Gotlib Chengula vs Festo Lupumbwe 2 Others

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA IRINGA SUB-REGISTRY AT IRINGA LAND APPEAL NO. 13394 OF 2024 GOTLIB CHENGULA (As Administrator of the Estate of the Late MAGDALENA LUPUMBWE) .... ....... .APPELLANT VERSUS 1. FESTO LUPUMBWE 2. MATERNUS LUPUMBWE . ........... ...... RESPONDENTS 3. VICTORIA LWIVA Appeal from the decision of the District Land and Housing Tribunal for Njombe at Njombe) (Hon. G. Fabian Nq'umba (Chairperson!) Dated the 1st day of December 2022 in Land Application No. 05 of 2019. JUDGMENT Date of last order: 18.10.2024 Date of Judgment: 10.01.2025 S.M. KALUNDE, J.i Before the District Land and Housing Tribunal for Njombe (Henceforth "the:trial tribunal") in Land Application No. 05 of 2019, the appellant, in his capacity as the administrator of the estate of the late Magdalena Lupumbwe, filed a suit against Festo Lupumbwe, Maternus Lupumbwe and Victoria Lwiva. The suit at the trial tribunal related to a plot of land measuring 30 acres located at Lwangu Village, Kifanya Ward in the District and Region of Njombe (Henceforth "the suit property"). The appellant case before the trial tribunal was that the suit property was the lawful property of his mother, the late Magdalena Lupumbwe who passed away in 1991. He contended that upon the demise of Magdalena Lupumbwe he applied for letters of administration at the Primary Court of Njombe and on the 23rd day of July 2012, he was granted letters of administration of the estate of the late Magdalena Lupumbwe. The appellant alleged further that, upon securing the letters of administration and with the help of the village government, he took control of the suit property from the then owners. Thereafter, he continued to be in lawful and uninterrupted enjoyment of the suit property until around 2018 when the property was invaded by the respondents. The appellant contended that, despite repeated warnings, the respondents wilfully, intentionally and unlawfully refused to vacate the suit property and continued to maliciously occupy and cultivate on the suit property. In light of the above facts, the appellant prayed for a declaration that he was the lawful owner of the suit property; an order for vacant possession; permanent injunction; payment of TZS. 4,000,000.00, being compensation for lost rental fees which the appellant would have raised for leasing the suit property; costs of the application; and any other remedies as the tribunal would deem fit and just to grant. 2 In reply, the respondents filed a joint written statement of defence denying the appellants allegations. They alleged that the suit property was not the property of the appellant but rather the property of Lwangu Village Government. The respondents pleaded further that, they were granted lease by the Lwangu village government. The respondents concluded that the application be dismissed with costs. Upon completion of pleadings, the following issues were framed for determination; one, who is the lawful owner of the suit property; two, whether the respondents have trespassed into the appellant's land; and three, what are the remedies of the parties. Thereafter, the matter proceeded to full trial. During trial, the appellant paraded three witnesses and tendered in evidence three exhibits. Gotlib Chengula (SMI) alleged that the suit property was the property of his mother the late Magdalena Lupumbwe and therefore a subject of his administration. He contended that upon the passing of his mother he applied for, and on the 23rd day of July 2012, he was granted letters of administration of the estate of the late Magdalena Lupumbwe by the Njornbe Primary Court (Exhibit Al). SMI testified that, on the 3rd day of January 2014, Primary Court wrote a letter to the Village Executive Officer (VEO) of Lwangu Village, Kifanya Ward In the District and Region of Njornbe (Exhibit A2) directing the village authority, to handover to the appellant, all the 3 farms formerly owned by the late Magdalena Lupurnbwe so that they may be properly administered. The said farms were since being occupied by Rahel Lwila and Alfred Danda. In his further testimony the appellant stated that the village government assisted him to recover the land from Alfred Danda and on the 09th day of October 2014, the chairperson of Lwangu Village wrote a letter (Exhibit A3) indicating that the farms were handed to the appellant. The said letter was signed by Alfred Danda and the appellant. An examination of the said letter also shows that it was also signed by the chairperson and stamped with the village government stamp. In describing the property, SMI stated that the property was 30 acres in size bordered by Marselina Chengula and Mvengi tree on the East, natural stream to the North, Mongwa river