IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM

( CORAM: WAMBALI. 3.A.. KEREFU. 3.A. And MAIGE. J.A.>

CIVIL APPEAL NO. 365 OF 2019

MARIA AMAN DUS KAVISHE...................................................... APPELLANT
VERSUS
NORAH WAZIRI MZERU (Administratrix of the
Estate of the late SILVANUS MZERU)............................
................... 1st RESPONDENT
MAJEMBE AUCTION MART............................................. 2nd RESPONDENT

(Appeal from the Judgment and Decree of the High Court of Tanzania,
Land Division at Dar es salaam)
(Mohamed. J.l

dated the 11th day of October, 2019

in
Land Case No. 220 of 2015

JUDGMENT OF THE COURT

10* & 2(?h February, 2023.
KEREFU. J.A.:

Before the High Court of Tanzania, Land Division at Dar es Salaam,

Maria Amandus Kavishe, the appellant herein unsuccessfully sued Norah

Waziri Mzeru (Administratrix of the estate of the late Silvanus Mzeru) and

Majembe Auction Mart, the first and second respondents, respectively

seeking to be declared a lawful owner of a piece of land (the suit premises)

located at Lukoo, Chanika within Iiala Municipality in Dar es Salaam. It was

the appellant's claim that on 2nd December, 2005 she purchased the suit

premises measuring two acres from one Hassani Said Mnongo at a

consideration of TZS 4,000,000.00 and later she purchased adjoining

parcels of land from different persons through oral agreements and

ultimately, she constructed a fence wall enclosing the suit premises.

However, on 8th July, 2015, the second respondent, under the instruction

of the first respondent, forcefully attempted to evict her from the suit

premises. The appellant initially reported the matter to the police and

subsequently, she instituted a suit against the respondents praying for the

following reliefs: (i) a declaration that she is the lawful owner of the suit

premises; (ii) a permanent order restraining the respondents from entering

the suit premises; (iii) general damages at the tune of TZS

100,000,000.00; and (iv) costs of the suit.

In their joint written statement of defence, the respondents disputed

the appellant's claims and in addition, the first respondent raised a

counterclaim stating that the lawful owner of the suit premises was her late

husband, Silvanus Adrian Mzeru. She maintained that, her late husband

purchased pieces of land comprised about ten (10) acres fenced and

constructed houses, apartments and storage structures therein. It is on

record that, the said Silvanus Adrian Mzeru died intestate on 29th April,

2014 and the first respondent, his wife, was appointed administratrix of his

estate. As such, the first respondent prayed for the following reliefs: (i) a
declaration that the appellant is a trespasser into the suit premises; (ii) an

order for eviction of the appellant from the suit premises; (iii) payment of

mesne profits from the date of unlawfully occupation of the suit premises

to the date of eviction; (iv) payment of TZS 12,000,000.00 being expenses

incurred to evict the appellant from the suit premises; (v) payment of

general damages, and (vi) costs of the counterclaim.

At the trial, the controlling issues were: One, who is the lawful owner

of the suit premises; two, who is the trespasser at the suit premises; and

three, what reliefs are the parties entitled to. To establish the said issues,

the appellant marshalled two witnesses including herself with one

documentary evidence (exhibit PI) whereas the respondents summoned

five witnesses and tendered two documentary evidence which were

collectively admitted in evidence as exhibit Dl.

Brief evidence of the appellant who testified as PW1 was that, on 2nd

December, 2005 she purchased two acres of un-surveyed land for a sum of

TZS 4,000,000.00 from one Hasan Saidi Mnongo vide a sale agreement

(exhibit PI) issued and witnessed by one Abdallah Pazi, the Chairperson of

the Local Government Authority at Chanika, Lukooni. That, exhibit PI was

also witnessed by Said Mohamed @ Mtimkavu and Said Yusufu Johora.

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PW1 went on to testify that, she later purchased adjoining parcels of land

from different persons through oral agreements thus, the suit premises

comprised of about five acres and is now described as Plot No. 424 Area

'B', Block 8 Chanika Chabuku Lukooni. That, she had been living in the suit

premises, constructed different houses and also doing poultry business

therein.

