christina bitainamwete vs felix bitainamwete 2018 tzhc 2335 16 march 2018

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DISTRICT REGISTRY OF BUKOBA

AT BUKOBA LAND APPEAL No. 56/2016 (Arising from Bureza Ward Tribunal in Case No. 19/2014 and DLHT in appeal No. 257/2014) CHRISTINA BITAINAMWETE ---------------------- APPELLANT

VERSUS FELIX BITAINAMWETE--------------------------- RESPONDENT

JUDGMENT 19/ 2/2018 & 16/ 3/2018 KAIRO, J. The Appellant; Christina Bitainamwete is challenging the decision of the District Land and Housing Tribunal in land appeal No. 257/2014 delivered on 24/3/2016 which aggrieved her, raising the following grounds of appeal: 1. Both the lower Tribunals failed to analyze the evidence and on the final analysis determined the case against the weight of evidence. l 2. Both the trial tribunal and the first appellate tribunal failed to note that the disputed land is not part of the clan land owned by the late Sarapion Bitainamwete which he bequeathed to his children, rather the land in dispute is the part of clan land which was first owned by the late Chrizostom Bitainamwete and Christina Bitainamwete and the late Sarapion Bitainamwete was only the care taker of the land.

3. That the tribunals below failed to note that even the late Sarapion Bitainamwete in both Wills; that of 15/12/1999 and the Will of 16/2/2009 which erased the former Will has never distributed the said land in dispute, hence it was only the respondent who just trespassed on the land of the Appellant without any justifiable cause.

4. That the District Land and Housing Tribunal misdirected itself and over looked the issue of inheritance through the Will, it failed to note that the Appellant is the aunt of the Respondent not brother and sister, that the Appellant has not inherited the land from the late Sarapion, rather she inherited from her father the late Bitainamwete and Sarapion was only the care taker of the land. 2 5. The evidence of the respondent was totally fabricated and had the tribunals below didn't took trouble to scrutinize it, they would have dismissed the entire story as being faked.

6. The District Land and Housing Tribunal wrongly resolved the contradiction relating to the assessors who sat in the Ward Tribunal and had he properly addressed himself to the issue, he would have ordered a fresh hearing of the case at the Ward Tribunal. The Appellant thus prayed the court to allow the appeal. Briefly the facts that resulted to this appeal are that, the Respondent sued the Appellant at the Bureza Ward Tribunal claiming that the Appellant who is his aunt has prevented him being the Executor of the estate of the his late father, one Sarapion Bitainamwete from distributing the same to one Anjeliberiti Balibaza Zefurini who was bequeathed the said land as per the Will of the late Sarapion Bitainamwete. The Ward Tribunal decided in favor of the Respondent. The Appellant was not satisfied and lodged an appeal to the District Land and Housing Tribunal where she failed again. Being further aggrieved, she decided to file this appeal raising the above listed grounds of appeal. Both parties are self represented. The Respondent generally refuted all grounds of appeal. When invited to make their oral submission for and against the grounds of appeal the Appellant submitted that she has instituted this appeal so as to get back the 3 shamba she was using with her brother Chrizostom Bitainamwete. She went on that after the death of her brother she continued using the farm but

later the Respondent emerged and claimed that the farm was owned by his late father one Sarapion Bitainamwete and that is the essence of this dispute and prayed the court to allow her appeal. The Respondent rebutting the grounds of appeal contended that he was an Executor of the estate of the late Sarapion Bitainamwete. He thus prayed the court to dismiss this appeal so that the land in dispute which he claims to be part of the estate of his late father can be bequeathed to the deceased's grandson as per deceased Will. Having gave through the court record, a reply there to and the oral submissions from both parties, the dispute is centered on determining who is the owner of the land in dispute, as such I will analyze the raised grounds of appeal collectively. The Appellant has contended that the land in dispute was first owned by the late Chrizostom and herself both being the children of the late Bitainamwete and that the late Sarapion Bitainamwete, the father of the Respondent was only the care taker of the land. According to evidence on record it is not in dispute that the Respondent is the Executor of the estate of the late Sarapion Bitainamwete who has left a Will dated 15/12/1999 bequeathing his properties including the land in dispute to his heirs. The record further reveals that the dispute ensued complaint. In my conviction, that her silence is inconsistence with the

claim of ownership she now raises. (Proceedings of the Ward Tribunal page XV). Her failure to complain when Anjeriberiti did put the building materials on the land in dispute, the land which was given to him by the late Sarapion gave an impression that the said land belongs to the late Sarapion, as such, she can't be heard today to claim it while the giver is no more. The docrine ofestoppell therefore operates against the Appellant as she has waived her right if she had any. Section 123 of the Evidence Act, Cap 6 RE 2002 can clarify this point and I wish to quote: "When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon that beliefneither he or his representative shall be allowed, in any suit or proceedings between himself and that person or his representative, to deny the truth of that thing" Further to that Lukas Byakuba Bitainamwete was among the clan members who were present and witnessed the Will of the late Sarapion. What is disturbing and surprising the court, is the fact that he didn't object when his late brother Sarapion was distributing the land in dispute which he testified not to belong to the deceased. But further he said that he doesn't know the Will of the late Sarapion yet he witnessed it. It is also interesting to note that the said Will was also witnessed by

another clan member, a sister to the Appellant and the late Sarapion; one Amelia Bitainamwete, but also she did not object when the late Sarapion was bequeathing the land in dispute. 6 In the foregoing, I am convinced that the land in dispute was the property of the late Sarapion Bitainamwete that is why his relatives (Lukas Byakuba Bitainamwete and Amelia Bitainamwete) did not object when he included it in his Will. As earlier stated, the dispute is centered on resolving the issue as to who is the owner of the land in dispute. Having found that the land in dispute belonged to the late Sarapion Bitainamwete it goes therefore that the Executor of the his Will has a right over the said land being part of the estate of the late Sarapion and can continue to distribute the same as per the Will of the late Sarapion. The appeal therefore has no merit. 1accordingly dismiss it with cost. It is so ordered. R/A explained. At Bukoba 16/3/2018 7 Date: 16/03/2018 Coram: Hon. L.G. Kairo, J Appellant: Present in person Respondent: Present in person B/Clerk: R. Bamporiki COURT: - The matter is scheduled for judgment which is ready. The same is read over before the Appellant and Respondent in person in open court today on 16/03/2018. Sgd: L. G. Kairo Judge 16/03/2018

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ORIGINAL Deputy Registrar Bukoba 8