Baraka Baketege Cheyo vs Anyisile Ngabo and Others (Land Appeal No. 17548 of 2025) [2025] TZHC 8442 (18 December 2025)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MBEYA SUB REGISTRY AT MBEYA LAND APPEAL NO. 17548 OF 2025 (Arising from application Na. 11 of 2023 of the District Land and Housing Tribunal for Songweat Mbozi) BARAKA BAKETEGE CHEYO.......................................................... APPELLANT VERSUS ANYISILE NGABO...............................................................1 st RESPONDENT UUSANGA LW ESYA ........................................................ 2 nd RESPONDENT GIDION KASEBELE......................................................... 3 rd RESPONDENT JUDGMENT 11th December & 18th December, 2025 TIGANGA, J.: The dispute at hand originated from Land Application No. 11 of 2023 at the District Land and Housing Tribunal for Songwe (The Trial Tribunal) before which the appellant herein filed the case seeking to be declared the lawful owner of one acre of land located at Mlimani sub-village, Chilemba village, Lubanda Ward, Ileje District. In that application, the Appellant asserted that he lawfully acquired the land by purchasing it from the 1st Respondent, Anyisile Ngabo. Out of the 4 acres, he stated that 3 Page 1 of 14

acres were not in dispute, and only the remaining one acre was the subject of the trespass by the Respondents. In rebuttal, the 1s t and 2n d respondents herein denied the Appellant's claim, asserting that the disputed land was not the Appellant's property and was not part of the land sold to the Appellant. The 1s t Respondent, who adduced evidence as DW1, claimed inter alia that he sold only one acre to the Appellant, not four acres. He said he did not sell the disputed land to the 2n d Respondent; instead, the 3r d Respondent, who was the owner of that area, sold it to the 2nd Respondent. However, the 2n d and 3r d respondent during the trial did not adduce their evidence. After hearing the testimony of the appellant and the 1s t respondent, the trial Tribunal rejected the appellant's claims and declared the disputed piece of land to be the property of the 2n d Respondent. The findings by the Trial Tribunal irritated the appellant, who decided to file the present appeal based on the following grounds of appeal:

1. The trial tribunalgrossly erred in law by hearing and determining the case inter parte against the 1st respondent without setting aside the exparte Order, thereby fatally violating the order and the law. Page 2 of 14

2. That, the trial tribunal grossly erred in law and fact by holding that the disputed land belongs to the 2nd respondent, despite the fact that there was no evidence adduced by the 2nd respondent to support such a conclusion.

3. That, the trial tribunal erred both in law and fact by focusing on a non-disputed area instead o f the one acre o f land in dispute, thereby unfairly and unjustly deciding the case in favour o f the respondents.

4. That, the trial tribunal failed totally to evaluate the evidence available in the records, thereby reaching an erroneous and unjust decision. When the appeal was set for hearing, the appellant was unrepresented, whereas the respondents enjoyed the service of Mr. Isack Chingilile, learned advocate. The appeal was heard by filing written submissions. On the first ground of appeal, the appellant blamed the trial tribunal for hearing and determining the case inter partes against the 1s t respondent without first setting aside the earlier ex parte order. He submitted that the record clearly shows that on 13th April 2023, the Page 3 of 14

tribunal ordered the matter to proceed ex parte against the 1s t respondent, as reflected at page 4 of the typed proceedings. The appellant informed this court that Regulation 11(2) of the Land Dispute Courts (District Land and Housing Tribunal) Regulations, 2003, requires a party dissatisfied with an ex parte order to apply for it to be set aside, and that an appeal to the High Court lies only where such an application is refused. He contended that although the tribunal had issued an ex parte order, the 1s t respondent later appeared on 4th August 2023 and adduced evidence. However, the record is silent as to whether any application to set aside the ex parte order was ever made or granted. He submitted that it is trite law that once a court issues an order, it remains binding on both the parties and the court itself unless and until it is set aside. He believed that the tribunal erred in law by acting contrary to its own order. On that basis, he prayed that the first ground of appeal be allowed and that the proceedings and judgment of the trial tribunal be nullified. On the second ground of appeal, the appellant faulted the findings by the Tribunal that the disputed land belonged to the 2n d respondent despite the absence of any evidence to support such a finding. He stated Page 4 of 14

