Sultan Ally Msanga vs Mwalimu Saidi Nzelekela (Land Appeal No. 25461 of 2025) [2025] TZHC 8678 (19 December 2025)

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND APPEAL NO. 25461 OF 2025 (Arising from decision of the District Land and Housing Tribunal for Mkuranga Land Application No. 62 of 2022) SULTAN ALLY MSANGA ................................................... APPELLANT VERSUS MWALIMU SAIDI NZELEKELA (As the Administrator of the estate of the late Shabani Saidi Nzalekela ................... RESPONDENT JUDGEMENT Last order: 27/10/2025 Ruling date: 19/12/2025 MANGO, J The Respondent, Mwalimu Saidi Nzelekela, acting under his capacity as the administrator of the estate of the late Shabani Saidi Nzelekela instituted Application No. 62 of 2022 before District Land and Housing Tribunal for Mkuranga District against the Appellant, Sultan Ally Msanga. In the said application, he contested ownership of a piece of land measuring 33 meters width and the length of 65 meters located at Mloka village, Losonzo street, Mwaseni Ward within Rujifi District, in Pwani Region. He 1

alleged that, in 1978 the Appellant was invited to the land by the late Shabani Saidi Nzelekela. After the death of Shabani Said Nzelekela, the Appellant demolished the house into which he was invited by his host and claimed that the land is his property. In his reply to the application, the Appellant alleged that the land is his property and that, he acquired ownership over the same via purchase from Shabanin Saidi Nzelekela in the year 1978. He alleged further that, he had stayed peaceful in the disputed land for more than 42 years. The trial tribunal ruled in favour of the Respondent. Aggrieved by the decision of the trial tribunal, the Appellant preferred this appeal on the following grounds;

1. That the trial tribunal erred in law and in fact in holding that, the Applicant ’ s suit is not barred by the law of limitation whereas the cause of action for recovery of the disputed land accrued in 1978 while the suit land was filed in 2022 more than 12 years later.
2. That the trial tribunal erred in law and in fact in failing to consider that the Appellant has been in open, continuous and uninterrupted possession of the disputed land since 1978 thereby acquiring rights through adverse possession
3. That the trial tribunal erred in law and in fact by granting ownership of the disputed land to the Applicant and holding that the Appellant ’ s claim over the land was unlawful, despite clear and uncontroverted evidence of the Appellant ’ s long term occupation, cultivation and substantial improvements on the land since 1978
4. That the trial tribunal erred in law and in fact in dismissing the Appellant ’ s evidence of purchasing the land in 1978 from the late 2

Shabani Said Nzelekela by placing undue reliance on the absence of written contract without properly considering that the transaction occurred under customary practices prevalent at the time and was supported by oral testimony and witnesses 5. That the trial tribunal erred in law and in fact by misapprehending the testimony of the Respondent’ s witness SM4 (Kondo Mohamed Mtegani) in the judgement attributing to him the status and knowledge of a village chairman, whereas, SM2 did not testify being a village chairman or possessing such authority leading to improper evaluation of evidence and undue weight being placed on his testimony regarding the land ’ s handover and guardianship 6. That the trial tribunal erred in law and in fact in accepting the Respondents evidence as administrator of the estate without sufficient proof that the disputed land formed part of the estate of the late Shabani Saidi Nzelekela and by disregarding contradictions in the Respondent ’ s witnesses testimonies regarding the inheritance and ownership chain 7. That the trial tribunal erred in law and in fact by failing to properly evaluate and weigh the evidence tendered by the Appellant ’ s witnesses (SU1, SU2 and SU3) who corroborated the Appellants purchase and possession, while giving undue weight to the Respondents witnesses (sm1,sm2,sm3,sm4 and sm5) whose testimonies contained inconsistencies regarding the land ’ s history and the deceased ’ s estate 3

