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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO 9183 OF 2024 (Arising from the decision of District Land and Housing Tribunal for Mbeya at Mbeya in Application No. 83 of 2023) JOHN LAITON MWANKUNDA (as an administrator of the Estate of the late LAITON MWANKUNDA………………………1ST APPELLANT EVA LAITON MWANKUNDA………….…………..………2ND APPELLANT SUMBUKO LAITON MWANKUNDA……………….….…3RD APPELLANT GRACE LAITON MWANKUNDA………………………..…4TH APPELLANT VERSUS ELIA LAITON MWANKUNDA………………………………..RESPONDENT JUDGMENT Date: 19 July 2024 & 29 August 2024 SINDA, J.: The first appellant John Laiton Mwankunda and three others, are aggrieved and wish to challenge the decision of the District Land and Housing Tribunal for Mbeya at Mbeya (the DLHT). 1 The brief facts of the case are that the respondent herein claims ownership of four pieces of land located in Ikanga Street, Ijango ward within Mbeya region (the Disputed Land). The appellants on the other hand, claim that the Disputed Land belongs to them, as it was given to them by their late father. The respondent successfully sued the appellants for trespass before the DLHT. The appellants being dissatisfied with the decision brought this appeal on the following grounds: 1. That, the Trial Tribunal grossly erred in law and facts in failing to properly evaluate and analyses the evidence adduced by the parties hence reached to unjust decision. 2. That, the trial tribunal erred both in law and fact by disregarding documentary evidence from the appellants showing that the Respondent was not subjected to beneficiaries of the deceased estates. 3. That, the trial Tribunal erred in law and facts to decide in favor of the Respondent who failed to prove the case on the balance of probabilities. 2 4. That, the trial Tribunal erred in law and facts to decide the case in favor of the Respondent whereas ignored the relevant evidence of the Appellant herein. 5. That, the trial Tribunal both erred in law and fact to declare the Respondent as a lawful owner while the Respondent had no locus stand to sue on the land in dispute. Hearing of appeal was by way of written submissions. The appellants appeared in person unrepresented, while the respondent enjoyed the services of Mr. Abinel Zephaniah, learned counsel. In their submission in chief, the appellants prayed to argue the first, second, third and fourth ground together. The appellants were of the view that the trial chairman failed to evaluate the evidence on record. As it is a trite law that judgment of any court must be grounded on the evidence properly adduced during trial otherwise it is not a decision at all. They cited the case of Emmanuel Stephano Ngega (Administrator of the estate of the late Ngega Stephano Kiboko) vs. Butiama District Council and Another, Civil Appeal No. 22 of 2021, CAT (Tanzlii). 3 They further submitted that the DLHT decision favored the respondent while he was not a beneficiary to the Disputed Land. That at the DLHT, the appellants stated there was a misunderstanding not only between themselves and the respondent, but also between the respondent and the appellants’ late father (the deceased), who was said to be the step father to the respondent. They produced evidence to that effect. That as a result of the misunderstanding, several family meetings were held and the respondent arrogantly declared that the deceased is not his father. After such declaration, it was agreed that the respondent is not a beneficiary of the deceased estate and should vacate the Disputed Land. In supporting their argument, the appellants cited the case of Jackson Stephano @ Magesa and Paulo Elias vs. The Republic, Criminal Appeal No. 130 of 2020, CAT at Musoma and the case of Yusuph Amani vs. Republic, Criminal Appeal No. 255 of 244 (Unreported). In relation to the fifth ground, the appellants argued that the DLHT unfairly decided that the respondent is the owner of the Disputed Land while he had no interest to the Disputed Land as he declared that he is not related to the deceased, and therefore disqualified himself as a beneficiary. They added that the respondent is not an administrator to the deceased estate therefore 4 he had no power to sue before the DLHT. They cited the cases of Peter Mpalanzi vs Christina Mbaruka, (Civil Appeal No. 153 of 2019) [TANZLII] and Lujuna Shubi Ballonzi vs Registered Trustee of Chama Cha Mapinduzi (1996) TLR 203. In his reply submission, Mr. Abinel also argued together the first, second, third and fourth grounds of appeal. He began his argument by seeking refuge from two principles: firstly, the written submission is not evidence. He referred