Himbahimba

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO DISTRICT REGISTRY) AT MOROGORO LAND APPEAL NO 23216 OF 2024 (Originating from the decision of Kilosa District Land and Housing Tribunal dated 30*^ July 2024 In Land Application No. 51 of 2017) 1. ISDORY FRANCIS MALATA 1®* APPELLANT 2. HASSANI SALUMU BOMBWE 2"^ APPELLANT 3. SELEMANI SALUMU [The administrator of the Estate of the late Salum Nassoro] 3*^^ APPELLANT VERSUS KASSIMU MOHAMEDI HIMBAHIMBA RESPONDENT JUDGMENT 20/11/2024 & 29/11/2024 KINYAKA,J.: The appellants together with one Mwajuma Kaniki who is not a party to the instant appeal were jointly and severally sued at the District Land and Housing Tribunal for Kilosa at Kilosa hereinafter the "Tribunal"for an alleged trespass over a 35 acres farm located at Kilangali village, Kisiwani area, within Kilosa District in Morogoro region hereinafter the "disputed land". The respondent's claim before the Tribunal was that the disputed land belonged to the estate of his late father, the late Mohamed Himbahimba who acquired the same In the year 1969. The respondent's application at the Tribunal reveal that the alleged trespass occurred in the year 2010, and that the respondent's effort to have the disputed land back to him as the administrator of the estate of the late Himbahimba, proved futile as the appellants neglected to vacate the suit land peacefully. The respondent \was prompted to commence a land dispute at the Tribunal claiming for the foilovtfing reliefs against the appellants: A /I declaration in favor of the respondent that the first and second appellants are trespassers onto the disputed land; a. The respondent be declared as the lawful owner of the disputed land; Hi. Eviction ofthe first and second appellants from the disputed land; iv. Permanent injunction to restrain and prohibit both appellants from trespassing onto the disputed land and Interfering with the peaceful occupation ofthe land by the applicant; V. That the appellants be orderedjointly and severally to pay general damages to the applicant for trespassing and occupying the applicants iand Hiegaiiy^ to be assessed by the tribunal but notless than Tanzanian shillings ten Million per annum from the year 2010 till vacation ofthe suitiand by the respondent; vi. That the appellants be ordered to pay costs ofthe application; and vii. Any other reHef(s) that the trial tribunal would deem just and equitable to grant in favour ofthe respondent -y 4=' In their respective written statements of defence, the appellants refuted the respondent's claim and put him to a strict proof of the claims. At the culmination of the trial, the Tribunal decided for the respondent and ordered the appellants to vacate the disputed land. The appellants were aggrieved. They lodged before this Court Land Appeal No. 15 of 2021 on 11'^ November 2021 seeking to assail the decision of the Tribunal. It should be noted that Mwajuma Kaniki who was the 3"" respondent at the Tribunal was not among the appellants in Land Appeal No. 15 of 2021. Upon considering the parties submissions and Tribunal's records, this Court found that there were variations on the oral evidence of the DW2, DW3 and DW8 as regards to the location of the disputed land. The court therefore opined that it was vital for the Tribunal to visit the locus in quo so as to ascertain the exact size and boundaries of the disputed land. In consequence, the judgment, decree and orders of the Tribunal in respect of Land Application No. 51 of 2017 were set aside. The Court further ordered the trial chairperson to take additional evidence in relation to the issue of trespass of the disputed land by visiting the focus in quo and thereafter compose a new judgment. In compliance to the Court's orders, the locus visit was made on March 2024 where all parties to the suit were in attendance save for Mwajuma Kaniki whose whereabouts were undisclosed. In its fresh judgment dated 30^^ July 2024, the Tribunal maintained its earlier findings. In arriving at its decision, it relied on the fact that the respondent was able to establish his late father's ownership over the land as the deceased was the one who cleared the disputed land in the year 1967 and occupied the same until 1982 when he met his death. It discarded the sale agreement dated 20^ April 2010 which evidenced the sale of the disputed land from Mwajuma Kaniki to the 1^ appellant for not disclosing the description of the sold land and PWB's denial that he didn't sign the sale agreement. It was also the finding of the Tribunal that Mwajuma Kaniki had failed to prove her title over the disputed land, and thus she had no title to pass to the 1^ appellant. All the same, the Tribunal found no truth in the evidence adduced by the 2"^ and the appellants for a reason that they failed to both prove the title that their late father Salumu Bombwe had over the land, and that