lwise paulo vs zaituni abdallah hongo and kazimili kailembo 2021 tzhclandd 134 30 april 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 261 OF 2019 (iOriginating from Kibaha District Land and Housing Tribunal as per Njiwa, Chairman in Land Application No. 118 o f2012) LWISE PAULO GIDION (An Administrator Of the estate of TWIGIE BINTI SULTANI)...................... ........... .APPELLANT VERSUS ZAITUNIABDALLAH HONGO............................................... 1st RESPONDENT KAZIMILI KAILEMBO...................................................... 2nd RESPONDENT SALUM KAZYOBA............................................................... 3rd RESPONDENT MANENO HONGA................................................................4™ RESPONDENT JUDGMENT I. MAIGE, J The appellant is the administrator of the estate of the late Twigie Binti Sultan who demised in 1993 intestate ("the deceased"). She was constituted as such on 20th day of December 2011 by the Mlandizi Primary Court (exhibit P2). In discharge of her duties, she commenced a suit at the District Land and Hosing Tribunal for Kibaha ("trial tribunal") against the respondents for recovery a 4 Vz acres land located at Msongala, Mlandizi within Kibaha District Council ("the suit property"). The factual allegations constituting her i cause of action was pleaded in paragraph 6 of the amended Application as follows:- (i) That the disputed property (land) is 4 V2 acre parcels o f land located at Msongala, Mlandizi in Kibaha District Council the estate o f the late Twingie Binti Sultan who demised intestate un 1993. (ii) That after the death o f the late Twingie Binti Sultani, the disputed land remained in possession and peaceful enjoyment o f her daughters. (iii) That sometimes in 2007, the 1st Respondent without any colour o f authority and legaljustification trespassed into the disputed land and claiming ownership o f it and hence, deprived heirs o f right o f ownership o f the disputed property. (iv) That to the surprise o f the Applicant, sometime in 2011 the 2Pd Respondent also trespassed onto the disputed land claiming that he is the lawful owner o f the same as he purchased the same from the J d and 4h Respondent (v) That, despite o fseveral demands from the Applicant, the Respondents have adamantly denied heeding and the 2nd Respondent started construction o f the residential house thereon. In her written statement of defense, the first respondent while admitting to have taken possession of the suit property in 2007, she denies that the same belonged to the late Twingie Binti Sultan. She instead claims to have inherited the same from her father, the late Abdullah Honga. She denies further the alleged trespass of the suit property by the 3rd and 4th respondents. She understands that, the said respondents purchased a piece of land from her late father during his lifetime and thereafter sold to the second respondent. On his part, the second respondent denies having trespassed unto the suit property. Instead, he claims to have purchased it from the third and fourth respondents as per the sale agreements in exhibit Dl. The third and the fourth respondents neither appeared nor filed any written statements of defense. The case against them therefore proceeded exparte. In determining the dispute, the trial tribunal was guided by two issues namely who is the lawful owner of the suit property and what reliefs are the parties entitled to. In support of her claim, the appellant testified as PW1. She told the trial tribunal that, the suit property was part of 12 acres land which belonged to her late mother Twingie Binti Sultani who acquired the same by way of allocation from the village authority. After the death of the said Twigie, she further testified, the late father of the first respondent one Abdallah Honga, who was also her step mother, took possession of 7 acres and sold the same to some third parties. After the death of the late Twigie, she continued using the suit property for cultivation and she had until the institution of the suit, been in use of the same. She blamed the first respondent for illegally selling the same to the second respondent. She prayed therefore that, she be declared the lawful owner of the suit property. HADIJA MBEGU represented herself as the resident of the village whereas SIRI PAULO represented himself as the biological brother of the appellant. They testified as PW2 and PW3, respectively. PW2 informed the Court that, she was present in 1993 when the appellant was inheriting the suit property from the late Twigie. She is however not aware of the current status of the same. She however claims to be familiar with the history of the suit property. Just as it is PW1, it is her testimony that, the late Twingie acquired the suit property by allocation from the village authority. She supports as well the claim that the first respondent trespassed unto the suit property and sold it to the second respondent. In her testimony as DW1, the first respondent denied having trespassed unto the suit property. She denied as well to have sold the same to the second respondent. To her knowledge, the suit property originally belonged to his late father Honga. Before his expiry in 2007, it is in her evidence, the said Honga sold the suit property to the 3rd and 4th respondents. She as well appeared to be knowledgeable of the subsequent sale of the suit property by the 3rd and 4th respondents to the second respondent. Testifying as DW2, the second respondent denied to have trespassed unto the suit property in as much as he denied to have purchased the same from the first respondent. He is in agreement with the testimony DW1 that, the suit property was sold to him by the 3rd and 4th respondents as per the sale agreements in exhibit D1 collectively. His testimony was further supported by among other witnesses, NUSURA NGWALU (DW3) who told the trial tribunal that he was present when the agreements in exhibit D1 were being executed. Upon assessment of the evidence, the trial tribunal was of the view that, the appellant who had the burden of proof did not adduce sufficient evidence to establish in the required standard that, the suit property belonged to her. To the contrary, it was satisfied from the evidence available that, the second respondent was not a trespasser unto the suit property but a true owner. It was also satisfied that, the second respondent purchased the suit property from the third and fourth respondents and not the first respondent as alleged. The appellant is not pleased with the decision. In the memorandum of appeal, she has raised six grounds which in my reading raise one pertinent issue namely; whether the trial tribunal correctly and properly assessed the evidence on the record. In the conduct of this matter, the appellant appeared in person and was not represented. The respondents enjoyed the service of Audax & Company Advocates. The appeal was disposed of by way of written submissions. I have considered the rival submissions and it is my view that, the appeal is devoid of any