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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO. 15513 OF 2024 (Arising from decision of the District Land and Housing Tribunal for Mbeya at Mbeya) LUCIA ADSON MWAZYELE (As Administratix of the Estates of the Late Maria Hoswe).….………….…………………………..APPELANT VERSUS MWAJUMA MAONJE MGALA.…...……………………..RESPONDENT JUDGMENT Date: 3 September 2024 & 5 November 2024 SINDA, J.: The appellant in this appeal at the District Land and Housing Tribunal for Mbeya at Mbeya (the Trial Tribunal), filed Land Application No. 73 of 2019. She claimed that the house located at ZZK Mbalizi Village at Utengule, Usongwe Ward in Mbeya Region (the Disputed Property) belongs to the estate of the late Maria Hoswe (the Deceased). That, the respondent trespassed into the Disputed Property. She stated that after the death of the Deceased, the clan meeting decided that the appellant 1 brother called Syemu Nziku was to stay in that house. Syemu Nziku lived in the house with the respondent. Later on, Syemu Nziku passed away. The respondent denied to vacate the Disputed Property claiming that the Disputed Property belonged to her late husband Syemu Nziku. The appellant added that this fact is not correct because the family don’t recognize her as a wife of Syemu Nziku. Further, the Disputed Property belongs to the Deceased and not the late Syemu Nziku. The respondent on her side claimed that she was married to the late Syemu Nziku. That, Syemu Nziku was given the Disputed Property by his parents. They built the Disputed Property together with her late husband. At the end of hearing the Trial Tribunal find that the Disputed Property belonged to the respondent. Aggrieved with the decision, the appellant filled the appeal at hand with five grounds of appeal as follows: 1. That, the trial chairman misdirected himself when entered judgment in favor of respondent while respondent failed to tender the deed of gift to proof that her late husband was given the disputed property as alleged. 2. That the tribunal erred in law and facts for invoking extraneous matters which was not testified by the parties. 2 3. That tribunal grossly erred in law and facts for failure to evaluate and analyze properly the evidence during the trial. 4. That the trial tribunal erred in law and facts for failure to consider the evidence of the appellant and her witnesses rather it only based on the evidence of the respondent. 5. That the trial tribunal erred in law and facts for holding the appellant and her witnesses did not object evidence of the respondent. During hearing of the appeal, both appellant and respondent appeared in personal unrepresented. The matter was argued by way of written submission. On the first ground the appellant submitted that the respondent failed to prove her allegation that she was given the Disputed Property as gift by her late husband. It was the appellant argument that for one to prove ownership of land acquired through a deed of gift is duty bound to tender deed of gift. She referred the case of Maria Syangombo vs. Catherine O. Ambakisye, Land Appeal No. 56 of 2019, HC at Mbeya and Mkamangi Elifuraha vs. Mwanyishehe Mwinyishehe (1991) TLR 191. It was her argument that the learned trial chairman was wrong to declare the respondent as lawfully owner of the Disputed Property based on mere allegation without proof. 3 On the second ground she submitted that at page 4 of the Trial Tribunal judgment, the trial chairman said that DW4 testified that he witnessed when the respondent and her late husband built the suit house. However, in the records DW4 did not testify on the said fact. Also, the Trial Tribunal said presumption of marriage while respondent alleged that she was given the Disputed Property by her late husband. It was her opinion that such was extraneous matters renders the whole proceedings nullity. On the third ground she submitted that looking on page 4 and 5 of the judgment the trial chairman did not make any reference to the evidence adduced by the appellant and her witness. Also, he did not give reason to ignore the appellant evidence. Based on that it was the appellant opinion that the trial chairman failed to analyze evidence of records which led into wrong conclusion hence amount to miscarriage of justice. She referred to the case of James Bullows & Others vs. Republic (1981) TLR 283 to cement her argument. On the fourth ground she submitted that if the trial chairman had considered the appellant evidence, he would not declare the respondent the owner of the Disputed Property. She submitted that each witness entitled to credence and his/her evidence believed and accepted unless where there is good and cogent reason for not believing the witness. She 4 referred to the case of Goodluck Kyando vs. Republic TLR 363 and invited this court to reevaluate and consider evidence of both sides. On the fifth ground she submitted that it was not true that she did not object the evidence of the respondent together with her witnesses because she cross examined the respondents witnesses throughout the trial. In reply to the first ground of appeal, the respondent submitted that there is ample evidence that the respondent and her late husband built the house and dwell on the Disputed Property since 1993 when the Deceased was still alive as witnessed by DW4. She referred to section 62 (1) (a) of the Law of Evidence Act, (the TEA). On the second ground she argued that the appellant, the witnesses and the whole family recognize the respondent as a lawfully wife of the appellant brother and they lived in Disputed Property. The adduced evidence demonstrates that the respondent and her husband built the house hence was jointly owned. She referred the case of Amina Petro and 4 Others vs. Gaina Ngoge Mwafululila, Land Apeal No. 27589 of 2023, HC of Mbeya to cement her argument. 