LAND APPEAL NO

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA LAND APPEAL NO. 25078 OF 2024 (Originating from the decision of the District Land and Housing Tribunal for Tandahimba at Tandahimba in Land Application No. 24 of2024) HASANI SAIDI ALLY JIHANDO (An administrator of the estates of the late SAIDIALL Y JIHANDO)...................................................................APPELLANT VERSUS JAMALI HAMISI NAMANEHA............................................................................... 1stRESPONDENT AZIZI HAMISI NAMANEHA................................................................................. 2ndRESPONDENT ASHURA HAMISI NAMANEHA............................................................................. 3rdRESPONDENT JUDGMENT 25h February & 25h March 2025. DING'OHI, J; The instant appeal is against the Judgment and decree of the District Land and Housing Tribunal for Tandahimba at Tandahimba (trial tribunal) delivered on 29th August 2024 in respect of Land Application No. 24 of 2024. The trial tribunal dismissed the land case that was filed by the appellant herein, for want of merit. The respondents were thus declared lawful owners Page 1 of 12 of the suit land located at Mtunguru village in Newala District within the Mtwara region. The background of this appeal is that the appellant and the respondents are battling over the ownership of the parcel of land measuring about 3 acres situated at Mtunguru village within Newala district. Before the trial tribunal, the appellant herein, in his capacity as the administrator of her father's estate, the late Saidi Ally Jihando, testified that the respondents invaded the land in dispute, which had been owned by his late father since 1955. To support his case side, the appellant summoned two witnesses, Athumani Athumani Ayuma (PW2) and Salumu Selemani Namkoma (PW3), who are his neighbors in the disputed area. The PW2 and PW3 respectively told the trial tribunal that the land in dispute was previously owned by the late father of the appellant. On the other hand, the respondents, like the appellant, stated that the suit land is theirs. It was previously owned by their deceased father, and it is the place they were born. According to the respondents the appellant's father invaded the area. After the demise of his father, the appellant resisted in the area maintaining that the land belonged to his father. Following that state of affairs, parties found themselves in a land dispute which was taken Page 2 of 12 before the trial tribunal whose decision is subject to this appeal. To support their case, the respondents called two witnesses, Hamimu Nawanda (DW4) and Hawana Hamimu Nawanda (DW5), who also testified that the land in dispute belonged to the respondents after they inherited it from their deceased father. The neighbors of the suit shamba are mentioned to be Mzee Hamimu Nawanda, Mzee Lubeya Nammwala, Dadi Bakari Chipula, Dadi Bakari Dadi, and Mzee Liyangu. From the above brief facts, both parties herein claim to be respective owners of the same piece of land. As I have explained above, upon hearing both sides, the trial tribunal found for the respondents. It dismissed the appellant's suit with costs and declared the respondents rightful owners of the disputed land. The appellant found it hard to accept that decision by the trial tribunal. He came to this court holding the following two grounds for his dissatisfaction; 1. That the Tria/ District Land and Housing Tribunal erred in law and, in fact, in failing to appraise the strength of evidence adduced by the appellant vis a viz the evidence of the respondents about ownership of Page 3 of 12 the suit land consequently erroneously decided in favour of the respondents. 2. That the District Land and Housing Tribunal erred both in law and in fact in finding that the suit land was inherited by the respondents from their late father, one Hamisi Namaneha Ayuma, while there is no proof of that fact. Parties who were not represented successfully prayed that this appeal be disposed of by way of written submissions. In support of the first ground of appeal, the appellant contested that during the hearing of the suit before the trial tribunal, he explained in a lengthy how his father acquired the land in dispute and further that there was no dispute over the acquisition and use of the said land. The respondents are aware of this fact as they live in the village where the suit farm is located. That his testimony was corroborated and went along with the testimony of two other witnesses, namely, PW1 and PW2. According to the appellant, the respondents on their party failed to seriously challenge or offer substantial protest against this truth. Also, the respondents didn't sufficiently explain the chain of the alleged ownership Page 4 of 12 from the grandparents to their ownership; therefore, according to the appellant, their testimonies leave a lot of unfilled gaps. The appellant referred to the well-known cardinal principle of the law that in civil cases, the standard of proof is on the balance of probability. He was of the settled position that the balance of probability is tested by weighing the quality and credibility of the evidence or testimonies of the parties and ascertaining the probability of the facts to have happened. The appellant faulted the trial tribunal for failure to appraise his testimonies and consequently relied on the evidence of the respondents, which doesn't fit the principle of law which requires proof of the suit to the balance of probability as provided under section 3 (2) (b) of the Evidence Act, [CAP 6 R.E.2019]. The appellant is of the view therefore that neither the respondents nor their witnesses were able to make a good story as to how and why they left the late Saidi Ally Jihando to own and use the suit land for all that time without being interrupted by them if at all they had interest in the suit land. As to the second ground of appeal, the appellant started by referring to the provisions of sections 110 (1) (2) and 111 of the Evidence Act, [CAP 6 R.E 2019] which state that the burden of proof lies on the party who asserts Page 5 of 12 the existence of facts and needs the case to be decided on his favor. According to the appellant, the respondents did not discharge their burden by failing to substantiate the fact that they inherited the suit farm from their late father because there has never been appointed an administrator of the estate of the said deceased who would have distributed the property of the deceased to the respondents. Further to that, the appellant submitted that the allegations of the respondents that they have inherited the suit farm without having an administrator of the estate of their deceased father is wrong and is contrary to Section 71 of the Probate and