francisco hhando the administrator of the estate of the late hhando munet phillipo munet lorry vs fausta thomas 2023 tzhc 21188 1 september 2023

IN THE HIGH COURT OF THE UNITE REPUBLIC OF TANZANIA (ARUSHA DISTRICT REGISRTY) AT ARUSHA LAND APPEAL NO. 173 OF 2022 (C/FThe Decision of the District Land and Housing Tribunal for Karatu in Land Application No. 122 of 2017) FRANCISCO HHANDO (the Administrator of the Estate of the late Hhando Mu net @ Phillipo Munet Lorry APPELLANT VERSUS FAUSTA THOMAS RESPONDENT JUDGMENT 30/05/2023 & 31/08/2023 BADE, J, The controversy in the parties’ dispute is centered in the disputed land located at Qangari Hamlet, Upper Kitet Village within Karatu District in Arusha Region. The applicant by then who is a deceased now is said to have agreed to allocate part of his land (two acres) to the respondent who is the wife of his late son to use it for three years. Page 1 of 15 The said agreement emanated from a previous dispute arising from the fact that the Respondent claimed ownership of the land (five acres) which came to her through customary inheritance as it first belonged to her mother-in-law through an oral will. Previously, it was alleged that the late Hhando had distributed his land intervivos between two families of his wives one parcel for each family. So the late Hhando in his bid to reclaim this land, allegedly agreed with the respondent to allow him the use of the remaining 5 acres of land. According to the Appellant who is the administrator of the estate of the late Hhando, surprisingly when he wanted to distribute the land to the rightful heirs, he alleges that the respondent refused to vacate the land claiming that she is the owner of the whole of the disputed land. Thus, the present matter, which traces its origin from the District Land and Housing Tribunal for Karatu at Karatu ("trial tribunal”) where the appellant had sued the respondent herein and lost. The trial tribunal heard the parties and eventually, on 31/8/2022 the tribunal gave its verdict in favour of the respondent as the rightful owner of the suit land. The trial tribunal's decision aggrieved the appellant who preferred to challenge the same to the court by way of an appeal armed with seven (7) grounds of appeal to wit: 1. The trial chairman of Karatu District Land Housing Tribunal erred in Law and facts by composing a judgment that interfered with the decision of Karatu Primary Court while knowing the tribunal had no jurisdiction to do so. 2. The trial Chairman erred in law and facts by disregarding the evidence of AW1, AW2, and AW3 and on authenticities of the documentary evidence marked Pl, P2, P3, P4, and P5. 3. That, the trial Tribunal erred in law and fact and totally misdirected himself on the principle of law, based on the Law of Limitation Act, Cap 89 R.E 2019, 1st Scheule Item 22 by not affording parties the opportunity to address the issue of limitation. 4. That, the trial tribunal erred in law and fact by not recording in the tribunal proceedings the assessor's opinion contrary to section 23 (1) and (2) of the Land Dispute Courts Act, Cap.216 R.E 2019. 5. That, the trial tribunal, erred when it failed to analyze the evidence from both sides and, as a result, delivered an erroneous decision. 6. That, the trial tribunal misdirected itself and wrongly applied and invoked the principle of adverse possession in favor of the respondent contrary to the evidence adduced at the trial. Page 3 of 15 7. That, the trial chairman erred in law and fact by allowing the assessors to cross-examine witnesses instead of directing them to ask questions for clarification contrary to the law. Before this court, both parties appeared in person, unrepresented. The hearing was orally proceeded with. Submitting in support of the application, the respondent argued that it was wrong for the District Land & Housing Tribunal to interfere with the decision of the Karatu Primary Court in the Probate Case. He submitted further that when he filed a petition to be granted administrator of the estate of the late Hhando Munet the respondent filed an objection, however, her objection was dismissed. Thereafter, he was appointed an administrator, where he distributed the properties to the heir including the respondent who was given a two-acre farm, a house of 22 iron sheets, an iron sheet kitchen, 15 goats, and 11 cows. Thereafter, an inventory form was filed but the respondent herein was unhappy with the said distribution and kept interfering and disturbing those who were allocated part of the land in the estate. This is when he was advised to file a case at the District Land and Housing Tribunal (trial tribunal). He submitted further that the disputed land that was given to the respondent was part of the land of the late Hhando Munet. Page 4 of 15 Responding to this ground the respondent submitted that, as she was given the land by the trial tribunal, she finds no need to file an appeal and that she does not understand why the appellant herein is still pushing her around. She contends she filed an objection at the Probate Court but the same was dismissed, but the District Land & Housing Tribunal was able to appease her. Regarding the second ground of appeal, the appellant submitted that the evidence of AW1, AW2, and AW3 together with documentary evidence from Exhibits Pl, P2, P3, P4, and P5 were not considered by the trial tribunal as he was appointed as administrator of the estate. He argued that the respondent mixed matrimonial issues and probate issues and she has already received her share and signed the agreement. Responding to this ground, the respondent submitted that she had never received anything from the appellant as all the properties belonged to her late husband. She argued further that her husband inherited the properties from his late mother who inherited from her late husband. Previously, she explained, her father-in-law sued her for two acres, but the matter abated without it being determined on its merit as the father- in-law passed