Jumanne Ally Mgwai ( Administrator of the Estate of Late Ally Mgwai Mwaya) vs Seif Swalehe (Land Appeal No. 000024947 of 2025) [2025] TZHC 8781 (19 December 2025)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT DODOMA LAND APPEAL NO. 000024947 OF 2025 JUMANNE ALLY MGWAI (ADMINISTRATE OF THE ESTATE OF THE LATE ALLY MGWAI MWAYA) ............................. COMPLAINANT / APPELLANT / APPLICANT I PLAINTIFF VERSUS SEIF SWALEHE ............................. RESPONDENT / DEFENDANT JUDGMENT MWIPOPO, J Date of the Last Order: 12.12.2025 Date of the Judgment: 19.12.2025 Jumanne Ally Mgwai (Administrator of the estate of late Ally Mgwai Mwaya), the appellant herein, filed Application No. 11 of 2024 before the District Land and Housing Tribunal for Singida at Singida (DLHT) against Seif Swalehe, the respondent, for trespassing and staying in the suit premises owned by his late Ally Mgwai, located at Mfumbu Hamlet, Puma village, and Puma Ward within Ikungi District. The appellant prayed that the tribunal declare that the late Ally Mgwai Mwaya was the lawful owner of the suit premises, that the respondent is a trespasser on the suit premises, for the costs of the suit, and for any other just order. The respondent opposed the application by way of a written statement of

defence. In his statement of defence, the respondent deposed that he bought the suit land with an unfinished house in 2012 from Hamisi Ally Mghwai. During the sale, Seif Swalehe was the agent of Hamisi Ally Mghwai. After the sale, he renovated the unfinished house and began residing therein without interruption until 2023, when he received a complaint from the appellant. The respondent prayed for the application be dismissed with costs. The trial tribunal heard the parties’ evidence and, in its decision, found that the applicant (appellant herein) failed to prove his case on the required standard and declared the respondent to be the lawful owner of the suit house. Aggrieved by the DLHT’s decision, the appellant filed the instant appeal containing five (5) grounds as follows:

1. The trial chairman of the District Land and Housing Tribunal erred in law and fact in deciding in favour of the respondent, who failed to prove that the late Hamis Ally owned the suit land and had the legal capacity to dispose of it as the real owner.
2. The trial chairman of the District Land and Housing Tribunal erred in law and fact in relying on SU2 and SU3 evidence, when in fact neither established concrete evidence to disprove that the late Ally Mgwai Mwaya did not own the suit land.
3. The trial chairman of the District Land and Housing Tribunal erred in law and fact in disregarding the Applicant's evidence, which proved to be of more weight compared with the evidence adduced by the respondent.
4. The trial Chairman of the District Land and Housing Tribunal erred in law and fact for failure to consider that the nature of the suit was to recover the property entrusted to SU2,
5. Procedural irregularities marred the decision of the trial District Land and Housing Tribunal. Thus, it arrives at an erroneous conclusion. On the hearing date, Advocate David Deogratius appeared for the appellant, whereas the respondent appeared in person, unrepresented. The parties were invited to submit orally on

the grounds of appeal. Mr David Deogratius consolidated the first and second grounds of appeal and submitted on the remaining ground separately. He said on the first and second grounds of appeal that it is trite law that the person with legal title has the right to transfer the title to another person. The testimonies of SM1, SM2, and SM3 show that the respondent bought the unfinished house from Richard Kidamuli on behalf of the late Hamisi Ally. Nothing was tendered in the trial tribunal as evidence to prove that Hamis Ally authorised Richard Kidamuli to sell the suit land on his behalf. The seller was not a proper person to sell the suit land. To back up his position, he cited the case of Abdallah llunde vs Msunga Mtunda and Others, Misc Civil Appeal No. 38 of 2019, the High Court at Dodoma (unreported). The late Ally Mgwai Mwaya is the father of Hamisi Ally and Jumanne Ally Mgwai. In the appellant’s testimony, the appellant stated that the suit land is owned by their late father, who acquired it by clearing the land. The respondent failed to prove that the suit land is not the property of the late Ally Mgwai Mwaya. Regarding the third ground of appeal, the appellant’s counsel submitted that the appellant’s evidence was heavier compared to the respondent’s. The appellant established that the late Ally Mgwai owned the suit land, which was not distributed to his heirs. The suit land was sold to the respondent while Ally Mgwai was in Dar Es Salaam without the consent of relatives. SM2 testified that the sale agreement was executed on 28/12/2012, while the respondent testified that the house in dispute was sold on 28/11/2012. The money for purchasing the suit land was paid to Amina Athumani, the wife of Hamisi Ally Mgwai, while she was not present during the execution of the sale agreement. In the suit land, there are' four cemeteries, including Ally Mgwai cemetery. To buttress his argument, he cited the case of Leonard Dominick Luguye T/A Luguye Agrochemicals Supplies vs Yara Tanzania Ltd, Civil Appeal No. 2019 of 2018, Court of Appeal of Tanzania at Dar es Salaam.