8. That the trial tribunal erred in law and in fact in failure to properly evaluate the evidence on record, as the testimonies of the Respondent and his witnesses were materially contradictory and inconsistent, hence incapable of supporting the decision reached
9. That Hon. Trial chairperson misdirected herself by making findings and drawing conclusions not borne out of pleadings or evidence adduced during the proceedings, thereby occasioning miscarriages of justice The appeal was prosecuted by way of written submissions. The Appellant ’ s submission was drawn and filed by Pendo Ngowi, learned advocate while the Respondent’ s submission was filed by the Respondent himself. In her submission in support of the appeal, the learned advocate for the Appellant abandoned the second ground of appeal. On first ground of appeal, she submitted that, the application before the tribunal was filed and entertained in contravention of section 3(1) read together with item 22 of part 1 of the schedule to the Law of Limitations Act, [Cap. 89 R.E 2019]. She argued that, the cited section sets 12 years as time limit for recovery of land while application No. 62 of 2022 was filed beyond the prescribed 12 years. She explained that, in this matter it is not disputed that, the Appellant has been in occupation of the disputed land from the year 1978 following purchase of the land from the late Shabani Saidi Nzelekela. According to her, the sale of land between the late Shabani Nzelekela and the Appellant was done customarily. After the alleged purchase, the Appellant had exclusive possession of the land and he has developed the same by constructing 4

several houses and cultivating a number of crops including cashew nuts and coconut. His possession has never been interrupted during life time of his vendor. It is the year 2021 when the Respondent emerged contesting ownership of the land. By approximation, 40 years lapsed from the purchase of the land to the time the suit was instituted before the Tribunal. She highlighted that, the Respondent had first filed an application before Mwaseni Ward Tribunal and later refiled the same before the District Land and Housing Tribunal for Mkuranga. Citing the case of Kassim Shabani and 2 others versus Barclays Bank (T) Ltd and another , Civil Appeal No. 28 of 2006 without full citation, she argued that, the application was time barred. She added that, the issue was raised during trial but the trial tribunal overruled it and proceeded to determine the dispute. On the 3 rd , 4 th and 7 th grounds of appeal, she challenged the trial tribunal for basing its decision on the absence of a written agreement. She argued that, the sale was executed customarily in 1978 where it was not common to deduce sales into writing. She added that, oral agreements were very prevalent in the villages. She argued further that, the requirement to deduce agreements into writing was not mandatory at the time the sale was executed between the Appellant and the late Shabani Saidi Nzelekela. The learned advocate challenged the tribunal for its reliance on the case of Athumani Mohamed Mayumba (Legal personal Representative of late Selemani Salehe Mjengera ) vs Tabia Musa Njenge & Another (LAND APPEAL NO. 8882 OF 2024) [2024] TZHCLandD 881 (10 October 2024), in which my sister, Hon. Msafiri J. found allegation of sale of land was not sufficiently proved for among other issues, absence 5

of a written sale agreement. According to the learned advocate, circumstances in the cited case are very different from circumstances in this case. In the cited case, parties were contesting on the sale of land allegedly executed in recent years where the requirement to have sale of land deduced into writing exists while the land in dispute was sold four decades ago, when the requirement didn ’ t exist. She then turned to evidential weight of evidence adduced by parties to this appeal. In this, she argued that, the Appellant ’ s testimony was stronger than that of the Respondent. She is of the opinion that, the Appellant ’ s evidence was credible, consistent and was corroborated by the testimony of his witnesses. She summarized piece of testimony that she believes to carry the qualities she has stated. She first highlighted the main part of the testimony which concerns the Appellant ’ s long occupation and development of the land in dispute without any interference. She particularly bolded the testimony of SU3 who stated that, in 1978, he heard Shabani Saidi Nzelekela was selling his land and shortly thereafter, he saw the Appellant clearing the area and constructing a house. She insisted that, the Appellant ’ s occupation of the land was not anyhow interrupted during the life time of the late Shabani Saidi Nzelekela. In brief, she challenged the tribunal for failure to evaluate well evidence adduced by parties. She is of the view that, the testimony of SU1, SU2 and SU3 established clearly that, the Appellant purchased the land and used the same peacefully until 2021 when the Respondent emerged claiming back the land sold so many years ago and which has been substantially developed by the Appellant. She concluded that, had the trial tribunal 6

