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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB - REGISTRY) AT MOROGORO LAND APPEAL NO. 17383 OF 2024 (Appeal from the decision of the District Land and Housing Tribunal of Morogoro in Land Application No. 96 of 2023 dated 20*^ September 2023) BAKARI S. GONZA(As an administrator of the estate of the late Omary Mbomo) APPELLANT VERSUS ZAHORO S. GONZA 1^ RESPONDENT SWALEHE R. KITULIKE 2^0 RESPONDENT JUDGMENT 31/10/2024 & 25/11/2024 KINYAKA, J.: The decision of the District Land and Housing Tribunal of Morogoro at Morogoro hereinafter the "Tribunal" dated 20*^ September 2023 in Land Application No. 96 of 2023 was in favour of the 2"^ respondent. The Tribunal dismissed the appellant's application and declared the 2"^ respondent the f rightful owner of a parcel of land measuring 2V2 acres located at Masambwe Kindoka Area, Uponda Village, Matombo Ward in Morogoro Region hereinafter the "suit land". 1 In his application before the Tribunal, the appellant, who is the administrator of the estate of the late Omary Mbomo alleged that in the year 2011, the 2"^ respondent invaded the suit land which is owned by the family of his deceased grandfather, one Omari Mbomo who died intestate in 1982. He prayed for an order for the 2"^ respondent to vacate the suit land, permanent injunction against the 2"^ respondent, an order of compensation against the 2"^^ respondent for destroying crops In the suit land, and costs of the suit. The 1^ respondent denied to have sold the suit land to the 2"^ respondent as he had no authority to do so. He alleged that the purported sale was not recognized by Uponda village. On his part, the 2"^ respondent opposed the application alleging that he owned the suit land since 1993 after he purchased the same from Tausi Omari on behalf of his brothers through the agreement signed by the 1^^ respondent. At the closure of the evidence of both parties, the Tribunal was satisfied that the suit land belonged to the 2"^ respondent relying on the sale agreement dated 13^^ January 1993 and minutes of the of the Uponda Village which were admitted by the Tribunal for identification purpose. Being dissatisfied, the appellant preferred thirteen grounds of appeal, which I reproduce herein below: 1. That the Hon. Chairperson erred in law and facts for not taking into consideration that 2AH0R0 S. GONZA the respondent and his mother TAUSI OMARY have not had any authority to act anything concerned a deceased OMARY MBOMO's property because the owner has passed away and the said property Is administered by the appellant that Is BAKARI S. GONZA the administrator of estate as long as no dispute that the disputed property is belongs to deceased OMARY MBOMO and the appellant is the Administrator; 2. That the chairperson erred in law and fact to receive and accept the list of additional documents filed by the respondent on 4^^ July 2023 that were (1) a copy of sale agreement dated 13/01/1993 marked as K-l, (2) a copy of muhtasari wa kikao cha dharura cha tarehe 12/07/1993 marked as K-2, (3) a copy of muhtasari wa kikao cha serikaiiya kijiji cha tarehe 09/08/1993 marked as K-3, and (4) a copy of nakaia ya maamuzi ya madai Na. 2/2011 kijiji cha upanda kata ya Tawa Matombo dated 3/03/2011 marked K-4, as the mentioned and listed documents but were not marked in the filed list of additional documents as the said 2"^^ respondent stated, worse enough they attached with Improper arrangement as the 1^ annexure is a receipt of 3 ^ payment dated 4^^ July 2023 instead of sale agreement while some of them that unmentioned in the said list of additional documents were joined with and received together; 3. That the Hon. Chairperson erred in law and facts for failure to understand that a time limitation of land recovery for deceased's property is starting to be computed when a letter of administration is granted until to the time when a suit filed should not exceed 12 years regarding to section 25(1) & (2) Cap. 89 R.E. 2002 of the law of limitation Act; 4. That the Hon. Chairperson erred in law and facts for accepting to receive the photo copies tendered by the 2"^ respondent without filing the 2"^ Respondent's notice to rely on secondary evident that is contrary to section 67(i)(c) of the Evidence Act Cap. 6 to introduce to the tribunal that he is relying the said photocopies as the evidence without original copies to being tendered; 5. That the chairperson erred in law and facts for her decision relied upon the 2"^^ defendant's sale contract as she quoted it "yah: Kuhusu kuuza shamba ia masambwe ia Bi Tausi