MALIZEN KANGAMOTO scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 25367 OF 2024 (Originating From Application No. 311 of 2019, Hala District Land and Housing Tribunal) MALIZEN AMINI KANGAMOTO.......................... ................... APPELLANT VERSUS MWANASA AMIRI (Administratrix of the Estate of the Late Amin Muhutu Kangamoto)....................................... RESPONDENT JUDGMENT 5th to 20th February, 2025 E.B. LUVANDA, J In the amended memorandum of appeal, the Appellant named above, raised seven grounds to challenge the decision of the Tribunal which declared that the suit house situated at Vingunguti, Mtambani Street, Dar es Salaam, is part of the estate of the late Amini Kangamoto whose estate is administered by the Respondent. The learned Chairperson reached to that verdict for reason that Salum Nassoro Mkangazi-PW2 along Athumani Saidi Simbe-PW3 (who was Mjumbe wa Shina and broker to the sale), witnessed a disposition of the suit land between Shornari and the late Amin Kangamoto. The learned Chairperson faulted the evidence tendered by the Appellant in particular the testimony of Malizeni Amini Kangamoto-DWl, Omary Kangamoto-DW2, Khalfan Saidi Muitu- DW3, being hearsay. Also faulted DW1 on the ground that was incapable to i. purchase and sign a sale agreement on 9/10/1990 (exhibit KU1) on account of being a minor (aged seven years old) and that a leseni ya makazi exhibit KU3 was obtained by fraud by DW1 in 2007, while DW1 alleged to have been acquainted with a fact that a suit house belong to him in 2010. The ground of appeai, goes thus: One, the trial Tribunal erred in law and facts for failure to analyze the evidence which was adduced by the Appellant and his witnesses as result it ended on erroneous judgment against the Appellant; Two, That the trial Tribunal erred in law and facts on granting the ownership to the Respondent contrary to the pleadings which was filed before the trail Tribunal for the determination of the disputes of the parties; Three, the trial Tribunal erred in law and facts for relying its decision on the issues regarding the residential licences was obtained by fraud which was not pleaded by the parties to the suit; Four, the trial Chairperson erred in law and facts in disregarding the evidence of SM3 Athuman Said Simba who was the local leader (Mjumbe) and witness of the sale agreement; Five, the trial Chairperson erred in law and facts in determining the suit against the wait of evidence which was adduced by the parties to the suit; Six, the Tribunal erred in law and facts for failure to join the necessary parties to wit the allocating authority Hala Municipal Council and Attorney General as necessary parties; Seven, the judgement and decree 2 delivered by the trial Chairperson is a problematic and incapable of legal support. Mr. Innocent Paulos Mwelelwa & Anna A. Mwakabungu, learned Advocates for Appellant, for ground number one submitted that, it is clear in records, as well in the typed judgment of the Tribunal that the land in dispute was bought by the father of the Appellant and willingly chose to put it in the name of the Appellant a thing that justifies that among all the children, the Appellant was chosen to be the owner of the land in dispute. They submitted that the trial Tribunal failed to evaluate the evidence of PW3 page 3 of the judgment where he adduced evidence that "lakini katika kununua eneo hili mnunuzi a/itaja jina ia mnunuzi Handikwe Maiizeni K. Marunda na baadae SM3 aiiwafahamu watoto wa mnunuzi akiwemo mdaiwa (the Appellant) anayeitwa Maiizeni" They submitted that the Appellant tendered the purchasing contract exhibit KU1 which has the names of the Appellant on it as a purchaser. They submitted that the Appellant testified that when his father entered into the said contract, he was a minor, that is why he was not aware of his ownership to the disputed premise. They submitted that the evidence of the Appellant, DW2 and DW3 was to the effect that they were ordered by the deceased to trace the purchasing contract, whereas they traced it and they testified to have seen the contract with the names of the Appellant. They submitted that despite all the evidence 3 adduced and testimonies the Tribunal disregarded and failed to give a glance the evidence of the Appellant. They submitted that in opposite the Tribunal crushed all the testimonies and exhibit adduced by the Appellant and other witnesses. They cited the case of Sabas Kuziriwa Versus the Republic, Criminal Appeal No.40 of 2019 CAT where cited a case of Leonard Mwanashoka v. Republic, Criminal Appeal No. 226 of 2014 (unreported), for a proposition that the Tribunal ought to have properly analyzed and scrutinized the evidence of the Appellant before disregarding it which rendered injustice to the Appellant. They submitted that the Tribunal termed the testimony of DW3 who testified to have traced and seen the contract with names of the Appellant as "hearsay evidence, argued this is contrary to what the law provides as to what amounts to hearsay evidence, the