Juliana Ifwani and Others vs Mpiki Mwakalinga (Land Appeal No. 1300 of 2026) [2026] TZHC 2967 (4 June 2026)
Judgment
IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MBEYA SUB-REGISTRY) AT MBEYA LAND APPEAL NO. 1300 OF 2026 CASE REFERENCE No. 2026012010000001300 (Originating from Land application No.47 of 2023 in the District Land and Housing Tribunal for Kye/a at Kye/a) JULIANA IFWANI ................. .............. ... ............................. 1sr APPELLANT JAPHET LEONARD MWAIFWANI ......................................... 2No APPELLANT SALOME LEONARD MWAIFWANI ........................................ 3RD APPELLANT ABEL LEONARD MWAIFWANI ............................................. 4TH APPELLANT VERSUS MPIKI MWAKALINGA ... ............ 111 I I I. ■ ••••• I ••• I I ••••••• I ••• I I. I . I ••• I ■ .RESPONDENT JUDGMENT 08 th April & 04 th June, 2026. TIGANGA, J.: In the District Land and Housing Tribunal for Kyela at Kyela, in Land Application No. 47 of 2023, the respondent herein was engaged in a dispute with the appellants concerning a parcel of land situated at Mpunguti Katete Village, Makwale Ward, within Kyela District, measuring approximately 43 to 55 feet (hereinafter referred to as "the suit land''). The respondent averred that he is the lawful owner of the suit land, having purchased the same from Japhet Leonard Mwaifwani, the 2nd appellant, on 05th November 2017. He further averred that the sale 1
agreement (Exhibit P3) was witnessed by Juliana Ifwani, the 1st appellant. The respondent alleged that, without any lawful justification or colour of right, the 1st appellant trespassed upon the suit land in the year 2023 and destroyed cocoa trees, oil palm trees, and banana crops thereon, whilst falsely claiming ownership of the said land. The 2nd, 3rd, and 4th appellants were joined in the proceedings on the ground that they likewise asserted ownership over the suit land. The appellants disputed the respondent's assertions regarding both the size of the suit land and his alleged lawful ownership thereof through purchase from the 2nd appellant. They contended that the suit land was originally lawfully owned by Leonard Patukuju Mwaifwani and that, upon his demise in the year 2004, the land devolved upon the 1st appellant in her capacity as caretaker for the benefit of the heirs, namely the 2nd, 3rd, and 4th appellants. They further averred that the 1st appellant continued to hold the land in such capacity until the year 2023, when she was formally appointed administratrix of the estate of her late brother. The appellants further contended that the joined parties, namely the 2nd, 3rd, and 4th appellants, were not parties to the mediation proceedings conducted before the Makwale Ward Tribunal. 2
Upon hearing the matter on its merits and after evaluating and analysing the evidence adduced by both parties, the trial Tribunal declared the respondent herein to be the lawful owner of the suit land and awarded costs against the appellants. Being dissatisfied and aggrieved by the said decision, the appellants preferred the present appeal before this Court on five grounds of appeal, namely:
-
That the trial district land and housing Tribunal for Kye/a at Kye/a erred in law and facts in holding that one Mpoki Mwakalinga/ the respondent is the lawful owner of the land in dispute without regard to the unlawful and forged sale agreement between the 2nd appellant and the respondent.
-
That the trial district land and housing Tribunal for Kye/a at Kye/a erred in law and facts in holding that the respondent is the lawful owner of the land in dispute/ while the same failed to prove his case in the standard required by the law, to wit on a balance of probabilities.
-
That the trial district land and housing Tribunal for Kye/a at Kye/a erred in law and facts for its failure to properly evaluate and analyse the weighty and corroborated evidence adduced by the appellants during trial as against the contradictory evidence by the respondent himself as well as that of his witnesses.
