LYAMBA PHILIMON JUDGEMENT

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO. 1959 OF 2024 (Originated from Land Application No. 31 of DLHT of Kyela) LYAMBA PHILIMON (The Administrator of the late PAUL MAMGINDI MWAIJALA).……………………………......APPELLANT VERSUS SYONI NYITOGORO…………………..………………1ST RESPONDENT DENIS MAIKO (The administrator of the late MAIKO ROBERT)………….…...………….………….…2nd RESPONDENT JUDGMENT Date: 14 November 2024 & 30 January 2025 SINDA, J.: The appellant in this appeal at the District Land and Housing Tribunal of Kyela at Kyela (the Trial tribunal) filed Land Application No. 31 of 2022, claiming that the plot of land located at Magege hamlet, Ngonga village, ward of Ngonga, district of Kyela within Mbeya region and plot of land located at Iringa Hamlet, Ngonga village, Ngonga ward, Kyela District within Mbeya Region (the Disputed Land) belongs to the estates of the 1 late Paul Mangindi Mwaijala. The respondents denied the allegation. They claimed that the Disputed Land belongs to the estate of Maiko Robert. At the end of hearing, the Trial Tribunal found that the Disputed Land belongs to estate of the late Maiko Robert. Aggrieved with the decision, the appellant filled the appeal at hand which contains four grounds of appeal as follows: 1. That, the trial Tribunal erred both in law and fact when declared that the disputed land was part of the estate of the late Maiko Robert for not comprehending that the deceased was an invitee to the land. 2. That, the trial Tribunal was wrong in its decision especially when disregarded assessors’ opinions and dismissed the application with costs unreasonably. 3. That, there was a total failure of evaluation of evidence adduced in both sides thus resulted into wrong unfair findings. 4. That, in fact the Trial Tribunal erred both in law and fact when relied on inconsistence evidence and unreliable witnesses by the respondents. During hearing of appeal, the appellant appeared in person unrepresented while the respondents was represented by advocate Ezekiel Mwampaka. The appeal was argued by way of written submission. 2 On the first ground, he submitted that the Trial Tribunal was wrong to find that the Disputed Land belonged to the first respondent because the late Maiko Robert was an invitee to the Disputed Land by the express or implied invitation of the occupier, the late Paul Mangindi Mwaijala who was in control of the Disputed Land. As such, the late Maiko Robert cannot be the owner of the Disputed land. He referred to the case of Dora Anrew vs. Robert Mugini, Land Appeal no. 65 of 2021 (unreported). With regards to the second ground, he submitted that there was no concrete reason for the trial chairman to ignore the assessors' opinion that opined in favour of the appellant. He added that the opinion of the assessors’ was not reflected in the judgment of the Trial Tribunal. He added that this is unjust and contrary to the law. He referred to the case of Zumba K. Zumba vs. Joel Nkwelele Land Appeal No. 06 of 2019 (unreported) High Court Mbeya Sub-Registry. He further submitted that the Trial Tribunal's failed to properly evaluate the evidence subject to the issues framed thus reaching to unjust decision. He added that there was ample vivid evidence to prove that part of the Disputed Land was inheritance and part of it was obtained from the joint struggles of the late Paul Mwaijala and his wife Victoria 3 Kafyuju. He further maintained that the evidence clearly showed that, the late Maiko Robert was an invitee to the Disputed Land. He argued that it is a trite law that the trial court has a duty to make a proper evaluation of evidence adduced before it, so as to reach at a fair decision, with reasonable cause as stated in the case of Hamisi Rajab Dibagula vs. Republic (2004) TLR 181. He added that the Trial tribunal's judgment was unjust to the effect that the whole testimony by the respondent was unreliable and most of the evidence by the witnesses were hearsay. That, there was no proof as to how and when the first respondent or the late Maiko Robert got into the Disputed Land. He prayed for this Court to allow his appeal with costs. In reply, the respondent submitted that it not true that the late Maiko Robert was invited to the Disputed Land by the late Paul Magindi Mwaijala before they met their death. He submitted that this part of the submission is misconceived as it contradicts with the evidence adduced by the appellant himself in the Trial Tribunal. He added that at page 28 of the proceedings of the Trial Tribunal (the Proceedings), it is clearly stated that Paul Magindi Mwaijala died in 2013. At page 30 of the Proceeding, it is said that in 2014 Maiko Robert was invited by Victoria Kafyuju to settle on the Disputed Land after it was discussed and agreed 4 by other family members including the appellant. That, in the Proceedings, it was not recorded that it was the late Paul Magindi Mwaijala who invited the late Maiko Robert. He further stated that there is another evidence showing that the late Maiko Robert started to live on the Disputed Land after the death of his father since 1970 to 2020. Therefore, it is incorrect to say that the late Michael Mwaijala was an invitee to the Disputed Land, but he inherited the Disputed Land customarily from his father’s estate. Concerning the assessors, he submitted that the law requires that during hearing of an application before the trial tribunal, the chairman shall be assisted by two assessors and before judgment, the assessors shall deliver their opinion. He added that from pages 79 to 80 of the Proceedings, it is shown that on 24 April 2024 the respondent’s counsel prayed to close