frola mkondya vs abedi amani mbelengo 2023 tzhc 18077 6 june 2023

I THE HIGH COURT OF TANZANIA

MTWARA DISTRICT REGISTRY

AT MTWARA LAND APPEAL NO. 13 of 2021 (Originating from Land Appeal No. 82 of Mtwara District Land and Housing Tribunal for Mtwara) FROLA MKODYA..... ....... ..................APPELLANT

VERSUS ABEDIAMANI MBELENGO..............---------- .............RESPONDENT

JUDGEMENT 4/4/2023 and 6/6/2023 LALTAIKA, J.; The appellant herein FROLA MKONDYA is dissatisfied with the decision of the District Land and Housing Tribunal for Mtwara (the DLHT) adjudged in favour of the respondent. The impugned decision was an appeal from Temeke Ward Tribunal in Masasi District. It was delivered on the 13th day of April 2017 by S.H. Wambiii, learned Chairman of the Tribunal. The appellant has appealed to this court against the said decision of the first appellate tribunal on five grounds as reproduced hereunder: (i) That the Honourable Chairman of Mtwara District Land and Housing Tribunal erred in law and fact by upholding the decision of Temeke Ward, Tribunal (Masasi) against the appellant without considering that the disputed farm was a matrimonial property owned by the appellant and her late husband who passed away in 2009. Page 1 of 19 (ii) That the Honourable Chairman of Mtwara District Land and Housing Tribunal erred in law and fact by upholding the decision of Temeke Ward Tribunal (Masasi) against the appellant without considering that the appellant is an administrator of estate of the of the rate (sic!) Benson J Mkondya (Hi) That the Honourable Chairman of Mtwara District Land and Housing Tribunal erred in law and fact by upholding the decision of Temeke Ward Tribunal (Masasi) against the appellant and without considering that the farm was not sold by

the proper owner to the respondent (iv) That the Honourable Chairman of Mtwara District Land and Housing Tribunal erred in law and fact by upholding the decision of Temeke Ward Tribunal (Masasi) against the appellant without considering that the seller of the disputed land was not administrator of the estate of the rate (sic!) Benson J. Mkondya estate (v) That the Honourable Chairman of Mtwara District Land and Housing Tribunal erred in law and fact by upholding the decision of Temeke Ward Tribunal (Masasi) against the appellant without considering that the sale agreement was not signed by the one Salome Benson Mkondya who as per the saidjudgement is purported to sale (sic!) the disputed farm. (vi) That the Honourable Chairman of Mtwara District Land and Housing Tribunal erred in law and fact by upholding the decision of Temeke Ward Tribunal (Masasi) against the appellant basing on oral evidence adduced without having evidence from the court that alleged to make (sic!) the decision of revocation the appellant as administrator of the deceased Benson J. Mkondya (sic!) estate (vii) That the Honourable Chairman of Mtwara District Land and Housing Tribunal erred in law and fact by upholding the decision of Temeke Ward Tribunal (Masasi) against the appellant without considering that there was no letter ofAdministrator that was tendered during trial that verify Salome B. Mkondya was

appointed as administrator of the deceased Benson J. Mkondya. Before moving on to consider the above grounds of appeal; I am inclined to put on records that parties herein have been in court corridors for eleven years (2012 to 2013)1 Although this appeal is on Land and not Probate, it may be helpful to paint a bigger picture by putting into records as well that the spark that triggered the entire legal wrangle is (or rather seems to be) this authoritative (if not life changing) paragraph in Page 2 of 19 the Decision of the District Court of Masasi at Masasi in Mi sc. Civ. Application No. 8 of 2012 dated 16th day of April 2012: "I hereby disqualify Flora Joel Mkondya from being the administrator of estate of the late Benson Joe! Mkondya and appoint Salome Benson Mkondya the deceased's daughter to be the Administrator of estate of the late BJ, Mkondya this l&h day ofApril 2012." So much has changed since 2012. As the English would put it, so much water has passed "under the bridge" Some people were born and died. Rich, famous, and powerful people have come and gone. So many inventions in all areas of human endeavors have been invented and have since then become a part of our lives that we can no longer live without. However, one thing seems to have remained constant: the burning desire for the appellant (Mrs. Mkondya) to fight for her rights. The appellant is a widow. Her late