attached proper weight to the evidence adduced by the Appellant, it would have ruled in his favour. On the fifth ground of Appeal, she challenged the status accorded to SM4 in the judgement of the trial tribunal. She submitted that, in the judgement, of the trial tribunal SM4, Kondo Mohamed Mtegani was considered as a village chairperson while there is no evidence that the said witnesses had that position. According to the learned advocate for the Appellant, SM4, did not introduce himself as a village chairperson. She argued that, the witness stated expressly that, he moved to Dar es Salaam from Mloka village in the year 1973 and he had never returned to the village, thus, he lacks relevant knowledge regarding status of ownership of the land in dispute. Citing the case of Hemed Said versus Mohamed Mbilu [1984] TLR 113 she argued that, the decision of trial tribunal should not stand as it has been founded on misapprehended evidence that, SM4 is a village leader while SM4 was neither a village leader nor a credible witness. On the 6, 8 and 9 grounds of appeal, she challenged the Respondent for failure to prove that the land in dispute was merely given to the Appellant as a care taker, a mere invitee to the land and he does not own the same. She argued that, he who alleges must prove, thus, the Respondent who instituted the case before the tribunal, had the duty to prove his allegation and since he failed, his suit was bound to fail. Citing the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019), she submitted that, the burden of proof never shifts until when he who owes that burden, has discharged the same on the required standard. 7

She argued that, Respondent has failed to discharge his duty in proving allegations that the Appellant is a mere invitee to the land on the reason that, his evidence was weak, full of contradictions, inconsistences and hearsay. She highlighted lies in the testimony of the Respondent that, a grass hatched house was built on the disputed land in 1978 and it existed until 2015 when it was allegedly demolished by the Appellant. According to her, such assertion is inherently implausible as such a house cannot reasonably survive for nearly four decades without replacement or repair. She then invited this Court to set aside the decision of the trial tribunal for want of evidential and legal support. In his reply submission the Appellant contested the appeal. On the first ground he argued that, the suit is not time barred as alleged by the Appellant. He submitted that, the cause of action in this matter did not arise in the year 1978 rather it arose in 2015 when the Appellant demolished the building constructed by the late Shabani Said Nzelekela and claimed to be the owner of the disputed land. According to him, the Appellant was a mere invitee to the land because the land was neither sold to him nor was it given permanently to him. He argued that, counting from 2015 to 2022 only 7 years has expired thus, the suit cannot be considered to be time barred. On the 3 rd , 4 th and 7 th grounds of appeal, the Respondent submitted mostly on the issue of adverse possession which was abandoned by the Appellant. The only relevant part of his submission is on the issue of burden of proof and evaluation of evidence by the trial tribunal. On who bears the burden of proof, the Respondent didn ’ t dispute the fact that he who alleges must prove. He however argued that, it is the 8

Appellant who had the duty to prove the alleged sale of the land to him by the late Shabani Saidi Nzelekela. He maintained that, the land was given to the Appellant by the late Shabani Saidi Nzelekela for care and protection against trespassers. On his part, he alleged that, he managed to prove that the land forms part of the estate of the late Shabani Saidi Nzelekela. He argued that, the late Shabani Saidi Nzelekela used to visit the village and in his visits, he used to stay in his house that was constructed in the disputed land thus, it cannot be said that, he sold the land to the Appellant. To back up his argument he cited the case of Ernest Mwangole vs Paulent Simalike (Land Appeal 95 of 2021) [2022] TZHC 9824 (13 May 2022). On the evaluation of evidence, he registered his opinion that, the trial tribunal evaluated well evidence in record. He also supported the decision reached by the trial tribunal. He is of the view that, the decision was correctly reached after weighing evidence adduced by the parties and finding that, the Respondent ’ s evidence weighs more than that of the Appellant. To substantiate his arguments that he whose evidence weighs more must win, he cited the case of Hemed Said versus Mohamed Mbilu (supra) which was also cited by the Appellant ’ s advocate. On the 5 th ground of appeal, the Respondent relying on the contents of the judgment he argued that, SM4 was a village leader and he was aware that, the late Shabani Saidi Nzelekela left the land in dispute under the care of the Appellant. On the 6 th , 8 th and 9 th grounds of appeal, he argued that since the trial tribunal declared that the land in dispute forms part of the estate of the late Shabani Saidi Nzelekela it means the Respondent managed to prove so. 9

