ANTHONTY ROMAN TEA VS SALMA scanner

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 31780 OF 2024 (Appeal arising from the judgment and decree of the District Land and Housing Tribunal for Kibaha at Kibaha in Application No. 89 of 2019 delivered on 14-h September by Hon. S.L.Mbuga, Chairperson) ANTHONY ROMAN TEA................................. 1$t APPELLANT RAPHAEL ROMAN....................... 2nd APPELLANT PENDO TUMAINI GEAUZA..............................................3rd APPELLANT VERSUS SALMA MOHAMED MWASA (Administratrix of Of an estate of the late Mohamed Said Mwasa)............. RESPONDENT JUDGMENT M/3/2025 & 19/3/2025 A. MSAFIRI, J. The appellants were aggrieved by the decision of the District Land and Housing Tribunal of Kibaha District at Kibaha (herein trial Tribunal) in Land Application No. 89 of 2019. They have lodged the instant appeal advancing three (3) grounds of appeal as follows: 1. That, the Honourable Chairperson of the Tribunal erred in law and in fact by holding that, the Respondent is a lawful owner of the disputed property based (sic) on insufficient evidence by the Respondent as to the ownership of the disputed property. i 2. That, the Honourable Chairperson of the Tribunal erred in law in fact by proceeding with trial at the District Land and Housing Tribunal while the suit was filed by the Respondent to Rule 10 of G.N No. 49 of 1971 (The Primary Courts (Administration of Estates) Rules G.N No. 49 of 1971. 3. That, the Honourable Chairperson of the Tribunal erred in law and in fact by holding in favour of the Respondent based on evidence which suggests that the disputed property was at Lugoba while the disputed property is at Mindukeni Village, TaIa wanda Ward, Chalinze District, Pwani Region. The appeal was heard by way of written submissions and on 24/02/2025, the court set the schedule date whereby the submissions were filed by the parties accordingly. The submission in chief by the appellants was drawn and filed by Mr Faraja Joshua, learned Advocate while the reply submission by the respondent was drawn and filed by Mr. Meswin Joseph Masinga, learned advocate. Before determination of the grounds of appeal, I will look into the brief background of this appeal. Initially it was the respondent Salma Mohamed Mwasa (as administratrix of the estate of the late Mohamed Sadi Mwasa) who instituted a land dispute against the appellants. The then applicant instituted Application No. 89 of 2019 claiming that the respondents (now appellants) have trespassed into the disputed land<- 2 situated at Mindukeni Village, Talawanda Ward, Chalinze District. That the disputed land was owned by the late Mohamed Sadi Mwasa and it has a size of 25 acres and it is covered with the sisal plants and timber trees. The respondents filed their reply to the application and denied each and every claim by the applicant. They averred that the disputed land was lawfully owned customarily by their grandfather the late Tea Milulu who died in 1946 and since then the disputed land has belonged to their parents and when the parents died, the land was inherited by them, the children. They prayed for the dismissal of the application. After hearing, the trial Chairperson found that the applicant has proved her case on balance of probabilities. The application was granted and the Tribunal declared that the disputed land is the lawful property of the late Mwasa, the father of the applicant. The respondents were dissatisfied and have lodged the current appeal. In the first ground, Mr Joshua, counsel for the appellants started his submission by pointing out the settled principle of law that he who alleges must prove as provided under Section 110 of the Evidence Act, Cap R.E 2022. He submitted that through the entire proceedings and a copy of judgment of the trial Tribunal, the applicant had not presented sufficient evidence for the decision of the Tribunal to be held in her favour. That, 3 apart from the letters of the administration which were tendered by the respondent, no any other evidence was tendered by the respondent to prove that indeed the disputed property was allocated to and owned by her late father. That, in the absence of the evidence of allocation of the disputed property, it cannot be concluded that ownership was proved to the level required. The counsel for the appellants submitted that, for someone to conclude whether or not the case is proved on the balance of probabilities, one of the prerequisites is that; the evidence must carry a reasonable degree of probabilities that the evidence given is more probable than not. He asserted that the respondent failed to discharge her duty by presenting sufficient evidence to prove her case on the level required. In reply, Mr Masinga submitted that the trial Tribunal's proceedings and judgment are clear that the respondent proved her case. That the respondent's evidence showed that the suit land was acquired by her late father Mohamed Sadi Mwasa in 1984 where he was allocated the same by the Village Government through Operation Vijiji. That the respondent also testified that she was born at the suit land and that the evidence of the respondent was not contradicted. That the evidences of PW2 of PW3 also supported the evidence of the respondent. He added that the trial - 4 Tribunal properly evaluated the evidence from pages 6,7 and 8 of the judgment and reached to proper decision. In order to determine this ground