juma athuman mbena vs halima musa haule 2021 tzhclandd 818 28 july 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPEAL NO. 10 OF 2019 (Originating from the Decision of the District Land and Housing Tribunal for Kilombero/Ulanga in Land Appeal No. 417 of 2018 which originated from Land Case No. 17 of 2017 at Minepa Ward Tribunal) JUMA ATHUMANI MBENA ......................................... APPELLANT VERSUS HALIMA MUSA HAULE................................................ RESPONDENT Date of last Order: 23/07/2021 Date ofJudgment: 28/07/2021 JUD GM ENT MANGO, J. The Appellant filed case No. 17 of 2017 before Minepa Ward Tribunal against the Respondent Halima Musa Haule for trespass of his land measuring 6 acres. He alleged that, the Respondent surveyed his farm measuring 6 acres. The trial tribunal ruled in favour of the Respondent. The Appellant unsuccessfully appealed to the District Land and Housing Tribunal for Kilombero/Ulanga. Aggrieved by the decision of the decision of the District Land and Housing Tribunal for Kilombero/Ulanga the appellant preferred this Appeal on the following grounds: - 1. That the District Land and Housing Tribunal erred in law by declaring that the disputed land is different from the land i which was subject matter between him and the late Mohamed Kimwaga without clarifying the alleged difference to dismiss the appeal with costs. 2. That, the trial tribunal erred in law and in fact delivering a judgement in favour of the Respondent in setting mind that the Appellant's claim is an afterthought and again the Respondent is not administratix of the Estate of her late husband a thing which does not match with the favour 3. That the learned chairman and his wise assessors erred in law being surprised with a dispute of 6 acres of land despite the actual acres of the Appellant which were trespassed by the Respondent that the dispute was 6 acres and that is what was claimed at the Ward Land Tribunal; the 14 acres were lawful owned by the Appellant and are not part of the estate as alleged. According to the Appellant's testimony before the trial Tribunal, the suit Land belonged to Salehe Mpalang'ombe and Habiba Ngeleka since 1973. Salehe Mpalang'ombe passed away in 1999. In 2000 Mohamed Kimwaga sued Halima Musa Haule before the Village Council. Halima Musa Haule was the wife of the late Salehe Mpalang'ombe. Halima won the case. Mohamed Kimwaga successfully appealed to the Ward Tribunal. Juma Mbena, the Appellant herein, successfully appealed against the said decision. He wonders why the Respondent trespassed into his land, the suit land and surveyed the same. 2 During hearing of the Appeal, the Appellant did not dispute that the suit land belonged to Salehe Mlang'ombe. However, he alleges that he acquired ownership over the suit land by prosecuting the appeal between him and one Mohamed Kimwaga. He submitted further that the Respondent has no title over the suit land as she is neither the heir nor the administrator of the estate of the late Salehe Mpalang'ombe. According to him, the suit land had 14 acres, 7 acres belonged to his late father and 7 acres belonged to the late Salehe Mpalang'ombe. The Respondent conceded that she does not have title over the suit land. According to her, the suit land belonged to her late husband, Sale Mpalang'ombe. And that as of now, the suit land is owned by Sophia Salehe Mpalang'ombe, the daughter, of Salehe Mpalang'ombe and Iddi Salehe Mpalang'ombe, the son of the late Salehe Mpalang'ombe. I have considered submission by both parties and Court record. As the Respondent has conceded that she does not have title over the suit land and Appellant does not dispute the same, the only issue to be determined in this appeal is whether the Appellant was declared to be the owner of the suit land. The Appellant did not mention which court has declared him the owner of the suit land. He however produced a copy of judgement of Vigoi Primary Court in Shauri la Madai No. 3 of 2002. According to the decision of Vigoi Primary Court in Shauri la Madai No. 3 of 2002 between the Appellant and Mohamed Kimwaga the suit land had 14 acres, of which, 7 acres belonged to the Appellant late father and 7 acres belonged to the Appellant's uncle Salehe Mpalang'ombe. It was clearly 3 stated that the Appellant was a care taker of the suit land after the death of his father and Salehe Mpalang'ombe. First page of the Judgment reads:- "Mdai ndiye anayesimamia mashamba yote kwa kuwa wote walishafariki." Moreover, the appellant submitted that he incurred costs in maintaining part of the land that belongs to the late Salehe Mpalang'ombe and nobody among the heirs of Mpalang'ombe assisted him in prosecuting the case that was filed by the late Mohamed Kimwaga. According to him, he acquired ownership over the suit land by prosecuting the said case. As highlighted above, the appellant was not declared to be the lawful owner of the suit land. He was considered to be a care taker of the suit land after the death of his father and Salehe Mpalang'ombe. Taking care of the deceased properties does not make the person the owner of the properties even if such person incurs costs in maintaining the property. Evidence on record establishes that, the suitland forms part of the estate of the late Salehe Mpalang'ombe. It also establishes that, the Respondent, Halima Musa Haule, is not the administrator of the estate of the late Salehe Mpalang'ombe. In such circumstances, I find the District Land and Housing Tribunal to have correctly dismissed the appellant appeal as the suit land does not belong to any of the parties to this Appeal. The suit land forms part of the estate of the Late Salehe Mpalang'ombe. Should the Appellant or anybody have any claim concerning the suit land, he should pursue the same through the administrator of the estate of the late Salehe Mpalang'ombe 4 or, the heirs of the estate themselves if the Administrator has already distributed the estate. The Appeal is hereby dismissed for being unmeritorious. Given circumstances of this case, I award no costs. Each party to bear his own costs. JUDGE 28/07/2021 5