Philbert Mahenda and Another vs Y.P. Investment Co. Ltd (Land Appeal No. 72 of 2019) [2025] TZHC 8499 (19 December 2025)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 72 OF 2019 PHILBERT MAHENDA …………………………………………… … . ….. 1 ST APPELLANT FAUSTIN MASEBU ……………………………………………… … … . … 2 ND APPELLANT VERSUS Y.P. INVESTMENT CO. LTD … … … … …………………………………… RESPONDENT RULING 5/12/2025 & 19/12/2025 ROBERT, J: This appeal has had a protracted procedural history. The Appellants, being dissatisfied with the decision of the District Land and Housing Tribunal for Mwanza in Land Application No. 77 of 2015, preferred an appeal to this Court, registered as Land Appeal No. 72 of 2019. Upon hearing the appeal, th is Court allowed it with costs. Aggrieved by that decision, the Respondent preferred a further appeal to the Court of Appeal of Tanzania vide Civil Appeal No. 231 of 2024. After hearing the parties, the Court of Appeal invoked its revisional powers, nullified the proceedings and judgment of this Court, and remitted the record back to the High Court with a specific directive that the parties be properly heard on all contentious matters arising in the appeal.

2 Following the remittal of the appeal, this Court resumed for the purpose of giving effect to the directions issued by the Court of Appeal, and to consider all matters necessary for the just determination of the appeal. On 23rd September, 2025, Mr. Faustine Malongo , learned counsel for the Respondent, informed the Court that during the trial before the District Land and Housing Tribunal, documentary exhibits had been duly tendered and admitted in evidence but were subsequently taken by the respective parties after c onclusion of the trial. Counsel submitted that, before the commencement of the substantive hearing of the appeal, it was necessary for the Court to address the procedural implications arising from the absence of those exhibits on the record. In the circums tances, and in order to afford both parties an opportunity to address the Court on the matter, the Court adjourned the hearing of the appeal. When the matter eventually came up, learned counsel for the Appellants, Mr. Deocles Rutahindurwa, addressed the Court on the question of exhibits tendered during the trial before the District Land and Housing Tribunal. He submitted that after the trial was concluded, the parties requested that the documentary exhibits tendered and admitted in evidence be returned to them . He explained that by a letter dated 26th October, 2019,

3 the Appellants requested the Chairman of the Tribunal to return exhibits DE1 to DE4, and that by a letter dated 26th November, 2019, they acknowledged receipt of those exhibits. As regards the Respondent, counsel submitted that by a letter dated 5th March, 2020, the Respondent requested to be returned exhibit PE1, which had been te ndered on 22nd September, 2016. Counsel argued that in the absence of those exhibits, the appeal cannot effectively proceed, as exhibit PE1, being a certificate of title, was central to determining the size, demarcation and ownership of the disputed land, particularly in view of allegati ons of trespass. He raised the practical difficulty of how the returned exhibits could be brought back into the court record and prayed for appropriate orders directing that the exhibits be returned so that the appeal may proceed on the basis of the eviden ce tendered at the trial. Learned counsel for the Respondent, Mr. Faustine Malongo, substantially agreed that the appeal could not be heard in the absence of the trial exhibits, as both parties’ claims were grounded on documentary evidence admitted before the Tribunal. However, cou nsel raised serious procedural and legal objections regarding the manner in which the exhibits were returned. Relying on Order XIII Rule 9 of the Civil Procedure Code, Cap. 33 R.E. 2023, counsel submitted that exhibits may only be returned

4 after the time for appeal has lapsed without an appeal being preferred, or after disposal of the appeal. He emphasized that the proviso to that rule allows early return of exhibits only where a certified copy is left on the record and an undertaking is mad e to prod uce the original when required. Counsel argued that in the present case, the Appellants requested and obtained return of their exhibits immediately after judgment, without leaving certified copies on record and without undertaking to return the originals. He further submitted that the Re spondent likewise obtained return of exhibit PE1 before being served with the memorandum of appeal. In those circumstances, counsel contended, there is no reliable material remaining on the court record against which the authenticity of any returned documents could be verified. He added that neither the advocates now appearing nor this Court participated in the trial, making veri fication even more problematic. Counsel further submitted that the law does not provide for a procedure to regularize such a situation and that, in addition, the original title deed tendered as exhibit PE1 had since been altered, damaged and returned to the Registrar of Titles, who issue d a certified copy, rendering recovery of the original exhibit impossible. He also raised the issue of estoppel, arguing that