The counsel’s submission on the fourth ground of appeal was that the suit land was left under the care of Richard Kidamuli, and the appellant took some effort to recover the suit land from the respondent. In Sada Othman vs Prema Salaha Lalji and 10 Others, Civil Appeal No. 208 of 2019, Court of Appeal at Dar es Salaam, delivered on 03/11/2023 at page 16, it was held that section 18 (1) of the Law of Limitation Act recognises the limit for recovery of land. The appellant's counsel said on the last ground of appeal that the proceedings of the trial tribunal were tainted with procedural irregularity. He pointed out that the procedure for admitting exhibits, as seen on page 18, was not followed. The respondents tendered a copy of the documentary evidence on the condition that the original would be produced later, but the respondent did not do so. Furthermore, the said exhibit was not read out upon admission. He prayed that the exhibit be expunged from the record. In reply, the respondent submitted that it was the duty of the appellant to prove the case by showing how he obtained the title. He maintained that Richard was given the mandate to find a buyer for the suit land on behalf of the owner of the suit land, and the sale agreement of the suit land was executed and witnessed before the Puma village office, and the village chairman, namely Hamis Ally Mgwai, who also signed the sale agreement. He concluded that Hamis Ally Mgwai was the owner of the suit land and signed the sale agreement, receiving payment. In response'to the second ground of appeal, the respondent submitted that the trial DLHT relied on all the evidence adduced, including that from Richard Kidamuli and Mohamed Sombi, in deciding the matter. Regarding the third ground, the respondent submitted that his evidence was sufficient to prove that he is the bona fide purchaser of the suit land. He said on the fourth ground of

appeal that it is apparently on record that the appellant sued the respondent, not Richard Kidamuli. The time limitation issue lacks merit, as the dispute concerns ownership of the suit land. The respondent’s counsel’s response to the last ground of appeal was that the trial DLHT followed the procedure for the admission of exhibits. He tendered a copy of the sale agreement because the original was not found, and he followed all procedures. He prayed that the appeal be dismissed with costs. Rejoining, the appellant's counsel reaffirmed his submission in chief and emphasised that the respondent did not follow the procedure for tendering a copy of a document. Having considered the parties’ submissions and the record of appeal, the issue for determination before this Court is whether the appeal is meritorious. 1will determine the first, second, third and fourth grounds of appeal together, as all grounds are interrelated and centred on the analysis and evaluation of the evidence adduced at trial DLHT. The appellant faulted the trial DLHT for delivering judgment in favour of the respondent, even though the seller of the suit land was not the legal owner of the disputed land. In contention, the respondent stated that Hamisi Ally Mgwai was the lawful owner of the suit land. Richard was given the mandate to find a buyer for the suit land on behalf of Hamisi Ally Mgwai, and he sold the land to the respondent. The sale agreement was executed in the presence of witnesses, including the Puma Village Chairman, and Hamisi Ally Mgwai signed it. As rightly submitted by appellant counsel, it is the legal principle that no one can give what they do not have (Nemo dat quod non habet). See. Melchiades John Mwenda vs Giselle Mbaga (Administratrix of the estate of the late John Japhet Mbaga) and 2 Others [2020] 1 T.L.R 476. In Furaha Mohamed vs Fatuma Abdailah (1992) TLR 205, the Court

held that: “He who does not have legal title to the land cannot pass a good title over the same land to another.” The basic rule of evidence under section 117 of the Evidence Act is that he who alleges has the burden of proof. The standard of evidence in a civil case is on a preponderance of probabilities. The burden of proof does not transfer to the adverse party until the party on whom the onus is placed has discharged his burden, and the burden of proof is not reduced because of the shortage of the adverse party’s case. The Court will accept evidence 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]. Since it was the applicant who claimed in the application that the suit land belongs to the late Ally Mgwai Mwaya and that the respondent trespassed on the suit premises, it was his duty to prove his claim as deposed in the application before the burden shifted to the respondent. The evidence of the appellant (SM1) revealed that he is the administrator of the late Ally Mgwai Mwaya, his father. The letter of appointment of the appellant as the administrator of the deceased estate shows that the deceased died on 08/07/1992, and the appellant was appointed as administrator on 12/12/2023. The appellant said the suit premises are owned by the late Ally Mgwai Mwaya, who acquired them in 1958 by clearing the virgin land and building a house. In 2008 and 2009, they demolished the house and constructed a new home under the supervision of Richard Kidamui. He handed 25 iron sheets to Richard Kidamuli. In 2009, Richard Kidamui handed over the entire house to the appellant under his supervision. In 2022, he found the respondent residing in the suit premises. When he asked him, the respondent said he bought the suit premises from Richard Kidamui, who was instructed through a phone call by Hamisi Ally, who is the Page. 6