away. Further, a probate for her late husband and her mother-in-law was never filed as she inherited under customary law. Page 5 of 15 Arguing the 3rd ground of appeal, the appellant submitted that it was wrong for the District Land & Housing Tribunal to hold that the respondent stayed on the disputed land since 1984 without giving the parties the right to be heard to explain if the respondent was really in a disputed land since 1984. Further to that when the late Hhando Munet died in 2011 there was already a dispute between him and the respondent. Thus, the argument that there was no dispute is lame and unfounded. Responding to this ground, the respondent retorted that she is not aware of the issues that happened in 1984 and that she only got married in 1998 at which point she became aware that her mother-in-law was given the farm in 1984 by her husband intervivos, and there is the evidence of the will of the mother-in-law, which bequeathed that said land to her late son, and which would now come to pass to her own sons. She does not believe the Probate Court had the right to distribute this property. On the 4th and 7th grounds of appeal, the appellant complained that when determining the dispute, the honorable Chairman was supposed to be sitting with assessors. However, despite sitting with these assessors, their opinion was never considered nor did they feature in the proceedings except in the composed judgment. Further, they were not informed about /y Page 6 of 15 the death of one of the assessors Mr. P. Mushi until the day of the judgment when they knew that he had passed away. Responding, the respondent admitted her knowledge that when the assessor Mr. P. Mushi died, they replaced him with another assessor, and it was so informed by the tribunal chairperson for which she finds no issue. Regarding the 5th ground of appeal, the appellant told the court that the evidence was not properly evaluated resulting in an erroneous decision. He argued further that if the late Hhando Munet divided the farm to his wives as alleged by the respondent, why then did he file a case against the respondent herein? As for the issue of there being a Will, the same was objected to for failure to meet the standard required by the law for the Will to be legally recognized. He prayed for the appeal to be allowed and the decision of the trial tribunal be quashed and set aside. Responding to this ground, the respondent maintained that the Will of her late mother-in-law had never been objected to in court. She insists that the Will was submitted in court as evidence in support of her objecting to her properties being included in the estate of the late HHando Munet. It was not for the purposes of either contesting or executing the said Will. She prayed for the appeal to be dismissed with costs. In a brief rejoinder, the appellant insisted that the respondent found them on their communal land when she was married, and now she is humiliating them by trying to disinherit them of their father's lawful estate. More to that, he informs the court that his sister-in-law is no longer a widow as she is already married to another person. Having heard the rival submissions from both parties in support and against the appeal, this court will now determine the issue of whether the appeal is meritorious. Deliberating on the 1st ground of appeal, which is based on the complaint that it was wrong for the District Land & Housing Tribunal to interfere with the decision of the Probate Court while the properties given to the respondent were already distributed to the rightful heirs. On her side, the respondent argued that she was given the disputed land legally by the District Land & Housing Tribunal. Having revisited the records of the trial tribunal this court noted that it is untrue that the District Land & Housing Tribunal interfered with the decision of Probate Court that is Karatu Primary Court. District Land & Housing Tribunal only deals with issues concerning Land and its ownership, and while determining those matters, it only deals with who is the lawful owner based on the evidence submitted before it. On the other ige 8 of 15 hand, Karatu Primary Court which was a probate court had no jurisdiction to deal with the dispute concerning land, it could only exercise its powers in appointing an administrator of the estate of the late Hhando Munet and order the administrator to distribute the property as required by the law. Similarly, whatever dispute arising out of the property distribution on the beneficiaries mentioned to be of the deceased, the District Land & Housing Tribunal would have no jurisdiction to determine it as it did. Therefore, this ground is dismissed for want of merit. On the second ground of appeal, the appellant complained that the evidence of AW1, AW2, and AW3 together with exhibits Pl, P2, P3, P4, and P5 were not considered by the District Land & Housing Tribunal as he had already distributed the properties of the deceased, and the respondent herein was simply making trouble for everybody else. On her side, the respondent argued that nothing was distributed to her and questioned how could one be handed what was already hers. Upon revisitation to the records of the trial tribunal, this court noted that evidence of the appellant and his witnesses were considered together with their exhibits Pl which is the letter of administration granted to the appellant, P2 which is the Probate Court decision, P3 and P4 comprising of form no 5 and 6 of the Probate (collection of the properties and 'age 9 of 15 distribution/inventory), and P5 which is the agreement between the Respondent and the late Hhando Munet. However, the evidence submitted by the respondent was heavier than that of the appellant and his witnesses which is why the respondent was declared the lawful owner. In further scrutiny of the exhibits provided in the District Land & Housing Tribunal and considered by the hon chairman, they all point to the probate issue, and none of which are digging into the