they have inherited the same from him. On that basis, the suit was adjudicated in favor of the respondent as the Tribunal ultimately declared the disputed land as part of the estate of the 4 Jsx late Mohamed Himbahimba. The appellants were as a result declared as trespassers to the land and both the eviction and permanent injunction orders were issued against them. It was also ordered that the costs of the suit be borne by the appellants. Dissatisfied with the Tribunal's decision, the appellants preferred the instant appeal advancing the following grounds of appeal: 1. That the trial tribunal erred in law and in facts when it pronounced that the late Mohammed Himbahimba was allocated land by a village government [council] in the absence of cogent evidence; 2. That the trial tribunal erred in law and in facts by striking out the name of Mwajuma Kaniki; 3. That the trial tribunal erred in law and facts when it deliberately vacated from pleadings; 4. That the trial tribunal erred in law and in facts by deliberately ignoring the evidence tendered by the appellants herein; 5. That the trial tribunal erred in law and in facts by delivering a judgment when it was not properly constituted; 6. That the trial tribunal erred in law and in facts when it failed to appreciate that customary inheritance need no proof of inventory; and 5 7. That, the trial tribunal erred in law and facts by not complying with the orders of the High Court dated 11/08/2023. Before me, Mr. Emmanuel Kimaro, learned advocate submitted in support of the appeal on behalf for the appellants. On the other hand, the respondent appeared in person and argued the appeal on his own. In his submissions, Mr. Kimaro proposed to start with the seventh ground of appeal, followed by the third, first, second, sixth and finally the fourth ground. He chose to abandon the fifth ground of appeal. Starting on the seventh ground which attacked the Tribunal for non- compliance with the order of the High Court dated 11*^ August 2023 found on page 13 of the judgement, Mr. Kimaro contended that the judgement does not indicate if there was compliance with the orders of the High Court which found that it was crucial for Tribunal to confirm on the physical location, boundaries and neighbours to the disputed land after noticing the variances In the testimonies of DW3, DW5 and DWB as regards to the location of the land. It was thus his expectation that in the new judgement of the Tribunal, the house in which the family of the respondent were living according to the respondent's testimony, would have been indicated. In a nutshell, he was of the view that the Tribunal did not comply with the order of the High Court but rather fixed gaps in the respondent's testimony. Next, Mr. Kimaro submitted on the third ground of appeal, in which he complained that after the order of the High Court directing the Tribunal to visit the locusin quo, the respondent testified that he was claiming for a suit land having two pieces of land, one was at MIegeni Kisiwani hamlet, Kilangali village, Kilosa District and the other one was in Maluwi Village, Kidago hamlet, Kilosa District vacating from the pleadings. He argued that the foregoing testimony was contrary to the respondent's pleadings in the previous land suit before the Tribunal where the respondent claimed for ownership located at MIegeni Kisiwani hamlet, Kilangali, Kilosa District in Morogoro Region. As such, he opined that the evidence is an afterthought after the respondent heard the testimony of PW2 and PW4. He finally cited the case of James Funke Gwagilo v. Attorney General, Civil Appeal No. 97 of 2001 in which it was held that parties are bound by their own pleadings to front his complaint that it was wrong for the Tribunal to consider evidence which was not part of the claim in the pleadings. On the first ground, the learned counsel contended that the claim that the late Mohamed Hamisi Himbahimba was allocated the land by the village council was not substantiated by the certificate of ownership or minutes of the village council that approved the land allocation to the late Mohamed Hamisi Himbahimba. He elaborated that in the year 1969, the procedure of the village council to allocate land to the citizen was not yet introduced and further that there was no evidence tendered to prove that the village had been established. He concluded that there was no sufficient evidence to prove that either the village granted the disputed land to the late Mohamed Hamis Himbahimba or that the village had mandate to allocate the disputed land to the respondent. As regards to second ground, Mr. Kimaro contended that it was the appellants who omitted the name of Mwajuma Kaniki when preferring their appeal to the High Court. He said, the omission of Mwajuma Kaniki in Land Appeal No. 15 of 2021 has impacted the subsequent judgement in Land Application No. 51 