on the South and Mhapi natural tree, a security guard hut and a beacon with numbers THT 727 and THT 728 on the West. The remaining appellant's witnesses, Godfrid Chengula (SM2) and Edson Chengula (SM3) also gave a rather similar description of the suit property. In his testimony, SM2 narrated that the suit property was handed to the appellant in 2012 by the Village Government. He also claimed to have witnessed the process of handing over the property to the appellant by the Village Government. He also stated that the farm was 4 being leased by the appellant to other farmers. When cross-examined, the witness stated that he cultivated on the suit property in the years 2016, 2017 and 2018. For her part, SM3 recounted that the respondents invaded the suit property in October 2018. In cross- examination, the witness stated that the appellant inherited the farm from her mother Magdalena Lupumbwe who passed away in 1990. She also claimed to have witnessed the handover of the suit property to the appellant in 2012. The defence had six witnesses. That is Festo Lupumbwe (SU1), Maternus Lupumbwe (SU2), Victoria Lwila (SU.3), Walter Lupumbwe (SU4) and Anna Mtweve (SU6). Sill testified that the late Magdalena Lupumbwe was his grandmother, and that the appellant was his paternal uncle because he was a cousin to his father. He said the respondents were lawful owners of the suit property . The witness stated that the farm was never used by the late Magdalena Lupumbwe. In his further testimony, SU1 recounted that his grandmother gave him the farm to cultivate. He added that, in 1974 the: farm was taken by the village government. The witness added that the respondents were permitted by the village government to use the farms. In cross-examination, the witness said that the late Magdalena Lupumbwe never utilised the said property. He 5 added that the appellant was renting his part of the farm across the river. The second respondent (SU2) narrated that the late Magdalena Lupumbwe was his aunt. He said he did not see his aunt use the farm since 1952 when he was born. He said the area was used by his parents, Edmond Lupumbwe and Angenia Chengula. The witness added that in 1974 the area was designated as grazing land by the village government. In his memory, since 1974 his family utilised the land on authority and grant of the village government. The witness implored that the village government should have been joined as party to the suit. The testimony of SU2 was supported by that of SU4 who stated that the late Magdalena Lupumbwe was his aunt and that she never occupied the suit property. In his further testimony SU4 narrated that the respondents were the only individuals allowed^ by the village government to use the area. SU3, the brother-in-law to the appellant narrated that he has lived all his life at Lwangu village and never knew the late Magdalena Lupumbwe. He said he was given the suit property by his father before "Operesheni Sogeza". The witness said that after "Operesheni Sogeza", the area was taken by the village government and designated as a grazing land. SU3 added that after livestock numbers dwindled farmers were allowed to cultivate on the area. Having said that, the witness 6 concluded that the area belonged to the village government who had not been sued. The chairman of Lwangu village (SU5) testified that he got into the position in 2019. He confirmed what was stated by SU1, SU2, SU3 and SU4 that the suit property was designated as grazing land :by the village government in 1974. The chairman testified further that before conversion into a grazing land by the village government the suit property was owned by Oth m ary Lwila and the respondent's family. According to SU5, the entire grazing land measured around 300 hectors. He added that the area referred to under Exhibit A3 is located in Makufa and that the letter was not referring to the disputed property. That concludes the summary of evidence presented by the parties at the trial tribunal. At the end of the trial, the learned trial chairperson resolved the matter in favour of the respondents. In its decision delivered on the 1st day of December 2022, the learned trial chairperson was satisfied that the appellant failed to prove his case on the balance of probabilities as required under section 110(1) and (2) of the Evidence Act [Cap. 6 R.E. 2022]. The chairperson observed that Exhibits P2 and P3 did not describe the land upon which they were issued for and that they did not make reference to the suit property. On that basis, the tribunal 7 chairperson was content that the appellant was not the lawful owner of the suit property and therefore the respondents were not trespassers. As for payment of TZS. 4,000,000.00, in specific damages, the learned trial chairperson made