Gedo Dumayay Moyo vs Rashid Salim Rashid and Others (Land Appeal No: 2401 of 2025) [2025] TZHC 8242 (15 December 2025)

IN THE HIGH COURT OF TANZANIA TANGA SUB - REGISTRY AT TANGA LAND APPEAL NO. 2401 OF 2025 (Originating from Application No. 5 of 2018 of District Land and Housing Tribunal for Tanga at Tanga) GEDO DUMAYAY MOYO ............................................................. APPELLANT VERSUS RASHID SALIM RASHID ........................... . .......................... 1 st RESPONDENT RASHID ALLY MADEBE ........................................................ 2 nd RESPONDENT TANGA CITY COUNCIL ....................................................... 3 rd RESPONDENT JUDGMENT K. R. MTEULE, J 11 th December, 2025 & 15 th December, 2025 This is an appeal originating from the decision of the District Land and Housing Tribunal for Tanga at Tanga (DLHT) delivered on delivered on 09th December, 2024 in Application No. 5 of 2018 in favour of the respondents. The appellant instituted the impugned application in the DLHT claiming to be the lawful owner of the disputed land, Plot No. 81/13, Block B, Mnyanjani area, Tanga city, asserting trespass thereon by the Respondent. He claimed to have purchased the plot from one Mwalimu Akida Awali on 29 th November 2012 for TZS 3,500,000/= vide a sale agreement which was executed before the Village Chairman and witnessed by Rashid Amiri. Page 1 of 15 According to the Appellant, in the midst of a process of applying in Tanga City Council for a certificate of title, having initiated survey that demarcated the plot and installed beacons, he discovered that the 1 st respondent, Rashid Salim Rashid, was in possession of the plot, having conducted a separate survey with the Land Office, and implementing construction activities. That upon inquiry at the Land Office, he was informed that the plot was owned by Rashid Ally Madebe. It followed with various complaints by the applicant to the Regional Land Committee, and later to the City Director in December 2016 where he was informed that the lawful owner of the plot was Rashid Ally Madebe since 2006, having been allocated the same by the City Council. On this background, the Appellant instituted Land Application No. 5 of 2018 for among other reliefs, a declaration order that the land in dispute is lawfully owned by the Appellant after having purchased it from the real owner Mwalimu Akida Awali, and that the act of the 3 rd Respondent to register the land in dispute in the name of the 2 nd Respondent was unlawful, null and void and for the order of demolition of the 1 st Respondent's improvements. In the DLHT, the Respondents claimed to have a contract between the previous owner one Mwalimu Akida Awali who surrendered the disputed land to the surveyors in exchange of the survey costs (Exhibit R4). That, it was the said Page 2 of 15 surveyor who in turn, sold the property to the 2 nd Respondent who in turn sold it to the 1 st Respondent. The tribunal observed that the appellant has failed to prove his case, hence dismissed the application with costs. Being aggrieved by the decision of DLHT, the Appellant appealed to this court based on the following grounds; 1. That, the Learned Chairperson of the Tribunal erred in law and facts after deciding the case in favour of the 1 st Respondent and failed to consider that the 2 nd Respondent letter of offer (Exhibit Rl) was procured illegally. 2. That, the Learned Chairperson of the Tribunal erred in law and facts after deciding the case in favour of the 1 st Respondent and failed to consider that the 2 nd Respondent who sold the disputed plot to the 1 st Respondent did not enter appearance before the Tribunal to prove his ownership. 3. That, the Learned Chairperson of the Tribunal erred in law and facts after deciding the case in favour of the 1 st Respondent and failed to conduct proper evaluation of evidence from the trial court proceedings hence resulted to a judgment which containing several irregularities. 4. That, the Learned Chairperson of the Tribunal erred in law and facts after deciding the case in favour of the 1 st Respondent and failed to consider that the evidence of the appellant's and her witnesses are heavier than that of the respondents. Page 3 of 15 In due course of the hearing of this appeal, the appellant appeared through learned counsel Ramadhani Rutengwe, whereas the 1 st and the 2 nd respondents were represented by Obediodom Chanjarika, learned counsel. The 3 rd respondent entered appearance through Mr. Idrissa Mbondela and Mr. Sebastian Danda, learned State Attorneys. Both parties filed their submissions which I proceed to summarize hereto. Mr. Ramadhani Rutengwe for the appellant, submitted on the 1 st ground of appeal, that the transfer of ownership to the 2 nd respondent was illegally procured. He relied on the case of Mwinyihatibu Jumaa Hatibu v. Ridhiwani Jumaa Hatibu, Civil Appeal No. 70 of 2020, where fraudulent transfer was held to be ineffectual. He submitted that although the Tribunal acknowledged the disputed plot to have originated from a land owned and surveyed by Mwalimu Akida Awali (AW2), it