Omarv na kaka zake kwa A niaba yao muuzaji ndugu Zahoro Salum wamepatana Tsh 100,000'. The bold and underline is for the appellant. The bolded and underlined words definitely indicated that a disputed farm belong to Tausi Omary with her brothers while the said chairperson dealt with IV framed issues as the "whether the disputed farm located at Maswambwe Kindala village is owned by deceased Omary Mbomo or not". This issue was determined by the said chairperson and both parties have not any dispute that a disputed farm is owned by deceased Omary Mbomo whose administrator is BAKARI S. GONZA surprised that the said sale contact that relied by Hon. chairperson to give a victory the 2"^ respondent. It has stated that a disputed farm belongs to TAUSI OMARY with her brothers that gives contradiction. That is why the appellant stated that this contract is not genuine; 6. That the chairperson erred in law and facts for failure to take consideration that the 2"^ respondent and chairman of Uponda village had agreed and they knew that a property belongs to deceased OMARY MBOMO who is the father of TAUSI OMARY and a grandfather of ZAHORO S. GONZA but the 2""^ respondent failed to ask for letter of administration of estate so that to comply with the probate and administration of estate Act chapter 352 part XI section 99 to (a) and (b) while he knows that to buy the deceased's property without administrator of estate as a legai representative is illegai; 7. That the Hon. Chairperson erred in law and facts for not understanding the main reasons for the land appeal No. 118 of 2018 ordered the matter to be returned to trial tribunal was to join a necessary party that is the respondent in order to state by himself if he has sold a disputed land to the 2"^ respondent or not as the said respondent denied to sale a disputed land to the 2'^'^ respondent; 8. That the Hon. Chairperson erred in law and facts for the way she was presiding the matter as she was teaching the 2"'^ respondent instead of presiding as referee when the 2"^ respondent filed his written statement of defence without annexures attached the Hon. chairman taught him how to file list of additional evidence and has granted him an order of doing such a thing without the said 2"^ respondent to request an order. 9. That the Hon. Chairperson erred in law and facts for not taking consideration that deceased OMARY MBOMO has left behind 9 sons and daughters that have been named in the family minutes annexed with application as annexure BSG2 at trial tribunal and TAUSI OMARY could not give or to be given power and authority by sons and daughters of deceased OMARY MBOMO to appoint ZAHORO S. GONZA the respondent to sale a disputed land because she is not a sole heir of the deceased's property and there has not any consent paper or power of attorney signed between sons and daughters of deceased OMARY MBOMO and ZAHORO S. GONZA or TAUSI OMARY to act on behalf in sale of the said property. 10. That the Hon. Chairperson erred in law and facts for failure to digest the oral and documentary evidence adduced by the respondent and the applicant in trial tribunal especially in annexure ZSGl attached by the respondent and the same attached by the applicant in his application as annexure BSG4 is the letter from Uponda village authority to deny to recognize the sale contract said to be signed by ZAHORO S. GONZA on behalf and SWALEHE R. KITULIKE which its original copy disregarded by Hon. chairperson to be received in time of hearing when it tendered; and 11. That the Hon. Chairperson erred in law and facts for not taking 7 ^ consideration that the 2"^ respondent's presence in the said farm has been recognized by the appellant and the family of deceased in the year 2011 not otherwise as it stated in the land application filed at trial tribunal in land application No. 96 of 2021 and land application No. 92 of 2014 in cause of action stated that a 2"*^ respondent invaded a land in the year 2011 not 1993. At the hearing of the appeal, the appellant appeared in person unrepresented. The 1^ respondent did not appear despite being in attendance on 22"^ October 2024 when the appeal was adjourned to 31^ October 2024 for hearing. The 2"^^ respondent has not been appearing before the Court. The affidavits brought by the appellant to Court evidenced that the 2"^ respondent refused to sign and receive summons of this Court. Based on the above, the appeal proceeded ex parte against both the 1^ and 2"*^ respondents. Supporting his appeal, the appellant submitted that the Tribunal was incorrect to declare the 2"^ respondent as the owner of