PW1 stated further that, on 8th July, 2015, a group of people, who

introduced themselves as officials and workers of the second respondent,

invaded the suit premises claiming that they had been instructed by the

first respondent to evict her from the suit premises. She reported the

matter to the police and later instituted the current suit. The evidence of

PW1 was supported by Madaraka Dilunga (PW2), a mason who testified

that he was employed and paid by PW1 to construct different structures at

the suit premises.

The first respondent, who testified as DW5 narrated the chronological

account of the matter and specifically on how she was appointed an

administratrix of the estate of her late husband, who died intestate on 29th

April, 2014 and how she found PW1 unlawfully occupying the suit

premises. It was the testimony of DW5 that, the lawful owner of the suit

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premises was her late husband who purchased pieces of land comprised

about ten (10) acres from Misha Miraji Hango, Halima Salum Mkambala

and Hamza Selemani Mdohoma. She tendered in evidence two sale

agreements (exhibit Dl) to that effect, dated 17th March, 2010 for a parcel

of land measured about 1.75 acres and the second one dated 31st August,

2010 for a parcel of land measured about 4 and % acres of land. DW5

testified further that she was not present during the said transactions but

the two agreements were issued and witnessed by one Abdallah Pazi, the

Chairperson of the local government authority at Chanika, Lukooni. That,

upon purchase of the suit premises, the late Silvanus Adrian Mzeru fenced

it, constructed houses, apartments and storage structures and employed

security guards to guard the suit premises. She said, surprisingly, in

October, 2014 while making a follow up of the deceased's estate, she

discovered that the appellant had trespassed and was illegally occupying

the suit premises and had changed the security guards. The said new

guards denied her accesses claiming that the owner of the suit premises is

the appellant.

In their testimonies, Ally Hussein Gundura (DW1) and Ramadhani

Abdallah Masikini (DW2), who introduced themselves as masons and

foremen of the of the first respondent's husband at diverse periods

between 2000 and 2009 during construction of fence and several

structures at the disputed premises. They both testified that, it was the late

Silvanus Adrian Mzeru who provided them with building materials and

labour charges at the suit premises and they denied to have known or even

seen the appellant at the suit premises prior to Mr. Silvanus's death. DW2

added that, in 2009, the late Silvanus Adrian Mzeru gave him TZS

36,000,000.00 to purchase a 4-acre parcel of land from Hamza Selemani

Mdohoma on his behalf and he tendered a sale agreement dated 11th

August, 2009 to that effect but it was rejected on account of an objection

raised by the counsel for the appellant that it was secondary evidence.

It is noteworthy that, on 3rd June, 2016, the trial court conducted a

visit at the focus in quo to verify the evidence adduced by the parties at

the trial. During the said visit, the trial court drew a sketch map of the suit

premises which was agreed by the parties to form part of the record. The

said sketch map indicated the whole parcel of land in dispute comprising

segments 'A', 'B', 'C, 'D' and 'E' which were enclosed by a fence wall with

gates linking each segment with the other in one compound. Thereafter,

the trial court summoned Abdallah Said Pazi (CW1) to give evidence on the

said visit and specifically the features on the sketch map. However,

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according to the record of appeal, the evidence of CW1 was disregarded by

the trial court for being tainted with contradictions and inconsistencies.

Having heard the evidence of the witnesses for both sides, the trial

court was satisfied that the appellant had failed to prove her case to the

required standard. Thus, the appellants' suit was dismissed with costs. On

the counterclaim, the trial court concluded that the appellant is a

trespasser and she was ordered to vacate the suit premises. The appellant

was also condemned to pay costs of the counterclaim.