merit and it ought to be dismissed. I will substantiate my finding as I go along. As I said above, the appellant was the claimant at the trial tribunal. He was asserting ownership of the suit property as an administrator of the estate of her late mother who expired in 1993. Her assertion in 5 pleadings was that, soon upon the death of her mother, the suit property came into possession of her sisters whose names were not disclosed in pleadings. However, in her evidence as PW1, such a story was not narrated. Instead, she came with a new story suggesting that, subsequent to the death of her mother, her step father one Abdallah Honga took possession of 7 acres out of the 12 acres left and subsequently sold it third parties. For the reason of departing from evidence, the trial chairperson could not, under order VI rule 7 of the CPC, place reliance on such evidence. There are many judicial pronouncements in support of that proposition. See for instance, JAMES FUNKE IMGWAGILO VS. ATQRNEY GENERAL TLR 2004, 161) It has to be noted from the record that, while the appellant's case was such that the suit property belonged to her late mother, in evidence, she did not disclose the root of her mother's title thereon. She did not plead any document of the title of her mother on the suit property as well. Conversely, in her oral evidence as PW1, she told the trial tribunal that her mother acquired the suit property in 1962 by allocation from the village authority. The claim was not supported by any witness from the village authority. Neither any documentation. The trial chairperson rightly doubted if village authorities were in existence in 1962. In her pleadings, the appellant in the first place, accused the first respondent from trespassing unto the suit property. She did not at all blame the first respondent for selling the suit property to the second respondent. Instead, she was blaming the third and fourth respondents for selling the same to the second respondent. In her evidence and that of PW3 however, the appellant was accusing the first respondent for selling the same to the second respondent. She did not produce any sale agreement to that effect. Yet, in another story, the appellant is accusing the. late Honga for taking possession of seven acres out of twelve acres of the land belonged to the late Twigie. She confesses in evidence that, she has no problem with that piece of land. Her concern is the 4 V2 land which is in possession of the 3rd respondent. As I said about, this evidence for the reason of materially departing from pleadings, could not be relied upon. Assuming it was, yet it could not be of any assistance to the appellant because it is not clear in evidence if the 4 1/2 in question did not form part of the undisputed seven acres piece of land. Indeed, that was the inference correctly dawn by the trial tribunal. On his part, the second respondent claims to have purchased the suit property from the third and four respondents through the purchase agreements in exhibit Dl. His claim was supported by the testimony of DW1 who added that, the third and fourth respondents acquired the suit property from her late father Abdallah Honga by way of purchase. In his submissions, the appellant contends that in the absence of the consent from her late mother, the said Honga could not have better title to pass to the third and fourth respondents. I will, for a number of reasons, not accept this submission. In the first place, the claim is neither in pleadings nor in evidence. It is being introduced for the first time by way of written submissions. Submissions being mere argument is incapable of proving a factual issue as the instant one. Secondly, the late mother of the appellant having expired in 1993, the appellant would have not kept silent in 2006 when the said Honga was selling the suit property to the third and fourth respondents without consent of her mother. There was also a submission that the trial tribunal would have not declared the second respondent lawful owner of the suit property despite there being admission that the piece of land sold to the second respondent was less than 4 Vi acres. I have read the judgment and proceedings of the trial tribunal and I find no eventual justification. The claim that the suit property was 4 Vi acres was alleged by the appellant and not the second respondent. It was therefore, the appellant who was to prove that it was as such. She did not adduce any evidence to that effect. On his part, the second respondent put it clearly that he traced his root of title on the suit property from the purchase agreements in exhibit Dl. My reading in exhibit D1 reveals that the size of the purchased property was 4 acres. Iam surprised why the trial chairman is blamed. The trial chairperson is blamed for declaring the second respondent the lawful owner of the suit property while there was no sufficient evidence. Again, the complaint is without justification. The oral testimony of DW1, DW1 and DW3 supported by the documentary evidence in exhibit Dl, I agree with the trial chairman, was sufficient to establish that the third 8 respondent was a bonafide purchaser of the suit property for value without notice. I have more so considered that, the second respondent did not directly purchase the suit property from Abdallah Honga but from the third and fourth respondents who purchased it from the said Honga. I have also considered the fact that, the late Twigie from whom the appellant traces title on the suit property expired in 1993. Ordinarily therefore, the appellant would have not kept silent when the late Honga was selling the suit property to the third arid fourth respondents. As that is not enough, though the appellant claimed in pleadings that, after the death of the late Twigie, the suit property remained in peaceful possession of his sisters, neither in pleadings nor in evidence did she bother to disclose the names of such persons. For undisclosed reasons, she could not call either of them as her witnesses despite being material in the facts in issue. This by itself raises a negative inference that, if the said witnesses were produced, they would testify against the appellant. This is in line with the authority in in HEMED IS5A VS. MOHAMED MBILU. 1984. TLR, 113. In the circumstance, there is no evidence upon which the Court would imply possession of the suit property by the said daughters subsequent upon the death of the late Twigie or at all. In view of the foregoing discussions therefore, I find this appeal without merit. It is accordingly dismissed with costs. It is so ordered. JUDGE 30/04/2021 10 Date 30/04/2021 Coram: Hon. A.S. Chugulu - DR. For the Appellant: Present in person For the 1st Respondent' For the 2nd Respondent - Mr> paschal Mshanga, advocate For the 3rd Respondent- RMA: Bukuku COURT: Judgment delivered this 30th day of April, 2021 in the presence of appellant in person and Mr. Paschal Mshanga, learned advocate for respondent. DEPUTY REGISTRAR 30/04/2021 Right of Appeal fully explained. DEPUTY REGISTRAR 30/04/2021 li