ADONICA AMOS LEMA SWAY

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LAND APPEAL NO. 262 OF 2024 (Originating from Land Application No. 208 of 2017 of the District Land and Housing Tribunal for Moshi at Moshi) ADONIKA AMOS LEMA SWAY………...................... 1ST APPELLANT OBERLIN GODFREY LEMA ……………………………. 2ND APPELLANT EMMANUEL ALBERT LEMA …………………………… 3RD APPELLANT ELIZABETH ALBERT LEMA …………………………… 4TH APPELLANT VERSUS REGISTERED TRUSTEES OF CATHOLIC DIOCECE OF MOSHI .…………….…………………….. RESPONDENT JUDGMENT 18/09/2024 & 08/10/2024 SIMFUKWE, J. This is an appeal against the decision of the District Land and Housing Tribunal for Moshi at Moshi (Trial Tribunal) in Land Application No. 208 of 2017. 1 The respondent lodged a land dispute against the appellants, claiming to be the lawful owner of a piece of land measuring 2.5 acres situated at Mbosho Village, Kamwa, Masama Kati Ward within the District of Hai in Kilimanjaro Region. The respondent alleged that on 11th May 1996, one Albertos Ulesi handed over the disputed land to the respondent for church use, by way of public declaration in a meeting comprised of his close relatives, village authority and church representatives at Lemira Catholic church premises. The documents of transfer were presented to the respondent’s officials. The alleged owner, Albertos Ulesi, requested the respondent to take care of him for the rest of his life and asked to be buried on the said land upon his demise. It was alleged that on 1st and 2nd September 2015, without consent of the respondent, the appellants trespassed the said land cutting down trees and cultivating the same. The appellants disputed the allegations, stating that the suit land belonged to Albertos Ulesi, who was married to the 1st appellant, and they were blessed with two children, Emmanuel Albert Lema and Elizabeth Albert Lema, the 3rd and 4th appellants respectively. They disputed the fact that the late Albertos handed over to the respondent a land measuring 2.5 acres. They alleged that the late Albertos Ulesi gave only ¼ acre to the respondent on agreement that the respondent should 2 construct a house for him. In short, the appellants claimed that the late Albertos did not give all of his land to the respondent. After a full trial, the trial tribunal decided against the appellants. It was found that the respondent was the lawful owner of the disputed land. The trial tribunal also ordered the respondent to find alternative land for the appellants and assist them in transferring their belongings. The appellants were aggrieved, they preferred the instant appeal under the following grounds of appeal: 1. That the Trial tribunal Honorable chairperson erred both in Law and in fact for failure to consider and incorporate assessor's opinion in his judgment. 2. That the Trial tribunal Honorable chairperson erred both in Law and in fact by holding that the Respondents are lawful owners of the disputed land. 3. That the Trial tribunal Honorable chairperson erred both in Law and in fact by failing to evaluate the evidence in records thus he made wrong decision about the ownership of the disputed land. 3 4. That the Trial tribunal Honorable chairperson erred both in Law and in fact for failure to consider that the appellants were in occupation of the suit land for more than twelve years without any sought of interference from the Respondent (their plea of Adverse possession). 5. That the Trial tribunal Honorable chairperson erred both in Law and in fact for failure to consider the boundaries, and the evidence that were adduced during the visit of the suit land 6. That the Trial tribunal Honorable chairperson erred both in Law and in fact for failure to consider the objection of the Appellants regarding the handing over of the suit land to the Respondent by holding that the said objection is time barred and thus arriving at the wrong decision that the suit land was legally handed over to the Respondents by the Late Alberto Utesi Lema. 7. That the Trial tribunal Honorable chairperson erred both in Law and in fact by holding that the handing over of the suit premises to the Respondent was lawful while there was no 4 spouse consent from the wife of the late Alberto Utesi Lema (1st appellant). 8. That the Trial tribunal Honorable chairperson erred both in Law and in fact by holding that the handing over of the suit premises was lawful while the same was neither witnessed nor approved by the village council. 9. That the Trial tribunal Honorable chairperson erred both in Law and in fact by giving ownership of the suit land to the Respondent basing on handing over agreement that was unlawful and unperformed on part of the Respondents as they never performed the obligation in the said agreement of building the block house to the deceased until his demise. At the hearing of this appeal, the appellant was represented by Mr. Fredy Elimbingi Kimaro, learned counsel whereas the respondent was represented by Mr. Aristides Ngawiliau, learned counsel. The hearing was done by way of written submissions. I have carefully examined the learned counsels’ submissions, which are very detailed. However, I will not summarize the submissions; instead, I 5 will consider their respective submissions while resolving the grounds of appeal. Starting with the first ground of appeal, Mr. Kimaro submitted that the trial Chairman did not incorporate the opinions of assessors in his judgment contrary to section 24 of the Land Disputes