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IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO 27333 OF 2023 (From the District Land and Housing Tribunal at Mbeya, Land application No. 1 of 2021). BENJAMINI SIMKOKO (The administrator of the estate of Stephano Yalinda Simkoko)….………………………….…………………………….APPELLANT VERSUS CHISTANTUS SIMKOKO……………………………………….…..1ST RESPONDENT FRODESTER SIMKOKO…………………………………….………2ND RESPONDENT DAVID SIMKOKO……………………………………………………3RD RESPONDENT AWADHI MYOMBE………………………………………………….4TH RESPONDENT MAVUMBI SIMKOKO……………………………………………….5TH RESPONDENT IMANI LAULENT SIMKOKO……………………………………….6TH RESPONDENT JUDGMENT Date: 8 April 2024 & 31 May 2024 SINDA, J.: The appellant is an administrator of the estate of Yalinda Simkoko. He filed Land Application No. 1 of 2021 at the District Land and Housing Tribunal of Mbeya at Mbeya (the DLHT) claiming that the land in dispute form part of the deceased estate. 1 He claimed that first respondent unlawfully sold a part of the land to the second respondent. He added that the first respondent gave some piece of the land in dispute to the third and fifth respondent while the sixth respondent sold some piece of land in dispute to the fourth respondent. The first respondent denied selling the land to the second respondent. The second respondent denied to own land on that area. Other respondents claimed to be the lawfully owners of the land in dispute and that they were given the land in dispute by the deceased one Stephano Yalinda Simkoko during his lifetime. The fourth respondent claimed to buy the land from the sixth respondent who is a lawfully owner. At the end of the hearing, the DLHT found that the land in dispute belongs to the respondents because the appellant evidence was contradictory. Also, the respondents used that land for a long period of time. Aggrieved with decisions of the DLHT, the appellant filed a memorandum of appeal with nine (9) grounds of appeal as follows: 1. That, the honorable chairman of the trial tribunal grossly erred in law and facts to rise and determine irrelevant issue which is contrary to the pleadings and facts of the case hence reached erroneous decision. 2 2. That, the honorable chairman erred in law and facts as if it was instituted by appellant personally while the appellant is a legal representative (administrator). 3. That, the honorable chairman of the trial tribunal grossly erred in law and facts for failure to frame an important issue which is relevant to the facts of the case, hence reached unfair decision 4. That, the trial chairman of the trial tribunal erred in law and facts to apply the principle of adverse possession contrary to the requirement of the law. 5. That, the honorable chairman of the trial tribunal erred in law and facts when failed to decide that the land in dispute is a property of the deceased of Stephano Yalinda Simkoko while it was admitted by all respondent that the property belongs to the deceased. 6. That, the honorable chairman of the trial tribunal grossly misconceived himself in law and fact to decide the case in the perspective of the Probert in steady of deciding it as a land dispute 7. That, the chairman of the trial tribunal erred in law and facts to order that the certificate of occupancy issued to the appellant be nullified while the law doesn’t prohibit for the legal representative to register land on his name and reason for appellant to do so was adduced during trial. 3 8. That, the tribunal erred in law and facts to decide the case in favor of the respondent basing on hearsay evidence adduced by respondent sides. 9. That, honorable chairman totally failed to analyze, evaluate and scrutinize the evidence on record scrupulously, hence reached unfair and unjust decision. At the hearing of the appeal, the appellant appeared in person unrepresented while the respondents were represented by Ms. Beatrice Rukamilwa, learned Counsel. The appeal was argued by way of written submission. The appellant argued grounds number one, two, three and five together. He submitted that it is apparent on records that the appellant stated that the land in dispute belongs to the deceased while some respondents claimed that the land in dispute belongs to them so the proper issue ought to be framed was whether the land in disputed belonged to the deceased. If the DLHT framed that issue correctly, it would have recognized that the parties are not in dispute that the land in dispute was the original property of the deceased and the appellant being an administrator he is the only one with power to collect and distribute the properties of the deceased to the heirs. He added 4 because of that dispute the administrator has not distributed the property to the heirs. The chairman of the DLHT was supposed to ask himself as to how the said land came into possession of the respondents. He argued that the land in dispute belongs to the deceased. He added if the land in dispute did not belong to the deceased, then the respondents would have objected that land to be listed in the deceased property. He referred the case of Osward Mwanisawa vs Alistid Jumbe and 3 Others, Land Appeal No. 10 od 2022 HC at Sumbawanga to cement his argument. With respect to ground number four on the doctrine of adverse possession, he submitted that