BEDAS ANDREA HUKUMU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA LAND APPEAL NO. 2024402261000003741 (Arising from Land Application No.37 of 2023 before the District Land and Housing Tribunal for Kahama at Kahama) BEDA ANDREA ..................................................................................APPELLANT VERSUS AGNES KIMARO (adminitratix of the estate of the late Theopista Alphonce Chami ...............RESPONDENT JUDGMENT 5th & 28th June 2024 F.H. MAHIMBALI, J The appellant herein had filed land application before the trial tribunal, claiming the parcel of land. It was alleged that the appellant had owned the suit land from 2001 through allocation by the Bukondamoyo village Council for consideration of 10,000/=. The respondent’s mother was the wife of the appellant and thus lived together since 1997 till when demised 2021. There is evidence that the appellant had donated that land to the respondent’s mother (his wife). 1 Upon the demise of the late Theopista Alphonce Chami, the respondent applied for the letters of administration and claimed that the suit land is a property of the late Theopista Alphonce Chami. The trial tribunal after a thorough finding, entered its verdict in favour of the respondent and declared to be lawful of the suit land. Aggrieved by such decision, the appellant has knocked the door of this Court armed with four grounds of appeal which all fall under the question of evidence. During the hearing, the appellant had legal representation of Mr. Stephano learned advocate, while the respondent enjoyed legal service of Mr. Rwangobe learned advocate. Amplifying the appeal, Mr. Stephano submitted that the appellant is dissatisfied with the decision of the DLHT. In the first ground of appeal, the concern is that the DLHT erred in law for failure to consider the appellant's evidence which in a balance of probability, it is the appellant who had bought the suit land. On the second ground of appeal, the concern is, the DLHT had erred in declaring the respondent as owner of the suit premise while it is the appellant who is in possession and ownership of the suit land since 2001 after he had purchased it from the village. Page 1 and 2 of the DLHT is expressive on this. Thus, it is evidently 2 clear that the suit property belongs to the appellant and there was documentary proof on that. With the third ground of appeal, Mr. Stephano stated that the concern is, the trial DLHT erred in declaring the respondent as the owner of the suit land while on balance of probability, there was no such evidence authorizing the respondent as owner of it, on the premise that the respondent had inherited it from her deceased mother who was then the wife of the appellant in the absence of such proof that the appellant had given the suit land to the respondent's mother as alleged. The vital question is one, if the appellant had given the said land to the respondent's mother, there was no such evidence. The reasoning by the trial chairperson as per page 6 of his judgment that he failed to pronounce the appellant as rightful owner simply because the alleged document had two dates, to him did not hold any water. The appellant had clearly stated at the trial tribunal, that he never separated from the respondent's mother nor did they distribute properties jointly acquired. Therefore, the trial tribunal's verdict is erroneous. With the fourth ground of appeal, the concern is, the trial tribunal erred when it had decided in favour of the respondent simply because the latter had been there for more than twelve years. The appellant in his 3 testimony stated well that he was the owner of the suit premise and established how he got it. He stated further that the respondent’s mother remained his wife all that time until her demise. He queried that, in the absence of the fact that there was such separation, the fact of adverse possession does not arise in the circumstances of this case. Mr. Stephano stressed for the appeal be allowed with costs, the proceedings and verdict of the trial tribunal be declared a nullity, in alternative, the appellant be declared the rightful owner of the suit premise. On the side of the respondent, Mr. Rwangobe resisted the appeal. With the first ground of appeal joined with the second ground of appeal, argued that the case the trial court was not correctly decided as per evidence in record is not true. The production of purchase receipt at the trial tribunal perse didn't legalize possession of the said suit property in the circumstances of this case. He submitted that according to section 110(1) of the TEA, Cap R.E 2022, makes a condition that any person wishing to have judgment in his favour for any claim, he must establish the existence of those facts. He banked his argument by referring this Court to the case of Anthony Massanga V. Penina and Another, Civil Appeal No. 118 of 2014 at page 10, where it was loudly emphasized that he who alleges must establish the existence of those facts. 