abdurahman abdallah issa administrator of the estate of the late seleman mmanga vs ayoub seleman mmanga 2021 tzhclandd 891 16 february 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND CASE NO 254 OF 2017 ABDURAHMAN ABDULLAH ISSA (Administrator ^ of the lateTatu Selemani Mmanga) PLAINTIFF Versus AYOUB SELEMANI MMANGA ..4, DEFENDANT JUDGEMENT Date of Last Order: 12/11/2020 Date ofJudgment: 16/02/2021 MANGO/J. The plaintiff instituted this suit against the defendant seeking for the foliowing reliefs;- 1. That this court be pleased to declare the plaintiff the lawful custodian of the disputed land 2. That the defendant be permanently restrained from conducting any activity on the disputed land 3. That defendant be ordered to vacate the disputed land immediately and 4. Any other reliefs and orders the Court may deem fit and just to grant The plaintiff was a husband of the defendant's sister, the late Tatu Selemani Mmanga. After the death of Tatu Selemani Mmanga, the plaintiff. Abdulrahman Abdallah Issa was appointed to be the administrator of her estate via Mirathi No. 88 of 2017, Magomeni Primary Court. The plaintiff alleges that the suitland forms part of the estate of the late Tatu Selemani Mmanga and the defendant has trespassed into the land by building a video hall. In the course of adjudication of this case three issues were drawn as follows; 1. Who is the rightful owner of the disputed land 2. Whether the defendant herein is a trespasser and 3. What relief are parties entitled to The plaintiff paraded six witnesses to prove ownership over the suit land. PWl, Saidi Mashaka testified that he knows the disputed land, it is nearby his land and it is approximately one acre in size. Formerly, the land was the property of Mzee Selemani. In 1996, Tatu Selemani the daughter of Mzee Selemani toid him that the land was given to her and requested him to take care of the farm as she was staying far away from the farm. According to him he took care of the farm for eight years. He was planting seasonal crops and he witnessed the plaintiff and Tatu Selemani constructing a house on the disputed land. He never witnessed Mzee Selemani giving the land to Tatu Selemani and he did not see any document which proves Mzee Selemani gave the disputed land to Tatu Selemani PW2 Salim Athumani Max testified that the plaintiff and his deceased wife were given a piece of land by Mzee Selemani and they have built a house thereto. He however does not know the location and size of the piece of land given to Tatu Seiemani. He knew that Tatu was given a piece of land because he was also a son in law of the late Mzee Selemani. PW3 Inyasi Msafiri Maiba who owns a piece of land nearby the disputed piece of land, PW5 Fabian Laurent Chiyumbe and PW6 Elizabeth Said Kabwili had a similar testimony. They all witnessed the plaintiff and his deceased wife constructing the house and taking care of the disputed land. However, they are not aware as to how they acquired ownership over the suit land. The Plaintiff who testified as PW4 stated that the farm in dispute was given to Tatu Selemani MManga, his wife, by his father in law Mzee Selemani in 1996. According to him, Mzee Selemani bequeathed pieces of land to all his children and he witnessed Mzee Selemani giving the suit land to the late Tatu Selemani Mmanga. Mzee Selemani passed away in 2002 and Tatu continued to possess the suit land peacefully. The dispute arose after the passing of Tatu in March 2016. In 2017 the defendant trespassed into the suit land claiming the same to be their family land. In his defence, the defendant who testified as DWl did not dispute that the late Tatu was given the piece of land by their late father, Mzee Selemani. He only dispute the size of the land given to Tatu Selemani. According to him and PW2, Mariam Seiemani Mmanga, Tatu as all other children of Mzee Selemani was given a piece of land measuring 20 by 20 steps only. The land in dispute is about one acre, the remaining part remained to be the property of their late father hence it forms part of his estate. The defendant does not dispute that the house built in the disputed land belongs to his sister, the late Tatu Selemeni Mmanga. He only dispute that Tatu was not given the entire one acre. The practice of Mzee Selemani is echoed by the testimony of Juma Hassan Mkombozi who testified as DW3. According to his testimony, Mzee Selemani Amri, the father of the late Tatu selemani, DWl, and DW2 who was also a father in law of PW3 and PW4, the plaintiff, used to bequeath pieces of land to his children and grandchildren who their parents passed before being given pieces of land. DW3 became aware of the practice because he was very close to Mzee Selemani who treated him as his young brother. Due to that relationship, Mzee