that although the 2n d respondent filed a Written Statement of Defence alleging ownership of the disputed land, he never appeared at the hearing to prove those allegations or to explain how he acquired the land. By contrast, the appellant submitted that he proved, on a balance of probabilities, how he acquired the disputed land by tendering documents and calling witnesses whose testimony supported his ownership. He submitted that it is a settled principle that the party whose evidence outweighs that of the other must succeed, and that the tribunal therefore erred in deciding the matter in favour of the 2n d respondent, who proved nothing. With respect to the third ground of appeal, the appellant submitted that the trial tribunal focused on a non-disputed area instead of the one acre of land that was actually in dispute, thereby unfairly and unjustly deciding the case in favour of the respondents. He stated that both in his pleadings and testimony, he consistently maintained that the respondents had trespassed on one acre out of four acres. The appellant elaborated that despite this, the tribunal focused on the entire four acres, including three acres that were never in dispute. He further submitted that one of the issues framed by the tribunal was who the lawful owner of the disputed land was. For that, he opined Page 5 of 14

that the tribunal was therefore duty-bound to confine itself to the one acre in dispute. He contended that even if the 1s t respondent claimed to have sold one acre to the appellant, the land in dispute remained one acre. That the consideration of the remaining three acres amounted to a misdirection. Supporting the fourth ground of appeal, the appellant submitted that the trial tribunal wholly failed to evaluate the evidence on record, thereby arriving at an erroneous and unjust decision. He stated that, on his side, he testified on how he acquired the disputed land and tendered a contract, which was admitted without objection as Exhibit PI. He submitted that the exhibit clearly showed that the 1s t respondent sold two portions of land to him, each identified by clear boundaries described in all four cardinal directions. He argued that since the land was unregistered, the description of neighbouring boundaries sufficiently proved the land he purchased. The appellant further submitted that if there had been any doubt as to the size or location of the land, the tribunal ought, in the interest of justice, to have visited the locus in quo. He maintained that his evidence established his case on a balance of probabilities. That, the 2n d respondent, whom the tribunal declared the lawful owner, merely alleged Page 6 of 14

that he purchased the land from the 3rd respondent without adducing any evidence to substantiate that claim, despite being present before the tribunal. Moreover, the appellant explained that it is trite law that the burden of proof is between the parties, and that having discharged his burden, the respondents were under a duty to prove their own claims, which they failed to do. He contended that had the tribunal properly evaluated the evidence, it would have found that the appellant's evidence carried more weight. In conclusion, the appellant prayed that the appeal be allowed with costs and that he be declared the lawful owner of the disputed land. In response, Mr. Isack refuted the appellant's submissions. Regarding the first ground of appeal, the counsel stated that after the 1s t respondent was served with summons, he appeared before the District Land Tribunal for Songwe Mbozi, and after raising an issue in the presence of both parties, a fair hearing was accorded. He emphasized that the 1s t respondent adduced evidence and the appellant was given the opportunity to cross-examine. He noted that if the matter scheduled on 13th April 2023 had resulted in an order for the case to proceed ex parte against the 1s t respondent, any such occurrence was merely a minor Page 7 of 14

mistake by the tribunal chairman, which did not go to the root of the proceedings because the trial tribunal adhered to the principle of fair hearing under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977. He cited the case of Mbeya-Rukwa Autoparts and Transport Limited v. Jestina George Mwakyoma (2003) TLR 251, where it was held that a person should not be condemned unheard and that fair procedure demands both sides be heard (audi alteram partem). He further submitted that the appellant had failed to demonstrate how his rights were infringed. Responding to the second, third, and fourth grounds of appeal, Mr. Isack noted that the appellant had complained that the trial tribunal erred by holding that the disputed land belonged to the 2n d respondent without evidence, by focusing on a non-disputed area instead of the one acre of land in dispute, and by failing to evaluate the evidence. He stated that in Land Application No. 11 of 2023, the appellant sought to be declared the lawful owner of the disputed land, and according to paragraph 6(a)(ii) of his application, he alleged that in 2018, the 1s t respondent sold one acre out of four to the appellant, resulting in conflict and disruption in the locality. Page 8 of 14

Mr. Isack submitted that the appellant was duty-bound to prove his case and could not shift this legal burden to the respondents. He cited Section 117(1) and (2) of the Evidence Act, Cap. 6 R.E. 2023, to support his contention. He contended that in the trial tribunal, the appellant failed to discharge this burden because the evidence adduced was not sufficient to decide the case in his favor on a balance of probabilities. The learned counsel further submitted that while the appellant claimed to have purchased four acres from the 1s t respondent, including one acre allegedly invaded by the 2n d respondent, DWl's evidence contradicted this allegation, stating that he sold the land to the appellant but not the disputed acre. That, the 3r d respondent, a neighbour, sold his land to the 2n d respondent. He argued that the appellant's Exhibit PI and the testimony of his three witnesses failed to supersede DWl's evidence, as no measurement of the land was undertaken. Those boundaries showed that the disputed land had not been sold to the appellant but belonged to the 3rd respondent. He submitted that the trial tribunal properly evaluated the evidence and found that the appellant failed to prove his case. Page 9 of 14

