. Mwipopo, J. Godfrey Malongo, Nickson Daniel, Noa Mwasumbi, and Joseph Maiko Mwasakyeni, the appellants, have filed this appeal against the decision of the District Land and Housing Tribunal of Mbarali at Rujewa (the DLHT) in the Consolidate Applications No. 75f 7fir and 77 of ?0'?4i whirh Mag. l

delivered on the 21 October 2025, in favour of Anangisye Nyobendeta, the respondent. The joint memorandum of appeal filed by the appellants contained six grounds of appeal as follows hereunder:

1. The trial tribunal erred in law and facts to find that the respondent is lawful owner o f the disputed land relying on weak , contradictory and unreliable evidence.

2. The trial tribunal erred in law and fact holding that the respondent proved his case on the balance o f probability despite the facts that the evidence of appellants was stronger and heavier that of the respondent

3. The trial tribunal erred in law to rely on hearsay evidence adduced by the PW1 and PW2 contrary to dictates o f the law o f evidence.

4. The trial tribunal erred in law and facts for failure to find that there were major and serious contradictions, incompatible and inconsistence between the pleadings and evidence adduce by the respondent's witnesses.

5. The trial tribunal erred in law when tried to shift the burden of proving the case to the appellants instead o f the respondent who failed to discharge his legal duty.

6. The trial tribunal erred in law and facts by discrediting the oral and documentary evidence tendered by the appellant’ s and failure to find that there was sufficient evidence to prove that thp app^iiant-c the rightful owner of the suit land.

7. The trial tribunal erred in law and facts for failure to consider that the appellants purchased the disputed lands from the original owners the family o f Mwangoka witnessed by the village authority and that respondent was just invitee.

8. The trial tribunal erred in law and facts for failure to consider and give weight the evidence of long and undisturbed use o f the suit lands by the appellants.

9. The trial tribunal erred in law and facts for failure to properly analyse and evaluate the evidence adduced resulting to unfair, unfounded and unjust decision to the detriment of the appellants rights. The appellant played that this appeal be allowed with costs by quashing the decision of trial tribunal and declare the appellants as the lawful owners of the suit land. The brief facts of the appeal revealed that the respondent sued the appellants in three separate applications in the Mbarali District Land and Housing Tribunal for trespassing in the suit premises located at Wigoma Hamlet, Malamba Village, Ruiwa Ward, Mbarali District in Mbeya Region. The respondent deposed in those applications that the suit land is his property which he acquired it by clearing the land in 1968 and he has been using the land ever since. The appellant invited the first appellant to the suit land and gave him some part of the suit land. In 2016, the appellants 3

trespassed in the suit land. The respondent instituted three mediation cases in the Ruiwa Ward Tribunal. He filed Land Case No. 21 of 2022 (Exhibit PI) against the first appellant, Land Case No. 11 of 2023 (Exhibit P2) against the second and third appellant, and Land Case No. 20 of 2022 (Exhibit P3) against the fourth appellant. But the mediation failed in all three cases. The ward tribunal issued a letter of failure to mediate the matter. The respondent prayed that the DLHT declare him to be the lawful owner of the suit land, issue an order restricting the appellants and their agents from trespassing into the suit land, and costs of the suit. Each appellant filed a written statement of defence in his respective case. The first appellant deposed in the written statement of the defence that he is the lawful owner of 3 acres forming part of the suit land which he purchased from original owners from 2012. He bought one acre from Beritha Ngoka and one acre from Edward Ally on the 23 March 2012, and the contract was witnessed by the Village Council. The respondent had never used the suit land from 2012 when he bought it to 2022 when the dispute arose. On their part, the second and third respondents filed a joint written statement of defence that the suit land is the property of the second appellant which liti purchased rrom ivizee Mwangoka in 2004, and

he has been using it for over 20 years. The second and third appellants denied to be invited to the suit land by the respondent. On his side, the fourth appellant filed a written statement of defence opposing the application. In his written defence, the fourth appellant stated that he is the owner of the part of the suit land which he purchased in 2005 from Ruth Mwangoka. The original owner was the late Mr Mwangoka. He has been using the suit land for 19 years without any dispute. All the appellants denied the respondent's claim that he invited them to the suit land. They prayed that the tribunal dismiss each of the applications with costs. The trial proceeded whereby both sides brought their evidence. During trial, the respondent was represented by Zainab Anangisye Nyobendeta, the respondent's daughter, who was given the power of attorney to stand, prosecute and appear on his behalf as her true and lawful attorney and agent in Land Applications No. 25, 26, and 27 of 2024 before the Mbarali District Land and Housing Tribunal by the respondent. The total of three witnesses testified on the respondent's side. On the other hand, the appellants testified on oath and called one witness (SU4) in support of their evidence. The first appellant tendered the sale dyieeiiieiils which were admitted collectively as txhibit u i. ine content or