Selemani involved him in many family issues including distribution of land to his children and his grandchildren. As to the size of land given to the late Tatu Mmanga, he said it was only a part of the disputed land measuring 20 by 20 foot steps and that he was present when mzee Selemani was giving part of the suit land to the late Tatu Selemani Mmanga. According to testimonies of both the plaintiff's and the defendant's witnesses it is not disputed that the late Tatu Selemani Mmanga was given a piece of land in the suit land by her father and that she built a house therein. The only issue Is the size of the land given to the late Tatu Selemani Mmanga. While the plaintiff alleges that Tatu was given the entire one acre, the defendant alleges that she was given a piece of land measuring 20 by 20 footsteps. The law, section 110(1) of the Evidence Act, [Cap. 6 R.E 2019] requires that, whoever allege the existence of the fact needs to prove the same. With exception of the plaintiff, none of his witnesses testified to have witnessed the late Mzee Selemani Amri Mmanga bequeathing the suit land to Tatu Mmanga. This makes the plaintiff to be the only witness on the issue of the bequeathing of the land to the late Tatu Selemani Mmanga. His evidence is contradicted by that of DW3, Juma Hassan Mkombozi who also testified to be present at the time Mzee Selemani was giving the land to the late Tatu Selemani. According to the testimony of DW3, the late Tatu Selemani was given only a piece of land measuring 20 by 20 footsteps. Unfortunately, there Is no any documentary evidence that establishes Tatu's ownership over the suit land. 4 I understand that oral evidence is a reaiibie evidence and it carries equal weight as documentary evidence however, given the sensintivity and seriousness of issues pertaining to land ownership such evidence need to be considered cautiously. According to the plaintiff's testimony, the late Tatu was in the process of surveying the disputed land and she has done the initial survey processes. Despite that, the plaintiff tendered no document that proves the late Tatu's ownership over the suit land. In such circumstances failure of the plaintiff to produce any document that proves Tatu's ownership over the suit land need be considered with caution because in order to request a plot of land to be surveyed, the person requesting for such survey need to submit documents proving his ownership over the land. On the other hand, there is testimonies of DWl Ayoub Selemani Mmanga and DW2 Mariam Selemani Mmanga that all children of Mzee Selemani were given pieces of land measuring 20 by 20 footsteps. In his testimony, the plaintiff did not dispute this fact, he only allege that the late Tatu was given the entire acre. He added that, the defendant together with other heirs of the late Mzee Selemani did not consider the late Tatu Selemani when distributing the estate of the late Mzee Selemani amongst themselves because she was given the iand in dispute. In my view mere allegations that the late Tatu Selemani was not considered in distribution of the estate of her late father cannot establish that she was given the suit land. The plaintiff ought to have proved his aliegations on balance of probability, the duty which he failed to exercise. The testimony of the defendant regarding the practice of their late father is corroborated by that of the plaintiff who testified on the existence of the said practice. And on the size of land given to the late Tatu Selemani, his evidence is corroborated by that of DW3 Juma Hassan Mkombozi. In such circumstances, I find that, 5 evidence produced by the defendant weighs more than that of the plaintiff. It is trite iaw that he whose evidence weigh more than the other must win, see the case of HEMEDI SAID VS. MOHAMED MBILU (1984) TLR 113. For that reason I find the late Tatu Selemani to be the lawful owner of a part of the suit land measuring 20 by 20 steps on which she constructed her house. The remaining piece of land forms part of the estate of the late Selemani Amri Mmanga. On the issue of the alleged trespass by the defendant^ the same can be contested through the administrator of the estate of the late Selemani Amri Mmanga. The plaintiff does not have locus standi to sue on the estate of the late Selemani Amri Mmanga because he Is not the administrator of his estate. Any dispute on distribution of the estate of the late Selemani Amri Mmanga should be pursued through or against the administrator of the estate of the late Selemani Amri Mmanga. Thus, the prayers contained in the Plaint are hereby partly granted to the extent expressed above. Given the circumstances of this case, I award no costs. Each Party should bear his own costs. Or Z. D. MAN! JUDGE /1' ST S-0/ 16/02/2021 ANP