-
That the trial district land and housing Tribunal for Kye/a at Kye/a erred in law and fact for its misapplication of substantive land law. 3
-
The trial district land and housing Tribunal for Kye/a at Kye/a erred in law and fact for its failure to consider key issues. During the hearing of this appeal, the Appellants were represented by learned counsel, Ms. Frola Pade Mwakisambwe, whilst the Respondent appeared in person and was unrepresented. The appeal was scheduled to be determined by way of written submissions. At the outset, learned counsel for the Appellants briefly set out the background of the appeal, particularly noting that an order for retrial had previously been made in respect of the issue of stamp duty. Counsel thereafter argued the grounds of appeal under three broad heads. In support of the first and second grounds of appeal, counsel submitted, firstly, that the District Land and Housing Tribunal (DLHT) erred in law and in fact in declaring the Respondent to be the lawful owner of the disputed land based on a forged sale agreement, which was merely a photocopy and therefore an inadmissible instrument in law. Counsel contended that the DLHT improperly admitted the sale agreement marked as Exhibit P3, notwithstanding the Appellants' challenge to its authenticity, particularly the signature purported to belong to the 2nd Appellant. Counsel further submitted that the finding of the DLHT, to the effect that the Appellants had failed to prove that Exhibit P3 was forged, was 4
unsupported by both law and authority, and that the case relied upon in the impugned judgment was clearly distinguishable from the circumstances of the present matter. It was further argued that the learned Chairperson of the Tribunal misdirected himself in blaming the Appellants for failing to prove the alleged forgery of Exhibit P3, whilst the Respondent had tendered only a photocopy of the sale agreement and failed to account for the whereabouts of the original document. In support of that contention, counsel cited the cases of Juma Kana and Another vs Fita Tahu, Civil Appeal No. 162 of 2018, and Valentine Leopold vs Eva Aminiel Kitomari and Another, Civil Appeal No. 323 of 2020, as authorities illustrating the legal principles governing proof of forgery and the admissibility of disputed documents. Learned counsel further submitted on the issue of stamp duty that the stamp affixed to the instrument is contrary to section 47(1) and Item 22 of the Schedule to the Stamp Duty Act, Cap. 189 R.E. 2023. Counsel contended that the stamp duty affixed in the sum of TZS 2,000/= does not correspond with the value of the suit land. It was therefore argued that the Respondent was liable to pay stamp duty amounting to TZS 126,000/= together with the requisite penalty, the same having remained 5
unpaid since 2017, pursuant to section 77 of the Tax Administration Act, Act No. 10 of 2015. With regard to the second ground of appeal, being the third ground in the Memorandum of Appeal, counsel submitted that the District Land and Housing Tribunal erred in law and fact by failing properly to analyse and evaluate the evidence on record . Counsel argued that the evidence adduced by the Appellants carried greater probative value than that of the Respondent, whose evidence was materially contradictory. She further submitted that the Respondent failed to tender any documentary evidence demonstrating when the disputed land was transferred from Leonard Mwaifwani to the 2nd Appellant, yet such evidence was nonetheless accepted by the Tribunal. Conversely, the Tribunal disregarded the evidence of the 1st Appellant that she had been allocated the disputed land by the clan following the demise of her brother, solely on the ground that there was no written document evidencing such allocation. Counsel further argued that the District Land and Housing Tribunal lacked jurisdiction to entertain the dispute, the same being in the nature of a probate and inheritance matter. In support of that proposition, reliance was placed on the case of 6