According to him, his evidence adduced before the tribunal had no contradictions and the decision reached by the trial tribunal is fair and just. He prayed the appeal be dismissed with costs. In her rejoinder, the Appellant ’ s advocate reiterated her submission in chief. I have considered submissions by both parties and Court record and found that, the following issues are not contested. First, in 1978, the land in dispute was owned by the late Shabani Saidi Nzelekela. Second, sometimes in the same year 1978 the late Shabani Saidi Nzelekela moved from the village to Dar es salaam where he resided until his death 2015. Third, since 1978 when the late Shabani Saidi Nzelekela moved from the village to Dar es salaam, to the time the case was instituted before the Tribunal, the Appellant has been residing in the land in dispute. The main issue which is reflected in all grounds of appeal except the first ground of appeal, is the status of the Appellant in the land in dispute. Is he the owner or an invitee who was allowed to stay there as a caretaker of the land. I will start with the first ground of appeal which concerns the issue whether the suit is time barred or not. The law, section 9(1) of the Law of Limitation Act, [Cap. 89 R.E 2023] provides that, the course of action in respect of the land which has been owned by a deceased person is presumed to arise at the time of his death. In the case at hand, the late Shabani Saidi Nzelekela passed on in the year 2015. The Respondent alleges that, it was after the death of the late Shabani Saidi Nzelekela that the Appellant demolished the deceased ’ s house in the disputed land and claimed the land to be his property. Item 22 of the first schedule to the Law of Limitations Act, provides for time limit for instituting a suit for recovery of land to be 12 10

years. Counting from 2015 to 2022 when the application contesting ownership of the land in dispute was filed before the tribunal, only 7 years lapsed. In that regard, I find the application to have been instituted within time. The suit will only be considered to be time barred upon proof that, the Appellant purchased the land from the late Shabani Saidi Nzelekela in the year 1978. On the fifth ground of appeal, I agree with the Appellant that SM4 is not a reliable witness and he was not a village chairman nor any other village leader. According to his testimony, he saw the house lastly in the year 1980 when he left the village and moved to Dar es salaam. Since then he has never returned to the village. Thus, his testimony regarding status of the land in dispute cannot be reliable On the 3 rd , 4 th , 6 th , 7th 8 th and 9 th grounds of appeal, I agree with the Appellant that, the tribunal relied more on the absence of a written sale agreement. I am aware that, an agreement may be made orally or by writing. Though all agreements carries equal weight, oral agreements in most cases, are hard to prove. The case at hand proves how difficult it is to prove agreements orally made. That ’ s why section 68 of the Land Act [Cap 113 R.E 2023] insists that, agreements for disposition of land should be deduced in writing for the same to be enforceable. The agreement subject of this appeal is alleged to have been executed in the year 1978 before the enactment of the Land Act. Thus, the Court is compelled to analyse evidence tendered by both parties and assess whose evidence is stronger than the other. This being the first Appellate Court is vested with powers to re 11

evaluate evidence in record, thus in determining the appeal at hand I will re evaluate evidence in record. Evidence in record establishes clearly that, the late Shabani Said Nzelekela is the original owner of the land. Such fact is not disputed by either party. With that evidence and in absence of any evidence to the contrary, the land in dispute is considered to be part of the estate of the late Shabani Said Nzelekela. The dispute at hand concerns the issue whether the Appellant purchased the land from Shabani Said Nzelekela or the land was merely put under the care of the Appellant as a care taker. There is no documentary evidence regarding either agreement, thus the Court has to rely on oral evidence adduced by the parties. On the part of the Respondent who claimed that the land was merely given to the Appellant as a care taker, there is the testimony of SM3, Sefu Salumu Kawambwa. This witness who stated to have 66 years on 7 th day of June 2024 and a resident of Mloka village, the place where the land is located. He stated that, they reside in the same village with the Appellant and that his land is nearby the land in dispute. As per his age, 66 years it means by the year 1978 when they moved Mloka Village from Nyakisiku village, he was in his 20 ’ s. This witness stated further that in 1978, the late Shabani Saidi Nzelekela moved to Dar es salaam and left the land under the care of the Appellant. He testified clearly that, the late Shabani was coming to his land and when he visits the village he used to stay at the said land. According to him, the house that was constructed by the late Shabani was demolished by the Appellant in 2015 after the death of Shabani. It was him who informed Shabani ’ s family on the alleged demolition. With this piece of evidence from 12