to the case of Shadrack Balinago vs. Fikiri Mohamed Hamza and 2 Others, Civil Application No. 25/8 of 2019 CAT Mwanza. Secondly, the submission on appeal should base on what surfaced in the proceedings and judgment of the lower court. The learned counsel submitted that the appellants through their submission are attempting to adduce new evidence not testified or tendered before the DLHT. That during trial at the DLHT, the respondent explained how he was given the land by his father since the 1990’s and how he has been using and developed the same. He further submitted that the appellants after the death of the deceased attempted to include the respondent’s land to the estate of the deceased 5 while knowing that the land is a personal property of the respondent. The counsel acknowledged the misunderstanding between the respondent and the deceased. He stated that the appellants are using it to deprive the respondent of his right over the Disputed Land by stating that it belongs to the estate of the deceased. Moreover, Mr. Abinel added that the appellants evidence was based on unproved facts. For instance, the respondent denying the deceased as his biological father, while the whole testimony had nothing to do with ownership of the said land, since the respondent does not claim the inheritance rather his own land. The counsel was of the view that the respondent’s evidence was strong enough for the DLHT to decide in his favour. He added the appellants failed to provide evidence to prove their ownership nor substantiate the evidence of the respondent. He further stated what is stated in the submission of the appellants is new evidence not adduced before the DLHT proceedings or the judgment. Submitting on the fifth ground, the counsel argued that locus standi being the legal capacity to sue and being sued, the respondent had locus standi to do so since he is claiming for his right and interest over the Disputed Land. 6 The respondent was not concerned with the estate of the deceased rather his personal property that he owned undisturbed for 30 years. In their rejoinder submission, the appellants referred to the two principles stated by the respondent’s counsel and stated that the opinion raised by the respondent is different from what they raised in this appeal as they have challenged on the error of the DLHT both in law and fact. They added that if the DLHT could have considered their defence evidence, then it was apparent on the face of record that the appellants had the right to own the said Disputed Land as beneficiaries of the deceased. The appellants further urged this Honourable Court to consider the evidence adduced at the DLHT showing the appellants had the right to own the Disputed Land of their late father. The respondent had no locus standi to sue nor own the Disputed Land due to the misunderstanding and declaration that the deceased is not the respondent’s father although documentary evidence to that effect was not considered at the DLHT. The appellants referred to the case of Jafari s/o Musa vs. DPP, DC Criminal Appeal No. 158 of 2018 to support their arguments. 7 Summing up their submission, the appellants argued that the respondent lacks the right to own the Disputed Land because no evidence was tendered before the DLHT to prove that the deceased issued a deed of gift to the respondent. I have gone through the submissions, and evidence on record from the DLHT. I will also discuss the first, second, third and fourth grounds of appeal together as they all relate to matters concerning evidence. During hearing at the DLHT, the respondent brought witnesses and exhibits to prove his allegations. The appellants also brought witnesses but had no exhibits. In summary, the respondent explained that the Disputed Land was given to him by his late father, one Laiton Mwankunda. That, he has been using it from 1991 until 2021 when the dispute arose. The appellants however, refuted those arguments by claiming that the respondent disowned their father. Therefore, the respondent is not entitled to own any property from the deceased, as it was already decided at Uyole Primary Court, where the respondent apparently promised to vacate the Disputed Land. It was after the death of the deceased that the respondent came back and claimed ownership over the Disputed Land. 8 It was also the respondent’s contention that the dispute arose after the Disputed Land had been surveyed in his absence, and the deceased registered the Disputed Land under the respondent’s name. A fact that is not disputed is that the respondent was once given the Disputed Land by the deceased. This was also elaborated by DW4 during