of 2017 after the order of the High Court. He contended that the parties appearing in the first judgement of the Tribunal are different from the subsequent judgement of the Tribunal. The learned advocate further submitted that the omission of the name of Mwajuma Kaniki in the decision of the Tribunal subject of this appeal, has an effect on the parties that were sued at the Tribunal. He cited the case of MIC Tanzania Limited V. Empty Souls Production & Another, Civil Appeal No. 12 2023 and argued that parties should appear as they were in the trial court proceedings. Regarding the 6^^ ground, the learned counsel attacked the Tribunal's reasoning that customary inheritance needed proof of inventory and thus reaching into a finding that Mwajuma Kaniki did not establish her inheritance of the disputed land for her failure to produce the inventory. He reminded the Court that the customary inheritance is regulated under Local Customary Declaration Order No. 4 of 1963, hereinafter the "Order" and that there is no requirement of inventory in the Order. He added that unless customary laws are discriminatory, they are applicable placing reliance on the decision in the case Bernado Ephraim v. Olalia Pastory, Civil Appeal No. 70 of 1989. In support of the fourth ground, he submitted that although the Tribunal evaluated the evidence of the appellants, it did not consider the evidence adduced by the appellants which led to denial of the appellants' rights. It was therefore Mr. Kimaro's prayer for the Court to quash the decision of the Tribunal and declare the appellants as the rightful owner of the disputed land and the respondent as a trespasser thereon, and grant other orders prayed in the memorandum of appeal. In his reply submission, the respondent preferred to submit on the grounds as presented in the appellants' memorandum of appeal. Responding to the first ground of appeal, the respondent admitted that the villages were not yet established when the late Himbahimba was allocated the disputed land. He however contended that his late father was given the disputed land by the village elders and was allocated later on by the village when it was established. On the second ground, the respondent informed the Court that he sued Mwajuma Kaniki and contended that it was not his mistake that her name was omitted. Submitting against the third ground, the appellant clarified that what he testified is that his land is in Kisiwani, Kilangali Village and that in between the land, there was a foundation/canal that was dug in order to pass water to the farms. He insisted that it is the same farm and not two different farms. On the fourth ground, the respondent admitted that he read the judgment but he doesn't understand matters of law. As such, he told the Court that he cannot comment on whether the Tribunal ignored or did not ignore the evidence of the appellants as on the date of the judgement, the Tribunal only ready the verdict part and not the entire judgement. 10 Against the sixth ground, the respondent insisted that Mwajuma kaniki failed to prove that she inherited the disputed land from her mother. He informed the Court that Mwajuma Kaniki signed a document to confirm that she had no right to the property and that the disputed land was not hers. Regarding the seventh ground, the respondent contended that the house that was built in the disputed land collapsed as it was an old house built around 1962. He however informed the Court that when the Tribunal visited the focus in quo, they saw the disputed land with mango trees and that even the leaders of the village know the disputed land. In the end, he implored the Court to consider the evidence he presented at the Tribunal and make a decision. In his rejoinder Submissions, Mr. Kimaro notified the Court that in his reply submissions the respondent has admitted that at that time in 1969, the village was yet to be established. He however complained that the submission that the late Mohamed Hamisi Himbahimba was given the land by elders is a new fact. Regarding the respondent's submission that the entire disputed land is one, Mr. Kimaro contended that the respondent ought to have pleaded the same in his application. 11 In his further submissions, the counsel informed the Court that the respondent did not respond to the sixth ground of appeal. He added that the respondent submitted that the house was there since 1962 but there is no such evidence in the record. As to the complaint on the second ground of appeal, Mr. Kimaro unveiled that Mwajuma Kaniki died after the first decision of the Tribunal was pronounced and before the appellants appealed to the High Court. He admitted that it was the appellants who were taking an appeal to this Court who were supposed to make sure that they comply with obtaining the administrator of the estate of Mwajuma Kaniki before they appealed to the High Court. In winding up his submission, the appellants'learned counsel prayed for their prayers to be granted. My role in the present appeal is to determine whether according the evidence on record, the Tribunal was incorrect to allow the respondents' suit before it. In the course of determination, I will consider each ground of appeal separately and in the sequence raised by the appellant. I will not determine the fifth ground of appeal as it was abandoned by the appellant. 