LAND APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA LAND APPEAL NO. 161 OF 2022 {Arising out of Land Application No. 04 of 2014 before the District Land & Housing Tribunal for Babati at Babati) ELIZABETH LAWEI (As Administratrix of the Estate of the late JOSEPH URUGUTHU)APPELLANT VERSUS YONA HUMAY RESPONDENT JUDGMENT 03/04/2024 & 14/06/2024 BADE, J. The matter at hand commenced at the District Land and Housing Tribunal for Babati at Babati (herein referred to as "the tribunal"), vide Application No 04 of 2014 through the Judgment that was delivered on 29/02/2016 by Hon. T. J Wagine. The brief back ground leading to this Appeal from the record of this file is that the Respondent sued the Appellant together with one person who is not party to this Appeal before the Tribunal, claiming that they trespassed into his land measuring 8 acres located at Sangara Village in Babati District given to him by his father way back 1984. That, he used Page 1 of 17 the suit land up to 2013 when the Appellant and Ester Gobare who was the 2nd Respondent before the Tribunal claimed the suit land. The Respondent testified before the Tribunal that the Appellant cultivated 5 acres while Ester Gobare cultivated 3 acres which they used to cultivate with her husband before Ester invaded the said land. On the other hand, the Appellant claimed she got the suit land measuring 5 acres from her late father who bought the same from the Respondents father one Humay Gitasha by a head of cattle way back 1970. That, after the death of his father in 1977 he was handed over the land and used the suit land up to 1984 when the Respondent invaded the suit land and cultivated the same. That, they lodged a case before Babati Primary Court which was heard ex-parte, and they won. The Respondent appealed to the District Court and won the case in 1988. He was handed back this land and continued to use it up to 2013 when there was survey for customary rights of occupancy. Unfortunately he was not given a customary right of occupancy as the Respondent claimed to own the land, so he was given a number, that is No. 39/BBT/GNS 518 which represented the suit land. Ester Gobare who was the 2nd Respondent at the Tribunal claimed to have cultivated the 3 acres of the suit land from 1994 by leasing it from one Baraa Bomboo Page 2 of 17 and finally together with her husband one Petro Gitasham bought it in 1997. That, they cultivated the suit land to date. After a full, the trial chairperson of the tribunal ruled that the suit land was previously owned by the Respondent's father. The Chairperson further ruled that there is no sufficient evidence on the issue of whether the Respondent was given the suit land by his father or not. He also proceeded to rule that exhibit D2 shows that 3 acres was purchased by Petro Gitasham from Baran Bomboo on 24/2/1997, thus Ester Gabare who was the 2nd Respondent is not a trespasser to the 3 acres of the suit land. It was also his finding that the Appellant neither adduced evidence to prove that he bought the land from the Respondent's father nor tendered a sale agreement to that effect, hence the Appellant was declared a trespasser over the land measuring 5 acres while the Respondent was declared the lawful owner of the said land. The Appellant was aggrieved by the said decision, hence lodged the instant appeal through his legal representative on the following grounds; i. That the trial tribunal erred in law and in fact by deciding the dispute in favor of the Respondent while the Respondent lacked locus standi. Page 3 of 17 ii. That the trial tribunal erred in law and in fact in believing the evidence of the Respondent, then Applicant which was mainly on matters done by his late father completely rendering all what was adduced by the Respondent a hearsay evidence which is practically inadmissible hence the trial tribunal wrongly acted in believing such evidence. iii. That the trial tribunal erred in law and in fact in ignoring and or disbelieving the evidence of the majority of neutral witness at locus in quo in which 9 witnesses out of 14 who adduced evidence said that the five acres of land is the property of the Appellant as reflected on page 24, 25,26,28, 29, 30, 31 and 32 of the trial tribunal's typed proceedings. iv. That the trial tribunal erred in law and in fact in deciding in favor of the Respondent on the pretext that the Appellant did not produce the document of purchase between him and the Respondent's father in that he unreasonably ignored the evidence on record that the Appellant's father purchased the 5 acres from the Respondent's father one Humay Gitasha in 1970 by giving him a head of cow as reflected on page 13 of the trial tribunal's proceedings as such the sale transaction PagV4 of 17 between the Appellant and the Respondent was not documented. v. That, the trial tribunal erred in law and in fact in delivering the judgment after the death of the Respondent (Joseph