Ester Lukila v Francis Godwin Lukila Jgt

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MISCELLANEOUS LAND APPEAL NO. 000026201 OF 2023 ESTER GODWIN LUKILA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS FRANK GODWINI LUKILA .............................. RESPONDENT / DEFENDANT JUDGMENT P. R. KAHYOZA, J, The parties herein, are siblings whose father, Godwin Lukila, died on 28/12/2021. The Appellant was then appointed the Administratrix of the estate of their late father. Discharging her duties as an Administratrix, the Appellant enlisted, among others things, plots No. 401 situated at Murubona, Block ‘N’ as part of the deceased’s estate subject for distribution to the heirs. The respondent contested this step at the District Land and Housing Tribunal (DLHT) for Kasulu claiming that the plot was his property gifted by the deceased in 2013. The DLHT declared the respondent as the legal owner of the suit plot. Disgruntled by the judgment and decree of the DLHT the Appellant has lodged the present appeal to challenge the decision of the DLHT. She is armed with three grounds which are reproduced here below: 1. That, the DLHT chairperson erred in law and facts by awarding the 1st Respondent to be the lawful owner of the plot No.401 Block ‘N’ Murubona, while no proof of ownership was advanced by the respondent during trial. 2. That, the DLHT chairperson erred in law and fact when ignored the facts that the respective plot formed part and parcel of the deceased’s estate vide Minutes of the family meeting, probate judgment no. 12/2022 Kasulu Urban Primary Court and Reconciliation no. 25/2022 Murubona Ward Tribunal. 3. That the DLHT chairperson erred in law and facts when ignored strong evidence and testimonies of Appellant witnesses DW1, DW4 and DW5 who proved the suit plot belonged to the deceased. At the hearing, the appellant was represented by Mr. Kalimunda Yugalila, learned advocate, while the respondent stood unrepresented. Page. 1 Submitting on the first ground Mr. Yugalila stated that the DLHT erred in holding that the 1st Respondent is the lawful owner of the suit land because there was no evidence to support that holding. It was his contention that the DLHT erred when it held that the late father of the respondent offered the suit land to the respondent as a Deed of Gift vide Land Form No. 35, while the said land form was not admitted in evidence. In other words, Mr. Yugalila was of the firm view that in its judgement, the DLHT relied on the document that was not before it. To substantiate and bolster this ground the counsel for the Appellant invited this Court to make reference to the case of Nitak Ltd vs Onesmo Claud Njuka, Ciil Appeal No. 292 of 2018 in which the case of Abdallah Abbas Naji vs Amin Ahmed Ali [2006] TLR 55 was cited with approval. In these two cases the court held that annextures to the plaint are not exhibits in evidence, and as such they cannot be relied upon as evidence and cannot be the basis of a decision. He also made reference to Crescent Impex (T) Ltd vs Mtibwa Sugar, Civil Appeal No. 455/2020 and Subri Affidh Khalfan vs Zantel Zanzibar, Civil Appeal No. 47 of 2009 (CAT). According to Mr. Yugalila sections 110 and 111 of the law of Evidence Act [CAP 6 R.E 2019] requires that he who alleges must prove. That it was upon the respondent to prove that the suit land was given to him by way of deed of gift. As for the second ground, Mr. Yugalila stated that the evidence of DW3, Rashid Juma, was never considered. The said witness clearly shows that the late Godwin Lukila owned the land in dispute since 1982. Referring to the family meetings, Mr. Yugalila stated that the respondent never objected to the issue of ownership as reflected in the minutes, Exhibit D1, which shows that the land in dispute belonged to their late father and the respondent never challenged the position. On the third ground Mr. Yugalila was of the opinion that the trial tribunal failed to consider the evidence of DW5, the son of the late Damian Lukila, who knew the suit land was the property of the late Damian Lukila. On his part, the respondent challenged the first ground of appeal by submiting that the DLHT considered his evidence and the deed of gift, on the balance of probabilities. That he could not tender the original deed of gift because it was tendered at the District Court in a probate cause no. 12 of 2022. He also stated that the PW2 gave cogent evidence to prove that he was given the suit land by way of a deed of gift. On the second ground the respondent stated that it concerns a probate matter and the alleged meeting never existed and he was not invited in the second meeting. Finally, on the last ground the respondent submited that the witness in