a finding that the appellant failed to establish the basis upon which the stated amount was arrived at. In the end, the appellants application was dismissed with costs for being devoid of merits. Aggrieved by the decision of the trial tribunal the appellant has approached this court on an appeal. The appellants' petition of appeal contains four grounds of appeal as summarised hereunder: "1. That, the Trial Tribunal grossly erred in holding that the land in dispute was not the suit premise; 2. That, the Trial Tribunal erred in law and fact in basing its decision on the contradictory and weak evidence of the Respondents and their witnesses while disregarding the evidence adduced by the Appellant and his witnesses; 3. That, the Trial Tribunal erred in law and fact in delivering a biased and contradictory verdict in favor of the Respondent basing on her own reason instead of the evidence on record; and 4. That, the Trial Tribunal erred in law and fact for failure to consider exhibits 1, 2 and 3 and thus arriving at an erroneous conclusion. Parties requested the court that the matter be argued in writing. The: prayer was granted and a schedule for filing submissions was issued. The appellant drew and filed his submissions in accordance with 8 the orders of the court. The respondents were also dully served before the court. However, they did not file their reply submissions. It is trite that failure to file submissions is tantamount to non- appearance at a hearing. See P3525 COL. Idahya Maganga Gregory vs. The Judge Advocate General, Court Martial Criminal Appeal No. 4 of 2002 (unreported), where the Court Martial Appeal Court sitting at Dar es Salaam (Oriyo, J.A as he then was) observed at page 3 of the typed ruling, thus: "It is now settled in our jurisprudence that the practice of filling written submissions is tantamount to hearing and, therefore, failure to file the submissions as ordered is equivalent to non- appearance at a hearing or want of prosecution. The attendant consequence of failure to file written submissions [are] similar to those of failure to appear and prosecute or defend, as the case may be. Court decisions on the subject are abound,..similarly, courts have not been soft with the litigants who fail to comply with court orders, including failure to file written submissions within the time frame ordered. Needless to state here that submissions filed out of time and without leave of the court are not legally placed on records and are to be disregarded. " In view of non-compliance with court orders? on the 18th day of October 2024, the court ordered the matter to proceed exparte against the respondents. In respect of the first ground of appeal, the appellant submitted that the trial tribunal was wrong in holding that the area in dispute was 9 not the disputed property. The appellant added that had the trial tribunal considered his evidence that the late Magdalena Lupumbwe was the owner of the suit property and that upon her demise the appellant was appointed to administer her estate, it would have arrived at the conclusion that the appellant was entitled to the suit property as an administrator of the estate of the late Magdalena Lupumbwe. Submitting in respect of the consolidated second, third and fourth grounds of appeal, the appellant contended that the trial court erred in basing its decision on contradictory and weak evidence of the respondents in disregard of the strong and credible evidence adduced by the appellant and his witnesses. In citing examples, the appellant referred to the contradictions between SU1 and SU2 as to who were the lawful owners of the suit property prior to 1974. He contended that while SU1 testified that the owners of the suit property were Maternus Lupumbwe and Victor Lwila, SU5 said the suit property was the property of respondents' parents and one Othmary Lwila. The appellant submitted that none of the respondents testified that the suit property belonged to their parents. The appellant argued further that the contradictions in the respondents' case were serious touching the root of the case and entitles the court to draw a negative inference warranting discrediting the respondents' case, in support of this, he cited the case of 10 Emmanuel Abraham Nanyaro vs. Peniel Ole Saitabau [1987] TLR 47. The appellant added that upon discrediting the evidence of SU1 and SU2 the respondents case crumbles. Regarding the consolidated third and fourth grounds, the appellant argued that through exhibits Pl, P2 and P3 he was able to prove that the suit property was the lawful property of the late Magdalena Lupumbwe and therefore he is entitled to administer the same, He contended that, during trial, he was able to establish his case as required under section 110(1) and (2) of the Evidence