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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO. 15506 OF 2024 (From the Decision of the District and Housing Tribunal for Mbarali at Rujewa in Land Application No. 40 of 2023) JANGDOM EXAVERY MSAVINYI……………...…………APPELLANT VERSUS KOSTA SIMON MBILINYI…...……………………. RESPONDENT JUDGMENT Date: 25 November 2024 & 17 February 2025 SINDA, J.: The appellant in this appeal through the power of attorney from Exavery Zabron Msavinyi at the District Land and Housing Tribunal of Mbalari at Rujewa (the Trial tribunal) instituted Land Application No. 40 of 2023 claiming to be the lawful owner of 30 acres located at Mabatini Hamlet, Mbalino Village, Ward of Itambolelo, Mbalari District within Mbeya Region (the Disputed Land). He claimed that the respondent father borrowed the Disputed Land from the appellant father in 2012 so as to use the Disputed Land for grazing cattle. Later on, when the appellant father 1 wanted to take the Disputed Land, the respondent father got sick and passed away in 2021. After the death of the respondent father, the appellant father returned to take the Disputed Land. He found the respondent cultivating the Disputed Land and the respondent refused to return the Disputed Land claiming that the Disputed Land belonged to his deceased father. The application proceeded ex-parte because the respondent filed his written statement of defence out of time. At the end of hearing the Trial Tribunal found that the appellant failed to prove his claim/case to the required standard and the application was dismissed. Aggrieved by the decision of the Trial Tribunal the appellant filed this appeal on the following grounds: 1. That, the trial tribunal erred, in fact and law for declaring that the respondent, did not trespassed to the appellant’s land, while the respondent father did not deny to have been submerged the disputed land by the appellant’s without payment (i.e. respondent’s father was an invitee). 2. That, the trial tribunal erred in fact and the law for failure to analyse and evaluates, evidence properly that renders to a wrong decision. During hearing of the appeal, the appellant was represented by Ms. Pamela Kalala, advocate while the respondent was represented by Ms. 2 Brigita Shao, advocate. The appeal was argued by way of written submission. The appellant argued the grounds of appeal interchangeably that from the face of record it’s not disputed that the trial chairman erred in law and facts by dismissing the appellant’s case while it was not disputed that the farm belonged to the appellant’s father as reflected from the evidence of PW1 at page 9 to 10 of the Trial Tribunal proceedings (the Proceedings). The Trial Tribunal ignored and or failed to analyse and evaluate properly, the evidence adduced by the appellant, simply because the Exhibit P2, shows that even Simon Mbilinyi family, has a knowledge that the Disputed Land belongs to the appellant’s father. Also from the evidence of PW2, who testified that, the Disputed Land belongs to Exavey Zabron Msavinyi because he was a village executive of Mbalino from 1989 to 1999 and he found the appellant living in the Disputed land the evidence was also corroborated with the evidence of PW3, who testified that he was the leader of that area from 1990 to 2002. Also, he witnessed when the respondent father borrowed the Disputed Land from the appellant father. He referred from page 14 to page 15 of the Proceedings. She was with the opinion that the Trial Tribunal failed to analyse properly the evidence on records 3 She submitted that the respondent’s father was an invitee and can not own the Dispute Land. He referred to the case of Magoiga Nyankorongo Mriri vs. Chacha Moroso Saire, Korossoja, Civil Appeal No. 464/2020 (CAT) Musoma, on page 12, there in cited the case of Barnabas Yohanna Shedafa (legal represatative of the late Yohanna Shedafa), Civil Appeal no. 101/2018 (unreported). She submitted that the evidence of PW1 was corroborated with the evidence of PW2 and PW3. She submitted further that the Trial Tribunal contradicted itself on discussing the issue of boundaries. The issue was the respondent trespassing the appellant’s fathers land, because he was not known to the appellant’s father and was not the one who was invited into the Disputed Land. Also, there was no logic that there must be the documentation handling over, because even the witness who was present at the time when the respondent father was invited to the Disputed Land, testified before the Trial Tribunal and was a reliable witness. Moreover, the Trial Tribunal has to rely on Exhibit P2, dated 15 June 2021, which shows that the respondent’s family has an idea that the Disputed Land belonged to the appellant’s father, while respondent appeared as the fifth member. 