Mgeni Seifu vs Mohamed Yahya Khalfani, Civil Application No . 1 of 2009, for the proposition that the dispute concerns inheritance rights. Counsel further submitted that the judgment of the trial Tribunal falls short of the established legal standards governing the delivery of judgments and does not meet the criteria enunciated in the case of Hamisi Rajabu Dibagula vs. The Republic, Criminal Appeal No. 53 of 2001. In respect of the third ground of appeal, namely grounds four and five of the Memorandum of Appeal, counsel contended that the District Land and Housing Tribunal erred in law by delivering judgment contrary to both substantive and procedural law. Counsel argued that the order for retrial was specifically confined to the payment of stamp duty; however, the trial Tribunal proceeded to join the 2nd, 3rd, and 4th Appellants as parties to the proceedings, contrary to the order issued on 23rd January 2025 in Land Appeal No. 8782 of 2024. In support of that contention, reliance was placed on the case of Karori Chogoro vs. Waitihache Merengo, Civil Appeal No. 164 of 2018, for the principle that court orders must be strictly observed and respected. Counsel further submitted that the parties so joined had not participated in the mediation proceedings before the Ward Tribunal. It 7
was therefore argued that section 13(4) of the Land Disputes Courts Act, Cap. 216 R.E. 2023 (the LDCA) had been violated. In support of that proposition, counsel referred the Court to the case of Mwanga Hakika Bank Limited & 2 Others v. Zacharia Roman Daudi, Land Appeal No. 26442 of the High Court of Tanzania, for the proposition that such matters ought first to be referred to the Ward Tribunal. Accordingly, counsel prayed for the appeal to be allowed. In reply to the first ground of appeal, the Respondent submitted that the trial Tribunal did not declare the Appellant to be the lawful owner of the disputed land solely based on the sale agreement, but rather upon consideration of the entirety of the evidence adduced by the Respondent and his witnesses, which evidence was found to be more credible, weighty, and cogent. In support of that contention, reliance was placed on the case of Attorney General & 2 Others vs Eligi Edward Massawe & Others, Civil Appeal No. 86 of 2002, for the proposition that a case ought to be decided in favour of the party whose evidence is stronger and more persuasive. The Respondent further submitted that, although the Appellants alleged that the sale agreement was forged, such allegation was based merely upon a bare denial of the signatures appearing thereon, 8
unsupported by any evidence or expert opinion establishing forgery. In support of that proposition, reliance was placed on the case of Thabitha Muhondwa v Mwango Ramadhani Maindo and Rehema Abdallah Mussa, Civil Appeal No. 29 of 2012. The Respondent further argued that the burden of proving the alleged forgery of the sale agreement had shifted to the Appellants, who had failed to discharge the same. In that regard, reference was made to the case of Leonard Dominic Rubuye t/a Rubuye Agrochemical Supplies v Yara Tanzania Limited, Civil Appeal No. 219 of 2018. The Respondent further submitted that no objection had been raised at trial regarding the admissibility of the sale agreement. It was contended that the Respondent had testified that the original copy of the sale agreement remained in the possession of the Appellants. The Respondent further argued that, under the law of evidence and the Land Disputes Courts Regulations, a copy of such a document was admissible in evidence. With regard to the complaint concerning stamp duty affixed to the sale agreement, the Respondent submitted that the issue ought properly to have been raised during the trial proceedings and not for the first time at the appellate stage. In support of that contention, reliance was placed 9
on the case of Makubi Dogani vs Ngodongo Maganga, Civil Appeal No. 78 of 2019 [2020] TZCA 177741. In reply to the second ground of appeal, the Respondent submitted that the trial Tribunal properly analysed and evaluated the entirety of the evidence adduced by both parties on record. It was further contended that the Appellants had failed to identify any material contradictions in the Respondent's evidence. The Respondent stated that the trial Tribunal went further to compare the oral testimony tendered by the Appellants with the contents of the Written Statement of Defence. In respect of the final ground of appeal, the Respondent submitted that the trial Tribunal did not act contrary to the order of the High Court dated 23rd January 2025. It was argued that the issue concerning the joinder of the 2nd, 3rd, and 4th Appellants arose following an application made by the Appellants' advocate, as reflected at page 3 of the typed proceedings. Counsel further submitted that those parties were joined as necessary parties to enable the Tribunal to reach a final and conclusive determination of the dispute. In support of that proposition, reliance was placed on the case of Juma B. Kadala vs Laurent Mkande (1983) TZHC 42, concerning the necessity of joining both the vendor and purchaser in proceedings of such nature. Accordingly, the Respondent 10
