Juliana Reuben Itungi vs Elfredy Reuben Itungi Draft Judgment

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO 8489 OF 2024 (Arising from the Judgment of the District Land and Housing Tribunal at Singida in the Land Application No. 12 of 2023 dated 18th March 2024). BETWEEN JULIANA REUBEN ITUNGI (Administratrix of estate of the late Reuben Nkambi Itungi)………………………….…………….APPELLANT VERSUS ELFRED REUBEN ITUNGI…………………….……..…….………….1ST RESPONDENT ABASI YUSUPH…………………………………..……………………..2ND RESPONDENT DAUDI WILSON ……………………………….……………………….3RD RESPONDENT EMMANUEL WILSON…………………………..…..…………………..4TH RESPONDENT MURSALI SHABANI………………………….…….…………………..5TH RESPONDENT DAUDI NYALANDU………………………………..……………………6TH RESPONDENT JUDGMENT Date of last order: 03/12/ 2024 Date of Judgment: 18/02/ 2025 LONGOPA, J.: The appellant and respondents were parties to the land dispute in the District Land and Housing Tribunal for Singida which delivered a judgment and decree in favour of the respondents on the dispute of land ownership. The disputed land is located at Minyenye Village in Mtinko Ward in Singida District measuring 11 acres. The appellant instituted an 1|Page application to claim for land in 2023 alleging that the 1st respondent sold the land to the 2nd,3rd, 4th, 5th and 6th respondents without having any title over the same as it belonged to the estate of the late Reuben Itungi. It was upon hearing of both sides, the District Land and Housing Tribunal held that the land did not belong to the estate of the deceased Reuben Itungi but the 1st respondent who got it vide grant inter vivos from the appellant’s mother. Thus, the District Land and Housing Tribunal entered judgment in favour of the respondents with costs. On 17th April 2024, the appellant being aggrieved by the whole decision (Judgment and decree) of the District Land and Housing Tribunal for Singida appeals to this honorable Court for the following reasons, namely: 1. The District Land and Housing Tribunal erred in law and in fact to hear and decide a case in the land which was owned by the late Reuben Nkambi Itungi without adhering to laws. 2|Page 2. The District Land and Housing Tribunal erred in law and in fact to hear and decide a case against the appellant while the evidence adduced before the court prove that the land in dispute was belonging to the late Reuben Nkambi Itungi. 3. The District Land and Housing Tribunal erred in law and in fact to hear and decide that the 1st Respondent was right to sell the land in dispute to the other respondents while the evidence adduced before the court does not show the legality of the 1st Respondent in ownership of the said land before and during the sell. 4. The District Land and Housing Tribunal erred in law and in fact to reach its decision by relying upon exhibit D3 despite of the fact that was seen to be forged. 3|Page 5. The District Land and Housing Tribunal erred in law and in fact to decide that GRACE SIMA was never disputed exhibit D3 anywhere despite of denying to calling of her as the witness and proceeded to reach its decision in favour of the respondents who did not call her as their witness to prove that she gave the disputed land to the 1st Respondent. The appellant prays before this court to allow this appeal by quash and set aside the decision of the district land and housing tribunal of Singida at Singida and its orders and finally to return the disputed land to the Appellant in order to distribute it to the legal heirs of the late Reuben Nkambi Itungi as per the laws together with costs of this appeal. On 3rd December 2024 when the appeal was scheduled for hearing, the appellant and respondents appeared for oral submission on the appeal. The parties enjoyed legal services of learned advocates namely Mr. Paschal Joseph, learned advocate for appellant and Mr. Majaliwa Wiga, learned advocate for the respondents. 4|Page Mr. Paschal Joseph, learned advocate was the first to argue on the appeal. On first ground, it was submitted that appellant in the cause of action demonstrated that she is the administratrix of the estate of the late Reuben Nkambi Itungi and the respondents admitted that disputed land have been the property of the deceased. He reiterated that the parties are bound by their own pleadings thus the District Land and Housing Tribunal ought to have found in favour of the appellant. At this juncture, a case of Barclays Bank Limited versus Jacob Muro at pages 11-12 the Court illustrated that parties are bound by their own pleadings. It was thus argued that it was incorrect to hold the property did not belong to the appellant. Further, the appellant stated that on the 2nd ground, it was lucid that pleadings revealed that the land belonged to the deceased. According to the appellant, evidence of SU 2 at page 27 reveals that the land belonged to the deceased. 