12 The first ground Is a complaint that the Tribunal erred to pronounce that the late Mohammed Himbahimba, hereinafter the "late Himbahimba" was allocated land by a village council without cogent evidence. I have read the judgement of the Tribunal. I have not seen anywhere in the judgement of the Tribunal where it pronounced that the late Mohammed Himbahimba was allocated the disputed land by a village government or village council. The Tribunal's decision did not base on the allocation made by the village council to the late Himbahimba. Its holding on page 10 through to 11 of the judgement is based on the appellant's(PWl)testimony that his father cleared the forest in 1969 and used the same for agriculture until his demise in 1982. The Tribunal held: "'Mleta maombi amethibitisha kuwa shamba gombaniwa ni mali ya marehemu Mohamedi Himbahimba kwani aiifyeka shamba hiio mwaka 1969 na kuiitumia mpaka mwaka 1982 aiipofariki na kuendeiea kuwa chini ya usimamizi wa ndugu zake kama iiivyofafanuiiwa hapojuu." I therefore do no find merit in the first ground of appeal and I dismiss the same. I now turn to the appellants' complaint in the second ground in which the Tribunal is faulted for striking out the name of Mwajuma Kaniki. 13 In answering this Issue, I found It crucial to narrate, albeit briefly, the Involvement of Mwajuma KanikI, who was the 3"*^ respondent in the suit before the Tribunal, in the present dispute. When the respondent Instituted Application No. 51 of 2017, he sued only the first and second appellants who were the first and second respondents, respectively before the Tribunal. Later, on 18^^ September 2019, the respondent amended the application and joined Mwajuma Kaniki as the 3'^ respondent and the 3'"^ appellant as the 4^^ respondent after the order of the Tribunal. All respondents before the Tribunal including Mwajuma Kaniki gave their testimonies. Consequently, the Tribunal made a decision in favour of the respondent herein on 27^ September 2021, hereinafter the "first judgement". It is on record that on 11^ November 2021, the respondents preferred an appeal to this Court. However, for undisclosed reasons, the appellants omitted to include Mwajuma Kaniki as a party to the appeal. In the circumstance, this Court will be acting both unjustly and unfairly to the respondent if it will permit the appellants to benefit from their own omission. Even by assuming the name was inadvertently omitted, the appellants were also duty bound to notify this Court of the said omission before the 14 determination of Land Appeal No. 51 of 2017 so that it would have issued the necessary orders of amendment of the pleadings before it could proceed with the merits of the appeal. In the matter at hand, the appellants who were the ones who caused the anomaly and irrationally chose not to exercise the duty of the informing the first appellate court of the same, are the ones complaining of their own mischiefs. It is even more surprising that they are using the complaint as a basis of defeating the outcome of the decision of the Tribunal, the subject of the present appeal, which to me is legally unacceptable. Furthermore, apart from complaining on the omission of Mwajuma Kaniki's name as defeating the principle that names of the parties must appear as they were in lower courtjudgments, the appellants being the co-respondents of Mwajuma Kaniki at the Tribunal have not articulated to this court on how they were prejudiced by the said omission. The above notwithstanding, I have also considered the information availed by the appellants' counsel in his rejoinder submissions that the appellants disclosed to him that Mwajuma Kaniki died after the pronouncement of the first judgement and before the appellants lodged Land Appeal No. 15 of 2021, hereinafter the "previous appeal". But for undisclosed reasons, the 15 appellants omitted to include Mwajuma Kaniki or her legal representative in the previous appeal despite being aware that Mwajuma Kaniki died after pronouncement of the first judgement and before they preferred the previous appeal to this Court. In the circumstance, the question that arises Is who had the obligation to join the legal representative of Mwajuma Kaniki? In my considered opinion, it was the appellants who had the legal obligation to join the legal representative. If any of Mwajuma Kaniki. Obviously,they were the ones who were taking steps to appeal