prayed for the appeal to be dismissed with cost s. The Appellants did not file any rejoinder submissions. Having carefully summarised the submissions advanced by both parties and upon perusal of the entire record of appeal, the sole issue falling for determination is whether the present appeal is meritorious. With regard to the second ground of appeal, the complaint advanced by the Appellants is that the trial Tribunal failed properly to analyse and evaluate the evidence adduced by the Appellants vis-a-vis the allegedly contradictory evidence tendered by the Respondent. The principle of law is well settled that a first appellate court is under a duty to reconsider and subject the whole of the evidence on record to fresh and exhaustive scrutiny, with a view to arriving at its own independent findings and conclusions. In discharging that duty, however, the appellate court must bear in mind that it neither saw nor heard the witnesses testify firsthand . See the case of Selle & Another vs. Associated Motor Boat Co. Ltd & Others (1968) EA 123, quoted in the case of Julius Peter Nkonya (as a legal representative of the estate of the late Canisius Ng'wandu) vs. Michael Peter Kudoja, Civil Appeal No.133/202 1. 11
In doing so, the court is to take into mind the principle in civil cases that the burden of proof lies on the party who alleges anything in his favour, as per sections 117 and 118 of the Tanzania Evidence Act, Cap 6, R.E 2023 (the TEA), provides as follows; "117- (1) Whoever desires any court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof li es on that person. 118 . The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side. , ✓ See the case of Anthony M. Masanga vs. Penina (Mama Mgesi) and Another (Civil Appeal No.118 of 2014) [2015] TZCA 556, East African Road Services Ltd vs. J. S. Davis & Co. Ltd [1965] EA 676, Habiba Ahmadi Nangulukuta & 2 Others vs . Hassan Ausi Mchopa 7 Another, Civil Appeal No.10/2020 CAT at Mwanza. Therefore, he who makes an allegation must prove it. In this case, it is for the applicant/respondent to make out a prima facie case against the appellants. It is the settled law in civil cases that, unlike in criminal trials, the burden of proof in civil cases is not static. A party with legal 12
burden also bears the evidential burden, and the standard of proof in each case is on a balance of probabilities, regardless of the weakness in the case of his opponent. It is an elementary principle of law that the burden of proof does not shift until the party initially responsible for it has met the obligation and, in fact, does not shift due to weakness in the opposite side's case. See the case of Ernest John Semiono {Administrator of Estate of Late Philip Florent Kizenga) vs Zakaria Mkari William (Land Appeal No. 13561 of 2025) [2025] TZHCLandD 1145 (28th November 2025), which quoted with approval the case of Lawrence Magesa t/a Jopen Pharmacy vs. Fatuma Omary and Another, Civil Appeal No.333 of 2019. Therefore, the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative is incapable of proof. In the present appeal, the evidence on record discloses that during the trial proceedings, the Respondent herein, appearing as SM 1, namely Mpoki Samuti Mwasanguti, testified that he purchased the disputed land from Japheti Leonard Mwaifwani, the son of Leonard Mwaifwani, for a consideration of TZS 2,000,000/= on 5th November 2017. He stated that the land measured approximately 43 by 55 feet. According to his testimony, the sale agreement was witnessed by the 1st Appellant, Juliana 13
Ifwani, the 4th Appellant, Abel Leonard Mwaifwani, together with Stella and Nkundwe. SM1 further testified that following the purchase, he took possession of the disputed land and utilised the same for the cultivation of cocoa, bananas, and oil palm trees. He further testified that on 8th August 2023, the 1st Appellant trespassed upon the disputed land, whereupon, on 9th August 2023, he reported the matter to the Police . It was his further evidence that on 12th August 2023, the 1st Appellant, Stella Ifwani, and Tulipo Ifwani visited him and sought forgiveness in relation to the said trespass. SM1 additionally testified that the original sale agreement remained in the possession of the 2nd Appellant, whilst he retained only a photocopy thereof, which was admitted in evidence as Exhibit P3. He disputed the Appellants' contention that they had acquired possession of the disputed land through inheritance. The evidence of the Respondent was corroborated by that of Odia Mpoki Mwakalinga (SM2), who testified that he witnessed the sale transaction relating to the disputed land and appended his signature to the sale agreement. Further corroboration was provided by Alisile Samuti Mwakalinga (SM3), who testified that she witnessed the Appellants 14
