Shabani Omari Soloka vs Mwatatu Omri Soloka (Land Appeal No. 22003 of 2025) [2025] TZHC 8611 (19 December 2025)

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA LAND APPEAL NO. 22003 OF 2025 (Arising from the District Land and Housing Tribunal for Kondoa at Kondoa in Land Application No. 62 o f2024) SHABANI OMARI SOLOKA............................................................... APPELLANT VERSUS MWATATU OMRI SOLOKA................................................................... RESPONDENT JUDGMENT 16th & 19th December, 2025. KAWISHE, J.: In this appeal, the appellant is challenging the decision of the District Land and Housing Tribunal for Kondoa at Kondoa (trial tribunal) in Land Application No. 62 of 2024. Before the trial tribunal, where the respondent successfully sued the appellant a parcel of land measuring six acres, hereinafter to be referred as "the disputed land". The disputed is located at Pangai Village, Mondo Ward in Chemba District. Annoyed with the decision of the trial tribunal, the appellant has 1

approached this court with three grounds of appeal which are reproduced hereunder:

1. That, the Honourable Chairman erred in iaw and in fact for deciding in favour o f the respondent without considering the heavier evidence o f appellant's side which proved that the land in dispute is legally owned by Appellant.
2. That, the Honourable Chairman erred in law and in fact for hearing and deciding the case in favour o f the respondent basing on wrong, weak and contradictory evidence adduced by respondent and her witnesses.
3. That, the Honourable Chairman erred in law and in fact for deciding in favour o f the respondent without considering that proceedings o f the case is tainted with procedure irregularity and illegality. Before I engulf myself looking into what has been argued by the parties and determination of the appeal, I find it is pertinent to start by stating the brief facts which gave rise to this appeal. The appellant and the respondent are siblings from the same from parents. It was the respondent's claim before the trial tribunal that, the disputed land is her property given to her by their late father more than 40 years past. It was her contention that all the time she has been cultivating it up to 2023 when the appellant in this appeal claimed to be his land. When he was served with the land application, the respondent/appellant denied the claims stating that the disputed land was given to him by their father by exchanging it with his piece of land he had cultivated by giving the other to his young brother Hassan Omari Soloka when 2

he got married. The applicant/respondent had three witness including herself to prove her claim. The respondent/appellant also marshalled three witnesses including himself. At the conclusion of the trial, the trial tribunal held that the applicant/respondent proved her case on the balance of probabilities. Irritated with the decision of the trial tribunal the appellant approached this court with the aforementioned grounds of appeal. When the appeal was called on for hearing, the appellant appeared in person and fended for himself orally. Despite of being duly served, the respondent did not appear hence an order was issued the appeal to proceed ex parte against her. Arguing on the first ground of appeal, the appellant submitted that he adduced exhibits which proved his case before the trial tribunal. That the trial tribunal erred in deciding in favour of the respondent who did not tender any evidence. He added that the respondent was his witness in a case against his late mother in 2013. That she testified that the disputed land belongs to the appellant. It was his contention that the disputed land was first his father's property. That in 1993 his father passed on, he entrusted the disputed land to the respondent, his young sister. That he sued Juma, his brother, the respondent was his witness. That Juma leased the disputed land to a person, the respondent was the one who asked the lessee who gave him the disputed land which 3

belonged to the appellant. That such person cleared a piece of land measuring 1 V 2 acres. That he was surprised later when the respondent cultivated and continued to stay in the disputed land claiming to be her property. That in 2023 he went home and found that situation, and he sued the respondent accordingly. That he complained that his sister, the respondent invaded his piece of land. That the respondent claimed that she was given the disputed land by their father 40 years ago. That the respondent claimed to have been given all the pieces of land. As to the second ground of appeal, the appellant faulted the trial tribunal that it erred in deciding in favour of the respondent who had contradictory evidence. He averred that the respondent claimed to have been given the disputed land by their father whereas the appellant claimed to have been the first person to be given the piece of land by their father. That it was impossible for their father to give the respondent the disputed land without being known to the other family members. How was she given the land without other members of the family. He added that the piece of land given to the respondent is known to all of them. He submitted that after the death of their father they gave the respondent extra 1 V 2 acres of land. On the third ground of appeal, the appellant claimed that there was irregularity and illegality in the decision of the trial tribunal as the chairman 4