the DLHT applied this doctrine contrary to the law. The DLHT ruled that the respondents used that land for 20 years contrary to the evidence on record which even 12 years of statutory period applied in doctrine of adverse possession had not expired. He referred to the case of Registered trustee of Holy spirit Sisters in Tanzania vs January kamili Shayo and 136 Others, Civil Appeal No. 193 of 2016 CAT available at Tanzlii. He averred that this doctrine of adverse possession is not applicable in this case. 5 The appellant argued grounds number six, seven, eight and nine together. He stated that one among the grounds that the DLHT relied to decide the case in favor of the respondents was that the appellant evidence was contradictory. That, the appellant issued certificate of occupancy in his name personally while the reasons for said certificate to be in appellant name was advanced during hearing. He stated that the DLHT would analyze evidence on record and have recognized that the appellant didn’t claim that the land in dispute belongs to him personally rather than the deceased estate. The appellant issuing certificate of occupancy in his name cannot eliminate the fact that the land in disputes belongs to the deceased. He argued that the DLHT decided the matter like a probate matter and not land case. He referred to page five (5) of the typed judgment on issue of certificate of occupancy to appear his name personally. Also, on issue of hearsay evidence, he submitted that DW3 adduced hearsay evidence which lack evidential value and the DLHT relied on it in making its decision. In reply Ms. Rukamilwa also argued grounds number one, second, third and fifth together. They submitted that the DLHT did not raise any issue to be determined upon the case at hand but parties raised issues 6 which were relevant for determination in particular case which was Je ni nani mmiliki halali wa eneo lenye mgogoro? This issue was determined by the DLHT which found that the respondents were lawfully owners of the disputed land. The evidence on record show that the deceased Stephano Simkoko distributed his land during his life time by giving it to his children including the third, fifth and sixth respondents. On the fourth ground, it was insisted that the respondents used that land for a long period of time. On the sixth, seventh, eighth and ninth grounds, Ms. Rukamilwa submitted that the evidence adduced by the appellant was contradictory. Further, regarding the complain that the DLHT decided the case as probate and not land matters counsel for the respondents submitted that the appellant failed to justify how the matter was decided as a probate matter. They referred to section 112 of Evidence Act Cap 6 R.E 2019 that the burden of proofs lies on the appellant. Ms. Rukamilwa further submitted that it is a trite law that certificate of title is a conclusive ownership of the property and referred to the case of Aisha Juma Mansoor & Others vs John Asheri Mbogoni, and 7 stated that the record shows that the said certificate of title was falsely obtained since it did not follow the village council procedure hence revoked by Msia Village Council. Regarding the issue of hearsay evidence of DW3, Ms. Rukamilwa argued that the same lack merit because Imani Laurent Simkoko who was the sixth respondent at the trial court submitted that he obtained the sold land from his father so it cannot be termed as hearsay. She submitted that the tribunal find that respondent evidence was heavier that appellant, she referred to the case of Hemed said vs Mohamed Mbilu (1984). The appellant in rejoinder stated that because the land in dispute belongs to the deceased estate, the appellant ought to have registered it as administrator of the estate and not in his name. He further reiterated his submission in chief. I have considered court records, grounds of appeal and submissions by the parties. I wish to start to discuss grounds number one, two, three and fifth together. The appellant while arguing these grounds stated that the land in dispute is a property of the deceased and some respondent claimed that the land belongs to them so the proper issue ought to be framed 8 is “Whether the land in dispute belongs to the deceased (Stephano Yalinda Simkoko)” Going through the court record at page nine (9) of the typed proceedings among the issues framed was Who is the lawful owner of the disputed land. This issue was properly determined by the DLHT and at the end for reasons disclosed in judgment the DLHT found that the land in disputes belongs to respondents. In my view I find that the issue of whether the land in dispute belongs to deceased (Stephano Yalinda Simkoko) and the issue of who is the lawful owner of land in dispute is one issue and have the same effect. On the complaint that the parties acknowledged that previously the land in dispute belongs to late Stephano Yalinda Simkoko, therefore the DLHT chairman was supposed to ask himself as to how the said land came into possession of the respondents. Further, considering that the appellant is an administrator of the deceased estate and had not distributed the properties to the heirs. In responding this issue, this court being the first appellate court I wish to re-evaluate the evidence on record to come into