or had a pending appeal before this Court against the decision In the first judgement. They were the ones who knew that Mwajuma Kaniki had died. Order XXII Rule 1 of the Civil Procedure Code Cap. 33 R.E. 2019, hereinafter the "CPC", provides that the death of a plaintiff or defendant shall not cause the suit to abate If the right to sue survives. However, the cumulative of the provision of Rule 2 and 3(1) of Order XXII of the CPC Imposes an obligation to a party who has a right to sue when the right to sue survives, to apply to court In order to cause the legal representative of the deceased to be made a party to the proceedings. Order XXII Rule 2 and 3(1) provides: 16 2. Where there are more plaintiffs or defendants than one and any ofthem dies, and where the right to sue survives to the surviving piaintiff or piaintiffs aione, or against the surviving defendant or defendants aione, the court shaii cause an entry to thateffect to be made on the record and the suit shaii proceed at the instance of the surviving piaintiffor piaintiffs, or against the surviving defendant or defendants. Procedure in case of death of one ofseveral plaintiffs or ofsoie piaintiff. 3(1) Where one of two or more piaintiffs dies and the right to sue does not survive to the surviving piaintiff or piaintiffs aione, or a soie piaintiffor soie surviving piaintiffdies and the right to sue survives, the court, on an appiication made in that behaif, shaii cause the iegai representative of the deceased piaintiff to be made a party and shaii proceed with the suit In the light of the above authority, I hold that being the ones who had initiated the appeal, the appellants were the ones who had the obligation to ■Ay 17 join the legal representative of Mwajuma KanikI in the previous appeal knowing that she had died. Notwithstanding my above position, it is on record that in the previous appeal, this Court quashed and set aside the judgement and decree of the Tribunal in respect of the first judgement, but retained the proceedings and ordered the Tribunal to visit the locus in quodiud take additional evidence. Upon compliance with the order, the Tribunal, upon consideration of the evidence received at the focus in quo, delivered its decision on 15^ August 2024 in favour of the respondent, but omitted the name of Mwajuma KanikI as a party to the judgement. I am of the considered position that the omission is not fatal. I will provide the bases for so holding herein below. From the record of the Tribunal, Mwajuma Kaniki passed her alleged interest in the disputed land to the 1^ appellant, Isdory Francis Malata since 2010. The appellant testified that he has been In occupation of the disputed land throughout, including at the time of the dispute at the Tribunal. It means that Mwajuma had no interest after she sold the same to the appellant. Even if Mwajuma or her legal representative, if any, atttended the proceedings in the focus in quo, it would not affect the suit based on the 18 reason that she had already presented her evidence at the Tribunal at the hearing of suit and v^as not an interested party in the disputed land. Her legal representative if any, would have stood in the same position as Mwajuma, being not an interested party in the disputed land. It would have been different if it was the first appellant, the buyer of the land in dispute who would have been omitted in the proceedings both in the /ocusv\s\t and in the appeals before this Court. In the circumstances, it could be safely held that the omission is fatal. In the present case,the appellant was party to the previous appeal, gave his testimony at the Tribunal and was present and testified at the focus in quo after the orders of this Court in the previous appeal. The other basis is the abatement of suit against Mwajuma Kaniki. The suit against Mwajuma Kaniki abated upon the appellants' failure to apply to the Court to join Mwajuma's legal representative in the previous appeal within a period of 90 days as provided for under Item 16 Part I of the Schedule to the Law of Limitation Act Cap. 89 R.E. 2019. This is in line with Rule 3(2) of the CPC which provides: 3. Where within the time iimited bylaw no application is made under sub-rule (1), the suit shall abate so faras the deceasedplaintiffis concerned and, on the application ofthe defendant, the court may award to him 19 the costs which he may have incurred in defending the suit, to be recovered from the estate ofthe deceased piaintiff. [Emphasis added] It means that it was not necessary for the Tribunal to include Mwajuma Kaniki in the proceedings and as part of the judgment. Even if in the circumstance, the suit would not abate against Mwajuma Kaniki, I have also considered the provisions of section 3A and 3B of the CPC on the overriding objective principle and the duty of the Court to uphold justice. This Court is enjoined to exercise Its powers to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes by justly and timely determining proceedings at a cost affordable by the respective parties. In invoking the principles, I have considered that Mwajuma Kaniki no longer had interest in the disputed land but the 1^ appellant to whom she sold the land. Again, even if I remit the file to the Tribunal to insert the name of Mwajuma Kaniki or cause her legal representative to be joined, it will not change the merit of the dispute and the decision of the Tribunal especially in this case where Mwajuma Kaniki duly gave her evidence before the Tribunal. 