CIVIL APPEAL NO 135 OF 2021 BENEDICT MHAGAMA VS KALAITA YOHANA

IN THE COURT OF APPEAL OF TANZANIA fCORAM: NDIKA. 3.A.. KEREFU. 3.A. And NGWEMBE. J.A.^ CIVIL APPEAL NO. 135 OF 2021 BENEDICT MHAGAMA.................................................................... APPELLANT VERSUS KALAITA YOHANA (The administrator of the estate of the late SOPHIA MOHAMED).............................. RESPONDENT (Appeal from the decision of the High Court of Tanzania, Land Division at Dares Salaam) (Makuru. J.) dated the 14th day of November, 2018 in Land Appeal No. 231 of 2017 JUDGMENT OF THE COURT 12th July & 1st August, 2024 NGWEMBE. JA.: This appeal before us, is a second attempt of the appellant to fault the decision of the District Land and Housing Tribunal (the DLHT) for Morogoro in Land Case No. 70 of 2012. Before the DLHT, the appellant unsuccessfully sued for a declaratory' order on the ownership of thirty acres of land (suit land) situated at Mikese area in Morogoro Region. Aggrieved, the appellant vainly appealed to the High Court of Tanzania vide Land Appeal No. 231 of 2017. The appellant's thrust to turn down the trial tribunal's decision never stopped; herice the instant appeal. The story of the dispute traces its original from cohabitation of the appellant and one Sophia Mohamed (the deceased) between 1988 to 1990. According to the testimony of the appellant at the trial, the two cohabited without being formally married as husband and wife. Sometime in 1991, the appellant officially got married to one Veronica Augustine Mapunda (PW7). They celebrated their Christian marriage at Luhilo Mission in Roman Catholic Church at Songea in Ruvuma Region. It is also stated that, having entered into the marriage, the appellant stopped his relationship with the deceased until her death in year 2002. Further, the appellant testified that, there was no any property acquired jointly between him and the deceased during cohabitation. It is noteworthy that, the respondent successfully petitioned for appointment as an administrator of his mother's estate in Probate Cause No. 01 of 2012 at Mikese Primary Court. Having being appointed as an administrator of the deceased estate, he started distributing the thirty acres of the suit land to the heirs of the deceased. That act triggered the appellant to file land dispute before the DLHT against him. However, the tribunal after heard the evidence of both parties, dismissed it on the reason that the tribunal lacked jurisdiction, because the suit was related to the Probate Cause No. 1 of 2012, decided by the Primary Court of Mikese. The said decision displeased the appellant who appealed to the High Court in Land Appeal No. 95 of 2014, which appeal was successful. The High Court vacated the dismissal order of the DLHT and proceeded to order retrial before another chairman. Mr. Makwandi, learned chairman of the DLHT took over the retrial to the end, yet the appellant's claim was dismissed and the respondent was ordered to proceed with apportioning the suit land to the rightful heirs of the deceased. Again, the appellant was aggrieved and unsuccessfully, appealed to the High Court registered as Land Appeal No. 231 of 2017. Being dissatisfied with the outcome of his appeal, the appellant lodged the instant appeal on three grounds. At the hearing of this appeal, the appellant procured legal representation from Mr. Baraka Lweeka, learned advocate, while the respondent entered appearance in person. At the outset, Mr. Lweeka prayed to abandon the first ground of appeal and proceeded with the remaining grounds, which may conveniently be summarized into one ground that the first appellate court failed to evaluate the evidence adduced before the DLHT and subm issions made before it, hence arrived into an erroneous decision. Mr. Lweeka, challenged both decisions of the DLHT and the High Court on the basis that the deceased had no shares in the suit land of the appellant. He argued that, the decision of the DLHT as shown at page 65 of the record of appeal was impracticable and ineffectual to have equal shares of the suit land between the appellant and the deceased. He argued that, the decision of the DLHT did not specify the alleged suit land subject to division. Therefore, the said land is unknown and unidentified. He bolstered his argument by the case of Sikuzan Saidi Magambo & Another v. Mohamed Roble (Civil Appeal No. 197 of 2018) [2019] TZCA 322 TANZLII (1 October 2019). He added that, a non-enforceable judgment is doomed to be struck out. He thus insisted that the judgment of the DLHT was unenforceable in law for lack of clarity of the suit land subject to division. Mr. Lweeka further argued that, the first appellate court failed to analyse the weight of the evidence adduced by the appellant during trial. He insisted that, the evidence of the appellant at pages 33 to 34 and the exhibits at pages 108 to 112 of the record of appeal, proved the appellant's ownership as he purchased those pieces of suit land in his personal name in diverse years when he was no longer cohabiting with the deceased. He added that, the appellant had his wife and that the deceased was never married to him. Thus, the deceased had no claim of right over the suit land. Moreover, he submitted that the deceased during her life time never claimed any share of her contribution from the appellant. Therefore, he rested his case by urging the Court to allow the appeal with costs. In turn the respondent opposed the appeal and invited the Court to dismiss it because the appellant lived with his late mother as husband and wife for many years. He did not specify those years. He further submitted that during cohabitation, the two jointly acquired the suit land subject to equal division among them. He insisted that, as an administrator, he is entitled to claim for shares of his deceased mother. He rested his case by inviting the Court to dismiss the appeal entirely. We understand that, this is a second appeal