husband Mr. Mkondya, who was a civil servant, passed away in 2009. Mrs. Mkondya has been in court corridors roughly since that time. First as an applicant for letters of administration of estate of her late husband which she was duly granted on 15th day of July 2010 and later, from 2012 to date, pursuing her rights against the respondent Mr. Mbelengo. When the appeal was called on for hearing on 20/9/2022, the appellant appeared in person unrepresented. The respondent, on the other hand, enjoyed skillful services of Mr. Alt Kassian Mkali, learned Advocate. Mr. Mkali informed the court that there were several issues that would have triggered him to lodge a preliminary point of objection but since the respondent was not learned in law, he chose to let the court decide the Psge 3. of 19 appeal on merit. The appellant indicated her willingness to argue her appeal without a lawyer claiming that she knew the story better than anyone else. As a storytelling enthusiast, inspired by the above contention by Mrs. Mkondya, I invited parties to narrate to this court how they were connected to each other and what had transpired in the past decade. Since this is a court of record, I see no harm in sharing a part of the recording of the story "from the horses' mouth." Apparently, Mrs. Mkondya and Mr. Mbelengo had known each other since 1991. Mr. Mbelengo told the court that he had worked with

the late Benson Mkondya from 1991 to 2000 when he moved to Lindi Clinical Officers' Training Center (commonly referred to by the acronym "COTC"). Later, in 2004, Mr. Mbelengo was transferred to Iringa, but his family did not move along with him, and they decided to settle in Masasi. He knew the appellant, Mrs. Mkondya, because he had found her with the late Mkondya (as husband and wife) when he moved to Masasi COTC, where they were both teaching staff, and he was the boss (the late Mr. Mkondya was teaching while the respondent Mr. Mbelengo was his principal). The appellant, Mrs. Mbelengo started off by a brief but deep introduction. She chose to introduce herself as a resident of Madukahi Street, Kyela Town in Mbeya Region. She stated that her late husband, Benson Joel Mkondya, and herself had been married since 1987. Mrs. Mkondya narrated bitterly that as part of the estate of her late husband, she had received only TZS 6,000,000 shillings. She further stated, trying to hide some pain, that she had no: resentment with the respondent Mr. Mbelengo and Page 4 of 19 exchanged greetings with him whenever they met in Court. She would have passed Budha's philosophy that "holding onto anger is like drinking poison and expect the other person to die/' She chose to forgive and forget but not to forgo what she firmly believes to be her right. Mrs. Mkondya narrated that she currently

lives in Ruvu Street in Mikocheni, Dar es Salaam working as a house cleaner for pay. She appreciated the assistance she had received from her sister's son [name withheld] who works with a Telecommunication Company in Mtwara [name withheld] who had been hosting her since 2017 and had been helping her with her expenses without any problem, More interestingly, in this story, is probably the fact that the late Mr. Mkondya and the respondent Mr. Mbelengo, at some time in their carrier journey, went for further studies at the Kilimanjaro Christian Medical College (KCMC) Moshi and were classmates. They lived in the same quarters and knew each other beyond their professional life. It is difficult to imagine that after one's death, one's wife and one's closest colleague, neighbour, and friend, "mtu na shemeji yake"would be battling in court for eleven years over an eighteen acres farm one had left behind having been promoted to glory. This crazy thing called life! Life is indeed unpredictable. In other words, no one knows tomorrow! On a serious note, this is a reminder of what we hear from community leaders on a daily basis, "kuandika wvs/a'to leave behind a Will (also known as a testament) detailing how one wishes his property to be dealt with after death. As alluded to above, this is not the ideal place to discuss Page 5 Of 19 issues not appealed against. Nevertheless, it does not