4 She argued that it is trite law that, a court record is a proper record should and not be lightly impeached. She referred to the case of Halfan Sudi vs. Abieza Chichili, Civil Reference No.11 of 1996 (1998) TZCA 7 (9 April 1998) (Tanzlii). She stated that the court should not ignore it because if they don’t know such a Disputed Land, they could not dare to sit with the appellant’s family. She found that the decision was wrong because the Trial Tribunal was supposed to visit locus in quo, in order to see objects, boundaries and places referred to in evidence physically in order to clear doubts, arising from conflicting evidence if any. She referred to the case of Nizar M.H. Ladak vs. Gulamali Fazal Janmoamed (1980) TLR 29 and Kimon Dimitri Mantheakis vs. Ally Azim Dewj & 7 Others, (Civil Appeal No.4 of 2018)2021 TZCA 663, 3 November 2021 (Tanzlii). She prayed this court to allow the appeal with cost. In reply, the respondent raised two points that the appellant has no cause of action against the respondent because the Disputed Land belonged to the respondent father one Simon Mbilinyi, the deceased, whom the appellant claims that his father landed him the Disputable Property and until his demise the Disputed Property was within his custody. It is a cardinal principle that a locus stand to sue or defend the estate of the deceased person is vested to the administrator as cemented in the case 5 of Tatu Adui V Malawa Salum and Another, Misc. Civil Application No. 8 of 1990, High Court at Dar es Salaam. She find that it was wrong for the appellant to institute the suit against the respondent. Regarding the first ground of appeal, she submitted that the submission made by the learned counsel is based on speculations of facts beyond what transpired at the Trial Tribunal and some facts are an afterthought. It is a trite law in civil proceeding that whoever desire the court to give judgment in his favour to facts which he asserts must prove that those facts exist in accordance to section 110 (1) and (2) of the Evidence Act, CAP 6, R.E 2022 (the TEA) on the balance provided under section 3(2) (b) of the TEA. She submitted that it is a matter of law that every claim in a civil suit must be proved on the balance of convenience and since the appellant did not establish his claims to the required standards we cannot on this instance, fault the tribunal decision. she referred the case of East African Road Services ltd vs. J.s Davis & Co ltd [1965]E.A 676. She find that the honourable chairman was rightly to dismiss the appellant application because the evidence adduced did not meet the required standard set in the law of evidence. The fact that the appellant admits to 6 boarder with the respondent father raise so much doubt as to the real question at hand but again it verifies that it’s not true that the respondent father moved to the area in 2012 and borrowed the Disputed Land. She further stated that the appellant is not telling this honourable court when did the respondent father become their neighbour. Therefore, it was respondent submission that the appellant failed to establish his claims and his evidence has so many discrepancies. . She argued that, the appellant had a duty to illustrate further on the object evidencing their boarder so that the Tribunal would be aware of the encroachment of the respondent. She added that it is not true that the respondent father was a stranger to the area/village where the Disputed Land is located or that he came from Nyakavangala village as said by the appellant in his evidence. Since it is undisputed fact that the appellant knew the respondent father as their neighbour in the Disputed Land. She referred to the case of Elidadis M Rushikala vs. Samuel Malecela, Land Case No. 89/2023, High Court of Tanzania at Dar Es Salaam (Tanzlii). She further argued that the appellant insisted that the respondent father borrowed the Disputed Land from the appellant father but he tendered no written document to prove the arrangement. She added that local 7 community leaders were not involved on the matter to witness the arrangement. She further submitted that the Exhibits P2 says nothing regarding the ownership of the Disputed Land and as far as the testimony of the PW1 is concern, the meeting was premature. It failed to proceed because the respondent father was ill. Therefore, it is not correct as argued by the counsel for the appellant that the respondent and his siblings acknowledged that the appellant is the owner. Consequently, the same remained as mere words of the appellant that does not suggest ownership of the Disputed Land. Regarding the testimony of PW2 and PW3, she submitted that they failed to inform the Tribunal their involvement in the meeting. PW2 testified to be a leader between 1989 to 1999 and SM3 between 1990 to 2002. In 2012 when the respondent father borrowed the Disputed Land the appellant, they were no long a leader. They were duty bound to inform the court the reasons for their involvement at the time or it was the existing leaders who where to testify in court. Therefore, failure for the PW2 and PW3 to explain reasons of their involvement despite being retired has a consequence as to the veracity, reliability, genuineness and accuracy of their evidence. 