Uluguthu) without adding his administrator who could receive the said judgment in place of the deceased person. This Appeal is disposed of by way of written submissions. The Appellant was represented by Mr. Ombeni Kimaro, learned advocate, while the Respondent enjoyed the legal service of Paschal Dagharo, also a learned advocate. Arguing the 1st ground of Appeal, Mr. Kimaro submitted that the tribunal had decided that the suit land belonged to the Respondent's father who is now deceased. Meanwhile, he notes, the Respondent is not an administrator of the estate of the late Humay Ghitasha hence he can not legally sue on behalf of the deceased because he is not appointed administrator. To support his position, he cited the cases of Swalehe Juma Sangawe (As administrator of the Estate of the late Juma Swalehe Sangawe & Another vs Halima Swalehe Sangawe, Civil Appeal No. 82 of 2021 (unreported) and the case of Peter Mpalanzi vs Christina Mbaruka, Civil Appeal / \Page 5 of 17 No. 153 of 2019 (unreported) and the case of William Sulus vs Joseph Samson Wajanga, Civil Appeal No. 193 of 2019. The counsel further added that DW1 testified before the tribunal that his father purchased the suit land from the Respondent's father with a consideration of head of cow. In his view, if the suit land was sold to the Appellant's father by the Respondent's father, then the Respondent sued a wrong person before the tribunal because the Appellant was not the administrator of the estate of his late father. To cement his position, he cited the case of Watena Ngamu vs Udahagu Gidua, Land Appeal No. 28 of 2011, and the case of Registered Trustees of SOS Children's Village Tanzania vs Ifenge Charles & 9 Others, Civil Application No. 426/08 of 2018. On the 2nd ground of appeal, Mr. Kimaro submitted that the Respondent testified based on what he heard from his father which is contrary to the provision of section 62 (a) (b) (c) and (d) of the Evidence Act, requiring the testimony to be direct. He referred this court to page 8-11 of the trial tribunal's proceedings. To buttress his position Mr. Kimaro cited the case of Jadili Muhumbi vs Republic, Criminal Case No. 229 of 2021. Page 6 of 17 Canvassing the 3rd, 4th and 5th grounds of appeal which he opted to submit in unison, Mr. Kimaro submitted that all witnesses testified that the suit land belongs to the Respondent. He referred this court to page 23, 24, 25, 26, 28, 30 and 31 of the trial tribunal's proceedings. Mr. Kimaro added that it is the principle of the law that the person whose evidence is heavier than that of the other one must win. Throughout the evidence before the trial tribunal, the Appellant proved that the suit land belongs to his father, and the tribunal did rule in favor 2nd the Respondent, meaning the allegation by the Respondent regarding the 3 acres was unproved since there was a sale agreement. Mr. Kimaro contended that picking from the false allegation as demonstrated by the Respondent to the 2nd Respondent, then the trial tribunal was supposed to draw inference against the Respondent regarding the Appellant. He insisted that the evidence of the Appellant was corroborated by that of the 2nd Respondent, and it was heavier than that of the Respondent. This is so despite the fact that there was no written agreement, it cannot be a justification for the trial tribunal to rule that the Appellant's father did not purchase the land in dispute from the Respondent's father. .Page 7 of 17 Moreover, the counsel for the Appellant submitted that the evidence from the record shows that there was no dispute between the Appellant's father and the Respondent's father when the Respondent's father was alive, which goes to prove that he sold the land to the Appellant, particularly because the Appellant was using the suit land when he was alive and he never interrupted them, cementing his position with the cases of Hamed Said vs Mohamed Mbiu [1984] TLR 113 and the case of Lukondo Luseke vs Shukrani Lusato, PC Civil Appeal No. 19 of 2019 (unreported). He insisted that the Appellant's case before the trial tribunal was heavier than that of the Respondent, and the tribunal manifestly erred in ruling in favor of the Respondent while the Respondent did not tender any documentary evidence to prove the ownership. Meanwhile, the tribunal subjected the Appellant to tendering a written contract and penalized her as if the law did not recognize an oral contract. Opposing and arguing ground 1, Mr. Dagharo picked on the issue of locus standi arguing that the trial tribunal was correct to hold and find that the Respondent had locus standi to sue the Appellant who was the first Respondent at the tribunal and Ester Gobare who was Page 8 of 17 the second Respondent, claiming ownership of the suit land measuring 8 acres, whereas 5 acres were invaded by the 1st Respondent and 3 acres were invaded by the second Respondent. He argues that when the Applicant sued the