4 With the present case, the appellant, had miserably failed on preponderance of probability, to establish the existence of those facts. He amplified that as per pages 4-6 of the lower tribunal's judgment. Thus, the appellant had on balance of probability, failed to discharge his onus. Even SM2's testimony, is very contradictory with the other evidence in record. SM2 who was brought by the appellant is the appellant's own son, seems to be very contradictory. With the second ground of appeal, that the DLHT failed to properly evaluate the evidence, Mr Rwangobe submitted that the trial court clearly analyzed both evidence and facts and was of the considered view that the appellant had no such land as claimed. With the third ground of appeal, it is clear that even the trial tribunal as per available evidence reached a proper verdict. The appellant and the respondent's mother got separated since 2005 where each one then lived his/her own life. Even SM2 denied knowing the appellant any more after 2005. Thus, the trial court didn't error as alleged. With the fourth ground of appeal, Mr. Rwangobe submitted that, it is clear that as per facts of the case, there was nothing unestablished as propagated. Since time limitation of a suit land is 12 years, the same 5 qualified (See Erizeus Rutakubwa V. Jaso Angero, [1983] TLR 365. Thus, it is very clear that, much time has passed. Therefore, there was no any plausible evidence to warrant the verdict as prayed by the appellant. He wound up his submission, praying for the appellant's appeal be dismissed with costs. Resting his submission, Mr. Stephano reiterated the submission in chief. He alluded that there was sufficient proof by the appellant how he purchased the said plot. Furthermore, there was documentary proof of the said purchase receipts. It was himself who had bought it. Thus, the argument that he had disbursed all the land is not true. As per evidence in record, it is clear that the appellant owned the said land. Therefore, he insisted that the trial tribunal reached improper verdict as it is not supported by evidence in record. The issue of adverse possession cannot arise in the circumstances of this case. The appellant had been with the respondent's mother since 2000 until her demise. That, the respondent's mother separated from the appellant is not true. The fact that the respondent counters it is not a conclusive proof that the said fact exists. It needed proof. 6 Having heard both parties on merit and upon close digest of the trial tribunal’ records, a point for determination of this appeal is whether this appeal is merited. It is the appellant’s submission that, the suit land belongs to him as he acquired it via allocation by Bukondamoyo village Council in the year 2001. See exhibit SMA1 which is payment receipt. Also, it is on record that the appellant developed the land by constructing houses in the suit land in collaboration with the respondent’s mother (his beloved late wife). The dispute arose when the respondent’s mother died and did not recognize the respondent as anyone in the land despite being the daughter of the deceased on the pretext that she is a stranger to the property. The respondent had resisted the prepositions of the appellant. She testified that the suit land belongs to her late mother. She also amplified that in 2005 the appellant and the respondent separated each other and thus through their agreement reached conclusion that the suit land be in hand of the respondent’s mother. Such agreement was put into writings, see exhibit SUA1. Similarly, after the demise of her mother the respondent and her brother had remained in the suit land for the all period. 7 Glaring from the facts, I had endeavored my mind to go thoroughly the testimonies of both parties before the trial tribunal. In my determination of the matter, I shall be guided by the following principles of law. One, is that in civil cases, the burden of proof lies on the person who alleges anything in his favour as founded in section 110 of the Evidence Act. Two, is that the burden of proof envisaged above is on the balance of probabilities (See 3(2) b, of the Tanzania Evidence Act) as correctly argued by Mr. Rwangobe when cited the case of Anthony Masanga v. Penina Mama Mgesi and Another, (supra), in addition is the case of Hamza Byarumshengo v. Fulgencia Manya and 4 Others, Civil Appeal No. 33 of 2017 (both unreported). Now, SM1 (appellant) in his testimony is recorded partly to have testified as follows “…eneo lenye mgogoro nimejenga mwaka 2005 na siishi katika eneo hilo lakini yeye alikua anaishi katika eneo hilo kwani nilikua na wanawake na kila mwanamke nilimpa sehemu yake. Theopista Alphonce nilimpa eneo la ekari 1 ........ katika eneo hilo hadi alipohamia kwenye eneo la ¾ lakini kila mke nilishamgawia eneo lake hivyo hawaingiliani” (emphasis added) 8 SM2 “ “..... Eneo hilo lilikuwa linatumiwa na wapangaji pia Theopista alikua anaishi katika eneo la ¾ ekari ....” From the facts above, I associate myself with the findings of the learned chairman that the appellant had not proved a cumulative occupation of the suit land. Since the appellant before the trial tribunal had proved to have given it to the late Theopista Aliphonce, I thus agree with the respondent that, the appellant when had given that land to the respondent’s mother (his wife), he didn’t not make reservation that it should have returned it to him in the event of anything in future, he thus lost interest over suit land. Had he intended otherwise, there would have been express terms on that. As he left it to the deceased, in the circumstances of this case, it could not have returned to him easily as he claims now unless by inheritance. As the said land was then developed by the late Theopista Aliphonce in collaboration with the respondent and her brother, there is no way that it was intended that the said land should have reverted back to him. I am inquisitive, what if, had the said appellant died first! Mindful to date the suit land is in possession of the respondent and her brother vide probate matter and not by finding. 