of appeal, this court, being the first appellate court, saw it fit to revisit the whole evidence which was adduced by the parties. During the evidence, the applicant (now respondent) was claiming that the disputed land belonged to her father the late Mohamed Mwasa which he owned customarily since 1984. In her evidence in court as PW1, she said that her father was allocated the disputed property by Mindukeni Village Government in 1984 during "Operation Vijiji". She said that her father started farming on the land and was residing there even she, the applicant was born there. PW1 said the size of the land was 50 acres. That the respondents (appellants) have trespassed and taken the piece of land of the size of 25 acres. She named the neighbours of the disputed area to be one Jabiri and Elias Forogo. In cross examination she said that she grew up on the area seeing her father farming on the disputed land. PW2 was Elias Forogo who testified that he lives at Mindukeni village and he knew the late Mohamed Mwasa. That the area of the late Mwasa borders his area. That the area of the late Mwasa is the one which is 5 disputed between the parties. That he has been a neighbour of Mwasa since 1984. That they were allocated their pieces of land together and were farming in their allocated areas. PW2 said that he knows the appellants, they are his relatives and that they have no any right over the disputed land since it belongs to the late Mwasa. In cross examination, PW2 said that the disputed land which belonged to the late Mwasa has a size of 50 acres. He said that at the time, the late Mwasa's neighbour was the family of Tengeneza Milulu. PW3 was Ally Mazengo Mwasa who stated that he knew that the disputed farm belonged to the late Mohamed Mwasa. That there was a time when he asked Mohamed Mwasa to lend him a portion of land out of disputed land for the purpose of farming. That he was given by Mohamed Mwasa about 10-15 acres for farming temporarily and later he returned the land back to Mwasa. He asserted that the disputed land was owned by the late Mwasa. In cross examination, PW3 said that the area farm which belonged to the late Mwasa was measured at about 50 acres. The respondents/appellants also gave their evidence and DW1 Antony Roman Tea stated that he knew the late Mohamed Mwasa by seeing him in the village. He denied to have trespassed into disputed land. He said that he doesn't know the size of the disputed land as he has never- measured the area. He said further that the disputed area belonged to their grandfather Tea Milulu, later it was inherited by their parents and when they died, they (the respondent/appellants) inherited the area and continue to farm. DW1 said that their neighbours on the disputed area is Mrisho Tengeneza, on the west there is Aloyce Mpima, at the south there is Hussein Mangole and Rajabu Mangole and in the north there is Rajabu Tengeneza. He said that the family of the applicant/respondent invaded and trespassed into the disputed area in 2015 and claimed to own the disputed land. In cross examination, he maintained that the area was previously owned by their grandfather Tea Milulu, when he died, the land was inherited by Joseph Tea, Roman Tea and Mama Tea who are their parents. He said that they were not living in the disputed area but it was just a farm. DW1 Raphael Roman Tea and DW3 Pendo Tumaini stated that their evidence is similar to the one of DW1 their brother. They insisted that they are the owners of the disputed land and not trespassers. That the original owner was Tea Milulu, their grandfather. DW4 is Hamisi Aloyce Mpima. He said that he lives in Mindukeni village. He said that he knew the late Mwasa and they used to live in the same Mindukeni village. He said that he knew the area of the late Mwasa and 7 he knew the respondents as they are his neighbours. That the respondents' area which is the disputed land border his area and that he knows the owners of the disputed area to be the respondents. DW4 said further that his father informed him that the parents of the respondents are the one who owns the disputed area. That his father who died in 2007, told him that the respondents inherited the disputed land from their parents. He said he didn't know the size of the disputed area. He insisted that the disputed area does not belong to Mohamed Mwasa but the said Mwasa owned other areas, not the disputed land. I have observed that the disputed area is an unsurveyed farm and as was submitted by the counsel for the appellants, during the trial the applicant/respondent did not produce any written evidence to prove her evidence that the late Mohamed Mwasa was allocated the disputed land by the village authority during operesheni vijiji. Neither did the appellants produce any written evidence to show that their grandfather or their parents owns the disputed land. However, I have considered the evidence of the respondent particularly from the neighbour whose land border with the disputed land claimed by Mwasa. This neighbour testified as PW2 Elias Forogo who said that that they were allocated the pieces of land together with the late Mwasa in 7 8 1984. This Elias Forogo told the court that, having been allocated the disputed land, they used to farm together, PW2 on his farm and the late Mwasa on his farm. The farms were near/adjacent. Also, there is evidence of PW3 who confirmed that the disputed land belongs to the late Mwasa and that