BARAKA LUCAS MONGI V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LAND APPEAL NO. 50 OF 2023 (Originating from Land Application No. 147 of 2020 of the District Land and Housing Tribunal for Moshi at Moshi) BARAKA LUCAS MONGI (administrator of the estates of the late Neema Lucas Mongi) ……………...……........................ APPELLANT VERSUS MILLARD WILLIAM MOSHI ….………………...… RESPONDENT JUDGMENT 02/07/2024 & 12/07/2024 SIMFUKWE, J. The appellant herein sued the respondent herein before the District Land and Housing Tribunal of Moshi (Trial Tribunal) claiming that the disputed land measuring 73 X 44 paces which has a residential house, located at 1 Ng’ambo ward within Moshi Municipal in Kilimanjaro Region, is the property of the deceased Neema Lucas Mongi. The appellant alleged before the trial tribunal that, the deceased purchased the disputed land and built a house on it being assisted by the appellant and her mother. Thereafter, the deceased cohabited with the respondent in the said disputed house. After the death of Neema Lucas Mongi, the respondent is residing in the disputed house together with his family. The appellant complained that he had failed to distribute the house to the heirs because the respondent is not willing to vacate from the disputed house. The testimonies of the mother of the deceased and the brother of the deceased, supported what was said by the appellant. Moreover, the appellant tendered exhibits to strengthen his case: letters of administration of estate, sale agreement, receipt from Water authority, survey from TANESCO and copy of judgment of an appeal against the distribution of the disputed house to the son of the deceased one Prince Chrissant Maro. Contesting the claims leveled against him, the respondent averred inter alia that the disputed land was purchased with him together with his deceased wife Neema Lucas Mongi in 2009. He said that the land was purchased at a price of TZS 3,000,000/ whereas, he contributed TZS 2 1,800,000/= while his wife contributed TZS 1,200,000/=. They agreed with his wife that they should write the name of his wife in the sale agreement. They constructed their house from 2013 to 2014 when they shifted from a rented house to their house. The marriage between the respondent and the deceased was alleged to have been contracted in 2016 at Msaranga Lutheran church. The respondent tendered before the trial tribunal a receipt for purchasing building materials. It was admitted as exhibit D1. Also, he called one Jonathan Mohamed Ngowi (SU2) who was the Street chairperson from 2010 to 2015, SU3 who witnessed the sale agreement, SU4 the mason who constructed the disputed house and SU6 Ramadhani Swalehe who alleged to had sold the disputed land to the respondent and his deceased wife Neema Lucas Mongi. After considering evidence paraded before it, the trial tribunal found that the disputed land was a matrimonial asset of the respondent and his deceased wife Neema Lucas Mongi. That, after the death of Neema Lucas Mongi, the house remained the property of the respondent herein under survivorship principle. Dissatisfied with the decision of the trial tribunal, the appellant filed the instant appeal on two grounds: 3 1. That, the Learned Trial Chairman erred both in law and fact, when failed to properly assess, analyze and evaluate the evidence brought before him, which led to erroneous decision. 2. That, the Trial Tribunal’s proceeding is tantamount and tainted with illegalities which are incurably fatal on the eyes of the law. The appellant prayed that this appeal be allowed with costs, judgment and decree of the District Land and Housing Tribunal in Application No. 147/2020 be quashed and set aside; and the suit premise be declared the estate of the late Neema Lucas Mongi subject to be administered by the appellant. The hearing of the appeal was conducted by way of written submissions. Mr. Gideon Mushi, learned counsel argued the appeal for the appellant while the respondent had no representation. The learned counsel for the appellant argued the two grounds of appeal jointly. He submitted that, it is trite principle of law that the court shall be duty bound to receive evidence brought by the parties together with their respective witnesses, assess the credibility of each witness before making a finding on the contested facts in issue. He said that the said principle 4 can be found in the case of Stanslaus Rugaba Kasusura and A.G vs Phares Kabuye [1983] TLR 334 where it was held that: “The Trial Judge should have evaluated the evidence adduced from the parties together with their respective witnesses, assess the credibility of each of the witnesses, and make a finding on the contested facts in issue.” The learned counsel submitted further that, it is trite principle of the law that, once the lower