the suit land despite the 1^ respondent's denial to sell the same to the 2"^ respondent. He contended that the signatures of the 1^ respondent, that of Tausi Omari and the village executive officer are not found In the sale agreement. He added that the respondent informed the Tribunal that the sale agreement was invalid and that he recommended the appellant to be the administrator of the estate of Omary Mbomo. He prayed for the appeal to be allowed, and for an order against the 2"^ respondent to pay compensation to the appellant for destroying the crops in the suit land. Despite the brief submissions by the appellant touching the general aspect of the dispute, I will determine all the grounds of appeal by consolidating the 1^, 5^^, 6^^ and 9^^ grounds of appeal. Next for determination will be the 2"^, and 8^^ grounds of appeal which will also be combined followed by the 3'^ and grounds of appeal. The 7^^ and 10^^ grounds of appeal will be determined separately. The 1^, 5^^ 6^*^ and 9^^ grounds of appeal is a complaint that the purported sale of the suit land was invalid as the respondent and his mother Tausi Omary had no authority to sell the suit land owned by the late Omary Mbomo and which was under the administration of the appellant. The relevant part of the decision of the Tribunal is found on page 8 through to 10 of the judgement. The Tribunal held from the last paragraph of page 7 through to 8 that through the testimonies of both the prosecution and defence witnesses, it has been established by the parties and confirmed by the Tribunal that the suit land was owned by the late Omary Mbomo. However, the Tribunal held that the suit land was no longer owned by the late Omary Mbomo but the 2"^ respondent after he purchased the same from Tausi Omary and the respondent on 13^^ January 1993. It is on record that the late Omary Mbomo died in 1982 but the appellant was appointed the administrator of the estate in 2012. I do not agree with the appellant that as an administrator of the estate of the late Omary Mbomo he was the one who had the capacity to sell the suit land to the 2"^ respondent. I am of the considered position that at the time of the alleged sale of the suit land in 1993, the appellant was not the administrator of the estate of the late Omary Mbomo. However, the record of the Tribunal does not reflect any evidence adduced by the parties as regards to the person who was appointed to administer the estate of the late Omary Mbomo immediately after his death in 1982 or at the time of the sale of the suit land to the 2"^ respondent on 13^^ January 10 1993. The evidence of all witnesses including that of DW2, the 2"^ respondent reveal that neither Tausi Omary nor the 1^ respondent were the administrators of the estate of the late Omary Mbomo. In the case of Philemon Vanai Saiteru Mollel v. William Titus Mollel and Another, Civil Appeal No. 407 of 2021 [2024] TZCA 157 (5 March 2024), a related scenario faced the Apex Court where the appellant had purchased a disputed land from a deceased's son who was yet to be appointed as administrator of his late father's estate. The court held as follows on page 9; *7/7 a bid to prove ownership ofthe suit properties, the appeliant tendered before the trial court the sale agreements(exhibits Dl- D4), which shows that on diverse dates between July, 2009 to 2010, the appellant entered into sale agreements of the suit properties with one Jimmy Titus MoileL However, asit was rightly found by the trial court, the said agreements were inoperative as the purported vendor was not the owner hence, he had no good title to pass to the appellant. See: Pascal Maganga v. Kitinga Mbarika, Civil Appeal No. 240 of2017(unreported)." Noteworthy, it is an established position of the law that once the owner of a property demises, it is only the duly appointed administrator of the estate of the deceased who hold powers of the deceased in the estate of the 11 deceased. The position was well elucidated in the case of Joseph Shumbusho v. Mary Grace Tigerwa & Others, Civil Appeal No. 183 of 2016[2020]TZCA 1803(6 October 2020)on page 20 through to 21 in which the Court of Appeal underlined that: 'The law recognizes the executor/administrator aspersonallegal representative ofthe deceased. Asa iegai representative of the deceased's estates, all the deceased's estates are vested to him and has all the powers over the deceased assets as the deceased would have, save that he is acting in a representative capacity. As rightiy submitted by the iearned counsel for the appellant, he is vested with the powers to sue in respect of aii