evidence adduced based on the names of the buyer as to the purchasing contract which the Appellants witnesses testified to have perceived with their own eyes, citing section 62(1) The Evidence Act, Cap 6 R.E 2022. They submitted that the evidence of the Appellant carries enough weight to put in consideration to prove the ownership of the Appellant instead of expunging it. 4 They submitted that a property purchased by a parent in the name of the child is as good as excluded from the properties of the parent therefore it cannot again be said to be subject of inheritance where the legal representative will have to remove the name of the living child and put the property in his name and then to the heirs as if it was in the name of the deceased. They cited Nyaoga Mayunga vs Yombo Budobudo, PC. Civil Appeal No. 57 of 2023, HC For ground number two, the learned Counsels submitted that the Respondent claimed that the deceased hold the status of ownership to the disputed land but the evidence adduced none shows or proves that the deceased owned the land even the Respondent's witness testified that the names in the purchasing contract appears to be the names of the Appellant yet the trial Tribunal entered a judgment against the Appellant without any justifiable evidence adduced by the Respondent. They submitted that the Respondent testified before the Tribunal that the late Amin Muhitu Kangamoto purchased the disputed premise from Shomari Salu Mvugalo, arguing that the Respondent neither brought before the Tribunal the sale agreement as exhibit nor Shomari Salu Mvugalo who could have helped the Tribunal to prove the truthfulness of the content of the contract in one way or another. They submitted that the Respondent adduced no evidence that could prove the suited land was under the ownership 5 of the late Amin Muhitu Kangamoto, arguing that the testimony of her witnesses excluded the deceased as the owner of the suited land, this proves the evil intentions of the respondent to disown the appellant. They submitted that the pleadings which has been filed by the Respondent at the trial Tribunal it clearly prayed the Respondent to be declared the owner of the suit land, while the learned Chairperson granted the prayer which was not in the pleading at all, by declaring that the Respondent is the lawful owner of the suit premise by virtual of being the administrator of the estates of the deceased contrary to the pleadings which was filed at the trial Tribunal. They submitted therefore that, the decree which has been granted to the Respondent is defective. They submitted that there was no any evidence which was tendered by the Respondent to show that the disputed land was owned by the deceased such as minutes of the family meetings, probate forms number one (1) from the Primary Court at Buguruni or orders to such effect. They submitted therefore that, the trial Tribunal disowned the Appellant the suited land without any justifiable ground. Regarding ground number three, the learned Counsels submitted that for the purpose of determination of the matter, the Tribunal raised two issues that are: Whether the Respondent is the lawful owner of the suit land; Two, to what reliefs are parties entitled to. They submitted that, during the determination, 6 the Tribunal relied much on residential license which the Appellant during his defence adduced as evidence to prove his ownership. They submitted that the learned Chairman maintained that the obtainment of the residential license was unknown and the names appearing on the said residential license differ from the names that appears on the exhibit KU1 the contract for purchasing the disputed land. They submitted that if the obtainment of the residential license was the issue for determination the Appellant would have delivered all the necessary documents to prove it's obtainment, but instead the Tribunal made it an issue for determination and afforded the parties no right to address on it, leading into an erroneous decision. They cited the case of I. P.T.L. v Standard Chartered Bank (Hong Kong) LTD, Civil Revision No.l of 2009 (unreported); Scan-Tan Tours Ltd Vs The Registered Trustees of the Catholic Diocese of Mbuiu, Civil Appeal No. 78 of 2021 (unreported). They submitted that it is a trite law that in a case, where the allegations is fraud the same must be in strict manner proved as to the existence of fraud or not for the court to rely on, citing Ratiial Gordhanbhai Pate! Vs, Lalji Makanj! [1957] E.A 314; Aiex Senkoro & Others v$ Eiiambuya Lyimo, Criminal Appeal 16 of 2017, CAT; City Coffee Ltd vs. Registered Trustee of liolo Coffee Group, Civil Appeal No. 94 of 2018, CAT. 7 They submitted that the Appellant adduced the affidavit of names for the purpose of letting the Tribunal and the public at large be aware that the two names are of the Appellant are used interchangeably with no ill motive. They submitted that the history of the deceased who is the father of the Appellant he was using four names which are Amin Muhitu Marunde Kangamoto