LAND APPEAL NO

IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA LAND APPEAL NO. 14 OF 2023 (Arising from Land Application No. 26 of 2022 at the DLHT for Mtwara at Mtwara dated 17th March. 2023) CASE REFERENCE NO. 20230503000495256 HAMISI MANYELETO (An Administrator of the estates of the Late Abdala Juma Mnyapata)............ -......................... APPELLANT VERSUS RASHIDI NALIPA SELEMANI ———-........... -.........—RESPONDENT JUDGMENT Date Of last Order: 17.07.2024 Date of Judgment: 09.10.2024 Ebrahim, J.: Having been unsuccessful at the District Land and Housing Tribunal for Mtwara at Mtwara, the appellant herein suing as an administratrix of the estate of the late Abdala Juma Mnyapata lodged the instant appeal raising four grounds of appeal ds follows: 1. That, the District Land and Housing Tribunal erred in law and fact in failing to analyse the strength of evidence of the parties and Page 1 of 16 consequently deciding in favour of the respondent basing on his weak evidence. 2. That, the District Land and Housing Tribunal erred in law and fact in holding that the respondent bought the suit land from four sellers while the respondent failed to prove the alleged fact. 3. That, the District Land and Housing Tribunal erred in law and fact in deciding in favour of the respondent basing on adverse possession while the principle does not operate automatically, 4. That, the District Land and Housing Tribunal erred in law and fact in holding in favour of the respondent on the basis of the appellant lateness to be appointed as administrator of the deceased estates. The genesis of the dispute is the ownership of the disputed land measuring about 170 acres situated at Mdenga Village in Mikumbi Ward, Newala District, Mtwara Region. The appellant as the administrator of the estates of Abdala Juma Mnyapata claims that the disputed land is the property of his late grandfather and that the respondent invaded it. The appellant claims further that his grandfather owned the disputed land since 1940 after his mother Page 2 of 16 Nampapa gave it to him. He called four witnesses to prove his assertion of facts. On the other hand, the respondent vigorously disputed the claim by the appellant and contended that he purchased the disputed land way back in 2017 from one Fakihi Mtendachi. He also purchased from Somoe Bakili, the family of Ignas Ally, Mnipela and Mkulunga who also owned pieces of the disputed land. He called three witnesses to disapprove the appellant's claim. During the hearing of the appeal, both parties appeared in person, unrepresented. Supporting the appeal, the appellant submitted on the 1st ground of appeal that his evidence was heavier in proving that the disputed land was the property of the late Abdalla Juma Mnyapata than the evidence of the respondent. The appellant submitted further that the respondent said to have purchased the disputed land, but he did not bring other witnesses. On the 2nd ground of appeal; he contended that the respondent did not bring any document to prove that he purchased the disputed Page 3 of 16 land. He said, even his two witnesses did not bring any proof to show that they sold the disputed land to the respondent. Submitting on the 3rd ground of appeal; the appellant contended that nobody used the disputed land for a long time to deserve the application of the doctrine of adverse possession. On the 4th ground of appeal; the appellant argued that the DLHT decided the case on the basis that he was late to petition for the letter of administration whilst it was not the case as all along he was an administrator of the late Abdalla Juma Mnyapata. He prayed for the appeal to be allowed. Responding to the arguments by the appellant, the respondent told the court that those who sold him the disputed land had been there since 1974 and at all that time the late Abdalla Juma Mnyapata was alive but he did not do anything to stop the use of the disputed land. He said according to the appellant, the deceased passed on in 1999 and he used the disputed land for more than twenty years. Therefore, it is not true that the disputed land has not been used for a longtime. He said he tendered documents to show that he purchased the Page 4 of 16 disputed land and the documents are in the file of the trial Tribunal. He added that the Primary Court of Kitangari excluded the disputed land as a part of the deceased estate until he finalizes all the procedures. The respondent registered his surprise of being called an invader. He prayed for the appeal to be dismissed. In rejoinder, the appellant denied to have seen the documents. He rejoined also that in 1974 they moved to another village and the owner was living at the disputed land with his family. I have dispassionately followed the rival submissions by the parties. In essence., what could be gathered from the arguments and the whole case in general; the controversy is on the legal ownership of the disputed land. As the records would reveal, this is the first appeal. Therefore, in addressing the grounds of appeal, I am mindful of the fact that I am obliged without fail to subject the entire evidence on record into objective scrutiny and draw own inferences and findings of facts if merited. This principle was enunciated by the Court of Appeal in the cases of Jamal A. Tamim vs Felix Francis Mkosamali & Another (Civil Page 5 of 16 Appeal No. 110 of 2012) [2013] TZCA 342 (3 May 2013) TANZLII; and Martha Wejja vs. Attorney General and Another [1982] TLR 35, to mention but a few. Again, having gone through the submissions and the proceedings in the record, I shall also direct myself to the principles of the law in proving a civil case that "he who alleges must prove; and that a burden of proof lies