Kabula Jingwengwe

The Judiciary of Tanzania IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA CASE REFERENCE NO. 202407311000018529 KABULA JING'WENG'WE (AS AN ADMISTRATIX OF THE ESTATE OF THE LATE JING'WENG'WE MALUNDE) ......................................... APPELLANT Versus LUTUMBI JISENA (AS AN ADMINISTRATOR OF THE ESTATE OF THE LATE JISENA NJIGE) ……………………….........................1st RESPONDENT CHARLES BASU ……………………………………………………….…..2ND RESPONDENT SHINJE WALI ………………………………………………………………3RD RESPONDENT (Originating from the Decision of the District Land and Housing Tribunal of Maswa at Maswa) (Hon. N. M Ntumengwa - Chairperson) Dated the 27th June 2024 in Land Application No. 59 of 2020 ----------------------------- JUDGMENT 20th December 2024 & 14th February 2025. F.H. MAHIMBALI, J The appellant is dissatisfied with the decision of the trial tribunal in which she was claiming ownership of the disputed land as lawfully owned by the late Jing’weng’we Malunde. Upon a thorough hearing, the trial tribunal 1 dismissed the appellant’s application for being unmerited and in its place declared the 3rd respondent as lawful owner of the disputed land. Dissatisfied with the said findings of the trial tribunal, the appellant has preferred this appeal armed with a total of five grounds of appeal, namely: 1. That the trial tribunal erred in law and facts in holding that the 3rd respondent legally purchased the suit land from the 2nd respondent while the said Charles Basu (2nd respondent) who had no cogent evidence to prove his ownership to the suit land as his alleged land he had already sold it to one Lutumbi Jisena. 2. That, the trial tribunal erred in law and facts for holding that the appellant failed to prove the case on balance of probability of which the appellant proved her case on the required standard showing how the said land belonged to the late Jing’weng’we Malunde and that he had been using it without any dispute. 3. That, the trial tribunal erred in law and facts by failing to consider the cogent evidence that the appellant occupied and used the land in dispute for long time uninterruptedly until when her late husband one Jisena Njige took loan from the 2nd respondent without the appellant being informed on loan process. 2 4. That, the trial tribunal erred in law and facts in holding the said land belong to the 2nd and 3rd respondents who had adduced stronger evidence than the Appellant regarding ownership of the land in dispute without considering that the loan between the 1st respondent and the 2nd respondent was void since the appellant did not consent of which then, the 2nd respondent had no good title to pass to the 3rd respondent. 5. That, the trial tribunal erred in law and facts in holding that the disputed land does not follow into the administration of the late Jing’weng’we Malunde, which decision left some more questions as to whom the said suit belongs to. During the hearing of the appeal, the appellant was represented by Mr. Stephano Malyengeta, learned advocate whereas the first respondent was self-represented; and the 2nd and 3rd respondents were represented by Mr. Daud Masunga, learned advocate. Submitting on the first ground of appeal, Mr. Malyengeta said, the grievance is, the 3rd respondent had lawfully purchased the said land from the second respondent in the absence of good evidence that the second respondent had a good title as the same was lawfully sold to one Lutumbi 3 Jisena. Reading the trial tribunal's judgment, the 2nd respondent is quoted having said that the suit land which was under lien was 10 acres by the deceased Gisena Njige as per loan advanced to him. Since there is evidence that the first respondent had repaid the said loan and thus recovered his land, the said land was redeemed, thus, the late Gisena Njige was no longer indebted. As to the second ground of appeal, he submitted that the grievance is, the trial tribunal had erred in holding that the respondent failed to establish the said claims while there was ample evidence for that. He submitted that, the evidence in record dully established that that the appellant was the lawful owner of the suit land. He queried, if not, why then the said landed property still belongs to the first respondent’s deceased father and how she was using the same together with her husband Gisena Njige. For that matter, since it was not disputed on ownership, the issue of heirship equally could not be challenged, she being a lawful spouse. Thus, there was ample evidence for the appellant’s case than that of the respondents. On the fourth ground of appeal, the concern is, the trial tribunal failed to evaluate the evidence in record on the long use of the said land without 4 any intrusion until recently when the second respondent claimed ownership of the said land. To his best knowledge, Mr. Malyengeta submitted that the said loan was fully discharged. There was no such evidence that the said loan remained unpaid. He convinced the court to have a look on section 161 (1) & (2) of the Land Act, read together with section 29 of the Marriage Act and the case of Tanzania Commercial Bank PLC and 2 Others Vs. Shakila Parvs and One Another, Civil Appeal No. 280 of 2020, CAT at Mwanza on the importance of spousal consent, bolstering his submission. With the last ground of appeal, that the disputed land could not be subject of administration, was an erroneous holding of the trial tribunal. It was submitted that, the trial Tribunal grossly erred in law in reaching that holding. On this submission, he asked this Court to allow the appeal, quash the decision thereof with costs and grant any other relief this Honorable court may deem just and proper to grant. On