Which are the names that appears as the names of the Appellant's residential license and exhibit KUlf sale agreement in respect of the disputed land, arguing therefore that the names do not fall short to appear differently in the two documents considering the fact that the appellant has took an oath that those names are used interchangeably. With regard to ground number four, the learned Advocates submitted that PW3 was the Respondent's witness who testified to have been a local leader of the area at the time of purchasing the disputed land, also he was a broker who assisted the deceased to find the plot and he was the one who drafted the sale agreement who was tendered by the Appellant herein. They submitted that the evidence of PW3 was very dear and undisputed that the late Amini Muhitu Kangamoto is the one who informed PW3 to prepare the sale agreement in the name of the Appellant and clearly identified the appellant to be the son of the deceased, citing page 3 of the typed judgement. 8 Theys submitted that despite the fact that during that time the Appellant was a minor, yet the intention of the buyer of the disputed land remains undisputed that he wanted his son to own the land. They submitted that the Tribunal itself analyzed the evidence of PW33 but failed to put in consideration to afford the Appellant his rights to ownership of the disputed land. For ground number five, the learned Advocates submitted that the Tribunal failed to consider the weight of the evidence adduced by the parties to decide the disputes which has been presented before it. They submitted that the Respondent alleged that the disputed land is owned by the deceased and therefore subject to distribution, arguing that there is no evidence or exhibit adduced in court to show that the land was either registered in the names of the deceased. They cited Section 110(1) of The Evidence Act [CAP 6 R.E2022], for a proposition that who allege must prove. Also cited Higher Education Student's Loans Board Versus Hematec Investment Limited, Civil Appeal No. 115 Of 2023, HC. They submitted that the evidence of the Appellant carries more weight compared to that of the Respondent who adduced sloppy evidence with nothing to rely on to grant the ownership of the suited land to be owned by the deceased. 9 Ground number six, the learned Counsels submitted that the Respondent failed to join necessary parties when she was instituting this application before the trial Tribunal who were vital for the determination of the matter in which it was improper for the Tribunal to decide on the matter in the absence of the said parties. They cited the case of George Mlelwa (supra). In reply by the Respondnt who was under gratis of Scholastica Ndyanabo learned Counsel from TAWLA, submitted that the trial Tribunal meticulously evaluated the evidence presented by both parties, contrary to the Appellants allegations, the Tribunal considered the credibility, consistency, and relevance of the testimonies and documentary evidence before rendering its decision. She submitted that the Tribunal scrutinized the testimony of witness PW3 and the purchase agreement (exhibit KU1) tendered by the Appellant. She submitted that while the Appellant asserted that the disputed land was purchased by his father and registered in his name, the Tribunal identified significant discrepancies in the Appellant's claims. She submitted that the evidence presented established that the property in question was purchased in 1990 by the late Amiri Muhitu Kangamoto, witnessed by PW3, a local leader from Vingunguti, Hala District, who testified that he was aware of the property being sold to the late Kangamoto by Mr. Shomari Salumi 10 Mvugalo for TZS 65,000. She submitted that following the purchase, the late Kangamoto developed the land and resided there with his family until his demise in 1997. She submitted further, that the Respondent acknowledged that the late Amiri Kangamoto was his father, and the Appellant is his sibling. She submitted that the Appellant testified that he was bom on 20/7/1983 and resided with his family on the disputed property, and after their father's passed away, the family continued to live on the property. She submitted that the Appellant further- informed the trial Tribunal that the elder brother, Mr. Arufani Mwitu, presented the deed of sale (exhibit KU1), confirming that the land and house in dispute were owned by the Appellant and not family. She submitted that the Appellant contends that the land was purchased on his behalf while he was a minor, yet relies on exhibit Kill to assert ownership. She submitted that this contradiction undermines the credibility of his claim. She submitted that the Tribunal rioted the absence of corroborative evidence supporting PW3's testimony or proving a valid transfer of ownership to the Appellant. She submitted that the Appellant lacks the legal capacity to claim exclusive ownership. She cited section 11 of the Law of Contract Act, Cap. 345 R.E. 2019 that it stipulates that individuals entering into