Respondents, he maintained that he is the lawful owner of the suit land that he obtained from his father while he was alive in the year 1994 as a gift sui juris out of love and affection and the same became the property of the Respondent herein. He referred this court to pages 1 and 2 of the judgment of the trial tribunal. In his view, it is clear from the record that the Respondent was claiming the ownership of land to himself and not on behalf of his deceased father as propounded by the Appellant's counsel, adding that the Land Dispute was filed at the Tribunal in 2014 when the Respondent's father was still alive. He intimated that while the matter was progressing at the Tribunal is when the Respondent's father became sick and passed away in 2015 before the matter pending at the tribunal was finally disposed. He insists that it is clear that the Respondent could not have claimed the disputed land of his father as argued by the counsel for the Appellant. That it is enough to say that the Respondent had locus Page 9 of 17 standi to sue claiming ownership of his land that he legally obtained from his father. Responding to the 2nd ground of appeal, Mr. Dagharo submitted that the trial tribunal was correct in believing the strong evidence of the Respondent. He pointed out that the evidence adduced by the Respondent or his witnesses was not hearsay evidence. He contends further that the Respondent's witnesses, that is AW3 and AW4 properly testified in favor of the Respondent that the Respondent was given the suit land by his father one Humay Gitasha while he was alive in 1984 while the Appellant and his witnesses failed to prove that his father bought the suit land from the Respondent's father in exchange with a head of cattle in 1970. That the Appellant also failed to produce documentary evidence that the purported land case was ruled in his favor as he alleged. Concerning grounds 3, 4 and 5 of the grounds of appeal, Mr. Dagharo argued that the trial tribunal was correct to hold in favor of the Respondent. In his view, there is no way the trial chairperson could have believed the mere statements collected at the locus in quo by the persons who were not witnesses during the trial. He insists that the trial tribunal was correct both in law and fact in holding in favor / Page 10 of 17 of the Respondent taking into account that the Appellant never presented documentary evidence on the purchase of the suit land other than presenting mere claims of exchange of a head of cattle by her father to the Respondents father, allegations that have no proof at all. Conversely, he found no error on the part of the trial tribunal in delivering its judgment after the death of the Respondent by then, Joseph Urughutu. In his view, doing such would not have affected the merits of any party to the suit. Presenting his rejoinder, Mr. Kimaro first established that the Reply Submissions by the Respondent's counsel were filed out of time, arguing that this is contrary to the order of the court, which was issued on 24/04/2023 scheduling the filing of written submissions. In his further argument, he maintains that the Appellant was ordered to file their written submission in support of the Appeal on 27/04/2023. The Respondent on the other hand was ordered to file Reply submission on 04/05/2023 and a Rejoinder was ordered to be filed on 10/05/2023. As it happens, the Respondent filed their reply submission on 05/05/2023 which is out of the time ordered by the court and without any prayer for enlargement of time from court. To support his position, he cited the case of Onesmo Nangole vs Dr. Page 11 of 17 Steven Lemomo Kiruswa & 2 Others, Civil Appeal No. 129 of 2016. That, the reply submission was filed contrary and beyond the order of the court hence the remedy of anything which is time-barred is dismissal, and failure to file submission on the time prescribed is equal to failure to defend oneself or failure to prosecute the case. He argued that since the court cannot issue an order of dismissal of submission in this circumstance, he prayed the court not to consider the reply submission filed out of time. Mr. Kimaro insisted that in the case of Onesmo Nangole (supra) the Court of Appeal struck out the Appeal for being filed out of time. In the alternative, and back in rejoining, Mr. Kimaro submitted that the Respondent's counsel is misleading the court in stating that there was a suit instituted before the Ward Tribunal while in the real sense, this suit has never been tried before any Ward Tribunal, and the first suit under it is Application No. 04 of 2014 which was filed before the District Land and Housing Tribunal of Babati. He referred this court to page 1 line 9 of the reply submission. Mr. Kimaro further argues that the Respondent's counsel misled this court further by stating that the Respondent's father passed away in 2015, and grounding this argument with the fact that by the time Application no. 