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'i • ■i ■ . ' IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO REGISTRY) AT MOROGORO LAND APPEAL NO 13185 OF 2024 {Originating from Application No. 174 of 2017at the District land and housing Tribunal for Morogoro at Morogoro) RAMADHANI SALUM MAKOWA (The Administrator of the Estate of the late SALUM ABDALLAH MAKOWA) APPELLANT VERSUS ZARIA SAID.............. 1®^ RESPONDENT ERASTO MBUGI..... 2^° RESPONDENT JUDGMENT 251071202^ & 30/09/2024 KINYAKA, J.; In Land Application No. 174 of 2017 before the District Land and Housing Tribunal for Morogoro at Morogoro, hereinafter the "Tribunal", the appellant sued the respondents jointly and severally seeking for an order of vacant possession in respect of the house situated at Tushikamane Street, Lukobe Ward in the Municipal and Region of Morogoro, hereinafter 'kcr the "disputed property". The appellant also sought an eviction order against the respondent from the disputed property, an order for permanent Injunction restraining the respondents and their agents, workmen, assignee or any other persons working on their behalf from Interfering the disputed property, costs for the suit, and any other reliefs that the Tribunal would deem just and appropriate to grant. In his written statement of defence, the 2"'' respondent denied the appellant's claim and Instead averred that, the appellant's father Is not the rightful owner of the disputed property as he legally purchased the land In which the disputed property was built from the first respondent on March, 2009, He prayed for the dismissal of the appellant's suit with costs, a declaration order that the second respondent Is the lawful owner of the disputed property and any other reliefs that the Tribunal would deem just and equitable to grant. On his part the first respondent neither filed his written statement of defence nor made appearance before the Tribunal. In Its judgment delivered on 29'*^ April, 2024, the Tribunal found that the appellant failed to prove that the land In dispute belonged to the estate of his late father, Salum Abdallah Makowa as he didn't present before the Tribunal two Important documents to wit; the sale agreement of the issr- disputed property between his late father and one, Ramadhan Mwinjuma Mbega who was the alleged seller of the land in dispute; and the inventory to prove that the disputed property was listed among the properties of the late Makowa before the probate court. It was also the finding of the Tribunal that there was no cogent evidence that the unfinished house in the land in dispute was built by the late Salum Abdalah Makowa. On that account, the Tribunal declined to grant the reliefs that were sought by the appellant and on the contrary dismissed the appellant's suit with costs to the second respondent. The Tribunal also declared the 2"'' respondent as the lawful owner of the land that he had purchased from the respondent. Being dissatisfied with the judgment, the appellant has appealed to this Court on the following grounds: 1. That,the Trial District land and Housing Tribunal for Morogoro erred in law and fact by deciding in favor of the Respondent while disregarding the strong evidence of the Respondent; 2. That, the Trial District land and Housing Tribunal for Morogoro erred in law and fact by failing to evaluate the evidence tendered before it and deciding in favor of the Respondent; 3. That, the Trial District land and housing Tribunal for Morogoro erred in law and fact by deciding In favor of the Respondent while there was no proof as to the Vendor's testimony who Is ZARIA SAIDI of her good title of the suit property; 4. That, the Trial District land and housing Tribunal for Morogoro erred In law and fact by deciding in favor of the Respondent while there was no Street chairperson who was called to prove the sale agreement as it was attested as such. On 25"^ July, 2024, the court ordered the appeal to be argued by written submissions. With exception to the 1^ respondent who never entered appearance despite being served with substituted service, both the appellant and the T'^ respondent filed his written submissions through the services of Advocate Abdul Bwanga and Advocate Slyvanus Mosha, respectively. In his submission in chief, Mr. Bwanga argued the first and second grounds; and the third and fourth grounds jointly. On the first and second ground, the learned counsel contended that the appellant's testimony at the Tribunal was very vital and undisputed even by the 2"'' respondent that Ramadhani Mwinjuma Mbena was the first owner of the suit property. Referring