approaching the Respondent to seek forgiveness after trespassing upon the disputed land. In their defence, the Appellants, namely SU1 Juliana Patukuju Mwaifwani, SU2, SU3, and SU4, did not dispute the location of the disputed land, although they contested its dimensions, asserting that it measured 45 by 55 feet. They testified that the disputed land had lawfully belonged to the deceased Leonard Patukuju Mwaifwani and that, upon his demise in 2004, SU1 was appointed by the clan as caretaker of the property. It was their evidence that the lawful heirs of the deceased were his children, namely the 2nd, 3rd, and 4th Appellants (SU2, SU3, and SU4). The Appellants further testified that in the year 2023, SU1 was appointed administratrix of the estate of her deceased brother. Acting in that capacity, she distributed the estate of the deceased, including the disputed land, amongst the beneficiaries, namely SU2, SU3, and SU4. It was therefore their contention that the disputed land is lawfully owned by the 2nd, 3rd, and 4th Appellants. In his testimony, SU2, Japhet Leonard Mwaifwani, denied having sold the disputed land to the Respondent and further disputed the authenticity of the sale agreement marked as Exhibit P3 . Likewise, SU4 15
denied having participated in the sale transaction relating to the disputed land, whilst SUS, namely Nkundwe Patukuju Ifwani, similarly denied having participated in the execution of the said sale agreement. Having summarised the evidence adduced by both parties during the trial, and being guided by the applicable principles of law, it is my considered view that the evidence tendered by the Respondent carries greater weight and probative value than that of the Appellants. Through both oral and documentary evidence, the Respondent sufficiently established that he acquired ownership of the disputed land through purchase from the 2nd Appellant. In proof thereof; he tendered the sale agreement admitted as Exhibit P3. Furthermore, SM2, who witnessed the execution of the sale agreement, corroborated the Respondent's testimony by confirming that the Respondent purchased the disputed land from the 2nd Appellant. In the circumstances, and considering that the objections raised by the Appellants did not invalidate the said sale agreement, I am satisfied that the Respondent successfully discharged the burden of proving his claim on a balance of probabilities. On the other hand, the Appellants merely denied the allegations levelled against them. Their evidence was to the effect that the disputed 16
land devolved upon the 1st Appellant in her capacity as caretaker following a clan meeting convened after the death of Leonard Mwaifwani in 2004. However, the defence failed to disclose the identities of the clan members who allegedly attended such a meeting and appointed the 1st Appellant as caretaker of the disputed land. Moreover, no documentary evidence whatsoever was tendered in support of that assertion. In my considered view, this Court is inclined to accept the evidence adduced by the Respondent that the disputed land was sold by the 2nd Appellant in the year 2017. It is not in dispute that at the time the 2nd Appellant entered into the sale agreement, he had attained the age of majority and was legally competent to contract. Moreover, although the 2nd Appellant disputed having sold the disputed land to the Respondent, no cogent evidence was adduced in support of that denial. The sale agreement reflects the names of the individuals identified by the Respondent as witnesses to the transaction, namely Nkundwe Ifwan, Abel Leonard Mwaifwani, Juliana Ifwan, and Odia Mwakalinga. However, in their testimony, the Appellants failed to adduce sufficient and credible evidence disproving their participation as witnesses to the execution of the sale agreement. 17