a resident of the village from the year 1978 todate, it was correct for the tribunal to rule out that, the land in dispute forms part of the deceased estate. On the part of the Appellant, I considered evidence adduced by himself as neither of his witnesses or Respondent ’ s witnesses has witnessed the alleged purchase of his land. It was his testimony that all persons who witnessed his purchase have passed on, in other words, nobody can testify on his purchase of the disputed land except himself. Despite his constant allegations that he purchased the land, I noted contradictions as to who actually was aware of the said purchase. During examination in chief he stated that, his wives knew about his purchase of land. He stated that; “ Eneo la mgogoro 1978 Shabani Nzelekela alitangaza kuhama . Kulitokea njaa hivyo mji ulimshinda. Eneo liko kwetu. Nilimuuliza kuhusu yeye kuhama, alikubali na kueleza kutaka kuuza kiwanja chake na banda bovu. Nilimwambia nahitaji aniuzie. Akaniuzia kwa shilingi 12000/-. Sikuwa nazo zote tulikubaliana nimlipe awamu mbili Mimi nilikuwa mvuvi, nilirudi jana yake nikampa 6000/- tulikuwa wawili tu. Niliwaambia wake zangu . (Emphasis added) ” This piece of his testimony indicates that, his wives were aware of the sale transaction and payment of the first installment of the purchase price. It also reveals that, the late Shabani Nzelekela merely informed other villagers about his plan to move out of the village. The issue of selling the land and the house emerged in a private conversation allegedly held between the Appellant and the late Shabani Nzelekela. 13

During cross examination, he stated that no wife witnessed the sale. He even stated that the village government was not involved something which is not ordinary for a land sold during operation vijiji era. His testimony to that effect is hereby reproduced; “ Katika hayo mauziano mke wake hakushiriki hata mke wangu hakuwepo. Maneno yangu ndio uthibitisho nimejenga, n i bebe nyumba nilete? ... 1978 serikal ya kiji Hikuwepo. Walotugawia maeneo ilkuwa ni serikali. Katika Mauziano yetu, hakukuwa na serikali, wala viongozi hawakuwepo, tuHitumia mashahidi tu, na h i ni kwa jinsi ninavyoona mimi. ” Contradictions as to whether the late Shabani Nzelekela informed other villagers on his intention to move out of the village only or he also informed them on the sale of the house; who was aware of the alleged sale transaction between the late Shabani Nzelekela and the Appellant; and, failure to involve the village government or any village leader during the disputed transaction make the Appellant ’ s testimony regarding the alleged purchase of the disputed land doubtful. It is trite law that, he whose evidence weighs more must win as stated in the case of cited by all parties to this appeal, Hemed Said versus Mohamed Mbilu (supra). It is my considered view that, Respondent ’ s evidence via the testimony of SM3 is stronger than that of the Appellant. Thus, the Appellant failed to prove his purchase of the said land. It should be noted that, failure to have a written agreement as far as the time at which the agreement was allegedly concluded is not fatal but, he failed to establish on the balance of probabilities that, he actually purchased the land in dispute from the late Shabani Saidi Nzelekela. Thus, the Appellant remains with the 14

status of an invitee to the land. It is well established that, an invitee cannot acquire title over the land. In such circumstances, I don ’ t find reasons to interfere with the findings of the tribunal. The appeal is hereby dismissed. Given circumstances in this appeal I don ’ t award costs. Dated at Dar es salaam this 19 th day of December 2025 Z.D.MANGO JUDGE 15