to the second paragraph of page 6 of the Tribunal's judgment, the counsel added that the fact that the land in dispute measured one acre belong to the late Salum Makowa was ascertained by the 2"'' respondent himself as he admitted that there was a house within the 1 acre which belongs to appellant's father which was there even before the 2"'' respondent appeared In the suit property. fes- He further attacked the 2"'' respondent for not calling one Salma Mgatta to testify as for him, being the neighbour to the land in dispute and a wife to the late Salum Makowa, her testimony was of great importance to the case before the Tribunal. As regards to the third and fourth grounds, the appellant sought reliance on the cases of Aziz Abdallah v. R(1991)TLR71 and RvUberle(1938) 5 EAGV 58, and submitted that the neighbours and the Local Executive Officer who witnessed the sale agreement, were not called to testify as such. He was of the view that since no sufficient reason was shown for the failure to call the witnesses, he urged the Court to draw an adverse inference against the respondents. In the circumstances and on the basis of legal authorities cited in his submission, Mr Bwanga finally invited this Honorable Court to allow the appeal with costs. In his repiy submissions, the 2"'' respondent responded to the appellant's submission in the manner set out in the appellant's petition of appeal. On the first ground, he contended that the appellant in his application in the Tribunal failed to tender any supporting evidence document during the hearing. In his view, what the Chairman did in reaching such a decision was quite proper and just. In that regard he attacked the ground for lacking legal merit stating that the same ought to be dismissed. As regards to the second ground, it was the Z"'* respondent's submission that the Tribunal had evaluated and applied the value of the evidence of all parties and all documentary evidence submitted by the parties, the credibility of the witnesses, the probability or improbability of certain facts asserted by the witnesses, and thereafter found that the evidence adduced by the 2"" respondent was sufficient. Relying on the provision of law under sections 110 and 111 of the law of Evidence Act, Cap 6, R.E 2019 and the decision of the Court of Appeal of Barelia Karangirangi V. Asteria Nyalwambwa, Civil Appeal No. 237 of 2017, the learned counsel contended that the Tribunal could not decide in favor of the appellant as he failed to establish his claims. On the third ground, Mr. Mosha elucidated that the failure to have Zaria Said as a witness was caused by the uncertainty on her whereabouts. He said, despite the fact that the 1^ respondent was served through substituted service by the appellant, her whereabouts was unknown to all parties. He thus attacked the ground for being misconceived and devoid of any legal merit. He added that, the decision of the Chairman on the legality of the sale agreement between the 1^ respondent and 2"'' respondent and delivering judgment in the absence of the 1^ respondent was proper, just and the same deserved to be upheld by this Court. On the fourth ground, it was the respondent's submission that the decision of the Tribunal was based on the evidence adduced by all parties during 6 the trial. He made reference to the cases of Hemedi Saidi v. Mohamedi Mbilu, TLR [1984] 113, Teremla Busegano(Administrator of Estate of the late Agatha Busegano) v. Tames Sokoli, HC Land Appeal No. 04 of 2020, the High Court of Tanzania (Mwanza District Registry) at Mwanza (Unreported), on page 8 of the judgment of the court and Bareiia Karangirangi v. Asteria Nyalwambwa (supra) at page 10 and 11 and contended that the evidence of the 2"'' respondent adduced at the trial Tribunal was heavier than that of the Appellant. From the foregoing submissions, the 2"'' Respondent invited this Honourable Court to use its inherent powers and dismiss this appeal with costs as it lacks legal merit and grant any other relief(s) this Honourable Court deem just and equitable to grant. From the four grounds raised by the appellant in support of the present appeal, it is clear that the appellant faults the decision of the Tribunal for failure to evaluate evidence and arrive at a decision dismissing his appeal for his failure to establish his claims and the finding that the 2"'' respondent is the lawful owner of the disputed property. In view of the context of the grounds of appeal, unlike the course taken by the parties in their written submissions, I will consolidate the first, second and fourth grounds of appeal and determine