ahmad abdallah kinyokwe vs zulfa salumu makuka and others 2020 tzhclandd 72 17 april 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 349 OF 2015 AHMAD ABDALLAH KINYOKWE........................................ PLAINTIFF VERSUS ZULFA SALUMU MAKUKA (as administratrix of the estate of SALUM ABDULRAHMAN MAKUKA)................. 1st DEFENDANT DAMIAN KAKURU...................................................... 2nd DEFENDANT MBARI MBUSIRO........................... .......................... 3^D DEFENDANT MARY FABIAN MAKOTA......... ................ ................. 4th DEFENDANT JUDGMENT I. MAIGE, J The controversy I am called above to resolve is on the ownership of a 14 acres unsurveyed land situated at Vikeji, Mkuranga District, Pwani Region ("the suit property"). The plaintiff claims that the suit property belonged to his late grandfather Salum Mbonde. Though in possession of letters of administration of the estate of his late father (exhibit PI), the plaintiff has instituted the instant suit in his individual capacity. Exhibit PI appears to have been granted by the primary court of Mbagala on 13th July 2004. The plaintiff claims further that, upon being constituted an administrator and, when he was in the process of administering the estate, the last three defendants herein trespassed unto the suit property. On further inquiry, he discovered that said defendants had each purchased a piece of land on the suit property from Salum Abdurrahman Makuka. The plaintiff alleges that, since the suit property belonged to the late Salum Mbonde, the late Salum Abdurrahman Makuka had no title to pass to the last three defendants. He prays therefore, for the following reliefs. First, the suit property be declared the property of the plaintiff and the heirs of the late Salum Mbonde; two, vacant possession of the suit property; three, demolition of permanent structure on the suit property; four general damages for tress pass. Initially, Salum Abdurrahman Makuka (henceforward "the first defendant's predecessor in title"), was impleaded as the first defendant. He expired while the trial was yet to commence. Therefore, on 14th January 2020, this Court ordered that the suit proceeds against Zulfa Salum Makuka, as the administratrix of the estate of the initial first defendant (exhibit P7). In their joint written statement of defense, the defendants deny that the suit property had ever been the property of the alleged Salum Mbonde. They further doubt the genuineness of the letters of administration constituting the plaintiff administrator of the alleged estate. During trial, the plaintiff enjoyed the service of Samwel Shadrack, learned advocate whereas the defendants appeared in persons and were not represented. At the final pre-trial conference, two issues namely; whether the plaintiff is the lawful owner of the suit property and what reliefs are the parties entitled to were framed for determination. In a bid to prove his claim, the plaintiff called four witnesses including himself who testified as PW1. Other witnesses were Said Shaaban Mzombe (PW2), Abdu Abdallah Kinyokwe (PW3) and Asmin Ally Ndongo (PW4). In addition to exhibit P -l, the plaintiff further tendered into evidence a decision of the ward tribunal for Vikindu in Shauri Namba 26/2010 (exhibit P-2); judgment and decree of the District Land and Housing Tribunal for Mkuranga in Land Appeal No. 18 of 2011 (exhibit P-3); judgment of this Court in Miscellaneous Land Appeal No. 48 of 2012(exhibit P4); a decision of the ward tribunal for Vikindu in Shauri Namba 100/2014 (exhibit P5) and judgment of the same tribunal in Appeal No. 41 of 2014 (P-6). On their parts, the defendants testified as DW1, DW4, DW5, and DW6, respectively. Besides, they relied on the independent testimonies of Zalia Salumu Makuka (DW2), Ibada Salum Makuka (DW3), Asia Arufan Said (DW7), Ally Abdallah Mponda (DW8) and Ally Juma Makoka (DW9). On top of that, they relied on a sale agreement dated 30/05/1999 (exhibit Dl), a sale agreement dated 2/10/1999 (exhibit D2), a sale agreement dated 10/07/1999 (exhibit D-3), letters of administration of the estate of the late Salum Makuka (exhibit D4), minutes of the proceeding purporting to be of the family meeting which nominated an administrator of the estate of the late Salum Makuka (D5) and a letter from the Hon. District Registrar, High Court, Land Division dated 19th August 2014 (exhibit D6). After the end the trial, I allowed the parties to address me generally by way of written submissions. While Mr. Advocate Shedrack, learned advocate for the plaintiff filed his written submissions, the defendants did not. As the defendants were unrepresented laypersons, I do not think that the omission has any effect. With the above brief account, it is desirable to address the issues framed. I propose to start with the first issue as to ownership of the suit property. The plaintiff who is inviting the Court to pronounce a judgment in his favour, is the one who has the legal burden to prove, on the balance of probability that, the suit property belonged to his late grandfather Salum Mbonde the estate. Though the plaintiff traces title on the suit property from his late grandfather Salum Mbonde, neither in pleadings nor in evidence is there any account as to the root of title of the said Salum Mbonde on the suit property. The plaintiff claims to be the administrator of the estate of the late Salum Mbonde. Truly, exhibit P I establishes as such. Quite unusually, just as it is the pleading, exhibit PI is silent on when the late Salum Mbonde expired. I however heard PW3 testifying that the late Mbonde expired in 1950. The plaintiff was constituted an administrator of the alleged estate in 2004. There is an interval of more than 50 years in between. The plaintiff has not accounted for such unusual delay to administer the deceased estate. He should have. In the joint written statement of defense, the defendants doubt the authenticity of the letters of administration in exhibit PI. In their oral evidence through DW4, the defendants wonder why a Will was not exhibited while exhibit PI suggests that there was. On cross examination, DW4 told the court that, he could not know if exhibit P -l