Exhibit D1 in the first agreement it displayed that on the 23rd March 2012, Belitas Ngoka sold one acre to the first appellant for TZS 120,000/=. Also, the second agreement displayed that on the same date (the 23rd March 2012) Edward Ally sold one acre to the first appellant for TZS 150,000/=. The agreements were signed by the sellers and the first appellant, the witnesses, and endorsed by the village executive officer and the village chairman who signed each agreement and stamped each agreement with their official stamp. In the judgment, the trial tribunal found that the respondent's evidence was heavier and proved his ownership of the suit land. It found the evidence of SMI, SM2, and SM3 proved that the respondent acquired the suit land in 1968 by clearing the bushes and used it until in 2012 when he went to Tukuyu and left the suit land to the first appellant for producing food crops but the first appellant is refusing to return it. The trial chairman said in the judgment that the appellants claimed to buy the suit land from original owners but they did not bring them. The trial tribunal declared the respondent as the lawful owner of the suit land, the appellants were ordered immediately to vacate from the suit land, and the costs was

awarded to the respondent. The appellants were aggrieved and they filed the present appeal. At the hearing, Advocate Abinel Zefania represented the appellants, whereas Advocate Pamela Kalala represented the respondent. Both parties were invited to present their case. In his submission in chief, the appellant's counsel relied on the principle that the one who alleges must prove and the burden never shift to the adverse party until the person with burden has discharged the burden, as stated in Paulina Samson Ndawavya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2017, Court of Appeal of Tanzania at Mwanza; and the principle of law that the parties and even the court are bound by the pleadings. The counsel submitted jointly on the first and second grounds of appeal by stating that in the pleadings the respondent claimed that he was allocated the suit land in 1968 and in 2016 he invited the appellants to cultivate food thereafter they refused to return it. The respondent was supposed to prove before the tribunal how and when he acquired the suit land, and when he handed the suit land to the appellants. The respondent failed to discharge his burden. The respondent never . ipeared in court to testify how he got the suit land and how and when he 7

invited the respondents to the suit land. The evidence of PW1 and PW2 revealed that the respondent arrived at the village and saw Ally Mwakitenya, the Tencel leader, who allocated him the land. The Ten-cell leader is not among the authority that may allocate the village land. The respondent called three witnesses. Their evidence never touched the second, third and fourth respondents. In page 5 of the typed proceedings, PW1 said he is testifying on the area of the first appellant. The same was stated by PW2. The only evidence touching the second, third and fourth respondent is the testimony of PW2. However, PW2 admitted that his evidence was hearsay and did not say how he got what transpired in 1968 and who told him so. PW2 said that the person who told him about the suit land is still alive but did not come to testify. The only direct evidence he adduced is on what transpired in 2022. Under the circumstances, the respondent failed to prove his claim. In his submission to the third ground of the appeal the appellants' counsel submitted that the trial land court relied on the hearsay testimony of PW2. PW2 did not say why the person who told him the story about the suit land did not come to the tribunal to give evidence. Section 62 of the Evidence act provides tnat the testimony before the court must be direct

evidence. In Vumi Lyapenda Mushi vs Republic, Criminal Appeal No. 327 of 2016, Court of Appeal of Tanzania at Arusha it was held that the hearsay evidence had no evidential value. Regarding the fourth ground of the appeal, the counsel said that there was serious contradiction, inconsistency and incompatibility in the respondent's evidence. In the pleadings, the respondent named the neighbours to the suit land to be Julius Mwangoka, Majuto Jonas, David Kongoro, and a canal/trench. In the evidence, PW2 said that the neighbours to the suit land is the first appellant, Malongo Sijanga on the east, and Godfrey Marongo in the west. The neighbours named in the pleadings were not called as witnesses. PW1 and PW3 named Godfrey Malongo to be the neighbour. PW1 and PW2 testified that the first appellant built a modern house in the suit land. When the tribunal visited the suit land PW1 and PW2 failed to show the modern land in the suit land. When cross-examined at the locus in quo, PW1 and PW2 said that there is a foundation of the house, and they showed it. There was no such a modern house in the suit land.

