eglibert baltazar mkasange mgeni vs abudius malekela 2023 tzhc 17963 15 june 2023

IN THE HIGH COURT OF TANZANIA (SONGEA DISTRICT REGISTRY) AT SONGEA LAND APPEAL NO. 12 OF 2023 (Originating from Land. Application No. 60 of2019, Songea District Land and Housing Tribunal) EGLIBERT BALTAZAR MKASANGE MGENI (As an Administrator of the Estate of the Late BALTAZAR MKASANGE MGENI)........... APPELLANT VERSUS ABUDIUS MALEKELA ........... RESPONDENT JUDGEMENT 17/05/2023 & 15/06/2023 E.B LUVANDA, J The Appellant appealed to this court against the decision of Songea District Land and Housing Tribunal (hereinafter referred as the Tribunal) dated 30th November, 2022. In the memorandum of appeal he presented two grounds of appeal: One, the trial Tribunal erred in law and facts for failure to consider strong evidence of the Applicant herein the Respondent (sic, Appellant); Two, that the trial Tribunal erred in law and facts for deciding the matter in favour of the Respondent herein the Appellant (sic, Respondent) while his evidence are contradictory to itself. i This appeal was argued by way of written submission. Both parties were represented respectively by the learned Advocates, Mr. Bernard Mapunda for the Appellant and Mr. Edson Mbogoro for the Respondent. The Counsel for the Appellant submitted that, there is no any administrator who was appointed prior to the Appellant herein. That, any person who is dealing with the property of the deceased while he is not an administrator appointed by legal authorities is doing so at his own risk, he cited section 16(a) of the Probate and Administration of Estate Act [Cap 352 Revised Edition 2019], to support his submission. The Counsel for the Appellant submitted that, the said Belekumana Mdamu who was mentioned by the Respondent to be the one who gave land to them, was the wife of the deceased and the Appellant is the only official administrator of the estate of the deceased (Belekumana's husband). It is the Counsel opinion that the said Belekumana lack power to act oh what she did and all deed done by her was null and void. The Counsel added that both Belekumana and PW2 had no any legal authorities to act the way they acted, only the Appellant herein has the legal capacity to act upon the deceased properties. 2 The Counsel submitted further that, the Appellant and his relatives acknowledged their mothers act of giving the Respondent the piece of land so that he can stay for sometimes though she had no capacity to do that, she was their mother and there was no problem of what she was doing. The Counsel for the Appellant submitted that, in 2004 the Appellant and his relatives authorised PW2 to make simple agreement with the Respondent which was witnessed by PW3 who was the hamlet chairman, arguing that It was at this time when the Respondent was notified that he has to stay at the land in dispute for sometimes as it was depicted in exhibit B-2 (the agreement). The Counsel complained that the tribunal disregarded the said agreement on the explanation that the Respondent claimed to have been forced to sign while no any legal action was taken by him regarding the alleged coercion. For the second ground, the learned Counsel for the Appellant submitted that the evidence of the Respondent was contradictory to itself. The Respondent said they were given the land also, he said they did apply in 1996 and given the land in writings in 1999 by Belekumana but he failed to tender the writings to assure the court. He submitted that his failure brings some doubts. .3 The learned Counsel submitted that, the Respondent did not tender any minutes stated to have been bordered by DW3. He stated that all the Respondent's colleague who purported to be given the land at the same time, have quitted except for him. In response, the Counsel for the Respondent submitted that the first ground of appeal is devoid of merit. He argued that the Appellant does not dispute that their late mother disposed off the land to the Respondent and four others. Five years later the Appellant sister enter into lease agreement with the Respondent concerning the suit land, but all transaction were null and void because the administrator was yet to be appointed. The administrator was appointed 32 years since their father's demise. That, there is no any dispute that Belekumana Mdamu and Bartazar Mkasange were husband and wife, and there was no any proof that the land was not jointly owner by the two. The Counsel for the Respondent insisted that, there was no need for the late Belekumana Mdamu to be formerly appointed administratrix of the estate of her late husband as she was the only surviving joint owner of the suit land. The Counsel submitted further that, it would be different if the land in dispute was registered in the name of the deceased only, but it was owned as matrimonial property, after the deceased death it 4 become solely the property of the surviving owner. It is the Counsel opinion that if there is any law which would not allow Belekumana Mdamu to do anything regarding the property including the land, such law would be repugnant and absurd. The Counsel insisted that the disposition of land by the widow of the deceased to the Respondent was lawful, citing the provision of section 16(a) of Cap 352 Revised Edition 2019 (sic, 2002) {supra). In relation to the agreement (exhibit B2) which the Appellant maintained that it was a lease agreement, the Counsel referred this court at clause 4 of the said agreement and added that at the time when the agreement was entered, the Respondent house was already erected at the