5|Page On 3rd ground, it was submitted that the 1st respondent was not legally capable of disposing the land. The evidence does not show legality of the 1st respondent and there is no proof that there were meetings. There was no administration of the estate of the deceased. It is only the administrator of the estate who can dispose the land belonged to the deceased person. It was cited that Section 101 of the Probate and Administration of Estates Act require that the administrator is the only person who can dispose the land. On 4th ground, it was submitted that Exhibit D3 appeared to have been forged. SU 3 stated about the handing over of the land. At page 32, the person who donated the land did not know to write thus she could not sign the document. It is therefore a forgery. On 5th ground, it was submitted that Grace Sima was material witness. Exhibit D3 does not support evidence of SU 2 and SU 3. The District Land and Housing Tribunal did not allow Grace Sima to appear as material witness. In the case of Sisty Reuben versus Republic, Criminal 6|Page Appeal No. 280 of 2022 at page 22 where the Court stated that failure to call material witness entitles the Court to draw adverse inference. It was summed up in totality that this appeal is meritorious, thus this honourable court be pleased to allow the appeal by quashing the whole of the decision of the DLHT. In response, Mr. Majaliwa Wiga, learned advocate opposed the appeal. He responded seriatim in relation to all grounds of appeal. On the 1st ground, it was submitted that the law was adhered to as the appellant was given opportunity to present her evidence. Being an administratrix is the one thing but proof of the ownership is a different thing. It was stated that appointment of the appellant as the administratrix of the estate does not guarantee ownership. It was reiterated that all the evidence from SU 1 to SU 6 in the proceedings, there is nowhere the respondents admitted that such land belonged to the deceased’s estate. Regarding the pleadings, it was 7|Page submitted that the pleadings must be proved by the support of evidence. In the instant case there was no proof that land belonged to the deceased’s estate as represented by the appellant. On the 2nd ground, it was submitted by the respondents that at page 27 of the proceedings SU 2 stated that the land was given to him by his mother in 2008 and the same was confirmed/ certified by the Village authorities in 13/3/ 2008 and the donor was present to agree and confirm that the Village Council as reflected on page 4 of the Judgment. The confirmation of ownership was tendered as Exhibit D3 as per page 28 of the proceedings and it was not objected at all. It was further reiterated that SU 3 at page 31 stated that the 3rd witness of the defence witnessed the 1st respondent being given the land as a gift with a size of 9 acres. The evidence revealed that the land was not property of the deceased but the land belonged to the 1 st respondent after being given inter vivos. There is nowhere the respondents have stated that the land belonged to the deceased one Reuben Itungi. 8|Page On 3rd ground, it is submitted that 1st respondent was legally owner of the land as reflected on page 27 of the proceedings and page 4 of the Judgment. It was argued that upon being granted a land inter vivos, the 1st appellant was confirmed by the Village Planning and Finance Committee as per Exhibit D3 as reflected on page 28 of the proceedings. The respondents urged this Court to be guided by the principle in the case of Salum Mateyo versus Mohamed Mateyo [1987] TLR 111, where the certification of the land is the evidence of ownership of the land. According to the respondents, the 1st respondent had all powers to dispose the land as he was the owner of the land as reflected on page 29 of the proceedings to other respondents. It is at this juncture where the Nemo dat quid non-habit i.e. no one can transfer what he himself possess. 1st respondent being the owner had title to dispose / transfer to all the 2 nd to 6th respondents. On the 4th ground, it was submitted there was nothing on the evidence of SM 1 that Exhibit D3 was a forged document. Forgery calls for 9|Page evidence. Exhibit D 4 and D 6 which were decisions/ judgments of the DLHT there was nothing indicating that Exhibit D6 was forged documents as it relates to the same land. It was argued that evidence of SU 3 at pages 31-32 indicated that he witnessed Grace Sima signing the document certifying the 1st respondent as the owner of the land in question. There is nothing that the District Land and Housing Tribunal did deny calling of Grace Sima to appear and testify before the Court regarding transferring the land inter vivos. Thus, it was argued that if the appellant thought Grace Sima was material witness the appellant ought to have done so by calling her to testifying in her behalf. On 5th ground, it was submitted that it is not a duty of the court to call witnesses to call except the party who deems such witness to be material. The District Land and Housing Tribunal found that Exhibit D4 and D6 which were not objected by the appellant. Grace Sima has never denied to have granted land as a gift inter vivos to the 1st respondent. 