20 Based on my above observation, although the name of Mwajuma Kaniki is not included as one of the parties in the judgement of the Tribunal, the same is not fatal. I find no merit in the second ground of appeal. I thus dismiss the same. The appellant's third ground faults the Tribunal for vacating from pleadings deliberately. The appellant submitted that upon the order of this Court for the Tribunal to collect additional evidence at the locus in quo, the Tribunal held that the disputed land has two pieces of land, one at MIegeni Kisiwani hamlet, Kilangali village, Kilosa District and the other in Maluwi Village, Kidago hamlet, Kilosa District, contrary to the respondent's pleadings where the respondent claimed for ownership of the land located at MIegeni Kisiwani hamlet, Kilangali, Kilosa District in Morogoro Region. I have read the proceedings of the focus in quo conducted on 2"^ March 2024. PWl reiterated that his 35 acres of land is located at MIegeni Kisiwani and pointed out the boundaries in conformity with his pleadings. It is PW2 who testified that they measured the disputed land of 35 acres located at MIegeni Kisiwani, Kilangali Village which had part A on which they stood and part B located at the other side after the canyon which borders Mkelewe. The appellant testified at the focus in quo^h^t his land is located MIegeni 21 Kisiwani while the 2"^ and 3^^ appellants testified at the focus in quo that they own the land located at Kidato hamlet, Maluwi village. That part of the evidence was reiterated by the Tribunal on page 10 paragraph ii (b) of the judgement. In its judgement on page 13 paragraph vii, the Tribunal held that the disputed land had two parts based on what transpired at the focus fn quo. The Tribunal had mandate to take additional evidence. The finding was based on the description of the disputed land confirmed at the focus in qucKS^yon the description of PW2. PW2 was the then Chairperson of Kisiwani hamlet, and who in cooperation with the village leadership, visited the disputed land owned by the late Himbahimba, measured the same and confirmed that it was 35 acres. It should be noted that the respondent sued for trespass. Not only that It was the appellant who claimed that he owns the land located at Mlengeni Kisiwani, Kilangali Village, but also DW2 and DW3 asserted their ownership of the land located at Kidato hamlet, Maluwi village. This is why in its decision In the previous appeal, the Court ordered the visitation to the focus in quo to get clarification of the disputed land with two different names. It was upon the visitation at the focus fn quo, that the Tribunal confirmed the disputed 22 land was divided by the canyon in two parts one at MIengeni Kisiwani, Kilangali Village trespassed by the appellant and the other at Kidato hamlet, Maluwi village trespassed by the 2"^ and appellants. In his reply submissions, the respondent informed the Court that it is the only one farm that is divided by the canyon, not two different farms. It means that the appellant trespassed the disputed land on part A and the and 2"^ appellants on part B. I find that the Tribunal did not vacate from the pleadings. I dismiss the third ground of appeal for lack of merit The fourth ground attacking the Tribunal for ignoring the evidence of the defence, is unmerited. The Tribunal reproduced in summary the testimonies of all defence witnesses on page 7 through to 9 of the judgement. On page 11 of the judgement,the Tribunal reproduced the evidence of DWl, DW2, DW3 and DW9 collected at the locus in quo. On the same page 11 paragraph ii (a), the Tribunal did not give weight to the evidence of DW4 Mwajuma Kaniki as she failed to substantiate if she owned the disputed land that she sold to the 1^ appellant as there was no evidence to prove the same. The Tribunal held further on page 12, paragraph ill that Mwajuma Kaniki foiled to prove her mother's ownership of the disputed land upon her claim that she inherited the same from her. The Tribunal further held in A*— 23 paragraph iv of page 12 that DW9 testified that Mwajuma Kaniki had never owned the disputed land but the same was owned by the uncle of Mwajuma's mother who authorized Mwajuma's mother to cultivate on the same. The evidence is corroborated by the