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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA LAND APPEAL NO. 19194 OF 2024 (Originating from Land Application No. 107 of 2023, District Land and Housing Tribunal for Mbeya at Mbeya) JOHN SONESY TWEVE……………………………………………………APPELLANT VERSUS FESTO MOSES TWEVE…………….…...…………………..………1ST RESPONDENT ELEBIA SONESY TWEVE…………………………………………..2ND RESPONDENT GIVEN WILLIAM TWEVE………………………………………….3RD RESPONDENT PENDO WILLIAM TWEVE………………………………………….4TH RESPONDENT DEBORA WILLIAM TWEVE………………………………………..5TH RESPONDENT JUDGMENT Date: 15 January 2024 & 25 March 2025 SINDA, J.: The appellant at the District Land and Housing Tribunal for Mbeya at Mbeya (the Trial Tribunal) filed Land Application No. 07 of 2023 claiming to be the lawfully owner of the land located at Segela Hamlet, Izumbwe 1 Village, Igale Ward within Mbeya District Council (the Disputed Land) which his father gave him before his death on 25 June 2012. He claimed that the Disputed Land was invaded by the respondents on 3 August 2023. The respondents denied the allegations and claimed that the Disputed Land belongs to them. That, they inherited it from the estate of their late father, Moses Sonesy Tweve. After the hearing concluded, the Trial Tribunal ruled that the Disputed Land belonged to the respondents. Aggrieved with the decision, the appellant filed the memorandum of appeal at hand with four grounds of appeal as follows: 1. The Trial Tribunal erred both in law and fact by deciding that the land in dispute belonged to the respondent, despite the appellant having proved his case on the balance of probability. 2. The Trial Tribunal erred both in law and fact by declaring the land in dispute to belong to the respondents when the respondents themselves never pleaded that the land in dispute belonged to them, nor are they administrators of estates. 3. The Trial Tribunal erred both in law and fact by deciding the case in favour of the respondents, who had no evidence to prove their right to the land in dispute. 2 4. The Trial Tribunal erred in law and fact by deciding the case in favour of the respondents, as it failed to analyse and evaluate the evidence adduced by the parties. During the hearing of the appeal, both parties were unrepresented, and the appeal was argued by way of written submission. On the first ground of appeal, the appellant submitted it is a trite principle of law in civil cases that a party who alleges the existence of any fact before the Court has a legal duty to prove those alleged facts as provided under Section 110(1) of the Evidence Act, Cap. 6 R.E. 2022 (the TEA). He submitted that the records of the Trial Tribunal reveal that the appellant had nine witnesses, all of whom were clan members, who testified that the Disputed Land belonged to the appellant. He added that the witnesses, who were clan members and elders, were credible, as they were familiar with the Disputed Land and could demonstrate that it belonged to the appellant. He added that the evidence of the respondents was weak. They didn’t explain how they got ownership of the Disputed Land while he discharged his duty by proving the ownership of the Disputed Land on balance of probability as it was stated in the cases of Hemedi Saidi versus 3 Mohamed Mbilu (1984) TLR 133 and the case of Stanslaus Rugaba Kasusura and Another vs Phrase Kabuye (1982) TLR 338. Regarding the second and third grounds of appeal, he submitted that the respondents had no proof of ownership of the Disputed Land, rather than stating that it belonged to their late father, and the Trial Tribunal proceeded to declare them owners. He claimed that he testified at the Trial Tribunal on the balance of probability to be the owner of the Disputed Land, but the Trial Tribunal ignored him. He referred to the case of Lujuna Shubi Ballonzi, Senior vs. Registered Trustees of Chama cha Mapinduzi [1996] TLR 203 to support his argument. The appellant argued that the respondents in the Trial Tribunal stated they acquired the Disputed Land by way of inheritance, and the Trial Tribunal accepted the said version of evidence, while the respondents didn’t follow the administration procedure, including the appointment of an estate administrator. He referred to the case of Salumu Rashidi Lulanga vs Rashidi Lulanga and Another, Land Appeal No. 3294/2024, High Court of Tanzania, Mtwara (TanzLii). Concerning the fourth ground of appeal, he submitted that the trial Chairman did not thoroughly review the evidence adduced by the 4 appellant, nor did he properly evaluate it. He referred the case of Leonard Mwanashoka vs Republic, Criminal Appeal No. 226 of 2014, CAT at Bukoba. He prayed this Honourable court to allow this appeal, quash and set aside the judgment of the Trial Tribunal with costs. In reply, the respondents submitted that the evidence they presented before the Trial Tribunal indicated that the Disputed Land belonged to the children of the late Moses Tweve. They stated that Probate Cause No. 99/1999 shows that the Disputed