Manyama 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA LAND APPEAL NO. 000014714 OF 2024 BETWEEN MALIBHA MANYAMA............................................................................. APPELLANT VERSUS MANYAMA NJOYA............................................................................. RESPONDENT JUDGMENT OF THE COURT 19/11/2024 & 16/01/2025 Kafanabo, J.: This is a judgment in respect of an appeal that emanates from the decision of the District Land and Housing Tribunal of Musoma, in the Mara Region (hereinafter referred to as the 'Tribunal') in Application No. 116 of 2022. The background of the matter is that the dispute in question involves ownership of land. It is gathered from the record that the Respondent in August 2022 instituted a land case in the Tribunal against the Appellant claiming to be declared a lawful owner of the piece of land located in Nyamawa Hamlet, Busamba Village, Etaro Ward in the Musoma District measuring nineteen (19) paces (metres) in length and thirty-six (36) paces in width (hereinafter referred to as the disputed land), it was also prayed that the Appellant be evicted from the disputed land. On 18th October 2022, the Appellant filed his defence disputing the Respondent's claim. i According to the evidence adduced in the Tribunal, it is on record that the parties hereto are blood brothers, and in the Tribunal the Respondent alleged that the disputed land belonged to their late father, Njoya Maliba, who died in 1979 and thus after his death the same was subject to inheritance by his lawful heirs. However, the Appellant alleged that he was allocated the disputed land in 1974 during 'Operation Vijiji' and thus it is his personal property and not of their late father as alleged by the Respondent. It was further alleged that the Respondent was appointed the administrator of the estate of the late Njoya Maliba in 2016 and he bequeathed the land in dispute to himself and the Appellant was allocated another piece of land located elsewhere on which the Appellant constructed his house and not the land in dispute. It was also alleged that the clan meeting was convened and declared the land in dispute to be that of the late Njoya Maliba and thus was a family land and not the Appellant's, the assertion which was strenuously disputed by the Appellant. After hearing both parties and considering the evidence on record on 17th May 2024 the Tribunal decided in favour of the Respondent by declaring him a lawful owner of the disputed land. The Appellant being dissatisfied with the said decision approached this Court by way of appeal setting forth four grounds of appeal the substance of which is as follows: i. The Chairperson of the trial Tribunal erred in law and facts to believe that the disputed land was the property of the respondent which is not true. ii. The Chairperson of the trial Tribunal erred in law and facts when he decided the case without the opinion of the assessors as 2 directed by section 24 of the Land Dispute Settlement Courts Act, Cap. 216 R.E. 2019. iii. The learned trial Chairperson of the Tribunal erred in law and facts when he denied to receive and admit the minutes of the meeting of the clan of Njoya Maliba dated 17/4/2023 which showed that the appointment of Manyama Njoya as the administrator of the estate of the late Njoya Malibha was not legal. iv. The trial Chairperson erred in law and facts for not considering a very long period the Appellant had been in the disputed land without being disturbed by anybody. The appeal was heard orally and both parties appeared in Court unrepresented. In support of the appeal and by considering the first ground of appeal, the Appellant submitted that ownership of the land in dispute is an unambiguous matter because the land in dispute is not under the administration of the estate of their late father, it is his property and not the property of the late Njoya Maliba. The estate of the late Njoya Maliba was distributed to his nine (09) children by the clan meeting. The said clan meeting decided that the property of the deceased had already been distributed since 1984. The Respondent is claiming a piece of land that does not belong to the family it belongs to the Appellant. The meeting of 72 members of the clan decided that the disputed land belonged to him, the Appellant. The property was allocated to him in 1974 by the village during 'Operation Vijiji', and the whole clan knows that the land belongs to him and not to the estate of their deceased father. 