causes ofaction that survived the deceased, powers to recover debts due to the deceased at the time of his death, as the deceased had when he was living (section 100 of the Probate and Administration Act) and powers to dispose of property by way of sale, mortgage, leasing or otherwise in reiation to immovable property (section 101 of the Probate and Administration Act)..." Admittedly, neither Tausi Omary nor the respondent held the authority to administer the estate of the late Omary Mbomo at the time of the alleged disposition of the suit land to the 2"^ respondent. The maxim ^^nemo dat quod non habet' meaning that no one can give what they do not have, 12 applies squarely in the present matter. In the absence of their authorities to part with the suit land owned by the late Omary Mbomo, I hold that the respondent and Tausi Omary had no authority or capacity to dispose of the suit land by way of sale to the 2""^ respondent. It follows that the purported sale of the suit land was invalid for lack of capacity and authority of the respondent and Tausi Omary to dispose of the same to the 2"^ respondent. It follows that the 1^, 5^^, 6^^ and 9^^ grounds of appeal are merited and I allow the same. The appellant's 2"^ and 8^^ grounds of appeal faults the Tribunal for accepting and receiving photocopies of the sale agreement, the minutes of Uponda village dated 12^^ July 1993 and 9^^ August 1993, and the decision of Uponda Village in land dispute No. 2 of 2011 dated 3'^ March 2011 which were not properly named, and arranged; and which were filed by the 2"^ respondent after being taught by the Hon. Chairperson of the Tribunal. I have read the handwritten proceedings of the Tribunal. I found that indeed the additional documents were filed by the 2^^^ respondent on 4^^ July 2023 after the appellant had closed his prosecution case and after the 2""^ respondent had adduced his testimony. However, the records indicate that 13 ^ after the 2"^ respondent had completed his testimony, he informed the Tribunal of his intention to submit documentary evidence, the prayer which was granted by the Tribunal. There is nowhere in the record that indicate that the Hon. Chairperson taught the 2"^ respondent to file the list of additional documents. In my view, the Tribunal's grant of an order to file the documents was proper and in accordance with Regulation 10(2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations G.N. No. 174 of 2003 which provides that: "10(2) Notwithstanding sub-reguiation (1), the Tribunai may, at any stage of the proceedings before the conciusion of hearing aiiow any party to the proceeding to produce any materiai documents which were not annexed or produced eariier at the first hearing. Again, my reading of the proceedings reveal that at the time of tendering the sale agreement, the minutes of Uponda village dated 12*^ July 1993 and 9^^ August 1993, and the decision of Uponda Village land dispute No. 2 of 2011 dated 3''^ March 2011, were tendered by the 2"^ respondent one after the other. The appellant and the 1^ respondent objected to the admission of the same but the same were overruled. That said, I have not found any disarrangement or improper naming of the annexure. It is my considered position that even if there were such errors, nothing show that the appellant was prejudiced by such disarrangement and improper naming as during tendering of the same,the 2"^ respondent named and tendered each of the document separately. It follows that the 2"^ and 8^^ grounds of appeal are unmerited and I dismiss the same. The 4^^ ground of appeal faults the decision of the Tribunal for accepting, receiving and relying on secondary evidence while the 2"^ respondent failed to file and serve upon the appellant notice to produce contrary to section 67(l)(c) of the Evidence Act Cap. 6 R.E. 2022 hereinafter the "Evidence Act". In determining the ground, I should state at the onset that the decision of the High Court was attached to neither the 2^^ respondent's written statement nor his list of additional documents. Further, the decision was not pleaded in the 2"*^ respondent's written statement of defence. I hold that its reception in evidence though as a judicial notice was improper [See the case of Yara Tanzania Limited v. Ikuwo General Enterprises Limited, Civil 15 Appeal No. 309 of 2019 [2022] TZCA 604 (5 October 2022) on page 14 to 15). I agree with the appellant that the 2"^ respondent's tendering of photocopies of the sale agreement and the minutes of Uponda village dated 12^ July 1993 and 9^^ August 1993 was made without the 2"^ respondent's filing