It is a settled principle of law that the party whose evidence is more cogent, weighty, and credible ought to succeed. In the instant appeal, I am satisfied that the Respondent is the party whose evidence carries greater evidential weight. Furthermore, a careful perusal of pages 6 to 16 of the impugned judgment reveals that the learned Chairperson of the trial Tribunal properly analysed and evaluated the evidence adduced by both parties before arriving at the impugned decision. The Appellants further complained that the judgment of the trial Tribunal fell short of the recognised legal standards governing the delivery of judgments. In particular, it was contended that the judgment lacked clarity, coherence, systematic analysis, and sufficient reasons in support of the findings reached by the Tribunal. However, having carefully considered the applicable criteria for a valid judgment, together with a perusal of the impugned judgment itself, I am satisfied that the same substantially complies with the principles enunciated in Hamisi Rajabu Dibagula v The Republic (supra). Accordingly, that complaint is devoid of merit. The complaint that the trial Tribunal lacked jurisdiction on the ground that it was not a probate court competent to determine matters relating to the estate of a deceased person is, in my considered view, 18
devoid of merit. Equally, the authority of Mgeni Seifu v Mohamed Yahaya Khalfan (supra) is distinguishable and therefore inapplicable to the present appeal. In the instant matter, the dispute essentially concerns competing claims between the purchaser, the seller, and certain beneficiaries of the deceased's estate in relation to the disputed land. Contrary to the submissions advanced by learned counsel for the Appellants, the dispute does not principally concern inheritance rights requiring determination by a probate court. It is indeed settled law that issues relating strictly to inheritance and administration of estates fall within the jurisdiction of the probate court. However, the dispute before the trial Tribunal primarily concerned ownership arising from an alleged sale transaction. Accordingly, I find that the second ground of appeal lacks merit. Turning to the first ground of appeal, the complaint advanced is that the trial Tribunal erred in relying upon an allegedly forged sale agreement, being a photocopy document said to be inadmissible in law. It is not disputed that the sale agreement dated 5th November 2017, admitted as Exhibit P3 before the trial Tribunal, was indeed a photocopy. The record further reveals that the Respondent testified that the original copy of the sale agreement remained in the possession of the 2nd 19
Appellant. Although learned counsel for the Appellants objected to the admission of the said document, the objection was premised solely on the contention that the Respondent had failed sufficiently to explain the whereabouts of the original copy. No challenge was raised regarding the authenticity or genuineness of the document itself. The law is settled that secondary evidence may be admitted upon fulfilment of the conditions stipulated under section 73(1) of the TEA. One such condition arises where the original document is shown to be in the possession of the adverse party, as was asserted by the Respondent in the present case. In those circumstances, reliance upon a photocopy of the original document became necessary and legally permissible. Accordingly, the trial Tribunal properly exercised its discretion in admitting Exhibit P3 after being satisfied by the Respondent's explanation that the original copy remained in the possession of the 2nd Appellant, being the alleged vendor of the disputed land. Consequently, this complaint is equally without merit, and this Court finds no lawful basis upon which to interfere with the discretionary power exercised by the trial Tribunal in admitting the said document into evidence. With regard to the complaint that the sale agreement was forged, the law is well settled that he who alleges must prove. In the instant 20
appeal, the Respondent, being the party who instituted the suit before the trial Tribunal, bore the initial burden of proof. As already discussed under the second ground of appeal, the Respondent sufficiently proved his claim on a balance of probabilities. Consequently, the evidential burden shifted to the Appellants to substantiate their allegation that the sale agreement was forged. However, the record discloses that the Appellants failed to adduce either oral or documentary evidence in support of the alleged forgery. No expert evidence, handwriting analysis, or any other cogent material was tendered to establish that the signatures appearing on the impugned sale agreement were forged or otherwise fabricated. Furthermore, it is trite law that an allegation of forgery, being criminal in nature, even when raised in civil proceedings, must be proved to a standard higher than that ordinarily applicable in civil cases, though not as high as proof beyond reasonable doubt required in criminal proceedings. See the case of Omari Yusuph vs. Rahama Ahmed Abdulkadr [1987] TLR 169, it was said; "When the question whether someone has committed a crime is raised in civil proceedings that allegation need be established on a higher degree of probability than that which is required in ordinary civil cases. " 21
