JUSTINE HUKUMU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA LAND APPEAL NO.8898 OF 2024 (Arising from Land Application No.79 of 2023, Kahama District Land and Housing Tribunal) JUSTINE SULULI ELIAS (Administrator of the Estate of the Late Elias Lujoroja) .........................................APPELLANT VERSUS CHRISTINA JOSEPH ..............................................RESPONDENT JUDGMENT 15th & 31st July 2024 F.H. MAHIMBALI, J The appellant herein at the capacity of administrator of the late Elias Lujoroja sued the respondent for the claim of parcel of land. In his application, he prayed for the trial tribunal to declare him as lawful owner of the disputed land and other sub sequential reliefs. The nutshell of the case is that the appellant claims against the suit land measured 47 acres located Ntabale -Segese Msalala in Kahama 1 District in Shinyanga region. It was further alleged that in 2022, the respondent trespassed the suit land and claimed it to be a property of her deceased husband one Onesmo Elias a son of the late of Elias Lujoroja. The trial tribunal after a thorough consideration, entered its verdict in favour of the respondent on the contemplation that the suit land is a property of Onsemo Elias who had been in occupation for so such a long time without any disturbance from anyone, the appellant inclusive. The appellant was aggrieved by that decision; he has appealed before this Court armed with three grounds of appeal; 1. That the learned trial chairman erred in law and facts by deciding in favour of the respondent who had adduced weak, hearsay and contradictory evidence 2. That, the learned trial chairperson of the District Tribunal erred in law and facts in holding that the disputed land was lawfully owned by the late Onesmo Salehe basing on unsubstantiated evidence 3. That the learned trial chairperson erred fatally in law and facts in deciding in favour of the respondent who had no locus standi. 2 During the hearing of this appeal, the appellant enjoyed legal services of Mr. Mashauri learned advocate while the respondent was absent without any sufficient cause, thus the matter proceeded exparte against her. In his submission, Mr. Mashauri argued the first and second grounds of appeal jointly, whereas the third ground of appeal was abandoned. He submitted that the main controversy in this appeal is this, the trial tribunal grossly erred in entering verdict against the respondent as per strength of the evidence by the appellant. The respondent in this matter was just a daughter in law to the deceased who was married to Onesmo Lujoroja – son of the deceased. He queried that in her evidence, the respondent testified that the said Onesmo Lujoroja had bought the piece of land in 1977. This evidence is contradicted by the evidence of DW2 who said that it was bought in 1979. It is further not clear where he got money to purchase the said land, younger as he was; is it by casual labour remuneration as claimed or by dowry of his sister. Further, Mr. Mashauri fortified that the evidence of PW2, had clearly testified that she is the senior wife of the deceased Onesmo Lujoroja and that by the time she was married to Onesmo, she found 3 that land being owned by her father in law - Elias Lujoroja. The evidence of the appellant - PW1 is even stronger that by the time the said land was being bought by his deceased father, he witnessed it. And that the said land has been in continuous occupation since then up to his demise in 2021. That even P.1 exhibit recognized so, that the owner of the said land is the late Elias Lujoroja. This evidence is supported by the evidence of PW3 - Zacharia Masanja who clearly testified that the suit land was bought in 1979 and that he witnessed the said sale. Thus, looking on that evidence, it is clear that on the evidence in record, the appellant's case was weightier than that of the respondent. Just by reasoning, in 1977, the said Onesmo was a minor by then thus, he could not purchase the said land as per law. On that basis, Mr. Mashauri prayed for the appeal be allowed by declaring that the suit land belongs to the late Elias Lujoroja and not the respondent. I have keenly followed the appellant’s submission and upon scanning the trial tribunal’s records I have found the best ground for deliberation is whether this appeal has been brought with sufficient cause. It is Mr. Mashauri’s submission that the appellant managed to prove the case on the required standard as compared to the respondent. 4 The appellant’s evidence was water tight and proved the suit land belonged to his late father. But the respondent failed to prove the ownership of the suit land to be a property of her late husband Onesmo Elias. Via the trial tribunal’s records, I must first put it clear that the appellant before the trial court in his application prayed to be declared as lawful owner of the disputed land. I expected being an administrator would have prayed for the suit land be declared to be property of his late father. Since the appellant had not transferred it to his name then erred to pray so before the trial tribunal. It was therefore difficult for it to declare him a solemnly owner of the suit land which was not bequeathed to him. Sorry to say, the appellant had no locus standi. see LUJUNA SHUBI BALLONZI, SENIOR V. REGISTERED TRUSTEES OF CHAMA CHA MAPINDUZI (1996) TLR 203, where it was held that; “Locus standi is governed by common law, according to which a person bringing a matter to Court should be able to show that his rights or interest has been breached or interfered with”. 