He added that PW3 gave a different story that the first appellant and the respondent have dispute over the boundaries as they are neighbours. It is not true that the respondent gave the respondents a farm. PW4 said that the neighbours to the suit land is Malongo and Sijanga. It is a settled law that the person with a burden of proof must establish the boundaries of the suit land and without establishing the boundaries, one cannot claim for the trespass as it was held in Gerald Kazimoto Lupembe vs Michael Kihundo, Misc. Land Appeal No. 12 of 2012, High Court at Iringa. Failure to name the neighbours means that the claimant failed to prove his ownership of the suit land as it was held in Braison Mpinge vs The Registered Trustees of Roma Catholic Iringa Diocese (Ng'ingula Parish), Civil Appeal No. 297 of 2023, Court of Appeal of Tanzania at Iringa, [2025] TZCA 290. In his submission to the fifth ground of appeal, the appellants' counsel said that the trial chairman shifted the burden of proof to the appellants. It was the respondent who sued the appellants and she had a burden of proofing her case. The burden was not supposed to shift on the weakness of the adverse party (appellants). The claimant must stand on the strength uf his Ldse dhd hot tne weakness of the opponent's case. 10

The counsel jointly submitted the seventh and eight grounds of the appeal. He said that the trial court was wrong to discredit the documents proving the appellants' ownership of the suit land. All appellants said they purchased the suit land from the original owners and the first appellant tendered the purchase agreement which was endorsed by the village leaders. The first appellant bought the land from Bertha Ngoka, Bernard Ally, and Julius Ngoka. The second appellant testified that he bought the suit land from Julius Ngoka. The fourth appellant bought the suit land from Lucy Ngoka. The involvement of the village authority in the sale of the village land is essential since section 8 of the Village Land Act requires the management and transfer of the village land to be in the hands of the village council. It was wrong for the trial tribunal to hold that the involvement of the village council in the sale agreement and transfer was not essential. The tribunal did not consider the testimony of DW4, the former village secretary. DW4 proved that the suit land was owned by the original owner who sold the suit land to the appellants. DW4 said the respondent was chased from the village. The appellant's evidence supported the appellant's evidence. The respondent was staying at the house of Ally Mwakitega when qhp arrived at ttip uillagp Ally Mwalrihaga-

(the ten cell Leader) was the husband of Beritha Ngoka who sold the land to the first appellant. Bertha Ngoka is aunt (Mama Mdogo) of the respondent. The respondent was invited by Ally Mwakitega who gave her the land. After the respondent left, the land returned to Ally Mwakitega and his family and it is the family of Ally Mwakitega who sold the land. In Methuselah Nyagaswa vs Christopher Nyirabu [1985] TLR 103, it was held that the right to land in the registered village could only be transferred with approval of the village council. The court concluded by saying that the sale not involving the village council is void. The trial court was wrong not to consider the sale agreement approved by the village leaders. The counsel said in his submission to the eighth ground of appeal that the appellants have been using the suit land for a long time without any disturbance. The first appellant testified that he has been using the it lands in 2012 after buying it as proved by the sale agreement. The second appellant bought the land in 2004 from Donat Mwangoka, but the agreement was damaged by the rain water. The third appellant bought the suit land from Ruth Mwangoka. After buying it, the appellants have been using the land ever since, ihere is no evidence showing that the

respondent was using the suit land from 1968. DW4 testified that in 1970's the respondent was chased away from the village and she came back after she heard that her relatives who sold the land to the appellants were dead. The appellants were using the land by the time the respondent claimed that she gave the land to the appellants. The respondent failed to prove his case. He prayed that the court re-evaluate the evidence in record and find that the suit land belongs to the appellants. 2 In her reply, Advocate Pamela Kalala stated that the appellants grounds of appeal are basically on the evaluation of the evidence by the trial tribunal. The respondent's evidence was heavier than the appellants and the appellants evidence was contradictory as a result the trial tribunal did not consider it. The counsel argued all grounds jointly. She said that, in their evidence, the appellants failed to show the boundaries of the suit land. None among the appellants were able to show the location of the suit land. The cited case of Braison Mpinge vs The Registered Trustees of Roma Catholic Iringa Diocese (supra) is distinguished in this case where the appellants did not state the boundaries of their land in the pleadings and evidence. In Application No. 25 of 2022 before the trial Lfibuiidl, the respondent stated that she acquired the suit land by clearing

it in 1968. PW1 testified that he witnessed the arrival of the respondent and he know that the suit land belongs to the respondent. In page 4 of the judgment, the trial tribunal relied on the direct evidence of PW1. PWl's evidence was supported by Zainab Anangisye Nyobendeta - PW2, who said that she was informed about trespassers in the suit land by the Anangisye Nyobendeta, the respondent. PW2 had the power of attorney to represent the respondent. The power of attorney stated the reason for the respondent to appoint PW2 to appear and represent him in the case. PW2 heard from the respondent himself who acquired the suit land. Order III rule 2 (a) of the First Schedule to the Civil Procedure Code Act gives PW2 as an agent of the respondent power to litigate a proceeding on behalf of the donor as it was held in Alliance One Tobacco Tanzania Ltd and Another vs Martin John Mwita and Heritage Insurance, Civil Appeal 02 of 2022, High Court at Mwanza. The counsel added that the evidence of PW2 (SM2) show that he is the neighbour to the suit land and that the first appellant trespassed into the suit land. At the locus in quo, the foundation of a modern house was found. The first appellant said he bought one acre from Beritha Ngoka, and urie dcre from John Nwakitega. The first appellant did not attach the sale