Land was built by their late father, who lived with them until his death in 1999. Additionally, they have been farming in the Disputed Land for food crops since their father's death until August 2023, when the appellant invaded the Disputed Land to plow with cattle. The respondents further argued that the Probate Cause No. 99/1999 was registered in the Primary Court of Mbalizi, and their grandfather, the late Sonesya Maliesa Tweve, who passed away in 2012, was appointed as the administrator of the estate. They added that these documents were submitted to the Trial Tribunal, and the appellant accepted and acknowledged them, stating that the only omission was not listing a bicycle among the deceased's properties. This indicates that the appellant understands that the Disputed Land belongs to their late father and, as 5 children of the deceased, they are the rightful heirs of the Disputed Land. They stated that the appellant has his land, which he was given by their grandfather, the late Sonesya Maliesa Tweve. They prayed that this court dismiss this appeal because all nine witnesses, including the appellant, who testified before the Trial Tribunal, claimed that their evidence is based on the will allegedly given to the appellant by the late Sonesya Maliesa Tweve, granting him the Disputed Land. They submitted that upon reading the will, which was admitted as Exhibit P1 at the Trial, the will did not mention the appellant being granted the Disputed Land. The respondents contended that the appellant's witnesses, PW5, PW6, PW7 and PW8, were not listed in the attendance record of the meeting, but claimed to have heard the late Sonesya Maliesa Tweve declare that the Disputed Land belonged to the appellant, indicating that these witnesses are unreliable and contradictory. They added that some witnesses claimed the appellant used the Disputed Land for farming, but the appellant himself stated that he had never used the Disputed Land and that it was used by Nitike Mlenga, the guardian of the children of the late Moses Tweve, which indicates the unreliability of the witnesses. They added that Exhibit P1 does not indicate that the Disputed Land was given 6 to the appellant, but it shows that the appellant has his land separate from the Disputed Land. The respondents further added that the appellant's witnesses did not provide convincing evidence to prove that the Disputed Land belongs to the appellant. The respondents argued that their evidence was credible because the Disputed Land was their inheritance registered in the Primary Court of Mbalizi. They are well aware of the Disputed Land, as they were born and raised there and have been using it for agricultural activities since their father's death in 1999, without any complaints, until the appellant invaded it on 3 August 2023. The respondents maintained that their witnesses, including the chairman of the local area, provided credible testimony before the Trial Tribunal. They added that the appellant acknowledges that their late father built the house on the Disputed Land, and he recognises that he lived there with them, as they were born in the house. They stated that the appellant only wants the land surrounding the house, which, according to Section 2 of the Land Act, Cap 113 R.E 2019 (the Land Act), clearly states that land includes all things on and beneath it, except for minerals. Thus, the house is part of the Disputed Land. 7 The respondents submitted that the appellant has no evidence to prove that the Disputed Land is his property, nor any document showing that it was given to him by their grandfather, the late Sonesya Maliesa Tweve, who was the administrator of their late father's estate in 2012. They added that the appellant admits to never having used the Disputed Land, and even their grandfather, the late Sonesya Maliesa Tweve, never used it, knowing it was their inheritance. The respondents stated that the appellant's claim that no new administrator was appointed after the previous administrator passed away is unfounded and does not entitle him to the Disputed Land. They maintained that the Disputed Land had already been allocated to them by the estate administrator, their grandfather, the late Sonesya Maliesa Tweve, in 2010, when all the children were grown and were all aware of the allocation before his death. At that time, he was ill, and he handed over the documents to them. The appellant's claim that he should be given Disputed Land due to the lack of a new administrator is baseless. They added that the appellant should remember that the appellant and some of his witnesses are among the family members who participated in listing and documenting the properties owned by their father, the late Moses 8 Sonesya Tweve, including the house on the Disputed Land and the surrounding area. I have considered the court records, grounds of appeal, and submissions filed by the parties. I find that grounds one, three, and four can be disposed of under one issue: whether this case was proven to the required