5 Now, back to the case at hand, the trial tribunal’s records reveal that the late Elias Lujoroja bought the suit land in the year 1979 from one Matagwa. In between, the late Elias Lujoroja permitted one Benard and Onesmo to lease the suit land, later on 7/3/2021 Onesmo died and unfortunately, on 21/8/2021 Elias Lujoroja also died. The appellant’s assertion also persaude that the respondent trespassed the suit land and claimed the land as belonging to her. PW2 one Yusta Vumilia testified that ; “Mwaka 1998 mme wangu anamuwoa Christina….. marehemu Onesmo aliishi na mdaiwa Kijiji kingine na baadae alimjengea kwenye shamba ambalo nilinunua na mme wangu mwaka 2004……. Na mzee Elias na familia yake waliendelea kutumia eneo hilo ….mme wangu aliniomba akamjengee mke mwenzangu kwenye shamba letu lakini nilikataa, … Christina anaishi kwenye ekari 6 alipojengewa na marehemu mme wetu” PW1 testified when the suit land was bought by the late Elias from one Matagwa, persons who witnessed the sale include; Mathias Elias, Justine Sululi, (see page 4 of the trial tribunal’s typed proceedings). At 6 page 12, PW3 -Zacharia Masanja testified that he was also a person who witnessed the purchase of the suit land. Here there is a question of reliability of witnesses between PW1 and PW3 who is speaking the truth. PW1 alleges he was present during the purchase and mentioned other persons who were present but he did not mention the PW3. Mindful the alleged sale was not put in writings. DW1 - the respondent testified that the suit land was bought by her late husband in 1977. The late Elias Lujoroja had never claimed for the suit land in his entire life. The claim of the suit land has been initiated by the appellant in 2023 when the appellant was appointed as administrator of the estates of the late Elias and included the suit land in the list of estates of the deceased. The late Elias was invited to the suit land by one Onesmo because the late Elias had married a mother of the late Onesmo. Such evidence was given weight by DW2, DW3. Now, in my determination of the matter, I shall be guided by the following principles of law. One, is that in civil cases, the burden of proof lies on the person who alleges anything in his favour as founded in section 110 of the Evidence Act. Two, is that the burden of proof envisaged above is on the balance of probabilities (See 3(2) b, of the Tanzania Evidence Act) and as stated in various decisions, including 7 Anthony Masanga v. Penina Mama Mgesi and Another, Civil Appeal No. 118 of 2014 and Hamza Byarumshengo v. Fulgencia Manya and 4 Others, Civil Appeal No. 33 of 2017 (both unreported). More so, it is the principle of law, that every witness is entitled to credence and must be believed and his testimony accepted unless there are cogent reasons for not believing the witness as per the case of Goodluck Kyando Vs R (2006) TLR 363. According to Mathias Bundala Versus Republic, Criminal appeal No 62 of 2004 and Aloyce Maridadi Versus Republic, criminal Appeal No.208 of 2016 (both unreported), good reasons for not believing a witness includes where the witness gives improbable or implausible evidence or where the evidence of the witnesses materially contradict the evidence of another or of other witnesses. In the instant appeal, scanning the trial tribunal’s records, I have failed to grasp sufficient evidence to prove ownership of the suit land. There is no tangible evidence clearly establishing the late Elias bought the suit land from one Matagwa. PW1 mentioned to be present on sale date and mentioned other persons who were present. PW3 testified to be among the persons who witnessed the sale, but he was not mentioned by PW1 to be amongst persons who witnessed the said sale. 8 If the persons who witnessed the sale themselves do not know each other, how their testimonies may be given credence. Worse, one Onesmo Elias alleged to be in occupation of the suit land from 1977 and he invited the late Elias. It is also on record that Onesmo passed away before the demise of Elias, and no any interference or claim of the suit land by the late Elias. At all this period the suit land was on the hand and occupation of the respondent being a deceased wife of one Onesmo Elias. DW3 was clear that he rented a piece of the suit land owned by Onesmo and he paid him a rent and all times Onesmo was legally known to be lawful owner the suit land even during the presence of the late Elias. In a close digest of the respondent’s case at trial court and the legal principle cherished in the case of Hemed Saidi V Mohamed Mbilu [1984] T.L.R 113 at page 116 that a person whose evidence is heavier than that of the other is the one who must win. I fully subscribe to the said position. Further, I am also of the stance that in measuring the weight of evidence, it is not a number of witnesses that matters but rather the quality of evidence. That being the position, the respondent has on balance of probability been able to establish the claims against the appellant that the suit land belongs to the late Onesmo Elias. 9 Apparently, I recommend the findings of the trial Chairman when ruled that the suit land belongs to the late Onesmo. It was so difficult for him to declare the appellant being lawful owner of the disputed land by mere reasons of being administrator. The appellant had no such locus as the suit land had not been bequeathed to anyone. Thus, he has no right to pass title deed to him as contemplated in his application. Therefore, it is obvious that the suit was wrongly framed. With all these observations, I consequently dismiss the appeal founded on the trial tribunal finding’s as I have no good reason to fault it. Cost of the suit be borne by the appellant. It is so ordered. Right to further appeal against any aggrieved party is explained. DATED at SHINYANGA this 31st day of July, 2024. F.H. Mahimbali Judge. 10 11