adjourned 14 times. He claimed that the chairman did so that the appellant could fail to attend in the tribunal because he is now 81 years old and sick. That even the respondent is absconding from attending court so that he may not come to court in Dodoma in order for her to be able to take the disputed land. He prayed for the appeal to be allowed. I have carefully considered the grounds of appeal, the appellant's sole submission and thoroughly perused the trial tribunal's records and found that this court in determining the appeal is called to resolve only two main issues. First, whether the respondent proved her case to the required standard. Second, whether the trial tribunal's proceedings are tainted with irregularities and illegalities. In determining the these issues, the three grounds of appeal will all be determined. The first issue will resolve the first and second grounds of appeal that, the respondent's evidence was contradictory and weak compared to that of the appellant before the trial tribunal. In his submission, as an old and layman, the appellant failed to demonstrate the contradictions in the respondent's evidence. However, this court is aware of the principle that, being the first appellate court it is duty bound to go through the trial tribunal's records and re-assess the evidence as whole to find whether there were any contradictions. See the decision of the Court of Appeal in Standard Chartered Bank of Tanzania Ltd 5

vs National Oil Tanzania Ltd and Another, Civil Appeal No. 98 of 2008 quoted in The Registered Trustees of Joy in the Harvest vs Hamza K. Sungura, Civil Appeal No. 149 of 2017 (both unreported). But, in the present appeal, upon discharging the duty by revisiting the evidence on record, I find nothing to suggest that the respondent's evidence was contradictory. The respondent's claim in the application was proved by her testimony and those of the witnesses. For instance, SMI (PW1), the respondent and SM2 (PW2) testified the respondent was given the disputed land by her father. They also testified that the respondent cultivated the disputed land for so long. It was their consistent evidence that the respondent was given the disputed land after she had been divorced and returned home. They were consistent as to the boundaries of the of the disputed land. They also stated the disputed land measures 6 acres. The appellant waived his right to cross examine PW2 on a reason that he could ask his brother questions as are all they intended to confiscate him his land. It is a trite law that, failure to cross examine on an important matter, it implies that the appellant agreed to the truth of the evidence adduced. This was well established in the case of Nyerere Nyague vs Republic (Criminal Appeal Case 67 of 2010) [2012] TZCA 103 (21 May 2012) TanzLII, where the Court stated that: "Unfortunately, the appellant did not cross examine PW1 on this to shake her credibility. As a matter o fprinciple, a party who fails to cross examine a 6

witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said. "[Emphasis is added]. See also the case of Cyprian A. Kibogoyo vs R Criminal Appeal No. 88 of 1992, Paul Yusuf Nchia vs National Executive Secretary, Chama Cha Mapinduzi and Another Civil Appeal No. 85 of 2005 (both Unreported). From these authorities, it is clear that the appellant's failure to cross examine the respondent's second witness (SM2), he accepted the evidenced to be true that the disputed land was given to the respondent by their father. According to the trial tribunal's typed proceedings, specifically at page 19 the appellant wanted the respondent who was the applicant before the trial tribunal to be his witness. In his defence he testified he does not remember when he was given the disputed land by his father. That in their family they were 13 siblings but none of them witnessed when their father was giving him the disputed land. His witness SU2 (DW2) testified the he was told that the disputed land belonged to the appellant. When cross examined, he confessed the that he was not sure if the disputed land belonged to the appellant. Accordingly, his testimony was hearsay and cannot be accorded any value at this juncture. It does not meet the legal requirements of section 67 of the Evidence Act (Cap 6, R.E 2023). The appellant's third witness, SU3 (DW3) when testifying in the tribunal told the tribunal that at the Mondo Ward Tribunal they settled a dispute 7

