land appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 23239 OF 2024 (Originating From Application No. 182/2023, Bagamoyo District Land and Housing Tribunal) DAUDI SAID CHIBUNDI (Administrator of the Estate of the Late Said Daudi Chibundi).................................................................. APPELLANT VERSUS SALMA DAUDI CHIBUNDI (Administratrix of the Estate of the Late Daudi Chibundi Magoha)................................................. RESPONDENT JUDGMENT 7th to 23rd October, 2024 E.B. LU VAN DA, J The Appellant named above is challenging the decision of the Tribunal which ruled that the suit premises sized twenty-five by seventeen by twenty-six by twenty-seven meters, situated at Visakazi, Bwawani, Ubena Zomozi, Chalinze District is a property of the late Daudi Chibundi Magoha whose estate is administered by the Respondent above mentioned. In the memorandum of appeal, the Appellant grounded that: One, the Tribunal erred in law and fact by disregarding strong evidence adduced by the Appellant; Two, the Tribunal erred in law and fact by relying on week evidence adduced by PW1 and PW2 hence judged in the Respondent's favour; Three, the Tribunal erred in law and fact by relying on mere words from PW1 and PW2 with no documentary evidence to support their case hence judged in the Respondent's i favour; Four, the Tribunal erred in law and fact by judging that the late Saidi Daudi Chibundi who was the lawful owner of the disputed property signed a lease agreement dated 1/04/2016 and that the deceased cannot sign an agreement, by crosschecking the said agreement was signed by the administrator one Daudi Saidi Chibundi and not the late Said Daud Chibundi; Five, the Tribunal erred in law and fact by wrongly applying the principle of adverse possession to a wrong person hence judged in the Respondent's favour. The Appellant submitted that he is aggrieved by the decision of the Tribunal Bagamoyo, hence lodged this appeal. He submitted that the decision was delivered on 19/08/2024 in favour of the Respondent to be the lawful owner of the suit house while the Appellant inherited that house from his father Said Daudi Chigundi (deceased), whom the Appellant administer his estate. He submitted that he is still paying rent/property tax, he has lease agreements with tenants, which he tendered at the Tribunal along summoning his tenants, but still the Tribunal ruled against him. He submitted that they have appeared here for the Court to re-evaluate the evidence. In response, the Respondent submitted that all her exhibits and testimony are contained in the judgment, which enabled her to be declared the rightful owner. She submitted that her judgment is self explanatory. She submitted that Daudi Chibundi Magoha is her father, who is the grandfather to the 2 Appellant, the Appellant's father is her brother. She submitted that she was born there and raised her children at the suit house. She submitted that the changes occurred after the death of the Appellant's father it is when the Appellant changed. She submitted that the source of the dispute is an agreement for handing over to the grandchild after the death of their brother. She invited this Court to read the rest in her judgment On rejoinder, the Appellant refuted the assertation by the Respondent that a house belong to the Respondent's father, for explanation that a house belong to the Appellant's father, who hosted Appellant's grandfather at the suit house, until when his grandfather passed away in 1998.He queried that if the house belong to the Respondent's father why they did not sue. He submitted that apart from that, his father passed away in 2014, he queried as to what were they doing for the entire period. He submitted that he petitioned for letters of administration, a meeting was convened which was chaired by Selemani Daudi Chibundi who is the Respondent's brother, who authorised him to be the administrator of the estate of the late Said Daudi Chibundi. He submitted that the objections are always coming from the Respondent but Selemani is the one who ought to object, who approved that all properties belong to the Appellant's father. He submitted that Selemani told them that the property do not belong 3 to their father rather to the Appellant's father who is their brother. He submitted that after the death of Selemani it is then they initiated a fresh case. On my part, I will tackle the appeal along the line of ground of appeal. For ground number one, the same is without merit. This is because the evidence tendered by the Appellant was considered by the Tribunal at page seven, first and second paragraph of the impugned judgment. The Tribunal ruled that lease agreements were incapable of conferring ownership of the suit premise to the Appellant's father. The Tribunal faulted lease agreement dated 1/04/2016 exhibit RE1, on account of cheating, on that it depict was signed by the late Said Daud Chibundi who passed away in 2014 as per the death certificate. According to Form No. IV Usimamizi wa Mirathi Na. 161 of 2017 exhibit AE1 depict Said Daud Chibundi passed away on 15/03/2014. However, neither of any document in a bundle of lease agreements dated 1/4/2014, 3/4/2015, 10/09/2015, 01/04/2016, 10/09/2016 and 08/09/2017 along a property rate demand note dated 17/06/2019 exhibit RE2, reflect the name or signature of the late Said Daud Chibundi. Rather all depict Daudi Said Chibundi (the Appellant herein) signed at the capacity of landlord and proprietor of the suit premises. There is no any evidence which was tendered by the Appellant to prove that the suit premises belong to the late Said Daud Chibundi. Indeed, in exhibit RE 2 majority of the lease agreements were executed prior the Appellant 4 was appointed to administer the estate of the late Said Daud Chibundi on 30/08/2017 as per exhibit AE1. In his testimony, the Appellant (60 anos) who testified as DW1 merely stated that the suit premise was purchased by his father in 1963, but could not tell as to whom he purchased and neither tendered documentations for the alleged purchase. Even his witnesses Steven Ndaro 57 anos (DW2) who arrived at Bwawani in 1987, Abdallah Shabani Bobeto 53 anos (DW3), tenant from 2009 could not tell how the late Said Daud Chibundi acquired the suit premises. On the other hand, the Respondent summoned Athumani Rajabu Ngana 84 anos (PW2) who asserted that Mzee Daudi Chibundi Magoha arrived and established settlement at Bwawani in 1959. According to PW2 the late Daud Chibundi visited to PW2's father who was a brother in law to the late Daudi Chibundi, where he (Daud Chibundi Magoha) acquired the suit premises and constructed the suit house. PW2 confirmed that Daudi Chibundi Magoha is the owner of the suit premises. Arguably, PW1 (Respondent) and PW2 gave oral testimony to prove a fact that the suit premises belong to the late Daudi Chibundi Magoha. However, the oral account of evidence adduced by the Appellant and his witnesses when compared with the testimony of the Respondent and her witnesses in particular 5 PW2, that of the latter was heavier on the balance than that of the former. Regard being a deep rooted narration by PW2, was credible. This adumbration takes into board grounds number one, two and three. For ground number four, the same is meritorious. It is true that a lease agreement dated 1/04/2016 forming a bundle in RE2 suggest was executed by the Appellant at the capacity of owner and landlord as aforesaid. Therefore, the Tribunal slept into error to rule that it was concocted to show that it was signed by the late Said Daud Chibundi post demise. For ground number five, I find merit on it. In the application filed at the Tribunal, the Respondent pleaded facts that the Appellant trespassed into the suit premises in 2017. Even in the testimony the Respondent asserted facts as to how the suit premises was acquired by the late Daudi Chibundi Magoha in the late 1950's. Nowhere the Respondent or any party asserted facts for adverse possession. Therefore, the doctrine of adverse possession was wrongly invoked by the Tribunal, regard that it was not supported by any piece of evidence in record. In that way, the Tribunal is faulted to that respect. Save for grounds number four and five which are meritorious, the rest grounds of appeal are without substance. However, the verdict in grounds number four and five cannot change the conclusion reached by the Tribunal. In that regard, the decision of the Tribunal is upheld. 6 The appeal is dismissed. Given the situation and circumstances of the matter being inheritance, it is desirable for each one to foot own costs. 7