them together. The third ground will be determined first and separately. In arriving at the decision whether the decision of the Tribunal was flawed, this Court shall re-evaluate and analyse the evidence adduced at the trial. Being the first appellate court, this Court is empowered to do so as held in a scintilla of decision including the case of Standard Chartered Bank Tanzania Limited v. National Oil Tanzania Limited and Another, Civil Appeal No. 98 of 2008 [2013] TZCA 228(13 February 2013) on page 9 that the Court is entitled to subject the evidence on record to an exhaustive examination in order to determine whether the findings and conclusions reached by the trial court should stand. I am as well aware that, in civil cases like the present one, the standard of proof is on balance of probability as provided for under section 3(2)(b) of the Evidence Act Cap. 6 R.E. 2022 hereinafter the "Evidence Act". It means that courts will sustain such evidence which is more credible than the other on a particular fact to be proved and are enjoined to measure the weight of evidence of the opposing parties on preponderance of probability. However, the burden of proof remains on the claimant who alleges a certain fact unless the same is dischrged. [See sections 110 and 111 of the Evidence Act and the decision of the Court of Appeal In the case of Paulina Samson Ndawavya v. Theresia Thomasi Madaha Civil Appeal No. 45 of 2017 (unreported) on page 14]. Certainly, in land B to- matters like the present one, the burden was on the appellant to prove that the disputed property belonged to his late father, Salum Abdallah Makowa hereinafter the "deceased" whose estate is administered by him. In an attempt to prove that he is the owner of the disputed property, the proceedings of the Tribunal reveal that the appellant paraded two witnesses namely, Ramadhani Salum Makowa (PWl) the son of the deceased and the administrator of the estate of the deceased, and Ramadhani Mwinjuma Mbena, the previous owner of the disputed land property (PW2). PWl testified that his late father bought the disputed property measuring one acre on 23'"' August 1999 from Ramadhani Mwinjuma Mbegu (PW2) at the price of TZS 60,000. He added that after the death of his father, there were two administrators of the estate of the deceased who were appointed but they all died. His letter of appointment as the administrator of the estate of the deceased was admitted in evidence as Exhibit PI. He testified that it is PW2 who was handed the disputed property by his late father to look after It and who knew the history of the same. He contended that the dispute arose after the death of his late father. He informed the Tribunal that he didn't know the 1^ respondent and had never seen her, and that the 2""^ respondent was an invader. PW2 informed the Tribunal that he has been living atTushikamane street, Kihonda, Lukobe Ward for not less than 40 years since 1983. He stated 9 kcr that the deceased was his friend who went to Lugoba Ward school in 1963-1965 and he was the one who sold one acre among his acres to him on 23'^ August 1999 at TZS 160,000. He stated that he obtained the two acres after the then Regional Commissioner of Morogoro, Mzindakaya directed that each resident of Morogoro in need of a farm should be given the same. PW2 testified that the disputed property had no dispute throughout the ownership of the deceased and he was one who supervised the construction of the deceased's first house as he was living around the area. He contended that the deceased added another house in 2005/2006 and died on 29^^ January 2007. He stated that he gave the deceased the letter indicating that he sold to him the land. He added that the deceased had never sold the disputed property to anyone as he would have known due to close friendship they had. The defence case was marshalled through the testimony of Erasto Mbugi, the 2''^ respondent(DWl) and Allen Lewis Malisa who the witness to the sale agreement(DW2). DWl testified to have bought the disputed property on 16^^ May 2009 from Zaria Saidi, the 1^ respondent at TZS 4,000,000 who bought the same from Omary Kawala on 13^^ March 2004. The sale agreement between DWl and the 1^ respondent and between the 1^ respondent and Omary Kawala were admitted in evidence as Exhibit D1 and D2, 10 ^ respectively. DWl testified to have bought the disputed property with unfinished house ^^pagald', finalised it and built a fence wall after he involved the neighbours, one of them being Salma Mgata. He further testified that Salma Mgata was the wife of Salum Abdallah Makowa who was owning the