failed to explain how it passed to the 2 nd Respondent and then to the 1 st Respondent. He contended that Exhibit R4 which is the purported surrender agreement was an afterthought because it was neither pleaded nor tendered during AW2's testimony, contrary to the principle that parties are bound by their own pleadings as affirmed in NICO Insurance (T) Ltd v. Phil Paul Owoya and Makori J.B. Wassaga v. Joshua Mwaikambo. Page 4 of 15 Mr. rutengwe challenged the respondents' failure to even cross-examine AW2 on the existence of Exhibit R4 which rendered it unreliable. He cited Emmanuel Malimi @ Maliganya v. Republic and Kwiga Masa v. Samweli Mtubatwa. He also submitted that Exhibit R1 was unlawfully issued, inconsistent with section 23 of the Land Act and its mandatory conditions. He supported this position by Samuel Mikl Waweru v. Jane Njeru Richu and Goodluck Yesse Moshy v. Tanga City Council. For the 2 nd ground of appeal, the Appellant submits that although the 2 nd Respondent who was the seller of the suit land to 1 st respondent, filed a written statement of defence, he failed to enter appearance to defend his alleged ownership of the disputed plot. Mr Rutengwe further submitted that the Appellant, demonstrated the invalidity of the chain of respondents' ownership. In respect of the 3 rd ground of appeal, Mr Rutengwe submitted that the Tribunal Chairperson, at pages 15 th to 16 th of the judgment, made a finding suggesting a private arrangement between AW2 and the surveyor, despite the absence of such evidence. It is argued that the Tribunal introduced its own narrative, thereby contravening the principles under section 127 of the Evidence Act, Cap. 6. Page 5 of 15 For the last ground of appeal, Mr. Rutengwe submitted that the Appellant's evidence was heavier than the respondent's evidence. And that, he proved her case to the standard required by law. For the 1 st and 2 nd Respondents, Mr. Chanjarika opted to argue ail the grounds jointly. He submitted that the suit plot was lawfully allocated to the 2 nd Respondent in 2006 and sold to the 1 st Respondent in 2012. He submitted that the Appellant's alleged purchase in 2012 was therefore null and void. According to him, Exhibit R1 which is the letter of offer and the testimony of the Land Officer (RW3) proved the Respondents' ownership, notwithstanding the non- appearance of the 2 nd Respondent to testify. Mr. Chanjarika cited Barelia Karangirangi v Asteria Nyalwamba, Civil Appeal No 237 of 2017, on the principle that he who alleges must prove under sections 110 and 111 of the Evidence Act emphasizing that the Appellant did not prove a better ownership over the disputed land. In the 3 rd respondent's submission, Mr. Mbondela, learned SA submitted in respect of the 1 st ground of appeal that, although the Appellant alleged Exhibit R1 to have been unlawfully procured, no witness from the issuing authority was called and no documentary evidence was produced to challenge its authenticity based on the fact that mere allegations without evidence cannot Page 6 of 15 invalidate a lawful document. He added that, the Trial Tribunal found no irregularity in Exhibit Rl. On the 2 nd ground of appeal, Mr. Mbondela SA submitted that the allegation that the Respondent failed to prove ownership is unfounded. According to him, under section 110 of the Evidence Act, the burden of proof rests on the party who alleges, and the Appellant, failed to adduce any valid documentary evidence of ownership, comparing to respondent who tendered Exhibit Rl. On the 3 rd ground, the 3 rd Respondent submitted that the Trial Tribunal observed the witnesses, assessed their credibility, and found that the alleged witness inconsistencies did not go to the root of ownership and were insufficient to disturb its findings. Applying the principle in Damian Ruhele v Republic, Criminal Appeal No 501 of 2007, he stated that the Appellant did not meaningfully challenge the Respondent's witnesses on the alleged inconsistencies. Lastly, he stated the position of the law under Section 143 of the Evidence Act that no particular number of witnesses is required to prove any fact. Basing on parties' rival submissions, I now determine the merits or demerits of the Appeal. The 1 st ground of appeal, concerns the illegality of Exhibit Rl which is the letter of offer issued to the 2 nd Respondent. I should point out that Page 7 of 15 it is not disputed that one Mwalimu Akida who sold the disputed land to the Appellant was originally its lawful owner and that she surveyed it to have several plots including the one he sold to the Appellant. The Respondents claimed that Mwalimu Akida sold the plot to the Appellant while he had already surrendered it to the surveyors to cover the survey price. The issue is whether the appellant's plot was offered to the surveyors as a price for the survey exercise. It is apparent from the submissions of the parties that the appellant, has raised three (3) points of contention, namely the legality of the procurement of the 2 nd respondent's letter of offer (Exhibit R4) and its evidential weight, the alleged procedural