| dc.contributor.author | MUGASHA, KEREFU, J.A. And KIHWELO. J.A. J.A. | |
| dc.date.accessioned | 2023-05-05T08:30:27Z | |
| dc.date.available | 2023-05-05T08:30:27Z | |
| dc.date.issued | 2022-07-18 | |
| dc.identifier.uri | http://localhost/handle/123456789/1229 | |
| dc.description | IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUGASHA. J.A.. KEREFU. J.A.. And KIHWELO. J.A. CIVIL APPEAL NO. 197 OF 2019
MARTIN FREDRICK RAJAB VS. ILEMELA MUNICIPAL COUNCIL RESPONDENT
SYNERGY TANZANIA COMPANY LIMITED.
[Appeal from the Judgment of the High Court of Tanzania at Mwanza]
(Maiae J)
Law of Evidence - Burden of proof – to whom the burden of proof in civil cases lies apon.
Civil practice and procedure – Pleadings of court – whether Parties are bound by their own pleading.
Martin Fredrick Rajab unsuccessfully sued Ilemela Municipal Council and Synergy Tanzania Company Limited, the 1st and 2nd respondents respectively, seeking to be declared a lawful owner of a piece of land located at Ibanda area in Kirumba Ward Ilemela District. He alleged to have purchased from five occupants surveyed land which was later illegally surveyed by the 1st respondent who allocated it to the 2nd respondent as Plot No. 162 i Block 'A' Mihama, Ilemela Municipality hereinafter referred to as the suit property. The appellant prayed that, he be declared as the lawful owner, the allocation of the suit property by the 1st respondent to the 2nd respondent be declared illegal and payment of costs or other reliefs as the trial court deemed fit.
After a full trial, the High Court dismissed the appellant's suit on grounds that, he had failed to prove his claims having not availed the description of the suit property be it in the pleadings or the evidence and that, the claim on the whole of Plot No. 162 Block 'A' Mihama as pleaded was at cross roads with the appellant's account on the purchased land which was alleged to constitute the suit property. Undaunted, the appellant has preferred this appeal fronting three grounds of complaint as hereunder.
HELD
i) Parties are bound by their 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. the appellant was required to parade evidence to support what he had earlier pleaded and not to depart from his pleadings in respect of what constituted the suit property.
ii) The burden of proof lies on the Plaintiff who brought action in the court and the case is proved on the balance of probabilities.
Cases referred.
Anthony Masanga v. Penina Mama Ngesi and Another, Civil Appeal No. 118 of 2014,
Godfrey Sayi v. Anna Siame (as Legal Representative of the Late Mary Mndolwa), Civil Appeal No. 45 of 2017.
Hamza Byarushengo v. Fulgencia Manya and Four Others, Civil Appeal No. 33 of 2017 (all unreported).
Agatha Mshote v. Edson Emmanuel and 10 Others, Civil Appeal No. 121 of 2019 (unreported).
Agatha Mshote v. Edson Emmanuel snd 10 Others
Makori Wassaga v. Joshua Mwaikambo & Another [1987] TLR 88 | en_US |
| dc.description.abstract | i) Parties are bound by their 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. the appellant was required to parade evidence to support what he had earlier pleaded and not to depart from his pleadings in respect of what constituted the suit property.
ii) The burden of proof lies on the Plaintiff who brought action in the court and the case is proved on the balance of probabilities. | en_US |
| dc.language.iso | en | en_US |
| dc.publisher | THE COURT OF APPEAL OF TANZANIA, MWANZA. | en_US |
| dc.subject | MWANZA. | en_US |
| dc.title | MARTIN FREDRICK RAJAB VS. ILEMELA MUNICIPAL COUNCIL AND ANOTHER CIVIL APPEAL NO. 197 OF 2019. | en_US |
| dc.title.alternative | CIVIL APPEAL NO. 197 OF 2019. | en_US |
