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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA LAND APPEAL NO. 24013 OF 2024 (Originating from District Land and Housing Tribunal for Rungwe at Tukuyu, in Application number 34/2023) LANGSON MBONDILWE……………………………………APPELLANT

VERSUS ANYASIME TWANGU…………….…...………………. RESPONDENT

JUDGMENT Date: 30 December 2024 & 12 March 2025 SINDA, J.: The respondent at the District Land and Housing Tribunal for Rungwe at Tukuyu (the Trial Tribunal) filed Land Application No. 34 of 2023 claiming to be the lawful owner of a farm with 10 acres located at Mahenge Street, Ibililo Village at Nkunga Ward within the District of Rungwe (the Disputed Land). He claimed that the appellant's father was invited to the Disputed Land by the respondent's father. They agreed that the appellant's father would hand over the Disputed Land to the respondent upon reaching the age of the majority. Later, the respondent 1 allowed the appellant's father to continue using the Disputed Land. The appellant's father passed away in 2022, and when the respondent claimed his land, the appellant claimed that the Disputed Land belonged to his late father. At the end of the hearing, the Trial Tribunal found that the Disputed Land belonged to the respondent. Aggrieved with the decision, the appellant filed a memorandum of appeal at hand, which comprises five grounds of appeal as follows: 1. That the trial Chairman erred in law and, in fact, by failing to evaluate the evidence on record and, hence, reached an unjust decision.

2. That, the Chairman erred in law by failing to consider strong evidence adduced by the Appellant at the trial and relied on weak and contradictory evidence adduced by the Respondent, hence the unjust decision.

3. That, the Chairman erred in law by violating the principle of natural justice, and hence, the Appellant was denied the right to be heard.

4. That, the trial Chairman erred in law for violating the provision of regulation 12 of GN No 174. As a result, the Appellant was not accorded a fair trial. 2 5. That, the Chairman erred in law by failing to consider that the Respondent had no locus to bring an action before the tribunal, hence the unjust decision. During the hearing of the appeal, the appellant was represented by Ms. Jenifa Biko, Advocate, while the respondent was unrepresented. The appeal was argued by way of written submission. The appellant argued the first, second and fifth grounds and abandoned the third and fourth grounds. On grounds number one and two, she submitted that it is very clear from the records that the evidence adduced by the appellant was strong compared to the evidence adduced by the respondent since the appellant succeeded in proving the ownership of the Disputed Land by stating that the Disputed Land is the property of his late father, Mbondilwe Kakolea. Ms. Biko added that the appellant peacefully used the Disputed Land with his family for a long period without being disturbed by anybody. That the appellant made development in the Disputed Land by building three residential houses. She added that the body of the appellant's late father, together with the bodies of his two wives, were buried in the same area. The evidence was supported by the evidence testified by the Chairman of 3 the

neighbourhood of Mahenge (SU3) and the respondent's evidence. She referred to page 20, the last paragraph of the Trial Tribunal proceedings (the Proceedings). Ms. Biko argued that the appellant had never used the Disputed Land before his father's death. He entered into the Disputed Land after his father's death in 2022. She referred to the evidence of DW4 and when he was cross-examined on page 3 of the second paragraph of the Proceedings. Ms. Biko added that there is no evidence to prove ownership of the Disputed Land by the respondent's late father or when it was handed over to the appellant’s father to take care of it. She referred to section 3 (2) (b) of the Law of Evidence Act, Cap 6, R. E 2019 and the case of Hemed Said vs. Mohamed Mbilu, 1984 TLR 113. She argued that, based on the above-cited provision and case law, the Trial Tribunal was wrong to hold that the respondent was the lawful owner of the Disputed Land. Regarding the fifth ground of appeal, Ms. Biko submitted that it is very clear from the evidence adduced by the respondent that he was claiming the Disputed Land of his late father, Twangu Sambi, being among the heirs. In accordance with section 100 of the Probate and Administration of Estates Act, Cap 352 R.E 2019, the administrator or executor of the deceased estate has the power to sue in all causes of action survived the 4 deceased. Since the respondent is