Administration of Estates Act, [CAP 352 R.E 2019] read together with paragraph 6 of the 5th Schedule of the Magistrates Courts Act, [CAP 11 R.E 2019] which mandate the power to deal with the deceased estates to the administrator of the estate only. According to the appellant, it has also been highlighted by the Court of Appeal of Tanzania in the case of Ibrahimu Kusaga vs. Emmanuel Mweta [1986] TLR No.26, among other things that the person who is to deal with the deceased estates must be an administrator of the estates of the deceased. On the premise of what he submitted, the appellant prayed that this appeal be allowed. Page 6 of 12 The respondents, on the other side, argued in opposition to the first ground of appeal that the trial tribunal correctly held that the suit land belongs to them. According to the respondents, the evidence that was produced by them has proven their claim on the suit land as opposed to the appellant. In furtherance, they submitted that in his submission, the appellant stated that the suit land was owned by his late father since 1955, while in the evidence he gave before the trial tribunal, he stated that the land was acquired in 1975. According to the respondents, these contradicting statements show that the facts are manipulated by the appellant for his benefit. Equally, the respondents argued that it is the principle of the law that in civil cases the standard of proof is on a balance of probabilities, which simply means that the court shall sustain such evidence that is more credible than the other on a particular fact to be proved. The respondents maintained that the trial tribunal correctly decided in their favor because they managed to prove that their late father was the rightful owner of the suit property. To bolster their stance, a case of Hemed Said vs. Mohamed Mbilu (1984) TLR 113 was cited and relied on. Page 7 of 12 On the second ground of appeal, the respondent briefly submitted against the complaint that no person who was appointed as administrator of the estate of the late Hamisi Namaneha for the respondent to have inherited the land from the estate of their deceased father. The respondent found this ground to be baseless because the estate of the late Hamisi Namaneha was administered per the law relating to the administration of the estates. Based on what they submitted, the respondents prayed that this court be pleased to uphold the decision by the trial tribunal and dismiss the appellant's appeal with costs. Having gone through the trial court's records, grounds of appeal, and submissions by parties herein for and against the appeal the main and relevant issue now turns out to be whether the appeal has merit. In the first place, upon examining the rival submissions of both parties, I think two grounds of appeal raised by the appellant boil into one issue of whether this appeal has merit. To start with, I wish to re-emphasize the ever-cherished principle of law, which is also the spirit and in the context of sections 110 and 111 of the Evidence Act, Cap 6 R.E 2022, that generally, in civil cases, the burden of proof lies on the party who alleges anything in his favor. I am fortified in my Page 8 of 12 view by the recent decision of the Court of Appeal in FB General Contractors and Another vs. Bank of Baroda Tanzania Limited (Civil Appeal No. 202 of 2022) [2025] TZCA 61 (24 February 2025), where it was stated that; 'The Court has consistently emphasized that in civil cases, proof is on balance ofprobability and that a party who asserts the existence of a fact and desires a judgment of a court in his favour must discharge a burden of proving the respective fact.' Also, in Richard Kigaraba vs. Jonas Laurent & Others (Civil Appeal No. 377 of 2019) [2024] TZCA 268 (15 April 2024), the Court stated; 'It is elementary law that a person who alleges must prove what he alleges. It is the appellant who brought the first and second respondent to court and it was incumbent upon him to prove his allegations. This burden, upon settled law, did not shift.' In the case at hand, as I have shown herein above, each side claims to have inherited the disputed land from its father. Each party claims that their father was the first person to use the suit land for a long time. However, Page 9 of 12 upon scanning the records of the appeal, there is no dispute that the suit land was first used and owned by the respondent's father. This has been well confirmed even by the appellant's witnesses (PW1 and PW2) when they gave evidence before the trial tribunal. For clarity, I wish to point out herein what they have testified. For instance, on pages 10 and 11 of the trial tribunal's typed proceedings, on their respective evidence, PW2 and PW3 were recorded admitting that the suit land was previously owned by the father of the respondents. There is no other evidence suggesting that the father of the respondents then gave the said land to the father of the appellant. Based on the above circumstances, I should state rightly that the burden of proving the fact that the land in dispute belonged to the appellant's father was on the appellant, who initiated the land dispute in the trial tribunal and not the respondents. After scrutiny of the evidence of both sides, I will agree with the findings of the trial tribunal that the appellant failed to discharge his primary duty of proving with the evidence that the land in question was the property of his father. In land cases, a party who fails to point out perfectly how and when he acquired the land that is in dispute is said to have prepared for his defeat. Page 10 of 12 It follows therefore that the contention that the trial tribunal erred in law and, in fact, in failing to appraise the strength of evidence adduced by the appellant has no legal backing on the reasons already given herein above. I reject it. Nevertheless, even the complaint that there was never a person appointed as administrator of the estate of the late Hamisi Namaneha, the respondent's deceased father for the respondents to have claimed inheritance, is irrelevant under the circumstances of this case. I am of that view because at the place the dispute has reached and since there is no dispute that it was the appellant who filed a case against the respondents at the trial tribunal, if the respondents were wrongly sued, it was he to bore the blame. A party who sues another in a court of law will not be heard to complain at the appellate stage that he failed in the suit because he sued the wrong person. It is for the foregoing reasons, I find this appeal devoid of merit. It is hereby dismissed with costs. Dated at Mtwara this 25th day of Inarch, 2025. Court: Judgment delivered this 25th day of March 2025 in the presence of the appellant and the second Respondent, in the absence of the 1st and 3rd Page 12 of 12