kajilo shalali vs malingila njile 2021 tzhc 6508 24 september 2021

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF SHINYANGA AT SHINYANGA LAND APPEAL NO.33 OF 2020 KAJILO SHALALI (Administrator of the Estate of the ••.••••.•.•...••••••••••••••••• APPELLANT Late Madama Mduta) VERSUS MALINGILA NJILE ............................................•••.• RESPONDENT (Arising from the decision of the District Land & Housing Tribunal, Shinyanga) Dated the 9th of July, 2020) In Land Application No.2S of 2018 JUDGMENT 24thAugust&24thSeptember,2021 MDEMU, J.: In the District Land and Housing Tribunal of Shinyanga, the Respondent Malingila Njile sued the Appellant herein for encroachment of his eight (8) acres piece of land situated at Ikonda, in Kiloleli village within kishapu District. According to the complaint filed on 9th of May 2018 in land Application No.25 of 2018, the Respondent purchased the land from Sosoma Ngashi on 5th of August, 1984. From the date thereof, the Respondent enjoyed quite possession to 22nd of December, 2017 when the Appellant trespassed to the suit land. To the conclusion of trial, the trial chairman found that Respondent's case to have been proved thus declared him the rightful owner of the said eight acres land. This was on 9th of July, 2020. The Appellant considering himself the rightful owner of the suit land, appealed to this court by filing seven somewhat narrative grounds of appeal which may be summarized in the following main points: one that, the dispute was on probate matters and not land dispute. Two, the sale agreement was a forged one and those witnessed the sale were not called to testify. Three, there is no evidence that the land was purchased from Sosoma Mwanangashi and four that, the Respondent was not in occupation of the land as from 1984. On 24th of August, 2021, parties appeared in person before me arguing the appeal. Both of them had nothing useful to submit save for banking on the contents of the petition of appeal and a reply thereto by the Appellant and the Respondent respectively. For clarity, I will paraphrase the grounds of appeal and a reply thereto forming part of their submissions. 2 Commencing with the Appellant, he submitted in his petition of appeal that, the DLHT had no jurisdiction because the dispute arose when the Appellant was distributing the estate of the late Kadama Nduta such that, the provisions of section 33(1) (a) and (b) of the Land Dispute Courts Act, Cap.216 is in applicable. In that ground of appeal, he thought, as the matter was a probate one, courts of law were clothed with jurisdiction. In what he constituted as ground two, the Appellant contented that exhibit P1,the sale agreement was forged because, in 1984, the price of one cow may not have been Tshs. 100,000/= but it was not more than Tshs.5000/=. Importantly is that, those who witnessed sale, a ten cell leader of Ikonda inclusive, never testified. This latter, he added, had no authority to witness any sale of land. In that therefore, he thought the trial chairman was not justified to hold that, the Respondent lawfully purchased the suit land, more so because, the said Sasoma whom the Respondent claimed to purchase the land was just a care taker. He concluded that, the holding of the trial chairman that the Respondent was living in that land as from 1984 is not backed by any evidence. His view was therefore that, under the premises, the learned trial chairman failed to analyse evidence and was wrong in criticizing the -----. Appellant that, his appointment to administer the estate of the deceased was culpable to fulfil his interest over the property. he thus urged me to allow the appeal. In reply to the petition of appeal, the Respondent submitted that, the trial tribunal considered the weight of evidence of both parties and trusted the evidence of the Respondent thus declared him the owner. As to price of cows in 1984, his submissions was that, there is no fixed price and the same is determined by the market price. He also faulted the Appellant that, witnesses were indisposed as others are dead while others are untraceable. Regarding powers of the ten cell leader to witness sales, his observation was that, at the time of sale, ten cell leaders were vested with such powers and not the village council. He replied also that, the seller was not a care taker otherwise, no one would have witnessed the sale. He concluded that, the sale was lawful and the sale agreement is a genuine one. he added therefore that in case the Appellant is of the view that there is forgery, then he may refer the matter to relevant authorities. He thus found no merit to the appeal and asked its dismissal. ------- •....