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IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO. 00027334 OF 2023 (Arising from Land Application No. 190 of 2012 in the District Land and Housing Tribunal from Mbeya at Mbeya). ANAMARY TWISA MWAKIKOSA (Administrator of the Estate of the late Leonard Twisa Mwakikosa)………………... APPELLANT VERSUS DORA TWISA MWAKIKOSA…………………………RESPONDENT JUDGMENT Date: 6 May 2024 & 19 June 2024 SINDA, J.: The appellant filed Land Application No. 190 of 2012 at the District Land and Housing Tribunal for Mbeya at Mbeya (the DLHT) claiming to be the lawfully owner of an unsurveyed land located at Mabatini area within Mbeya city (the Disputed Land). She alleged that her husband Leonard Twisa Mwakikosa inherited the land from his father Twisa Mwakikosa through probate cause no 10 of 1978. The respondent also claimed to be 1 the lawfully owner of the land in dispute that she was given the land by her father in 1977 before his death. The DLHT decided in favour of the respondent. Against that decision, the appellant filed the petition of appeal with five (5) grounds of appeal as follows: 1. That, the trial tribunal erred in law and facts by its failure to properly analyze and evaluate the evidence adduced by the parties hence reached into wrong decision. 2. That, the trial tribunal erred in law and facts in deciding the case against the weight of evidence. 3. That, the trial tribunal erred in law and facts by delivering judgment in favor of the respondent based on contradictory evidence adduce by respondent. 4. That, the trial tribunal erred in law and facts by invoking extraneous matters hence delivered judgment in favor of the respondent. 5. That, the trial tribunal erred in law and facts by failure to consider what was transpired during visit locus in quo hence delivered wrong judgment in favor of the respondent. At the hearing, the appellant was represented by advocate Kamru Habib Msonde while the respondent was represented by advocate 2 Simon T. M. Mwakolo. The appeal was argued by way of written submission. Mr. Kamru submitted the first, second and third grounds together. He argued that the DLHT failed to analyse the evidence properly. He stated that the evidence adduced by the appellant proved on the balance of probabilities that the Disputed Land belongs to the estate of the late Leonard Twisa Mwakikosa. The appellant case was supported by three witnesses as well as documentary evidence especially exhibit P2. He added that the respondent case was supported by two witnesses i.e. DW1 and DW2. Their crucial evidence was that the Disputed Land was gifted to the respondent in 1977 while she was 14 years old before the before the death of her late father. The Disputed Land was given over to his brother until she reached the age of majority. There was no document tendered in court to substantiate that facts. DW2 stated that after the death of her father no probate cause was filed but during cross examination he submitted that there was probate cause which Jackson and Leonard were bequeathed land at Mabatini area. Mr Kamru submitted that exhibit P2 was conclusively evidence to determine the issue of ownership of the Disputed Land and the 3 respondent never raised her concern before the probate court. Mr. Kamru was of the view that the trial tribunal misapprehended the evidence on record hence reached an erroneous decision that the land in dispute was bequeathed to respondent in 1977. Regarding the fourth ground that the DLHT invoked extraneous matters in its judgment. Mr. Kamru submitted that the judgment of the learned trial chairman brought the issue of whether the appellant mother-in-law lived in disputed land on pages four (4) to five (5) of the judgment. The trial chairman held that the appellant failed to prove that the appellant mother-in-law lived in the land in dispute. He finds this to be extraneous matters which was not among of the raised issue or supported by any evidence. Secondly, it was stated in the judgment that the appellant counsel failed to cross examine the respondent on facts that their father built a house for their mother on the land in dispute, that was extraneous and contrary to what was stated by DW1 and DW2 who testified that the land in dispute was gifted to her and it was respondent who started building while she was still young. The facts that father built a house of their mother is no supported by pleadings or evidence on records. Thirdly, the chairman invoked another issue that as provided under the law if deceased left more than 4 one wife and built houses for them, then every child has right to inherit from his or her mother. The Chairman stated that the appellant failed to establish that the mother-in-law was living in the Disputed Land or was using the Disputed Land. Therefore, he failed to prove that her husband had right to inherit from her mother. He alleged this to be extraneous matters because it was not supported by evidence from both side as the evidence is clear that the land in dispute fell under the ownership of the two brothers vide probate cause and administration cause no. 10 of 1978 as evidence by exhibit P2. He referred to the case of Augustino s/o Nandi vs DPP [2020]1 TLR 119 and the case of Okethi Okale and Others vs Republic [1965] 1 E. A. 555 to support his argument. In respect with the fifth ground of appeal that the trial tribunal failed to consider what transpired on locus hence erroneous decision. Mr. Kamru