ownership of the property, since the issue in contest was ownership of the distributed land, it is my firm view that the Appellant was not able to convince the trial tribunal in his evidence that the said suit land belonged to their late father, and as such he derived the right over the land and which he would have had the right to distribute the same to the heirs. Arguably, for a person to be able to distribute the properties to heirs, it has to be ascertained that the said properties are of the said deceased person and none other. In other words, one can not distribute or give out something that is not capable of being given out in distribution as it belongs to another. Considering the third and sixth grounds of appeal, the appellant grieved that the trial tribunal erred in law by determining the issue of adverse possession without giving them the right to be heard. On her side, the Page 10 of 15 respondents argued that when she was married in 1998, she found her mother-in-law on the disputed land and she told her that she was given the said land by her husband. So on this one, the argument is raising a new issue of adverse possession without giving parties the right to be heard. I am fully aware of the legal position that whenever a Judge / Magistrate or Chairman raises a new issue he/she is required to give parties the right to be heard. As it was held in the case of Abbas Sherally vs Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 133 of 2002 (CAT-Unreported), that: " That right is so basic that a decision which is arrived at in violation of it will be nullified even if the same decision would have been reached had the party been heard because the violation is considered to be a breach of the principles of naturalJustice." However, in the case at hand, the trial Chairman did not raise a new issue of adverse possession to declare the respondent as the lawful owner of the disputed land. The trial Chairman only stated that "Aidha hakuna ubishi kwamba mdaiwa na mme wake wamekuwa wakiishi katika eneo la ekari 5 amba/o mama yao alipewa tokea 1984 na hata kab/a ya kifo chake mwaka 2010 alimpa eneo /a shamba na nyumba mkwewe amilikT , Page 11 of 15 I do not think, in whatever literal translation of the holding of the Chairman above quoted that he did raise a new issue, and use the same to finalize the matter between the parties. In my considered view as per the judgment of the District Land Housing Tribunal, the chairman stated that the respondent used the disputed land with her late husband, and thereafter with her mother-in-law, and even after her demise, for a long time without any disturbance. My further views are that she was able to prove through customary ownership the land which was bequeathed to her and declared her the lawful owner. In the case of Edward Ntinkule vs Evarist Ntafato, Misc. Land Appeal No. 11 of 2022, this Court sitting in Kigoma held through Mlacha, J ".... if the property, and land in particular, has already been distributed to heirs under customary law and there has never been a resistance from any member of the clan/family for a considerable period of time, the one who is holding the land is presumed the owner............ As the land does not belong to the deceased anymore...." The learned Judge explained further (a view to which I wholly subscribe) that the rules allow the distribution of the deceased estate customarily after payment of debts. They allow heirs to inherit through the clan. This means that a person can inherit land under customary law and become an owner. See Local Customary Law (Declaration) Order, Government Notice (GN) 279/1963, which also recognizes customary inheritance. Thus, the 3rd and 6th grounds of appeal are dismissed for want of merit. In consideration of the 4th and 7th grounds of appeal, the appellant complained that the opinion of the assessors was not considered by the trial tribunal and that the recorded opinion was never read aloud prior to the judgment which is contrary to Section 23 of "Sheria ya Usuluhishi wa Mabaraza ya Ardhi". However, having revisited the records of the trial tribunal this court noted that on 16/ 8/2022 the opinion of the assessors was read aloud before scheduling a date for judgment. Further, even in composing the judgment the opinion of the assessors were duly considered by the Hon. Chairman as evidenced on page 4 of the trial tribunal's judgment. Obviously, these grounds lack merit. Last but not least, on the fifth ground of appeal, the appellant complained that the evidence as adduced by both parties was not well evaluated and analyzed by the trial tribunal. He argued that if the late Hhando Munet distributed the land to his wives during his lifetime, why did he file a case against the respondent herein? He added that the will of the respondent's mother-in-law was prepared contrary to the law and the same should not be let to stand or be the basis of any court's decision. To her justification, Page 13 of 15 the respondent retorted that the Will was prepared by the Village leaders, and the same was never objected to in the court. Nor was the same brought in to be executed or even contested. After going through the records of the trial tribunal this court noted that the evidence of both parties was well analyzed and evaluated in the trial tribunal's judgment, see pages 2 to 5 of the hon chairman judgment. The allegation that the evidence was never analyzed simply because the appellant lost the case is baseless. Consequently, this ground too is dismissed for want of merit. In the final analysis, the appeal is hereby dismissed for want of merit. The decision of the trial tribunal is left undisturbed. It is so ordered. DATED at ARUSHA this 01st day of September 2023 A.Z. BADE JUDGE 01/09/2023 Page 14 of 15 Judgment delivered under my Hand and Seal of the Court in chambers, this 01st day of September, 2023 in the presence of both parties. A. Z. BADE JUDGE 01/09/2023 The right to appeal is hereby explained. A. Z. BADE JUDGE 01/09/2023 Page 15 of 15