jenifa paul chambala vs alex loid mgani administrator of the estate of the late patrick loid mgani 2023 tzhc 19321 28 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT IRINGA LAND APPEAL NO. 59 OF 2022 (Originating from Application No. 151/2019 of the District Land and Housing Tribunal of Iringa before Hon. A. Mapunda, Chairperson.) JENIFA PAUL CHAMBALA ........................................ APPELLANT VERSUS ALEX LOID MGANI (Administrator of the estate of the late Patrick Loid Mgani) ......................................... RESPONDENT JUDGMENT ldh May & 2dh July, 2023 I.C MUGETA, J: The subject of contention between the parties is ownership over Plot No. 386 Block B located at Kihesa Kilolo B within Iringa Municipality. The background of the dispute as gathered from the record is that the suit property belonged to the late Patrick Loid Mgani. The deceased and the appellant lived together as husband and wife in the suit property. They were blessed with one surviving issue. Before the appellant married the deceased, the deceased had two other women including Anitha Jacob Fute (PW2) whom he married under Christian rites. Page 1 of 8 Upon his demise, the family meeting resolved that the appellant be evicted from the suit property so that beneficiaries can have their share of inheritance. The appellant resisted the eviction. The respondent, appointed as the administrator of the estate of the deceased, instituted an application before the trial tribunal for among others an order for eviction of the appellant from the suit property. Upon hearing both sides and their witnesses, the trial tribunal was satisfied that the appellant was a trespasser in the suit property, thus, ordered her eviction from the said property. Aggrieved by this decision she has filed her appeal based on the following grounds:- 1. That the trial District Land and Housing Tribunal erred in law and fact by holding in favor of the respondent without considering the strong evidence adduced by the appellant. 2. That the District Land and Housing Tribunal erred in law and fact by discussing a matter which was not part of the issues raised during trial. 3. That the District Land and Housing Tribunal erred in taw and facts for holding in favor of the respondent based on weak evidence of the respondent. Page 2 of 8 The appeal was argued by way of filing written submissions. The appellant appeared in person whereas the respondent was represented by Gervas Semgabo, learned advocate. The appellant argued the 1st and 3rd grounds jointly that the appellant's evidence was heavier than that of the respondent. She faulted the evidence of PW2 that she did not produce a marriage certificate to prove that she was married to the late Patrick Mgani. In her view, her evidence was heavier than that of the respondent as she had testified that she started living with the deceased from 2005 and on 2010 contracted a customary marriage and were blessed with one child, Clara Patrick Mgani (DW2). She further stated that she took care of the deceased when he was sick to his death. She argued that the suit property belonged to her by virtue of section 160(1) of the Land Act which provide that where a spouse owns land under co occupancy for the use of both spouses, they hold such land under occupiers in common. Further, section 160(2) provides that where a land is held in the name of one spouse and the other spouse contributes to its improvement then the other spouse would be deemed to have acquired interest in common. She cited the case of Tenende S. Mwakagile v. Edward Japhet Mbangala & Another, Land Appeal No. Page 3 of 8 9 of 2013, High Court - Iringa (unreported) which held that the right of . .... *, inheritance of the property by the surviving spouse is not limited to properties owned jointly by the spouse but extends to the surviving spouse even on properties not jointly owned. On the 2nd ground, she argued that the tribunal introduced extraneous matters that were not part of the issues framed. The extraneous issues raised according to the appellant were; one, whether the appellant was legally married to the deceased. Two, whether the appellant was an invitee. She argued that the parties were not afforded the right to argue on the issues which were raised suo moto by the tribunal, this was an incurable irregularity as held in Ramadhani Ngonyani v. Eustaki Chilonga, Misc. Land Appeal No. 15/2018, High Court - Dar es Salaam (unreported). She cited the cases of Yustine Robert v. Republic, Criminal Appeal No. 436 of 2016, Court of Appeal - Mbeya (unreported) and Okethi Okale & Others v. Republic [1965] 1 EA 555 