on a person who would fail if no evidence were given at all on the other side” - sections 110 (1) and 111 of the Law of Evidence Act [Cap 6 R.E 2022], I shall start with the 3rd ground of appeal on the issue of adverse possession. Going back to the evidence of the respondent and his witnesses, the dispute arose in year 2021 and the respondent started to purchase the disputed land from year 2017, 2019 and 2020. Due to that fact, the respondent was not in possession of the disputed land for more than twelve years as it was observed in the trial Tribunal decision. Moreover, looking again at the evidence presented in court, the appellant could neither prove how the mother of the late Abdala Page 6 of 16 Juma Mnyapata acquired the disputed land nor that the late Abdala Juma Mnyapata had any documents of ownership of the disputed land. Hence, the principle of adverse possession could not be applied here, as there was an interruption in between regarding possession of the disputed land as the suit occurred following an agreement for sale. This stance was discussed by the Court of Appeal in the case of Frank Lionel Marealle vs Joseph Faustine Mawala (Civil Appeal 104 of 2020) [2021 ] TZCA 728 (3 December 2021) TANZLIl, where it was held that; “Therefore, in our view, since the appellant's claim of ownership of the dispute land is based on the purported sale between him and the seller, the question of adverse possession does not arise, ...." Therefore, the trial DLHT erred in holding that the respondent is a rightful owner of the suit land basing on the principle of adverse possession since there was none. Reverting to the 1st ground of appeal on the issue of evaluation of evidence. The appellant in this case testified as PW1. He submitted that his grandfather passed on 20.09.1999 but he did not say when the invasion occurred. He contended that his grandfather owned the Page 7 of 16 disputed land since 1940 after his mother gave him it. The disputed land is bordered by four families who are Nambunga, Nachingulu, Mmuku and Lihumbo. However, he could not prove how the mother of the late Abdala Juma Mnyapata acquired the disputed land. His witness PW2 - Hawa Nalipa Selemani, had no tangible evidence on the ownership of the disputed land to the late Abdala Juma Mnyapata apart from saying that the disputed land had mango trees, graves and he was putting “adhara ya ziala". She also said that he was bordered by people of different clans who were Wamuku, Wanachingulu and Wanambunga. Further, on cross-examination, she said they had ownership documents of the disputed land but could not bring them at the tribunal or at least explain why she could not. She added that people who were living in the disputed land were invite.es/PW3, Nalipa Selemani Mnang’odya apart from testifying that the disputed land is the property of the appellant’s elders, she had nothing much to prove as to their ownership of the said land. The testimony of PW4, Amina Juma Abdallah was that his late grandfather (Abdala Juma Mnyapata) was staying at the disputed land with Mzee Page 8 of 16 Mnuvi, Mzee Mpanda Kilima, Mzee Makokola and Biti Juma. She had nothing to prove as to his ownership. On the other hand, the respondent (DW1) told the trial Tribunal that he purchased the disputed land in 2017 from Mzee Fakihi Mlendachi. At some point in life, he purchased another pieces of land from Somoe Bakili, the family of Ignas Ally, Mnipela and Mkulunga who were the owners of the disputed land. He said he has been seeing them doing agricultural activities for the past 46 years when he was growing up in Mkonge village. He contended also that he has been using the disputed land for agricultural activities and it was in 2021 when the appellant sued the sellers of the disputed land at Mikumbi Ward Tribunal. The respondent's testimony was supported by Fakihi 'Mten.dec.hl (DW2) who testified before the Tribunal that the disputed land is the property of the respondent and he was among the people who sold a piece of the disputed land to him. He said they had been living at the disputed land and farming since 1974. Thereafter they were transferred to Kijiji but they continued to farm in the land. He said in 2017 he sold 4 acres of the disputed land to the respondent. Roza ignas Ally (DW3), testified before the Tribunal that the Page 9 of 16 respondent is the legal owner of the disputed land which has 16 mango trees and drilled holes. He said he was among the people who sold the disputed land to the respondent. He was also living and farming at the disputed land since 1974 and they were transferred to Kijiji. He sold the land to the respondent in 2020. After the sale, the appellant sued his four siblings who are Christian Ignas, Fakihi Mtendechi, Somoe Bakiri, Ngasa Ismaili and maliyao at Nambali Ward Tribunal where they lost the case. They appealed to the Tribunal. Later on, the appellant sued the respondent. As the evidence on record would reveal, the disputed land is not surveyed. Thus, strong evidence to prove ownership is required from either side. Nonetheless, it is also the position of the law that a party whose evidence is heavier wins the case and in evaluation of the evidence, it is not the quantity that matters but the court shall have due consideration to the quality of such evidence. In Hemed Said vs Mohamed Mbilu [1984] TLR 113, the court insisted that the one whose evidence is heavier than the other who must win. Page 10 of 16 Before going to the determination of this ground of appeal, when I was perusing the Tribunal records, I found that on 30th June 2022, the respondent filed the written statement of defence. In his pleadings sixteen (16) documents were attached, namely: Mikumbi Ward Tribunal decision in