5 by requesting return of the exhibits on the basis that the case had come to an end, and without complying with the requirements of Order XIII Rule 9, the Appellants demonstrated an intention not to appeal and should therefore be estopped from maintaining t he present appeal. On that basis, he urged the Court to strike out the appeal. In reply, learned counsel for the Appellants, Mr. Rutahindurwa, disputed the allegation that exhibit PE1 was damaged and submitted that no proof to that effect had been placed before the Court. He proposed that the Registrar of Titles be directed to avail a certified copy of Certificate of Title No. 22703, registered in the name of Nyanza Fishing and Processing, Ilemela, Mwanza, which was admitted as exhibit PE1 before the Tribunal, and that the Appellants likewise be directed to return exhibits DE1 to DE4. On the issue of estoppel, counsel argued that when the Appellants stated that the case had come to an end, they were referring to the proceedings before the Tribunal and not to any intention to forego their right of appeal. He therefore submitted t hat the doctrine of estoppel was inapplicable.

6 From the foregoing, the central issues for d etermination by this Court are: (i) Whether, following the remittal by the Court of Appeal, this appeal can properly proceed in the absence of the original documentary exhibits tendered before the District Land and Housing Tribunal; (ii) Whether this Court has the power to issue directions for the restoration or substitution of the said exhibits in order to give effect to the Court of Appeal’s directive that parties be properly heard on all contentious matters; and (iii) Whether, in the circumstances of this case, the doctrine of estoppel operates to bar the Appellants from prosecuting the appeal. The Court has anxiously considered the record, the submissions of learned counsel, and the app licable law. At the outset, it is imperative to underscore the legal effect of the order of the Court of Appeal in Civil Appeal No. 231 of 2024. The Court of Appeal expressly nullified the proceedings and judgment of this Court and remitted

7 the record back with a clear directive that the parties be properly heard on all contentious matters in the appeal. That order had the effect of restoring Land Appeal No. 72 of 2019 to this Court for a fresh and effective hearing on the merits, subject to the guidance given by the apex Court. This Court, being bound by the doctrine of precedent and the hierarchy of courts, is duty - bound to give full effect to both the letter and the spirit of that remittal order. The central procedural difficulty raised before this Court relates to the status of the documentary exhibits which were tendered during the trial before the District Land and Housing Tribunal and were subsequently returned to the respective parties. There is no dispute on record that exhibits DE1 to DE4 were returned to the Appellants in November, 2019, and that exhibit PE1 was returned to the Respondent in March, 2020. The dispute concerns the legal consequences of that return and whether, in the ab sence of the original exhibits on the record, the appeal can pro ceed. Order XIII Rule 9 of the Civil Procedure Code, Cap. 33 R.E. 2023, governs the custody and return of documentary exhibits. The general rule under that provision is that exhibits may be returned only after the time for appeal has lapsed without an appeal bei ng preferred, or after the appeal has

8 been disposed of. The proviso allows for an earlier return of exhibits on condition that a certified copy is left on the record and an undertaking is given to prod uce the original when required. It is evident from the record that, in the present case, the procedure contemplated under the proviso to Order XIII Rule 9 was not strictly complied with. Certified copies of the returned exhibits were not left on the record, nor was there a formal underta king recorded to re - produce the originals. However, non - compliance with procedural requirements does not, of itself, automatically render subsequent proceedings a nullity, particularly where such non - compliance occurred at a stage preceding the fili ng and determination of the a ppeal now before this Court. More importantly, the Court must consider Order XIII Rule 9 within the broader context of the Court’s inherent powers and its constitutional mandate to administer justice without undue regard to technicalities. The Court of Appeal’s remittal order was not conditional upon the physical presence of the original exhibits on the record as it existed at the time of remittal; rather, it was premised on the need for parties to be properly heard on all contentious matters. To interpret Order XIII Rule 9 in a manner that