and that a general rule in place is that a second appellate court cannot disturb the concurrent findings of the lower courts save when it is found that the lower courts' decisions had misapprehension, non-direction or misdirection on the evidence or that they applied a wrong principle of law and arrived at an erroneous decision occasioning miscarriage of justice. See Peters v. Sunday Post Limited (1958) EA 424 and Neli Manasa Foya v. Damian Mlinga (Civil Appeal 30 of 2004) [2004] TZCA 39 TANZLII (27 October 2004). Given that the appellant claims that the courts below misapprehended the evidence on record, we are enjoined to reappraise the 5 Therefore, he rested his case by urging hie Court to allow the appeal with costs. In turn the respondent opposed the appeal and invited the Court to dismiss it because the appellant lived with his late mother as husband and wife for many years. He did not specify those years. He further submitted that during cohabitation, the two jointly 'acquired the suit land subject to equal division among them. He insisted that, as an administrator, he is entitled to claim for shares of his deceased mother He rested his case by inviting the Court to dismiss the appeal entirely., We understand that, this is. a second appeal and that a general rule in place is that a second- appellate court- cannot disturb the concurrent findings of the lower courts save when i t is found that the lower courts' decisions had misapprehension, non-direction or misdirection on the evidence or that they applied a wrong principle of law and arrived at an erroneous decision occasioning miscarriage of justice. See Peters v. Sunday Post Limited (1958) EA 424 and Neli Manasa Foya v. Damian Mlinga (Civil Appeal 30 of 2004) [2004] TZCA 39 TANZLII (27 October 2004). Given that the appellant- claims that the courts below misapprehended the evidence on record, we are enjoined to reappraise the evidence to determine whsther the concurrent findings of the said courts were made against the weight of the evidence. It is an elementary principle of law that, in matters of this nature, whoever alleges ownership of a piece of land has a duty to establish and prove it on the balance of probabilities. The one whose duty lies on his shoulder in this appeal is the appellant The duty of the respondent to disprove or to prove otherwise is after performance of the appellant's duty to prove his ownership of the, suit land. This is the position of the law in terms of sections 3 (2), 110 and 111 of the Evidence Act, which has earned sufficient illustration by this Court in countless decisions. See Paulina Samson Ndawavya v Theresfa Thomasi Madaha (Civil Appeal No.45 of 2017) [2019] TZCA 453 TANZLII (11 December 2019). In that decision, we expounded expressly that under the provisions of the law of evidence above cited, the burden of proof is an affirmative one. It rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it That is the rationale why the respondent's duty is dependent upon the appellant's proof. Failure by the appellant to prove his claims will generally make the respondent not responsible to disprove the same. In respect to this appeal, it is on record as well submitted by Mr. Lweeka, that the appellant testified as PW1 and called six other witnesses in his support together with the handwritten agreements as documentary exhibits as appears at pages 108 to 112 of the record of appeal. The purchase agreements of those pieces of land indicate categorically clear that the appellant, on 28th August, 1990 purchased one piece of land for a total of TZS. 480.00; another one dated 17th August 1995 from Ally Kiyobe for a total of TZS. 280,000.00; the other one was of 22nd November, 1996 purchase from Godfrey Kilabila Mbena for TZS. 110,000.00 and on 13th November, 2006 for a total of TZS. 50,000.00 from Ramadhan Kilatu. Those pieces of land constituted 18 acres located at Madibwa area; 5 acres at Kisanga area; and 7 acres at the same place of Kisanga, forming a total of thirty acres of suit land. Moreover, all agreements bears personal name of the appellant. However, the respondent was firm to allege that his deceased mother and the appellant cohabited for many years. He emphasized that he lived with the appellant since he was only 2 years old until his mother's death in year 2002. That, during cohabitation, they jointly acquired some properties subject to equal division. He claimed the whole land, which the appellant claims to be his. He further testified that he himself lived with the appellant and his deceased mother all along, thus he was entitled to the shares of his mother. However, in cross examination, he testified that the appellant in year 1991 married to one Veronica Mapunda as a second wife. His evidence was supported by his uncle, one Ramadhan Mohamed Msumi (DW2) who categorically testified that, the appellant cohabited with the deceased from 1984 until her death in 2002, He further testified that, in 1985 he was the one who gave the appellant and the deceased 5 acres of land and together they purchased the remaining pieces of land constituting a total of thirty acres. Meanwhile, upon consideration of the parties' evidence, the DLHT was convinced that the suit land was jointly acquired by the deceased and the appellant and it proceeded to order equal division of the property between them. Equally, the respondent was ordered to distribute the shares of the deceased to the rightful heirs. The High Court based its decision solely on the fact that the appellant failed to prove his ownership of the suitJand. At page 6 of the impugned judgment, the learned judge had this to say: "The appellant has not given any evidence on how and when he acquired the said properties. In m y view the appellant ought to have stated clearly as to when he acquired the properties so that the court can ascertain whether he acquired before or after separating with the deceased." Based on the above reasoning the decision of the