the said Mwasa at one time lent a portion of that land to PW3 for farming. Which he did for some time until he returned the land to Mwasa. It is my finding that this evidence of the applicant/respondent weighed heavier than the one adduced by the appellants/respondents. The evidence from the appellants is from DW1 who just said that the disputed land belonged to their grandfather Tea Milulu. Despite not being able to bring any other evidence to prove the ownership of Tea Milulu, and how he got the land, the witness DW4 who claimed to be a neighbour of the appellants at the disputed land, was not certain about the ownership of Tea Milulu or the appellants. He told the court that he was told by his late father that the land was owned by Tea Milulu, and after his death, the children and later grandchildren of Tea Milulu inherited the area. I find this to be hearsay evidence which cannot stand in the circumstances where the available evidence needs corroboration to ascertain/ confirm it. 9 Therefore, in this ground, I agree with the findings of the trial Chairperson that the applicant/respondent managed to prove her case on balance of probabilities. The applicant brought the evidence of PW2 who was there when the late Mwasa was allocated the disputed land. PW2 said that he was also allocated his land which is near the disputed land at the same time. In other words, according to the evidence of PW2, the late Mwasa and PW2 were allocated their pieces of land on the same time i.e in 1984 and they started farming each on his land. That, PW2 witnessed the late Mwasa farming in his land all the time as he was his neighbours. He also witnessed the disputed land being allocated to the late Mwasa since they were allocated the land together on the same time and they were neighbours. On the side of the appellants/ respondents, beside their evidence that the disputed land belonged to their grandfather Tea Milulu, and their parents inherited after his death, there is no any corroborating evidence to show how the land was owned by the said Tea Milulu. The only other evidence was from DW4 who said that his family farm neighbour the disputed land. His evidence could not be relied upon as he said that he was told by his late father that the disputed land belongs to Tea Milulu. J-W In 10 I am of the view that the appiicant/respondent managed to prove her case by standard of probability as required in civil cases. It is true that it is the principle of law that he who alleges must prove. However, in the civil matters, standard of proof is based on balance of probability, i.e. which party's evidence is heavier than the opponent? It is correctly submitted by the counsel for the appellants that for someone to conclude whether or not the case is proved on the balance of probabilities or not, the evidence must carry a reasonable degree of probabilities that the evidence given is more probable than not. In the present matter, it is clear that the evidence of the appiicant/respondent was probable than the one of the appellants. I say so for the reasons already clarified herein above, that the evidence of PW2 who said to have been together with the late Mwasa when they were allocated the lands, and who also witnessed the late Mwasa always farming in the disputed land is believable than the evidence of DW4 who simply claimed to have been told by his late father that the disputed land belonged to grandfather of the appellants. I totally agree with the findings of the trial Chairperson referring to the case of Hemed Said vs Mohamed MbiHii [1984] TLR 114, that the 11 heavier evidence is the one which is to be taken into consideration. I find the first ground to have no merit. On the second ground, Mr Joshua submitted that the trial Chairperson erred by proceeding with the trial while the suit was filed by the respondent contrary to Rule 10 of GN No. 49 of 1971 (the Primary Courts (Administration of Estates Rules) GN No. 49 of 1971. That according to the cited Rule, the respondent being an administratrix of the estate of the late Mohamed Mwasa, she had four (4) months to take action with respect to the ownership of the disputed property. That forms No. 1,2,3,4 of Probate Administration was issued by Magomeni Primary Court on 15/3/2025 while the respondent took action by filing Land Application No. 89 of 2019 on 10/6/2019, which was 15 months later. Mr Joshua argued that, there is no order of the court that was presented during the hearing, showing that the respondent was given extension of time to discharge her administratrix duties which included filing Land Application No. 89 of 2019. He was of the view that Land Application No. 89 of 2019 was therefore incompetently filed. To bolster his argument, the counsel for the appellants referred this court to the case of Constancia Lubonera (as administratrix of estate of late Salvatory Lubonera Lugenga) vs. Mugongo Village Council 12 and 5 others, Land Case No. 19 of 2023 TZHC 1723 TANZLII where the court find the plaintiff to have no locus standi to act on behalf of the deceased as her time to discharge that duty had expired by operation of the law. Mr Masinga submitted and contended that, this suit is not a probate case. He added that the cited cases by the counsel for the appellants does not state that once four months elapse, the administratorship automatically expires and the administrator lose locus standi to sue or perform the administrator