appellant’s young brother, to sell the suit premises. The appellant called Shabani Chima (SM2) and Ramadhani Yusuph Kidamuli (SM3) as his witnesses. SM2 testified that he has known the suit land since 1979 when he moved to Puma Village. The late Ally Mgwai had six children. The late Ally Mgwai acquired the suit land by clearing it a long time ago. The suit land had cemeteries of the Ally Mgwai family. The Mgwai family built the house. The first house was demolished to allow the passing of electric poles. The appellant and Hamisi handed him 35 iron sheets. He doesn’t know if the family agreed to sell the suit premises. The house was given to Rashid or Shadrack for supervision. The respondent bought the suit land in 2003 from Teacher Mohamed. His name is in the sale agreement, but he did not complain. SM3 testified that when he was born in 1958, he found Ally Mgwai owning the suit land. He left the village in 1974. Richard Kidamuli is the relative of the family Ally Kidamuli. Richard does not own the suit premises. Richard sold the house while Ally was in town. The whole family was not involved in the sale. The appellant’s evidence contradicts that of SM2 on the appellant’s claim that he handed over supervision of the house construction to Richard Kidamui, and it is Richard Kidamui (SU2) who sold the suit land to the respondent. SM2 said that the appellant handed the suit land to Rashid or Shadrack, and the house was sold by Teacher Mohamed, which contravened the appellant’s testimony, who said he gave the house in the supervision of Richard Kidamui, who sold the suit premises. The appellant’s and his witnesses’ testimonies did not reveal what transpired during the life of the late Ally Mgwai Mwaya and after his death. The evidence of SM2 was contrary to what was pleaded by the appellant in paragraph 6 (a) (iii) and (iv) of the application and appellant’s testimony that he was returning to the village casually, and it was in 2022 when he discovered that SM2 sold the suit land to the respondent. Page. 7

The appellant claimed in paragraph 6 (a) (ii) of the application that the house in the suit land was built by the late Ally Mgwai Mwaya in 1958, and in 2008/9 the family renovated it. However, his evidence failed to prove that the house in the suit land was constructed in 1958 by the late Ally Mgwai Mwaya and was renovated in 2008/9. The appellant himself testified that the house built by the late Ally Mgwai Mwaya in 1958 was demolished in 2008/9, and that he built another home on the suit land under the supervision of SU2. In 2009, SU handed him a complete house, and he asked him to supervise it. The appellant’s evidence was contrary to his pleadings. On the other hand, the evidence adduced by the respondent (SU1) in the trial DLHT demonstrated that in 2009, Richard Mohamed Kidamui (SU2) informed him that Hamis Ally Mgwai, who resides in Dar Es Salaam, had asked him to find the buyer of the suit land with an incomplete house. He bought the land from Hamis Ally Mgwai on 28/11/2012, and Richard Kidamuli was the seller’s agent. He was satisfied that Hamisi Ally is the owner of the suit land because he was the one constructing the house on it. The village authority was also satisfied that Hamisi Ally is the owner of the suit land. The respondent tendered a copy of the sale agreement (Exhibit D1). He surveyed the area, and cemeteries were not part of the suit land. He completed the unfinished house by installing windows, doors, a toilet, a kitchen, and electricity and water. Richard and Rajabu Kidamuli signed the sale agreement. The respondent called Richard Mogamed Kidamui (SU2) and Mohamed Sombi llanda (SU3) as his witnesses. SU2 testified that in 2009, Hamis Ally asked him to supervise the construction of the house on the suit land. He started building and roofing the house that same year. The house remained without windows and doors for three years. In 2012, Hamisi Ally asked him to find him a buyer for the suit land. The respondent was ready to purchase the land and entered into a sale agreement with Hamisi Ally. The respondent bought the suit land for TZS 3,350,000/=. Hamisi Ally came to the village to take his money.