Act. To support this, he cited the case of Abdul Karim Haji vs, Raimund Nchimbi & Another [2006] TLR419. Relying on the above submissions, the appellant urged the court to allow the appeal by quashing and setting aside the judgment and decree of the trial tribunal and declare the appellant as the lawful owner of the suit property. For my part, I have carefully considered the records of appeal as welt as the submission made by the appellant. My duty now is to resolve the question whether the present appeal is merited. In resolving this question, I will consider whether, at the trial tribunal, the appellant proved his case to the required standard. It is common knowledge that in civil proceedings, including land matters, the: party who alleges has a burden of proving his allegation ii or bears the evidential burden and the standard in each case is on the balance of probabilities. See Jasson Samson Rweikiza vs Novatus Rwechungura Nkwama (Civil Appeal 305 of 2020) [2021] TZCA 699 (29 November 2021) TanzLIL I am also alive that this being a first appeal, this court has a duty to reevaluate the whole evidence adduced at trial and subject it to a fresh exhaustive scrutiny, while weighing the conflicting evidence and come to its own independent conclusion as to whether the findings of the trial tribunal can be supported as was stated in Pandya v. R [1957] EA 336. I am also aware that this court has to bear in mind that it neither saw nor hear the witnesses and thus should make due allowance in that respect. It is a well-settled principle that at this stage, the parties are entitled to obtain from this court its own decision on issues of fact as well as of law. This duty was well articulated by the now defunct East African Court of Appeal in the case of Selle and Anor versus Associated Motorboat Limited 15 and Others (1968) EA 123 at page 123, where Justice Clement De Lestang stated that the role of the first appellant Court is as follows; "An appeal, ... is by way a retrial.... the Court must reconsider the evidence, evaluate it itself and dra w its own conclusions though it should always bear in mind that it has neither seen nor heard the20 12 witnesses and should make due allowance in respect." This Court, therefore, has a duty to re-evaluate the evidence on record before it arrives at its own conclusion. I will also bear in mind the above principles as I proceed to resolve the grounds of appeal. I will resolve the first, third and fourth grounds concurrently and consider the second ground separately. In the first, third and fourth grounds the appellant faults the trial tribunal for improperly evaluating the evidence on record and thereby arriving on an erroneous conclusion. These grounds essentially revolve around the issue, who is the lawful owner of the suit property. In his submissions, the appellant alleged that, had the trial tribunal properly evaluated the evidence and exhibits on record and considered the contradictions in the respondents case it should not have resolved the case in favour of the respondents. There is no dispute that it was the appellant who instituted the suit at the trial tribunal and thus it was his duty to prove the case. It is also not disputed that the appellant traces his ownership over the suit property from the late Magdalena Lupumbwe. The applicant alleges that the suit property was the property of the said Magdalena Lupumbwe. In his testimony,, the appellant contended that upon the demise of the late Magdalena Lupumbwe, the Njombe Urban Primary 13. Court appointed him as an administrator of her estate. Considering this hypothesis, the appellant claimed that he was the lawful owner of the suit property by virtue of being an administrator of the estate of the late Magdalena Lupumbwe. The suit property in the present case was not a registered land. It is therefore logical that the same was owned customarily. It is common knowledge land may be acquired customarily through, inter alia, long time cultivation, purchasing, allocation by village governments, inheriting or as a gift. In the case under consideration, the appellant traced his ownership from the late Magdalena Lupumbwe. Thus, it was incumbent upon him to establish, in evidence, that the said Magdalena Lupumbwe was the lawful owner of the suit property through either long-time cultivation, purchasing, inheriting or that she was given as a gift. However, in his examination in chief, the appellant did not provide any explanation or evidence as to how Magdalena Lupumbwe acquired the said piece of land. His claim that the suit property formed the estate of the late Magdalena Lupumbwe was thus not proved. It is on record that, to further prove that he was the lawful owner of the suit property the appellant contended that upon issuance of