irregularities surrounding the transfer of the disputed plot from the original owner to the respondents, and the asserted failure by the Tribunal to properly evaluate the respondents' documentary evidence vis-a-vis the appellant's claims. On illegality surrounding Exhibit Rl, inquiry must rightly begin with the agreement entered between PW2, (Mwalimu Akida Awali), and the land surveyor, Bernard Mwakigonja. According to Mr. Rutengwe, the said arrangement generated agreement labelled as Exhibit R4, from which the subsequent administrative land process leading to the issuance of Exhibit Rl- (letter of offer) derived its legal foundation. However, allegations of illegality must be tested against the evidentiary record and established legal principles. Page 8 of 15 The authority cited by Mr. Rutengwe in Mwinyihatibu Jumaa Hatibu vs Ridhiwani Jumaa Hatibu (Civil Appeal No.70 of 2020) [2023] TZCA 17620 (18 September 2023) TanzLii is relevant in this matter. It emphasized that illegality must be proved by credible evidence and cannot be presumed. Upon re-evaluation of the evidence as a first appellate court, I notice that the fulcrum of the dispute on the first ground of appeal is not merely the facial validity of the letter of offer (Exhibit Rl), but rather the legality of the prior transaction alleged to have dispossessed Mwalimu Akida Awali (AW2) the ownership and vested the same in Bernard Mwakigonja, upon which Exhibit R4 and the subsequent chain of title are anchored. Both parties are ad idem that the root of title traces back to AW2 with no dispute on that prior ownership. The Appellant's narrative is that AW2, having lawfully owned and demarcated the land, sold the suit plot to the Appellant on 29 th November 2012. Mr Chanjarika, conversely, posits that AW2 forfeited the suit land to a private surveyor, Bernard Mwakigonja, in lieu of survey fees, culminating in Exhibit R4, which streamed the allocation to the 2 nd Respondent by letter of offer dated 27 th February 2006, and ultimately the transfer to the 1 st Respondent. The determinative issue therefore is whether the alleged agreement between AW2 and Bernard Mwakigonja was lawful and capable, in Page 9 of 15 law, of conferring proprietary rights sufficient to sustain the subsequent issuance of Exhibit Rl. I have scrutinized Exhibit R4 which is vehemently challenged by Mr. Rutengwe, and noticed that it does neither contain a clear and unequivocal description of the property alleged to have been transferred, nor does it satisfactorily demonstrate that, at the time of its execution, the suit land had already been registered into an identifiable plot known as Plot No. 81/13, Block B, Mnyanjani. The evidential difficulties surrounding Exhibit R4 are further compounded by the fact that Bernard Mwakigonja, the alleged transferee and a central actor in the Respondents' chain of title, did not testify in the DLHT. Instead, the testimony concerning the alleged private arrangement between AW2 and the said surveyor was testified through RW3, a government land officer, who expressly acknowledged that Bernard Mwakigonja was a private surveyor. As a matter of law, a witness may only testify to facts within his personal knowledge or derived from admissible records pursuant to section 67 (1) (a)- (d) of the evidence Act Cap 6 R.E 2023. Evidence of transactions conducted privately, in the absence of the contracting party and unsupported by official documentation, falls squarely within the realm of hearsay which is inadmissible Page 10 of 15 in our courts as decided in Meneja Mkuu Zanzi Resort Hotel vs Ali Said Paramana (Civil Appeal 296 of 2019) [2020] TZCA 1920 (18 December 2020). Again, I am mindful that Exhibit R4 was admitted pursuant to Regulation 10(2) of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, GN No. 174 of 2023, which permits production of additional documents during proceedings. While procedurally lawful, the timing of its introduction that was on 27 th August, 2024 after AW2 had already testified and appellant had already closed his case since 30 th march, 2023, as challenged by Mr Rutengwe, exact materially prejudiced the Appellant's case. The absence of an opportunity for AW2 to confront, explain, or rebut the contents of Exhibit R4 goes to the heart of procedural unfairness hence diminishing the wight of Exhibit R4. The above scenario in Exhibit R4 raises legitimate doubt as to its authenticity. I am of a position that, documents purporting to transfer interests in land must be clear, certain, and traceable to an existing legal interest. Refer to Haruna Mpangaos & Others vs Tanzania Portland Cement Co. Ltd (Civil Appeal 129 of 2008) [2010] TZCA 57 (8 September 2010) TanzLii. I concur with Mr. Mbondela and Mr. Chanjarika that allegations of illegality must be supported by evidence, this Court is persuaded that the Appellant's challenge Page 11 of 15 is not a bare allegation but a substantive attack on the legality of the root transaction upon which Exhibit R1 depends. Where the foundation is shown to be infirm, the superstructure cannot stand. The principle that a title, though regular