9 would render compliance with the remittal order impossible would defeat the very purpose for which the matt er was sent back to this Court. This Court is further persuaded that the absence of original exhibits on the record is not, in itself, an insurmoun table obstacle. The law recogniz es various mechanisms through which documentary evidence may be reconstructed or substituted, including the production of certified copies from the custodial authorities, secondary evidence where legally permissible, and appropriate directions by the Court to ensure authenticity and fairness. The Appellants’ proposal that exhibits DE1 to DE4 be returned to the record, and that a certified copy of the certificate of title admitted as exhibit PE1 be obtained from the Registrar of Titles, is consistent with these principles and does not, on its face, occa sion prejudice to either party. On the issue of estoppel, the Court has carefully considered the Respondent’s submission that the Appellants, by requesting return of their exhibits and stating that the case had come to an end, are barred from pursuing this appeal. Estoppel, whether by co nduct or representation, requires a clear and unequivocal representation, reliance by the other party, and a consequent alteration of position to that party’s detriment. In the present case, the statement that the case had come to an end was made in

10 the context of proceedings before the District Land and Housing Tribunal, whose judgment had already been delivered. There is no express or implied representation on record that the Appellants waived or abandoned their statutory right of appeal. Indeed, th e subsequent filing of a memorandum of app eal negates any such inference. Furthermore, the Respondent has not demonstrated that she altered her position to her detriment on the faith of any representation allegedly made by the Appellants. The mere return of exhibits, even if procedurally irregular, cannot, without more, be eleva ted to a waiver of the right of appeal. In the circumstances of this case, the Court finds that the doctr ine of estoppel does not apply. Finally, the Court must remain guided by the overarching objective of resolving land disputes on their merits, particularly where the Court of Appeal has intervened to ensure that parties are afforded a proper hearing. Striking out the appeal or declining to give procedural directions solely on account of difficulties surrounding exhibits would amount to elevating form over substance and would run counter to the express intention of the remittal order.

11 In the premises, this Court is satisfied that the appeal can and should proceed, subject to appropriate directions aimed at restoring or substituting the documentary exhibits in a manner that safeguards fairness, authenticity, and the rig ht of both parties to be heard. In view of the remittal order issued by the Court of Appeal, this Court is duty - bound to conduct the appeal in a manner that ensures parties are properly heard on all contentious matters. Procedural difficulties relating to exhibits must, as far as possibl e, be resolved in a manner that advances substantive justice rather than shutting out t he appeal on technical grounds. In order to give full effect to the decision of the Court of Appeal and to ensure that the appeal is heard and determined on its merits, this Court considers it appropriate to adopt a facilitative and pragmatic approach towards reconstruction of the record , guided by the overriding objective of dispensing substantive justice. Accordingly, the Court hereby makes the following orders:

1. The Deputy Registrar of this Court shall , within twenty one days (21) from the date of this ruling, formally request the Registrar of Titles,

12 Mwanza Zone, to avail to the Court certified copies of the relevant land register and any available records relating to Certificate of Title No. 22703, together with an explanation of any changes made thereto, if any. 2. Each party is hereby directed, within twenty - one (21) days from the date of this ruling, to file in this Court copies of all documentary exhibits in their possession which were tendered before the District Land and Housing Tribunal, namely Exhibits DE1 to DE4 on the part of the Appellants and Exhibit PE1 on the part of the Respondent. 3. The copies filed pursuant to Order (2) above shall be accompanied by affidavits sworn by the respective parties or their authorised representatives explaining the source, custody, and authenticity of the documents, and confirming, to the best of their know ledge and belief, that the copies correspond with the documents tendered before the Tribunal. 4. Upon compliance with the above orders, the Court shall convene for purposes of verifying, settling, and formally reconstructing the record of appeal, including determination of any objections that may be raised by either party regarding the authenticity of the reconstructed exhibits.

13 5. The case is adjourned for necessary orders on 16 th February, 2026 It is so ordered. K.N. ROBERT JUDGE 19/12/2025