3 Arguing for the second ground it was submitted that the Chairman erred in law for determining the matter without the opinion of the assessors. The assessors were not there and thus the case was determined unlawfully. The third ground of appeal was that the chairperson erred in declining to admit the minutes of the family meeting of Njoya Maliba dated 17/04/2023. It was submitted that the Tribunal so decided because the Tribunal did not consider the explanation offered by the people who knew about the inheritance of their deceased father's estate. The Appellant submitted that the disputed land belongs to him and not to the estate of their deceased father, it was allocated to him (the Appellant) by the village. In respect of the fourth ground of appeal, it was submitted that the Court did not consider the long period the Appellant has been in occupation of the disputed property without disturbance. However, the Chairman considered the land as part of inheritance while the land does not belong to the estate of the deceased. Opposing the appeal, the Respondent submitted that as regards the 1st ground of appeal, the Appellant failed to prove his ownership of the disputed land because he did not provide proof of ownership of the same. On the second ground of appeal, it was submitted that the Tribunal decided the matter without assessors according to the law, as section 23 of the Land Disputes Courts Act allows such kind of decisions. Regarding the 3rd ground of appeal, the Respondent submitted that the exhibits on record did not show that there was sufficient evidence of ownership of the disputed land by the Appellant. Moreover, regarding the 4th 4 ground of appeal, it was submitted that the Court should consider the evidence on both parties so that it can issue a proper judgment on both parties. The Respondent further prayed that the appeal be dismissed because it has no merits. After the submissions of the parties have been duly heard, it is high time for this Court to determine the merits of the appeal by considering the grounds of the appeal as expounded by the submissions of the parties. This Court commences with the determination of the first ground of appeal which states that the trial learned Chairperson of the Tribunal erred in law and fact to believe that the disputed land was the property of the Respondent while this is not true. This may also simply be put that the Respondent failed to prove his case on the balance of probability. In light of the submissions by the parties, the Appellant held to his guns that the disputed land belonged to him and not to their late father Njoya Maliba. In contrast thereto, the Respondent testified that the property belonged to his father who died in 1979, and after he was appointed the administrator of the estate of their late father in 2016 he bequeathed the disputed land to himself. It is on that basis the Tribunal declared him the lawful owner of the disputed land. The Tribunal in arriving at its decision observed that since the Respondent was appointed the administrator of the estate of the deceased he had the mandate to distribute the estate of the deceased to the beneficiaries including allocating part of the deceased estate to himself. The Tribunal on page 2 of the decision dismissed the Appellant's defence that 5 the land in dispute was allocated to him in 1974 for want of proof because, apart from the Appellant's testimony, there was no other proof of the Appellant's ownership of the disputed land. The question that lingers is whether the Respondent proved that the disputed land belongs to him. This question is answered by considering the evidence on record. The testimony of the Respondent who testified as PW1 in the Tribunal was to the effect that the disputed land was bequeathed to him. That is, the Respondent being the administrator of the estate distributed the estate to the remaining four heirs of the deceased and he bequeathed the land in dispute to himself, and the Appellant was bequeathed another piece of land. Besides, the testimony of PW2 was simply that the parties herein are fighting for the land that belonged to their father, and in 2016 the Respondent was appointed the administrator of the estate and he distributed the estate of the deceased. The Respondent also tendered exhibit Pl to support his testimony before the Court. Nevertheless, after reviewing the Tribunal's record this Court observed some defects hinging on the Respondent's case as demonstrated herein below. One, according to the record of the Tribunal the Respondent, being the administrator of the estate, did not testify as to when the probate and administration cause No. 01/2016 was closed to prove that he administered the estate of the deceased according to the law. 6 Two, the Respondent did not tender any document showing that the members of the deceased's family met and resolved that the estate of the deceased be divided to the remaining four heirs of the deceased to prove that the other heirs agreed to the said distribution of the estate in the manner set forth by the Respondent. Three, the Respondent did not tender any document proving that inventory and final accounts of the estate of the deceased were filed in Court showing how the distribution of the deceased's estate was