The decision of the High Court prompted the appellants to lodge the

current appeal to express her dissatisfaction. In the memorandum of

appeal, the appellant has preferred five grounds of appeal:

1. The trial court erred in iaw and fact for failure to analyze the
evidence adduced in court, instead, it issued its decision basing on
persona! conviction, sentiments and extraneous matters;

2. The trial court erred in law and fact when it entered judgment on
counterclaim, against the appellant in absence o f any analysed
evidence to substantiate the said claim;

3. The trial court erred in iaw and fact upon deciding that the whole
suit premises belongs to the first respondent despite the available
evidence including visiting o f the locus in quo proving area W on
the court's sketch map belongs to the appellant;

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 4. The trial court erred in law and fact in deciding that the suit
premises beiongs to the first respondent despite the fact that she
did not attend the visit to the locus in quo and indicate boundaries
of the suit premises; and

5. The trial court erred in law and fact by disregarding the testimony
o f its own witness without appreciating that he witnessed the sale
agreements admitted as exhibits.

At the hearing before us, Messrs, Charles Mutakyahwa and Sigsbert

Ngemera, both learned counsel appeared for the appellant whereas the

respondents were represented by Mr. Daimu Halfani, learned counsel. In

compliance with Rule 106 (1) and (7) of the Tanzania Court of Appeal

Rules, 2009 both parties had earlier on lodged their respective written

submissions and reply written submissions in support of and opposition to

the appeal, which they fully adopted. We commend the learned counsel for

their industry. However, we hasten to remark that, we will not recite each

and every fact comprised in the submissions but we can only allude to

those which are conveniently relevant to the determination of the matter

before us. We will determine the related grounds conjointly.

Arguing in support of the first, third and fourth grounds, Mr.

Mutakyahwa faulted the trial court for failure to analyze the evidence

adduced before it. He argued that, in her evidence PW1 tendered exhibit

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PI which clearly indicated the parcel of land she purchased on 12th

December, 2005 from Hassan Said Mnongo. The said exhibit PI was also

witnessed by CW1 who corroborated the evidence of PW1 after the visit of

the locus in quo by identifying the disputed premises in the sketch map as

area 'A'. He added that, PWl's evidence was also corroborated by the

evidence of DW1 and DW2, as DW1 testified that she was not aware with

the disputed premises and admitted to have not witnessed any sale

agreement while DW2 testified that there was a building in area 'A' of the

sketch map.

Mr. Mutakyahwa also faulted the trial court for failure to find that the

evidence of the respondents was tainted with contradictions and

inconsistences on the dates of purchase and construction of structures at

the suit premises. He argued that, while DW5 exhibited through the sale

agreements (exhibit Dl) that the late Silvanus Adrian Mzeru purchased the

suit premises in 2010, DW1 testified that he was engaged to build the

structures on the suit premises in 2000 and finished in 2002 and DW2

testified that the construction over the area was done in 2008. He thus

faulted the trial court for dealing with extraneous matters and erroneously

concluding that the suit premises belongs to the late Silvanus Adrian

Mzeru.

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 Upon being probed by the Court/ as to whether the description and

size of disputed premises claimed by the appellant under paragraphs 4, 8

and 9 of the plaint are compatible with the evidence adduced by the

appellant during the trial and/or after visit of the locus in quo, Mr.

Mutakyahwa conceded that the same are not compatible. He argued that,

although in the pleadings the appellant pleaded that she bought the suit

premises from one Hasani Said Mnongo and later purchased other parcels

of land surrounding the suit premises, after the visit of the locus in quo,

she decided to only stick to the two acres in exhibit PI which is area 'A'

indicated in the sketch map. He thus insisted that, if the learned trial Judge

could have properly evaluated the evidence on record, he would not have

come to an erroneously conclusion that the suit premises belongs to the

late Silvanus Adrian Mzeru.