where the two final courts discussed the danger of acting on extraneous matters. The respondent resisted the appeal. The advocate for the respondent argued the 1st and 2nd grounds jointly and submitted that the tribunal correctly analyzed the evidence as the deceased left one wife and five Page 4 of 8 children. In his views, the evidence of PW1 and PW2 was strong to entitle the respondent to win the case as it was the holding in Mohamed Said v. Mohamed Mbilu [1984] TLR 113 that a party with strong enough evidence must win. He submitted that, the only legal wife was PW2 as they had contracted a Christian marriage which was never dissolved. The appellant was thus a concubine. He argued that the respondent's evidence was heavier as PW1 tendered exhibit P3 which is primary court's judgment which declared that the appellant was not a legal wife of the deceased. The respondent's counsel argued that the appellant claimed ownership over the property based on presumption of marriage as shown in her written statement of defence. However, in her evidence she testified that she contracted a customary marriage, thus, she deviated from her own pleadings. He cited the case of Martin Fredrick Rajab v. Ilemela Municipal Council & Another, Civil Appeal No. 197/2019, Court of Appeal - Mwanza (unreported) to support his contention that parties are bound by their pleadings. He distinguished the Tenende S. Mwakagile case cited by the appellant with the present case as in that case the widow acquired jointly the matrimonial properly with her late husband the Page 5 of 8 matrimonial property unlike in the present case where the deceased acquired the suit property with PW2. Arguing against the 2nd ground, the respondent's counsel submitted that the tribunal did not introduce extraneous matters. The tribunal only dealt with the issues framed. In his view, the tribunal relied on the exhibits and the pleadings in arriving at its decision. He, thus, distinguished the Yustine Robert case (supra) with the present case as that case dealt with convictions in criminal cases where the judge acted on extraneous matters. I will deal with the grounds of appeal as argued by the parties. The 1st and 3rd grounds all center on the trial tribunal's evaluation of evidence. The appellant in her submissions contended that PW2 who testified to be the wife of the deceased did not tender marriage certificate to prove the same. Indeed, no marriage certificate was tendered by PW2. However, the main issue in the matter was not on the legality of the marriage between PW2 and the deceased. The main issue was over ownership of the suit property and the interest of the appellant therein. PW1 testified that the property in dispute was built by the deceased together with his first wife. This evidence is supported by PW2 who in her testimony clearly explained that when she married the deceased in 2009, they lived in the suit property which was already built. In her evidence, the appellant testified to have found the house in existence. In her evidence she testified: "Tuiierdeiea kuishi Mpanda mume wangu akiwa polisi kwa nafasi ya OCD. Tuliishi kwenye quarter za polisi. Tuliishi Pamoja mpaka aiipostaafu mwaka 2005, kwa sababu ya changamoto za usafiri, alitangulia yeye. Tuiifika mkoa wa Iringa. Nyumba tuiiyofikia ni hiyo ninayoishi mpaka sasa." The above piece of evidence clearly shows that the house that the appellant claims to have been jointly owned by her and the deceased cannot be true as she found it already built. She cannot, thus, claim that it was matrimonial property on the ground that she took care of the deceased where there is a probate court declaration that she was not a legal wife. The appellant's complaint in the 2nd ground is that the tribunal acted on extraneous issues. In reaching its judgment, the tribunal framed three issues. In discussing the 1st issue of whether the appellant had any rights in the suit property, the tribunal discussed whether the appellant was legally married to the deceased. Due to the nature of the case, that discussion was inevitable. The tribunal relied on the evidence adduced Page 7 of 8 before it and answered the first issue in the negative. Again, the 2nd issue of whether the appellant was on invitee was answered in the affirmative. Therefore, there were no extraneous issues that were relied upon by the tribunal to reach its decision. In totality, this appeal lacks merit. I accordingly dismiss it. I.C. MUGETA JUDGE 28/7/2023 Court: Judgment delivered in the presence of the respondent in person and in the absence of the appellant. Sgd. I.C. MUGETA JUDGE 28/7/2023 Page 8 of 8