their defence case and the Trial Tribunal ordered that opinions of assessors to be delivered on 15 May 2024. He added, according to the proceeding, the opinion of the assessor was availed to the parties in accordance with the law and the same was discussed in the Trial Tribunal judgment. He argued that the appellant argument that the trial Chairman did ignore the opinions of the assessors does not hold water because the Chairman is not bound by the assessor’s opinion as 5 clearly indicated under section 24 of the Land Disputes Court’s act, Cap 216 R.E 2019. He argued that if this court thinks that the opinion of the assessors be reproduced in the judgment, it may order the Trial Tribunal to reproduce the opinion in the judgment instead of ordering re trial. Mr. Mwampaka further maintained that the appellant claim that the trial court failed to evaluate evidence has no merits. He added that it is a principle of law that generally, in civil cases, the burden of proof lies on a party who alleges anything in his favour in accordance to section 110 of the Evidence Act, Cap 6 R.E 2022. It is common knowledge that in civil proceedings, a party with a legal burden also bears the evidential burden and the balance of proof is on the balance of probabilities which simply means that the court will sustain such evidence which is more credible than the other on the particular facts to be proved. He further added 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 weakness of the opposite party’s case. He referred the case of Paulina Samson Ndawavya vs. Teresia Thomasi Madaha, Civil Appeal No. 45 of 2017 CAT (unreported). 6 He submitted that in the instance appeal, the appellant affirmed that he is suing under the capacity of being appointed as legal administrator of the estate of his late father one Paul Magindi Mwaijala but he categorically stated that the Disputed Land belong to his grandfather Magindi Mwaijala. It is not shown as who was appointed to administer the estate of is grandfather Magindi Mwaijala. He further stated that according to SM1, SM2 and SM3 part of the Disputed Land was owned by Magindi Mwaijala and part was owned by Nkong’osole Mwaijala and since both have passed away and no one was appointed as legal administrator, then the appellant lacks Locus Standi over the Disputed Land. Therefore the entire Proceedings deserved to be nullified. See the case of Lujuna Shubi Balonzi Senior vs. The Registered Trustees of CCM 1996 T.L.R 20 and the case of John Litondo, Hamna M. Lintondo and Fred P. Salakana vs. Fatma Amri Masika Civil Appeal No. 229/2020 CAT at Moshi, citing the case of Omary Yusuph vs. Albert Munuo. He prayed that the orders of the trial court be upheld and the appeal be dismissed. In rejoinder, the appellant reiterated his submission in chief and submitted that for the purpose of clarifying what was stated by the counsel for the respondent in relation to evaluation of evidence, he stated that the late Maiko Robert is the son of Robert Ntamwa, the 7 cousin of his late father Paul Magindi Mwaijala. That, Maiko Robert is also known as Maiko Mwaijala. He was taken care Mwaijala being the adopted name from Magindi Mwaijala. Therefore, Maiko Robert was taken care by the late Paul Magindi Mwaijala and invited to the Disputed Land in 1970’s until he left to the Malawi board in 1980’s for business where his parents resides. He added that in 2014, one year after the death of late Paul Magindi Mwaijala, the late Maiko Robert returned back and was welcomed as an invitee for the second time by the occupier of the Disputed land one Victoria Kafyuju a widow of the late Paul Magindi Mwaijala. He further denied what was stated in paragraph seven of the reply to the written submission by the counsel for the respondent. He rejoined that advocate for the respondents submitted that part of the Disputed Land was previously owned by one Magindi Mwaijala and the other part was owned by one Nkong’osole Mwaijala. That both passed away and no one was appointed the legal administrator. Therefore the appellant has no locus stand. He maintained that appellant father the late Paul Mangindi Mwaijala inherited the Disputed Land after the death of Magindi Mwaijala and Nkong’osole Mwaijala. Further, after the death of Paul Mangindi Mwaijala, the appellant was nominated by the family members to administer the estate of the late Paul Mangindi Mwaijala. He 8 added that the second respondent father had never lived in the Disputed Land. That, the second respondent failed to establish the origin of his late father and when he had entered the Disputed Land. He prayed this court to allow appeal with costs. I have gone through court records, grounds of appeal and submission made by the parties. I find that this appeal can be disposed under two issues as follow: 1. Whether the evidence was properly evaluated by the Trial Tribunal and the appellant proved his case to the required standard. 