contracts must possess the requisite legal capacity, defined by age, soundness of mind, and legal competence. ii She submitted that the evidence adduced by the Appellant's witnesses regarding the purchase contract did not meet the threshold of direct evidence as required by this provision. She submitted that the Appellant's witnesses merely testified to what they "perceived" or "traced" from the document rather than directly participating in or witnessing the transaction. She submitted that the Tribunal was correct in treating their testimony as hearsay because the witnesses could not personally confirm the circumstances surrounding the creation of the contract. She submitted that the Appellant asserts that the disputed land was purchased by his late father in his name while he is still a minor, arguing that the purchasing contract (exhibit Kill), which was relied upon by the Appellant, was insufficient to prove ownership. She submitted that the Tribunal properly analyzed the inconsistencies in the evidence, including, lack of clarity on whether the parent intended to gift the land to the Appellant. She submitted that absence of evidence of the Appellant's involvement or awareness at the time of purchase and no corroborating evidence to prove that the land was exclusively purchased for the Appellant. She submitted that the case of Hilda Rejuna (supra) cited by the Appellant, is distinguishable and does not apply in this instance, arguing that the case 12. involved the division of matrimonial property, whereas the present case involves the issue of ownership under unclear circumstances. Also distinguished Gabriel Nimrod Kurwijila (supra) on that does not support the Appellant's argument, as it pertains to property purchased by parents specifically for their children. She submitted that in this case, the Appellant has failed to establish that the property in dispute was unequivocally intended to belong to them. She submitted that ownership of property requires clear intention to transfer ownership to the purported owner, arguing that the evidence presented by the Appellant failed to demonstrate any such intention by his late father. She submitted that the fact that the property was registered in the Appellant’s name does not conclusively prove ownership without further evidence of intent or transfer of ownership. She submitted that the Tribunal rightfully questioned the Appellant’s claim of ownership based on the absence of evidence proving. She submitted that the parent's explicit intention to gift the land and that the circumstances under which the Appellant's name was included in the purchase contract, arguing that the Tribunal's analysis was consistent with Tanzanian legal principles requiring clear and credible evidence to establish ownership. 13 She submitted that under Tanzanian inheritance laws, property purchased by a parent is presumed to form part of the deceased's estate unless clear evidence is provided to exclude it. She submitted that the claim that the property was purchased in the Appellant's name does not automatically exclude it from the estate of the parent, for an argument that the evidence provided by the Appellant failed to demonstrate exclusive ownership, the tribunal correctly ruled that the landforms part of the parent's estate and is subject to inheritance. For ground number two, she submitted that the decision of the trial Tribunal was just and fair based on the evidence presented. She submitted that the Appellant alleges that the trial Tribunal erred by granting ownership to the Respondent contrary to the pleadings filed. She submitted that this argument is misplaced. She submitted that the pleadings filed by the Respondent clearly sought a declaration that the Respondent is the lawful owner of the disputed land in her capacity as the administrator of the estate of the late Amin Muhitu Kangamoto. She submitted that the Tribunal's judgment aligns with the prayers sought by the Respondent and is supported by the following legal principles, citing Order VI Rule 1 of the Civil Procedure Code [Cap. 33 R.E. 2022], pleadings consist of material facts necessary to support the claim or defense. She submitted that the Respondent's pleadings sufficiently set out the basis of their claim, which 14 was upheld by the Tribunal. She submitted that the Tribunal did not grant any relief outside the pleadings. She submitted that declaring the Respondent as the lawful owner in her capacity as the administrator was consistent with the prayers and the evidence adduced. She submitted that the claim that the decree is defective due to the Respondent being declared the owner as an administrator is unfounded. She submitted that the administrators of estates are legally empowered to take possession of and manage the deceased's property, including filing legal actions to protect the estate's interests, citing section 99 of the Probate and Administration of Estates Act, Cap. 352 R.E. 2022. She submitted that the Appellant has argued that the Respondent failed to produce the