done by the Respondent in order to prove that the land in dispute was bequeathed to him as alleged. The above requirement is categorically provided in the Primary Courts (Administration of Estates) Rules, G.N. No. 49 of 1971, where rule 10 provides that: "(1) Within four months of the grant of administration or within such further time as the liabilities court may allow, the administrator shall submit to the court a true and complete statement, in Form V, all the assets and liabilities of the deceased persons' estate and, at such intervals thereafter as the court may fix, he shall submit to the court a periodical account of the estate in Form VI showing therein all the moneys received, payments made, and property or other assets sold or otherwise transferred by him This means that since the Respondent did not, during the proceedings at the Tribunal, tender forms No. V and VI showing what deceased's properties came under his administration and how he distributed the same, 7 the bequeathing of the disputed land to the Respondent or any other person remains a conjecture, and thus should not have been relied upon by the Tribunal to declare the Respondent a lawful owner of the disputed land. Four, exhibit Pl (collectively) tendered by the Respondent suffers from the following: i. The Tribunal did not name any of the documents admitted as exhibit Pl and thus it is unknown what comprised exhibit Pl according to the records of the Tribunal. ii. Exhibit Pl, as erroneously marked in one of the documents found in the Tribunal's record, comprises of Ward Tribunal's summons issued to the Appellant. iii. There is no endorsement or signature of the Chairman on the exhibit purportedly admitted in order to show that it was properly admitted by the Tribunal. iv. The other documents beneath exhibit Pl (as clustered in the case file of the Tribunal) do not prove anything as regards ownership of the disputed land or that the same was bequeathed to the Respondent. Five, no Court proceedings were specifically referred to or tendered as exhibits during the proceedings in the Tribunal to prove that the Respondent was bequeathed the disputed land in a proper administration of the estate of the deceased. In light of the foregoing, it is clear that the Respondent failed to prove that the land in dispute was bequeathed to him according to law. It is, 8 therefore, unclear why the Tribunal decided that the Respondent was the lawful owner of the disputed land in the absence of any evidence proving, on the balance of probability, that the Respondent was the lawful owner of the disputed land. The law regulating proof of facts in civil matters is clear on the standard of proof. Section 3(2)(b) of the Evidence Act, Cap. 06 R.E. 2019 provides that: "(2) A fact is said to be proved when- (b) in civil matters, including matrimonial causes and matters, its existence is established by a preponderance of probability." Moreover, section 110 of the Evidence Act (supra) provides that: HO.-(l) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence ofany fact, it is said that the burden ofprooflies on that person. In light of the above provisions, it is crystal clear that whoever alleges the existence of a particular fact must prove that the said fact exists on the balance/preponderance of probability. In the case of Ernest Sebastian Mbele vs Sebastian Sebastian Mbele & Others (Civil Appeal 66 of 2019) [2021] TZCA 168 (4 May 2021) the Court observed on proving a fact on the balance of probability sought 9 inspiration from the decision of the Supreme Court of India in the case of Narayan Ganesh Dastane v. Sucheta Nayaran Dastane (1975) AIR (SC) 1534 that: - "The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance ofprobability. This is for the reason that ...a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought to act upon the supposition that it exists. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range, ofprobabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance ofprobabilities lies." In light of the foregoing, and ensuing the Respondent's failure to prove that the land in dispute was bequeathed to him during the administration of the estate of their late father, this Court finds that the first ground of appeal is meritoriuos and thus allowed. Since the first ground of appeal is sufficient to dispose of the appeal, the other grounds of the appeal become redundant and thus determination of the same would be an exercise in vainness. 10 Therefore, the Judgment of the Tribunal and the decree thereof are hereby quashed and set aside. The Appeal is allowed and each party should bear their costs. It is so ordered. Dated at Musoma this 16th day of January 2025. K. I. Kafanabo Judge The judgment was delivered in the presence of the Appellant and in the absence of the Respondent who was duly aware of the date of judgment. K. I. Kafanabo Judge 16/01/2025 li