10 | P a g e Exhibit D6 reveals that Grace Sima sues the 1st respondent at the Ward Tribunal where Grace Sima failed to prove that land belonged to the late Reuben Itungi. He could not call the same person to testify in his favour on the same matter the 1st respondent had won the case. It was the respondents’ submission that SU 3 was adequate to prove that 1st appellant had title over land. Also, the appellant failed to institute the case against Grace Sima who gave land to 1st respondent. Thus, the respondents urged this Court that this appeal deserves to be dismissed with costs and enjoined this Court to uphold the decision of District Land and Housing Tribunal for Singida. In rejoinder, the appellant reiterated that with regard to adherence with the law, it was appellant’s view that the District Land and Housing Tribunal failed to adhere to be bound by pleadings. It was reiterated that evidence of SU 1 at page 25 stated that land belonged to the deceased Reuben Itungi. Further, the appellant stated that legally speaking, there was no legality on the party of the 1st respondent to deal with that land by 11 | P a g e disposing it as there was no administratrix of the estate of late Reuben Itungi’s estates. Moreover, on the Certification of land, the appellant argued that nothing can became legal where disposition was done where there was no administration of the estate thus reiterated that cited cases were distinguishable. The land was not transferred legally. On forgery of the document, it was argued that the same evident as it can be seen by eyes. There is nowhere stated that Grace Sima signed. On 5th ground, it was argued that it is the correct position of the law that Court has no duty to call witnesses. Grace Sima was not called as she was not material. I reiterate that decision of District Land and Housing Tribunal was wrong and this court should allow the appeal on strengths of the case. 12 | P a g e I have dispassionately considered the rival arguments by the parties in light of available records to establish whether the appeal has merits or otherwise. It is pertinent to address the appeal by addressed the grounds of appeal as follows: Before the District Land and Housing Tribunal for Singida, the Tribunal was faced with evidence both oral and documentary nature indicating the following main aspects. First, that the 1st respondent was granted land inter vivos by her mother in 2008. Second, that grant of the land inter vivos was effective and witnessed by oral evidence as well as documentary exhibits. Third, that there are two decisions of the Tribunal regarding the same land where it was decided that by virtue of grant of land inter vivos, the 1st respondent had mandate to dispose the land as he wished to the 2nd, 3rd, 4th, 5th and 6th respondents. Neither of these Tribunal’s decisions has been challenged by way of appeal, revision or review at any material time. 13 | P a g e It is one of the crucial principles of law in this jurisdiction that orders of the court must be complied with. The principle is very illustrative in the case of Registered Trustees of Telesina Sisters and 10 Others vs Nassoro Thabit Lipangile (An administrator of the estate of Rukia Lipangile) and Another (Civil Appeal No. 382 of 2021) [2024] TZCA 1241 (10 December 2024), pages 16-17, the Court of Appeal observed that: We are alive to the traditional rule that orders made by courts or tribunals must be complied with. This rule is old and stable to all courts and tribunals. It was pronounced strongly in English decision of Hadkinson v. Hadkinson [1952] 2 All ER 567 that: "It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person 14 | P a g e affected by an order believes it to be irregular or even void. " The above decision is part of our law and it has been pronounced in many of our decisions including; Olam Tanzania Limited v. Halawa Kwilabya, Civil Appeal No. 17 of 1999 (unreported); Karori Chogoro v. Waitihache Menengo, Civil Appeal No. 164 of 2018 [2021] TZCA 281 (5July 2021) and CRDB Bank PLC v. Heri Microfinance Limited & Another (Civil Appeal No. 20 of 2020) [2024] TZCA 202 (19 March 2024). In the first case, we observed thus: ”Court orders are made in order to be implemented; they must be obeyed. If orders made by courts are disregarded or if they are ignored, the system of justice will grind to a half or it will be so. chaotic that everyone will decide to do only that which is conversant to them ." It can be noted that most of the cases where the above rule was addressed, it has been the parties who failed to obey the order. But, in this matter, unfortunate, it is the 15 | P a g e maker of the order who was the first to defy it without disclosure of any reason. We treat this to be an extreme case of disobedience to the cardinal rule of justice referred above. In such glaring error, the first appellate court ought to have seen it and rectified it even before the parties landing to the Court by way of an appeal. Unfortunately, the High Court overlooked such an important point of law which is intended to protect the system of justice in the Country. The danger is glaring if this Court will bless it, obvious will assure occurrence of injustice and chaos of the system of justice which we are obliged to protect. Standing on above consideration, we are determined to hold that the tribunal committed a serious irregularity for such a trend it devised. It is elementary that orders once made must be complied with unless they are vacated with or set aside by a superior court. 