court fail to properly assess and analyze the evidence adduced during the trial, the higher court will jump into the shoes of the lower court and re-assess, re-evaluate the said evidence and come up with its own findings. An inspiration was sought from the case of Deemay Daati and 2 Others vs Republic [2005] TLR 132. Mr. Gideon went on to submit that once the parties and their respective witnesses adduce their evidence before the court, the presiding Magistrate, Chairman or a Judge should make its verdict based on the evidence adduced during the trial and not otherwise as it was held in the case of Nkungu vs Mohamed [1984] TLR 46. Mr. Gideon was of the opinion that the appellant adduced evidence which was heavier than that of the respondent pursuant to sections 110 and 5 111 of the Tanzania Evidence Act, Cap 6 R.E 2019. He stressed that the number of witnesses in a suit doesn’t matter at all. What matters is the quality of evidence adduced and the credibility of each witness. He cited the cases of Yohanis Msigwa vs R [1990] TLR 148 and Hassan Juma Kanenyera vs R [1992] TLR 100. It was insisted that evidence on part of the appellant was stronger and consistent compared with weak and contradictory evidence adduced by the respondent and his six witnesses. Mr. Gideon asserted that the sale agreement between Neema Lucas Mongi and Ramadhani Kinyasi which was admitted before the trial tribunal as Exh. P1 was enough evidence to declare that the suit premise was solely owned by the late Neema Lucas Mongi and not anybody else. Despite the fact that the respondent admitted that he signed on exhibit P1 as a witness and not a co-buyer, the learned trial Chairman proceeded to rule in favour of the respondent. He buttressed that, it is trite principle of law that once a person claims to own land, he should have evidence to prove so and not mere words as it was stated in the case of Humbalo Ferdinandi vs Marick Joseph Mugubika, Civil Appeal No. 1/2002, High Court of Tanzania at Dar es Salaam. The learned counsel was of the view that, the learned Chairman misdirected himself when he affirmed 6 that the respondent and the late Neema Lucas Mongi used to live together since the year 2009 before the acquisition of the suit premise. He explained that despite the fact that the trial tribunal had no jurisdiction to declare the suit premise to be matrimonial property, the respondent and the late Neema Lucas Mongi contracted their marriage in 2016, while the suit land was purchased in 2011 by the late Neema Lucas Mongi. Further emphasis was made to section 60 (a) of the Law of marriage Act, Cap 29 R.E 2019 which provides that: “Where during the subsistence of marriage, any property is acquired in the name of the husband or of the wife, there shall be a rebuttable presumption that the property belongs absolutely to that person, to the exclusion of his or her spouse.” It was added that, where the property was acquired in the names of both spouses, there shall be rebuttable presumption that, their beneficial interests therein are equal as provided under section 60(b) of the same Act. From the above provisions, Mr. Gideon concluded that looking at exhibit P1 the sale Agreement between Ramadhani Kinyasi and the late Neema Lucas Mongi, the suit premises was purchased by the deceased alone. 7 Thus, the learned trial Chairman misdirected himself when ruled that, the respondent is the lawful owner of the suit land. The learned counsel suggested the following issues for determination in this appeal: a) Whether the suit premise is a matrimonial asset while the deceased Neema Lucas Mongi purchased the same before marriage? b) Whether the respondent is the lawful owner of the suit premise after signing on the Sale Agreement (Exh. P1) as a witness and not co- purchaser? c) Whether the respondent proved before the trial Tribunal on the required standard that, he contributed total amount of Tshs. 1,800,000/= only in purchase of the suit premises? d) Whether the respondent proved before the trial Tribunal on the required standard as to whether he cohabited with the late Neema Lucas Mongi since the year 2009 and one issue was obtained? e) Whether the respondent proved before the trial tribunal on the required standard as to the death of the alleged issue obtained as the result of the respondent and the late Neema Lucas Mongi’s cohabitation? 