Daati Goti vs Paskalina Marmo (Land Appeal No. 15642 of 2025) [2025] TZHC 8854 (19 December 2025)

IN THE HIGH OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 15642 OF 2025 (Originating from Land Application No. 3 of 202 5 in the District Land and Housing Tribunal of Babati at Babati DAATI GOTI ………………………………………………………. APPELLANT VERSUS PASKALINA MARMO …………………………..…………………… RESPONDENT JUDGMENT 7 th Oct & 19 th Dec 2025 MWIHAMBI, J. This appeal traces its origin from the decision of the District Land and Housing Tribunal of Babati at Babati (trial tribunal) in Land Application No. 3 of 2025. The responde nt , Paskalina Marmo , had instituted a land application in the trial tribunal against the appellant , Daati Goti , s eeking for, among other things, an order declaring h er a lawful owner of land measuring ½ acres located at Endaw Village, Qamey Ward within Babati District, Manyara Region (suit land). In the trial tribunal, i t was the respondent ’s claim that she owns the suit land from 2000 when she was given the same by her father - in - law as a gift and she has been using the same up to 2021 when the dispute arose. That the appellant , who is her neighbor , invaded the suit land and planted katani claiming that she bought the same from one Deodatus Joseph while it is not true. That the respondent had taken the matter to Qameyu Ward Tribunal where mediation failed . Then the appellant instituted the matter at the D istrict L and and H ousing T ribunal of B abati at B abati which quashed all proceedings from Qameyu Ward Tribunal and ordered the matter to start afresh. Despite the order, the appellant continued to use the suit land hence depriving the respondent right to use the farm. Therefore, the respondent went to the trial tribunal as mentioned hereinabove. In her WSD at the trial tribunal, the appellant denied the claims and averred that she is a lawful owner of the suit land from May, 1999 as part of her inheritance from her father; Mzee Goti. That Mzee Goti; the respondent’s father - in - law and the appellant’s father, died on 7 th December, 1999 so the claim that he gave the suit land to the respondent in 2000 is not true. The while the appellant received the suit land as inheritance, her mother (respondent’s mother - in - law ) was alive and the respondent did not raise any claim on the suit land. After a full trial, the trial tribunal found that the respondent managed to prove her case hence decided in her favou r . This a ggrieved the appellant hence this appeal which is composed of four appeal grounds as follows: 1. That, the trial tribunal erred in law and fact by delivering the decision in favour of the Respondent while the respondent’s pleadings are differ with her testimonies and her witnesses’ evidence is contradictory and inconsistence hence reached into wrong v erdict. 2. That, the trial tribunal erred in law and fact by delivering the decision in favour of the Respondent while trial tribunal failed to regard and to consider the Appellant Exhibit D - 1 to prove the date and year of death of her father late GOTI AMNAAY in rela tion to proves handover and ownership of suit land hence reached into wrong decision. 3. That, the trial tribunal erred in law and fact for failure to analyze and evaluate properly the evidence adduced by the parties during the hearing especially the Appellant witnesses who managed to prove their case on a balance of probability while responde nts failed to do so hence reached into vague and unfair decision. 4. That, the trial tribunal Chairman erred in law and fact by delivering the decision in favour of the Respondent whereby the Appellant herein used the disputed land since 1999 until 2024 more than 25 years without any dispute or disturbance to anyone but tribunal failed to regarding time contrary to the law. At the hearing of the appeal, the appellant was represented by learned advocate Mr. Simon Hilonga while the respondent was unrepresented. Mr. Hilonga decided to consolidate the second and third grounds after submitting for the first ground, then submit for the last ground as it is. Submitting on the first appeal ground, appeal , the learned advocate argued that in pleadings of the trial tribunal the respondent said that she was given the suit land by her father - in - law in 1991 as part of inheritance and distribution. But before the trial tribunal testifying as PW1 she adduced that she was given the suit land by her father - in - law in 2002. In cross examination by advocate of the appellant she clarified that she was given the suit land in 2002. That h er witness; PW2 said the respondent was given the suit land in 2002. Th at what is provided for in pleadings forms the basis of the case so she was supposed to stand on that because parties are bound by their pleadings. He argued that c ontradiction and inconsistency which go to the root of the matter render the witness unreliable and such evidence can not safely be believed . To buttress his argument, Mr. Hilonga referred this Court to the case of Ali Suleiman v. Republic [2004] TLR 31 . He therefore prayed for the first ground to be allowed. On the consolidated second and third grounds, Mr. Hilonga submitted that the appellant was given the suit land by father in 1991 after divorcing her husband and going back to her parents. She was given it for purpose of taking care of her parents who were very old with no one to take care of them. So, she was given the suit land as gift for caring for them. That in the trial tribunal the appellant submitted Exhibit 1 which shows Goti who is father of the appellant died on 