suit land for five years. It is the Counsel opinion that the agreement was an afterthought and the Respondent was not a free person when he signed it, he was further allowed to build a permanent structure. The Counsel believes that the dispute arose 20 years after the Appellant (sic, Respondent) house had been constructed and not two years after the demise of Belekumana, arguing that before her demise all, was well. The learned Counsel submitted that, there is no dispute that Belekumana disposed the suit land to the Respondent and four others, one of them was compensated TZs 700,000/= for the redeemed land. 5 The learned Counsel believes that all doctrine of land possession to wit adverse possession and long prescription operate against the Appellant. The learned Counsel argued that had it not been the fact that the Appellant was appointed as an administrator of the estate of their late father in 2019, the suit was hopelessly time barred. He submitted that the evidence of the Respondent was far more credible than that of the Appellant. As for the second ground, the learned Counsel for the Respondent conceded a fact that before the trial tribunal the Respondent did not produce the document which proves that the Respondent was given the land by Belekumana. The learned Counsel for Respondent heaped blame to the learned Counsel for Appellant for objecting its admission on technicalities, adding that the Appellant is estoped from raising the question of adverse inference. As for the issue of discrepancy between the Respondent and DW3 the Counsel for the Respondent submitted that, his client meant currently he is the only one permanently living on the suit land, because DW3 testified that he is living in Dar es Salaam but he regularly visit to his house at Maweso Village which border that of the Appellant. 6 Going through the record of the trial Tribunal and the decision entered in particular at pages 8 and 9, the trial Tribunal considered the evidence of the Appellant and his witnesses. After an assessment the trial Tribunal ruled that the Appellants evidence was weaker compared to that of the Respondent, citing contradictory to what the Appellant pleaded in his pleadings, also the Appellant concealed some crucial facts or information regarding to what transpired on the suit land prior the agreement dated 11/06/2004, exhibit B-2. The Appellant claimed that the Respondent was given 1A acres of the land. During the hearing the Appellant testified that the Respondent expanded the land he was given daily but he did not specify the size the Respondent increased. Neither the Appellant nor his witnesses disputed a fact that the Respondent and four others were allocated the land in late 1990,s by the Appellant's mother immediately after the demise of the Appellant's father. However, the Appellant and sibling come up with an argument that the act of their mother to allocate the land to the Respondent and his colleagues was illegal. It is to be noted that the Appellant was bringing a confusion to his claim by attempting to bless and legalize an agreement, exhibit-B2 executed by his sister (PW2), at the same time dishonoured transactions of the late Belekumana. 7 Be as it may, it is evident from the record that, the Respondent have been in Occupation of the land in dispute for over 23 years counting from 1996 to 2019 when the Appellant sued the Respondent. According to the Respondent, he completed the construction of his permanent residential house on 2/11/1996. Throughout this period, the Respondent have been in continuous use and uninterrupted possession of the suit land in question. The Respondent who has been enjoying the rights over the suit land for a long time, is by operational of the law accorded a recognition of adverse possession. See item 21 of the Schedule to the Law of Limitation Act [Cap 89 Revised Edition 2019]. Therefore, the first ground of appeal has no merit. As for the second ground of appeal, arguably the Respondent evidence was contradictory in that at first he alleged that he was invited by the late Belekumana to apply for land for constructing a residential house and commercial, at the same time said the late Belekumana advised and persuaded them to construct houses on her land, meanwhile the Respondent alleged to have visited to the late Belekumana seeking for land. Again the Appellant alleged they were given the land in dispute by a written application which alleged was answered by Belekumana, but no any document was tendered to prove the same. It is a cardinal rule 8 that normal discrepancies are bound to occur in the testimonies of the witnesses due to the normal errors of observations such as errors in memory due to the lapse of time or due to mental disposition such as shock and horror at the time of occurrence. But only the contradictions which will affect the gist of the case can be regarded. This was decided in the case of Hamis Mbwana v. The Republic [2017] TLR 160. From the record, the contradictions analysed by the Appellant are minor which cannot go to the root of the case. In fact, the Respondent was attempting to lay a foundation the way how they get their land and at any rate cannot change a fact that the Respondent and colleague were given the land by one Belekumana and the Respondent herein stayed in a disputed land for more the 12 years undisturbed as afore said. At this juncture I find no reason to fault the trial Tribunal decision. The decision of the trial Tribunal is hereby upheld. Appeal dismissed. I make no order for costs, given the circumstances of the facts of this case.