between the appellant, Shaban Omari Soloka and his brother Juma Omari Soloka. That it is when he knew that the disputed land belonged to the appellant. However, he never tendered any exhibit to prove the same. Like DW2 he stated that he was told that the disputed land belonged the applicant. That he was not present when the appellant was given the disputed land. Further, according to his written statement of defence before the tribunal, the appellant claimed that his father gave him the disputed land in exchange of his piece of land which was given to his young brother one Hassan but in is submission before the tribunal he never said anything about this piece of information and never called the said Hassan Omari Soloka who benefitted from the exchange. To the contrary he came with another version that he gave money to her mother to acquire the disputed land. To this point, there was no contradiction in the evidence of the respondent. Even her testimony was not weak as claimed. As a result, the first issue is answered in the negative, that evidence given by the respondent and his witness have no any contradictions. Clicking on the second issue, on irregularity and illegality, it was the appellant's contention that the trial tribunal's decision was marred by irregularities and illegalities as the chairman adjourned the matterl4 times. With due respect, adjournment of a case is not an irregularity or illegality. In a nutshell, irregularities are procedural errors that may not automatically invalidate 8

a case unless they cause a substantial failure of justice or prejudice a party. None has been proved so that this court could intervene to correct the records. As to illegalities, these typically refer to fundamental defects which include; lack of jurisdiction, or breaches of the principles of natural justice that often render the entire proceedings null and void. Even a decision which results from irregularities and illegalities cannot be allowed to stand. I have gone through the proceedings and the judgment of the trial tribunal, I could not find even a crumble of the irregularities and illegalities complained of. The law places a burden of proof upon a person who desires a court to give judgment and such a person who asserts the existence of facts to prove that those facts exist. See section 117(1) and (2) of the Evidence Act (Cap. 6, R.E 2023). In civil matters, facts are said to be proved when, its existence is established by a preponderance of probabilities. See section 3(2)(b) of the Evidence Act (supra). Therefore, it is a well-established position in civil suits that the burden of proof falls on the claimant and it is on the balance of probabilities. In Wolfango Dourado vs Tito Da Costa, Civil Appeal No. 102 of 2002 (unreported). The Court held that: "Whoever alleges a fact, unless it is unequivocally admitted by the adversary has to prove it, albeit on the balance o fprobabilities. " Also, the Court of Appeal in Godfrey Sayi vs Anna Siame as Legal Representative of the late Mary Mndolwa, Civil Appeal No. 114 of 2012 9

(unreported), the Court stated that: "It is similarly common knowledge that in civil proceedings, the party with legal burden also bears the evidential burden and the standard in each case is on a balance o fprobabilities ." See also the decision of the Court of Appeal in the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) and Jasson Samson Rweikiza vs Novatus Rwechungura Nkwama (Civil Appeal No. 305 of 2020) [2021] TZCA 699 (29 November 2021) all available at TanzLII. In the present appeal, the appellant is challenging the trial tribunal in deciding in favour of the respondent on the allegations that his evidence was heavier than that of the respondent. This being a first appellate court, I had to visit the trial tribunal's records and re-evaluate the evidence given by the parties. As hinted herein above the complaints of the appellant do not hold water. The appellant's allegation that he was the lawful owner of the disputed land could not be proved. Thus, the second issue is also answered in the negative, that the appellant failed to prove his case to the required standard. In the upshot, I find all grounds of the appeal are unmerited. The appeal is hereby dismissed in its entirety. The decision and orders of the trial tribunal are upheld. This appeal proceeded ex parte, I make no order as to costs. It is so ordered. 10

DATED and DELIVERED at DODOMA this 19th day of December, 2025. COURT: This judgment is delivered in the presence of Mr. Shabani Omari Soloka virtually from Moshi and in the absence of respondent. Right of appeal explained. 11