sale agreement or summon the alleged seller, Shomari Salum, to testify. She alluded that while documentary evidence strengthens a case, it is not the only form of evidence recognized by law. She submitted that under Section 62(1) of The Evidence Act, Cap. 6 R.E. 2022, oral evidence is admissible and sufficient when given by witnesses with direct knowledge of the facts. She submitted that the Respondent presented oral testimony to prove that the late Amin Muhitu Kangamoto purchased the disputed land, and the Appellant failed to challenge the credibility of this evidence during the trial. She submitted 15 that the absence of the sale agreement or the seller does not automatically discredit the Respondent's case. She submitted that the burden of proof in civil cases lies in the party who alleges, citing section 110(1) Cap 6 (supra). She submitted that the Respondent, as the administrator of the estate, discharged this burden by adducing sufficient evidence to prove the deceased's ownership of the land, she submitted that the Appellant failed to present stronger evidence to refute the Respondent's claims, citing Charles George Mielwa vs. John Silungwe and Others, Civil Appeal No. 56 of 2022, for a proposition that the court must weigh the credibility of evidence, and the tribunal found the Respondent's evidence more credible. She submitted that the Appellant's claim that the trial tribunal error in law and facts by raising the issue of fraud regarding the residential license without giving the Appellant a right to be heard, is unfounded and lacks merit. She submitted that it is a trite law under Order XIV Rule 5(1) Cap 33 (supra) that a court has discretion to frame additional issues necessary for the determination of the matter, even if not pleaded by the parties. She submitted that the Tribunal did not act outside its mandate in questioning the validity of the residential license, as the issue arose during the Appellant's defense. She submitted that the Tribunal's observation that the names on the residential license differed from 16 those on the purchasing contract was directly relevant to the determination of ownership, which was the primary issue for adjudication. She submitted that the Tribunal is duty-bound to scrutinize all evidence presented, and its questioning of the residential license was within the scope of evaluating the credibility of the evidence. She submitted that the Appellant's argument that the tribunal improperly raised the issue of fraud without sufficient particulars, arguing it is also untenable. She submitted that the Tribunal did not expressly make a finding of fraud but merely questioned the validity of the residential license due to discrepancies in names, which is a factual inconsistency requiring explanation. She submitted that the Appellant's affidavit purporting to justify the differences in names does not satisfy the higher evidentiary standard required to prove the authenticity of the residential license, especially in light of the Appellant’s failure to produce supporting documentation or witnesses to substantiate the license's issuance. She submitted that the Appellant's argument that the learned Chairperson erred in disregarding the evidence of PW3, Athuman Said Simba, is unfounded. She submitted that while PW3 testified that he prepared the sale agreement under the deceased's instructions to put the Appellant's name on the contract, the Tribunal correctly analyzed this evidence and found it insufficient to conclusively establish the Appellant's ownership. 17 She submitted that the Tribunal properly noted that mere inclusion of the Appellant's name on the agreement, particularly as a minor, does not automatically confer ownership rights. She submitted that ownership is not only about names on a document but also about the context, intention, and actions demonstrating actual ownership and control. She submitted that the Appellant failed to produce corroborative evidence, such as proof of subsequent ownership acts, family consent, or any document confirming the deceased's unequivocal intent to gift the land exclusively to the Appellant, she submitted that the Tribunal rightly exercised caution in relying on PW3's testimony, as it lacked supporting evidence to substantiate that the land was intended to belong solely to the Appellant. She submitted that the Appellant's submission that the learned Chairperson erred in failing to join the Ilala Municipal Council and the Attorney General as necessary parties is unfounded and lacks merit. She submitted that the principle of joinder of necessary parties applies only where the presence of such parties is essential for the court to effectually and completely determine the matter. She submitted that in this case, the dispute revolved around ownership of the suit land, and the parties directly involved in the controversy were the Appellant and the Respondent. She submitted that the absence of the Ilala Municipal 18 Council or the Attorney General does not hinder the determination of ownership, as neither