land. He testified that the respondent was paying rent for the disputed land whose receipt was admitted in evidence as Exhibit D3. DW2, informed the Tribunal that he witnessed DWl's purchase of the house on 16^^ May 2009 being DWl's friend. He testified that him and DWl conducted diligence at the Lukobe Ward offices and were informed that the land was owned by Zaria Saidi and ended up signing the contract at the disputed property in the presence of the Street leadership. As shown earlier, the third ground faults the Tribunal for deciding in favour of the 2"^ Respondent while there was no proof as to the 1^ respondent's testimony as regards to her good title to the disputed property. I should state at the outset in respect of the third ground of appeal that the evidence of the 1^ respondent could not be obtained as her attendance was not procured despite service effected upon her by publication. It was therefore not expected that she would attend before the Tribunal to give her testimony. Again, even if the 2"^ respondent was obliged to present the 1^ respondent to testify on the sale transaction, the burden of proof of the 11 ^ ownership of the disputed property lied upon the appellant who was the claimant at the Tribunal. The burden could never shift to the 2"'' respondent until the appellant had discharged the same [See the case of Mediterranean Shipping Company Ltd v. Emmanuel Agreyson Daud t/a Ishey's General Enterprises and Another, Civil Appeal No. 342 of 2021]. In the result, I dismiss the third ground of appeal for lack of merit. Turning to the first, second and fourth grounds of appeal, the appellant's complaint is that the Tribunal's dismissal of his suit was arrived at after discrediting oral evidence for his failure to tender documentary evidence to prove the deceased's ownership of the disputed property in line with sections 61 and 101(1) of the Evidence Act. Apparently, section 61 of the Evidence Act provides that all facts except the contents of the documents may be proved by oral evidence. From my consideration of the evidence on record, I do not see how the provision was contravened by PWl and PW2 in their testimony regarding the deceased's ownership of the dispute property. It should be noted that PWl and PW2 did not seek to prove the content of a document or any contract but the fact that the deceased owned the disputed property by purchasing the same from PW2. Again, I don't find if PWl and PW2 contravened section 100 of the Evidence Act. Section 100(1) of the Evidence Act provides: 12 "When the terms ofa contract, grant, or any other disposition ofproperty, have been reduced to the form of a document, and in aii cases in which any matter is required by law to be reduced to the form ofa document, no evidence shaii be given in proof of the terms of such contract, grant, or other disposition ofproperty, or ofsuch matter except the document itseif, or secondary evidence ofits contents in cases in which secondary evidence is admissible under the provisions of this Act." It is clear from the record that PWl and PW2 did not seek to prove the terms0^ the contract, grant or disposition of the disputed property but the deceased's ownership of the same. Even if that was the case, which was not, the Tribunal failed to consider the exception under section 100(6) of the Evidence Act which provides: "The statement, in any document, of a fact other than the facts referred to in this section, shall not preclude the admission oforai evidence as to the same fact." It is clear from the above provision, the Tribunal was not precluded from admitting the oral evidence of PWl and PW2 on the statements of facts regarding ownership of the disputed property. These would include oral testimony on particulars as to ownership, price, date of purchase and size of the disputed land. From the above position, the context of the proof required of the appellant w 13 before the Tribunal was the ownership of the disputed property. Undoubtedly, proof of ownership of land may be made through a written document or by tracing through a series of previous ownerships of the land up to the person who claims to be the owner of the same. In the suit before the Tribunal, the prosecution evidence was through oral testimony of PWl and PW2, and that of the defence was through oral testimony of DWl and DW2 as well as documentary evidence. Exhibit Dl, D2 and D3. That aside, I have also considered the evidence on record and found that the oral testimony of the prosecution through PWl and PW2 proved on the tracing back of the ownership of the disputed property from 1983 by the PW2's