On the second ground, Mr. Mutakyahwa faulted the trial court for

entering judgment on counterclaim against the appellant in absence of

analyzed evidence to substantiate the said claim. He cited the case of

Samwel Kimaro v. Hidaya Didas, Civil Appeal No. 271 of 2018

(unreported) and argued that, it is trite principle of law that a counterclaim

is a cross suit which must be proved if the counter claimer desires to

pursue it. He said that, in this case, DW5 did not prove her counterclaim by

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indicating that she has interest! in the suit premises as she failed to produce

letters of administration, marriage certificate and any inventory showing

that the suit premises was listed as part of the estate of the deceased. He

argued further that, in her evidence, DW5 clearly testified that she did not

know the boundaries of the atea in dispute and she did not even attend

and or appear as a witness during the visit of the locus in quo to show the

exact piece of land she was claiming in the counterclaim.

On the last ground, Mr. Mutakyahwa faulted the trial court for
i

disregarding the testimony of its own witness (CW1). He cited section 62

(1) of the Evidence Act [Cap. 6 R.E. 2019] (the Evidence Act) and argued

that CW1 was credible and reliable witness as he was the then chairperson

of the entire area of Lukooni where the suit premises is located and he
i

witnessed exhibit PI. According to him, CW1 was in a position to

understand better the location, and boundaries of the disputed premises

than DW1, DW2, DW3, DW4 and DW5 who only relied on hearsay

testimony. Based on his submission, he urged us to allow the appeal with

costs.

In his response to the first, third and fourth grounds, Mr. Halfani

challenged the submission by his learned friend by contending that the trial

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court properly analyzed the evidence adduced before it and made a correct

finding that the appellant had failed to prove her claim to the required

standard. To clarify his argument, Mr. Halfani referred us to paragraphs 8

and 9 of the appellant's plaint and argued that the description and the size

of the suit premises claimed by the appellant in the said paragraphs is not

certain as she claimed that she purchased the suit premises from one

Hasan Said Mnongo (2 acres) and later purchased other parcels of land

surrounding the suit premises: from other persons and fenced the entire

area into one compound. Then, during cross examination, at page 175 of

the record of appeal, she testified that, the suit premises consists of five

acres. Later, after visit of the locus in quo she testified that she was only

claiming the area marked 'A' in the sketch map and not the whole fenced

land as she pleaded in the plaint.

Mr. Halfani also referred us to page 169 of the record of appeal

where the appellant gave the descriptions of the suit premises as Plot No.

424 Area B, Chanika Chabuku Lukooni while the pleadings and exhibit PI

indicates that the suit premises is unsurveyed. He contended that, since

parties are bound by their pleadings and the appellant before the trial court

failed to lead evidence to prove her case to the required standard then, the

trial Judge correctly decided the matter in favour of the respondents. As

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such, Mr. Halfani urged us to find that the first, third and fourth grounds of

appeal are devoid of merit.

With regard to the appellant's complaint on the counterclaim, Mr.

Halfani cited Order VIII Rule 12 of the Civil Procedure Code [CAP 33 R.E

2019] (the CPC) and argued that, during the trial, the appellant's case and

the counterclaim were disposed of together and there was no separate

proof for each of them as suggested by the appellant. That, when testified

at the trial, the appellant and the respondents were, simultaneously,

proving and disproving the main case and the counterclaim. It was his

argument that the first respondent managed to defend against the

appellant's claim and proved her counterclaim to the required standard

through her evidence which was corroborated by DW1 and DW2 together

with exhibit Dl. He thus challenged the appellant's complaint that DW5

failed to tender letters of administration, marriage certificate and the

inventor/ to be, nothing but, an afterthought. He clarified that, it is on

record that it was the appellant who sued and pleaded the 1st respondent

in her capacity as administratrix of the estate of the late Silvanus Adrian

Mzeru and, throughout the trial, there was no dispute as to whether the

first respondent was his wife. Mr. Halfani also challenged the submission of

his learned friend on the failure by the first respondent to attend the visit

13
of the locus in quo to be an afterthought as the same was not raised

during and even after the said visit when the court reconvened. It was his

further argument that the said absence did not affect the visit as the first

respondent was duly represented by her advocate and the appellant did

not explain on how she was prejudiced. In that regard, Mr. Haifani urged

us to also find that the second ground of appeal is devoid of merit.