was in a special format. Though it is a fact that letters of administration granted by primary courts are in special formats, there is much which can be said from the pleadings and evidence. For instance, in paragraph 8 of the plaint, it is pleaded as follows:- "8. That the su it land was owned custom arily by his late grandfather Salum Mbonde who passed the ownership to the Heirs to which the p la in tiff is the adm inistrator". The above factual allegation connotes that the late Salum Mbonde passed ownership of the suit property to his heirs before his death. Whether the transfer was by way of a Will or deed of gift, the Plaint is silent. Under order VI rule 7 of the Civil Procedure Code, Cap 33, R.E. 2019, ("the CPC") the plaintiff was expected, in his evidence, to adhere to facts in pleadings. He was not expected to give any evidence which departs from or is contradictory to his pleadings. While neither of the four prosecution witnesses testified on the assertion that the late Saium Mbonde passed his interests on the suit property to the plaintiff and his heirs, in his testimony as PW1, the plaintiff claims ownership of the suit property as an administrator of the estate of the late Salum Mbonde. This evidence in so far as it departs from the factual allegation in paragraph 8 of the plaint is unworthy of being considered. Besides, while the plaintiff claims that the suit property belonged to the late Salum Mbonde who expired in 1950, he did not adduce any evidence as to how the late Salum Mbonde acquired the same. Neither did he give any evidence of prior use of the suit property by either of the alleged heirs of the late Mbonde, including himself. He did not produce even one of the elders in the village who knew the said Mbonde. The only witness who claimed to have known Mbonde was Said Shaaban Mzombe (PW2). The probative value of his evidence on that aspect is however highly questionable. The reason being that; while in accordance with the prosecution evidence the late Mbonde expired in 1950, PW2 represented himself as an adult of 52 years old. Obviously therefore, with that age, he could not live in 1950 to see the late Salum Mbonde. Even PW3 one Abdu Abdallah Kinyokwe despite being 64 years old, admits in his evidence in chief that he did not know the late Salum Mbonde. In his evidence on cross examination by the second defendant, he clarified that he could not know him because he was yet to be born at the time of the demise of the said Mbonde. Asmin Ally Ndongo (PW4) gives a similar account. DW1, DW2 and DW3 are irrefutably descendants of the late Salum Makuka. Their evidence which finds support from PW2 and PW3 is such that, they were born and raised at the residential house of their late grandfather Abdurrahman Makuka which was part of the suit property. Their father Salum Makoka was also born and raised there. It is their evidence that, after the death of their late grandfather, the suit property remained with their grandmother and afterwards their father. DW2 claims that their grandfather acquired the suit property by clearing the bush (kugushi). Asia Arufan Said (DW7) is an adult of 83 years. She testifies that she has been at the village since the reign of the late Mwalimu Nyerere. She has a farm adjacent to the suit property. She does not know the late Salum Mbonde. She however knows both the late Salum Makuka and his father Abdurrahman Makuka as the previous owners of the suit property. Ally Abdallah Salum Mponda (DW8) is an adult of 80 years. Though he had been at the village since 1945, he did not know the late Salum Mbonde. Neither had he ever heard of him. He confirms however to have known both the late Salum Makuka and his father as the owners of the suit property. In his submissions, Mr. Shadrack seems to place reliance on the judgment of the ward tribunal for Mkuranga in exhibit P-5 to establish that the late Salum Makuka had no title on the suit jwopertv. The said judgment is neither pleaded nor attached in the plaint. That aside, in accordance with exhibit P-6, the said decision was invalidated by the District Land and Housing Tribunal for Mkuranga on appeal. Therefore, though under section 42 of the Evidence Act, evidence consisting of judgments, orders or decrees is relevant in proving a similar factual issue in a subsequent proceeding, exhibit P-5 having been invalidated by a higher tribunal on appeal, is not a judgment envisaged in section 42 of the Evidence Act. It is on that account that I shall not accept the submissions. Mr. Shedrack submits further that, because of the express admission by the defense witnesses that the late mother of Salum Makuka was a daughter of Salum Mbonde, the suit property belonged to the late Salum Mbonde. With respects, the submission is worthless. It could perhaps be relevant if there be adduced sufficient evidence to the effect that the late Mbonde was the owner of the suit property which is not the case. Even so, yet the prosecution case would be wanting for the reason that it is improbable for a property of a deceased to be claimed more than 50 years from his death. In any event whether Salum Makuka had a title on the suit property to pass would be relevant if the plaintiff established a prim a facie case that the late Salum Mbonde had a title on the suit property at the time of the transaction. That would be the basis for the Plaintiff's standing to litigate on the suit property. For the foregoing discussions therefore, I entertain no doubt that, the plaintiff did not succeed to prove the case on balance of probability or at all. Issue number is one therefore answered negatively. The obvious answer to the second issue is that, the plaintiff deserves a dismissal order. The suit is henceforth dismissed with costs. It is so held and right to appeal is duly explained. Right to appeal explained. ^^iLMaige JUDGE 17/04/2020 9 Date: 17/04/2020 Coram: Hon. C. Tengwa - DR For the Appellant: Paul Mtui, Advocate For the 1st Defendant - For the 2nd Defendant Present For the 3rd Defendant for the 4th Defendant _ RMA: Bukuku COURT: Judgment delivered today in the presence of the plaintiff, defendants and their respective counsels. C. T< va DEPUTY REGISTRAR 17/04/2020 10