land app 8882 SCAN

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 8882 OF 2024 (Originating from the decision of the District Land and Housing Tribunal for Mkuranga at Mkuranga delivered on 07th March 2024 by Hon. R.Mwakibuja from Land Application No. 34 of2021). ATHUMANI MOHAMED MAYUMBA (Legal personal Representative of late Selemani Salehe Mjengera)............ APPELLANT VERSUS TABIA MUSA NJENGE.................................................... 1st RESPONDENT VIETEL TANZANIA PUBLIC LIMITED COMPANY........... 2nd RESPONDENT JUDGMENT 30/9/2024 8 10/10/2024 A. MSAFIRI, J. The appellant being aggrieved by the decision of the District Land and Housing Tribunal for Mkuranga (herein the trial Tribunal) in Land Application No. 34 of 2021, has lodged this appeal on three (3) grounds of appeal as follows; 1. That the District Land and Housing Tribunal erred in law and in fact in failing to consider that the Appellant is the legal personal i representative of the late Selemani Salehe who was the legal owner of the piece of disputed land. 2. That the District Land and Housing Tribunal erred in law and in fact in deciding the case in favour of the Respondent in the absence of any strong evidence to support her ownership by based (sic) on hearsay evidence without proof of sales. 3. That the District Land and Housing Tribunal erred in law and in fact in failing to seriously take into account the evidence adduced by the appellant. The hearing of the appeal was by way of written submissions. The submission in chief by the appellant was drawn gratis by Mr Jumanne Fokasi Semgomba, learned advocate and filed by the appellant himself, the reply submission by the 1st respondent was drawn and filed by Mr. Hamza Matongo, learned advocate while the submission by the 2nd respondent was drawn and filed by Mr. George Palangyo, learned advocate. Since the three grounds of appeal are all based in faulting the trial Chairperson on the analysis of evidence, being the first appellate court, I will go through the adduced evidence during the trial and make an analysis. The applicant who is also the appellant in the instant appeal instituted an application before the trial Tribunal against the two respondents herein/ 2 In his evidence as PW1 he stated that the disputed land which is located at Kipo Village within Kipugira Ward, Rufiji District is the lawful property of the late Selemani Salehe Mjengera. He said that he was appointed the administrator of the estate of the late Salehe Selemani Mjengera and he produced letters of administration which was admitted as exhibit Pl. PW1 said that Selemani Mjengera had a sister named Habiba Mjengera. That when Selemani died, his sister Habiba took the possession of the disputed property since Selemani had no children. That when Habiba died, the 1st respondent emerged and claimed to be the owner of the disputed property. That the family of Mjengera did not agree and decided to appoint the applicant as administrator who has filed the suit against the 1st respondent who claims to be the owner of suit property and the 2nd respondent who has leased the property and set the communication tower. During cross examination, PW1 stated that the late Habiba was his biological mother. He said that Selemani died in 2012 while Habiba died in 2014. That the 1st respondent trespassed in 2015.He said the he have never heard that Habiba has sold the disputed property to anyone. That the late Selemani Mjengera acquired the disputed property in 1968 after 3 he was allocated by the Village Government during the establishment of Kipo Village. PW1 was the sole witness in his case and produced exhibit DI the letters of administration as the only documentary evidence. The defence had two witnesses, DW1 who is the 1st respondent Tabia Musa Njenge. She said that the appellant/applicant is her cousin. She said that the disputed property is her property. She said that Selemani Mjengera was given a piece of land to live by her father and he lived there for a long time until he died in 1990 leaving the said piece of land to his sister Habiba Mjengera. DW1 said that Habiba Mjengera was her aunt and she took over the disputed land when Selemani Mjengera died. That after some years, Habiba came to DW1 father one Mussa Saidi Njenge and ask to sell the disputed land to him. That Habiba sold the disputed piece of land to Mussa Njenge. That after buying the land, their father informed them and told them to divide the said land among themselves. DW1 said that they started to cultivate the land and during that time she have never seen the applicant/appellant. She said further that on the disputed land there is a telephone communication tower which was installed by the 2nd respondent in 1995, and before that there was no any 4 dispute over the land. In cross