On the last ground, Mr. Haifani argued that the trial court was correct

to disregard the evidence of CW1 as the said witness was unreliable. He

contended that, when the trial court reconvened after the visit, CW1 was

called to explain the features on the sketch map as seen and witnessed

during the visit but to the contrary, he testified on the ownership of the

suit premises. In conclusion, Mr. Haifani prayed for the entire appeal to be

dismissed with costs for lack of merit.

In rejoinder submission, Mr. Mutakyahwa did not have anything to

add, except he urged us to allow the appeal with costs.

On our part, having carefully considered the rival arguments

advanced by the counsel for the parties and examined the record of appeal

before us, the main issue to be considered is whether the appeal by the

appellant is meritorious.

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 Before doing so, it is crucial to state that, this being a first appeal, it

is in the form of a re-hearing, therefore the Court, has a duty to re­

evaluate the entire evidence on record by reading it together and

subjecting it to a critical scrutiny and, if warranted arrive at its own

conclusion of fact - see D.R. Pandya v. Republic [1957] EA 336 and

Jamal A. Tamim v. Felix Francis Mkosamali & The Attorney

General, Civil Appeal No. 110 of 2012 (unreported).

It is a cherished principle of law that, generally in civil cases, the

burden of proof lies on the person who alleges anything in his or her

favour. This is the essence of the provisions of sections 110 (1), (2) and

111 of the Evidence Act. It is equally elementary that, since in this appeal

the dispute between the parties was of civil nature, the standard of proof

was on a balance of probabilities, which simply means that the court will

sustain such evidence which is more credible than the other on a particular

fact to be proved. See: Anthony Masanga v. Penina Mama Ngesi &

Another, Civil Appeal No. 118 of 2014 and Hamza Byarushengo v.

Fulgencia Manya & 4 Others, Civil Appeal No. 33 of 2017 (both

unreported). It is again trite that the burden of proof never shifts to the

adverse party until the party on whom onus lies, discharges his and that

the burden of proof is not diluted on account of the weakness of the

15
opposite party's case. We seek inspiration from the extract in Sarkar's Laws

of Evidence, 18th Edition M.C. Sarkar, S.C. Sarkar and P.C. Sarkar,

published by LexisNexis and cited in Paulina Samson Ndawavya v.

Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017 (unreported),

that:

"...the burden o f proving a fact rest on the party

who substantially asserts the affirmative o f the
issue and not upon the party who denies it; for
negative is usuaiiy incapable of proof. It is ancient
rule founded on consideration o f good sense and should
not be departed from without strong reason..,Until such
burden is discharged the other party is not required to
be called upon to prove his case. The Court has to
examine as to whether the person upon whom
the burden lies has been able to discharge his
burden. Until he arrives at such a conclusion, he
cannot proceed on the basis of weakness o f the
other party... "[Emphasis added].
We also feel compelled, at this point, to restate the time honoured

principle of law that parties are bound by their own pleadings and they

cannot be allowed to raise a different matter without amendments being

properly made. That, no party should be allowed to depart from his

pleadings thereby changing his case from which he had originally pleaded.

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Furthermore, the court itself is as bound by the pleadings of the parties as

they are themselves - see for instance the cases of James Funke

Gwagilo v. Attorney General [2004] T.LR 161, Cooper Motors

Corporation (T) Ltd v. Arusha International Conference Centre

[1991] T.L.R 165 and Barclays Bank (T) Ltd v. Jacob Muro, Civil

Appeal No. 357 of 2019 (unreported).

In the instant appeal, having considered the submissions made by

the parties in the light of the record of appeal, it is clear to us that both

learned counsel for the parties are at one that the size and description of

the suit premises claimed by the appellant under paragraphs 4, 8 and 9 of

the plaint are not compatible with the evidence adduced by the appellant

during the trial and after the visit of focus in quo. We, respectfully, share

similar views and since the pleadings constitute the foundation of a civil

case, we shall let the relevant paragraphs from the plaint speak for

themselves:

4: The plaintiff's claim against the first defendant is for the

declaration that the plaintiff is the rightful owner of the
property situated at Lukoo Chanika within Ilaia
Municipality, Dar es Salaam...;

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 8. The plaintiff is the rightful owner of the disputed land
after she had purchased the said piece o f land from one
Hasani Said M n on g o a n d
9. That, the plaintiff went on purchasing various pieces o f
land surrounding her premise from different persons on
oral agreement basis and thereafter fenced her premise.

