Rusia Hezlon and Another vs Aron Mwaweza (Land Appeal 57 of 2019) [2021] TZHC 5833 (26 August 2021)

Key Facts

Issues

• The respondent challenged the appeal's competence for not being accompanied by copies of the primary court judgment and decree. The court found the court record was sufficient, upholding the appeal's validity under Order XXXIX Rule 1 (1) of the Civil Procedure Code.
• The court had to resolve whether the respondent acquired the land through a 1997 primary court decree against Matai Mlagila, or whether the appellants inherited the land from their deceased mother who occupied it since 1984. The judgment focused on the validity of the respondent's claims given unproven court documents and contradictions in witness testimony.

Holdings

• The court found material contradictions in the respondent's evidence, including conflicting dates for when he acquired the land (1998 vs. 2003) and his claim of non-use between 1998 and 2017 without specifying caretakers, which weakened his credibility.
• The court determined that the appellants, having inherited the land from their deceased mother, are the rightful owners. The Tribunal's ruling in favor of the respondent was quashed, and the respondent was ordered to pay costs to the appellants.
• The court held that the Tribunal erred in taking judicial notice of the primary court's decree without requiring the respondent to produce the actual judgment and decree, as mandated by section 59 (3) of the Evidence Act. The respondent's failure to provide these documents undermined his claim to ownership through court execution.
• The court ruled the appeal competent as the necessary judgment and decree copies were included in the court record, even if not in the served memorandum. This allowed proper consideration of the legal merits.

Remedies

• The appeal was allowed, leading to the reversal of the Tribunal's ruling and the appellants being declared the rightful owners of the land.
• The respondent was ordered to pay the costs of the suit to the appellants as part of the appeal's outcome due to the court's findings.
• The court quashed the Tribunal's judgment and decree in favor of the respondent, as the respondent failed to prove the existence of the primary court decree and judgment relied upon.

Legal Principles

• The court emphasized that the respondent had the burden to prove the existence of the primary court decree and judgment under section 110(1) of the Evidence Act. The trial Tribunal erred by accepting the respondent's uncorroborated testimony without requiring documentary evidence as mandated by section 59(3) of the Evidence Act.
• The court applied the 'balance of probabilities' standard to assess the respondent's claim. Due to contradictions in the respondent's evidence and lack of documentary proof, the standard of proof was not met, invalidating the original Tribunal's decision.

Precedent Name

• Zena Charles v. Daniel Mpamba and 6 Others
• Ernest Sebastian Mbele v. Sebastian Sebastian Mbele & 3 Others

Cited Statute

• Evidence Act, Cap 6 R.E. 2019
• Civil Procedure Code, Cap 33 R.E. 2019

Judge Name

Passage Text

• I have gone through the proceedings and found material contradictions between the respondent (PW1) and his witness, PW2. While the respondent claimed that he obtained the land in dispute on 03rd July 1998, PW2 stated that he handed the land upon effecting the primary court order on 01st February 2003. The law is clear that when there are material contradictions between the witnesses, the credibility of the witnesses' testimony is diminished.
• In consideration of the above observation, I find that it was highly important for the respondent to prove that he acquired the suit land through execution of a court decree against the said Matai Mlagila. The trial Tribunal erred in acting on the respondent's mere assertions regarding the court decree without concrete proof.
• In consideration of the fact that the respondent failed to prove the existence of the alleged primary court judgment, decree and order for execution over the land in dispute, this court finds that the appellants are the rightful owners of the suit land, having acquired the same through inheritance from their late mother. Consequently, the Tribunal judgment and decree are hereby quashed. The respondent shall pay costs of the suit to the appellants.