Mr. Isack also cited paragraph 6(a)(i) of the Application, noting that the appellant alleged he purchased four acres on 28/12/2010 for Tsh. 105,000/=, intending to show through Exhibit PI that the disputed land was included. He submitted that the tribunal correctly focused on the disputed one acre in making its decision and cited the tribunal's finding at page 4 of the judgment, which outlined the agreement and disagreement between the parties regarding the extent of the land sold. Finally, Mr. Isack submitted that the appeal as a whole lacked merit and prayed that this Court dismiss it with costs. In rejoinder, the appellant at the outset notified the court that the respondents' written submissions were filed out of the timeline prescribed by the Court, contrary to the Court's order. He cited the case of Avintishi Almas Mligite vs Rehema Nassoro, Land Appeal No. 23 of 2023, and prayed that the respondents' submissions be expunged from the record and the Court proceed to determine the appeal ex parte. Rejoining the first ground, the appellant submitted that the respondents did not dispute the ex parte order but attempted to rely on the overriding objective principle. He argued that this principle does not override mandatory procedural rules. He supported the averment with the Page 10 of 14

case of Senen Edmund Mponda vs Rupin J. Rajani, Civil Appeal No. 367 of 2022. He reiterated that the ex parte order was binding and that the respondents' characterization of the defect as a minor mistake was a mere evasion. Regarding the second, third, and fourth grounds, the appellant emphasized that he had fulfilled his duty to prove his case by producing documentary evidence and witnesses. Having carefully considered the rival submissions, the grounds of appeal, and the record of the trial Tribunal, the issue that requires immediate deliberation is whether the grounds raised are meritorious. I will first discuss the first ground of appeal, and thereafter, where necessary, address the second, third, and fourth grounds jointly as they relate to the evaluation of evidence. Starting with the first ground of appeal, this ground raises a fundamental question on the authority of a tribunal over its own orders and the legal consequences of disregarding them. The parties are in agreement that the Tribunal vacated its order of proceeding exparte and proceeded interparties without there being setting aside exparte order. Page 11 of 14

Indeed, the record shows that on 13th April 2023, the trial tribunal made a formal order directing that the matter proceed ex parte against the 1s t respondent. It is the observation of the court that once the court issued the order, as in the case here, it defined the procedural posture of the case and remained operative unless lawfully vacated. In the present matter, as rightly stated by the appellant, the law which allows the Tribunal to vacate the ex parte order is Regulation 11(2) of the Land Dispute Courts (District Land and Housing Tribunal) Regulations, 2003, which requires a party dissatisfied with an ex parte order to apply for it to be set aside. The Tribunal was not at liberty to ignore its own subsisting order simply because a party appeared without following the prescribed procedure of its order being set aside. If a tribunal were allowed to depart from its own orders without formally setting them aside, it would compromise the integrity of the judicial process. Put differently, the obligation to obey court orders applies with equal force to the court or tribunal that issues them. Page 12 of 14

Having stated as above, it goes without saying that in the present scenario, the tribunal's act of permitting the 1s t respondent to participate in the proceedings without first adhering to the law is fatal. With due respect to Mr. Isack, that omission is not a minor mistake which can be cured by overring objective principle. It is the findings of this court that the overriding objective could not lawfully be invoked to justify the tribunal's conduct, as it does not override mandatory procedure or binding court orders. Having issued an ex parte order, the tribunal became functusofficio\w respect of that procedural decision unless it was formally set aside. The noted irregularity goes to the root of the proceedings. Once the foundation of the proceedings is compromised, the resulting judgment cannot stand, irrespective of the strength of the evidence subsequently adduced. For these reasons, the first ground of appeal succeeds and, by itself, is sufficient to dispose of the entire appeal, rendering it unnecessary to embark on an academic exercise of considering the remaining grounds. Page 13 of 14

As a result, the proceedings conducted after the issuance of the ex p trte order of 13th April 2023, together with the judgment founded thereon, are hereby nullified. The file is remitted to the trial Tribunal to b e dealt with afresh in accordance with the law before a different Chairperson and a different set of Assessors. Appeal allowed with costs. It is accordingly ordered. DATED and delivered at MBEYA on this 18th day of December, 2025. Page 14 of 14