8 She argued that PW2 failed to prove the ownership of appellant father, his testimony was to the effect that he was only aware that between 1989 to 1999 he was a leader at Mbalino village and he found the appellant father occupying the Disputed Land. He did not say how he came into possession of the Disputed Land. That PW2 did not testify as to how did the respondent trespass on 13 of the Proceeding. She added that all these questions raised doubt as to the testimony of the PW2. Ms. Shao further stated that in 2022 the respondent father filed a case over trespass to Land Application No. 28 of 2022 before the Tribunal against one Endrew Widunda over the same Disputed Land where he won the case among other things. That, he also showed the receipt which he paid rent over the Disputed Land and he brought witness who allocated him the Disputed Land and the Tribunal declared him the owner of the Disputed Land. In rejoinder Ms. Kalala submitted that the respondent’s written submission raised new issues of which were not among the ground of appeal by saying that the appellant has no cause of action against the respondent because the Disputed Land belonged to the respondent’s father. Therefore, the respondent in order to be sued, first should be appointed as administrator of the Estate of the one Simon Mbilinyi. The respondent 9 introduced new issue of which were not argued anywhere in the Appellant’s case contrary to the law, as cemented in the case of Ramadhani Msangi vs. Sunna g. Gandara and Two Others Land Appeal no 39 of 2017 HC) Dar es saalam. Reported Tanzilii (in persuasive ),and therein cited the case of Farida and Another vs. Domina Kagaruki, Civil Appeal No. 136 of 2006 (unreported). She added that from the evidence on record, nowhere the appellant’s and his witnesses, introduced the issue that the Disputed Land belonged to the respondent’s father, the late Simon Mbilinyi. The issue of cause of action and locus stand could hold water if the facts revealed that the Disputed Land belonged to the respondent’s father. However, according to the facts and evidence on the court records, he was an invitee and his status can never change after his death. She further stated that there is no any contradiction in the Tribunal proceeding at page 9 as stated by the respondent’s counsel. She added that being a neighbour and sharing a border does not mean that trespassing could not happen. She further submitted that the respondent fathers’ case with Andrew Widunda, upon same area of which cited Land Application No. 28/2022, 10 was not attached to prove what was said by the respondent’s counsel. She maintained that this court should not consider the same because are baseless. I have considered both court records and submission filed by parties. I will start to discuss the point raised by the respondent counsel that the appellant has no cause of action against the respondent because the appellant has no locus to sue the respondent. The appellant complained that this was new issues which was not argued anywhere in the appellant case contrary to the law. It is a settled principle of law that, a legal point may be raised at any time, even at appellate stage. This was stated in the case of Ms. Fida Hussein & Company Limited vs Tanzania Harbors Authority, Civil Appeal No. 60 of 1999. In that respect, I find that it was correct for the respondent to raise new issues if it is on point of law even at this stage. However, in my view the issue raised was not on point of law because the evidence adduced by the appellant are clear that the respondent father was an invitee to the Disputed Land and not the respondent. Therefore, the respondent becomes a trespasser because the appellant did not invite the respondent to the Disputed Land. 11 On the issue of locus that the appellant was supposed to sue the administrator of the estate of the respondent father, I find the same to have no merit. This point will have merit if the respondent would claim that he entered into the Disputed Land in the capacity of an administrator. The respondent was sued in his