7 th December 1999 but the respondent said she was given the suit land in 2002 while by then the said Goti was already dead. He argued that the appellant proved the case on standard required by law but the respondent failed to do so . He cited the case of Paulina Samson Ndawavya v. Theresia Thomas Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 which held that it is trite law that the burden of prove never shift to the adverse part until the part on whom the onus lies is discharged and that the burden of prove is not diluted on account of weakness of the opposite part of the case . He concluded by praying for these consolidated grounds to be allowed. On the fourth and last ground, the learned advocate submitted that the appellant was given the suit land in 1991 and even after death of her father in 1999 she continued to use the farm with no dispute from anyone till 2024 when the respondent started disturbing her. He argued that through Schedule One of the Law of Limitation Act [Cap. 89 R.E. 2023] column 1 item 22 , recovery of the suit land is 12 years, therefore the appellant is the one using the suit land and has had no disturbance till the dispute was raised by the respondent. He prayed for this ground to be allowed. The learned advocated summed up by a prayer for this Court to allow the appeal, quash proceedings and decision of the trial tribunal , declare the appellant a lawful owner of the suit land, cost be borne by the respondent and other reliefs that this Court may deem fit. The respondents’ reply was general. She submitted that her witness was mistaken. That she (respondent) said 1991 and insisted that that is the year that she was given the suit land. She submitted that the appellant was given 2 acres behind the house and 6 cows . While she was given only half an acre in front of the house. That they were both given the land in 1991. That by the time Mzee Goti and his wife died (1999 and 2015 respectively) there was no dispute. The respondent further submitted that in 2001 the appellant took Hamlet Chairman and put katani and told her that she has no right; “ I am just mtukuja ” (a daughter in law). That a t the Ward Tribunal they said the appellant should take the 2 acres and for her to take the half an acre , and this was also said by the trial tribunal , however the appellant insisted that “ mimi ni mtukuja ”. She emphasized that the appellant says she does not have right while she is a daughter in law who came for marriage. The respondent summed up by submitting that she wants the appellant to have her own 2 acres and let her remain with her half an acre. That this is also because the appellant had a farm measuring 3 and half acres from her husband but she sold it. In a brief rejoinder, the learned advocate submitted that it is not true that the respondent owns only half an acre; she owns more than 5 acres near her house but she wants join with the appellant’s land. That the respondent 5 acres she got from her husband as part of the distribution. After going through these rivals’ submission s , the issue is whether the appeal has merit. In determining this appeal, I will be guided by the fact that this is the first appellate court hence duty bound to re - evaluate the adduced evidence. (See the case of Hassan Mfaume v. R. [1981] TLR 167, among many others.) I will also be guided by sections 117 and 118 of the Evidence Act [Cap. 6 R.E. 2023] which provide that: “117. – (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. 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.” These provisions by then read as section 110 (1) and (2) and section 111 in the Evidence Act, [ Cap . 6 R.E . 2019 ] have been applied and elaborated in a number of cases; in M artin F redrick R ajab v. I lemela M unicipal C ouncil and S ynergy T anzania C ompany L imited ( Civil Appeal No. 197 of 2019 ) [2022] TZCA 434 , the Court of Appeal stated that a party who alleges anything in his/her favour also bears the evidential burden and the standard of proof is on the balance of probabilities which means that, the Court will sustain and uphold such evidence which is more credible compared to the other on a particular fact to be proved. The Court of Appeal referred other cases; Antony M. Masanga vs. Penina (Mama Mgesi) and Lucia (Mama Anna) ( Civil Appeal No. 118 of 2014 ) [2015] TZCA 556 , G odfrey S ayi v . A nna S iame ( as legal representative of L ate M ary M ndolwa ) (Civil Appeal No. 114 of 2012) [2017] TZCA 970 and Hamza Byarushengo v. Fulgencia Manya & Others (Civil Appeal No. 246 of 2018) [2022] TZCA 207 in which it dealt at considerable length on what constitutes proof on the balance of probabilities and duty of the plaintiff to discharge the same before the burden shifts on the defence side . In addition, Lord Hoffman in Re B [2008] UKHL 35 (cited in Anthony M. Masanga (supra) defining the term balance of probabilities, stated that: "If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of O is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened." In the case at hand, it is the respondent who , in the trial tribunal, alleged to be a lawful owner of the suit land . I will therefore re - evaluate the adduced evidence to determine as to whether the respondent discharge d the burden of proof in the standard provided by law or not. The respondent’s main claim in the trial tribunal was that she owns the suit land from 2000 when she was given the same by her father - in - law as a gift and she has been using the same up to 2021 when the dispute arose. In the trial tribunal the respondent testified as PW1. Among other