of the notice to produce as required under section 68 of the Evidence Act stating the reasons under section 67(1) of the Evidence Act. It means that the appellant was not notified of the appellant's intention to rely on secondary evidence. I have noted from the handwritten proceedings that the Tribunal admitted the sale agreement and the minutes of Uponda Village for identification purpose. It is the position of the law that a document admitted for identification purpose do not form part of the record and has no evidential value. It was held in the case of Republic v. Hans Aingaya Macha, Criminal Appeal No. 449 of 2016 [2019] TZCA 602(15 April 2019) on page 20, the Court of Appeal made the following observations: "The two documents complained of were not tendered and admitted as exhibit Instead, the record, at page 16, vividiy 16 shows that the two documents were tendered by PWl and admitted for identification purposeiy oniy. It is now settied that any physicai or documentary evidence marked for identification oniy and not produced as exhibit does not form part of the evidence hence has no evidentiai vaiue. That iegai position was restated by the Court in the case ofSamson Eltas @ Michael Vs. Republic, Criminai Appeai No. 283 of 2012 and Udaghwenga Bayay and 16 Others Vs. Halmashauri ya kijiji cha Vilima Vitatu and Another, Civii appeai No. 77 of 2012(Both unreported). Contrary to the above stated position of the law, on page 8, 9 through to 10 of its judgement, the Tribunal heavily relied on the contents of the sale agreement and the minutes to dismiss the appellant's application and hold the 2"^ respondent as the lawful owner of the suit land. The Tribunal went further to quote the contents of the sale agreement and the minutes to justify its reasoning. I hold that it was improper for the Tribunal to rely and accord weight to the sale agreement and the minutes which were admitted for identification purpose in arriving at its decision. I find the fourth ground merited and I allow the same. The complaint in the 3'^ and 11^^ ground is against the Tribunal's finding that the suit lodged by the appellant in 2011 was time barred in its failure to 17 ^ consider that he was appointed the administrator of the estate in 2011 and that the dispute arose in 2011 and not in 1993 when the appellant alleged to have owned the suit land. The part of the decision of the Tribunal is found on page 10 of the decision that the suit was time barred as the appellant failed to take step against the 2"*^ respondent since 1993. Apparently, the relevant provisions of law under the circumstance are item 22 of Part 1 to the Schedule of the Law of Limitation Act, Cap. 89 R.E 2019, hereinafter the "LLA" which provides for the time limitation for institution of a suit relating to recovery of land to be twelve years, and section 4 of the LLA which provides that the limitation period begins to run when the cause of action accrues. The latter provides: 'The period oflimitation prescribed by this Act in relation to any proceeding shall, subject to the provisions ofthis Act hereinafter contained, commence from the date on which the right ofaction for such proceeding accrues." At the onset, I do not agree with the appellant that in the circumstances of the present dispute, the limitation of twelve years began to run from the date of his appointment as the administrator of the estate. I also do not agree with the Tribunal in its holding that the period of limitation in respect 18 of the dispute began to run from the year 1993 when the 2^^ respondent owned the suit land or when there was a mining dispute on the disputed land between the 2"*^ respondent and one, Zainabu Adam. The evidence before the Tribunal established that the dispute between the appellant and his family including DWl (the 1^ respondent) against the 2"^ respondent occurred in 2011, and that is when the appellant's family held a meeting and appointed the appellant as an administrator of the estate of their late grandfather in order to recover the land from the 2"^ respondent. The foregoing fact was confirmed by the Tribunal on page 10 of the judgement. Under the circumstance, I fully associate myself with the decision of the Court of Appeal in the case of Oscar Karsan Kanji v. Abdallah Hassan, Civil Appeal No. 9 of 2020[2024]TZCA 161(6 March 2024)on page 5 where it was held; the respondent testified that he noticed that the appeiiant trespassed into the farm in 2007. He wanted to recover the same from the trespasser. In the circumstances, time would not start to reckon from the date of appointment but, in our