agreement of the land he bought from Alii Mwakitega. In Exhibit Dl, there is no neighbour in the south side of the suit land who was mentioned. DW3 (SU3) testified that in the southern side the land is bordering the respondent. The appellants were dodging to mention the respondent who was their neighbour in the suit land. The respondent's evidence was heavier than the appellants. The evidence proved how the respondent acquired the suit land. Regarding the contradictions mentioned by the appellant's counsels, the respondent's counsel said that DW1 claimed in his testimony that he did not know the respondent as per page 29 of the proceedings. In page 31, he said he could not request the land from the person whom he did not know. DW2 also denied to know the respondent. DW3 evidence is contradicting DW1 and DW2 that the respondent is their neighbour in the southern part. Even when they visited the locus in quo, it was shown that the respondent was their neighbours in the southern part of the suit land. In Abrahamu Nanyaro vs Peniel Ole Saitabahu 1987 TLR 47, it was held that the contradictory evidence must be ignored. The trial tribunal correctly ignored the appellants' evidence. DW4 testified to know the

respondent since 1975. The respondent did show the neighbours and the appellants evidence supported the claim. The counsel response to the appellants' counsel claim that the trial tribunal shifted burden of proof to the appellants was that the trial tribunal never shifted burden to the appellants. After the respondent discharged his duty of proof, appellants failed to prove their claim for the ownership of the suit land. In page 41 of the typed proceedings, DW4 said the appellants bought the suit land from the children of Mwangoka. Later on, on the same page, DW4 said that the appellants bought the suit land from the grandchildren of Mwangoka. He said that he didn't witness when the appellants bought the suit land. In page 44, DW4 said that he came to prove that the suit land is the property of Mr Alii. The cited case of Paulina Ndawavya should not be considered because its circumstances are different. In Abdulkarim Haji vs Raymund Nchimbi Aloyce and Others [2006] TLR 420, it was held that he who alleges must prove. See also section 3 of the Evidence Act. The counsel criticised the sale agreements tendered by the appellants that it was contrary to the law. She said that there is no evidence from the person who sold the suit land to the appellants. The persons who sold the 16

suit land to the appellants had no right to sale the land which they do not belong to them. In Farah Mohamed vs Fatuma Abdallah [1992] 105, it was held that he who has no title to the land can not pass a title of land to another person. The respondent said he had 12 areas which were invaded, 9 areas were returned and three areas in the present suit were not yet to be returned. Naturally, the respondent was the owner of the suit land. The trial tribunal found that mango trees are not natural trees as claimed by DW1. It is the planted trees. In the suit land the respondent planted the mango trees. The evidence of DW4 was considered by the trial court and found that it has no basis. The appellants' counsel claim that the appellant's defence was not considered has no merit. The claim that the appellants has been in the suit land for a long time has no basis since the evidence in record revealed that the respondent was in the suit land from 1968 to 2012. If the appellants were in the suit before 2012 the dispute could had arisen before 2012. In the sale agreement, John Mwakitega was the witness as the neighbour. But the said John Mwakitega did not sale the suit land by writing the sale agreement. John Mwakitega knew that he was selling the land that does not belong to him. He prayed that the appeal be dismissed with costs and the trial trib u n al's rlpriqinn .bp nphpld—

The appellants' counsel re-joined by re-affirm his submission in chief. He added that DW1 testified that the sale agreement of the land he bought from John Mwakitega was lost. It was the one suing who had duty to show the boundaries of the suit land in the pleadings. In page 3 of the judgment, the trial tribunal recorded that the respondent was given the suit land by the ten-cell leader. The trial tribunal interpreted the word "kugomea" as to be allocated. The testimony of PW2 is hearsay despite having a power of attorney. Pleadings and the oral testimony on the boundaries of the suit land was different. PW3 testified that his land was bordering the land of the first appellant. The witnesses said there is a modern house and not a foundation of a modern house. It is two different facts. The claim that the mango trees were natural trees was not featured in the proceedings. The trial tribunal raised and relied on an extraneous matter. This was the end of parties' submissions. From the submissions, the court is invited to determine the appeal's merit. In his submission in chief, the appellants' counsel stated that his submission relied on the principle that the one who alleges must prove and the burden never shift to the adverse party until the person with burden 18

has discharged the burden, and the principle of law that the parties and even the court are bound by the pleadings. Indeed, the appellants' grounds of appeal and their counsel's submission was basically on the pointed issue whether the respondent proved his claim at the trial tribunal on the balance of probabilities. The law is settled under section 117 (1) of the Evidence Act, Cap. 06 R.E. 2023, that the person desires the court to give judgement in his favour as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Simply, a burden of proof lies to a person who is bound to prove the existence of any alleged fact. So, the person who initiates the lawsuit has responsibility to prove his or her claims. The burden of proof in civil cases is on the balance of probabilities as set out under section 3 (2) (b) of the Evidence Act, meaning that the court will rule in favour of the claimant whose evidence is more likely than not. The evidence relied upon to grant victory to a party must be sufficient to prove the claims. The standard of proof is attained and actually discharged, only where a party upon whom the burden lies, establishes his case such that the fact he has to prove, is proven. See Madeni Ally Muhamed and Others vs Shame Ally Mohamed and