name and not in the capacity as administrator. In my opinion, the respondent entered into Disputed Land in his capacity claiming that the Disputed Land belonged to his late father. I find that the appellant have a cause of action against the respondent. Also, the respondent has locus stand to be sued in this case because he was the one found by the appellant in the Disputed Land. On the merit of the appeal, I will deliberate ground one and two together. The issue is whether the evidence on records was recorded properly by the Trial Tribunal and the case was proved to the required standard by the appellant. In the case of Faki Said Mtanda versus Republic, Criminal Application No.249 of 2014 (Unreported) the Court of Appeal of Tanzania quoted with approval the decision of then East African Court of Appeal in the case of R.D.Pandya versus Republic [1957]EA 336 that; ''It is a salutary principle of law that a first appeal is in the form re- hearing where the court is duty bound to re-evaluate the entire evidence on record by reading together 12 and subjecting the same to a critical scrutiny and if warranted arrive to its own conclusion” It is also a position of law that the one who allege on the existence of certain/particular fact has duty to prove. This is in accordance with section 110 of the TEA which provides that: “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” The same was stated in the case of Abdul Karim Haji vs. Raymond Nchimbi Alois & Another, Civil Appeal No. 99 of 2004 (unreported) the Court of Appeal held that: "... it is an elementary principle that he who alleges is the one responsible to prove his allegations." In this case the appellant stated that the Disputed Land belongs to his father Exavery Msavinyi. He acquired the Disputed Land by clearing of virgin land in 1967 and used the Disputed Land until 2012 when the respondent father borrowed the Disputed Land for grazing cattle. He mentioned some people who witnessed that event including Raphael Mbanavanu, Eram Mwilongo and Simon Kaparamba. 13 That, on 15 June 2021, the appellant father went to claim the Disputed Land, unfortunately the respondent father was sick so his family requested the appellant father to wait. Later on the respondent father passed away but when he returned to claim the Disputed Land, he found the respondent cultivating the Disputed Land and refused to vacate claiming that it belonged to his father. The said Raphael Mwanavanu testified as PW2, he stated that the Disputed Land belonged to the appellant father. That, he was a leader of that area from 1989 to 1999. He found the appellant father living in that area. That, he also witnessed when the appellant invited the respondent father to use the Disputed Land. This evidence was corroborated with evidence of PW3, who stated that the Disputed Land belongs to the appellant father because he was a native of that area. Also, he was a leader from 1990 to 2002 and witnessed when the appellant father invited the respondent father to use the Disputed Land in 2012. On the other hand, the respondent argued that how could the respondent father borrow the Disputed Land from the appellant father for grazing if they were neighbours. I agree with the appellant counsel that being adjacent to each other does not preclude someone from borrowing the land for use from his neighbour. 14 The counsel of the respondent further claimed that there was no written agreement between the appellant father and the respondent father on the invitation to use the Disputed Land. Further, the respondent counsel insisted that the witness brought by the appellant PW2 and PW3 were not credible witness. In addition that the respondent father filed a case of trespass in relation to the Disputed Land at the Tribunal and won. However, I noted that the respondent failed to show this court on how his late father acquired the Disputed Land. He also did not bring any proof to this court to show that his late father won the Land Application No. 28 of 2022 before the Tribunal. In my view, I find that the appellant managed to prove that the Disputed Land belongs to his father because his evidence explained on how the appellant father came into possession of the Disputed Land, how it arrived to the respondent father and how the respondent trespassed into the Disputed Land. As a result, I find that the evidence of the respondent was stronger than that of the appellant. See: Hemedi Said vs. Mohamed Mbili [1984] TLR 113. Based on the above analysis, I allow the appeal, quash the proceedings and set a side judgment of the Trial Tribunal. I make no orders as to cost. 15 Right to appeal is explained. DATED at MBEYA on this 17 day of February 2025. A. A. SINDA JUDGE 16