view, from the momenthe realized the land in question was trespassed into. 19 He wanted to recover It from the trespasser. It was at that point In time when the cause ofaction arose. Therefore, the period of limitation must be reckoned from that date. Thus, pegging the limitation oftime on the date ofdeath ofthe respondent's parent Is, we think. Inappropriate In the circumstances. Applying the authority above in relation to the present matter, it is certain that the cause of action arose in the year 2011 when the appellant noticed the alleged 2"^ respondent's trespass on the suit land. As such I hold that it was wrong for the Tribunal to conclude that the appellant's suit was time barred. The 3^^ and 11^^ grounds of appeal are merited and I allow them. I find the seventh ground of appeal as stating facts as opposed to a ground for the appellant's dissatisfaction of the decision of the Tribunal. It is clear that in compliance with the decision of the High Court in Land Appeal No. 118 of 2018, the High Court remitted the case file to the Tribunal for retrial upon joining the 1^ respondent. The 1^ respondent was joined and adduced evidence to the fact that he did not sell the suit land to the 2"^ respondent. I do not find how the Tribunal erred in not complying with the orders of the High Court. The ground lacks merit and I dismiss the same. 20 I now turn to the 10^^ ground of appeal in which the appellant complained of the failure by the Tribunal to digest the oral and documentary evidence adduced by the respondent and the applicant in thai including annexure ZSGl and BSG4. I wish to state at the onset that annexure ZSGl and BSG4 were not received in evidence and did not form part of the record of the Tribunal. On that basis, it was proper for the Tribunal not to consider them in its digestion of the evidence. However, I agree with the appellant that the Tribunal failed to consider the weight of the evidence of the appellant adduced before it in arriving at its decision. The appellant had the burden to prove on balance of probability that the suit land was owned by his late grandfather Omary Mbomo whose estate he was administering. It was duly established by the testimonies of ail witnesses and confirmed by the Tribunal on page 7 through to 8 of the judgement that the suit land was owned by the late Omary Mbomo. It was also confirmed that the appellant was the administrator of the estate of the late Omary Mbomo. 21 The testimony of the 2"^ respondent heavily relied on his purchase of the suit land from Tausi Omary and respondent. I have held above that the purported sale by the respondent and Tausi Omary to the 2"'^ respondent conducted on 13*^^ January 1993 was invalid for lack of authority and capacity of the seller(s) to dispose of the suit land owned by the deceased. I have also held that it was incorrect at law for the Tribunal to rely on and give weight to the sale agreement and the minutes which were admitted for identification purpose. Balancing between the evidence of the appellant through the testimonies of PWl, PW2, DWl and DW3 that the suit land was owned by the late Omary Mbomo whose estate is administered by the appellant, and that of DW2,the 2"^ respondent, I find that the appellant managed to establish that the suit land was owned by his late grandfather. DW2's testimony that he bought the suit land in 1993 from Tausi Omary and the 1^ respondent lacks substantiation as the purported sale was void ab initio for lack of capacity and authority of the purported seller(s) and lack of consent of the heirs of the iate Omary Mbomo authorizing seli of the disputed land. The 10^^ ground is found to have merit and is allowed. 22 The appellant has prayed for the court to order compensation as prayed in the application before the Tribunal. Reading the proceedings, I have not found any evidence proving the extent of damage of the crops in the suit land. As it was the appellant who had a duty to prove special damages, I am disinclined to order the 2'^^ respondent to pay compensation for the alleged destruction of crops in the suit land. [See Alferd Fundi v. Geled Mango and Two Others, Civil Appeal No. 49 of 2017[2019]TZCA 50(5 April 2019) on page 7]. In the final analysis, the appeal is partly dismissed and partly allowed to the extent demonstrated above. I hold that the suit land belongs to the estate of the late Omary Mbomo. As the suit has proceeded ex parte, I make no order as to costs. It is so ordered. Right of Appeal to the Court of Appeal fully explained. DATED at MOROGORO this 25^^ November 2024. H.^KINYAKA JUDGE > »■: 25/11/2024 23