• From what parties submitted and the record, the question for determination is one, that is, whether there is evidence on record to justify ownership of the suit land to the Respondent as ably observed by the trial chairman. The only evidence relied by the trial tribunal is one that the Respondent lawful purchased the land. In this evidence, the Respondent tendered a sale agreement exhibit Pi dated 5th of August,1984. It is in this document where there is evidence that, the Respondent purchased the suit land from Sosoma Ngashi. At page 9 of the proceedings, the Respondent who testified as PWl stated that: The land I bought from one elder Sosoma Ngashi in 1984. I was handed the land. I paid ten (10) cattle valued at Tshs. 100,000/=. This evidence of the Respondent is corroborated by the evidence of PW2 one Patrick Sosoma, son of the vendor Sosoma Ngashi who testified that, his father who sold the land to the Respondent got the land from his father one Majigwa. Regarding sale, he said the following as at page 13 of the proceedings: 5 I am the son of Sosoma. In 1984 we had the move to migrate. My father sold the plot, houses, place of mbuga, he sold at 10 (ten) cattle. The land from there became of Malingila njile. With this evidence, ground of appeal that the Respondent legally purchased the land from Sosoma has been determined in the affirmative. Assertions of the Appellant that, the sale agreement is forged, cannot be trusted. Again I agree with the Respondent that, in those days, during one party system, ten cell leaders were powerful and used to witness such transactions at village level. This is so regardless of whether or not the law permitted them to do so. This is so whether or not legally they were required to do so. In either case, this fact cannot invalidate the alleged sale. I have also taken the concern of the Appellant that in 1984, one cattle would not have the value of Tshs. 100,000/=. Whereas I entirely agree with the Appellant on this observation, yet he misconceived the evidence of PW1 regarding value of one cow. Let this part of evidence speak by itself as at page 9 of the proceedings: I paid ten (10) cattle valued at Tshs. 100,000/=. 6 My understanding to the above evidence is that, Tsh. 100,000/= is the value of ten (10) cattle and not one cattle as stated by the Appellant. That means, the value of one cow according to this evidence is estimated to Tshs. 10,000/= which appears to mark no big difference to the estimated value of Tshs. 5,000/= testified by the Appellant (DW1). Regarding the Respondent to be in occupation of the land as from 1984; this again has been established. According to the evidence of the Respondent, since he purchased the suit land in 1984, he was in use of the same. The Appellant also in his evidence has not testified if he was in use of the land. What is in his evidence also is that, the Respondent purchased a house from Sosoma's family. At page 16 of the proceedings regarding this fact, the Appellant testified that: I do not agree with Malingila Njile to say he bought the land, that is lie. He just bought the house of a concubine of elder Sosoma which was used for local brews. The concubine of Sosoma had never used the disputed land The land was being used by the wives of Sosoma.Sosoma when decided to migrate, he left the land to elder Ngolelwa now deceased. 7 ~ From the evidence above, it is not disputed that, the land in dispute was the property of Sosoma and that, as there is no evidence where the Respondent was after the alleged purchase of the suit land in 1984, it is clear that, he was living in the said disputed property. Concern of the Appellant that the Respondent was not leaving there is thus an afterthought. Going to the complaint that this was a probate case, I think there is a lot of misconception on the Appellant. The Respondent referred the matter to the DLHT, in which, among other prayers, the following was prayed as a relief as per the complaint: An order permanently restraining the respondent from interfering, trespassing, selling, mortgaging, leasing or distributing the land in dispute to the heirs of the late Kadama Mduta or to do any transaction whatsoever thereto. In the above prayer, it is clearly indicated that, the Appellant trespassed in the suit land. Of course, he conceded that he was allocating the suit land to heirs as an administrator of the estate. In the record, there is no evidence that the Respondent was among the heirs. On that note, this may not turn this dispute a probate one. 8~ -- Having said all, I do not see any substance to this appeal and I proceed to dismiss it with costs. It is so ordere~ Gerson l. Mdemu JUDGE 24/09/2021 9