Sharifu Mswadiku vs Razack Y. Chamani (Land Appeal No. 22980 of 2025) [2025] TZHC 8463 (19 December 2025)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA LAND APPEAL NO. 22980 OF 2025 (Arising from Application No. 29 of 2024 District Land and Housing Tribunal for Karagwe) SHARIFU MSWADIKU ............................................................ APPELLANT VERSUS RAZACK Y. CHAMANI ............................................................ RESPONDENT JUDGMENT 11 th and 19 th December, 2025 BANZL J.: The appellant and the respondent are son and grandson of Mswadiku Tindamanyire (now deceased). They are fighting over a piece of land located at Kakiro A area, Ruzinga village, in the ward of Chanika, Karagwe District measuring between 5 to 11 acres. Each party is claiming to have been acquired that land by way of gift from the deceased on different years. Due to that dispute and, in a bid to find a solution between them, the respondent instituted Land Application No. 29 of 2024 before the District Land and Housing Tribunal for Karagwe (the tribunal), praying to be declared as the lawful owner of the suit land. In his evidence before the tribunal, the respondent contended that, his father died in 1990 leaving him and his siblings very young. In 1995 when Page 1 of 14

he attained 18 years, the deceased bought a piece of land for him from Ntagirege and handed over to him in the presence of five witnesses including Hanifa Mswadiku (the wife of the deceased), the then hamlet leader; Wilbard Rwenduru (AW2), and a ten-cell leader. The deceased showed him the boundaries of the land he gave him. In the east there is a pathway, in the west it bordered Vedasto Kairukabi and Daniel Chrisostom. Other boundaries were the farm of the deceased that is being used by Fatuma, the wife of the deceased. Also, there were 'Omukoroko and 'Omurama' trees marking the boundaries of that land. In the course of giving him, the deceased told him that, he has to fulfil some traditions as thanksgiving for that land. Being a peasant, in return, he gave him two sacks of onion and he paid Tshs.20,000/= to each witness. Thereafter, he started to use the said land until 2011 when the appellant emerged claiming to have been given the same land by the deceased. He sued him and the deceased before Chanika ward tribunal but the deceased denied to have ever given him that land stating that, he (the respondent) is the lawful owner of the said land which he gave him. The ward tribunal in its decision that was delivered on 14/02/2012 declared him the lawful owner of the suit land. However, Tindamanyire died on 21/04/2012 leaving the matter still on dispute. Aggrieved, the appellant unsuccessfully Page 2 of 14

appealed to the tribunal and then to this Court, however, on appeal to the Court of Appeal, the proceedings of this Court and that of the tribunal were nullified for want of the administrator of estates of the deceased. According to him, upon nullification of the proceedings of this Court and that of the tribunal, the Court of Appeal upheld the decision of the ward tribunal. Nevertheless, when he applied for execution of the decision of the ward tribunal, the appellant told the tribunal that he was intending to appeal. On appeal to the tribunal, the tribunal nullified the decision of the ward tribunal for want of coram. As there was no more pending dispute against him, he continued to use the suit land. However, the dispute continued hence, he decided to institute the application subject to this appeal. His claims were supported by AW2 who stated that, he witnessed the handing over of the suit land to the respondent and he received Tshs.20,000/= as a thanksgiving from the respondent. In defence, the appellant contended that, he was given that land by the deceased in 1988 after he had taken care of the deceased cows by managing to raise them from 1,500 to 3,000. To award his efforts, the deceased gave him the suit land as a gift in the presence of Mzee Chrizanti Page 3 of 14

Mtabazi, Rwenduru, both now deceased, his mother Fatuma, the wife of Tindamanyire and his wife, Rukia John (DW2). In return, he gave him a goat and another goat to the witnesses who slaughtered it and divided the meat among them. Thereafter, he started to use that land in collaboration with DW2 by planting trees and bananas. In 1989, they returned to Dar es Salaam though they were returning to attend the farm. After returning in 2011, they found the respondent had cut his trees and uprooted the pineapples claiming to have been given that land by the deceased. The dispute over the land continued up to this appeal. When cross-examined on the proof of acquiring that land, the appellant contended that, he was given the said land orally, no written agreement was entered. His evidence was supported by DW2 who added that, after leaving for Dar es Salaam, they did not leave the land under care of anyone. They were attending it whenever they went back to the village. After hearing the evidence of both sides, the tribunal declared the respondent as the lawful owner of the suit land hence this appeal comprising nine grounds thus;