party's involvement was central to the core issue of the case. She submitted that the Appellant did not demonstrate how the absence of these entities prejudiced his case or led to an unfair decision. She submitted that the Tribunal was therefore within its jurisdiction to proceed and determine the matter based on the parties before it, in compliance with section 19(2) of the Land Disputes Courts Act, Cap 216 R.E. 2019. On rejoinder, the learned Counsel for Appellant submitted that the Appellant does not dispute the fact that the disputed land was purchased by the late Amin Muhitu Kangamoto, also that during the purchasing of the said land, Malizeni Kangamoto was a minor. They submitted that it is the Appellant concern that, the late Amin Muhitu Kangamoto purchased the said land in the name of the Appellant with the view that the land should be owned by the Appellant and not himself. They submitted that the Respondent summoned one PW3 a local leader from Vingunguti liala who was a witness during the purchase of the disputed land, that PW3 testified that the Appellant's father purchased the disputed land from one Shomari Salum Mvugalo and voluntarily executed the contract in the names of the Appellant, making the property under the ownership of Malizeni Amini Kangamoto and not subject for distribution. They submitted that the Tribunal ought to have the highly considered and evaluated the evidence 19 adduced by PW3 as the local leader and the eye witness during the purchase of the disputed land. They submitted that the evidence of the Appellant was collaborated with the evidence of PW3 to support the Appellant claims. Regarding the evidence adduced by the Appellant's witnesses being termed as hearsay, the learned Counsels submitted that, the evidence of his witnesses cannot be termed as hearsay since the testimony based on what they perceived by their own eyes. They submitted that DW2 and DW3 testified to have been directed by the deceased to trace the contract which they did, and the contract recognizes the Appellant as the owner of the said land. They cited section 6(l)(a) Cap 6 (supra) for a proposition that oral evidence must in all cases whatever, be direct. They submitted that the witnesses testified not to have been the witnesses during purchasing contract rather that, they have seen the contract which referred the Appellant being the owner of the said land. They submitted that the evidence adduced by the local leader as the eye witness together with the purchasing contract KU1, proves that the late Amin Muhitu Kangamoto's pure and clear intentions to have the Appellant be the owner of the said land. They submitted that it is a trite principle that for a person to transfer a property must have a good title, the disputed property being under the names of the Appellant lacks legal traits of the property being subject of distribution by the 20 Respondent as one among the asset of the deceased. They submitted that a fact that the disputed land was purchased by the Appellant's father does not automatically make it subject to distribution to the inheritors. They submitted that the property being registered in the names of the Appellant fails short to be termed as a family property. They cited Fidea Fumbo Msairi Vs Emmanuel Fumbo Abel, Civil Appeal No. 66 of 2023; Hilda Rwejuna (supra). They submitted that the disputed land is not subject to distribution as one among the deceased estate since it has been registered under the names of the Appellant as per the contract and residential license. They submitted that the Respondent adduced no documentary evidence to prove the ownership of the disputed land by the deceased. They submitted that the Tribunal declared ownership of the disputed iand to the administrator. They submitted that, the administrator is vested with power to manage and distribute the properties of the deceased. They submitted that there are procedures to follow or the deceased property to come into the hands to the administrator which we are not concerned with now, the tribunal has no jurisdiction to declare the administratrix as the owner of the property that does not form part of the deceased estate. They submitted that it is not disputable that the court has discretional power to frame additional issues for determination to maintain justice for both parties. 