an heir and not one of the administrators of the deceased estate, he has no locus standi to sue for and on behalf of the deceased. She referred the case of Nzusyo vs. Finance Company of Kenya (2008) EALR 281 and the case of Stephen Masato Wasira vs. Joseph Sinde Warioba & Attorney General, [1999] T.L.R 334 In reply, the respondent, on the first and second grounds of appeal, submitted that it is a total misconception that the evidence adduced by the appellant proved ownership of the Disputed Land, and it was strong compared to that of the respondent because contradictory evidence cannot prove ownership of the land. He added that during the trial before the Trial Tribunal, the appellant submitted that the Disputed Land was his late father's land, who inherited it from the respondent's grandfather. This differed from what the appellant's mother (DW2) and the village chief (DW1) testified. DW2 testified that the village chief gave them the Disputed Land, while DW1 testified that the Disputed Land was the appellant's father’s land, and he left the will to him directing the same. 5 The respondent argued that it is strange that the village chief does not know how the Disputed Land came to the possession of the appellant's father. In contrast, DW2 argued that the village chief was responsible for distributing the Disputed Land to her and her late husband. He referred to pages 4, 5 and

6 of the Trial Tribunal judgment (the Judgment). He added that this totally created doubt on how the appellant claims ownership of the Disputed Land, and it was totally misdirection to argue that the appellant's evidence was stronger than that of the respondent before the Trial Tribunal. In contrast, the evidence was contradictory, and the Trial Tribunal had the right to grant ownership to the respondent. He maintained that the case cited by Hemed Said (supra) is distinguishable, as in the cited case, there was no contradiction of evidence that applied to reach a decision. The respondent added that the counsel for the appellant further argued that the appellant's father used the Disputed Land for a long time without disturbance and even erected residential houses even though there were some cemeteries of the appellant's relatives and that the appellant had never used the Disputed Land until this dispute. He added that there is also a misconception by the counsel for the appellant. The long usage of the Disputed Land peacefully without being disturbed does not grant a 6 person ownership of land even if he or she has made some improvement. During the trial before the Trial Tribunal, the respondent testified that the respondent's late father gave the appellant's father administration of Disputed Land until the respondent reached the age of majority. He added that PW2 and PW3

supported this as per pages 3 and 4 of the Judgment, where PW2 was the appellant's relative who testified that the appellant is his brother and that they were told that the Disputed Land belonged to the respondent and they should not disturb him in the future. The respondent added that the evidence adduced during the trial makes the appellant remain just as an invitee to the Disputed Land. There is no point in an invitee owning land regardless of how long he or she has used the land without disturbances or if he or she made some improvements to the land. This is the decision of the Court of Appeal of Tanzania (CAT) in the case of Musa Hassani vs. Barnabas Yohanna Shedafa (Legal Representative of the late Yohanna Shedafa), Civil Appeal No. 101 of 2018 (unreported) as cited in the case of Magoiga Nyankorongo Mriri vs. Chacha Moroso Saire, Civil Appeal No. 464 OF 2020, in the Court of Appeal of Tanzania at Musoma (Unreported) and the case of Maigu Magenda vs Arbogast Mango, Civil Appeal No. 218 of 2017 (unreported) as cited Magoiga Nyankorongo Mriri vs. Chacha 7 Moroso Saire, Civil Appeal No. 464 OF 2020, CAT at Musoma (unreported). Regarding the fifth ground, he submitted that the same has no merit at this juncture this is because the appellant father was a guardian of the respondent during his childhood time and now he need to reclaim what belong to him. Be it as it may, the