Another, Civil Appeal 272 of 2020, Court of Appeal of Tanzania at Dar Es Salaam, [2023] TZCA 17271 (delivered on 23 May 2023, TANZLII). The court has to choose either to believe the facts exist or considers its existence so probable in the eyes of a prudent man. In case the claimant discharges his burden of proof on the required standards, the onus shift to the defendant to proves his claims deposed in his defence. The only time burden or onus of proof shifts to the adverse party is when the party on whom the onus lies discharge his or her burden. See Habiba Ahmad Nangulukuta and Two Others vs Hassan Ausi Mchopa and Another, Civil Appeal No. 10 of 2022, CAT at Mwanza (unreported). The said burden is not diluted on account of the weakness of the opposite party's case. Finally, in its decision, the court will accept the evidence of a party that is more credible than the other on a fact to be proven. See Paulina Samson Ndawavya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 [2019] TZCA 453 [11th December, 2019; TANZLII]. The record of the trial DLHT shows that it was the respondent who sued the appellants for trespassing in the suit land. In the applications, the applicant deposed that the suit land belongs to him as he acquired it by Jedrlny the land in lybtf, and he has been using it therefrom to 2012 20

when he invited the appellants in the suit land for food cultivation because he was going to Tukuyu to attend burial service after they asked him. In 2016, respondent returned to Malamba Village and requested the appellants to return his land he invited them but the appellants claimed that the land is their properties after they purchased it from the owners. The respondent instituted three mediation cases in the Ruiwa Ward Tribunal. After the mediation failed, he instituted three applications before the Mbarali District and Housing Tribunal, which was letter on consolidated by the trial tribunal. During trial at the District Land and Housing Tribuna, the respondent was represented by Zainab Anangisye Nyobengeta - PW2 (SM2), his lawful agent to represent him in all applications before the DLHT under the special power of attorney (Exhibit PI). In her evidence, PW2 testified that the respondent acquired the suit land in 1968 by clearing it (aligomea) and used it up to 2012 when he invited to the appellants to cultivate food. The land the respondent invited to the first appellant borders David Kongoro, Majuto Jonas Mwabulungu and a stream/trench (mfereji). The land the respondent invited to the second and third appellants boundaries bordered a sli ediii/Lrench (mferejij, respondent's land, the second appellant, and 21

Joseph Michael Mwasakyeni. The land invited to the fourth was bordering the land of Tulongane, the second and third appellant, the respondent himself, and the fourth respondent. In 2026 the respondent returned to the village and claimed for his land from the appellants. All appellants refused to return the land and told the respondent that they are the lawful owners of the suit land after buying it. The first appellant stated that he bought the suit land from Beritha Ngoka. The first appellant demolished the respondent's house and constructed a new house. In 2021, the second respondent sold the suit land to the third respondent. The fourth said he bought the suit land from Ruth Julius. The respondent called Lenard Mwandawila - PW1 (SMI) and David Lameck Kongolo - PW3 (SM3) to prove his case. PW1 said he saw the respondent clearing dispute land, cultivating it, was present when the respondent invited the appellants to cultivate his land in 2012, and when he asked them to return his land in 2016. He said that in the suit land there as modern houses in the place where the respondent resided. PW3 testified that he knew the respondent from 1985 and the respondent is his neighbour at the suit land. The respondent cultivated the suit land, build a mud house, and pldiileil mdriyo trees, ine respondents mud house was 22

demolished in 2019. The respondent told him that the first appellant invaded the respondent's land. In brief, the respondent's evidence his claims that he acquired the suit land by clearing bushes in 1968, in 2012 he invited the appellants to cultivate it, and when he asked the appellants o to return the land to him in 2016, they refused. The evidence proved that the suit land belongs to the respondent, and the appellants are claiming its ownership through sale after they were invited by the respondent to the suit. The respondent discharged his onus of proof, and it was the duty of the appellants to prove their case. On their side, the appellants stated in their written statement of defence that they are the lawful owner of the suit land through purchase from original owners. They denied being invited in the suit land by the respondent to meet with the respondent until when this dispute occurred in 2023. The first appellant deposed that he owned three acres, which he bought from various persons. He bought one acre from Beritha Mwangoka on the 23rd day of March 2012 and bought another acre from Edward Ally on the 23rd day of March 2012. The second and third appellant jointly deposed in paragraph 3 of the written statement that the second appellant bought the suit land from