21 They submitted that having the Tribunal raised the issue of fraud concerning the residential license, failed to afford the Appellant with the right to address on the said discrepancies, instead the Tribunal concluded the matter without affording the Appellant the right to be heard, leading to miscarriage of justice. They submitted that despite the fact that the issue was raised suo motto the Appellant had the right to address themselves on it, citing Jasoni N. Haonga vs Waiies Mwamengo, PC Civil Appeal No. 18 of 2020. They submitted therefore, having the Tribunal arrived to its decision to relying on the issue that the parties have neither addressed it on their pleadings nor being given an opportunity to address on when it was raised suo motu is vitiate the principles of natural justice thus resulting into unjust decision against the Appellant. That marked the end of the parties arguments. On my part, I will tackle the grounds of appeal serially as appearing in the amended memorandum of appeal. Ground number one, arguably PW3 asserted that it is the purchaser who mentioned the name of Melazani to be recorded into the sale agreement exhibit KUi. However, PW3 did not say that the purchaser clarified that he was purchasing the suit land in favour of the Appellant. Literally the learned Counsels for Appellant misconstrued the testimony of PW3. The learned Counsels for Appellants are attempting to make arguments by way of cherry picking some segments in the testimony of PW3 in isolation to other facts adduced by PW3. To my view, in its holistic, PW3 meant that the suit land was purchased by the late Amin Mahitu Kangamoto. My undertaking is grounded on the facts that in exhibit KU1, nowhere the late Amin Mahitu Kangamoto recorded to have purchased it on behalf of the Appellant or as a gift to the Appellant. Above, all the names of the purchaser therein exhibit KU1 reflects Maiizeni K. Marunda. In his testimony, the Appellant who testified as DW1 at the Tribunal, asserted that Maiizeni and Maiizeni K. Marunda is the same person. DW1 asserted that their father was named Amini Muhitu Kangamoto. In attempt to harmonize the names and own exhibit Kill, the Appellant affirmed an affidavit part of exhibit KU5 clarifying that the names in exhibit KU1, identity card part of exhibit KU5 and residential licence exhibit KU3 belong to the same person. But the Appellant was unable to tell as to when he was given the name Maiizeni K. Marunda. During cross examination, DW1 (Appellant) stated that he don't have any identity card or any document which introduce him by the name of Marunde. Therefore the Appellant is forcefully persuading to be believed that the name Marunde belong to him, without any tangible evidence. DW2 mentioned Amin Muhitu Kangamoto Marunde as the proper name of the deceased. According to DW2, Marunde is their surname. But this fact alone cannot be said to have proved that the name Marunde belong to the Appellant. 23 Regard, being no person appeared to adduce evidence that at any time the Appellant was called by the name Marunde. Above all/ neither of the Appellant's witnesses to wit DW2 or DW3 stated that the late Amin Muhitu Kangamoto declared to have purchased the suit land as a gift to the Appellant/ nor asserted that they heard the late Amin Muhitu Kangamoto saying that the suit house belong to the Appellant. Therefore, the argument of the learned Counsel for Appellant that the Appellant was chosen to be the owner of the land in dispute, lack bases. On similar vein, the Tribunal was justified to rule that DW2 and DW3 their testimony regarding purchase and ownership of the suit land is not a direct evidence. This is for obvious reason that both DW2 and DW3 did not attend the purchase neither witnessed execution of sale agreement exhibit Kill. Therefore, whatever the duo said regarding the purchase and ownership of the suit land by the late Amin Mahitu Kangamoto, amounted to hearsay testimony. It is in record that the late Amin Mahitu Kangamoto passed away on 10/12/1997, as asserted by DW1. DW2 and DW3 allege to have been acquainted with a documentation of sale reflecting the name of the Appellant prior the death of the late Amin Kangamoto, as per the argument of the learned Counsel for Appellants that DW2 and DW3 were asked by the late Amin Mahitu Kangamoto to trace the title and they recovered exhibit KU1. In his testimony, 24 DW1 asserted that his brother (anonymity) handed over a suit house to the Appellant in 2010, it is when the Appellant evicted all his sibling whom DW1 alleged to have been living together in the suit house since the beginning. Surprisingly, a residential licence exhibit KU3 was procured into the Appellants sole name on 19/11/2007. Meaning that the Appellant procured exhibit KU3 into his personal name even prior the purported handing over in 2010. The learned Counsel for Appellant stressed that the house belong to the Appellant by virtue of his names having been recorded into exhibit KU1. However, DW2 and DW3 said nothing if the late Amin Mahitu Kangamoto told them that a house belongs exclusively to the Appellant. Therefore, it is a wrong idea to say a house belong to the Appellant without clear declaration by the late Amin Mahitu Kangamoto to that effects. Importantly, the names of the Appellant differs materially with the names appearing in exhibit Kill and the affidavit of names part of exhibit KU5 was not satisfactory, as did not explain as at what point the Appellant was named Maiezini K. Marunda. During cross examination, DW1 (Appellant) stated that he don't. have any identity card or any document which introduce him by the name of Marunde. Even if is assumed that the Appellant is also referred as Malizeni K. Marunda. A glaring question will