asha shaweji administrator of the estate of the iate shaweji mohamed vs adam othuman sumini 9 others 2022 tzhclandd 12471 27 september 2022

1' \ < IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL N0.283 OF 2021 (From Land Application No. 05of2020, by the District Land and Housing Tribunalfor Kibaha.) ASHA SHAWEJI(Administrator of the Estate of the iate SHAWEJI MOHAMED) APPELLANT VERSUS ADAM OTHUMAN SUMINI 1®^ RESPONDENT ALLY RASHID MBEGU 2"° RESPONDENT BABY OTHUMANI SUMUNI 3"® RESPONDENT MARIAM SHAWEJI 4™ RESPONDENT BEATRICE ELINEEMA NYANGE 5™ RESPONDENT ARNOLD REMMY 6™ RESPONDENT HEM ED SENKONDO 7™ RESPONDENT CLEMENCE MBARUKU 8™ RESPONDENT AMONI A. MCHOMVU 9™ RESPONDENT ERNEUS PASCHAL MCHOMVU 10™ RESPONDENT JUDGMENT Date ofLast Order:20.09.2022 Date ofJudgment:27. 09.2022 T. N. MWENEGOHA,J. The appeal arose from the decision of the District Land and Housing Tribunal of Kibaha District, herein the trial Tribunal. The dispute is over a land, measuring 3.5 acres, located at Kibaha Area, within the Coast region. The said land has been trespassed upon by the respondents. The trial tribunal dismissed the case in favour of the respondents; hence this appeal was filed by the appellant, based on the following grounds; - 1. That,the trial tribunal erred in law and fact by holding that the appellant did not adduce enough evidence to prove that the disputed land belongs to the late Shaweji Mohamed. 2. That, the trial tribunal erred in law and fact in holding failure by the appellant to summon the local leadership and other witness. 3. That, the trial tribunal erred in law and in fact by failing to make findings that the evidence of PW2 was credible and therefore admissible. 4. That,the trial tribunal erred in both law and fact by holding that the appellant didn't not prove her case to the balance of probabilities. 5. That, the trial tribunal erred in both law and fact by failing to consider and analyse well the evidence adduced during trial. The appeal was heard by written submissions and exparte against the 2"^, 3rd^ 5th^ 6^ and 9^ respondents. The appellant was represented by advocate Nehemla Godfrey. The 4^ 7^ 8^^^ and 10^ respondents appeared in person. In my judgment, I will consolidate all five grounds of appeal and discuss them together. I do so In consideration of the fact that, all of them are based on evaluation and analysis of evidence. Generally, the appellant has faulted the trial tribunal for its failure to make a proper analysis and evaluation of the evidence before it hence wrongly decided the matter against her. In her written submissions as presented by Advocate Nehemla, the appellant maintained that, the evidence of PWl and PW2 was ignored by the trial tribunal. The said testimony proves that the suit land forms part of the estate of the late Shawejl Mohamed. Further, it was argued that, the local leaders were supposed to be called by the trial tribunal to testify before it as they are fully aware of the fact that, the suit land is the property of the late Shawejl Mohamed. The and 10^^ Respondents filed their submission however, the same will not be considered as per explanations below Having gone through the submissions of parties as shown herein above, the question for determination is whether the appeal has merits or not. I have noted from the records at hand that, the case at the trial tribunal was heard exparte against all of the above listed respondents. Hence, they do not have audience in this Court. The appellant who was the claimant at the said tribunal, produced two witnesses. PWl,the appellant herself and one Haji Ahmad Omary as PW2. At page 11 of the typed proceedings, the appellant who testified as PWl was recorded stating the following facts; - Ninachojua, baba yangu aiinunua eneo hl/o miaka mingi kweli, mi'mi nikfwa bado mdogo sana." This statement was an answer to "Mzee Ubwa", one of the trial tribunal's assessors. However, the appellant did not produce any document to back up her statement, considering the circumstances that, she did not witness the sale of the said land to his late father at that material time. She was very young as she said in her testimony. Apart from PWl's testimony, also there is a testimony of PW2. The same did not corroborate well the testimony of PWl. In his testimony, PW2 claimed to know the suit land as the same belonged to his late father, the late Shaweji Mohamed. At the same time, he stated that, PWl is her mother. But the same PWl is the daughter of the late Shaweji Mohamed. In other words, the testimony of PW2 was unconvincing. It raised questions rather than proving the case of the appellant before the tribunal. It is provided under Sections 101, 102 and 103 of the Evidence Act, Cap 6 R. E. 2019, that the burden of proof lies on the party who asserts the affirmative of the issue or question in dispute. Moreover,.in civil cases, the standard of proof Is on balance of probabilities. In the case at hand, the burden of proof was on the appellant. She is the one who instituted the claim against the respondents at the trial tribunal. She was supposed to prove that, on balance of probabilities her claims are true, that the respondents are trespassers to the suit land as the same belongs to the estate of their late father, Shaweji Mohamed. This means that, her evidence was to be good enough to satisfy the trial tribunal that, there is a likelihood that, the late Mohamed Shaweji bought the land from "an identified person". In absence of showing such likelihood, her case cannot succeed and the respondents will take It all as winners. It is because on balance of probabilities, there Is a very minor difference between succeeding and failing. This Is what was happened at the trial tribunal. It Is a trite law in balance of probabilities rule that. If the evidence is such that the court or tribunal can say"we think it is more probable than not"the case succeeds, but if it is otherwise then the case fails. For clarity on how the rule of balance of probabilities in civil cases works, I will dwell on the explanations given in H (Minors)(Sexual Abuse: Standard of Proof)[1996] AC 563,586D-H, where Lord Nicholls of Birkenhead stated: "7776 balance ofprobability standard means that a court is satisfied an eventoccurred ifthe courtconsiders that, on the evidence, the occurrence of the event was more iikeiy than not. When assessing the probabilities the court wiii have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the iess iikeiy it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the aiiegation is established on the balance ofprobability." Moreover, in B v Chief Constable of Avon and Somerset Constabulary[2001]1 WLR 340, Lord Bingham a said:- "...the civii standard ofproof does not invariably mean a bare balance of probability. ... The civii standard is a flexible standard to be applied with greater or iesser strictness according to the seriousness of what has to be proved and the implications ofproving those matters" Applying these principles to the records of the case at hand, I am highly convinced that the evidence given by the appellant had failed to prove in the balance of probabilities that the disputed land belonged to her father. Hence the tribunal arrived to the conclusion that the claims by the appellant over the suit land are baseless. After examining the records and in consideration of the submissions of the parties I find no reason to error the tribunal's findings. Therefore, I find that the findings, decision and orders of the trial tribunal were correct. The same are hereby upheld. Having so said, I find all the five grounds of this appeal to be lacking merits and proceed to reject them accordingly. Consequently, the entire appeal is dismissed No order as to costs. goURTQ^ T. N. MWENEGOHA o JUDGE t- s: 20/09/2022 ★ ★