take much thought to realize that the way the late Mkondya's estate was handled leading the appellant to receive oniy TZS 6,000,000 and the rest going to some other person she didn't know before her husband died, leaves a lot to be desired. Having turned back the clock to 2012 and before, albeit for a while, through the power of storytelling, I now turn to the grounds of appeal. The appellant submitted on the first ground and stated that she had evidence to support her claim that the disputed land had been bought jointly between her and her late husband. She mentioned that the people who sold the land to them were still available and that she had informed the tribunal about this. However, the tribunal did not call them to testify, and she expressed confusion as to why this was the case. Moving on to the second ground, the appellant stated that she was appointed as administratix of the estate of the late Benson Mkondya, but she couldn't recall when it happened. The process began in the Primary Court of Masasi and later moved to the District Court of Masasi, where the District Court Magistrate authorized her to proceed as administratix after she submitted the necessary documentation to prove her rightful claim to the estate. She complained that the respondent had interfered with everything, including going to the PSPF's pension arrangements, and had not given her anything, as

everything had been taken by Salome. The appellant later received a letter that she took to the Registrar in the Ministry of Health, and he gave her some money. She was aware of all Page 6 of 19 the property of her late husband, including the disputed land, which was an 18-acre plot located in Mkalango. The appellant stated bitterly that a person called Salome had come forward after her husband passed away, claiming to be his daughter. However, the appellant had never known her before. Upon arriving at PSPF, the appellant found that there were documents purported to appoint Salome as administratix as well. She didn't know Salome's whereabouts and wouldn't recognize her if she saw her today. The appelant's own children were Baraka Benson Mkondya, who worked at the bus stand in Mtwara, riding a "bajaji" [as the three-wheel motorcycle taxis are known in Tanzania after the "Bajaj" brand which was: the manufacture of the first tricycles imported in the country], and Bariki Benson Mkondya, who lived in Dar-es-Salaam. They had never been to court to testify but knew that their mother was the administratix of the estate of their late father, a medical professional. The appellant didn't know that the tribunal also qualified as a court and that the younger child had testified in the Temeke Ward Tribunal. Submitting in support of the third ground, Mrs. Mkondya stated that the farm could

not have been sold in the presence of children since it was a matrimonial property that must benefit the children. She further stated that she did not agree that the farm was sold in the first place because it is impossible to sell matrimonial property, and she as the administratix did not allow it to be sold. The respondent claimed that he bought the farm, but she had not met the person who sold it to him. She added that the matter in dispute was the legality of the sale and that there was no dispute that she was the administratix of the estate of her late husband. Page 7 of 19 The appellant stated on the fourth ground that she was appointed as the administratix and legally recognized. She believed that the person who sold the farm committed a crime. She also mentioned that she was the owner of the farm as she and her late husband had purchased it a long time ago. She further explained that they had gradually relocated people until they had a total of 18 acres. The exhibits were tendered, in the Tribunal, to support her statement. On the fifth ground, the appellant confirmed that she had seen the document and noticed that it did not contain the signature of Salome, even though it bore her name. She added that Salome did not appear to testify and she suspected that Salome was never present in the first place. The appellant also expressed her belief that the purported sales

agreement was forged and not legal, and that it was a scam to take her (and away from her. Regarding the sixth ground, the appellant explained that the tribunal did not bother to find out what the District Court had decided on the administration of the late Mkondya's estate. They had made their own decision, which had adversely affected her as she had nowhere to live or cultivate and had become a beggar. She stated on the 7th ground that she had not seen any letter appointing Salome as administratix of the estate and believed that Salome was a fictitious person being used to grab the land. She claimed to have seen Salome once, who claimed to be the daughter of her late husband, but thereafter never appeared again. Page 8 of 19 She requested that the decision of the DLHT be quashed, stating that the judgement was issued on a Saturday, and that on Sunday the tribunal went to the locus in quo, but she did not participate. Since then, she had been unable to access the farm and could not cultivate even a part of it. She lived in Masasi and requested to be allowed to cultivate the farm. She claimed that everyone in Masasi knew her as the widow of the late Mkondya, and that this was an attempt to deny her rights as a widow. She believed that the respondent may be backed up by other people against her as the widow. Furthermore, she asked that the respondent should go and look for

