Kassimu Emmanuel Bahezwa v Alisi Tuku Mpaligwa Land Appeal No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND APPEAL NO. 000005588 OF 2024 KASSIMU EMMANUEL BAHEZWA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS ALISI TUKU MPALIGWA .............................. RESPONDENT / DEFENDANT JUDGMENT J. NKWABI, J, Date: 07/08 & 01/11/2024 The controverse between the parties to this appeal is over a piece of land. It is undisputed that the piece of land under consideration in this appeal is/was the property of the late Emmanuel Bahezwa Benga. Furaha Hamisi, one of the defence witnesses, and in fact the one who sold the piece of land, in her testimony, said that she sold the piece of land in dispute after it was administered (distributed to heirs) to avert conflicts with the first wife (mke mkubwa). “… ndipo nikaona bora nipauze niliondoka hata kabla sijapauza …” When cross-examined she said that, “Tulikuwa hatuna msimamizi wa mirathi.” DW.3 Adelina Mors went far and suggested that it is the appellant who distributed the estate. She said in cross- examination by the appellant on who distributed the estate, “Mwenyekiti wa mtaa na wewe.” The trial tribunal decided in favour of the respondents and held that the estate had already been distributed customarily, the appellant could not, as administrator of the estate, invalidate the distribution. It stated that the 1st respondent legally bought the disputed piece of land, thus it declared him owner of the disputed piece of land. The learned chairman placed reliance on the decision of this Court in Edward Ntikule v. Evarist Ntafato, Miscellaneous Land Appeal No. 11 of 2022 where it was held inter alia that: “… But if the property, and land in particular, has already been distributed to heirs under customary law and there has never been a resistance from any member of the clan/family for a considerable period of time, the one who is holding the land can sue or be sued without following the probate procedure because the land does not belong to the deceased anymore.” Page. 1 The piece of land was described under paragraph 3 of the application to be: Eneo la mgogoro lipo katika eneo la mtaa wa Labiro, Kata ya Muhunga, Halmashauri ya Mji wa Kasulu, Mkoa wa Kigoma. Na limepakana na majirani kama Athanas Shavu Kanuma (upande was Kaskazini); Samwel Kechegwa (upande wa Magharibi); Kayali (upande wa Mashariki) na Alisi Tuku (mshitakiwa Na. 1) (upande wa kusini). Aggrieved with the decree of the trial tribunal, the appellant filed a petition of appeal while preferring three grounds of appeal thus: 1. That, the judgment delivered is misconceived and bad in law as it does not reflect what was pleaded in the pleadings. 2. That, the trial tribunal misdirected itself by bringing its own facts neither pleaded nor produced in the course of hearing by either party. 3. That, the trial tribunal erred in law and facts when it failed to make critical analysis and evaluation of the entire evidence on record and hence reached into a wrong decision. The appellant clearly indicated the reliefs he wishes to get from this Court in this appeal which are: 1. That, the appeal be allowed. 2. The decision of trial tribunal be quashed and nullified. 3. The appellant be declared the lawful owner of the disputed land. 4. Costs of the suit be borne by the respondent. 5. Any other relief(s) may this honourable Court deem fit and just to grant. The appeal was heard by way of oral submissions. The appellant was represented by Ms. Victoria Nyembea, learned advocate while the respondents appeared in person, unrepresented. In elucidating the grounds of appeal, in submission in chief, Ms. Nyembea categorically indicated that she would only argue the 1st and 2nd grounds of appeal together. She then went on to elaborate the grounds of appeal that the trial tribunal misconceived the pleadings in its judgment. It stated that the piece of land was allocated under customary arrangements. The trial tribunal raised the issue suo motu and decided without parties to address it. Under customary acquisition, the allocation should have indicated the size of the piece of land each was allocated. Regarding the 2nd ground of appeal, Ms. Nyembea maintained that the trial tribunal failed to evaluate properly the evidence causing to give a wrong verdict. It is claimed that the appellant was customarily appointed as Page. 2 administrator of the estate. She said the defence claimed that the properties were distributed just after the burial. Ms. Nyembea went on to say that there is contradiction in the evidence of the respondents. Further it stated that the widows were staying in the same piece of land but there is evidence which shows that each of the widows had her piece of land. In the premises she prayed the appeal be allowed and the appellant be held to be owner of the piece of land so that he administers it to heirs. The respondents had short replies. To begin with, the 1st Respondent argued that the appellant should mention the administrator of the estate. He stated that his mother was correct to sell the piece of land explaining that she is also the owner of the piece of land. He stressed that the village government would not allocate a piece of land which has an owner. He also questioned why the issue instead of the mother would stand for the suit. He pressed that the trial tribunal’s judgment is correct. Else, it was the contention of the 2nd Respondent that when their husband passed away, the piece of land was distributed. The 2nd respondent added that she and her children decided to sell their piece of land. She also said that she sold the piece of land and after three days, there arose a dispute over the piece of land. Buying the wisdom in an adage that goes, brevity is the soul of wit, Ms. Nyembea