1. That the purported gift transmission document marked as exhibit Al was supplemented with all fact by filling in the conditions for land gift process contrary to the Page 4 of 14

requirement of the law in respect of written document, that is the document must speak by itself; 2. That the respondent/daimant did not prove his acquisition of land in dispute for want of compliance with the three formalities necessary to establish an outright gift; 3. That the trial tribunal placed the duty on the respondent/ appellant to prove a negative as the same (negative)is usually incapable of proof; 4. That the trial tribunal erred in law to discard the testimony of DW2: Rukia John on the basis of being a wife of the respondent/appeiiant without consideration of her evidence whether was biased and was probably influenced and untrue; 5. That the /earned Chairman did not consider the trite law in respect of the appellant that every witness is entitled credence and must be believed and his testimony accepted unless are good and cogent reasons for not believing him; 6. That the evidence of the appellant was not credited and believed by the trial tribunal without good and cogent reasons; 7. That the evidence of the appellant in respect of the acquisition of the suit land proved his entitlement on the required standard of proof in civil cases by compliance Page 5 of 14

with the necessary formalities to pass absolute title by gift; 8. That the trial tribunal did not consider that the appellant was first in time to acquire the Suitland hence has the strongest claim in law as opposed to the respondent who purported to acquire the same at the later time; 9. That had the trial tribunal considered the strong and heavier evidence of the appellant than that of the respondent could have decided in his favour even without supporting witness of DW2 Rukia John. At the hearing, the parties appeared in person, unrepresented. In his submission, the appellant contended that, in his pleadings, the respondent claimed to acquire that land by purchase from his grandfather, but he did not tender the sale agreement. However, in his evidence, the respondent stated that, he was given that land by his grandfather as a gift in 1995 while he attained 18 years. Discarding the deed of gift (Exhibit Al), the appellant contended that, it was only signed by the respondent, neither the giver nor the witnesses signed the document. Besides, the document did not disclose the size of the land and the neighbours to the said land. He urged the Court to refer to the Haya Customary Law which requires the sale agreement to disclose the neighbours. He insisted that, all these raises doubt on the agreement itself. In his view, Exhibit Al is a forged document. Conversely, Page 6 of 14

he contended that, he was given that land in 1988 and since then he developed it by planting banana trees and other crops, however, in 2011, the respondent trespassed into the suit land and cut down trees and in 2024, he again invaded the suit land that is why he instituted this case. According to him, his father could not have given that land to the respondent alone leaving behind his other siblings. He urged the Court to allow the appeal with costs by quashing the judgment and decree of the trial tribunal. Reverting to the fourth ground, he contended that, the chairman erred to treat DW2 as a witness with interest to serve. For him, DW2 did not contradict herself and she was an important witness who witnessed the appellant receiving the land from his father. Apart from that, the chairman erred to rely to the decision of the High Court instead of relying on the decision of the Court of Appeal in Ahmad Abdallah Kinyokwe vs Zulfa Salum Makuka &. Others (Civil Appeal No. 127 of 2021) [2024] TZCA 965 (4 October 2024). In reply, the respondent contended that, Exhibit Al is not a forged document, it is a valid document which was admitted without objection. Exhibit Al mentioned the boundaries and, in his testimony, he mentioned the neighbours. According to him, his grandfather bought the said land and Page 7 of 14

gave it to him because their parents died while they were very young. He was given the suit land in the presence of the witnesses as reflected in Exhibit Al. In return, he gave him two sacks of onion and Tshs.20,000 to each witness. Thereafter he started to develop it by planting banana trees and other tress. However, in 2011 the appellant invaded into the land claiming to own it. He sued him at the ward tribunal where Exhibit Al was accepted and the case went up to the Court of Appeal where everything was overturned. Submitting on evaluation of evidence by the tribunal, the respondent contended that, the chairman evaluated the evidence on record as reflected at the last three pages of the judgment and at the end, he found the evidence of the appellant heavier than that of the respondent. He insisted that, the Chairman was correct to reason that DW2 had interest to serve. She was a liar. In respect of the suit land to have been given to the appellant in 1988, the respondent contended that, by that time, his grandfather was yet to purchase that land. On the witnesses, he contended that, the appellant is the resident of Dar es Salaam, thus he could not know the witnesses to the said agreement. He urged the Court to dismiss the appeal with costs by upholding the decision of the trial tribunal. Page 8 of 14

In his brief rejoinder, the respondent insisted that Exhibit Al was not valid for want of signatures of the witnesses and the owner. Exhibit Al shows that his father bought the land from Ntagirege but the said Ntagirege was not involved in disposition as co-owner. Also, Maliat was not disclosed as the wife of the giver. Besides, other witnesses were not called to testify. Apart from that, there is no evidence showing where did the respondent get Tshs.20,000/= considering that in 1995 Tshs.20,000/= was a lot of money. Having heard the submissions of both parties, and after perusing the proceedings from the trial tribunal, it is clear that, the entire appeal lies on evaluation of evidence. This being the first appellate court, it is an established principle that, in the first appeal, the court has to enter into the shoes of the trial court or tribunal to re-evaluate the entire evidence and where necessary come out with its own findings. Also, in the case of Jamal A. Tamim vs Felix Francis Mkosamali & Another (Civil Appeal No. 110 of 2012) [2013] TZCA 342 (3 May 2013), it was stated that; "Undoubtedly, this is a first appeal. It is trite law that it is in the form of a re-hearing. The appellant is entitled in law, to have our own consideration and views of the entire evidence and our own decision thereon: See, D.R. PANDYA v. R. [1957] E.A 336." Page 9 of 14