From what was pleaded by the appellant above, it is glaring that the

description and the size of the suit premises is not certain and it is at

variance with what she testified before the trial court. Pursuant to the

above principles and Order VII Rule 3 of the CPC, it was incumbent for the

appellant to state in the plaint the proper description and size of the suit

premises she was claiming. Apart from what is amiss in the pleadings, it is

also on record that, although the appellant claimed that the suit premises

is unsurveyed and measured more than two acres, during the trial, as

reflected at page 169 of the record of appeal, she described the suit

premises as Plot No. 424, Area 'B' Chanika Chabuku Lukooni, which

suggested that the suit premises was registered thus distinct from what

was indicated in exhibit PI, though she did not produce any evidence in

the form of documentary evidence to prove that fact. Furthermore, during

cross examination, at page 175 of the record of appeal, the appellant

testified that the suit premises is measured five acres and the whole place

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is surrounded by a wall fence. However, later, after the visit of the locus in

quo, she changed her claim that, she was only claiming the land marked 'A'

in the sketch map and not the whole fenced land as she claimed in the

plaint and testified earlier before the trial court. At this juncture, we deem

it pertinent to subscribe to the decision in the case of David Sironga v.

Francis Arap Muge & 2 Others [2014] Eklr, in which the Court of Appeal

of Kenya which emphasized that:

"It is wefi established in our jurisdiction that the

court will not grant a remedy, which has not been
applied for, and that it will not determine issues,
which the parties have not pleaded. In an
adversarial system such as ours, parties to litigation
are the ones who set the agenda, and subject to
rules o f pleadings, each party is left to formulate its
own case in its own way. And it is for the purpose
of certainty and finality that each party is bound by
its own pleadings. For this reason, a party cannot
be allowed to raise a different case from that which
it has pleaded without due amendment being made.
That way, none of the parties is taken by surprise at
the trial as each knows the other's case is as
pleaded. The purpose o f the rules of pleading is
also to ensure that parties define succinctly the
issues so as to guide the testimony required on

19
 either side with a view to expedite the iitigation
through diminution ofdeiay and expense."

Furthermore, in the case of Makori Wassaga v. Joshua Mwaikambo &

Another [1987] T.L.R 88, the Court stated that:

"A party is bound by his pleadings and can only

succeed according to what he has averred in his
plaint and proved in evidence; hence he is not
allowed to set up a new case."

Similarly, in the current appeal, as correctly found by the trial court

that in proving her case, the appellant was expected to parade evidence to

support what she had earlier on pleaded and not to depart from her

pleadings in respect of what constituted the suit premises. Thus, from what

is gathered in the pleadings and the appellant's oral account at the trial

and at the visit of locus in quo, leaves a lot to be desired on her part as

she completely failed to discharge the evidential burden of proving her

case on the balance of probabilities.

It is our considered view that the pointed contradictions in appellant's

pleadings and oral evidence led to the conclusion that the appellant was

not credible and reliable witness as correctly found by the trial court at

page265 of the record of appeal. It is also apparent at pages 173 to 174

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of the record of appeal that, when the appellant tendered exhibit Pi, she

testified that it was issued by CW1 and witnessed by Said Mohamed @

Mtimkavu and Said Yusufu Johora but she did not summon the said people

to testify at the trial to prove that fact and no reasons were explained for

that failure. Such failure, in our view, entitles the trial court to draw an

adverse inference against the appellant. See for instance the case of

Pendo Fulgence Nkwenge v. Dr. Wahida Shangal, Civil Appeal No.