conclusion on who was the lawfully owner of land in dispute. The major issue is whether the appellant proved his case on the balance of probability at the DLHT. 9 It is an established principle of the law that a civil case must be proved on the balance of probability. See Section 3 (2) (b) of the Evidence Act, Cap. 6 RE 2019. It is settled that a person with heavier evidence than his/her adversary must win the case. This stance of the law was stated in the case of Hemedi Saidi v. Mohamedi Mbilu [1984] TLR 113 thus: "According to the 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." Going through court records, I find that the appellant and his witness only stated that the land in dispute belongs to the deceased estate. Respondents on their side explained how they obtained the land in dispute that previously it belonged to the deceased. The third, fifth and sixth respondents are children of the deceased. The deceased before he met his death, he distributed that land in dispute to his children. That the sixth respondent got his land from his father Laurent simkoko then he sold to it to the fourth respondent. Their evidence was corroborated with evidence of Siyawezi Yalinda Simkoko (DW5) and Enea Simon Mwasenga (DW8). Among other things they testified that the land in dispute belongs respondents and that the third and fifth respondent were given that land by their father (the deceased) in 1989 10 before he met his death in 1990. The sixth respondent obtained that piece of land from his father who was also the child of the deceased and later he sold that piece of land. I find that respondent’s evidence was heavier compared to the appellant evidence. The respondents explained properly on how they came into possession of the disputed land. Regarding the fourth ground of appeal that the DLHT relied on the doctrine of adverse possession to reach its decision that the respondents used the land in dispute for more than 20 years while as per evidence adduced by respondent on records even 12 years applied in doctrine of adverse possession was not yet met. In Moses v Lovegrove (1952) QB, and Hughes v Griffin (1969) 1 All ER 460, it was held that: - “a person seeking to acquire title to land by adverse possession had to cumulatively prove the followings; - f) That the statutory period, in this case, twelve years has lapsed g) That there had been no interruption to the adverse possession throughout the aforesaid statutory period.” In this matter, the evidence on records shows that the respondents were given the land in dispute through their respective mothers and 11 when respondents attained the age of majority the land was handed over to them. The records also show that their mothers used that land before it was handed to respondents. See page 41 of the typed proceedings by DW3 stated that “Kwenye eneo hilo linakahawa na migomba yalipandwa na mama yake David Simkoko” In my opinion the doctrine of adverse possession is applicable in this case, as right stated by the DLHT chairman that the respondents used the land in dispute for more than 20 years. I will also deliberate grounds no six, seven, eight and nine collectively. The appellant argued that the DLHT stated that his evidence was contradictory because the name of the appellant appeared in the certificate of occupancy while the reason for that certificate of occupancy to bear his name was adduced during hearing. I will not spend much time to deliberate on this point because the appellant on his rejoinder conceded that because the land in dispute is one among of the deceased property and not his property the appellant ought to have registered it as an administrator. Also, he stated that the DLHT erred by deciding the matter in perspective as probate matter instead of land disputes he referred to paragraph 5 of judgment which states that 12 “kitendo cha mleta maombi kuchukua hati miliki kwa jina lake binafsi huku akijua ardhi hiyo sio yake binafsi bali ni ya familia ya marehemu kilidhihirisha kwamba mdai sio mwaminifu na alikuwa na nia ovu” He stated that the honest of an administrator cannot be determined by the DLHT. In my view, I find that that appellant misconceived this paragraph. The record shows that the parties in this case have a land dispute and at the end the DLHT determined the dispute by deciding on who is the lawfully owner of disputed land. What was stated in the above paragraph was just stated in course of deliberating the land dispute which was before DLHT. This ground also lack merit. Another issue was that the evidence of the respondents was full of hearsay. The appellant referred to the statement adduced by DW3 in cross examination who stated that “Imani aliniambia alipata kwa baba yake” Section 62. -(1) of the Law of Evidence Act [Cap 6 R.E 2022] Oral evidence must, in all cases whatever, be direct; that is to say- “(b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it” 13 It is true that DW3 in this quoted statement adduced hearsay evidence from Imani but the said Imani testified as DW7 in this case and conceded that he sold that land to DW3. This grounds also lack merit. I find the whole appeal is devoid of merit and is dismissed with costs. It is so ordered. Right to appeal explained DATED at MBEYA on this 31 day of May 2024. A. A. SINDA JUDGE 14