briefly elaborated in rejoinder submission that the appellant is the administrator of the estate of the deceased. She insisted that the appeal be allowed. She further pressed that the appellant be declared owner of the piece of land so that he distributes it to all the legal heirs. I have taken due consideration to the arguments of both parties. I have too gone through the record of the trial tribunal. I outrightly find the appeal merited on the grounds of appeal that are argued collectively by the counsel for the appellant. Firstly, I agree that the 1st respondent was granted a relief that was not based on a counter-claim (pleading) and did not prove his case. Actually, the defence witnesses reinforced the case of the appellant by admitting that at the time the piece of land was sold to the 1st respondent, there was no any administrator of the estate appointed be it legally or otherwise. The trial tribunal therefore contravened a clear decision of the Court of Appeal in Melchiades John Mwenda v. Gizelle Mbaga (administratrix of the estate of the estate of John Japhet Mbaga) & 2 Others, Civil Appeal No. 57 of 2018, where at page 24 and 25 it was stated that: “… the evidence did not prove so on a balance of probabilities and, secondly, the second respondent did not plead ownership by way of counterclaim. It is elementary law which is settled in our jurisprudence that the court will grant only a relief which has been prayed for – see James Funke Gwagilo versus Attorney General [2004] T.L.R. 161 and Hotel Travertine Limited & 2 Others v. Nationa Bank of Commerce Limited [2006] T.L.R 133. Page. 3 … If the second respondent thought he had any claims against the appellant, in terms of Order VIII of the Civil Procedure Code, Cap 33 of the Revised Edition, 2022, he should have raised a counter claim in which he would set out all the material facts on which he relied in support thereof with the same particulars as he would as a plaintiff in an independent suit – see Mulla: The Code of Civil Procedure. Clinging on the appellant’s prayers as he did instead of just stating in his defence that the appellant’s prayers be refused, was inappropriate and the trial court erred in granting such a relief.” Regarding the complaint over the evaluation of the evidence on record by the trial tribunal, I am of the view that the complaint is justified. I hold that the finding, by the trial tribunal that the estate had been administered customarily was just a scapegoat. As I have shown above, the defence itself said in evidence that at the time there was no administrator appointed. Then, who divided the estate customarily? If that is the case, why the street chairman was involved. In essence, there was a conflict in regard with the distribution of the estate, so the case of Ntafato (supra) cannot be applicable in the circumstances, leave alone that that decision is not binding to me because based on the truth that matters relating to customary law or Islamic law are determined in primary Courts, in Tanzania mainland. That is why marriages that are celebrated according to customary rites (law) or Islamic rites (law), do not have their divorces proceedings determined in customary or Islamic institutions, they are determined in primary courts. There is also the question of enforcing decisions by customary systems and when one is aggrieved the appeal process. In old times and old is gold, some societies had appeals by an aggrieved party would lie to a chief (king or queen) and enforcing the decision was through the chief (military/warriors) but such institutions are no longer existence. For me for a wife to move to another place a few days after the death of her husband leaves a lot to be desired, leave alone selling a piece of land the property of the deceased within such a short time. Further, the presence of the dispute and the appointment of administrator of the estate proves that there was no such purported customary administration, they even did not suggest so, that the deceased was professing such customary rites. Had the trial tribunal considered all what I have considered, it would have reached at a different conclusion rather that that it reached. In my considered opinion it is difficult to tell how did she (the 2nd appellant) prove customary administration, even if that were the law, where the rest members of the family claim that there was nothing like that was done. Further there is exhibit P.1, the letters of administration granted to the appellant by the primary Court on 29th March 2023. This begs the question, if the estate of the deceased had been administered customarily and there was no any dispute, why then an administrator was appointed by the primary court? That ought to have made the trial tribunal smell rat. In the circumstances, I hold that the trial tribunal did not analyze properly the evidence before it. Thus, it ended in making a wrongful decision. Page. 4 It is through the above discussion that I reject the submissions by both respondents and hold those submissions to be unmerited. I have endeavoured to re-evaluate the evidence, as I have done above under the authority of Selle & Another v. Associated Motor Boat Company Ltd & Others [1968] 1 E.A. where it was underlined that: “… An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions …” In conclusion, I find that the appeal is merited, thus, it is allowed with costs. Judgment of the trial tribunal is quashed and its decree is set aside. I order that the disputed piece of land which is the property of the deceased one Emmanuel Bahezwa Benga is restored to the administrator of the estate, the appellant for administration. It is so ordered. Dated at KIGOMA ZONE this 1st of November 2024. J. . NKWABI, J JUDGE OF THE HIGH COURT Page. 5