question, DW5, never testified that the land belonged to his late father. He further stated that all witnesses testified in relation to probate matters and the evidence of DW1 contradicts that of DW3 and again the evidence of DW3 contradicts that of DW5. In his brief rejoinder for the Appellant, Mr. Yugalila reiterated that no deed of gift was admitted in evidence neither a letter requesting the District Court for the original document was tendered at DLHT. Page. 2 Mr. Yugalila further stated that the respondent has never challenged that the land in dispute belonged to his late father and DW5 never said the respondent is the owner of the suit land. As for the other witnesses they never contradicted each other because they never said the suit land belonged to the respondent but he was staying in the land as a licensee. Briefly put, these were the submissions for and against the appeal. I will now move to determine if the appeal before me is merited based on what has been submitted both by the Appellant and Respondent. As for the first ground the appellant concern is that no proof of ownership was advanced by the 1st respondent to be declared the lawful owner of the suit land by the DLHT. In other words, the appellant argues that the DLHT for Kasulu relied on a document, the deed of gift, which was never admitted in evidence. I have taken the trouble to go through the DLHT proceedings and the judgment, particularly on the issue of deed of gift by way of Land Form No. 35. Page 5 of the typed proceedings from the DLHT depict a ruling by the chairperson rejecting to admit the deed of gift/Land Form No. 35 as an exhibit to the Respondent’s (the Applicant by then) evidence. It would appear however, this same document that was termed inadmissible, forms the basis of the decision of the DLHT. The learned chairperson makes reference to the rejected deed of gift/Land Form No. 35 in his deliberations. Page 10 of the judgment reads; “Katika kuamua mvutano huu, awali ya yote hakuna ubishi kuwa marehemu aliwahi kuandika deed of gift na kusaini fomu ya ardhi Na. 35 akimgawia Frank kiwanja Na. 401 tangu mwaka 2013. … Hoja za DW1 kama vile kukosa muhtasari kwa marehemu kumpa Frank, kutopinga kiwanja hicho kisiorodheshwe katika mali za marehemu, na ripoti ya kamishna kutoonesha Frank ndiye mmiliki haziondoi ukweli mwaka 2013 marehemu alimpatia kama zawadi kiwanja Na. 401.” The excerpt above clearly shows that the chairperson acknowledged that the deceased, Godwin Lukila, once wrote a deed of gift and signed Land Form No. 35 gifting the Respondent plot No. 401 since the year 2013. I believe it was wrong for the DLHT to treat such a deed of gift/ Land Form No. 35 as evidence. Since it had rejected its admissibility, it not open for him to consider it in any way whatsoever. It lacked evidential value. It was not before him at all. In the case of Shemsa Khalfa And Others vs Suleiman Hamed Abdalla, Civil Appeal No. 82 of 2012 (Unreported) as cited in Crescent Impex (T) Ltd vs Mtibwa Sugar, Civil Appeal No. 455/2020, the Court of Appeal had this to say; “At this juncture, we think our main task is to examine whether it was proper for the trial court and other subsequent courts in appeals to rely upon, in their judgments, the said document which was not tendered and admitted in court. We are of the considered opinion that, it was improper and substantial error for the High Court and all other courts below in the case to have relied on a document which was neither tendered nor admitted in court as exhibit. We hold this to be a grave miscarriage of justice.” Page. 3 Now, in the absence of the deed of gift or Land Form No. 35, I do not see anywhere in the proceedings that the Respondent has sufficiently established that he is the lawful owner of the suit land. Inversely, this suggests that the decision of the DLHT was erroneous because it was based on evidence that was inadmissible, and which was never admitted for that matter. With that in mind, I would proceed to say that the first ground is merited. Now, as it is the remaining two grounds also evolve around the question of ownership of the suit land. I am however of the firm view that determination of the first ground suffices to dispose of the entire appeal. In that case therefore, I do not find it necessary to test the remaining two grounds. With that said and done, I find the appeal with merit and the same is hereby allowed. The judgment and decree of the DLHT are hereby quashed and set aside. The suit land is declared to form part of the estate of the late Godwin Lukila. The Appellant shall have her costs. Right of appeal is dully explained. Dated at KIGOMA ZONE this 28th of October 2024. P. R. KAHYOZA, J JUDGE OF THE HIGH COURT Page. 4