still be why the names in exhibit KU3 differs with the names in exhibit KU1. Above all, the Appellant asserted that the official 25 handing over of the suit house was done in 2010, now why he procured exhibit KU1 into his personal names in 2007? At any rate the Appellant cannot be said to have successfully defended ownership of a title exhibit KU1. This adumbration takes into board grounds number four and five. All are ruled to be unmeritorious. Regarding ground number two, as I have ruled above, the available evidence proved that it is the late Amin Mahitu Kangamoto who purchased the suit house from Shomari Salum Mvugalo. Witness to the transaction of sale, to wit PW2 and PW3 explained to that effect. There is no testimony indicating that at any time either during purchase or thereafter the late Amin Mahitu Kangamoto gifted it to someone or said that he purchased on behalf of someone. Even DW2 and DW3 who were summoned by the Appellant did not say if they were told by the late Amin Mahitu Kangamoto that a suit house belongs to someone else other than him (Amin Mahitu Kangamoto). What has been submitted by the learned Counsel for Appellant, is to the effects that DW2 and DW3 were given a task by the late Amin Mahitu Kangamoto to trace documentation for ownership of a house. But their testimony falls short for not saying the aftermath or any declaration made by the deceased prior his demise as to the question of ownership of a house. Regarding the names appearing in exhibit KU1,I have adumbrated and ruled in ground number one above. 26 In reference to the second limb of the argument that the Tribunal granted reliefs which were not pleaded by the Respondent in the application. In the application specifically paragraph 5(a)(i), the Respondent pleaded that she is an administratrix of the estate of the late Amin Mahitu Kangamoto. Therefore, I am not seeing any serious concern here. A mere fact that in the relief the Respondent claimed to be declared the lawful owner of the suit land, cannot be taken as a serious arguable point that the Tribunal by declaring that the suit house form part of the estate of the late Amin Mahitu Kangamoto, amounted to granting reliefs which were not pleaded. To my view, what the learned Chairperson did was to put records clear in order to avoid ambiguity in the verdict. Ground number three, the learned Chairperson is faulted for nothing. In the closing arguments (final submission) which were filed at the Tribunal by the learned Counsel for Appellant (Respondent at the Tribunal), at page 3 last paragraph at the extreme bottom, the learned Counsel submitted, I quote, 'Your Honour, while the respondent in this suit has proved to the satisfaction that the land in dispute it has been registered in the name of the respondent since the year2007by having a residential licence which was tendered and received by this honorable tribunaland there is no any evidence which has been adduced by the applicant to the effect that the residential licence has been obtained by fraud...z 27 Therefore, the issue of fraud and how exhibit KU3 was obtained, was introduced by the Appellant's Counsel at the Tribunal vide his final arguments. Again, during cross examination, DW1 (Appellant) was asked by the learned Counsel for Respondent along members of the Tribunal as to when and how he obtained a residential licence exhibit KU3. Meaning that the argument as to how it was obtained, whether it was obtained legally, lawful or by fraud was left to the Tribunal to decide. In that way the question of fraud and how it was obtained was born from the question put on cross examination to the Appellant and specifically mentioned in the arguments of the Appellant. It is to be noted that when the Appellant was asked by the member of the Tribunal as to how he obtained the residential licence, DW1 answered that he did not submit any document to the issuing authority neither submitted a sale agreement exhibit KU3 and that even the affidavit of names part of exhibit KU5 was not submitted to the issuing authority. For that matter, the learned Chairperson was justified to rule that the residential licence exhibit KU1 was obtained by fraud or illegally. Ground number six, regarding non joinder of the Hala Municipal Council or the Attorney General. The general rule is that no suit shall be defeated by reason of non-joinder of parties, unless non joinder is in respect of a necessary party whose absence will affect determination of the real question in dispute. Herein 28 as submitted by the Respondent, that the Appellant did not demonstrate how the absence of these entities prejudiced his case or led to an unfair decision. As alluded by the Respondent, there is no indication that absence of the said parties hindered the determination of ownership, as neither of the said party was central to the core issue of the case. In that regard, al! grounds of appeal are unmerited. Therefore, the decision of the Tribunal is upheld. The appeal is dismissed. No order for costs, because litigants are siblings. 29