Land Appeal No 6873 of 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA LAND APPEAL NO. 6873 OF 2024 (Originating from Application No. 32 of2023 in the District Land and Housing Tribunal for Mtwara at Mtwara) HAMISI SALUMU KILIMA (as an administrator of the estate of the late SALUMU MUSSA KILIMA)......................................................................... APPELLANT VERSUS SELEMANI ALLY MATAJABU (as an administrator of the estate of the late Somoe Mohamed Mkehekela)...................................................................... RESPONDENT JUDGMENT 10th July & 31st July, 2024 MPAZE, J.: Both the appellant and respondent in this case are estate administrators. The appellant is the administrator of his father's estate, and the respondent is the administrator of his mother's estate. The dispute between the two arises from the ownership of a piece of land (herein referred to as 'disputed land') The dispute, before reaching the trial tribunal, began at the Ward Tribunal for mediation. However, the Ward Tribunal failed to resolve the dispute, leading the respondent to file this case before the District Land and Housing Tribunal for Mtwara at Mtwara (DLHT), claiming trespass on a 4.5-acre of the disputed land alleging it belongs to the respondent's late mother. The appellant vehemently denied that the land in question belonged to the respondent's late mother, instead claiming that it was the property of his late father. In his testimony before the DLHT, the respondent, who was the applicant, testified that after his mother's divorce in 1972, she returned to her father's home, where she was allocated a piece of land that was originally a forest. He continued to explain that his mother's land was adjacent to the appellant's late father, Salum Mussa Kilima and that throughout the time his mother cultivated the land, there were no disputes until 2022 when the appellant allegedly invaded and destroyed the crops. By this time, both the respondent's mother and the appellant's father were deceased. Abdalah Hassan Mkasunga (PW2), Ramadhani Bashira Kondo (PW3), and Issa Mohamedi Mtobo (PW4) all confirmed seeing the respondent's mother cultivating the land throughout her lifetime. However, they did not know how she initially acquired it. On his part, the appellant, despite having extensive testimony, did not provide any details on how his father acquired the disputed land or in which year. He generally claimed that the land belonged to his late father 2 and that it had been lent to the respondent's late mother. He further contended that during her lifetime, the respondent's mother agreed that the land had been lent to her by the appellant's father. While the appellant stated that it was his father who lent the land to the respondent's mother, his witness, Mussa Salumu Mohamed Kilima (DW2), testified that it was his father, Mzee Bwana Salumu Kilima, who lent the disputed land to the respondent's late mother for cultivation. He added that after his father's death, the disputed land came under the possession of the appellant. Mohamedi Bakari Mussa Matipa (DW3) also testified that the disputed land was given to the respondent's mother by Mzee Bwana Salumu Mohamed Kilima and that it was merely lent to her. Following the consideration of the evidence from both sides, the DLHT found the respondent's evidence to be compelling and declared that the rightful owner of the disputed land was the respondent's mother. Displeased with the outcome, the appellant challenged the decision in this court on the basis of four specific grounds namely; 3 1. That the trial tribunal erred in law and fact by ruling in favour of the respondent, who had entirely failed to prove his root title to the disputed land. 2. That the trial tribunal erred in law and fact by ruling in favour of the respondent despite his failure to prove his case to the required legal standard. 3. That the tribunal erred in law and fact by disregarding the appellant's exhibit attached to his written statement of defence. 4. That the tribunal erred in law by basing its decision on the mere words of PW2, PW3, and PW4. Wherefore, the appellant prayed for; i) A declaration that the disputed land belongs to the Appellant. ii) The quashing of the judgment and decree of the tribunal. iii) Costs. iv) Any other reliefs this court may deem just to grant. During the hearing of the appeal, neither party had legal representation. The parties succinctly prayed the grounds of appeal and, the replies to those grounds be adopted and form part of their 4 submissions. In addition, the appellant urged the court to consider the testimony of the chairman who had visited the disputed land. The respondent countered , asserting that the chairman's visit was merely for verification purposes and nothing more. In response to the grounds of appeal, the respondent generally opposed the appeal, arguing that the burden was on the appellant to prove his allegations. The respondent asserted that he had successfully proven his claims, which led the DLHT to rule in his favour. As a result, he sought the dismissal of the appeal with costs. Based on the submissions and arguments of the parties for and against this appeal, and upon examining the DLHT records, in resolving this appeal I will be guided by the issue of whether the appeal has merit. Focusing first on the appellant's prayer, where the appellant asked the court to consider the testimony of the chairman who visited the disputed land, in dealing with this prayer I examined the record of the DLHT to determine what this witness stated. Unfortunately, I did not find this witness in the records of the witnesses who gave testimony, apart from the parties' own witnesses, namely PW1, PW2, PW3, and PW4 who 5 were witnesses for the respondent, and DW1, DW2, and DW3 who were witnesses for the appellant. I thought perhaps he was called as a witness for the DLHT, but still, I could not find this witness anywhere. Despite both sides in this appeal discussing him, I did not see him in the record, leading me to conclude that the said chairman has never testified as a witness for either the appellant or the respondent during the trial, thus preventing me from addressing the appellant's prayer. Turning to the grounds of appeal, after carefully reading grounds one, two, and four of the appeal, I noticed they all focus on faulting the DLHT deciding in favour of the respondent while the respondent failed to prove his claims. Given that all these grounds seek