Hamisi Ally died in 2023, and the appellant initiated the case. After Ally Mgwai died in 1992, no one was appointed as his estate’s administrator. SM2 told him that the ironsheet was purchased by Hamisi Ally. Hamisi Ally signed the contract later, when he came to collect his money. The cemeteries were outside the boundaries of the suit land. No one among Hamisi Ally’s relatives resides in the area. SU4 testified that Ally Mgwai was given four plots by the village council. The appellant sold three plots, leaving one for Hamisi Ally, who built a house thereon before selling it to the respondent. Male children of Ally Mgwai were the appellant and Hamisi Ally. From the above evidence, the respondent proved that he bought the land from Hamisi Ally. SU2, whom the appellant claimed to be the supervisor and caretaker of the house, testified that Hamisi Ally owned the land. Also, the evidence of SU3 revealed that Hamisi Ally owned the land. SU3 testified that the village council allocated four plots to the family of the late Ally Mgwai Mwaya. The appellant sold three plots, and the remaining plot was owned by Hamisi Ally, who was constructing a house on it. It was Hamisi Ally who was using the suit land until he sold it to the respondent. Moreover, the appellant failed to establish that their late father continued to own the suit land even after his demise in 1992. The evidence as to who owned the suit land can be derived from SM3’s testimony that, after the deceased’s demise, the appellant sold three of the four plots allocated to the deceased’s family, leaving one plot in the hands of Hamisi Ally. SU3’s evidence demonstrated that the appellant and Hamisi Ally divided the four plots allocated by the village council in 2002 to the family of the late Ally Mgwai Mwaya. The fact that it was upon the death of Hamisi Ally in 2023 that the appellant sought an appointment as the administrator of the estate of Ally Mgwai Mwaya, who died in 1992, for the purpose of dividing it, cements the assertion that the appellant and Hamisi Ally divided the four plots. It is evident that by the time the appellant was appointed the administrator of the estate of his

late father, the suit land was property of Hamisi Ally. I find that Hamisi Ally was the lawful owner of the suit land. Hence, he had a title to pass the suit land to another person through sale. I agree with the trial tribunal that the respondent’s evidence has more weight than the appellant’s. The grounds are devoid of merit. The appellant claimed in the fifth ground of appeal that the trial DLHT failed to follow the procedure for the admissibility of exhibits. The appellant’s counsel submitted that the respondent tendered a copy of the documentary evidence (Exhibit D1) on the condition that the original document be produced, which the respondent did not submit to the trial tribunal. The tendering of Exhibit D1 was contrary to the procedure for tendering a secondary document. Also, Exhibit D1 was not read out to the parties upon admission. In response, the respondent contended that the procedures for tendering exhibits were adhered to by the trial tribunal. The respondent tendered a copy of Exhibit P2 as the original document was not found. The procedure of tendering secondary evidence, including a copy, is provided under sections 73 and 74 of the Evidence Act, Cap. 06 R.E. 2023. Under the cited sections, the party intending to rely on a copy of the document has two options before tendering it. The first option is to serve the party in possession of the document with a notice to produce the document in Court. The second option is to request that the court issue a summons to the party in possession of the document, requiring them to appear in Court and testify. In Oliva James Sadatally vs Stanbic Bank Tanzania Limited, Civil No. 84 of 2019, Court of Appeal of Tanzania at Dar Es Salaam (unreported), the Court held that before relying on the copies the parties producing it had two options of either serving the party in possession of the document with a notice to create the document in Court, or requesting the Court to issue a summons to the party in possession of the document to appear in Court and testify.

In the present case, it was displayed in the proceedings of 14/11/2024 that the respondent tendered a copy of the sale agreement, promising to bring the original copy later. Unfortunately, the original copy was never submitted by the respondent. It is evident that the procedure for tendering a copy, as provided by sections 73 and 74 of the Evidence Act and case laws, was not followed. The remedy for the omission is to expunge Exhibit D1 from the record, and I expunge Exhibit D1 from the record of the trial tribunal. However, even after expunging Exhibit D1 from the record, the remaining evidence is sufficient to prove that Hamisi Ally owned the suit land. There are oral testimonies from SU1, SU2, and SU3 that prove that Hamisi Ally, the owner of the suit land, sold the suit land with an unfinished house to the respondent. The respondent’s evidence still had more weight than the appellant’s. Therefore, I find the appeal lacks merit and dismiss it. Considering the circumstances of the case, each party shall bear its own costs of the appeal. It is so ordered accordingly. Dated at DODOMA this 19th of December 2025 . JUDGE OF THE HIGH COURT Page. 11