abdallah kibavu vs situkia kibavu 2021 tzhclandd 497 26 august 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 274 OF 2019 (From the Decision of District Land and Housing Tribunal of Ilala District at Ilala in Land Application No. 302 of 2016 dated 27th November, 2019) ABDALLAH KIBAVU.................................................... APPELLANT

VERSUS SITUKIA KIBAVU .......... RESPONDENT

JUDGMENT A. MSAFIRI, J The instant appeal originates from the Judgment and Decree of District Land and Housing Tribunal for Ilala District in Application No. 302 of 2016, delivered by Hon. Mgulambwa, Chairperson on 27/11/2019. In the trial Tribunal's holding, the applicant was declared a lawful owner of the suit land and further the respondent plus his agents were ordered to immediately vacate from the same. The dispute at the trial tribunal was centred on a house with residential license ILA/VNG/MBN 15/147 located at Vingunguti Miembeni area, Ilala District in Dar es Salaam. Both parties at the trial Tribunal claimed to have ownership rights over it, the appellant (then respondent) claiming ownership through sale, while the respondent (then applicant) alleging ownership i through inheritance. Being aggrieved by the decision of the trial Tribunal, the appellant lodged the appeal at hand based on the following grounds; 1. That, the District Land and Housing Tribunal erred in law and in fact for failing to declare that the appellant is the legal owner of the dispute house with residential license ILA/VNG/MBN 15/147 located at Vingunguti Miembeni area, Ilala District in Dar es Salaam.

2. That, the District Land and Housing Tribunal erred in law and in fact for declaring that the suit land located at Vingunguti Miembeni area, Ilala District, Dar es Salaam Region belongs to the respondent's deceased father named the late Sultan Kibavu without any supporting evidence.

3. That, the District Land and Housing Tribunal erred in law and in fact when it adjudicated Land Application No. 302 of 2016 without considering that there was a pending appeal in the High Court of Tanzania that originated from Probate Civil Appeal No. 3 of 2013 from Ilala District Court and Probate cause No. 2490 of 20211 Buguruni Primary Court.

4. That, the District Land and Housing Tribunal erred in law and in fact by failing to record, analyze and consider properly the appellant evidence as a result reached into unjust decision in favour of the respondent. The appellant therefore prayed to this Court for the following orders; (a) That the decision of the Ilala District Land and Housing Tribunal dated 27th November 2019 be quashed and set aside. 2 (b) That this Honourable Court be pleased to declare the appellant as the owner of the disputed house located at Vingunguti Miembeni area, Ilala District, Dar es Salaam. (c) Costs be borne by the respondent. (d) Any other reliefs) this Honourable court may be pleased to grant. At the hearing of this appeal both parties appeared in person. The appeal was disposed through written submissions. In his submission,the appellant abandoned ground No. 3 and argued grounds No. 1, 2 and 4 by consolidating them (jointly). He submitted that, he purchased the disputed land in the year 1963 from one Mwakagulu. In 1964 he started construction of a mud house. In 1965 he moved to the said house with his family and lived there without any disturbance. In 1993 he demolished the mud house and built a new brick house. Appellant stated that in the said house he was living with his brother named Sultan Kibavu who is the respondent's biological father, and that he started to live with Sultan Kibavu

sometimes in 1973, taking care of him. He contended that, his brother Sultan Kibavu died in 1992, however, the respondent continued to live peacefully with the appellant and his family. That, when the respondent was appointed an administratix of her father's estate (the late Sultan Kibavu), she claimed that the disputed house belongs to her late father and she has legal ownership through inheritance. 3 The appellant submitted further that the trial Tribunal erred when it declared the respondent the legal owner of the disputed house when she has failed to prove those allegations. The appellant quoted Section 110(1) and (2) of the Evidence Act and argued that the provision places the burden of proof to whoever desires the court to give judgment as to any legal right or liability dependent on existence of facts which he ascertains. He insisted that, as per the evidence on record, the disputed house does not belong to the respondent's father but to the appellant. He asserted that, after he purchased the disputed plot in 1963, later he took some efforts to obtain a residential licence and it was issued by the authorities. That the residential license ILA/VNG/MBN 15/147 prove that the disputed house belong to none other than the appellant. He added that the tribunal Chairperson was wrong when he stated that the residential licence tendered by the appellant does not warrant lawful

ownership of the disputed land, and that the same licence is declared ineffectual. The appellant argued that the residential licence was procured in 2012 and was issued by the respective authorities. The appellant submitted that he has strong evidence compared to that of respondent and cited the case of Hemed Said Vs. Mohamed Mbilu (1984) TLR 113. He contended further that the respondent failed to prove her claim before the trial Tribunal by failing to tender any document to show that her father 4 was the legal owner of the disputed house. He argued that the trial Tribunal was not correct in its findings as per the evidence tendered relating to ownership of the disputed did not clearly and correctly analyzed the evidence adduced by the appellant and his witnesses, the fact which led to unfair and unjust decision. He concluded that the respondent failed to substantiate on how her late father is the legal owner of the property. He prayed before this Court to allow this appeal and quash and set aside the decision of the Ilala District and Housing Tribunal. I her reply submission, the respondent submitted that the disputed property belongs to her father the late Sultan Kibavu and he is the one who built the disputed house and invite his brother, the appellant to live with his family. When Sultan Kibavu died, the appellant sold a portion of the disputed land. She instituted a case

