Magese Mange

The Judiciary of Tanzania

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA LAND APPEAL CASE REFERENCE NO. 000031806/2024 MAGESE MANGE ………………………………………................................. APPELLANT Versus HOLO MANGE ………………………….……………………………….… 1ST RESPONDENT SALU MANGE …………………..…………….……………………………2ND RESPONDENT NKWAMBILWA MANGE ……………..…………..………………………3RD RESPONDENT LIMBU MANGE ……………………………………………………………..4TH RESPONDENT (Originating from the Decision of the District Land and Housing Tribunal of Maswa at Maswa) (Hon. J.T. Kaare - Chairperson) Dated the 22nd day November 2024 in Land Application No. 53 of 2024 -----------------------------

JUDGMENT 4th & 21st March 2025. F.H. MAHIMBALI, J. The appellant and the respondents are near relatives. The main dispute between them is land claim – 3 acres located at Gaswa village in Itilima District in which the appellant claims ownership as well as the 1 st and 2nd respondents. 1 As per facts gathered, the 1st and 2nd respondents are siblings born by their late mother Minza Matela. Their father who is also the deceased is called Mange Mluba who happened to have taken care of the appellant who is the son of his sibling –one Mange from his early childhood. At all the time, things went well at the lifetime of the deceased father – Mange Mluba. Things turned sour when the late father died intestate living behind three wives and several children including the respondents and the appellant. It also appears that, all the children of the late Mange Mluba had no quarrel of recognizing the appellant as their relative and that even the land plots earlier allocated to him by their late father Mange Mluba in his life time, was not an issue. The issue with them is when he had decided to encroach another piece of land amounting to three acres claiming that he had purchased them as per clan meeting’s directives, the move the first two respondents resist from recognizing it as the same was not the clan land but their own land falling from their late mother’s share (Minza Matela). The appellant was astonished, he unsuccessfully sued the respondents at the trial tribunal, thus this appeal.

1. That the trial Tribunal Chairman erred in law and fact for failure to realize that the claimants of the suit land have no locus stand. 2 2. That, the trial Tribunal Chairman erred in law and fact by entertaining and hearing the land complaint while it was hopelessly time barred.

3. That the trial Tribunal Chairman erred in law and fact by disregarding the conclusive evidence of the appellant together with his witness and rely on garbled version of the evidence of the respondents without grieve ground.

4. That, the trial Tribunal Chairman erred in law and fact to adjudicate the case according to his speculation instead of the real fact which the appellant lodged before the Tribunal. During the hearing of the appeal, parties had self-representation who upon filing of the said appeal and reply to the memorandum of appeal, had suo motto decided to file written submissions in support and against the appeal without the prior court’s order, which after some discussions, I had adopted the said written submissions. In digest to the said submissions and the memorandum of appeal filed, I have noted that the appellant being the claimant at the trial tribunal, cannot validly raise these two grounds in his favour after he had chosen to be the 3 claimant. The said grounds of appeal could validly be in his favour, had he been the defendant and not the plaintiff as he opted to be. That said, we jut remain with the two valid remaining grounds of appeal which the same upon a careful study, boil into one main ground that the trial magistrate had wrongly dismissed the suit in the presence of the strong and convincing evidence against the respondents’ case, thus was wrongly dismissed. This is equal to saying that, the appellant had a stronger case than the respondents but wrongly ruled by the trial chairperson in his disfavor. Having heard both parties on merit, I have now to determine

this appeal based on evidence before this trial tribunal. In my determination of the matter, I shall be guided by the following principles of law. One, is that in civil cases, the burden of proof lies on the person who alleges anything in his favour as founded in section 110 of the Evidence Act. Two, is that the burden of proof envisaged above is on the balance of probabilities (See 3(2) b, of the Tanzania Evidence Act) and as stated in various decisions, including Anthony Masanga v. Penina Mama Mgesi and Another, Civil Appeal No. 118 of 2014 and Hamza 4 Byarumshengo v. Fulgencia Manya and 4 Others, Civil Appeal No. 33 of 2017 (both unreported). The main issue at trial was, “who is the lawful owner of the disputed land between the plaintiff and the defendants”. The trial tribunal answered in favour of the respondents after it was satisfied in preponderance of probability that though the appellant was their close relative after he was taken by their late father for taking care of him on his educational studies but to say the most, was not part of their siblings and that as long as he grew there and given some lands by their father, they respected it. However, his further desire of taking more land from them especially after the demise of their mother (Minza Mleta) was not proper and the move by the said clan meeting to award him the three acres of land from their portion was

not right as first it had no mandate to do that and secondly, that it was not justified. Ownership of land is a question of fact. Therefore, it must be strictly established. There must be sufficient evidence to prove ownership strictly on historical basis without a chronological chain break down. One cannot just get up and claim ownership of land without establishing how it came into his 5 possession. Where the historical basis and subsequent documentation is unexplainable, it is hard to believe lawfulness of the land ownership. In the current case, weighing the scales between two contesting parties, the scales tilt much to the respondents than the appellant. In essence, I know of no law, that upon a demise of a person, his properties (including land) can be distributed by the clan members without being appointed administrator of the deceased estate. It is the administrator of the deceased estate, who once legally appointed, steps into the shoes of the deceased as his legal personal representative, to act with all powers like the deceased, independently without being interfered by anybody, subject only to the law and directives of the court. He has power to deal with the assets of the deceased in the best way, as he can deem fit, without being interfered by anybody including the heirs. See Mohamed Hassani vs Mayasa Mzee and Mwanahawa Mzee, (Civil Appeal No. 20 of 1995) [1998]

TZCA 4 (19 March, 1998) TaznLII, Omary Yusuph (as Legal Representative of the late Yusuph Haji) vs Albert Munuo, (Civil Appeal No. 12 of 2018) [2021] TZCA 605 (25 October, 2021) TanzLII and Aziz Daudi Azizi vs Amin Ahmed Ally and Another, Civil Appeal No. 36 of 1990 (unreported). Conclusively, this issue should not detain me so much, I must therefore 6 conclude that there is no evidence that the appellant was lawfully allocated with the said land (3 acres) as the said clan leaders had no such legal mandate of doing what they did, them being not legal representative of the estate of the late Mange Mluba or his wife Minza Matela. All this said and considered, this appeal is brought without any sufficient cause and it is hereby dismissed for want of merits. The suit land remains in the possession of the 1st and 2nd respondents. As per consanguinity nature of the parties, I order no costs. It is so ordered. DATED at SHINYANGA this 21st March, 2025. F.H. Mahimbali Judge 7 8