16 | P a g e I am fortified that the District Land and Housing Tribunal for Singida was duty bound to uphold existing decisions which are binding to parties and those litigating in the similar capacities. The decisions have lucidly stated the land in question belonged to the respondents and not appellant’s mother. Neither of the decisions was at once vacated or set aside by any Tribunal or court. Thus, such decisions declaring the respondents as owners of the land by virtue of purchase from the 1st respondent remain intact todate. It would be unprocedural and unlawful for the District Land and Housing Tribunal or this Court to vacate such decisions that have not been challenged since they were made in 2018. On standard and burden of proof of the civil case, this Court is guided by Section 3(2) (b) of the Evidence Act provides that standard of proof in civil case is on the balance of probability and the burden of proof vests on the person who alleges existence of a particular fact. The burden of proof is lucidly stated in the Evidence Act, Cap 6 R.E. 2022 as: 110.-(1) Whoever desires any court to give judgement as 17 | P a g e to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 111. The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side. In the instant appeal, it was the appellant was initiated the application before the District Land and Housing Tribunal for Singida seeking judgment in her favour allegedly as administratrix of the estate Reuben Nkambi Itungi. It was therefore incumbent upon the appellant to prove before the Tribunal that the land in question belonged to the estate of the deceased. 18 | P a g e It is settled principle that a party with heavier evidence than the other party deserves the decision of the Court. For instance, in the case of Leonard Dominic Rubuye t/a Rubuye Agrochemical Supplies vs Yara Tanzania Limited (Civil Appeal No. 219 of 2018) [2022] TZCA 419 (13 July 2022) (TANZLII), at page 22, the Court of Appeal of Tanzania lucidly stated that: We begin by acknowledging the well settled position that the onus of proving existence of any fact lies on the party asserting its existence and in civil cases proof is at balance of probabilities. That is in accordance with the provisions of sections 110 and 111 of the Law of Evidence Act [CAP 6 R. E. 2019]. See the case of Attorney General and two Others v Eligi Edward Massawe and Others, Civil Appeal No. 86 of 2002 (unreported). Of course, this is construed to mean that the one with heavier or stronger evidence will have the case decided in his favour (emphasis is supplied). 19 | P a g e It is on lucid that given the available evidence on record that 1 st appellate was granted land in question inter vivos which was supported by two sets of documentary evidence namely the Certification by the Village on the land given inter vivos on 23rd August 2008 as Exhibit D 3 and judgments of the Court that were marked as Exhibits D.4 and Exhibit D.6 respectively watered down the claim by the appellant to be the owner of the land in question by virtue of administratrix of the estate. Exhibit D3 in essence established that the land in question passed from one Grace Sima to the 1st respondent. It is settled law that for the grant of land vide a gift inter vivos, there are few mandatory conditions that must be proved, namely: First, intention to give the land. Second, acceptance of the same by the recipient. Third, the effective occupation of the land by the recipient or donee. These aspects fall within the principle in the case of Hamis Sultan Mwinyigoha vs Zainabu Sultan Mwinyigoha (Civil Appeal No. 447 of 2020) [2024] TZCA 150 (29 February 2024) (TANZLII), at pp. 5-6, the Court stated that: 20 | P a g e We have therefore underscored in the context of this case that, validity of a gift essentially lies on the intention to give and acts incidental to that intention which may include the physical handing over of the gift. See Micky Woodley, Osborn's concise Law Dictionary (supra) at page 200-201. It is also essential and paramount for the gift to be voluntary on the part of the donor and without any element of consideration on the part of the donee. As per the commentaries contained in Justice Y.V. Chandrachud, P Ramanatha Aiya Concise Law Dictionary, 3rd Edition, Lexis Nexis Butterworths Wadhwa, page 493; love, affection, spiritual benefit and many others may enter into the intention of the donor to give or make a gift. In the law of property therefore, three elements must exist for a gift to be legally valid. One is, as alluded to above, intent to give by the donor, two, delivery of the gift to the recipient, the donee 21 | P a g e and three, is the acceptance of that gift by the donee. These three elements, by any standard, are exhibited by way of evidence, no more no less. It is to