examination, DW1 stated that there is no written sale agreement as the relatives trusted each other. DW2 Nyakilungi Musa Njenge said that the applicant/appellant is her cousin. She said that she knows the location of the disputed property and one part belonged to Selemani and the other part Selemani built for his mother. DW2 said further that the disputed property belonged to his father since 1992. That when Selemani died, Habiba who is the mother of the applicant asked DW1 and DW2 father to purchase the said property. That Habiba inherited the disputed property from Selemani Mjengera who died in 1990. That DW2 father purchased the property for TZS 50,000/=. That after purchase, they continued to use the land for farming and even when Habiba died in 1998 nobody from Habiba's children came to claim the property. That it was only in 2015 when the 2nd respondent leased the property for communication tower when the applicant/appellant came out claiming the property. In cross examination, the witness DW2 said that she was the one who gave out TZS 50,000/= the purchase price of the property. That the sale was not in writing as they were relatives. There was no any documentary evidence on the defence side. M 5 In analysis of evidence from both parties, I see that first, there is no dispute that the appellant Athumani Mohamed Mayumba and the 1st respondent are relatives (cousins) and that the late Selemani Salehe Mjengera was the maternal uncle of the appellant while he was paternal uncle of the 1st respondent. Second, there is no dispute that the disputed land once belonged to the late Selemani Salehe Mjengera. This was confirmed by the evidence of all witnesses in the case i.e. PW1,DW1 and DW2. Third, all witnesses agreed that after the death of Selemani Mjengera, his sister Habiba Mgendera inherited the disputed property. Since these facts were not disputed by parties to the suit then I have concluded that there was enough evidence from both parties which proves that the suit property belonged to the late Selemani Salehe Mjengera and after his death, it was inherited by his sister also the late Habiba Mjengera. In my analysis of evidence, I find that the dispute was on the alleged purchase of the suit property from the late Habiba Mjengera to the late Mussa Njenge, the father of the 1st respondent. Beside verbal evidence from the 1st respondent and DW2, there was no evidence to prove that indeed the late Habiba sold the disputed land to the late Njenge. Unfortunately both parties are deceased and there is no any written agreement to show that Habiba sold the disputed land. I find that the 1st 6 respondent, on balance of probability, was not successful in establishing that Habiba sold the disputed land to Mussa Njenge. In the circumstances, I am of the view that the weight of evidence tilt heavily on the appellant's side. In the case of Hemed Said vs. Mohamed Mbilu, [1984] TLR 113, it was held that; according to 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. This got me back to the grounds of appeal. The first ground is that the trial Tribunal failed to consider that the appellant is the legal representative of the late Selemani Salehe who was the legal owner of the disputed land. Here, I find that there was no dispute that the appellant was the administrator of the estate of the late Selemani Salehe Mjengera. As per exhibit Pl, he was appointed so by the Primary Court of Mbagala on 09/7/2012. Since this court has find that the disputed land was the lawful property of the late Selemani Mjengera and there is no evidence of the sale of the said property, then the appellant as administrator had a right to claim on the said property. On the second ground, I also agree that the trial Tribunal erred in deciding the case in favour of the respondent on the alleged sale of the suit property based on evidence of DW1, DW2 who did not even say whether 7 they witnessed the sale. DW2 said in cross examination that she was the one who gave his father TZS 50,000/= to purchase the property, however in absence of a document to prove the sale it remains the mere words of mouth which anyone can claim that. On the third ground, I also agree that the trial Chairperson erred when she failed to take into consideration the evidence adduced by the appellant. On this I add that the trial Chairperson failed to observe that both parties to the suit have agreed that the suit property belonged to the late Selemani Mjengera and after his death, his sister Habiba Mjengera took over the property. To sum up, I find all three grounds of appeal to have merit and I allow the appeal with costs. I hereby quash and set aside the decision, judgment, decree and any subsequent orders by the trial Tribunal in Land Application No. 34 of 2021. It is so ordered. A.MSAFIRlJ JUDGE 10/10/2024 8