9 Exhibit SM A1 cannot suffice proof of continuity on ownership of the said land as per facts of the case. Similarly, exhibit SUA1, on the instant that, it is undisputed to have been bought by the appellant. The proof of ownership of the suit land is driven from the intension of the appellant by allocating it in the circumstances of the current matter to the respondent’s mother. So long as the appellant had allocated that land to the respondent’s mother, the latter had all the rights of disposing it in any matter she liked including it being part of her estate, otherwise, the appellant should have expressly stated so from the beginning when donating it. SM1 “ ..... kila mwanamke nilimpa sehemu yake. Theopista Alphonce nilimpa eneo la ekari 1 ........ katika eneo hilo hadi alipohamia kwenye eneo la ¾ lakini kila mke nilishamgawia eneo lake hivyo hawaingiliani” My conclusion on this, when one donates a thing to someone, unless there are clear terms of the said donation, there is a rebuttable presumption that thing will not revert back to the donor, but donee only and his/her heirs/assigns unless there is a no successor to take it. 10 Secondly, in consideration that she had been in the long possession of the suit land without being interfered by anyone else (as per the testimonies of SM2, SU1 and SU2 who proved that it is the respondent’s mother who had been in possession of the suit land since 2005 till 2021 when she died), in the absence of the evidence of intention by the appellant of redeeming the said land from the respondent’s mother, it cannot easily revert back to him, unless there were express terms to that. I am aware that Item 22 column one Part 1 to the schedule of the Law of Limitation Act, provides that a period for recovery of land is 12 years. If the suit land had been in possession of the respondent’s mother since 2005 and the appellant did not claim it back, he has therefore no right to claim it now. As correctly submitted by Rwangobe when cited the case of Erizeus Rutakubwa V. Jaso Angero (supra). However, this position would have been relevant, had there been a condition by the appellant that, his donating of the said land to the respondent’s mother was not absolute but for a specific time. Notably, I agree with Mr. Stephano that, in the instant matter the doctrine of adverse possession is not applicable. Thus, is misconceived. In the case of The Registered Trustees Of Spirit Sisters Tanzania Vs. January Kamili Shayo And 136 Others, Civil Appeal No.193 of 11 2016, it was held that for the doctrine of adverse possession to apply there are conditions to be fulfilled namely; 1. That there had been absence of possession by the true owner through abandonment, 2. That the adverse possessor had no color of right to be there other than his entry and occupation, 3. That the adverse possessor had been in actual possession of the piece of land, 4. The adverse possessor had openly and without consent of the true owner done acts which were inconsistent with the enjoyment by the true owner of the land for purposes for which he intended to use it, 5. That there was a sufficient animus to dispossess and animopossidendi, 6. That the statutory period had elapsed, 7. That there had been no interruption to the adverse possession throughout the aforesaid statutory period. Guided by the principle in The Registered Trustees of Spirit Sisters Tanzania (supra) and in reference to the instant matter the conditions for adverse possession do not match. The respondent did not claim to be owner of the suit, it has not been claimed that she has no color of right, it has not been claimed that she was not authorized by the owner and thus she has only invaded the suit land and claimed to be owner of it. As she dully inherited it, therefore, the argument of adverse possession is misplaced. 12 In a close digest of the respondent’s case at trial tribunal and the legal principle cherished in the case of Hemed Saidi V Mohamed Mbilu [1984] T.L.R 113 at page 116 that a person whose evidence is heavier than that of the other is the one who must win. I fully subscribe to the said position. Further, I am also of the stance that in measuring the weight of evidence, it is not a number of witnesses that matters but rather the quality of evidence. That being the position, the respondent has in balance of probability been able to establish the claims against the appellant. The appellant if was mindful of the fact that the said respondent was not the lawful heir to his deceased wife, would have challenged her appointment of the said administration or objected the said estate not to form part of the deceased’s estate. Resurrecting now and claiming from the deceased’s estate was only possible had he too claimed heirship from that land as well. And he should not have ended there only, but also with the deceased’s other estates, she being his wife. With the above analysis, I find this appeal is devoid of any merit and consequently is dismissed. I see no reasons to fault the trial tribunal’s judgement. Taking into consideration the relationship of the parties, I make no orders as to cost It so ordered. 13 Right of further appeal is explained. DATED at SHINYANGA this 28th day of June, 2024. F.H. Mahimbali Judge. 14