to challeng the DLHT's decision deciding in favour of the respondent, who failed to prove his case , I will discuss them collectively. It is a trite law that in civil cases, the victory goes to the party whose evidence is more convincing than the other's. This is encapsulated in the principle that 'He who alleges must prove} as established in the case of African Banking Corporation Limited v T-Better Holdings Co. LTD Civil Appeal No. 207 of 2017, published on www.tanzlii.qo.tz [2024] 6 TZCA 165 and Antony M. Masanqa v. Penina (Mama Mqesi) & Another, (Civil Appeal No. 118 of 2014), published on www.tanzlii.qo.tz [2015] TZCA 556. Likewise, according to the law both parties to the suit cannot tie, but the person whose evidence is heavier than that of the other is the one who must win, this was stated in the case of Hemed Said v. Mohamed Mbilu [1984] T.L.R 113. In the case at hand, the burden of proof on the balance of probabilities rested with the respondent who alleged that the disputed land belonged to his late mother. The appellant contends that the respondent failed to meet this burden. I have examined the evidence given at the DLHT to determine if the respondent proved his claims on the balance of probabilities in comparison to his allegations at the DLHT regarding the the appellant's trespassing on his late mother's land. To prove that the land belonged to his mother and that the appellant was a trespasser, the respondent testified that his mother was given the disputed land by his late father after her divorce in 1972. The land was originally a forest, which his late mother cleared and cultivated. 7 PW2, PW3, and PW4 confirmed seeing the respondent's mother cultivating the disputed land throughout her life, although they did not know how she initially acquired it. On his part, the respondent stated that the disputed land belonged to his late father, Salumu Mussa Kilima. However, both of his witnesses, DW2 and DW3, testified that the land belonged to Bwana Salumu Mussa Kilima, who was the brother of the appellant's father, and they said that this Mzee Bwana was the one who lent the land to the respondent's mother for cultivation. Meanwhile, the appellant claimed that it was his father who lent the disputed land to the respondent's mother. Examining this evidence to the principle that the party with the stronger evidence prevails, it is evident that the respondent's evidence was stronger than the appellant's for the following reasons; One, the respondent was able to explain how his late mother acquired the land, stating that she acquired it in 1972 after being given a forest by her father, which she then cleared and continued to cultivate. Second, throughout this period, the respondent's mother cultivated the land without any interference, as there is no evidence to show that 8 during the lifetime of the respondent's mother and the appellant's father, any dispute over the land ever arose. Third, the appellant's side gave contradictory evidence regarding who owned the land before it was allocated to the respondent's late mother. The appellant claimed the owner was his father, while DW2 and DW3 stated that the owner was Mzee Bwana Salumu Mussa Kilima. Additionally, they did not specify how or when either Mzee Bwana or the appellant's father acquired the disputed land before lending it to the respondent's late mother. Fourth, I examined the testimony of DW2, who stated that the disputed land belonged to his father, not the appellant's father. However, he also said that after his father's death, the disputed land came into the possession of the appellant. The question is how the appellant came into that possession, whether as an heir or otherwise. If so, why does the appellant stand on the disputed land as the legal administrator of his father's estate, implying that the disputed land is not his nor Mzee Bwana's but rather his deceased father's? This is another contradiction. 9 Fifth, despite the appellant explaining that the respondent's mother was lent the land, they failed to specify when this happened and what the terms of the agreement were, such as how long she was to cultivate the land. It is implausible that from 1972 until 2008 when the appellant's father passed away, the respondent's mother was merely borrowing the land without any disputes arising, which also doesn't make sense. It should be remembered that in the 1970s, history shows that ownership of land could be established by clearing virgin land. The evidence provided by the respondent, which was unchallenged by the appellant, showed that the respondent's mother was the one who cleared the forest and began cultivating the land in 1972. This leads me to conclude that the evidence provided by the respondent at the DLHT was stronger than that of the appellant, considering the shortcomings I have highlighted above. Based on this reasoning, I agree with the DLHT that the respondent successfully proved his claims, and the DLHT did not err in deciding in his favour by declaring that the disputed land belonged to his late mother. Therefore, grounds one, two, and four of the appeal lack merit and are dismissed. io Moving on to the third ground of appeal, the appellant faults the DLHT for failing to consider his Exhibits attached to the written statement of defence. This ground is misconceived, as documents attached to a written statement of defence can only be used as evidence if they have been formally tendered to the court as Exhibits. See the case of National Microfinance Bank PLC & Another v. Lello Laurent Sawe (Consolidated Civil Appeals No. 385 "A" & 339 of 2021), published on www.tanzlii.go.tz [2024] TZCA 17, where it stated; ' Trite taw is that a document which is not admitted in evidence does not form part of the evidence and cannot be acted on to determine the rights of parties even if it is in the record or annexed to the pleadings.' Therefore, if the appellant did not tender these documents to the court as Exhibits, where the DLHT could have considered them in its decision, he cannot now complain about the DLHT's failure to consider them due to his own oversight. This ground also lacks substance and is dismissed. n All said and done, I find the grounds of appeal presented by the appellant lack merit and are therefore dismissed with costs. Consequently, the decision of the DLHT in Land Application No. 32 of 2023 is upheld. It is so ordered. Judge Court: The Jud ieen delivered today in the presence of the appellant and respondent 31/7/2024 12