Donat Mwangoka in 2004. In paragraph 4 of the written statement of the defence, the second and third appellants stated that the second appellant bought the suit land from the family of Mzee Mwangoka, the original owner, in 2004, and he has been using the suit land ever since. There is a contradiction if the second appellant bought the part of the suit land from Ruth Mwangoka or from the family of Mzee Mwangoka. The fourth defendant stated in his written statement of defence that he bought the suit land from Mr Mwangoka (the original owner) in 2005 and he has been using it without any dispute. He admitted the location of the suit land stated in the application and said the respondent was not among his neighbours. The neighbours were Noah Mwasumbi and Poke Tulangine. The appellants prayed that the application filed by the respondent be dismissed with costs. In their evidence, the first appellant said the neighbours to the suit land were Malongo Sijaga, Mboto, Byopyo, Gwakisa Mwasumbi, and Ngolo. John Mwakitega has an area in the vicinity and was residing in the area. The sale agreement of the land he bought from John Mwakitega was lost. The first appellant tendered the sale agreements of the land he purchased from Beritha Ngoka and Edward Alii (Exhibit D1 collectively). The second

appellant (SU2) said that he bought the suit land from Donat Mwangoka in 2004 and they executed a sale agreement in the village office. He did not tender the sale agreement. The second appellant denied knowing the respondent. The third appellant did not appear or defend himself. The fourth appellant (SU3) said he bought two pieces of land in the suit land for TZS. 50,000/= each from Ruth Mwangoka in 2002. He named the witnesses of the first sale agreement were 2nd appellant, Lugano, and wife if Julius Mwangoka. Witnesses of the second sale agreement were Julius Mwangoka's wife, Mama Hamis, Hamisi and Ezebio. The appellants called Athmani Mlegembo - PW4 (SU4) as their witness. PW4 said that the respondent moved to Malamba Village in 1975 at the house of Alii Mwakitega. The respondent was invited to cultivate at the land of Alii Mwakitenga who welcomed the respondent in the village. The respondent had no land in the village. In 1980, the respondent was expelled by chiefs from the village for bewitching a person. The land which the respondent was cultivating before he was expelled from the village returned to Alii Mwakitega. Alii Mwakitega was married to Beritha Mwangoka and they had no children. Alii Mwakitega's wife was respondent's aunt. After their demise, tne land was taken by Mwangoka's 25

grandchildren. The appellants bought the suit land from Mwangoka's children. The respondent returned to the village in 2022. PW4 said he did not know as to when the appellants bought the suit land from the Mwangoka's children and grandchildren. In 1968 the respondent was not in Malamba Village. Looking at the evidence adduced by the appellants and their witness, they all claimed that the appellants bought the suit land from the original owners between 2002 and 2012. The first and second appellant testified that the sale was reduced into writing which were witnessed by the village office. The fourth appellant said he bought two pieces of land in the suit land from Ruth Mwangoka without signing the sale agreement. Only the first appellant tendered the sale agreements (Exhibit Dl). The second appellant did not tender any sale agreement to support their claim. It is a requirement of the law in section 107 (1) of the Evidence Act that when the terms of a contract, grant, or any other disposition of property, have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant, or other dispusiliuii of properly, or or such matter except the document itself,

or secondary evidence of its contents in cases in which secondary evidence is admissible. The first appellant said in his testimony that he bought the suit land from Beritha Mwangoka and Edward Alii in 2012, and John Mwakitega in 2013. He tendered the sale agreements - Exhibit D1 of the land he bought from Bertha Mwangoka and Edward Alii. He did not tender the sale agreement of the land he bought from John Mwakitega because it was damaged by the rain but gave oral account of the alleged sale agreement. The first appellant was supposed to tender the secondary evidence of the alleged damaged by the sale agreement under the law. Failure to do so means that he failed to prove the content of the sale agreement he claimed to buy from John Mwakitega. Also, in the written statement of defence, the first appellant said nothing about buying one acre from John Mwakitega. The story that he bought one acre from John Mwakitega came when the first appellant was testifying. There were inconsistencies between the pleadings and the first appellant's testimony.