say, in the instant appeal, there must be evidence proven on balance of probabilities that the late Sultan Mwinyigoha granted the suit property to the appellant by way of a gift. It is lucid that the 1st respondent from whom all other respondents derived their title over the land managed to establish the elements of grant of land inter vivos. The proof was both oral and documentary in nature as he tendered Exhibit D 3 which was the culmination of the grant of such land witnessed by the Village authorities. Further, SU 3 one Asheri Raphael who was party of the Village leadership witnessing the grant testified in the District Land and Housing Tribunal. It was SU 2 (1st respondent) testimony that he has used the land in question since 2008 when he got it through grant inter vivos to 2019 when he decided to sell it and shift to Manyoni. 22 | P a g e On the other hand, the appellant and her witnesses did not produce any tangible evidence to prove that the land in question belonged to the late Reuben Itungi. There was no evidence as to how such land came into ownership of the late Reuben Itungi. The appellant evidence fell short to indicate when was the land inherited by the deceased one Reuben Itungi from his father. There was no evidence as to how such land was acquired nor any person testifying on the modality and timing of the acquisition of the said land by the deceased one Reuben Itungi. In fact, totality of the evidence reveals that there was no sufficient evidence on record to link the disputed land to the ownership of the same by the late Reuben Itungi. Thus, the District Land and Housing Tribunal for Singida correctly found that evidence on record indicated that 1st respondent validly owned the land thus he had the right to dispose to the rest of the respondents. Moreover, allegation of forgery of Exhibit D3 should not be left unattended. Forgery is a serious criminal offence that should not be taken 23 | P a g e lightly. Under section 337 of the Penal Code, Cap 16 R.E. 2022 an offender of forgery is liable to imprisonment for seven years. Further, depending on the nature of the document forged punishment may in certain circumstances be life imprisonment. Forgery is indeed a serious offence which cannot be stated in causal manner to vitiate a decision of a civil court or tribunal without sufficient evidence to support the same. For instance, in the case of Stanley Murithi Mwaura vs The Republic, (Criminal Appeal 144 of 2019) [2021] TZCA 688 (22 November 2021) (TANZLII), at page 77, the Court of Appeal illustrated that: In terms of sections 338 (quoted earlier on) and 342 of the Penal Code, the maximum punishment provided for those offences is imprisonment for life. In our view therefore, imprisonment of 7 years in respect of forgery and uttering false documents was proper sentence, in that mitigation factors were considered even by implication otherwise the 24 | P a g e appellant would have been sentenced to life imprisonment, which is the sentence prescribed for those offences. The law is settled that allegation of fraudulent nature must be specifically pleaded and proved. Allegation of forgery ought to have been categorically proved by cogent evidence during trial of the case before the District Land and Housing Tribunal for Singida. The principle was succinctly stated in the case of International Commercial Bank Limited versus Jadecam Real Estate Limited (Civil Appeal 446 of 2020) [2021] TZCA … (15 November 2021) (TANZLII), at page 16, the Court of Appeal noted that: The second part relates to the sufficiency of evidence to prove fraud. It is trite that the standard of proof of fraud in civil cases is higher than a mere balance of probabilities … the decisions in Omary Yusuf v. Rahma Ahmed Abdulkadr [1987] T.L.R 169 and Ratilal Gordhanbhai Patel v. Halji Makanji (supra) reinforce that an 25 | P a g e affirmative finding on fraud entails strict proof which was not the case in the instant appeal. It is on record in page 5 of the District Land and Housing Tribunal for Singida demonstrated that there was no evidence at all regarding forgery of exhibit D 3. In fact, neither Grace Sima, the grantor of the land to the 1st respondent in 2008 nor one Reverend Charles Itungi who also signed the exhibit granting the land to the 1st respondent was called by the appellant to testify if that grant never existed nor that a grant was documented and witnessed by village authority. In absence of the evidence of forgery before the trial Tribunal makes this Court with limited options to find otherwise. The allegation is not supported by cogent evidence thus is delinquent of merits. It must fail. In totality of evidence on record, there is nothing serious to warrant this Court to interfere with the findings of the trial Tribunal. All the grounds 26 | P a g e of appeal are therefore destitute of merits and I shall proceed to overruled them. The appeal is dismissed in its entirety for being devoid of merits. The respondents are entitled to costs. It is so ordered. DATED at DODOMA this 18th day of February 2025 E.E. LONGOPA JUDGE 18/02/2025. 27 | P a g e