368 of 2020 (unreported). In the circumstances, we agree with Mr. Haifani

that, the trial court properly analyzed the evidence on record and came to

the finding that the appellant had failed to prove her case to the required

standard. Therefore, the appellant's criticism on the trial court's findings is,

with respect, without any justification. We thus find the first, third and

fourth grounds of appeal devoid of merit.

Moving to the second ground on the appellant's complaint on the first

respondent's counterclaim, we wish to note that, in proving her

counterclaim, the first respondent testified that the lawful owner of the suit

premises was the late Silvanus Adrian Mzeru who purchased pieces of land

comprised about ten (10) acres from Misha Miraji Hango, Halima Salum

Mkambala and Hamza Selemani Mdohoma and she tendered in evidence

two sale agreements, dated 17th March, 2010 for purchase of parcel of land

21
measuring about 1.75 acres and 31st August, 2010 for purchase of parcel

of land measured 4 and 3A acres of land which were collectively admitted

in evidence as exhibit Dl. She also summoned DW1 and DW2, the masons

who testified that they were engaged by the late Silvanus Adrian Mzeru

between 2000 and 2009 to supervise the construction of some buildings on

the suit premises including the fence wall. DW1 and DW2 also testified

that, it was the late Silvanus Adrian Mzeru who provided them with

building materials and labour charges at the suit premises and they both

denied to have known or even seen the appellant at the suit premises prior

to Mr. Silvanus Mzeru's death. In addition, DW2 testified that, under

instructions of the late Silvanus Adrian Mzeru, he purchased the third

parcel of land measured 3Vz acres from Hamza Selemani Mdohoma.

However, the said agreement was not admitted in evidence for being

secondary evidence. It is on record that, the appellant did not challenge

DW2's oral account on that aspect.

We are mindful of the fact that, in his submission, Mr. Mutakyahwa

challenged the evidence of DW1, DW2 and DW5 for being tainted with

contradictions and inconsistencies on the dates of purchase and

construction of structures at the suit premises. However, since we have

already concluded above that the appellant has failed to prove her case to

22
the required standard to challenge the evidence of those witnesses, we

find the submission of Mr. Mutakyahwa to be untenable. We equally agree

with Mr. Halfani that, even the submission made by Mr. Mutakyahwa on

the failure by the first respondent to produce letters of administration,

marriage certificate and inventory, at this stage is, nothing but, an

afterthought as the same were not raised during the trial. It is also on

record that, it was the appellant who sued the first respondent in that

capacity and throughout the trial, she never raised those concerns and or

doubted her capacity and status. We thus equally find the second ground

to have no merit.

Lastly, on the fifth ground on the appellant's complaint that it was

improper for the trial court to disregard the evidence of its own witness,

that is CW1. Having revisited the evidence adduced by CW1 after the visit

of the locus In quo and considered the submissions made by the learned

counsel for the parties, we find no difficult to agree with Mr. Halfani's

submission that the appellant's complaint under this ground is

misconceived. This is so, because, it is the duty of the trial court to

evaluate the evidence of each witness and assess his or her credibility.

CW1 being a court witness, it did not relieve the trial court from evaluating

his evidence and applying the credibility test. It is our considered view that,

23
 N

having evaluated the evidence of CW1 and being satisfied that the said

witness was not credible, the trial Judge was entitled to disregard his oral

evidence. In the event, we also find the appellant's complaint on this

ground with no merit.

In totality and having considered the evidence on record as a whole,

we do not find cogent reasons to vary the decision of the trial court.

Consequently, we hereby dismiss the appeal in its entirety with costs.

DATED at DAR ES SALAAM this 16th day of February, 2023.

F. L. K. WAMBALI
JUSTICE OF APPEAL

R. J. KEREFU
JUSTICE OF APPEAL

I. J. MAIGE
JUSTICE OF APPEAL

The Judgment delivered this 20th day of February, 2023 in the presence
of Ms. Nancy Mosha, learned advocate, and Mr. Daimu Halfani, learned

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