In civil cases, the parties are not allowed to present evidence which is contrary to the pleadings as they are bound by it. They can succeed only when what was pleaded in the plaint was proved in evidence. See Martin Fredrick Rajab vs Ilemela Municipal Council and Another, Civil Appeal No. 197 Of 2019, Court of Appeal of Tanzania at Mwanza (unreported), and Makori Wassaga vs Joshua Mwaikambo and Another [1987] TLR 88. Thus, the first appellant failed to prove that he bought one acre of the land from John Mwakitega. Exhibit D1 has two documents, the letter or sale agreement showing that Belita Ngoka is selling one acre of the land for TZS 120,000/= to the first appellant, and the letter or sale agreement showing that Edward Alii selling one acre for TZS 150,000/= to the first appellant. Each sale agreement was signed by the seller, buyer, witnesses of the sale, the village chairman and the village executive officer. In both sale agreements, the neighbours to each of the sold land were mentioned. However, in the sale agreement between Belita Ngoka and the first appellant the location of the suit land was not named. It is not clear if the land sold to the first appellant by Belita Ngoka was part of the suit land. Thus, the first appellant failed lo prove that he oougnt one acre from Belita Ngoka. 28

For the sale agreement between the first appellant and Edward Alii, there is no evidence showing how Edward Alii acquired the title to the suit land. Under the circumstances, I find that there is no evidence to prove that Edward Alii had a legal title to pass to another person. The same to the second appellant. He testified that he bought the land from Donati Mwangoka in 2004 and the sale agreement was reduced into writings. However, he did not tender the sale agreement on the ground that the sale agreement was damaged by the rain. The said reason was not pleaded in the written statement of defence. It was stated for the first time when the second appellant was answering cross-examination questions. The second appellant did not bring a witness of the alleged sale to support his claim over the sale. Besides, in paragraph 3 and 4 of the written statement of defence, there is contradiction as to whom the second appellant bought the part of the suit land. Did he buy the suit land from Donati Mwangoka or from the family of Mzee Mwangoka. Under the circumstances, I find that the second appellant failed to prove his ownership over the suit land. The third appellant did not enter appearance and did not claim the right of the suit land at all.

The fourth appellant claimed that he bought two pieces of land in the suit land from Ruth Mwangoka without signing the sale agreement. The fourth appellant named the neighbours who witnessed when he purchased each land but he did not call any of them as his witness or give the reason for not calling them. The fourth applicant's evidence is silent as to how Ruth Mwangoka acquired the title to the land. What we see is the evidence from the fourth appellant that he purchased part of the suit land from her. Apart from the evidence from DW1 and DW3 showing that Beritha Mwangoka was the wife of Alii Mwakitega (the alleged the original owner), there is no evidence at all showing how other sellers of the suit land acquired it. DW4 testified that the sellers of the suit land were children or grandchildren of Mwangoka without naming the said children or grandchildren. Also, his evidence is silent on how the land of Alii Mwakitega whom he claimed to be the original owner of the suit land ended in the hands of Mwangoka's family instead of Mwakitega's family. The evidence of the appellants is confusing and does not prove as to how Ruth Mwangoka, John Mwakitega, Edwin Alii, Donati Mwangoka, and Mzee Mwangoka acquired the suit land so that they may be in a position to pass the title of the land to the apppllantq Ttig gpttl p H prinriplp that- a po rcnn w hn hnn r a -

title to the land cannot pass a title of the land to another person. See Farah Mohamed vs Fatuma Abdallah [1992] 105. The evidence of DW4 brought more confusions in the appellants' ownership of the suit land than assisting them. Thus, I find that the appellants failed to prove on balance of probabilities that the suit land belongs to them. The appellants' counsel claimed in his submission to the second ground of appeal that the evidence of PW1 (SMI) and PW2 (SM2) was a hearsay. In the submission, the appellant's counsel stated that the evidence of PW2 (SM2) of what she heard from the respondent. The respondent counsel was of the view that the testimony of PW1 was not a hearsay. The settled law under section 67 (1) (a), (b), (c), and (d) of the Evidence Act, Cap. 6 R.E. 2023, is that oral evidence must always be direct, and not on a third-party account. Hearsay is the evidence asserted by a person other than the witness testifying, and it is not admissible when the aim of such evidence is to establish the truth of a statement made by another person. The hearsay evidence had no evidential value as held in Vumi Lyapenda Mushi vs Republic (supra). However, hearsay is admissible when offered to prove, not the truth of the statement, but the fact that it was nidde. See Sllbraminium vs public Prosecutor [1956] W.L.R.

965. The appellants claimed that the testimony of PW1 and PW2 were hearsay. I differ with the appellant on the evidence of PW1 because the evidence of PW1 was direct evidence on what he saw, heard and perceived. Regarding the testimony of PW2, I agree with the appellant' counsel that most part of her testimony was a hearsay of what she was told by the respondent although she was lawful respondent's agent. Her evidence is admissible to prove the fact that the respondent was claiming for the suit land from the appellants. In the angle that PW2 was the lawful agent of the respondent with a special power of attorney standing on behalf of the respondent, her evidence regarding the respondents claim to the suit land was not hearsay evidence. Nevertheless, there is evidence of PW1 and PW3 which proved that the respondent acquired the land in 1968 by clearing it and he was using it up to 2012 when he invited the appellants to the suit land. The respondent's evidence shows that the appellants were invited to the suit land. The appellants' evidence and pleadings show that their claim of ownership of the suit land is through sale between 2002 and 2013. The appellants' counsel claimed in the submission that the respondent was 32