8 f) Whether there is a specific provision in the Sale Agreement (Exh. P1) which signify that, despite the fact that the respondent signed as a witness, he was also a co-purchaser of the suit land? The learned counsel answered all the issues which he had raised, for the appellant and prayed that the appeal be allowed with costs. In his reply, the respondent started by recalling issues which were raised before the trial tribunal. That is: a) Who is the legal owner of the land and house in dispute? b) Whether the land and house in dispute is matrimonial property? c) To what relief(s) are the parties entitled? On the first ground of appeal, the respondent replied that the Chairman of the trial tribunal evaluated evidence adduced before it correctly and came to conclusion that the disputed house is the matrimonial home of the respondent and his late wife. He contributed towards attainment of the house in dispute. He said that the appellant and his witnesses failed to give any credible evidence on the claim against the respondent herein as the appellant has no objection that the house in dispute was matrimonial home of the respondent and his wife. 9 It was replied further that the appellant failed to state how can a husband become a trespasser of his home after the death of his spouse. Moreover, the appellant and his witnesses supported the fact that the respondent and the deceased started their relationship before buying the said property, they were legally married and blessed with one issue who passed away right after birth. The respondent referred to page 17 of the proceedings of the trial tribunal where the appellant while being cross examined said that the deceased didn’t wish her husband to be chased away. He was of settled opinion that the appellant failed to establish the claim against him while he managed to give evidence that he bought the land in dispute with his wife in 2011. Both of them appeared in the sale agreement. He also managed to prove how he contributed in the construction of the house in dispute, he called witnesses who were neighbours, constructors (masons), as he was there from the scratch contributing financially and materially. The respondent distinguished the cited case of Deemay Daat and 2 Others (supra) as he did not state which part of evidence the trial Chairman failed to evaluate and which evidence could have been evaluated to support the claim presented by the appellant before the tribunal. 10 On the second ground of appeal which concerns illegality of the trial court proceedings, judgment and orders; the respondent submitted that it well established principle that parties to the suit are bound by their pleadings in court. He contended that the appellant failed to prove what he brought in his application, thus, he cannot establish a new suit or fact which was not pleaded in the former application. He averred that circumstantial evidence showed clearly that the respondent and his late wife started living together as husband-and-wife way before purchasing the land in dispute. Both of them contributed in the construction process and they lived there happily until the death of the wife whereby the family of the deceased started chasing the husband. Concerning the issue of writing the names of the wife in the contract, the respondent stated that it was personal arrangement as lovers and the husband agreed to appear in the contract as witness because of their love and trust they had. It was also stated that the matter before the trial tribunal was never entertained as matrimonial issue rather, it was legally entertained as land matter arising from matrimonial property. Thus, it was proper to assess whether the house in dispute was matrimonial property or not, which was clearly answered by evidence on record of both parties. 11 The respondent prayed that this appeal be dismissed with costs. Having examined the grounds of appeal, the trial tribunal’s record and the parties’ submissions, the issue for determination is whether this appeal has merit. Starting with the first ground of appeal which concerns failure to assess, analyze and evaluate evidence adduced at the trial tribunal; it is trite law that determination of the dispute is reached by the court after a thorough evaluation and consideration of the parties’ evidence tendered at the trial in relation to the applicable law, disclosing the reason for the decision and the conclusion thereon. See the decision in the case of Abubakari I. H. Kilongo & Another v. Republic (Criminal Appeal 230 of 2021) CAT – Dar es Salaam (21 November 2022). I have gone through the decision of the trial tribunal. The record speaks loudly that the Learned Chairman complied to the principles of writing a judgment. At page 10 – 11 of the judgment of trial tribunal the learned Chairman noted facts which were not disputed as follows: “Moja, Millard Moshi (Mjibu Maombi) na merehemu Neema Lucas Mongi walikuwa wanandoa ambao walifunga ndoa katika kanisa la Lutheran mwaka 2016. Mbili, wakati wa manunuzi ya kiwanja ambacho kina nyumba yenye mgogoro (ardhi yenye mgogoro) 12 marehemu Neema Lucas Mongi ndiye aliyesaini kwenye hati ya manunuzi na Mjibu maombi alikuwa ni miongoni mwa mashahidi wa mnunuzi ya kiwanja. Tatu, hakuna ndugu yeyote wa Mjibu maombi