against the appellant concerning the ownership of the disputed property at Vingunguti Ward Tribunal. It was decided that the property belongs to the late Sultan Kibavu. The respondent submitted further that the Chairperson of the trial Tribunal was right in his findings on hearing of the case. That the residential licence relied on by the appellant was processed by the same in a falsely motive to deprive the respondent her right to inherit her father's property and the mere possession of that document can never give appellant the right of possession of the disputed property. She argued that, during the hearing at the trial Tribunal, the appellant's witnesses gave a contradictory testimony whereby DW2 who was born in 1964, testified to witnesses the transaction of the 5 disputed land in 1963. Furthermore, DW2 testified that the acquisition of the disputed property by the appellant was by way of purchasing, while DW1 testified that the appellant was orally given the disputed plot. She asserted that, on her case, neighbours and relatives who witnessed the life of the appellant and late Sultan Kibavu gave concrete and collaborated evidence in favour of the respondent. She concluded her submission by praying for this court to dismiss this appeal with costs and uphold judgement and decree of the District Land and Housing Tribunal. In rejoinder, the appellant mostly reiterated his

submissions in chief. I have carefully read the respective submissions by the parties, the grounds of appeal and the trial Tribunal records. In their written submissions, the parties canvassed all the four grounds. While composing the judgement, it became clear to me that all grounds of appeal raises one main issue; who is the legal owner of the disputed property between the appellant and the respondent. This court being the first appellate Court is mandated to make an assessment of evidence adduced at the trial and test such evidence against the finding of the trial court (Refer the case of Damson Ndaweka Vs. Ally Saidi Mtera, Appeal No. 5 of 1999 CA, Arusha (unreported). The appellant insisted that he is the legal owner of the disputed property. At the trial, to prove his ownership, he produced a residential licence on the 6 disputed property which was tendered as Exhibit DI. The said licence was issued in his name. He stated that he purchased the disputed plot in 1963 and took an effort to obtain a residential licence which was procured in 2012. Furthermore, during the hearing at the Trial, two witnesses; DW2 and DW3 testified to the effect that, the respondent was the legal owner of the disputed property. In his decision the Hon. Chairman find the appellant's (then respondent) evidence was contradictory. I agree with him. As per proceedings, in his testimony, the then respondent stated that he purchased the disputed land in 1963 from one "Nyamwezi" at Tshs 250/- in 1963. He said that the sale agreement is lost. DW2 said Selemani Kawambwa, aged 55 years old stated that he was present when "Nyamwezi" gave land to the appellant at consideration of Tshs.

20. He said that the land was given orally. When he was asked about his age, he said that he was born in 1964 but insisted that he was there when the appellant was given the land. I find the evidence of DW2 not reliable and raise doubt as to its truthiness. Being aged 55 years old, he could not have been capable of witnessing the sale of the land done in 1963. Even if he could have been born in 1963 or 1962, he was at a tender age not capable of understanding anything let alone the sale of land. Furthermore, the Hon. Chairman find that the residential licence which was tendered as Exhibit DI was recent and there was no proof of previous ownership. The residential licence was procured in 2012 while the ownership 7 originated in 1970's. The Hon. Chairman went on to declare Exhibit DI legally ineffectual. I also agree with the findings of the Hon. Chairman on the aspect of legality of the residential licence. As per the records, the licence was procured by the appellant in 2012 and was issued in November, 2012. However, the same was issued in the middle of the dispute when the appellant and the respondent were disputing over the land property each party claiming ownership. The records show that after the death of her father who is the brother of the appellant, the respondent was appointed to be administratix of the estate of her late father, Sultani Kibavu. She was appointed by

the Buguruni Primary Court in 20/3/2012, and the disputed property was the only property listed. Furthermore, in 2011 the respondent instituted a case before Vingunguti Ward Tribunal in case No. 61/2011, claiming to be declared the legal owner of the disputed property and claiming for the vacant possession of the disputed house. The Ward Tribunal decided in favour of the respondent whereby it was unanimously decided that the respondent has proved beyond any doubt that the disputed house belonged to the late Sultani Kibavu and ordered the appellant to give the respondent all necessary documents regarding the house. The Ward Tribunal advised the respondent to file for the probate cause on the administration of her father's estate, which she acted upon and was later appointed as the administratix. The Ward Tribunal's decision was given on 25/8/2011. 8 Looking at these sequence of events, it is obvious that the appellant started to process for the residential licence while knowing that the landed property was in dispute between him and his niece. As the ownership of the property was in dispute, then the Hon. Chairman was right to disregard the residential licence (Exhibit DI) as a proof of the appellant's ownership of the property. As the residential licence was regarded and declared legally ineffectual (of which I agree for the reason given hereinabove), the only evidence

remain for both parties on the proof of ownership is the one which was orally obtained. As already analyzed, the appellant's evidence was questionable whereby apart from him, his witness DW2 aged 55 years old testified to witness that sale transaction when he was either not yet born or was at a very tender age; On the part of the respondent, apart from herself, witnesses testified to her side. PW3 aged 81 testified that at the time he was a ten-cell leader of the area where the late Sultani Kibavu was living with his brother, the appellant. He was also a neighbour of the late Kibavu and that the disputed property was owned by the late Sultani Kibavu. PW2 aged 75, also testified that he was neighbour and a friend of Sultani Kibavu. He said that he saw the appellant coming with his wife to live in the house of the late Sultani Kibavu. 9 Both PW1 and PW3 identified the respondent as the daughter of the late Kibavu. Having gone through the oral evidence I agree with the Hon. Chairman's findings that on balance of probability, the more weight is on the respondent's side. With that, I find that this appeal has no merit and I hereby dismiss it with costs. I uphold the judgment and decree of the District Land and Housing Tribunal in the application No. 302 of 2016. It is hereby ordered. Right of appeal explained. A. MSAFIRI

JUDGE 26/8/2021. io