locus standi principle is a jurisdictional issue. It was better if it was raised at the earliest stage of the trial, and to raise it at this juncture is an afterthought by the appellant's Counsel. He referred the case of Dirshad Othman Hassan and 2 others vs. Kariakoo Auction Mart Co. Limited, Misc. Civil Cause No. 596 of 2021, HCT at DSM (Unreported) I have reviewed the records of the Trial Tribunal, grounds of appeal, and submissions filed by parties. I find that the first and second grounds can be disposed of under one issue: whether this case at the Trial Tribunal was proved to the required standard. Section 110 (1) of the evidence Act, [Cap. 6 R.E 2022] states that “(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 8 Also, in the case of Paulina Samson Ndawavya versus Theresia Thomas Madaha, CAT at Mwanza, the Court of Appeal stated that apart from stressing the standard of prove in civil proceedings being proved on the balance of probabilities, it also stressed that; "It is again trite that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his and that the burden of proof is not diluted on account of the weaknesses of the opposite parts. Discussing the above issue on whether this case at the Trial

Tribunal was proved to the required standard, this court being the first appellate court, I wish to re-evaluate the evidence on record afresh. In this case, at the Trial Tribunal, the respondent stated that he owned the Disputed Land. He got the Disputed Land from his father. He was shown the Disputed Land by his father when he was 12 years old. He stated the appellant's father was invited to the Disputed Land by his father to use it and that he would hand it to the respondent once he reached the age of majority. The respondent agreed that the appellant's father would continue to use the Disputed Land even after he reached the age of majority. The respondent's evidence was corroborated with the evidence of PW2 and PW3. They stated that their father was an invitee in that land and he was invited in that land by the respondent father and 9 their father informed them that the Disputed Land belongs to the respondent. It is a settled position of law that an invitee can not own land. This was stated in the case of in the case of Musa Hassani vs. Barnabas Yohanna Shedafa (Legal Representative of the late Yohanna Shedafa), Civil Appeal No. 101 of 2018 (unreported). It was stated that "We wish to underline that an invitee cannot own a land to which he was invited to the exclusion o f his host whatever the length o f his stay. It does not matter that the said invitee had even made

unexhausted improvement on the land on which he was invited." The appellant at the Trial Tribunal gave contradictory evidence on how he came into possession of the Disputed Land, the appellant state that the Disputed Land belonged to his father and was given that land by his grand parent, while DW2 stated that her husband (appellant father) was given the Disputed Land by chief. In that respect I find the contradiction goes to the root of the case and it shake credibility on of these witnesses that were not credible witness. It is also an established principle of the law that a civil case must be proved on the balance of probability. See Section 3 (2) (b) of the 10 Evidence Act, Cap. 6 RE 2019. The principle of law further demands that a person with heavier evidence than his/her adversary must win the case. This stance of the law was stated in the case of Hemedi Saidi vs. Mohamedi Mbilu [1984] TLR 113 thus: "According to the law both parties to a suit cannot tie, but the person whose evidence is heavier than that of the other is the one who must win." In this case, I find that at the Trial Tribunal, the respondent adduced heavier evidence than the appellant. The respondent managed to prove that the Disputed Land belongs to him and that it was given to him by his father when he was 12 years old, and the appellant was just an invitee to that land for maintenance/use. Regarding the

fifth ground of appeal, the respondent has no locus to institute this case because he was not an administrator of his father's estate. The same lacks merit. The evidence of the respondent on page 2 was clear that he got the Disputed Land from his parent and he was shown the Disputed Land when he was 12 years old by his parent, and the appellant's father was invited into that that land for maintenance/use and to hand over to the respondent when he attained the age of majority. In that respect, I find that the respondent was given the Disputed Land by his parents before he passed away. So, there was no need for letter of 11 administration because the land was given to respondent before his parent meet death, so it does not form part of his deceased father's estate. I find the whole appeal lacks merit. The appeal is dismissed. No order as to costs. The right to appeal is explained. DATED at MBEYA on this 12 Day of March 2025. A. A. SINDA

JUDGE 12