aliyakuwepo kama shahidi wakati wa manunuzi ya kiwanja ambacho kimejengwa nyumba yenye mgogoro. Nne, nyumba yenye mgogoro ipo kwenye kiwanja ambacho hakijapimwa (unsurveyed plot). Tano, kiwanja ambacho kuna nyumba yenye mgogoro kilinunuliwa tarehe 29/05/2022 (sic) kwa malipo ya sh. 3,000,000/=.” Then, the Hon. Chairman noted disputed facts to be whether the disputed plot was purchased by the deceased Neema Lucas Mongi together with the respondent Millard Moshi. Second, whether the house on the disputed plot was built by joint efforts of the deceased Neema Lucas Mongi and the respondent, making the said house their joint property. Thereafter, the learned Chairman evaluated evidence of both parties thoroughly at page 11 to 13 of the judgment of the trial tribunal. I wish to quote part of the decision of the trial tribunal at page 11, where after raising the issue, who is the lawful owner of the disputed house and land, stated among other things that: “Mleta maombi kwa kupitia mashahidi wake ambao ni SM1, SM2, SM3 na kielelezo namba 2 hati ya Makabidhiano ya mauzo ya 13 kiwanja tarehe 29/05/2011, anadai kuwa mmiliki wa kiwanja pamoja na nyumba yenye mgogoro ni marehemu Neema Lucas Mongi. Na Mjibu maombi kupitia ushahidi wa SU1, SU2, SU3, SU4, na SU5 anadai kwamba yeye na marehemu Neema Lucas Mongi (aliyekuwa ni mkewe) ni wamiliki wa pamoja wa ardhi yenye mgogoro (kiwanja na nyumba). Baada ya kuupitia Ushahidi huo wa pande zote mbili nimefikia uamuzi kwamba, kiwanja na nyumba iliyojengwa kwenye kiwanja hicho (ardhi yenye mgogoro) ilikuwa ni mali halali ya Mjibu maombi na marehemu Neema Lucas Mongi; na kwa sasa ni mali ya Mjibu maombi pekee baada ya mmiliki mwenza marehemu Neema Lucas Mongi kufariki, kwa sababu zifuatazo: - Moja, ushahidi unaonyesha kwamba, Mjibu maombi na marehemu Neema Lucas Mongi walianza kuishi pamoja kwenye nyumba ya kupanga jirani na SU2 kabla ya mwaka 2011.........hakuna uthibitisho kwamba marehemu Neema Lucas Mongi alikopa pesa ya kujenga nyumba yenye mgogoro kutoka kwa mama yake ambaye ni SM2 na hakuna Ushahidi kwamba alimrithisha mwanae Prince Chrisanti kiwanja na nyumba hiyo yenye mgogoro....” 14 After critical analysis of evidence, the trial tribunal was satisfied that the respondent was the lawful owner of the disputed land under survivorship principle. Considering the fact that the appellant herein was the administrator of the estate of the late Neema Lucas Mongi, the Hon. Chairman cemented his decision by referring to section 99(a) and (b) of the Probate and Administration of Estates Act, Cap 352 R.E 2019 which excludes any property of a deceased person which would otherwise pass by survivorship to some other person. Section 161(2) of the Land Act, Cap 113 R.E 2019 provides that: “161(2) Where land held for a right of occupancy is held in the name of one spouse only but the other spouse or spouses contribute by their labour to the productivity, upkeep and improvement of the land, that spouse or those spouses shall be deemed by virtue of that labour to have acquired an interest in that land in the nature of an occupancy in common of that land with the spouse in whose name the certificate of occupancy or customary certificate of occupancy has been registered.” Emphasis mine Section 159(1) (4) (a), (b) and (c) of the Land Act (supra) provides that: 15 “159. -(1) In this Act, co-occupancy means the occupation of land held for a right of occupancy or a lease by two or more undivided shares and may be either joint occupancy or occupancy in common. (4) Where the land is occupied jointly under a right of occupancy or lease, no occupier is entitled to any separate share in the land and, consequently (a) dispositions may be made only by all the joint occupiers; (b) on the death of a joint occupier, his interest shall vest in the surviving occupier or occupiers jointly; (c) a joint occupier may transfer his interest inter vivos to all the other occupiers but to no other person, and any attempt to so transfer his interest to any other person shall be void.” Emphasis added The above quoted provisions are self-explanatory and it is on the basis of such provisions that I find the decision of the trial tribunal justified. No illegality whatsoever was occasioned by the tribunal. With due respect to the learned counsel for the appellant the provisions and case laws which he cited are distinguishable to the case at hand. 16 In the upshot, I dismiss this appeal with costs. It is so ordered. Dated and delivered at Moshi this 12th day of July 2024, in the presence of the respondent in person and in the absence of the appellant and his learned counsel, who were duly informed. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 12/07/2024 Right of further Appeal explained. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 12/07/2024 17