It is further apparent from the record of the trial Tribunal that the objection raised by learned counsel for the Appellants during trial was directed solely at the admissibility of the photocopy of the sale agreement, and not on any allegation of forgery. In the circumstances, the issue of forgery now being advanced constitutes a new ground which was neither specifically pleaded nor strictly proved by way of credible evidence before the trial Tribunal. It is a well-established principle that parties are bound by their pleadings and that no party should be allowed to depart therefrom at the appellate stage by introducing a new issue that was not canvassed at trial. See the case of City Coffee Ltd vs Registered Trustee of Ilolo Coffee Group (supra) at page 11 and 12 cited with the counsel for appellant referred the case of Musoke vs. Mayanja [1995-1998] 2 EA 205 the supreme Court of Uganda quoted the previous decision in the case of Okella vs. UNEB, Civil Appeal No.12 of 1987 it was held; ''It is well established that where the party relies on fraud, that fraud must be specifically pleaded and that particulars of fraud alleged must be stated on the face of pleadings. ✓, Accordingly, the allegation of criminal responsibility that the sale agreement was forged was not proved to the required standard. The evidence adduced by the Appellants fell short of establishing that the said 22
sale agreement was indeed forged. The authorities relied upon by learned counsel for the Appellants, namely Valentine Leopold Nadanu (supra) and Juma Tana (supra), are distinguishable from the present appeal. In the case of Valentine Leopold Nadanu (supra), the original document was available before the court and forensic expert evidence was tendered to establish that the signature thereon was forged, which is not the position in the instant matter. Accordingly, the complaint is devoid of merit. The Appellants further complained that the stamp duty affixed to the sale agreement was contrary to the provisions of the Stamp Duty Act, on the basis that the amount paid was less than that required having regard to the value of the property sold. It is not in dispute that there was an order for retrial specifically directing that stamp duty be affixed to the sale agreement. It is equally not in dispute that the Respondent complied with the said order and duly affixed stamp duty, and that the sale agreement was subsequently admitted in evidence as Exhibit P3 without any objection from the Appellants regarding stamp duty during the retrial proceedings. In the circumstances, the Appellants having failed to raise and pursue the issue at the appropriate stage before the trial Tribunal, cannot be permitted to raise the same for the first time on appeal. Such a 23
complaint amounts to an afterthought. See Makubi Dogani (supra), as cited by the Appellants at page 15 of the record. However, it is a settled position of law that the mere fact that stamp duty has not been fully paid, or is alleged to have been paid at an undervalue, does not, in itself, render a document inadmissible in evidence. In my considered view, where stamp duty has been affixed, albeit allegedly insufficient having regard to the value of the transaction, such irregularity does not go to the admissibility of the document but may, at most, raise issues of assessment or recovery of the proper duty by the relevant taxing authority. In this appeal, it is not disputed that stamp duty was affixed to the sale agreement. The complaint raised by the Appellants relates only to the alleged undervaluation of the duty paid. In those circumstances, such a complaint cannot render the document inadmissible, nor can it invalidate the evidential value of the sale agreement properly admitted as Exhibit P3. See the case of Fatuma S. Bassebe vs Jason Mutagulwa Rwiza (Civil Appeal No. 4 of 2021) [2024] TZCA 381 (22 May 2024) at page 22, quoted with approval the case of Elibariki Mboya vs. Amina Abeid [2000] TLR 122; It was stated that; 24