duties. That in absence of an order of revocation the administrator is still considered to be an administrator. In determining this ground, I read carefully the proceedings of the trial Tribunal. I have not seen anywhere where the appellants raised this objection which also invite evidence to ascertain whether the respondent's time as administratrix has expired and whether she has sought extension before the Probate Court or not. According to the records, during the trial, the appellants who were respondents raised two points of objection; first that they have no locus standi to be sued since the land in dispute was lawfully owned by their late grandfather the late Tea Milulu and they were not the administrators of his estate. The second objection was that the application is time barred 13 since the respondents/appellants and their family have been in occupation of the land in dispute since the year 1942. That the land dispute was instituted in the Tribunal way out of 12 years which is the time limit for land disputes. The trial Chairperson overruled both objections on the reason that the objections invite evidence hence they could not be determined at the preliminary stage. At this stage of the appeal, the appellants seem to raise another point of objection though now in the form of a ground of appeal. I am aware of the position that a point of law can be raised at any time even at the appeal level. However, this point of law should not be the one which invite evidence at the stage of appeal. The appellants had time to raise this point at the trial level where both parties could have brought evidence to ascertain whether the administratrix time of the respondent had expired or not and whether the respondent had sought for extension of time before the probate court or not. At the appeal level, I disregard this point and consider it as an afterthought. This ground also has no merit. On the third ground, the appellants stated that the trial Chairperson erred when she decided in favour of the respondent basing on evidence which suggests that the disputed land was at Lugoba while the same is at Mindukeni Village, Talawanda Ward, Chalinze District. -A/.l 14 Mr Joshua for the appellants submitted that in the application, the respondent stated that the disputed property is situated at Mindukeni Village. That, however, during the trial, the respondent tendered letters of administration which indicated that, the deceased, Mohamed Mwasa had a property located at Lugoba, Chalinze. That, the presented letters of administration did not show that the deceased had any property located at Mindukeni Village, Talawanda Ward, Chalinze. That if at all the disputed property was among the deceased property then the same could have appeared in the list of properties indicated in the letters of administration that were presented by the respondent during the trial. The counsel concluded that the trial Tribunal relied on wrong evidence to decide in favour of the respondent. Mr Masinga for the respondent submitted that it is clear from the outset that the application which was filed by the respondent at the trial Tribunal indicate that the land in dispute is located at Mindukeni Village, Talawanda Ward, Chalinze District, Coast Region. He submitted further that Lugoba Primary Court which issued the letter of administration, its geographical jurisdiction extends up to Mindukeni Village where the land in dispute is located. He added that the appellants' counsel submission claims that the. 15 late Mohamed Mwasa had a property located at Lugoba are nothing but intention to mislead the court. During the trial, indeed the applicant/respondent produced letters of administration which was admitted with the death certificate collectively as exhibit Pl. However, the trial Chairperson did not rely on the letters of the administration to decide in favour of the respondent as the counsel for the appellants has submitted. Going through the impugned judgment, the trial Chairperson relied on the evidence which was adduced in court which proved that the disputed land was lawful owned by the late Mwasa. The admission of the letters of administration was for the proof that the respondent was appointed the administartrix of the estate of the late Mwasa. The trial Chairperson did not indicate in her findings that she had relied on the contents of the letters of the administration to conclude that the disputed land belonged to late Mwasa. From page 6 to 8 of the typed judgment, the trial Chairperson assessed the evidence which was adduced by both sides to the dispute and was satisfied by the evidence adduced during the trial by the applicant/respondent and her witnesses. Yes, I have read the contents of the letters of administration. They show that the late Mwasa had one house at Goba and six (6) farms at Lugoba. 16 However, it is my view that the question on why the disputed land was not listed in the letters of administration as among the properties of the late Mwasa, is not to be answered by this court but rather the probate court. It is the probate court which could determine on the number of the deceased properties listed in the probate forms. The mandate of the land Tribunal was to determine the issue of ownership which it did correctly. I also find this ground to have no merit. Having determined the three grounds, I find all of them to have no merit and I hereby dismiss this appeal in entirety, with costs. 17