a farm elsewhere and leave the property of a widow alone. She considered it a curse and stated that she was poor and had nowhere to get even 500 shillings. She claimed that the respondent was supposed to assist her with food for her children, but instead was trying to take away the farm. She revealed that the respondent and her late husband knew each other, both taught at the Medical Assistant College, and lived together as neighbors, but now he had changed. His wife knew her very well, and they were the same in an attempt to take the land from her. The appellant insisted that all she wanted was her land. When the respondent's turn to tell his part of the story came, he started off by stating that he resided in Masasi and originally came from Liwale, He moved to Masasi in 1991 after being seconded to Ndanda Hospital, where he worked until he was transferred to the Training Department, which was later renamed Human Resource Development. His Page 9 of 19 family resided in Masasi, but his firstborn was on his own, and the second born was studying Medicine at the Hubert Kairuki Memorial University. The respondent averred that he had bought the farm from one Salome Benson Mkondya, whom he described as the second daughter to the late Mkondya, who was the administratix of the late Mkondya's estate. The respondent recalled that Salome had pleaded with him [to buy the land], and he

initially did not want to buy it, but he agreed as part of helping them pursue the rest of the probate case that would lead to her appointment as an administratix. He emphasized that the appellant was the only person accusing him of trying to grab her land, which was not true. The respondent indicated that he did not feel well because of the allegations, which were not true, and also because the court process was costly. After that rather extended introduction, the respondent requested that his lawyer proceeds with the grounds of appeal. Submitting on the 1st ground of appeal Mr. Mkali stated that the ground was new and had been brought up by the appellant at the stage of the second appeal. Mr. Mkali pointed out that the appellant had never talked about this issue in the lower courts. The disputed land, reasoned the learned counsel, is property jointly acquired during marriage, but the argument that she was the co-owner never featured in the trial nor the first appellate tribunal. He argued that bringing this issue at this second appellate court is tantamount to trying to save the case from sinking because parties are bound by their pleadings. Mr. Mkali referred to the decision of this Court in Page 10 of 19 the case of Fatima Rashid Mkasimongwa vs Mwanahamisi Hassan Chionda LAND APPEAL NO 14 of 2017 where Hon. Ngwembe J. had stated that the only way to raise issues before the

court for consideration and determination is through pleadings. Mr. Mkali further stated that the assertion that the disputed land was a jointly acquired matrimonial property was supposed to be raised in the trial tribunal. He emphasized that the appellant was fully aware that the rightful administratix was Salome Benson Mkondya, as she (the appellant) was appointed as the administratix in 2010 only to be revoked on 16.4.2012 by Masasi District Court. He mentioned that the appellant had abused her position and did not recognize some children of the late Mkondya, which led to disagreement. Mr. Mkali cited a testimony as summarized by the judgement of the DLHT at page 2 where the court quotes Bariki, son of the appellant that his mother was once the administratix. He concluded that the appellant knew this authority and that is why she is coming up with a new argument that the shamba is jointly acquired matrimonial property. Moving on to the second ground, Mr. Mkali stated that the ground had no merit because the trial tribunal had interrogated witnesses, including Salome, who had proved that she was the administratix and had sold the suit land. Mr. Mkali begged to clarify his point that Salome had never testified at the DLHT and the Hon Chairman did not see her because he had all the information he needed from the ward tribunal. He prayed that the second ground of appeal be

dismissed. Mr. Mkali concluded his submission on the second ground by stating that it was normal for courts to revoke the power of administration of an estate. Page 11 of 19 Regarding the third ground of appeal, Mr. Mkali claimed that he had already addressed it in his previous submission, stating that Salome was the administratix of the estate of her father and that the sale agreement showed that the respondent had bought the shamba on March 6, 2011, for 1,050,000. He moved on to the fourth ground which was more or less on the same subject matter as the third ground. Upon being pressed to consult his records properly, the learned counsel admitted albeit unexpectedly that the certificate of administration of estate was issued on April 16, 2012, more than one year after the purported sale. Regarding the fifth ground, Mr. Mkali stated that it was not true that the sale agreement was not sighed. He read out the witnesses who had signed the agreement and stated that the sale took place in the village office. He prayed that the ground be dismissed. Regarding the sixth ground, Mr. Mkali stated that the honorable chairman had ho mandate to revoke or confirm the administration of the late Mkondya's estate, as he was only dealing with land matters. He prayed that the ground be dismissed and the decision of the trial tribunal be upheld. On the seventh ground, Mr. Mkali stated that he was