cross examination, at page 26 of the proceedings of the DLHT. The misunderstanding begun when the respondent allegedly disowned the deceased and he was required to vacate the Disputed Land. All witnesses from the appellant’s side testified to that effect and it was the sole basis of their argument. That the respondent was and is not entitled to own the Disputed Land because he publicly declared that Laiton Mwankunda not to his father. Unfortunately, the appellants did not bring any proof to support their allegations. In reaching its decision, the court or tribunal considers both oral and documentary evidence. Further, in circumstances where documentary evidence is obtainable, it is important that the same be brought before the court and in most cases once proved to be legit, it overweighs oral evidence. The appellants explained that that they went to Uyole Primary Court on the matter of the respondent disowning the deceased and the respondent was 9 ordered to vacate the Disputed Land and he promised to do so in just a few days. The appellants were of the view that the DLHT chairman failed to evaluate the evidence on record, as it is trite law that the judgment of any court must be grounded on the evidence properly adduced during trial otherwise it is not a decision at all. In my opinion, such order of Uyole Primary Court is attainable and it could have helped in strengthening the appellants’ case by proving that the respondent was asked to vacate the Disputed Land and he agreed. In that way their contention that the respondent lost ownership over the Disputed Land would have had a stand and be easily proved. Failure to bring such crucial evidence creates uncertainty, because to this moment one cannot say for sure that the appellants and respondent actually went to Uyole Primary Court or whether the said order was given to the respondent. He who alleges must prove, and on this specific fact the duty was bestowed upon the appellants. The same was provided under Section 112 of The Evidence Act [Cap 6 R.E 2022] (The TEA): “112. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact shall lie on any other person.” 10 That aside and based on the available evidence, I can confidently say that the respondent was given the Disputed Land by the deceased and has been using it until 2021 when the dispute arose. This is because the misunderstanding between the appellants and the respondent and that the Disputed Land being taken from the respondent was not proved by the appellants. That being the case, I believe the respondent together with his witnesses proved the case at the required standard, that is on balance of probabilities as provided by the law, particularly Section 110 (1)(2) and 111 of The Evidence Act (Supra). Also, see: Anthony Masanga vs. Penina (Mama Mgesi) and Another, Civil Appeal No. 118 of 2014. The respondent not only brought witnesses PW1 and PW3, some of which are also related to the appellants but also brought Exhibits P1 and P2. The former being a letter requiring him to pay for the four plots of land after being surveyed and payment receipts thereto, and the latter being more receipts. As for the judgment, it is clear that the DLHT considered the appellants’ evidence but upon evaluation, the same was not strong or convincing compared to the respondent’s evidence, as in civil cases the one with heavier 11 evidence wins against the other. See: Hemedi Said vs. Mohamedi Mbilu (1984) TLR 113. On documentary evidence, as seen on the second ground of appeal, the appellants faulted the DLHT for disregarding their documentary evidence. Nonetheless, I went through the DLHT’s records and I found that the appellants never tendered any document during trial. If anything, only the respondent tendered documentary evidence and the DLHT proceeded to admit the same as exhibits. Moving to the fifth ground, the appellants contended that the respondent does not have locus standi to sue on the Disputed Land due to the misunderstanding with their father and the respondent was asked to vacate the Disputed Land. Well, as the dispute between the deceased and respondent was not proved as above discussed, this ground dies a natural death. Besides, the respondent claimed ownership over the Disputed Land, of which it is my belief the respondent had locus standi to sue on the matter. See: Lujuna Shubi Ballonzi vs. Registered Trustees of Chama cha Mapinduzi (1996) TLR 203. 12 I find the whole appeal is devoid of merit, and it is hereby dismissed. As the parties are closely related, there are no orders as to costs. Right of appeal is explained. DATED at MBEYA on this 29 day of August 2024. A. A. SINDA JUDGE 13