standard at the trial court. Section 110 (1) of the TEA states that “(1) 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.” Also, in the case of Paulina Samson Ndawavya vs Theresia Thomas Madaha, CAT at Mwanza, the Court of Appeal stated that apart from stressing the standard of proof in civil proceedings being prove on the balance of probabilities, it also stressed that; "It is again trite that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his and that the burden of proof is not diluted on account of the weaknesses of the opposite parts case” 9 Discussing the above issue of whether this case at the Trial Tribunal was proved to the required standard, as the first appellate court, I will re- evaluate the evidence on record afresh. In this case, at the Trial Tribunal, the appellant testified that the Disputed Land belongs to him. He alleged that he was given the Disputed Land by his late father in 2012 before his death. The appellant, cross-examined by the second respondent, stated that there was a house belonging to the respondent’s father, William Sonesy Tweve, on the Disputed Land. The appellant added that his father did not give him the Disputed Land together with the house. Section 2 of the Land Act defines land that “It includes the surface of the earth and the earth below the surface and all substances other than minerals and petroleum forming part of or below the surface, things naturally growing on the land, buildings and other structures permanently affixed to or under land and land covered by water” In respect of the above definition, I agree with the Trial Tribunal's findings that the Disputed Land does not belong to the appellant because the appellant admitted that his late father did not give him the Disputed Land together with the house, and that the house belongs to the respondent’s late father. In my opinion, the house forms part of the Disputed Land, and therefore, if the house belongs 10 to the respondent's father, even the land surrounding that house belongs to the respondent's father. Additionally, as stated by respondents in their submissions, some witnesses on the appellant's side at the Trial Tribunal were not credible because they testified that they heard the appellant's father giving the appellant the Disputed Land. However, their names did not appear in Exhibit P1, which listed the names of those allegedly attending the meeting. It is a well-established principle of the law that a civil case must be proven on the balance of probabilities, as provided under Section 3(2)(b) of the TEA. The principle of law further demands that a person with heavier evidence than his/her adversary must win the case. This stance of the law was stated in the case of Hemedi Saidi v. Mohamedi Mbilu [1984] TLR 113, thus: "According to the law both parties to a suit cannot tie, but the person whose evidence is heavier than that of the other is the one who must win." In this case, the respondents stated that the Disputed Land belongs to them because it previously belonged to their father. After the death of their father, they got the Disputed Land from the administrator of their father's estate. They further stated that they 11 had lived on the Disputed Land before their father passed away, and some of them were born there, after which they went to live with their grandparents. They used the Disputed Land to cultivate food crops. In 2012, the Disputed Land was transferred to them by the administrator of their late father's estate, and they used it until 2023. DW6, a hamlet chair, corroborated their evidence. He stated that the Disputed Land belonged to the respondents’ father. He further stated that the appellant attempted to sell plots in the Disputed Land but was refused by the clan or family. This proved that the Disputed Land did not belong to the appellant, and the respondent's evidence was stronger than that of the appellant. On the second ground argued by the appellant that the respondents neither pleaded that the Disputed Land belonged to them nor that they were administrators of the estates, I find that the same lacks merit because during the hearing, the first respondent tendered a letter of administration, which proved that their grandfather was appointed as administrator of their late father's estate. The respondents, in their pleadings and submissions, stated that they got the Disputed Land in 2012 from the administrator of their late father's estate. In that respect, the respondent's late father's estate was 12 distributed to the heirs before their grandfather, who was the administrator of the respondent's father's estate, passed away. As such, there was no need to appoint another administrator. Based on the above analysis, I find that the respondents have proven this case to the required standard, and I see no need to interfere with the trial tribunal's decision. The whole appeal lacked merit and is dismissed. There is no order as to costs. The right to appeal is explained. DATED at MBEYA on this 25 March 2025. A. A. SINDA JUDGE 13