5 On the third ground, it was her submission that the Trial Tribunal properly evaluated and analyzed the evidence adduced during the trial in reaching decision. On the fourth and fifth ground she submitted that the chairman of the Trial Tribunal considered all evidence from all witness to conclude the case. That the evidence of the respondent was heavier than the evidence of the appellant. She referred to the case of Hemed Said vs. Mohamed Mbilu [1984] TLR 113 to cement his argument. I have considered the court records, grounds of appeal and submissions made by the parties. I find the appeal can be dealt with under two issues as follows: 1. Whether appellant at the trial case proved her case to the required standards and evidence was properly analyzed. That is grounds number one, three, four and five. 2. Whether the judgment of the Trial Tribunal involved extraneous matters. That is ground number two. Starting with the first issue of whether the appellant at the Trial Tribunal proved her case to the required standard and evidence on records was properly analyzed. It is a settled position of law that he who alleges on 6 occurrence of particular facts must prove. Section 110 (1) of the evidence Act, [Cap. 6 R.E 2022] provides “(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.” This was emphasized in the case of Paulina Samson Ndawavya vs. Theresia Thomas Madaha, Cat at Mwanza, the Court of Appeal stated the. It was stated 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 duty and that the burden of proof is not diluted on account of the weaknesses of the opposite parts case” In this case, it was the appellant evidence that the Disputed Property belongs to the Deceased. That, after the death of the Deceased, they held a clan meeting and allowed one Syemu Nziku to stay in the Disputed Property. Thereafter, the appellant found Syemu Nziku staying at that Disputed Property with the respondent. He informed the appellant that he has sexual relationship with the respondent and later she followed him in that house. Later on, Syemu Nziku passed away. The respondent refused to vacate the premise claiming that it was her house as she was married Syemu Nziku. The appellant together with her witnesses maintained the 7 position that the respondent was never married to the late Syemu Nziku. That, the Disputed Property belonged to the Deceased. The respondent on her side claimed that she was married to the late Syemu Nziku since 1993. They were blessed with five kids and four are still alive. She further stated that her late husband was given the Disputed Property by his parents. Previous they had a grass house but later on they built another house. Thereafter, her husband passed away. The appellant started claiming the Disputed Property alleging that it belongs to her. Her evidence was corroborated with the evidence of DW2 their neighbor and hamlet chair. DW2 stated that he knows both the appellant and the respondent. That appellant is a sister of the late Syemu Nziku. The respondent was a wife of the late Syemu Nziku. That, previously the late Syemu Nziku and his wife lived in a grass house. But, before Syemu NZiku passed away, they reconstructed their house. That, he left the respondent with children. This evidence was also corroborated with the evidence of DW4, a brother of the appellant and the brother in law of the respondent. DW4 stated that the respondent was married to his late young brother the late Syemu Nziku. That the respondent and his late brother were blessed with children. He stated that the Disputed Property belongs to the respondent. He stated that the Disputed Property was given to the Syemu 8 Nziku. The Deceased and himself also have their own piece of land. He added that the respondent built that house together with her late husband Syemu Nziku in the plot which belonged to the late Syemu Nziku. It is an established principle of the law that a civil case must be proved on the balance of probability. See Section 3 (2) (b) of TEA. 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 the respondent has heavy evidence compared to the respondent. The evidence of DW4 proved that the Disputed Property was given to the late Syemu Nziku even before the death of the Deceased. In that circumstance it cannot form part of the Deceased Estate because at the time she met her death the Disputed Property already belonged to the late Syemu Nziku. The appellant failed to prove that the Disputed Property belonged to the estate of the Deceased. The appellant complained that the respondent failed to tender a deed of gift. This also lacks merit. It is my opinion that each case should be treated on its peculiar circumstance. In this case, the evidence of DW4 was 9 sufficient on how the late Syemu Nziku got the Disputed Property and who constructed the house. On the second ground on whether the trial chairman imported extraneous matters the judgment. It is the position of law that inclusion of extraneous matters which are not recorded as evidence in proceedings are fatal irregularities. This was stated in the case of Athanas Julius vs. Republic, Criminal appeal no. 498 of 2015, the court stated that “Inclusion in judgments of facts which were not in the recorded evidence in the proceedings is a fatal irregularity that vitiates the entire proceedings, of a trial court” In this case the appellant complained that the trial chairman imported extraneous matters in the judgment. That, the trial chairman said DW4 testified that the he witnessed when the respondent and her late husband built the Disputed Property. The appellant stated in the records DW4 did not testify on the said fact. I have gone through the court records and find that at page 31 of the Trial Tribunal proceedings (the Proceedings) during cross examination DW4 stated that the Disputed Property belongs to the respondent. That, she built the house together with her late husband. DW4 stated he was there when they were building the house. 10 In that regard I find that this was not extraneous matters because that facts appeared on evidence of DW4 in the Proceedings. Another complaint on extraneous matters was that the Trial Tribunal said that the alleged house belonged to the respondent under presumption of marriage while the respondent alleged that she was given the Disputed Property by her late husband. In my view, I find that it was an opinion of the trial chairman depending on the evidence available in records that they respondent and the late Syemu Nziku built that house together, as such the house belongs to respondent under presumption of marriage. This cannot be termed as extraneous matters. Also, the fact that the respondent stated that she was given the Disputed Property by her husband this did not appeared either in Proceedings on in the judgment. The evidence of the respondent was that she built the Disputed Property together with her late husband so this cannot be termed as extraneous matters. Based on the above analysis, I find the appeal is devoid of merit and I dismiss it with costs. Right to appeal is explained. 11 DATED at MBEYA on this 5 day of November 2024. A. A. SINDA JUDGE 12