testimonies of PW4 that Mwajuma had never owned the disputed land. In paragraph ii (c) of page 11 of the judgement, the Tribunal held that though the 1^ appellant relied on Exhibit DEI, the sale agreement between him and Mwajuma Kaniki, the same does not indicate the location, boundaries or neighbours bordering the land. It held further in paragraph ii (d) that PW3 denied to have witnessed Exhibit DEI despite the 1^ appellant's testimony that PW3 witnssed the same. PW3 testified that he did not witness the sale agreement as he was no longer the chairman of the hamlet in 2010 when the alleged sale transaction took place. The testimony of PW3 was corroborated by PW7. Against the 1^ appellant, the Tribunal held on page 12 paragraph ii (e)that DWl (the 1^ appellant) and DW7 testified that DWl was not around during the sale transaction on 20^^ April 2010 but he sent someone to represent him. The Tribunal held that DWl did not name his representative and did not present him/her to testify before the Tribunal. The Tribunal held further 24 that Exhibit DEI Indicate that the buyer was the appellant and he signed the document. Regarding the 2"^ and 3^^ appellants, the Tribunal well considered their testimonies and those of their witnesses on page 13 paragraph vi and vii. It held that no evidence was tendered to prove that their late father, Salumu Bombwe owned the land and how he came to own the same. It added that in their testimonies and the testimonies of their witness, none of them testified to have been bordering Mwajuma Kaniki. I hold that the Tribunal considered the evidence of the defence but it correctly gave lesser weight compared to the evidence of the prosecution. The Tribunal did not ignore the evidence of the defence as contended by the appellants. I dismiss the fourth ground for being baseless. I also do not find merit in the sixth ground of appeal where the appellants fault the decision of the Tribunal for its failure to appreciate that customary inheritance need no proof of inventory. The complained part of the decision of the Tribunal is found in paragraphs iii and vii of pages 12 and 13 in respect of the inheritance of Mwajuma Kaniki, and the 2"^ and 3''^ appellants, respectively. 25 It is the requirement of the law that upon the death of the owner of an asset, there should be legally appointed administrator to administer the estate of the deceased. Although the inventory may not include all assets owned by the deceased, but it cannot be said that the customary law of inheritance does not require inventory once a probate or letters of administration is sought and granted. On the contrary, it has been emphasized times without a number that the filing of inventory is a legal requirement aiming at reflecting the status of the deceased's estate upon the identification and collection of his properties by the legal representative of the deceased. Whether the inventory was a necessary document or not, I hold that the failure by Mwajuma Kaniki, the 2"^ and 3^^ appellants to prove their ownership through inheritance and the ownership of their parents, was sufficient to accord no weight to their defence evidence. I dismiss the sixth ground for lack of merit. The seventh ground is a complaint that the Tribunal did not comply with the orders of this Court dated August 2023. Mr. Kimaro argued that in the visit to the locus in quo, the Tribunal was expected to confirm the existence of the house in which the family of the respondent were living according to 26 his testimony. The respondent submitted that it Is true that there was house but the same crumbled as It was an old house. The record of the Tribunal reveals that not only the respondent who adduced the existence of the house In the disputed land but also PW2. PW2 Informed the Tribunal that they visited the disputed land after the village government received a complaint relating to the dispute between the appellant and Mwajuma Kanlkl. He testified that when they visited the disputed land they found a house within the disputed land and confirmed that the same was owned by HImbahlmba. I find that If the house was found In the disputed land In the years 2010/2011, It is not Impossible for the village house to crumble after almost 14 years when the Tribunal visited the locus in quo. The above observations resolve the seventh Issue In the negative. The same Is dismissed for being unmerited. The above findings justify me to hold that the present appeal lacks merit I uphold the decision of the Tribunal which correctly found and held that the disputed land Is lawfully owned by the respondent as an administrator of the estate of the late Mohammed HImbahlmba. Consequently, I dismiss the appeal with costs. 27 It is so ordered. Right of Appeal to the Court of Appeal fully explained. DATED at MOROGORO this 29^^ day of November 2024. —f ^<4^ H. A. KINYAKA JUDGE 29/11/2024 ^ORG 28