things, she adduced that she was given the suit land by her father - in - law in 1991. Th at in the suit land there is a grave of her niece and her brother. That the appellant had a land measuring 3 ¼ acres but she sold it. In cross examination by learned advocate Hilonga she repeated that she was given the suit land in 1991. That her father - in - law gave her the suit land because her husband has a younger wife ( mke mdogo ). PW2 Patrice Domician corroborated the evidence of PW1. On the other hand, the appellant, testifying as DW1, adduced that she was given the suit land by her father in 199 9 after she was divorced and went back to live with and take care of her parents. That her father gave her the suit land as a gift for taking care of him. That her mother died in 2015 and the dispute started in 2021 . While cross examined by the respondent, DW1 refuted the claims that there are graves in the suit land. She clarified that the graves are beside the suit land and not inside. This evidence was corroborated by DW2 Aweda Nanigi and DW3 Adelina Martini . In cross examination and responding to the assessors, DW2 adduced that the respondent has her own farm approximately 3 acres and a place in the in - laws’ compound. It is an obvious fact that t he evidence adduced at the trial tribunal by the respondent and her witness differ with what the respondents’ pleadings. In her written application the respondent in item 6 (a) stated: “(i) Kwamba , mgogoro katika shauri hili unahusu mgogoro wa shamba lenye ukubwa wa eka ½ ambayo ni mali ya Mleta maombi ambaye anamiliki shamba hilo tangu mwaka 2000 baada ya kupewa na Baba Mkwe wake ( kurithishwa ) … (ii) Kwamba , mnamo mwaka 2000 Mleta maombi alikabidhiwa shamba lenye mgogoro kutoka kwa Baba mkwe wake kama zawadi …” (emphasis supplied) “ Slip of a tongue and a pen” is normal in oral and written communication. However, in the judgment of any reasonable person, writing and uttering something three times in the way the respondent did in her written application (2000) and oral submission in the trial tribunal and before this Court (1991) is not a slip of a tongue /pen . I t is trite law that parties are bound by their pleadings . T his was stated in the case of David Sironga v. Francis Arap Muge & 2 Others [2014] Eklr, in which the Court of Appeal of Kenya emphasized that: "It is well established in our jurisdiction that the court will not grant a remedy, which has not been applied for, and that it will not determine issues, which the parties have not pleaded. In an adversarial system such as ours, parties to litigation are the ones who set the agenda, and subject to rules of pleadings, each party is left to formulate its own case in its own way. And it is for the purpose of certainty and finality that each party is bound by its own pleadings. For this reason, a party cannot be allowed to raise a different case from that which it has pleaded without due amendment being made. That way, none of the parties is taken by surprise at the trial as each knows the other's case is as pleaded. The purpose of the rules of pleading is also to ensure tha t parties define succinctly the issues so as to guide the testimony required on either side with a view to expedite the litigation through diminution of delay and expense." Furthermore, in the case of Makori Wassaga v. Joshua Mwaikambo & Another [1987] T.L.R 88, the Court of Appeal stated that: "A party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence; hence he is not allowed to set up a new case.” The effect of a party going contrary to his pleadings is that the new issues, facts or evidence he has raised thereof cannot be considered or determined by the court unless the party amends the pleadings. The Court of Appeal in the case of James Funke Gwagilo v. Attorney General (Civil Appeal No. 67 of 2001) [2001] TZCA 63 upholding the decision of Kyando, J. held that: “In his judgment, Kyando , J. considered the departure from the pleadings and refused to consider the new grounds stated thus: What do the rules of pleading say in relation to the situation revealed here? The general rule is that, a party is bound by his pleadings and should not be allowed to succeed on a case not made out in his pleadings… In HEMCHAND v. BEAREYLAL, A. 1942 P. C. 64, an Indian case, the Privy Council characterized as irregular the procedure of the trial court in allowing evidence to be adduced on points not raised in the pleadings or issues and held that this should not have been allowed without amendment of the pl eadings and issues.” It is also trite law that a person with heavier evidence than his/her adversary must win the case. This stance of the law was stated in the case of Hemedi Saidi v. Mohamedi Mbilu [1984] TLR 113. I find the appellant’s evidence consistent , credible and heavier as compared to the respondent. I also agree with the appellant that the trial t ribunal did not properly evaluate the evidence before it. Had it done so, it could have realized the respondent’s departure from her application and could not have reached the conclusion and decision that it did. I therefore allow the appeal in its entirety, with costs. I quash and set aside decision and decree of the trial t ribunal. I also declare the appellant as a lawful owner of the suit land . It is so ordered. DATED at BABATI this 19 th day of December , 2025. N. J. MWIHAMBI JUDGE Right of appeal explained to the parties. COURT: Judgment delivered today in presence of Mr. Simon Hilonga advocate of the appellant and the respondent. B/C: Ms. Anna Mathayo (RMA) is present. N. J. MWIHAMBI JUDGE