Scrutinising the evidence of the tribunal, in his evidence, the appellant contended that he was given that land as an appreciation for taking care of the cows of the deceased and managing to raise them to 3,000 from 1,500. However, on her side, DW2 contended that, the deceased called the appellant telling him that he wanted to show him his land for cultivation. Thereafter, they were shown that land and then they planted bananas and coffee trees. DW2 did not disclose the reason of giving the appellant that land contrary to what was alleged by the appellant. On the other side, the respondent stated that, their parents died in 1990 while they were young but when he attained 18 years, the deceased bought the suit land for him and use that land to take care of his siblings. To protect him against his children, the deceased wrote him a deed of gift which was witnessed by five witnesses. His evidence was supported by AW2 who was the hamlet leader and witnessed the handing over of that land. Now, the issue is who is the lawful owner of the suit land. The appellant's evidence contradicted with that of his witness, DW2. I say so because, though the appellant stated on the reason of being given that land, DW2 only stated that the deceased called the appellant to show him the said land. However, on his side, the respondent stated clearly that he was given that land because when their father, Yasau Mswadiku died, while they were Page 10 of 14

still young and he was cared by the deceased until he attained 18 years when he gave him the land. Apart from that, the respondent tendered the document (Exhibit Al) to prove his claim however, on his side, the appellant contended that he was given that land orally and among the witnesses who were present are his mother and his wife (DW2), other witnesses have already died. Though the appellant may have been given that land orally, which is permissible in law, his claims are wanting because, though he and his wife contended to have been using that land from 1989 by planting banana, pineapple and other trees, however, there is no any other witness was brought to prove that, he had ever cultivated that land apart from his wife. Though a party is at liberty to summon a witness whom he believes is credible, in evaluating that evidence, the court is required to scrutinize its credibility. The evidence of the witness will be termed to be credible if it supports the evidence in proving or disproving the case before the court. However, where his credibility is questionable, the court have to discard it. Reverting to the evidence by DW2, as stated above, she did not state the reasons of the deceased giving her husband the said land as it was contended by the appellant while she was there and they were together when the deceased gave that land to the Page 11 of 14

appellant. In that regard, I find her evidence is not credible and she had interest to serve as it was found by the learned chairman. Furthermore, the appellant in his submission challenged authenticity of Exhibit Al claiming that, it is a forged agreement. It is settled law that, where a party relies on a serious allegation with criminal implication like forgery, that forgery must be specifically pleaded in the pleadings. This was stated in the case of Bomu Mohamed vs Hamisi Amiri (Civil Appeal No. 99 of 2018) [2020] TZCA 29 (27 February 2020). Apart from such requirement, allegation of fraud in civil cases is required to be strictly proved. In the case of Twazihirwa Abraham Mgema vs James Christian Basil (Civil Appeal No. 229 of 2018) [2022] TZCA 91 (2 March 2022), it was held that: "This is a pure allegation of fraud which in civil proceedings ought to be specifically pleaded and proved on a higher degree of probability than that which is required in ordinary civil cases " In our case, the appellant in his written statement of defence, did not plead about the alleged forgery of the agreement in question which was annexed in the amended application. Besides, he did not raise the issue of forgery when the respondent sought to produce Exhibit Al in evidence. Also, Page 12 of 14

he did not raise that allegation when he was cross-examining the respondent. Worse enough, though he is required by law to prove that allegation, in his testimony, he did not adduce any evidence to the effect. Thus, the allegation of forgery raised by the appellant at this stage, is no but an afterthought. Apart from that, if the deceased gave the appellant that land as a gift for raising his cows from 1,500 to 3,000, why did he sue him to the court claiming for that land instead of reconciling. In that circumstance, I don't buy the claims by DW2 that, the deceased was too old for him to easily change his ideas and give the same land to the respondent. Furthermore, the appellant in his submission claimed that, in 1995, the appellant had no ability to possess the amount which he gave to the witness. However, the issue whether in 1995, the respondent had in possession of such amount of money was not raised at the trial and determined by the tribunal. Thus, I do not see and compelling reason to discuss and determine it at this stage. With the above explanation, I find nothing to differ with the findings of the learned Chairman that the respondent has proved the ownership to the required standards. Consequently, the appeal is hereby dismissed for want of merit. I uphold the decision of the tribunal which declared the Page 13 of 14

respondent as the lawful owner of the suit land. However, since parties are relatives and to maintain the relationship between them, each party shall bear his own costs. I. K. BANZI JUDGE 19/12/2025 Delivered this 19 th day of December, 2025 in the presence of the appellant, the respondent both in person, Hon Audax K. Vedasto, Judge's Law Assistant and Ms. Mwashabani Bundala, RMA. Right of appeal duly Page 14 of 14