04 of 2014 Page 12 of 17 was instituted, the Respondent's father was alive contrary to what the Respondent testified at the tribunal, when he told the tribunal that his father passed away in 2013. He pointed to page 9 of the trial tribunal's proceedings, insisting that Application No. 04 of 2014 was instituted after the Respondent's father had passed away. That, what the Respondent stated at page 9 clearly shows that the Appellant and her family started to use the suit land before the Respondent's father passed away. Mr. Kimaro insisted that the Respondent had no locus to sue on behalf of his father, supporting his position with the case of Karimu Shaibu vs Mussa Halfani Bahatisha [2016] TLR 421 and the case of Isack Stephen Mganga vs Joyce Derefa Machimu, PC Civil Appeal No. 48 of 2022. Moreover, Mr. Kimaro submitted that the Respondent's counsel relied on the testimony of AW3 and AW4, but none of them was a witness in the agreement between the Respondent's father and Joseph Urughutu, hence they knew nothing about the said agreement, arguing that the Appellant's witnesses testified before the trial tribunal on how the Appellant's father purchased the suit land from the Respondent's father, and DW1 tendered exhibit DI to that effect. Meanwhile, DW2 tendered a sale agreement exhibit DI to prove the Page43 of 17 same and DW3 testified that he witnessed the sale in 1970. That, all the witnesses testified on the existence of the oral agreement between Joseph Urughutu and Humay Gitasha with cattle as the consideration. In his view, he insists it was wrong for the trial tribunal to demand a written agreement while the oral agreement was established. After going through the record of this file and the rival submissions by the parties, the task before me is to determine an issue whether the trial tribunal made erroneous decision by declaring the Respondent a lawful owner of the suit land. In my mind, all the grounds of appeal points to the said issue, and as such, I shall address myself to the issue, and not the separate grounds of appeal. First and foremost, I am aware of the fact that this is a first appeal, and thus legally, this court is empowered to step into the shoes of the trial tribunal and re-evaluate and re-analyze the evidence so as to come up with its own findings. Conversely, I am inclined to step into the shoes of the trial tribunal for effect. It is an undisputed fact that the suit land was previously owned by the Respondent's father one Humay Gitasha. The Respondent claimed that he was given the suit land in 1984 by his late father. Going through the evidence of the PaW14 of 17 Respondent who was the Applicant before the trial tribunal, I could not find any proof on record of the Respondent's claim that he was given the suit land by his own father. In further analysis, none of his witnesses testified to the effect that they ever witnessed the late Humay Gitasha giving his land to his son who is now the Respondent. AW2 was categorical on his testimony that the suit land belongs to Humay Gitasha. AW3 who was a village chairman from 1977 to 1987 also testified that he knew that the land belonged to the Respondent's father, testifying further that the Respondent's father told him that he gave the said land to the Respondent. I am increasingly of the view that the said piece of testimony is hearsay, which cannot be relied upon particularly considering the fact that AW3 contradicted himself as he goes on to testify that he knew the land belonged to Humay Gitasha, and the one who was using it was the Applicant who is the present Respondent (see pp 10-11). AW4 who was the Respondent's last witness, had a contradictory testimony. She testified that the suit land belonged to "her brother of his father" Humay and he gave it to the Respondent. While being cross-examined by the 2nd Respondent, she stated that th&suit/fand / Page 15 of 17 belongs to Humay. See page 12 of the typed proceeding of the Trial Tribunal. By this type of testimonies, clearly it cannot be said that the claim by the Respondent that his father gave him the suit land was proved, albeit on the balance of probabilities, which is the standard of proof on civil matters. The same view was in fact taken by the chairperson of the tribunal under page 4 paragraph 2 of his judgment, but surprisingly, there was a change of heart at page 6 of the same judgment where the chairperson declared the Respondent then Applicant, the lawful owner of the suit land. Having said so, this Appeal is allowed and decision of the trial tribunal declaring the Respondent as the lawful owner of the suit land is quashed and set aside. It is so ordered. DATED at ARUSHA this 14th day of June 2024 A. Z. Bade Judge 14/06/2024 Page 16 of 17 Judgment is delivered in the presence of the parties / their counsel / representatives in chambers on the 14th day of June 2024. The right of appeal is explained. A. Z. BADE JUDGE 14/06/2024 Page 17 of 17