Land Case No. 3 of 2022 between Hamisi Luhuna Manyeleto vs. Rashidi Nalipa Seleman delivered on 5th May 2022; summons from Mikumbi Ward Tribunal to Rashidi Nalipa Seleman dated 13th January 2022 and Kitangari Primary Court decision in Probate Case No. 10 of 2021 between Rashidi Nalipa Seleman vs. Hamisi Luhuna Manyeleto delivered on 16th December 2021. He also attached a letter of complaint from Rashidi Nalipa to Kitangari Primary Court dated 13th December 2021, DLHT for Mtwara at Mtwara's decision in Land Appeal No. 22 of 2021 between Kristina Ignas (Kwa niaba ya Fakihi Mtendechi, Somoe Bakili, Ngasa Ismaili and Mariyao Mnipela vs. Hamisi Manyeleto delivered on 11th June 2021 and Memorandum of Appeal in Land Appeal No. 22 of 2021. Other documents attached with WSD are summons from DLHT for Mtwara at Mtwara to Hamisi Manyeleto both dated 17th February, 2021, summons from DLHT for Mtwara at Mtwara to Hamisi Manyeleto Page 11 of 16 dated 24th March 2021, and 20th May 2021, letter of complaint from Kristina Aly, Ngasa Ismail, Mariyao Mnipela, Somoe Bakili, Mkongi Mdenga and Fakihi Mtendechi to the Chairman of Nambali Ward Tribunal dated 21st January 2021 and a letter for Land exchange between Somoye Bakili and Rashidi Nalipa Seleman dated 10th June 2019. He also attached a sale agreement between Roze Ignas Ally, Christina Ignas Ally and Rashidi Nalipa Seleman dated 9th May 2020, a sale agreement between Ngasa Ismaili Mnipela and Rashidi Nalipa Seleman dated 17th May 2020, sale agreement between Sofia Mnipela Mkulunga and Rashidi Nalipa Seleman dated 16th March, 2019 and a sale agreement between Fakihi Mtendechi and Rashidi Nalipa Seleman dated 16ih August 2017 and 9^ November 2018. However, the same documents were neither prayed for admission nor tendered during the hearing of the application. Moreover, the record is silent as to whether the appellant was served With the said documents. Similarly, the proceedings are silent on their admission or contests of the documents between the parties or inquiry by the Tribunal on the authenticity of the same as per Regulation 10 Page 12 of 16 (2) and (3) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003. l am aware that the Tribunal is not bound by the Civil Procedure Code or Evidence Act in receiving documents for exhibits as per Regulation 10 (1) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003, however, the cited law is silent on admission of documents attached in the application form or the written statement of defence during the proceedings. The Court of Appeal in the precedented case of Japan International Cooperation Agency (jica) vs Khaki Complex Limited (Civil Appeal 107 of 2004) [2006] TZCA 80 (17 July 2006) said that: "This Court cannot relax the application of Order XIII Rule 7 (1) that a document which is not admitted in evidence cannot be treated as forming part of the record although it is found amongst the papers on record. The document must be either placed on the record or returned to the person producing It. Dr. Lamwai, with deep conviction submitted that even though the documents are not considered by the Court, yet there is sufficient oral evidence to entitle this Court to affirm the decision. With the greatest respect to Page 13 of 16 the learned advocate, the documents are essential to the case and without them the trial judge could not have arrived at the decision he did. The inevitable conclusion is that the evidence properly before the trial court did not justify the learned judge's affirmative answers to the first and second issues before him. We have seriously considered what course of action we should take under the circumstances. This is not a case of improper admission or rejection of evidence. The documents in question somehow were not admitted in evidence. This was a substantial error during the trial which amounted to a miscarriage of justice." [Emphasis added]. The circumstances of the above cited case falls in four with the facts of this case. The said documents found in the Tribunal’s record were not admitted in evidence, which caused the Chairman of the Tribunal not to consider them. With respect, the learned Chairman erred in the procedure. However, for the interest of justice, I am of the view that the documents are relevant and crucial in the just and actual determination of the issue of ownership. In the circumstances, therefore, I am of the position that this is a fit case for invocation of section 42 of the Land Disputes Courts Act, Cap 216 R.E 2019 which allows the High Court [Land Division) in the exercise Page 14 of 16 of its appellate jurisdiction to order the District Land and Housing Tribunal to take and certify additional evidence. From the above background therefore, Thereby order the trial Tribunal to take additional evidence with regard to the evidence comprised in the sixteen (16) documents attached to the written statement of defence and the same be tendered in accordance to the procedure set by the law. In so doing, parties should be given an opportunity to be heard on the tendered documents including cross-examination. In case of the admission of any/all of additional evidence, the Tribunal should then proceed to determine the issue of ownership of the disputed land in consideration of the admitted evidence and the evidence already on record. Therefore, I need not belabor on other grounds of appeal. I remit the file to the trial Tribunal accordingly proceed to nullify the proceedings of the trial Tribunal of 17th March 2023, its Judgment and all the resultant orders thereof. The appeal is thus allowed to the extent explained. Parties shall bear their own respective costs. Page 15 of 16 Accordingly ordered. R.A Ebrahim JUDGE 09.10.2024 Page 16 of 16