"In that case/ the High court had faulted the decision of the Resident Magistrate's court on the ground that it was based on the written contract which was not stamped in accordance with the Stamp duty Act On Appeal the court held that· Failure to stamp the contract of sale was an irregularity not affecting Jurisdiction of the court and was cured by section 73 of the Civil Procedure Code/1966. The respondent is ordered to pay the duty with which the instrument is chargeable/~ For the reasons advanced hereinabove, it is my considered view that the same principle is applicable to the present appeal, where the complaint raised is that the stamp duty affixed to the instrument was undervalued contrary to the requirements of the Stamp Duty Act. In the circumstances, I am inclined to hold that such complaint does not affect the admissibility or validity of the sale agreement already tendered and admitted as Exhibit P3. However, in the interest of compliance with the law, I hereby direct that the requisite stamp duty be assessed and paid by the Respondent at the rate at which the instrument is properly chargeable under the law. Accordingly, the complaint lacks merit. Turning to the third ground of appeal, the Appellants contend that the trial Tribunal delivered its judgment contrary to both substantive and procedural law. In particular, it is argued that the retrial order issued on 25
23rd January 2025 was confined to the dispute between Juliana Ifwani and Mpoki Mwakalinga, and that the trial Tribunal acted ultra vires by joining the 2nd, 3rd, and 4th Appellants in contravention of the said order. The law is explicit that, prior to the institution of proceedings before the District Land and Housing Tribunal, disputes must first be subjected to mediation before the Ward Tribunal, which must issue a certificate of failure to resolve the dispute. This requirement is provided under section 13(4) of the LDCA, which stipulates "Notwithstanding subsection (1), the District Land and Housing Tribunal shall not hear any proceedings affecting the title to or any interest in land unless the ward tribunal has certified that it has failed to settle the matter amicably. Provided that, where the ward tribunal fails to settle a land dispute within thirty days from the date the matter was instituted, the aggrieved party may proceed to institute the land dispute without the certificate from the ward tribunal.' However, in the present appeal, the issue of prior mediation before the Ward Tribunal is not in dispute. It is equally not in dispute that the Respondent was the party who instituted the suit against the 1st Appellant before the trial Tribunal. It is further undisputed that, at the appellate stage, the High Court issued an order for retrial. It is also on record that the said retrial order was duly complied with, and that the 2nd, 3rd, and 26
4th Appellants were subsequently joined pursuant to orders of the trial Tribunal dated 29th April, 2025 and 2nd September 2025. Notably, these procedural steps were not challenged by learned counsel for the Appellants at the time. In that regard, the complaint now raised that the joined parties ought to have first undergone mediation before the Ward Tribunal is, in my considered view, an afterthought. It is important to emphasise that section 13(4) of the LDCA does not expressly provide that all parties subsequently joined in the proceedings must be referred back to the Ward Tribunal for mediation before the District Land and Housing Tribunal can proceed to hear and determine the matter. The law must be applied in a manner that is consistent with justice and the circumstances of each particular case. In the present appeal, considering that the 2nd, 3rd, and 4th Appellants were joined as necessary parties for the effective and final determination of the dispute, it would, in my view, be unnecessary and impractical to remit the matter back to the Ward Tribunal for mediation afresh. This position finds support in the decision of Gabriel Mathias Michael & Another v Halima Feruzi & Others, Civil Appeal No. 28 of 27
2020 [2023] TZCA 17484 (10 August 2023, TanzLII), where it was held that: " .. we are of the view that no injustice was occasioned when mediation was conducted after the death of the second respondent and before her legal representative was made a party to the case. This is because the mediation did not succeed and thus no any rights of the parties were affected~ For that reason, I am of the considered view that the case of Mwanga Hakika Bank Limited & 2 Others (supra), as well as section 13(4) of the LDCA, are not applicable to the circumstances of the present appeal. Accordingly, the third ground of appeal lacks merit. I therefore find myself in agreement with the submissions advanced by learned counsel for the Respondent on this issue. The appeal is dismissed with an order for costs. It is accordingly ordered. DATED and delivered at MBEYA this 04 th day of June 2026 JUDGE Right of appeal explained. JUDGE