civil decision 2025 03 19 14 18 16

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND APPEAL NO. 000016215 OF 2024 KALIMUWABHU MGOZI .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF

VERSUS 2.PETER VICTON 3.NDAGIJE IBRAHIMU4.YUSUFU HAMISI MKUYU .............................. RESPONDENT / DEFENDANT

JUDGMENT RWIZILE, J, This appeal originates from Land Application No. 101 of 2023 of the District Land and Housing Tribunal of Kasulu. The disputed land is unsurveyed and measures by estimate, one acre. It is located at Kibagwe area at Nyansha ward in Kasulu District. The appellant alleged, acquired the disputed land from her late father Mgozi who died in intestate in 1994. With her two relatives who passed on, it was alleged, were given the same land as inheritance. It is the appellant, the only surviving member who is in possession of the land. It was therefore to his dismay that the first respondent Zena Mbugi, claimed ownership of the same on the grounds that it belonged to her late husband, Rashidi Mgozi. The appellant, therefore decided to file this dispute to tribunal. It was the view of the tribunal upon hearing both parties and considering evidence that the appellant, did not prove the case. It was therefore dismissed. Not satisfied, this appeal has been preferred with the following grounds of appeal: - 1. That, the Honourable Chairman grossly erred in law and fact when he held that the evidence as it was adduced on the part of the respondents was heavier than that of the appellant to prove that the 1st respondent is the lawful owner of the suit land.

2. That in deciding the case in favour of the respondents and holding that the 1st respondent lawfully owned the suit land, the trial District Land and Housing Tribunal did not thoroughly scrutinize and consider the testimony of, PW3-Rajabu Rashid who, having been legally appointed the administrator of the estate of his deceased father (the late Rashid Mgozi) from whom the 1st Respondent alleged to have inherited the suit land, testified and confirmed to the Page. 1 trial District Land and Housing Tribunal that the suit land was not among the estate of his deceased father (the late husband of the 1st Respondent) but the same belonged to the Appellant.

3. That, in the circumstances of the case, the impugned decision of the trial District Land and Housing Tribunal is perversely against the weight of the evidence on record and justice of the case. At the hearing, all parties were present. The appellant was under the services of Mr. Method RG. Kabuguzi learned advocate. The respondents were present unrepresented. Submitting in support of the appeal, the counsel for the appellant argued all the three grounds together. Page. 2 Page. 3 Page. 4 He said, the Tribunal did not weigh and evaluate the evidence before it. It was his opinion that if that was done, it could be decided in favour of the appellant. The learned counsel further referred to the evidence of Pw1 who told the tribunal that the land is owned by the appellant who inherited it from her father, Mgozi Yongula. He added, the same evidence is supported by that of Pw2. It was further submitted that the land in dispute is not part of the estate of the husband of the 1st respondent. This is why, he added, it was not listed as such, by Pw3 an administrator of the estate of the husband of the 1st respondent . He termed Pw3 as a material witness to prove that the land belonged to the father of the appellant. He then alleged that the evidence of Pw3 was not evaluated. The learned counsel submitted that the sale of the land to the respondents was illegally done by the 1st

respondent. He added, the evidence of Dw1 to Dw6 does not indicate that the land was owned by the husband of the 1st respondent. The 1st respondent, he argued further, is not living in that land, and had no tittle over it. Lastly, he concluded by asking this court to re -evaluate the evidence and decide in favour of the appellant by allowing the appeal with costs. Replying, the 1st respondent said, the case about the disputed land is not a probate matter. She submitted that the land in dispute subject of land case which her late husband won a case against the appellant. She went on stating that, she had sufficient evidence to prove that the land was owned by her late husband, compared to that of the appellant which was contradictory. The 1st respondent went on submitting that her husband had divided the land to each of her wives. She was married to Rashidi Ngozi, they develop the land together with her husband until his death. Before her husband died, she argued, things were smooth, they erupted after his demise. The rest of the respondents were the buyers of the land from the appellants. They had nothing useful to support this appeal. Their submissions were that they bought the land from the 1st respondent legally. In a rejoinder, there was nothing new, rather than insisting that the land is not owned by the 1st respondent. And she asked this court to dismiss this appeal. This

being the first appellate court, I am bound to follow the principle laid down in the case of Imani Mbugi vs. Songea Municipal Council, (CAT), Civil Appeal No. 168 of 2020 at page 29 that: - “It is settled law that a first appellate court such as what we are now has a duty to re-evaluate the entire evidence in an objective manner and arrive at its own finding of fact if necessary” It is clear to me, that the evidence at the trial was from both sides. The appellant’s evidence, I may say, was contradictory. In his evidence, he alleged the clan meeting allocated the land of their father to them. The effects of self-contradiction, was stated in the case of Ernest Sebastian Mbele vs Sebastian Sebastian Mbele, (CAT), Civil Appeal No. 66 of 2019 at pages 12 to 13 that: - Page. 5 “This patent self-contradiction found at page 52 of the record of appeal tainted her credibility.” Dated at KIGOMA this 14th of March 2025 . A. K RWIZILE

JUDGE OF THE HIGH COURT Page. 6