his part, Mr. Masunga learned advocate for the 2nd and 3rd respondents; on the first ground of appeal, he vehemently disputed that the DLHT had erred in reaching that verdict. As the 3rd respondent had lawfully purchased that land from the 2nd respondent after the second respondent 5 had obtained that land from the 1st respondent. And since the 1st respondent had given/handed over the said plot to the second respondent (as per page 8 of the typed proceedings), then everything is clear. Since the first respondent had failed to repay the said loan and that his property was sold to discharge the said debt, the title of it had lawfully passed over. In the cross examination, Mr. Masunga commented that the first respondent equally declares that after the said sale, he had handed over the said house to the 2nd respondent. He added that it is also undisputed that the suit land and the one handed over was fully described by the boundaries. The argument that the appellant had bought the same land from the 2nd respondent is not substantiated. At page 10 of the judgment, it is clearly stated that, the boundaries of the sold land tallied with the evidence of the first respondent. However, it looked different from that of the second respondent. This second respondent (Charles Basu) had declared that the said land he had bought, was different in location from that sold to the first respondent. Therefore, these being two different plots, that ground of appeal is baseless. 6 As regards to the second ground of appeal, he argued that the balance of probability established his case. It is trite law that the parties are bound by their own pleadings (see Mohamedy Ally Vs Masesa Ally, Civil Appeal No. 607 of 2023, CAT at Tabora at page 7). The bindingness of the pleadings extends up to trial court. At page 4 of the typed proceedings, it is not clear as to when the said 1st respondent's father got the said land and how. Further, there is no evidence on how the said transaction was witnessed. Failure to state the source of the ownership, renders the claimant with no right of ownership. At page 8 of the typed judgment is clear on that referred case of Musa Mohamedy that a claim of land is not established by empty words (see also Tabora Municipal Council, and 2 Others V. Kasea Kasanji and 39 Others, Civil Appel No. 112 of 2023, CAT at Tabora page 12 &13. Since the issue in question was ownership of land, it was a condition precedent that the party claiming the said ownership was bound to establish his/her ownership. On the 3rd and 4th grounds of appeal, Mr. Masunga opposed the said grounds of appeal arguing that the appellant had long possession and use of the said land thus entitled to the said possession is not true. He argued that at page 11 of the typed judgment of the DLHT, it is stated that the said 7 land was handed to him while being witnessed. Therefore, the appellant is very aware of the said transaction and cannot legally raise and challenge it today. In his considered view, the DLHT never erred anywhere in reaching that conclusion as per evidence in record. He invited this Court to have a glance at page 11 to 14 and 16 to 17 of the typed proceedings. Therefore, the second respondent had acquired the said piece of land legally. As he had a good title, he validly sold it to the 3rd respondent. That the appellant had to consent, is a new issue posed in which it cannot be entertained by the Court at this stage as it ought to have been raised there. Even the cited case is distinguishable from the current facts, it was submitted. With the last ground of appeal, his response is, there is nothing suggesting that the said suit land is a deceased estate by name of Malunde. Failure to establish that the said land as belonged to the deceased, is a question of fact which has not been well established. As such cases are established by weight of evidences, there is nothing to scale more than done by the DLHT (See Hemed Said v Mohemed Mbilu [1984] TLR 113). 8 He winded up saying that, there are no issues that remained unattended by the DLHT for this Court’s interference. Having submitted all this, this appeal stands to be dismissed with costs, concluded Mr. Masunga. On his part, the 1st Respondent submitted that as per the typed judgement of the DLHT, the deceased had taken three loans. In all the evidences, there is none establishing that he had secured the said loan by his land. The exhibit D4 by 2nd respondent together with exhibits D.1 and D2 and reading the DLHT's judgement, the second respondent's assertion that he got the said land by loan advancement and by securities mentioned, he discounted it being true for want of proof/tangible evidence. He clarified that, the only loan known was 2.5milion and it was repaid all. It was him who had repurchased the said land on loan default and given him all the money. By the way the said Jisena Njige, had only secured the said loan by 10 acres, but Charles Basu says different that he took 20 acres and sold them all. Reading the purported exhibit, nowhere that the said land is described as being given to Charles Basu. No boundaries, neighbors are mentioned there in. Thus, this appeal is meritorious, and he supported. 