| dc.description | MARY AGNES MPELUMBE IN HER CAPACITY AS ADMINISTRATRIX OF THE ESTATE OF ISAYA SIMON MPELUMBE VS SHEKHA NESSER HAMUS
COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
(NDIKA, KENTE, MAKUNGU, JJ.A.)
CIVIL APPEAL NO. 136 OF 2021
(From the Decision of the High Court of Tanzania, Land Division at
Dar es Salaam) (Nchimbi, J.) dated the 28th day of November, 2013
in Land Case No. 89 of 2013)
Evidence Act- Burden of proof-a person alleges existence or non-existence of a fact-Whether he has a burden to prove
Evidence Act-evidence and proof in civil proceedings-Standard of proof in civil cases-whether it is on balance of probability
Evidence Act-Burden of proof-who has the burden to prove existence or non-existence of a fact- at what time does the burden shifts
This appeal arises from the decision of the High Court of Tanzania (Land Division) at Dar es Salaam (Nchimbi, J as he then was) in Land Case No. 89 of 2008 (hereinafter "the suit"). In that court, the appellant, Isaya S. Mpelumbe (now deceased) instituted the suit against the present respondent, Shekha Nasser Hamud seeking to be declared the lawful owner of the parcel of land, Plot No. 224, Block "D" situated at Tegeta area within the City of Dar es Salaam ("the disputed land"). The appellant contended that he was the legal occupier of the disputed land by virtue of a right of occupancy granted vide a certificate of title No. 44083 issued to him on 8/12/1994. The respondent denied the claim contending that the disputed land was allocated to her by the same authority vide a letter of offer dated 1/4/1986. Her evidence was supported by one Ndemi Festo Ulomi (DW2) who was at the material time an official of the Ministry in the Land Administration Department. He testified that his department dealt with the dispute between the parties over ownership of the disputed land. It was his evidence further that, after having inspected the file which related to the allocation of the disputed land, he found out that there was double allocation which was perpetuated through a forgery whereby the folios in the relevant file were tempered with for the purpose of attempting to show that the appellant was the first to be allocated the disputed land. The High Judge decided in favour of the Respondent and the Appellant being aggrieved by that decision lodge this appeal. When the appeal was called for hearing the Court directed the parties to address it on the first and second ground of appeal which were to the effect that;
1. That the Honourable High Court erred in law and fact by failure to determine on issue of whether the letter of offer to the Defendant (Respondent) is a forged document on the grounds which were specifically raised and argued;
2. That the Honourable High Court erred in law and fact by failure to analyse and evaluate the evidence on lack of authenticity of the respondent's letter of offer;
Held
(i). We are also guided by the basic rule that he who alleges has the burden of proof as per section 110 of the Evidence Act, Cap. 6 R.E. 2019.
(ii) Standard of proof in a civil case is on a preponderance of probabilities, meaning that the Court will sustain such evidence that is more credible than the other on a particular fact to be proved.
(iii). The burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his burden and that the burden of proof is not diluted on account of the weakness of the opposite party's case.
Appeal allowed
Statutory Provisions referred to:
1. Evidence Act, Cap. 6 R.E 2019 Sections 34 and 110
2. Court of Appeal Rules Rule 36(1)
Cases referred to:
1. Jamal A. Tamin v. Felix Francis Mkosamali & the Attorney General, Civil Appeal No. 110 of 2012 (unreported).
2. Paulina Samson Ndawanya v. Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 (unreported)
3. Patman Garments Industries Limited v. Tanzania Manufacturing Ltd [1981] TLR 303
Mr. Novatus Michael Muhangwa, Learned Counsel for the appellant
Mr. Gasper Nyika, learned Advocate for the Respondent | en_US |