unable to comment on it, but he believed that Salome's evidence had been analyzed since she was a witness in the trial tribunal. He stated that he had not seen Salome except through the papers, but he was ready to bring her to court if needed. He prayed that the particular ground be dismissed. Finally, Mr. Mkali prayed that his client be treated as a bona fide purchaser and that his a ppeal be dismissed with cost. Page 12 of19 In. a brief rejoinder, Mrs. Mkondya, the appellant, stated that she wanted to inform the court that the person known as Salome was residing with the respondent who had purchased two farms, one at Mkadaenda where other people had also invaded. She believed that they had planned this in order to take over their land. Mrs. Mkondya stated that she did not know Salome's mother and had only seen her once. She claimed that Salome's appearance had been changing frequently. Having dispassionately considered the above rival submissions^ this court was convinced that the fourth ground of appeal was capable of disposing of the matter. However, the court was still hungry for information that would resolve the dispute once and for all or at least, put the records clear. Invoking its inherent powers under section 95 of the Civil Procedure Code Cap 33 RE 2022, it ordered the parties to furnish additional information on (i) The process leading to appointment ofSalome

Benson Mkondya as adminlstratix of the estate of the late Benson Mkondya. (ij) Identification of the seller of the suit land and competence thereof (Hi) Whether the contract for sale of the suit land was entered freely and on a proper consideration. I take this opportunity to thank the learned counsel for the respondent Mr. Mkali and Advocate Yuda Dominic of Eben Advocates Dar-es- Salaam who appears to have assisted the appellant clearly indicating ''drawn ex gratia" by...before his name and designation. The legal aid provided and the whole information generated through this exercise have given this court the much-needed tools to arrive to a fair decision. Since the matter has been in court corridors for more than a decade, I cannot help but Page 13,of 19 act like an archeologist by digging through the ground to unearth some material, some directly connected to the matter at hand and others not so related, to put a human face to the story. Admittedly, the first issue I asked parties to furnish me information on does not fit into the purview of this appeal simply because our law ''compartmentalizes" disputes into such categories as Land, Probate, Commercial, Labour and so on even though in practice, the society does not see them that way. Nevertheless, I am inclined to express my dissatisfaction on how hastily the learned Magistrate at Masasi District Court acted in revoking

(disqualifying) the appellant as administratix of the estate of her late husband and appoint "Salome". Reading through the 3-page proceedings which double as the "Ruling" of the court, I am lost for words! The learned magistrate was way "too kind" to the then applicant "Salome d/o Joel Mkondya, All her wishes were granted most likely within 5 minutes! On the second issue, I initially thought, from the bitter narrative of the appellant, that the so-called Salome Benson Mkondya is a fictitious person. I really thought no human being with that name exists, Mrs. Mkondya had insisted several times during hearing that she never met her nor her mother before the late Mkondya passed away. She went ahead and claimed that throughout the court process that would revoke her position as administratix of estate of her late husband, "Salome" was staying with the respondent. I got a bit worried because in some parts of this country, people can go as far as creating a fictitious administrator/administratix of estate of a given person, process the payments through a court of law, only to share such shameful gains later. I am not writing a novel or any other artistic creation. Page 14 of 19 These are real issues. A widow or widower would never know what had happened. Be it as it may, Mr. Mbelengo, assisted by Mr. Mkali the learned Advocate, went to great lengths to prove that Salome was not a

fictitious person. I still have very serious doubts about this, but since this is not a criminal case, I leave that to "preponderance of evidence." The respondent has produced, among other things, Salome Benson Mkondya's birth certificate. Surprisingly it was issued in Masasi on 17th day of February 2011 while the date of birth is indicated as 3rd day of January 1988. I suspect fraud. I cannot believe that Salome Benson Mkondya "daughter" of a Medical Professional and a teacher (section 8 and 9 of the purported certificate indicate that the name of the mother is Ndimyake Kapala, and her profession is Teacher in Mbeya Town) stayed without a birth certificate for that long only to "acquire" it after her purported father had died. I am seriously in doubt. Some other authorities including the Prevention and Combating of Corruption Bureau (PCCB) may need to investigate some of these serious redlights for abuse of office. I think lawyers may also be reminded that in some situations, there is a very thin line between lawyering and facilitating fraud. It is upon a learned counsel to develop skills for fraud detection and prevention to avoid tarnishing one's image and ruin one's carrier. My intention in tasking parties to enlighten me on the consideration of the purported sale agreement was triggered by Mr. Mbelengo's assertion that he had bought the land as a way of "helping" the