Courts Act [Cap 216 R.E 2019]. He added that all the assessors were of the opinion that the suit land belonged to the appellants. However, such opinions are not reflected in the judgment. He supported his arguments with the case of Wambura Mwikwabe vs. Juma Nyamhanga (Civil Appeal No. 158 of 2022) [2024] TZCA 561 (15 July 2024). In rebuttal, Mr. Ngawiliau noted that the opinions of assessors were incorporated in the judgment as reflected on page 29 of the judgment, which was not typed. Based on the submission of Mr. Ngawiliau, I revisited the handwritten judgment of the trial tribunal and found that the opinions of assessors were incorporated in the judgment. Page 29 of handwritten judgment, which was omitted in the typing version, reads as follows: 6 "Wajumbe wa Baraza niliokaa nao ambao ni Sarah Mchau na Sara Lukindo wote walitoa maoni yanayofanana kwamba eneo la Mgogoro ni la mjibu maombi hivyo madai ya Mwombaji yatupwe kwa gharama. Baada ya kupitia shahidi wa pande zote mbili nashawishika kusema kwamba sikubaliani na maoni haya". After stating the above quoted words, the learned trial chairman continued to give his reasons for dissenting from the opinions of assessors Therefore, arguments that the opinions of assessors were not considered in the judgment are unfounded. Next, I will address the second, third and fifth grounds of appeal jointly, specifically on the issue of evaluation of evidence. Under these grounds, Mr. Kimaro raised the following grievances: First, he argued that the evidence on how the respondent acquired the suit land was weak compared to that of the appellants. That, their evidence was only based on handing over agreement of which the appellants challenged for being obtained unlawfully. It was submitted that the late Albertos Ulesi Lema gave only ¼ acre out of his 2.5 acres. The learned counsel for the appellants explained that PW1 admitted that the late Albertos gave only 7 part of his land. According to Mr. Kimaro, the issue is whether the late Albertos gave all of his land or part of it to the respondent. The learned counsel argued that if the late Albertos gave all of his land to the respondent, why did the church give a gift of building a house to the late Albertos? If he gave all of his land, the house was built on the respondent's land, something which does not make sense. Under the fifth ground of appeal, the appellants faulted the trial chairman for failure to note that the land which had the church which was owned by the respondent was different from the land where the appellants live. In reply, the learned advocate for the respondent submitted that Mr. Kimaro is trying to mislead the court based on the fact that the late Albertos gave his entire land to the church. He argued that building a decent house was merely an act of appreciation for his benevolence to the church. He made reference to exhibit P3 which was tendered by PW2. Considering arguments of the learned counsels of both parties, the issue is whether the late Albertos gave all or part of his land to the respondent. According to the record, this was the third issue raised by the trial tribunal. Since it is the respondent who alleges, they ought to prove on balance of 8 probabilities that the late Albertos gave his whole land to the respondent. This legal requirement is provided for under section 110(1) of the Evidence Act [Cap 6 R. E 2022]. Likewise, in the case of African Banking Corporation T. Ltd vs T-Better Holdings Co. Ltd (Civil Appeal No. 207 of 2017) [2024] TZCA 165 (6 March 2024) Tanzlii, the Court of Appeal observed that: “…On the law regarding burden of proof which characterises the discussion in this ground. The law under section 110(1) of the Evidence Act is that he who alleges must prove his allegation to succeed in a suit. It is equally the law that, unlike in criminal trials, the burden of proof in civil cases is not static…. It is also trite that, a party who has the burden of proof must discharge his burden on balance of probabilities regardless of the weakness in the case of his opponent…” I have carefully gone through the entire judgment of the trial court. The learned Chairman was of the view that evidence that the late Alberto gave the land measuring 2.5 acres to the respondent was established. He 9 added that the act of the appellants disputing the said handover was beyond 12 years as prescribed by the Law of Limitation Act. According to the evidence of the respondent and her exhibits, the late Albertos gave 2.5 acres to the respondent in 1996. At page 80 of the handwritten proceedings, PW1 stated that: “The land of 2.5 acres was allocated in a single transaction...Then, in 1992 the church requested another land to construct a church. He gave us a land where we built a church...there was no any written agreement... In 1996 he gave the church the whole land with a condition that we maintain him. The same was put in writing evidencing that he is offering 2.5 acres.” During cross examination at page 114 of the handwritten proceedings, PW1 explained that; “Albert Ulesi Lema handed the whole land to the church. He remained with no land”. Further, PW2, who attended the handing over of the suit land at page 139 of the proceedings testified that: 10 “In 1996 Albertos offered the whole land to be the church land. When he offered the whole shamba, he agreed to be taken care by the church till his death.” In their defence, DW1 testified that the late Albertos did not give the