9 In his rejoinder submission, Mr. Stephano Malyengeta John, had nothing material to add but just pressed for the appeal to be allowed. The vital question in digest of this appeal is whether the appeal has been brought with the sufficient cause. Having heard the submissions from the both parties on the appeal, I have now to determine the appeal based on evidence and the legal position cherishing ownership of land. Being the first appellate court, I am privileged to step into the shoes of the trial court and asses the whole evidence adduced by the all parties at trial and give my own findings so long as the appeal involves issues of fact. It is the cardinal principle of law that in civil cases, that the burden of proof lies on the person who alleges anything in his favour as founded in section 110 of the Evidence Act. Further, it is also the settled law 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 Anthony Masanga v. Penina Mama Mgesi and Another, Civil Appeal No. 118 of 2014, Hemed Said v Mohemed Mbilu [1984] TLR 113, and Hamza Byarumshengo v. Fulgencia Manya and 4 Others, Civil Appeal No. 33 of 2017 (both unreported). 10 Scanning the trial tribunal’s record, the appellant who was the applicant at the trial tribunal, in her application (plaint) at para vi and para vii states the following: vi: That the applicant and the first respondent were the wife and husband, that during their life time the applicant and the first respondent were using the land of the late Jing’weng’we Malunde in the agriculture activities of which the land including the disputed land were under care of the applicant as the only beneficiary of the estate of her father. So the land in dispute was not matrimonial home or matrimonial property but the first respondent was just authorized to do agricultural activities and not else. vii. That sometimes in the mid of June 2017, the Applicant came to learn that secretly and without her knowledge that the first Respondent took the unknown loan of money from the second respondent of which the first respondent neglected and defaulted to make repayment of the said loan of which the lenders then had exercised their right of lien by selling the said land purportedly to be mortgaged without her knowledge and prior consent. 11 In establishing her claims as stated in paragraphs VI and VII in the statement of her application, the appellant (Claimant) stated the following in her testimony: “….Eneo la mgogoro lina ukubwa wa ekari 10, lakini na mipaka ifuatavyo: Kaskazini – Shindai, Kusini – Mto, Mashariki – Shindai Wali, Magharibi – Hana Jing’weng’we. Mdaiwa wa kwanza aliibua mgogoro ambaye ni mume wangu – Jisena Njige baada ya baba kufariki. Naye alilichukua eneo hilo kisha kuliweka rehani kwa Mdaiwa na. 2 na aliposhindwa kulipa deni hilo, eneo hilo lilichukuliwa na mdaiwa na. 2 ambaye nae akaliuza kwa mdaiwa na.3. Ndipo nikaamua kuja kudai eneo hili huku barazani kwakua Mdaiwa na. 1 aliniibia eneo langu ambalo ni urithi wangu kutoka kwa marehemu baba yangu. Hivyo eneo hilo lilichukuliwa kienyeji na kuuzwa isivyo halali. Naomba Baraza hili linirejeshee. When being cross examined by the first respondent on the status of the said suit land, she replied the following: Gisena Njige ni marehemu mume wangu na wote niliishi nao. Pia ni kweli Rutumbi Gisena na Gisena Njige ndiyo walioliweka rehani 12 eneo hili kwa Charles Baso. Rutumbi Nkuba ndiye aliye gawa maeneo ya marehem baba yangu Rutumbi Nkuba ndiye aliyegaw eneo hilo. Malunde Jing’weng’we alipopewa eneo hakumuuzia mume wangu Jisena Njige bali alimuuzia Kija Nigo. Moreover, when cross examined by one tribunal assessor – Ester Kulwa on how the said land was obtained by her late father, SM1 (the Appellant) replied: Eneo hilo baba yangu alilinunua kutoka kwa Kitambala. The first respondent (Lutumbi Jisena) in his testimony on the raised claims by the appellant, he disputed them, arguing that they are all baseless and saying that the suit land is his and that it was not part of the appellant’s land but his (exhibit U1). After he had defaulted the said loan payment, out of the 22 acres he had put them as security for the said loan, 10 acres were taken by the 2nd respondent who eventually sold them to the 3rd respondent. Thus, it is none of the appellant’s business affairs. The first issue for the determination of the case at the trial tribunal was whether the suit land was owned by the appellant’s father as claimed. In my keen scanning of the above evidence, there is none. There has not been any evidence to the fact how the appellant’s father got the said claimed 13 land. If it is true that the said Jing’weng’we Malunde had obtained by sale the said land from the alleged Kitambala, there ought to have been a clear evidence supporting that assertion. On the second issue as to whether the first respondent had mortgaged the suit land as alleged. The evidence by the appellant and the first respondent is very clear that there was mortgage created by the first respondent in favour of the 2nd respondent who eventually sold it to the 3rd respondent. Nevertheless, there has not been evidence that the said mortgage was created in respect of the suit land as alleged. What is clear is this, the first respondent mortgaged his own land different from the allegations put by the appellant. The story would have been different had the appellant established that the suit land belonged to her father or that she being a spouse to the deceased husband (first respondent), she had interests over the said land thus, its subsequent mortgage ought to have been sanctioned by the spousal consent. All in all, in a total consideration of the appellant’s case and that of the respondents (in particular the first respondent), I find the both issues (first and second) as answered negatively against the appellant. 14 All this said and considered, I find this appeal being brought without any sufficient cause and it is hereby dismissed for want of merits. In consideration of the fact that this appeal involves family members, I make no order as to costs. It is so ordered. Right to appeal fully explained to any aggrieved party. DATED at SHINYANGA this 14th February, 2025. F.H. Mahimbali Judge 15