acquisition through a directive issued by the then Regional Commissioner of Morogoro which was never controverted during the hearing at the Tribunal; and the subsequent sale of one among his two acres to the deceased, which PWl subsequently owned In his capacity as the administrator of the deceased's estate. The testimonies of PWl and PW2 were unshaken and did not contain any contradictions even in cross examination despite that no documentary evidence was tendered before the Tribunal to prove the deceased's ownership of the disputed property. Both assessors of the Tribunal were also satisfied that the appellant's evidence was weightier than the 2"'' respondent's. 14 In arriving at the decision to dismiss the appellant's suit for the appellant's failure to discharge his burden of proof, the Tribunal heavily relied on Exhibit Dl, D2 and D3 to find that while the appellant failed to substantiate his oral testimony with documentary evidence, the 2"^^ respondent provided a written proof of his ownership. I have thoroughly examined Exhibits Dl, D2 and 03. Notably, Exhibit Dl does not disclose the description of the property sold, its size and boundaries. I have also noted another flaw relating to the glaring contradictions between Exhibit Dl and the testimony of DWl. While DWl testified to have bought an unfinished house "paga!^, Exhibit Dl reveal that the 1^ respondent bought a house with three bedrooms, living room, dining room, store and kitchen. That said, it is unknown which one between the two versions of evidence is correct. I find the contradiction to be material which affected the defence evidence. Discussing a similar issue in the case of Martin Fredrick Rajab v. Ilemela Municipal Council and Another, Civil Appeal No. 197 of 2019 [2022] TZCA 434 (18 July 2022) in which the High Court had dismissed the appellant's suit on grounds that he had failed to prove his claims having not availed the description of the suit property be it in the pleadings or the evidence, the Court of Appeal observed as follows on page 13 of its judgment: was incumbent on the appellant to state In the plaint the description of the suit property which Is In terms of the 15 dictates ofOrder 7rule 3ofthe CM!Procedure Code[CAP 33 R.E 2019]. Apart from what is amiss in the pleadings, at the trial none ofthe witnesses on the appellant's side managed to give any description of the suit property. This is evident in the sale agreements atpages 121 to 123ofthe record of appeai which^ besides showing the names of the seiierSf buyer, the respective prices and those who witnessed the saie including PW4,nothing isstated on the location, size and neighbours to the said suit property. Therefore, the size of5600square meters in the appellants evidence is not compatible with the saie agreements exhibited at the trial which is against the dictates ofsection 100(1)ofthe Evidence Act.... [Emphasis added] The Court proceeded on page 14 and referred to its decision in the case of Agatha Mshote v. Edson Emmanuel and 10 others, Civil Appeal No. 121 of 2019 (unreported) where it held: "We thus agree with the respondent's counsel that since the saie agreements expressly show that PW2 and PW3 had purchased land in their own capacities and not on behaif of the appellant, the oral account by PWl, PW2 and PW3Is not compatible with the contents of the documented sale agreements which cannot be superseded by the orai account The resultant effect Is that the appellant also failed to prove ownership ofthe four acres." 16 In the matter under consideration, aithough the T'^ respondent stated to have involved the neighbours including Salma Mgata in the purchase of the disputed land, the agreement indicate the names 'Magret' as a neighbour but neither DWl nor DW2 testified on the existence of a neighbour called Magret and who executed the agreement. Salma Mgatta that DWl testified to have been involved, neither signed nor indicated to have witnessed the purchase or involved in the purchase of the disputed land. In total contradiction, DWl testified on page 32 of the typed proceedings that the 1^ respondent showed him the neighbours but he did not involve them in the purchase of the disputed land. Further, Exhibit D1 does not disclose the names of the Street Chairperson, the Ward Executive Officer and the neighbours. Although there are signatures of the aforementioned persons, in absence of the full names of the local government officers, it was expected of the 2"'' respondent to present them or their successors in office to testify that the signatures were those of the Street Chairperson and the Ward Executive