DLHT was upheld by the High Court (Makuru J). In the contrary, Mr. Lweeka challenged the concurrent finding of the DLHT and the first appellate court that, the record speaks louder on the evidence of the appellant. In diverse years, he purchased the suit land in his personal name between 1990 to 2006. At pages 108 and 112 of the record of appeal indicates that, the appellant is a sole owner of the suit land. Considering the above recapped evidence adduced by the parties together with their submissions, we find the crux of the matter for consideration is whether the appellant proved personal ownership of the suit land. To tackle this issue, we direct our minds to undisputed facts that the deceased was not married to the appellant, but at a certain point in time the two cohabited as rightly admitted by the appellant that they were lovers from 1988 to 1990. That in 1991 the appellant was married to one Veronica Mapunda and the fact that the deceased never claimed her shares during her life time is also undisputed. Even after her death, the respondent took him ten years to claim the alleged shares of his deceased mother from the appellant. Above all, it is on record of appeal that the respondent successfully applied to be appointed as an administrator of the estate of his mother in 2012, while the deceased died in 2002. Thereafter, the respondent started distributing the pieces of suit land to the alleged rightful heirs of the deceased. We are alive on the fact that, living together for some years is not p er se conclusive evidence of joint acquisition of the alleged suit land without any other evidential proof of each one's contribution. It is also noted that all transactions in acquisition of those pieces of land bear the name of the appellant and no single piece of suit land was acquired in the name of the deceased or joint names of the appellant and the deceased as claimed by the respondent. In our considered view the appellant in this appeal clearly discharged his evidential duty by producing not only the sale agreements over those pieces of land subject of this appeal, but also, called six witnesses as alluded above. The purchase agreements of those pieces of land which was not disputed by the respondent, included the one dated 28th August, 1990 for a total of TZS. 480.00; another one dated 17th August 1995 from Ally Kiyobe for a total of TZS. 280,000.00; the other one was of 22nd November, 1996 purchase from Godfrey Kiiabila Mbena for TZS. 110,000.00 and on 13th November, 2006 for a total of TZS. 50,000.00 from Ramadhan Kilatu. With such evidence we are satisfied that the appellant proved his case to the standard required by law, that is; on preponderance of probabilities. The burden shifted to the respondent to disprove the appellant's claims and to prove all the facts within his knowledge as per section 112 of 10 the Evidence Act. See Paulina Samson Ndawavya (supra) where the Court held: "It is again trite that the burden o f p ro of never sh ifts to the adverse party u n til the party on whom the onus lie s discharges his, and that the burden o f p ro o f is not diluted on account o f the weaknesses o f the opposite party's case,". .... The position of the Court demonstrated in that case has the same context which was discussed in details by Sarkar on Evidence, 14th Edition (1993) at page 1339 thus: - "The in itia l onus is alw ays on the p la in tiff and if he discharges that onus and m akes out a case which entitled him to relief, the onus sh ifts on to the defendant to prove those circum stances, if any which would disentitle the p la in tiff to the sam e" In the circumstances, the respondent was expected to adduce evidence to prove the deceased shares in each and every piece of suit land as he claimed. This is because the respondent being the defendant at the trial, he was not immune from the burden of proof when it shifted to him, also considering that he advanced on his side some claim of fact. See what we decided in JM Hauliers Limited v. Access Microfinance Bank (Tanzania) Limited (Civil Appeal 274 of 2021) [2022] TZCA 522 TANZLII (26 August 2022), where the defendant failed to discharge his duty. We in ter alia observed that under sections 110 and 111 of the Evidence Act, (Cap. 6 R. E. 2019) the appellant who was the defendant at trial was obliged to furnish the court with the aiding evidence. Unfortunately, in this case the respondent did not perform that duty and also failed to call witnesses to substantiate his claims bearing in mind that the respondent at the material time between 1988 and 1991 was a child of tender age. Unsurprisingly, DW2 who stated to be a brother of the deceased, did not even remember as to when those pieces of land were acquired and the time the appellant cohabited with his sister. Therefore, his testimony could not advance the respondent's case. As we have scrutinized the evidence of parties at trial, the claim of shares of the deceased to the suit land lacks evidential proof. We thus agree with Mr. Lweeka, that the deceased in her lifetime never claimed for her shares from the appellant's pieces of land. In view of what we have endeavoured to discuss, we find this appeal is merited and we are justified to interfere with the lower courts' concurrent findings which in our opinion, were based on misapprehension of the evidence. It is our finding that the appellant is the sole rightful owner of the suit land as he had established by evidence. 12 In conclusion, we allow the appeal with costs. Accordingly, we quash the High Court's decision and enter judgment for the appellant adjudging him the lawful owner of the property in dispute. DATED at DAR ES SALAAM this 31st day of July, 2024. G. A. M. NDIKA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 1st day of August, 2024 in the presence of the Appellant in person and the Respondent in person both via video link, from High Court at Morogoro, is hereby certified as a true copy of the original. 13