allocated the suit land by a wrong authority as the village land is allocated by the village council, but the claim has no basis. It is section 8 (1) and (5) of the Village Land Act, Cap 114 R.E. 2023, which was enacted in 1999 that give the mandate of managing the village land including its allocation to the village Council after getting approval of the Village Assembly. Unfortunately, in 1968 when the respondent claimed he acquired the land, the Act was not operational as it was not enacted. Further, the village land does not exclude customary way of acquiring land and customary ownership of the land. The appellants' counsel submitted in the eighth ground of the appeal that the appellants have right over the suit land because of long and undisturbed use of the suit lands is defeated on two areas. First, the respondent's evidence show that he acquired the suit land in 1968 which was earlier than the appellants, and second, the appellants claim of right over a suit land is through sale. What was claimed by the appellants' counsel on their alleged long use of the suit land is adverse possession. The principle of adverse possession allows a person to gain ownership of land by using it continuously without owner's permission and upon fulfilling certain conditions. See Jackson Reuben Maio vs Hubert Sebastian, Qvil Appeal 84 of 2004, Court of Appeal of

Tanzania at Arusha, [2005] TZCA 3 (15 July 2005, TANZLII.) In Depson Balyagati vs Veronica J. Kibwana, Civil Appeal No. 21 of 2021, Court of Appeal of Tanzania at Dar Es Salaam, [2023] TZCA 17772 (23 October 2023, TANZLII), on page 21, it was held: " ..... adverse possession occurs when someone occupies land belonging to someone else without permission. In that sense, a trespasser cannot make a successful adverse possession claim unless, among other things, it is shown that the trespass has been done in a way that infringes upon the owner's rights without permission. Put in other words, the occupation must be hostile and adverse to the interests of the true owner and take place without their consent / ' However, as it was held by the court in the above cited cases, the claim of right over the land based on a long-time usage of land can only give right to the user where the occupation was hostile. That is where the property owner does not exercise his right to recover his land within the time prescribed by law from a person who occupies it without his permission. See Bhoke Kitang'ita vs Makuru Mahemba, Civil Appeal No. 222 of 2017, Court of Appeal of Tanzania at Mwanza (unreported). The adverse possession is not applicable in the present situation where the

appellants claimed to acquire the suit land after purchasing it. Also, there is evidence that the respondent invited the appellants in the suit land. Further, the appellants' counsel said there is contradictions in the pleadings and respondent's evidence on the names of the neighbours to the suit land. In consolidate case before the DLHT, the respondent filed three applications, and, on each application, he named the neighbours to the respective part of the suit land. I find no contradiction in the respective pleadings (applications) and the testimony of PW1, PW2, and PW3. Another contradiction pointed by the appellants is found in the testimonies of PW1 and PW2 and what was found in the suit land regarding the modern house constructed in the suit land. PW1 and PW2 testified that in the suit land there is a modern house which was constructed after the respondent's mud house was demolished by the appellants. But when tribunal visited the suit land what was found was a foundation of a new house. I agree with the appellants and their counsel that there was inconsistent between was found in the locus in quo from what was said by PW1 and PW2 their evidence.

The law is settled that where is contradictions or inconsistencies in the case the court must determine in its decision if the contradictions are not minor or they go to the root of the matter. See Mohamed Said Matula vs Republic [1995] TLR 3. Contradictions that go to the root of the matter blemish the evidence and taint the witness's credibility. See Ernest Sebastian Mbele vs Sebastian Sebastian Mbele and Others, Civil Appeal 66 of 2019, Court of Appeal of Tanzania at Iringa [2021] TZCA 168 (4 May 2021, TANZLII), and Africarriers Limited vs Millenium Logistics Limited, Civil Appeal No. 185 of 2018, Court of Appeal of Tanzania at Dar Es Salaam [2021] TZCA 3535 (16 November 2021, TANZLII). The evidence of PW1 and PW2 show that they said in the suit land there is a modern house but upon visiting the locus in quo the foundation of a new house was found. Both PW1 and PW2 testified that they visited the suit land a year before their testimonies. PW1 and PW2 gave their testimonies in 2025 meaning it was in 2024 when they visited the suit land and saw the modern house. The dispute between the appellants and the respondent in this case was over the ownership of the suit land, and not if there is a modern house or a new foundation in the suit land. T hp mspnnHpnt-'q wfrnpggpg wprp ahlp tn chnw t~ h oJam inHarios-

the remains of his demolished house and the trees the respondent planted. Under the circumstances, I find that the contradictions were minor since it does not go to the root of the case which is the ownership of the suit land. Consequently, I find that the appeal is devoid of merits and I dismiss with costs. It is so ordered. Dated and signed at Mbeya on the 5th day of May 2026. JUDGE