Officer and stamps were affixed by them. In absence of the names and such proof, the oral testimony on the account of procuring Exhibit D1 remains unproven. Taking all the above Into consideration, I am convinced that the contradictions as to what was on the property in dispute at the time the alleged sale agreement was concluded, cannot be said to be trivial. To 17 ckr me, the contradiction corroded the reliability of the defence witnesses. As such their evidence cannot be credible. As regards to Exhibit D2, the same speaks of handing over the farm, not sale or purchase of the farm. It states in the second paragraph that "^Nimeamua kumkabidhi ndugu Zaria Saidi shamba langu lenye ukubwa wa 30 X 55'. It also does not show the location and boundaries of the land that was handed to the respondent. While Exhibit D2 indicate the size of the land to be 30 x 55, the one sold by the 1=^ respondent to the 2"" respondent was 30 x 50 feet according to the oral testimony of DWl but not Exhibit Dl. When cross examined about the 5 feet in the 55 feet, DWl informed the Tribunal that he did not know the whereabouts of the 5 feet. Further, Exhibit D2 was witnessed by the Street Chairperson whose was name was unknown. DW2 testified that the same Street Chairperson who witnessed Exhibit Dl was the same person who witnessed Exhibit D2, but he did not cali anyone from the local government office to testify on the same. The discrepancy in the oral testimony of DWl and the content of the sale agreement cannot be overlooked as the same implies that the 2"^" respondent had failed to prove the series of prior ownership of the disputed property and so the transfer of the dispute property to him and his subsequent ownership of the disputed property [See Agatha Mshote V. Edson Emmanuel and 10 Others (supra)]. 18 As for Exhibit D3 that sought to prove the 1=* respondent's payment of land rent, the same indicate the payment was made on 10"" October 2007 after the death of the appellant's father. However, the receipt did not contain any stamp of the issuer of the receipt, the Morogoro Municipal Council. Again, analysing Exhibit D3, the question that one would ask is if the 1=^ respondent bought the iand in 2004, why the only receipt submitted in evidence was the one of 10"^ October 2007 after the death of the deceased? It is my considered position that based on the above shortcomings. Exhibit Dl, D2 and D3 do not prove the purchase or sale agreement between the and 2"" respondents; and between the respondent and Omary Kawala, and so the series of ownership of the disputed land and the subsequent ownership of the same by the respondent. I have therefore given no weight to the same despite being admitted In evidence by the Tribunal. Upon according no weight to the documentary evidence, there remain oral testimony of the parties and their witnesses. The prosecution evidence through PWl and PW2 was that the deceased owned the land since 1999 after purchasing the same to the original owner, PW2 who owned the land long time ago, since 1983. The testimony of PWl and PW2 were consistent throughout. On the other hand, the testimony of DWl and DW2 indicated that the 2"^ respondent 19 owned the land subsequently in 2009 not from the deceased or the deceased's administrator but Zaria Saidi. Even by assuming that the deceased had never owned the land, the testimony of DWl does not tell so. During his evidence in chief, DWl testified on page 31 of the proceedings that: "Salma Mgatta ni mke wa marehemu aliyekuwa anamiUkieneo hUo, Salum Abdallah Makowa. NiHtaka kujenga fensi, niHtaka kujenga ndani ya mipaka. NUienda Baraza la Kata kuuiizia mipaka ya kujenga, mipaka niiiacha umbaii wa kutosha kati yangu na majirani baada ya kueiekezwa. Salma Mgatta allnionyesha mipaka yake. Salma alijua miml JlranI yake. Baraza llklona kuna hoja, Hnaweza kumuita huyo Salma kama shahldl, sina uhaklka kama yupo haL" DWl's testimony above reveal that the deceased owned the disputed property. However, it is unknown as to how Omari Kawaia came to hand over the property to Zaria in 2004 while the deceased was alive; and how Zaria sold the land to the Z"'' respondent after the death of the deceased while his wife was still living adjacent to the disputed property. This is more diminished by the fact that Salma Mgatta never witnessed Exhibit D1 or D3 and was never called to testify before the Tribunal despite DWl's oral testimony that she was involved during purchase and construction of the wall on the disputed property and who showed DWl boundaries of the disputed property. 