letters of administration by the Njombe Urban Primary Court, on the 3rd day of January 2014, the court wrote a letter directed to the Village 14 Executive Officer (VEO) of Lwangu Village (Exhibit A2). The letter was intended to inform the respective authorities to assist the appellant in his administrative duties relating to the estate of the late Magdalena Lupumbwe. The appellant contended that the Village government heeded to the call for assistance, As a result bn the 09th day Of October 2014, the chairperson of Lwangu Village wrote a letter (Exhibit A3) indicating that the farms previously occupied by Alfred Danda were handed to the appellant. Part of the letter read as follows: 'YAH: NDUG. ALFRED PANDA Husika na jiha tajwa hapo juu. Napenda kuthibitisha kwarriba m tajwa hapo juu amekabidhi mashamba kwa Ngd. Gotilipi Chengufa kama barua ya Mahakama ya Tarehe 3 ~ 1 - 2014 ilivyomtaka afanye. Sahihi ya Mkabidhi:... Sahihi ya Mkabidhiwa:..." Simply translated the letter provides that Mr. Alfred Danda has handed over the farm to Gotlib Cheng ula as directed by the Court in its letter dated the 3rd day of January 2014. The letter is then signed by the appellant and the said Alfred Danda. I have carefully examined the contents of exhibits A2 and A3 and noted that the two letters do not make any reference to a description of land offered by the appellant. For example, Exhibit A3, in particular, does not provide any description of the land being transferred from 15 Alfred Danda to Gotlib Chengula. It Is also worth noting that in his testimony in cross-examination, at page 14 of typed proceedings, the appellant confessed that exhibit A3 did not make reference to the: suit property. In absence of a proper description of the piece of land being transacted under Exhibit A3, it cannot be safely vouched that what was transacted in the letter was the suit property. That said, Exh. A3 is of less value in establishing that the appellant was handed the suit property and thus he was the lawful owner of the same. It was the evidence of the appellant (SMI) in cross-examination that he was born in 1957. He also said he left the village to Mkonowi, Kifanya in 1963 and never went back to the village until 1991 when his parents passed away. He also confessed that he did not know how Magdalena Lupumbwe acquired the suit property. When he was further questioned as to how he knew about the boundaries, the appellant responded that it was Eugenia Chengula who confirmed the boundaries. However, the said Eugenia Chengula was not called to testify and verify the contention. In absence of the evidence of Eugenia Chengula verifying the boundaries of the said property and giving credence to the appellants testimony, it is unfathomable how the appellant got to understand and point the boundaries of the suit property when he never lived in the area for more than 28 years. 16 Responding to further cross-examination the appellant contended that he used to rent the suit property to several individuals including Alfred Danda, Raheli William, Lupenda and Timo Mlowe. He said the last time he was paid rent was in 2012 by Lupenza. However, he did not state the amount of rent involved and neither did any of his tenants appeared to testify before the trial tribunal to verify his claims. The contention that he owned the suit property and that he was renting it is therefore unfounded as it was not established in evidence. It is also important to note here that, since Alfred Danda was allegedly renting part of the farm and he handed the said farm to the appellant in 2014, his evidence was crucial in rendering credence to the appellant case. His non-appearance at the dock dented the credibility of the appellants version of the story. Upon perusal of records, lam satisfied that the evidence of SM2 and SM3 did not speak to the fact that the late Magdalena Lupumbwe was the lawful owner of the suit property. In fact, they were not even present when the late Magdalena Lupumbwe passed away around 1991 as alleged by the appellant. The record show that SM2 was born in 1997 and was 25 as he testified in 2022. On the other hand, SM3 was 22 when he testified in 2022, meaning that he was born in the year 2000. Thus, neither of the two witnesses were present during the life of the late Magdalena Lupumbwe. Their evidence was therefore hearsay. 