family. In so doing, Page 15 of 19 he turned himself into the owner of an eighteen-acre land for a throw away price of TZS 1,050,000/= (Tanzanian Shillings One Million and Fifty Thousand Only), This means TZS 131,250 per acre. I see this as a typical "turning other people's misery into profit" or as it is known in Kiswahili "kufa kufaana"scenario. Unfortunately, both parties chose to bombard me with completely unrelated information. in any case, since as alluded before the fourth ground of appeal is the deciding vote for the matter at hand, I see no harm in skipping this issue on free consent and consideration in contract law. Arguing for the fourth ground of appeal, Mrs, Mkondya had told this court that the matter in dispute was the legality of the sale and that there was no dispute that she was the administratix. of the estate of her late husband. I have checked the records very carefully and I fully agree with the appellant. Although she has never had a lawyer and had gone through some really bitter moments in her life as she narrated during hearing of the appeal, she has been consistent all along. Her consistency has helped this court beyond all arguments of the learned counsel for the respondent. It is undisputed that the suit land was sold on 6th day of March 2011. The seller whose identity remains extremely fuzzy, had obtained letters of administration of the estate of

the late Benson Mkondya on the 16th day of April 2012. This Court purposely drew the attention of Mr. Mkali on the above contradiction during hearing of the appeal. When he was busy lecturing this court with helpless technicalities on the difference between a jointly acquired property and a matrimonial property, little did he know that I have never been a fun of technicalities. Upon being pressed to consult his records Page 16 of 19 properly, the learned counsel admitted albeit unexpectedly that the certificate of administration of estate, which empowered the "daughter" of the late Benson Mkondya to deal with the suit land, was issued on April 16, 2012. The Kiswahili saying "akufukuzae hakuambii toka" is meant to teach us to be sharp and recognize signs that a given situation is not working in dur favour. The learned counsel should have understood that his misplaced technicalities were no longer working, and the ship was destined to sink. The writings were on the wall. It is sad that he took advantage of the order of this court to furnish additional information to come up with a totally new and embarrassing version of the story. I will explain. The learned counsel attached yet another "Ruling" of the District Court of Masasi at Masasi dated 7/12/2011 purporting to exclude the suit land from the estate of the late Mkondya. Mr. Mkali's failure to evaluate and analyze the ruling

to satisfy himself whether it bears any relevance to the matter at hand leaves a lot to be desired. In short, the so-called ruling seems to suggest that Mr. Mbelengo had bought the suit land from one Joseph B. Mkondya who is "son" of the late Mkondya. The seller claims to have been given by his late "father" before he died on 30/11/2008. Apparently, the story was later changed and Joseph B. Mkondya disappeared to the oblivion never to be seen in court documents again. The "seller" is now Salome Benson Mkondya, and the appellant has been almost crying that the sale agreement is fake and does not contain Page 17 of 19 Salome's signature. This suggests a well-organized criminal racket, but I leave that to criminal investigators. Admittedly, the action of the learned counsel and the "ruling" have been a total wastage of the precious time of this court for three reasons: 1. The learned counsel is cunningly bringing a completely new document to mislead the court.

2. The purported "ruling" of the District Court is obviously illegal because the District Court was not a land Court. It had no jurisdiction to resolve a land dispute in the first place.

3. The "evidence" produced in the District Court to arrive to that illegality defeats the dictates of logic. A lawyer who has been trained to think critically would have taken a break to reflect. Had he decided to advice his client to take a less confrontational approach, this judgement would have been much shorter, and the results would still have been the same. As the saying of the wise goes, two mistakes do not make a right. In other words, if you find yourself in a hole, stop digging. It only makes matters worse. All said and done, I allow this appeal with costs. The Judgement and Decree of the District Land and Housing Tribunal are quashed and set aside. I hereby declare the Appellant FROLA MKODYA the rightful owner of the suit land. It is so ordered. Page 18 of 19 Court: Judgement delivered under my own hand and the seal of this court this 6th day of June 2023 in the presence of the appellant and the respondent. Right of appeal to the Court of Appeal of Tanzania fully explained. Page 19 of 19