on its face, may be impeached upon proof of illegality or fraud in its procurement is well established as illustrated by the Court of Appeal in Mwinyihatibu Jumaa Hatibu v Ridhiwani Jumaa Hatibu, (supra). Accordingly, this Court finds that the legality of Exhibit R4 was not satisfactorily established, and the Tribunal erred in law by relying on it to validate the subsequent issuance of Exhibit Rl. The first ground of appeal is therefore meritorious. From the submissions advanced under the 2 nd , 3 rd , and 4 th grounds of appeal, it becomes apparent that the issues raised converge upon a singular central question, as to whether the evidence on record was sufficient to establish that the Appellant duly discharged the burden of proof of ownership of the suit land. This issue will centers on the appellant's assertion;- firstly, that the 2 nd respondent's non-appearance undermined the validity of the transfer of ownership; secondly, that the alleged failure by the Tribunal to properly evaluate the evidence rendering to irregularity in decision, and thirdly, the contention that the appellant's evidence was allegedly weightier than that of the respondents. Page 12 of 15 I agree with Mr. Rutengwe that the 2 nd respondent's failure to appear before the Tribunal rendered the transfer of ownership legally questionable. The Argument by Mr. Chanjarika and Mr. Mbondela that Exhibit R1 evidenced a lawful transfer, cannot stand because on the strength of the analysis done in the 1 st ground of appeal, Exhibit R1 is already found to have been incapable of conferring lawful title to the Respondent. I am of the considered view that the evidential foundation of the Respondents' case was fatally weakened, rendering the 2 nd Respondent's failure to testify a material omission which left the alleged transfer unproven in law. It is a settled principle, as codified under section 117 of the Evidence Act, Cap. 6 R.E. 2023 and affirmed in Registered Trustees of Joy in the Harvest v Hamza K Sungura, Civil Appeal No. 149 of 2017 [2021] TZCA 139, that the burden of proof lies upon the party who asserts a fact. In the present matter, once the legality of Exhibit R1 was impeached, the Appellant bore the burden of proving ownership. The Appellant testified that he purchased the suit land from AW2 (Mwalimu Akida Awali) on 29 th November 2012, and this evidence was consistent with the undisputed finding of the Tribunal itself that the suit plot originated from the farm of AW2 which was surveyed and subdivided. Unlike the Respondents' case, the Appellant's root of title was traced to a known and acknowledged owner Page 13 of 15 whose possession pre-dated the impugned allocation. The principles enunciated in Registered Trustees of Holy Spirit Sisters Tanzania v January Kamili Shayo and Others, Civil Appeal No. 193 of 2016 [2018] TZCA 773, that ownership must be traced to a valid root of title, do not operate to defeat the Appellant's claim in the peculiar circumstances of this case, where the competing registered interest has been found to be unlawful. The law does not protect an illegality, and once the presumption attaching to a letter of offer or title is rebutted, the Court is entitled to examine factual ownership and prior possession in determining the rightful owner. Accordingly, I find that the Tribunal misdirected itself in law and fact by failing to properly evaluate the evidence and by placing undue weight on a defective title while discounting the Appellant's credible and consistent testimony. The principle stated in Samson Ryumba v Edwin Karani Marko, Land Appeal No. 143 of 2018 [2020] TZHCLandD 20, that a letter of offer or certificate of title carries a presumption of regularity, is inapplicable where, as here, that presumption has been successfully displaced. From the foregoing, it is my finding that the evidence tendered by the Respondents was insufficient to defeat the appellant's evidence on ownership since there was no evidence of transfer of such ownership to one Bernard Mwakigonja. Since there was no sufficient evidence of transferer of the title of the suit land to Bernard Mwakigonja, then Page 14 of 15 there couldn't be a lawful transfer to the 2 nd Respondent and eventually to the 1 st Respondent. In the result, I am satisfied that the Appellant discharged the burden of proof on the ownership of the suit land Plot No. 81/13, Block B, Mnyanjani area, Tanga city. Therefore the 2 nd , 3 rd and 4 th grounds of appeal are meritorious. The appeal is accordingly allowed in its entirety in favour of the Appellant with costs. The decision of the District Land and Housing Tribunal is hereby quashed and set aside. It is so ordered Date^t Tanga Region this 15 th Day of December, 2025 W KATARINA REVOCATI MTEULE E \ JUDGE Court: Judgment delivered virtually on this 15 th day of December, 2025 in the presence of Ramdhani Rutengwe learned Counsel for the appellant, also holding brief for Obediodom Chanjarika, learned counsel for the 1 st and 2 nd Respondents, and Kefa Anase learned state Attorney for 3 rd respondent. REVOCATI MTEULE JUDGE 15 th December, 2025 Page 15 of 15