17 In light of the above re-evaluation of the evidence on record, I agree with the learned trial tribunal that the appellant failed miserably to establish his case to the required standard. The first, third and fourth grounds of appeal are thus without merits. They are thus dismissed. In the second ground of appeal, the appellant alleges that erred in basing its decision on the contradictory respondent’s case in disregard of his strong evidence. I need not be detained much on this ground. This complaint doesn't hold any water at all because the findings of the trial tribunal were that the appellant testimony and exhibits were insufficient to prove the case to the required standard. After such a conclusion, the trial court did not belabour to shift the onus to the respondents and consider whether they had discharged their obligation in countering the appellant's case. It is settled: that the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his obligation and that the burden of proof is not diluted on account of the weakness of the apposite party’s case. I find no better words to express the above principle as it relates to the present case than the words of the Court of Appeal in the case of Agatha Mshote vs Edson Emmanuel & Others (Civil Appeal No. 121 of 2019) (20211 TZCA 323 (20 July 2021), where the Court (Mugasha, J.A), at page 28, stated that a party 18 should parade evidence to prove or support what he has pleaded. Thereafter, having examined the evidence on record, the Court stated: "In view of what we have endeavoured to discuss, the appeliant failed to prove her case on the balance of probabilities, and it cannot be safely vouched that she had discharged the burden as required under section 110 of the Evidence Act. That said, since the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges that burden, as earlier Stated, the weakness of the respondents' case, if any, cannot salvage the plight of the unproven appellant's case. In our considered view, we agree with the manner in which the trial Judge addressed the second issue as to whether the respondents had trespassed into the land in disputed. We are fortified in that account because since the burden of proof was on the appellant and not the respondents, and in the event, she did not discharge the onus, the credibility of the respondents' account was irrelevant." In view of the above position, the appellants criticism of the learned trial chairperson for basing his decision on the contradictory and weak evidence by the respondents and their witnesses in disregard of his strong case is unfounded on the records and far-fetched. The records show that the trial tribunal rightly concluded that the appellant did not discharge his obligation sufficient for him to call for evaluation of the respondent's case. The second ground of appeal is also unmerited and the same is dismissed. 19 Next, I will consider allegations of trespass. It is common knowledge that trespass to land is an unjustifiable interference with possession of land. It occurs when a person makes an unauthorized entry upon and thereby interferes or signifies interference with another person's lawful possession of the land. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue on trespass, for trespass to land is committed, not against the land, but against the person who is in possession of the land, whether actual or constructive. The crux of an action for trespass to land is therefore a violation of possession, not a challenge to ones' title. In the present case, having resolved that the appellant failed to prove ownership or possession over the suit property, it goes without saying that the appellant has failed to establish possession whether actual or constructive. A claim for trespass is therefore unmaintainable. The trial tribunal was thus justified in dismissing the tort of trespass. Before I pen of, I wish to remark that land is a valuable commodity and a well sought after investment. If not properly managed, land can also be a source of conflicts which may spur civil unrest. It cannot therefore be accepted that one can just claim ownership over a piece of land without adducing proof of ownership whether documentary or circumstantial. As pointed out above, he who alleges must prove. 20 In the present case, I have had an opportunity to examine the records of appeal, testimonies and evidence of the parties. I also considered the submissions made in relation to the grounds of appeal and I am content that there is no merit in any of the grounds. My re- evaluation of the evidence on record supports a conclusion that the appellant failed to adduce sufficient evidence that he was the lawful owner of the suit property. That said, I am satisfied that the trial tribunal properly evaluated the evidence on record and arrived at its decision on entirely sound and plausible legal principles and arrived at his conclusion based upon proper assessment and evaluation of the evidence. Thus, the trial chairperson rightfully concluded that the appellant was not the lawful owner of the suit property. In the final result, the present appeal is dismissed with no order as to costs. I so order. DATED at this 10th day of JANUARY, 2025. .M.KALUNDE JUDGE 21