respondent his entire land of 2.5 acres. Instead, he gave half an acre to his sister, and the church was given ½ acre where they built a church and office, leaving the deceased with 2.5 acres. DW3 corroborated the evidence that the church was given land; however, his testimony was that the church was given only ¼ acre. DW2's testimony at page 267 of the handwritten proceedings stated that in 1992, the deceased handed over land to the respondent measuring ½ acre and retained another portion of land. He questioned why the handover is dated 1996. On part of DW5 and DW6, they both testified that they were born on the suit land, which is near the church. These witnesses stated that the disputed land measures 2½ acres. Weighing the appellants' evidence and exhibits against those of the respondent, the court's analysis concludes that the late Albertos transferred 2 ½ acres of land to the appellant. The respondent's evidence is supported by Exhibit P1, which is the handing over declaration, as well 11 as the handing over agreement from Albertos to the church, admitted as Exhibit P3. With due respect to the appellants, their contention that the late Albertos gave only part of his land is not substantiated. Worse enough, there is a contradiction in their evidence since DW1 said that Alberto gave only ½ acre while DW3 alleged that he gave ¼ acre only. This contradiction makes their evidence unreliable. Thus, on balance of probabilities, the respondent's evidence is stronger than that of the appellants as it sufficiently proved that the whole land measuring 2.5 which include the church area and the disputed area, was handed over to the respondent In his arguments, Mr. Kimaro added that the proceedings of the locus in quo is not reflected in the proceedings. With due respect, the same is reflected at page 361 and 362 of the proceedings. At page 362, PW1 informed the court that they intended to construct a dispensary on the suit land. Therefore, the allegations under the fifth ground that the disputed land is different from the land which was owned by the respondent is without merit. Thus, the 2nd, 3rd and 5th grounds of appeal are without merit. 12 On the fourth ground of appeal, the appellants complained that the trial tribunal failed to note that the appellants stayed at the suit land for more than twelve years. Thus, adverse possession should have been invoked. Mr. Kimaro insisted that the first, third, and fourth appellants had been in occupation of the suit land since their birth until the demise of their father in 2012. The learned counsel blamed the trial chairman for failing to note that the appellants had occupied the suit land for more than twelve years. Mr. Ngawiliau refuted the argument, stating that the disputed land was handed over to the respondent in 1996. He argued that the time from the handover to the year when the late Albertos died it is 16 years, which exceeds the 12 years prescribed by section 22 of the Law of Limitation Act, Cap 89 R.E. 2019. He explained that some parts of the land were temporarily used by the 1st, 3rd, and 4th appellants while arranging to vacate the disputed land. I have considered the entire evidence. While the appellants argued that they have resided on the disputed land for a long time, the respondent submitted that the land was bequeathed to them in 1996. It is undisputed fact that the suit land belonged to the late Albertos. As mentioned earlier, the said land was bequeathed to the respondent in 13 1996. The fact that the appellants resided at the suit land does not make them the lawful owners as there is a document proving that the said land where the appellants reside was already bequeathed to the respondent. At page 92 of the handwritten proceedings, PW1 stated reasons for the appellants residing on the disputed land to the effect that: “The church measured the land and gave them 40 paces to 20 paces to occupy it temporarily until they vacate…” Based on the above findings, the argument that the appellants were the lawful owners by adverse possession principle has no basis. Thus, the 4th ground of appeal is also without merit. The fourth ground above partly resolves the sixth ground of appeal. In respect of the sixth ground of appeal, Mr. Kimaro blamed the trial Chairman for overruling the preliminary objection regarding disposition of the suit land. He elaborated that since the respondent was the one who instituted the land dispute, in respect of land alleged to have been handed over to her in 1996, more than twelve years had elapsed. The learned counsel commented that the respondent was time-barred. 14 As hinted earlier, the disputed land was handed over to the respondent in 1996. Despite the fact that the appellants alleged to have resided there for more than 12 years, they cannot be termed as lawful owners since, according to the evidence of PW1, the church permitted them to reside temporarily. The fact that the appellants resided there for a long time does not make them lawful owners in the absence of evidence outweighing the respondent's evidence. Thus, the 6th ground of appeal is without legal basis. Turning to the seventh ground of appeal, Mr. Kimaro challenged the alleged handover of the suit land on the reason that the same was not lawful since there was no consent of the wife who is the 1st appellant. He argued that according to section 161(3) of the Land Act [Cap 113 R.E 2019] disposition without spouse consent is voidable. He added that section 