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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND CASE NO 7151 OF 2024 JONAS DENJA MTEKA (The Administrator of the Estate of DENJA SALAMBA MTEKA)……………………….…………………………PLAINTIFF VERSUS LIKIZO KAKI MTEKA………..…………………………….………….…..1ST DEFENDANT JUMA KANYERERE MTEKA………………………………………..…….2ND DEFENDANT EXPARTE JUDGMENT Date: 24 October 2024 & 29 November 2024 SINDA, J.: The plaintiff herein, as an administrator of the estate of Denja Salamba Mteka (the Deceased), claims jointly and severally against the defendants for a declaratory judgement, vacant possession and damages due to land trespass arising from occupation, retention, use and hiring of the landed property. The land, purportedly belong to the Deceased is valued at seven hundred and twenty million Tanzanian shillings (TZS 720,000,000/=). The 1 land is measured at 2400 acres located at Ipatikana village, Nzoka village, Tunko village and Kavifuta in Nzoka ward within Momba District in Songwe region (the Disputed Land). That, the Deceased portioned the Disputed Land to his sons on condition that the Disputed Land should be used as a family property. Allegedly, the defendants being family members forcefully evicted other family members from the Disputed Land. The plaintiff prayed for Judgment and Decree against the defendants as follows: i. Order that the suit land is the deceased’s estate. ii. Order that the defendants are trespasser. iii. Order and declaration that the defendants were invitee thus once an invitee always an invitee. iv. Payments of general damages as the court deem fit and just to grant. v. Order that the defendants bears costs of the case. vi. Any other reliefs this honourable court deem fit and just to grant. The defendants did not make an appearance despite being served with notice of hearing. The second respondent filed his Written Statement of Defence (the WSD) but never attended in court. Therefore, the matter proceeded ex parte against both defendants. The plaintiff was represented 2 by Ms. Beatrice Rukwamilwa, learned counsel. The plaintiff presented three witnesses. The summary of evidence is as follows: JONAS DENJA MTEKA (PW1), stated that he want to distribut the Disputed Disputed Land because his siblings are dead. That, the boundaries of the Disputed Land, are there is Sikamba to the east, Simwinga and Simkamba to the west, Mkondya and Simbeye to the south and to the north there is a border, Mount Ilanga and Tumko village. That, the Disputed Land belongs to the Deceased. PW1 was appointed as an administrator of the estate by Tunduma Primary Court. That, after the death of the Deceased, the Disputed Property was used by the plaintiff and his siblings who are all dead. He added, that the defendants are using the Disputed Land and, claiming it belonged to their late fathers. PW1 prayed for the court to remove the defendants from the Disputed Land. The plaintiff also prayed to tender form No. 3 and 4 from Tunduma Primary Court, which were collectively admitted as Exhibit P1. LEONARD PHILIPO SIMKAMBA (PW2), stated that the plaintiff is his neighbor to the west as their farms are next to each other. He added to the west there is also a farm of Simwinga. That PW2’s farm is in Kavifuti village and the plaintiff’s farm is in Mkutano village. He explained that 3 operation Sogea made their farms to be in different villages. He added that the Disputed Land is very big and it includes three villages i.e Mkutano, Kavifuti and Ipatikana. He added that the plaintiff did not buy the Disputed Land. After the death of Plaintiff father, he continued using the Disputed Land with his siblings as they farmed together. JOHN DONALD MTEKA (PW3), stated that the plaintiff is his uncle and wants to distribute the Disputed Land that was left by his late father to the heirs. That, the Disputed Land is 200 acres and it has been used by the children of the siblings of the plaintiff who are all deceased, except for the plaintiff. He continued that there are a lot of disputes on the Disputed Land. That, the plaintiff thought it would be wise to distribute the Disputed Land to the grandchildren. PW3, also explained that they had a meeting on 8 July 2020, 8 August 2020 and 29 September 2020, aimed at distributing the Disputed Land but it couldn’t be done. Concerning the boundaries, PW3 stated that there is Simwila, Simbeye and Simfukwe to the north, Mount Ilanga and river Chipu to the East, family Simkala, family Simkamba and river Chipu to the west and there is a national park to the south. He added that the plaintiff brought the defendants to court because they have taken the whole Disputed Land and do not wish to share it with any 4 other person. He added that, the parents of the respondents are siblings of the plaintiff. PW3 prayed to tender the minutes of family meetings conducted on 8 July 2020, 8 August 2020 and 29 September 2020, which were collectively admitted as Exhibit P2. Now, the issue for determination is whether the plaintiff proved his case that the defendants forcefully evicted family members from the Disputed Land owned by the clan which belonged to the Deceased, one Denja Salamba Mteka. It is also worth noting that the plaintiff herein is suing the defendants under his capacity as an administrator of the Deceased’s estate. In proving the same, the plaintiff brought Form No. 4 (Exhibit P1) from Tunduma Primary Court where he was appointed as the administrator of the estate. The plaintiff also brought PW2 and PW3 as witnesses to prove that the Disputed Land belonged to the Deceased. Hence, it was well established that the Disputed Land belonged to the Deceased as per section 110 of the Evidence Act, Cap 6, R.E 2019 states that he who alleges has a legal burden to prove before a court can decide in his favour. See: Zuberi Augustino vs. Vicent Mugabe [1992] TLR 137. 5 I am also fully aware that, even if a matter proceeds ex parte against the defendants, the suit still has to be proved at the required standard. This position was discussed in the case of Standard Chartered Bank (T) Ltd vs. Samwel Nyalla Nghuni, Civil Appeal No. 45 of 2020. It was held that: “We also wish to add, for the benefit of the legal fraternity that, regardless of whether or not the matter proceeded ex parte, a plaintiff in a civil case is not relieved or absolved of the duty to prove the case against the defendant on the required standard. …… In other words, where a suit proceeds ex-parte against the defendant, the trial Judge or Magistrate does not assume the role of an umpire as to act as a conduit pipe for the plaintiff's averments to flow freely throughout and formally endorse them in the judgment. We are saying so because, it appears to us that, in the present case, the learned trial Judge endorsed the respondent's claim without subjecting his evidence to a careful scrutiny as required by law.” Also see: Ramesh Chand Ardawatiya vs. Anil Pajwani, AIR 2003 SC 2508. From the foregoing, it is my opinion that the plaintiff discharged his duty as required by the law, particularly under Section 110 of the Evidence Act, Cap 6, R.E 2019. 6 For that reason, I find the entire suit with with merit and order as follows: 1. That, the suit land is the deceased land. 2. That, the Defendants are trespassers. 3. That, the defendants were invitees thus once an invitee always invitee. 4. No order as to costs because the parties are relatives. Right of appeal explained. DATED at MBEYA on this 29 day of November 2024. A. A. SINDA JUDGE 7