submitted that the DLHT visited locus in quo but the judgment of DLHT was silent on the said visit. In reply, Mr. Mwakolo argued the first, second and third grounds together. He submitted that the evidence was properly analyzed. He referred to exhibit P2 which shows the property of the late Twisa Mwakikosa that was inherited by the late husband of the appellant 5 Leonard Mwakikosa and Jackson Mwakikosa. He stated that the Disputed Land was not supported by Exhibit P2. He finds that DLHT was right to decide that the Disputed Land belongs to respondent and was given to her by her late father in accordance with evidence of DW1 and DW2. The respondent built a house in the Disputed Land. Regarding the fourth ground on the complaint of the appellant that the DLHT invoked extraneous matters that the mother of the respondent lived at the Disputed Land. Mr. Mwakolo argued that it was not an extraneous matter but part of the evidence on record because it was revealed that the late Mwakikosa had many wives and that the mother of the respondent lived at the Disputed Land. On the issue of failure to cross examine, Mr. Mwakolo argued that it is not extraneous matters and issue of person having many wives and right of children was within the hands of the trial tribunal to comment when analyzing evidence on record. On the fifth ground Mr. Mwakolo submitted that the evidence of locus in quo was properly analyzed. I have considered court records, grounds of appeal and submission made by parties. The appeal raises the following issues whether the appellant in this case at the trial tribunal proved her case to the required standard. 6 Section 110 (1) of the evidence Act, [Cap. 6 R.E 2022] read “(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Furthermore, in the case of Paulina Samson Ndawavya versus Theresia Thomas Madaha, CAt at Mwanza, the Court of Appeal stated that apart from stressing the standard of prove in civil proceedings being prove on the balance of probabilities, it also stressed that; "It is again trite that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his and that the burden of proof is not diluted on account of the weaknesses of the opposite parts case” In this case at hand PW1 at the trial tribunal stated that the land/plot in dispute belongs to estate of her late husband through Probate and Administration Cause No. 10 of 1978 which was admitted during hearing as Exhibit P2. Her evidence was corroborated with evidence of PW2 and PW3. I wish to start with tendered Exhibit P2 (hati ya kukabidhi mali) in Probate and Administration Cause No 10 of 1978. Section 100 (1) of the Law of Evidence Act Cap 6 R.E 2022 which states that: “100.-(1) When the terms of a contract, grant, or any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence 7 shall be given in proof of the terms of such contract, grant, or other disposition of property, or of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of this Act.” In this case, the contents of Exhibit P2 is clearly showing the property which were given to Jackson Twisa Mwakikosa and Leonard Mwakikosa. I would like to reproduce same part which listed those properties 1. Nyumba moja iliyoko Mabatini Mbeya aliyokuwa akiishi marehemu Twisa; 2. Godauni Mabatini; 3. Kijumba cha kuku na Butcher. The appellant stated that the respondent invaded the Disputed Land at the Godown on page 30 of the DLHT proceedings. Looking at the contents of Exhibit P2 especially on the listed properties, it reflects with evidence adduced by PW1, PW2 and PW3 on the facts concerning the Disputed Land that it was given to PW1 husband. The evidence adduced by the appellant prove on the balance of probabilities that the Disputed Land belongs to the estate of the late Leonard Twisa Mwakikosa. The respondent together with her witnesses stated that the respondent was given that piece of land from his late father before his death when 8 she was 14 years old. The principle of law demands that a person with heavier evidence than his/her adversary must win the case. This stance of the law was stated in the case of Hemedi Saidi vs. Mohamedi Mbilu [1984] TLR 113 thus: "According to the law both parties to a suit cannot tie, but the person whose evidence is heavier than that of the other is the one who must win." In this case the appellant evidence is heavier compared with the appellant. She managed to prove that the Disputed Land was part of her late husband estate. The respondent evidence contradicts with Exhibit P2 which is documentary evidence and conclusive evidence. The respondent did not show proof of a deed of gift that the Disputed Land was donated to her by her late father. It was illustrated by the Court of Appeal in the case of Mkamangi Elifuraha vs. Mwinyishehe Mwinyishehe [1991] TLR 191 that: “ …the latter case was decided in favour of the done after it was proved by means of a document (a deed of gift) that the land was donated to her by the donor” That being said, I agree with the counsel for the appellant that Exhibit PE is a proper proof that the Disputed Land belonged to the estate her husband the late Leonard Twisa Mwakikosa. There was neither deed of 9 gift nor any document tendered in court showing that the respondent was given the Disputed Land by her late father when she was 14 years old. Consequently, I allow the appeal with cost and declare the appellant as a rightful owner of the Disputed Land at Mabatini area. Dated at Mbeya on this 19 day of June 2024. A. A. SINDA JUDGE 10