59(1) of the Law of Marriage Act [Cap 29 R.E 2019] prevent transfer of matrimonial property without consent of the spouse. The learned counsel therefore, faulted the trial Chairman for finding that the disposition of the land was lawful while there was no spouse consent. Mr. Ngawiliau submitted to the contrary that the late Albertos has never married the 1st appellant. He insisted that no evidence was tendered in 15 court to prove that she was married. Also, the learned advocate pointed out that there was contradiction in respect of the year of contraction of marriage since DW3 testified that the 1st appellant got married the late Albertos Lema in 1977, while DW2 stated that the two got married in 1975. I agree with Mr. Kimaro on the legal requirement of seeking spouse consent before disposing of any matrimonial property, particularly land. However, before raising the issue of consent, the person alleging this must prove that the parties were duly married. In our case at hand, since the 1st appellant argued that she married the late Albertos, she was required to prove this fact on balance of probabilities. Marriage is proved by an official document issued by a government authority confirming the marriage, which is a marriage certificate. I have perused the entire evidence. Nowhere did the 1st appellant prove that they were duly married, apart from merely stating that they were married. At page 327 of the handwritten proceedings, during cross-examination, the 1st appellant stated that: “- We celebrated a Christian Marriage at our Parish (Mbosho Parish) 16 - The priest did not give us marriage certificate…” It is well-known that in Christian marriages certificates are issued. Therefore, given the fact that the first appellant stated that she contracted a Christian marriage, she was required to tender a certificate of marriage to prove her assertion. If she had asserted that she contracted customary marriage I could have a different opinion. Otherwise, the issue of lack of consent has no legs to stand. Hence, I dismiss the 7th ground of appeal. In respect of the 8th ground of appeal, the learned counsel for the appellant complained that the handing over agreement was unlawful as it was not witnessed nor approved by the Village Council which is overall management of village land. He supported his argument with section 147(1) of the Local Government (District Authorities) Act [Cap 287 R.E 2002]. Also, the learned counsel cited the case of Bakari Mhando Swanga vs Mzee Mohamed Shelukindo and Others (Civil Appeal No. 389 of 2019) [2020] TZCA 28 (28 February 2020). In reply, Mr. Ngawiliau submitted that the disputed land was handed over by a document which was admitted in court as exhibit P1. He said that the same speaks by itself that it was witnessed by among others, MTENDAJI WA KIJIJI CHA MBOSHO who stamped it. Hence, it was executed 17 accordingly. On the outset, I agree with Mr. Kimaro that transfer of the village land must be blessed by the Village Council as provided under section 147 (1) of the Local Government (District Authorities) Act, (supra). However, as correctly stated by the learned counsel for the respondent, exhibit P1 speaks loudly that it was witnessed and confirmed by the village government. The last page of exhibit P1, last part reads as follows: “MAKUBALIANO HAYA YAMEFANYWA NA KUTIWA SAHIHI MBELE YA SERIKALI YA KIJIJI NA KUTHIBITISHWA KUWA NI HALALI.” After the above words, the Village Executive Officer signed, dated the document (20/5/1996) and sealed with the village seal which reads: “Halmashauri ya Kijiji KIJIJI CHA MBOSHO KATA YA MASAMA MAGHARIBI….” With that evidence on record, I am satisfied that the handing over was blessed with the village government. Hence, the 8th ground of appeal has no merit. 18 On the last ground of appeal, it has been asserted that the handing over agreement was unlawful and unperformed on part of the respondent as they never built the block house for the deceased until his demise. Mr. Kimaro referred section 39 of the Law of Contract Act, Cap 345 R.E 2019, which provides that: “When a party to a contract has refused to perform or disabled himself from performing his promise in its entirety, the promise may put an end to the contract unless he has signified, by his words or conduct, his acquiescence in its continuance.” It was the prayer of the learned counsel for the appellants that the handing over agreement be declared unlawful for failure on part of the respondent to perform their obligation under that contract. At the same time, the learned counsel for the respondent stated among other things that Albertos Ulesi Lema never demanded the respondent to build a house for him at any point in time. Again, I had a quick glance at exhibit P1 first page and found that the late Albertos surrendered her life under the care of the church and prayed to be buried at the suit land after his demise. That being the case, I concur with Mr. Ngawiliau that the respondent built 19 a house for the late Albertos on humanitarian ground. Therefore, I dismiss the nineth ground of appeal forthwith. Based on the fact that all grounds of appeal have been resolved in favour of the respondent, I do not see any reason to grant the reliefs sought by the appellants. Respectfully, I dismiss the appeal with no order as to costs. It is so ordered. Dated and Delivered at Moshi, this 08th day of October 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 08/10/2024. 20 21