20 Nonetheless, DWl testimony reveal contradictions. Apart from testifying in his evidence in chief that Salma Mgatta was the wife of the late Salum Abdallah Makowa, during examination, he informed the Tribunal on page 32 of the typed proceedings that Salma Mgatta was the owner of the neighbouring house, the wife of the Salum Abdallah Makowa. DWl further testified that Salma Mgatta did not mention whose wife she was but when Salma spoke of deceased, he automatically knew that she was the wife of the late Salum Abdallah Makowa. Not only the two pieces of testimony were contradictory but also they reveal the 2"'' respondent possession of information of the deceased's previous ownership of the disputed property. On the same page 32 of the typed proceedings, DWl contradicted himself by stating that: "Mimi niliwakuta wale majirani na fie nyumba ya jirani, pia nyuma kuiikuwa na kiwanja tupu, na mtu aiikuwa anajenga. Niiikuta nyumba hiyo tu iiiyokuwa jirani. Aiiyeniuzia aiinionyesha Jirani zake na ndio niiimshirikisha. Kuhusu majirani wengine, waiikuwepo iia sikuwashirikisha." Not only that the passage above reveal contradictions, but disprove the 2"'' respondent's assertion that he followed the procedure in his ownership of the disputed property through purchase from the 1^ respondent and that his neighbour, Salma Mgatta was involved in the purchase of the 21 same. DW2 who testified to have witnessed the purchase and signing of Exhibit D1 conducted at the disputed property, informed the Tribunal that Exhibit D1 was written by the respondent but he did not know if he found the same already written or was written in front of him. Contrary to the testimony of DWl, DW2 informed the Tribunal that he did not remember the neighbours and did not remember to hear the name of Salma Mgatta being mentioned during the transaction. The above contradictions diminish the defence evidence. Upon the appellant's discharge of his burden of proof through oral evidence of PWl and PW2 of the then ownership of the disputed property, it was incorrect for the Tribunal to find that the 2"'' respondent's evidence was weightier than that of the appellant. I have also considered the Tribunal's holding on the failure by the appellant to produce Inventory (Form No. V) indicating the dispute property was one of the estate of the deceased. I find the reasoning being outside the scope of the land dispute before the Tribunal. The Tribunal sat as a land tribunal and not a probate court. Listing an asset in the inventory as the deceased's asset is not a conclusive proof that the same was lawfully owned by the deceased. It is not uncommon to find an asset being listed as part of the deceased's property but proven not to belong to the deceased before a land tribunal or land court. 22 Even if that was requirement which is not, the issue was raised by the Tribunal suo mottom6 found in the judgement of the Tribunal. The issue did not surface in the witnesses' testimony. It was neither raised by the 2"'' respondent nor found in the parties' pleadings. The Tribunal ought to have given the parties an opportunity to address the issue especially considering that the suit was initially preferred by the late Juma Abdallah Mtengwa the then administrator of the estate of the deceased who died before commencement of hearing of the suit. My above observations lead to my considered position that the appellant managed to prove his late father's ownership of the disputed property on balance of probability. Except for the third ground of appeal which I have dismissed for lack of merit, the first, second and fourth grounds of appeal are allowed to the extent that the Tribunal erred in law and fact by deciding in favour of the 1"^ respondent and its total disregard of the evidence of the appellant occasioned by Its failure to properly evaluate the evidence on record in accordance with the standard of proof required in civil cases as provided for under section 3(2)(a) of the Evidence Act. In the upshot, the appeal is partly allowed to the extent demonstrated above. Considering that the appeal is been partly allowed and partly dismissed, I order each party to bear its own costs. 23 It is so ordered. DATED at MOROGORO this 30'^ day of September 2024 GV co u^ o H. A. KINYAKA T' ifU JUDGE Nl 30/09/2024 5^ Court: The judgment is delivered by F.Y. Mbelwa, Deputy Registrar in open court this 30^^ September, 2024 in the presence of the appellant in person and Advocate Joyce Miela holding brief for Mr. Sylvanus MushI, learned Advocate for the 2"^ respondent. F.Y MBELWA o DEPUTY REGISTRAR ■y^ 30/09/2024 J Right of Appeal fully explained F.Y. MBELWA DEPUTY REGISTRAR 30/09/2024 24