2. Whether the opinion of the court assessors was considered in the judgement. Starting with first issue on whether the evidence was properly evaluated by the Trial Tribunal and appellant proved his case 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.” Also, in the case of Paulina Samson Ndawavya versu.s Theresia Thomas Madaha, CAT at Mwanza, the Court of Appeal stated that 9 apart from stressing the standard of proof in civil proceedings being proof 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 case” Discussing the first issue this court being the first appellate court I wish to re evaluate evidence on record. In this case the appellant at the Trial Tribunal claimed that the Disputed Land form part of the estate of the late Paul Mangindi Mwaijala. Concerning the Disputed Land located at Magege hamlet, the appellant stated that previously it belonged to Mangindi Mwanjala who passed away in 1946. The late Mangindi Mwanjala got that land by clearing virgin land in 1920. Therefore, the late Paul Mangindi Mwaijala inherited that land from his late father. During hearing PW2 on cross examination stated that she is the owner that disputed land. It is the position of law that parties are bound by their pleadings. In the case of Makori Wassaga vs. Joshua Mwaikambo & Another [1987] T.L.R 88, the Court stated that: 10 "A party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence; hence he is not allowed to set up a new case.” I find that the evidence on the appellant side went contrary to their pleadings especially on who was the owner of the Disputed Land, this contradiction goes to the root of the case because it raises doubt on whether the Disputed Land belonged to appellant in this case. Also, it was the appellant evidence especially from PW3 that the late Paul Mangindi Mwaijala inherited the Disputed Land of Mangindi Mwaijala through the clan/family members but during hearing no any family/clan members were called to testify on that effect. It is a position of law that failure to call material witness who is within the reach and without sufficient reason being shown, the court may draw an inference adverse to the prosecution. This position was clearly alluded by the Court of Appeal in the case of Azizi Abdalah vs. Republic, [1991] T.L.R 71. In this case the clan or family member was not called to testify on that effect and no reason was given by the appellant. On my view the clan member was material witness to testify so as to prove the fact that the late Paul Mangindi Mwaijala inherited the Disputed Land from his father. 11 Concerning the plot Disputed Land at Iringa hamlet, the appellant and his witness stated that the late Paul Mangindi Mwaijala and PW2 were given the land by Stenala Nkong’osole Mwaijala to administer and use the Disputed Land after she found that people started to trespass in her land. In that respect, I find that the late Paul Mangindi and PW2 where invitee in the Disputed Land. In the case of Musa Hassani vs. Barnabas Yohanna Shedafa (Legal Representative of the late Yohanna Shedafa), Civil Appeal No. 101 of 2018 the court 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." Based on the above authority, I find that the late Paulo Magindi Mwaijala and PW2 were invitee in the Disputed Land at Iringa hamlet and not the owner, in that respect they can not claim ownership in the Disputed Land. Apart from that, at the Trial Tribunal it was stated in the application that the late Paul Mangindi Mwaijala was given land at Iringa hamlet as an administrator by Sitenala Nkong’osole but the appellant in his evidence stated that the Disputed Land at Iringa Hamlet was acquired by the late Paul Mangindi Mwaijala together with PW1. This was contrary to what 12 was stated in his application (pleading) and contrary to the requirement in the case of Makori Wassaga v. Joshua Mwaikambo & Another (Supra) On the complain that Maiko Mwaijala borrowed both two plots in dispute for temporally use I find the same was not proved because no any formal or written agreement was tendered by the appellant during hearing to prove that fact. On the complaint raised by the appellant on his submission in chief and rejoinder that the late Maiko Mwaijala was invited by the late Paul Mangindi Mwaijala during their life time in 1970’s and he stayed there untill 1980’s. I find the same to be a new fact because it was not stated in the pleadings or during hearing. In the application it was stated that the late Paul Mangindi Mwaijala received Maiko Robert for purposes of facilitating him in his studies because he was his young brother and he left for work purpose in 1980’s and not the fact that he invited him to use the Disputed Land. Also, during hearing, it was stated that Maiko Mwaijala was invited in Disputed Land by PW2 and not by the late Paul Mangindi Mwaijala. In that respect I find that the appellant complaint that Maiko Mwaijala was an invitee in the Disputed Land was not proved. 13 On the issue that the assessor’s opinion was ignored and was not reflected in judgment. I have gone through the court records and find that the opinion of the two assessors favoured the appellant but the trial chairman ignored that opinion. Section 24 of the Land dispute Act states that: “In reaching decisions, the Chairman shall take into account the opinion of the assessors but shall not be bound by it, except that the Chairman shall in the judgment give reasons for differing with such opinion.” In this case the trial chairman went contrary to the opinion of the assessors but he gave reason for differing with such opinion so the trial chairman complied with the above provision so this ground lack merit. Also, on the complain that the assessor’s opinion was not reflected in the judgment of the Trial Tribunal, I find the same lack merit. The assessor’s opinion was reflected in the judgment of the trial tribunal and the same was appeared at page 8 paragraph 3 of the judgment of the Trial Tribunal. Based on the above analysis, I find no need to interfere with the decision of the Trial Tribunal. The appellant has not proved his case to the required standard, the opinion of assessors was properly recorded in the proceedings and reflected in judgment. 14 I find the whole appeal lack merit and is dismissed with costs. Right to appeal is explained. DATED at MBEYA on this 30 Day of January 2025. A. A. SINDA JUDGE 15