fatuma iddi kondo vs mwatesi jumanne kondo and others 2020 tzhclandd 140 29 may 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 127 OF 2018 (Originating from Kinondoni District Land and Housing Tribunal as per Chenya, Chairman in Land Application No. 497 o f 2013) FATUMA IDDI KONDO................................................ APPELLANT VERSUS MWATESI JUMANNE KONDO.............. ................1st RESPONDENT YAHYA JUMANNE KONDO.................................... 2nd RESPONDENT HALIMA JUMANNE KONDO.................................. 3rd RESPONDENT RAMADHANI JUMANNE KONDO............................4™ RESPONDENT JUDGMENT I. MAIGE, J The main question which the District Land and Housing for Kinondoni ("the trial tribunal"), was called upon to resolve, was whether the appellant herein was the lawful owner of a house located at Hananasifu, Kinondoni within Dar Es Salaam Municipality ("the sujLproperty"). The appellant's basis of the claim at the trial tribunal was that the suit property was conveyed in her favour, on the unspecified date and year, by her aunt, by way of gift. The claim was vehemently denied by the respondents in the joint written statement of defense wherein they asserted that the same belonged to their late father Jumanne Kondo who purchased it way back in 1987. The trial evidence was based on the same controversial propositions. In her oral testimony as PW1, the appellant claimed that the suit property was gifted in her fovour by her aunt one Khadija Mwinyi in 1993 and subsequently registered in her name. She did not however tender any evidence to establish the alleged gift. Nor could she produce any evidence to effect that her said aunt had any title on suit property. She should have. Mariam Idd Kondo appears to be the blood sister of the appellant. She testified as PW3. It was her evidence that, the suit property was gifted to the appellant by her aunt way back in 1993. Just as the appellant, PW2 could not dare exhibit any evidence of title of the said aunt on the suit property. Neither could she produce any document evidencing the alleged conveyance. Equally so for Swedi Hamis Mfalikwa who testified as PW2. Indeed, PW2 does not claim in evidence to have witnessed the conveyance under discussion. It was not, according to his testimony, until in 1993 when what he calls HCRB protect was being carried out that, PW3 became acquiescent of the fact that the suit property belonged to the appellant. Yahya jumanne Kondo, the third respondent, testified as DW3. It was his evidence that the suit property belonged to their father one Jumanne Kondo who expired in 1994. Upon his death, and when the dispute with the appellant arose, testified DW1, they initiated probate and administration proceedings with Ndungi Nyanza being appointed administrator (Dl). He testifies further that, since the death of their father to 2002, the suit property had been in occupation of their sister. From 2002 to date, he further said, the suit property has been in occupation of tenants at the respondents' instance. He denies the proposition that the suit property had ever been owned by the appellant's alleged predecessor in title. The next defense witness was NDUNGI NYANZA MAULID whom DW1 claims that he was the administrator of their father's estate. In his evidence, DW2 told the trial tribunal that the respondents' father was his brother. He confirms that he expired in 1994 and that it was he who was constituted his administrator as per exhibit Dl. He confirms that the suit property belonged to the late Jumanne Kondo who purchased it from Jongo A.S. Zarara in 1987. He produced, which was admitted as D2, the sale agreement to that effects In his judgment, the trial chairman having examined the rival evidence answered the issue in favour of the respondents. He dismissed the suit and declared that the suit property belongs to the respondent. The rationalization of his decision is expressed at page 6 of the judgment as follows:- It is the cardinal principle o f law that he who alleges must prove. In the instant suit the burden o f proof lies on the Applicant. The evidence which has been adduced on the part o f the Applicant does not clearly demonstrate how the Applicant became the owner o f the suit house. The claim that, the suit house was gifted to her by her aunt are not supplemented by any other evidence. It is not shown by the Applicant if she made any appreciation after being given the suit house. It was held in the case o f Hemedi Saicfi vs. Mohamed Mbilu (1984) TLR 113 inter alia, that a party who adduces heavier evidence must win the case. In this instant case, the defense side adduced heavier evidence than that has been testified by the Applicant's side. This appeal is an attempt to fault the above factual finding of the trial tribunal. The three grounds of appeal enumerated in the memorandum of appeal, I have no doubt, are based the correctness of the assessment of evidence by the trial tribunal. Advocate Verycah R. Gossi presented the written submissions in support of the appeal whereas his learned friend advocate Ngalaba presented the same for the other side of the story. I recommend both the counsel lor their wealthy submissions. They have been duly considered in this my judgment. In his submissions, Mr. Gossi concurrently argued the first and third grounds of appeal. In his view, there was sufficient verbal evidence that, the suit property was conveyed to the appellant and subsequently registered by HCBC Project in 1993. Mr. Ngalaba submitted otherwise. With respects, the submissions in support of the appeal is unimpressive if I can say. The counsel does not make any reference to the evidence on the record to establish title of the appellant's aunt on the suit property. There is, as well, no any reference in the submission of there being concrete evidence of the alleged registration of the suit property in 1993. Neither is there any reference of a probable evidence of the alleged verbal conveyance, if at all it was pleaded, which is not. The respondent though not in a burden of proof, produced a purchase agreement in exhibit D2 which would suggest that their late father had title on the suit property, In the circumstance, I do not think that, the mere verbal conveyance relied upon by the appellant and his witnesses of the suit property to the appellant would operate as to contradict the said piece of evidence. In my humble submission, with the burden of proof being on the appellant, it cannot be said that, he did discharge the same in the balance of probability or at all. The submission that exhibit D2 was a mere paper is, with all respects to the appellant and his counsel, worthless. Exhibit D2, contrary to the counsel's submissions, bears signatures of both the vendor and purchaser. It cannot, by any standard, be considered weaker than the unsubstantiated 5 verbal assertion by the appellant and his witnesses. In the circumstance, I do see no basis to fault the well reasoned decision of the trial tribunal. In my opinion therefore, this appeal is devoid of any merit. It is accordingly dismissed with costs. It is so ordered. r 6 Date: 29/05/2020 Coram: Hon. C. Tengwa - DR For the Appellant: Present For the 1st Respondent^ For the 2nd Respondent - Present For the 3rd Respondent For the 4th Respondent RMA: Bukuku COURT: Judgment delivered in the presence of both parties.