MARIA MALULU Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA LAND APPEAL NO. 22001 OF 2024 (Arising from the judgment of Land Application No. 28/2023 in the District Land and Housing Tribunal of Mkalama at Mkalama) MARIA LULU....................................................................................APPELLANT AND GWAIDIMI WEMA.........................................................................RESPONDENT JUDGEMENT Date of last order: 10th December, 2024 Date of Judgement: 21th February, 2025 E.E. KAKOLAKI, J. This is an appeal preferred before this Court by the appellant herein one Maria Lulu, challenging judgment of the District Land and Housing Tribunal (DLHT) of Mkalama in Land Application No. 28 of 2023, which was decided in favor of the respondent, Gwaidimi Wema. The dispute between parties, centers on a piece of land of three (3) acres located in Msiasi village, Mwanga ward, Mkalama District, Singida Region in which the appellant, claimed ownership before the District Land and Housing Tribunal for Mkalama 1 (DLHT) asserting that she inherited it from her late husband, Wayda Gwangway, who passed away in 2005. In his defence the respondent deposed that, the appellant unlawfully occupied the disputed land during the 2022-2023 farming season, the piece of land which he claimed to have bequeathed from his late grandmother orally in 1992 and in the presence of his uncle (appellant’s husband) and two aunts one of which testified as DW3. Briefly during the trial at the DLHT, it was appellant’s evidence (PW1) that her husband had inherited the disputed land from his father which is part of 4½ acres she owns now and that she had been using the same land since when she married him before 1974. Her evidence was corroborated by PW2, who supported her claim that the disputed land belonged to her and her late husband. He also mentioned that, in 2019, he was involved in setting boundaries for the said land as per the instructions from the Land Tribunal in Kiomboi, marking the northern side/part with sisal and other markers. On the other hand, the respondent (DW1) resisted appellant’s claims arguing that, he owned the disputed land through inheritance from his grandmother in 1992 the transfer of land having been made orally in the presence of his uncle (appellant’s late husband) and two aunts and that, had been in its use continuously since then until 2023 when the appellant allegedly invaded it 2 without justification. To corroborate his defence was DW2, Petro Tuay Waidaa, who is the step son to the appellant and brother to the respondent as his father had three (3) wives including the appellant. It was in her testimony that, the disputed land was given to the respondent by their grandmother through inheritance and that, he has been in its use for 32 years now since 1992. He also mentioned the disputed that arose in 2013 when appellant's cattle entered into respondent's land where he mediated them. Further in corroboration of his defence was DW3, Paulina Gwangway and respondent’s aunt, who averred that, the land belonged to the respondent as was given to him by the grandmother before he cleared and utilised it continuously and that, she witnessed the handing over of the land. After considering both parties’ evidence and guided by the principle of law as pronounced in Hemed Said Vs. Mohamed Mbilu (1984) TLR 113, that the person whose evidence is heavier than of the other is the one who must win, the trial tribunal concluded that, the appellant herein had failed to substantiate her claims with sufficient proof reasoning that, her testimony together with that of her witness (PW2) unconvincingly and unreliably established the exact size and boundaries of the disputed land. Consequently, proceeded to rule in favor of the respondent herein whom it 3 appreciated and found him to have presented more consistent and credible evidence on his ownership of the disputed land that was pegged inheritance and long-term use. Dissatisfied with the trial tribunal's decision, the appellant is now before this Court seeking to overturn the said decision and in return be declared as lawful owner of the disputed land. In that endevour she has raised seven grounds of appeal which are coached in the following terms: 1. That, the trial tribunal erred in law and facts to pass judgement in favour of the Respondent predicated on defective oral will of donor alleged to be witnessed by less than four (4) witnesses as legally dictated for oral will." 2. That, the trial tribunal erred in law and facts to pass judgement in favour of the Respondent based on testimonies of witnesses relative of the Respondent (SU2) and (SU3) without their testimonies to have been corroborated by non-relative witness. 3. That, the trial tribunal erred in law and facts to pass judgement in favour of the Respondent without conducting locus in quo to ascertain the testimonies of the Respondent witnesses with that of the Suitland neighbors. 4 4. That, the trial tribunal erred in law and facts to pass judgement in favour of the Respondent predicated on hearsay testimony of the Respondent's side to wit SU2 with respect of alleged Respondent's allocation of the suit land by grandmother. 5. That, the trial tribunal erred in law and facts to pass judgement in favour of the Respondent predicated on inconsistent and differed testimony of the Respondent's witnesses to wit SU1 and SU2. 6. That, the trial tribunal erred in law and facts depriving the appellant right of ownership of the suit land based on different size of the claimed land size without report of land surveyor expert to prove wrong the stated size estimates. 7. That, the trial tribunal erred in law and facts to pass judgement in favour of the Respondent based on a presumption of the Respondent's long period use based on another presumption of existence of oral will. At hearing of the appeal both parties appeared unrepresented and were heard in written form and fortunately, they all complied with the filing schedule of submission save for the appellant who indicated to the Court her willingness not to file a rejoinder submission. In this judgment I am intending to address the grounds of appeal in sequence preferred by the parties. 5 To start with, is the first and second grounds of appeal which were argued together by the appellant that, the trial tribunal erred in law and facts to pass the judgment in favor of the Respondent basing on oral will which was never witnessed by four witnesses, two of whom she said must be relatives of the testator as per the Customary Law (Declaration) No. 4 Order of 1963 (GN. No. 436 of 1963) since its authenticity was established by three witnesses only. According to her the said oral will which fell short of that mandatory legal requirement was rendered invalid, the effect of which is to reduce the entire judgment to nullity. On the third, fourth, and fifth grounds, she contended that the trial tribunal erred to base its judgment on contradictory evidence from the respondent herself and his witnesses. She argued that, DW1’s evidence was self- contradictory on how she acquired the disputed land as on one hand she claimed to have been granted the same while on the other hand deposed to have bequeathed from her late grandmother. She further pointed out that, even the testimonies of DW1 and DW2 carried contradictions for not specifying whether the respondent's grandmother bequeathed it to her by oral will as claimed by DW1 or granted it to her as testified by DW2. Hence the same remain to be a hearsay. According to her, these contradictions 6 undermined credibility of defence witnesses and value of their evidence thus untrustworthy in which case the trial tribunal ought not to bank on them in its judgment. Finally, on the sixth and seventh grounds, the appellant faulted the trial tribunal to deprive her of the right of ownership of the suit land on the ground that her evidence centered on different size of estimates of the claimed land while there was no contrary evidence such as report from a land surveyor (expert) to prove otherwise that the stated size estimate was wrong. She had it that, her witness clearly elaborated that the size of the disputed land was 3 hectares out of the 4.5 hectares she owned, as reflected in the trial tribunal proceedings. She added also that, the trial tribunal wrongly passed the judgment in favor of the respondent based on presumptions of long usage of land and existence of an oral will as the appellant proved to the tribunal of being in use of the said suit land for more than 50 years since 1974, contradicting the testimony of DW1, who claimed to have been granted the same land in 1992, which is only 32 years prior to hers. According to her, the trial tribunal's decision based on assumptions as it did not consider the long-term occupation and development of the suit land by the appellant and her family. In view of the above submission she 7 said, the trial tribunal's judgment was flawed due to these errors and requested the appeal to be allowed with costs. In opposition the respondent presented her counter-argument that directly challenged the appellant's claims. In response to the first and second grounds of appeal the respondent argued that, the Appellant is out of context in raising issues about the validity of the oral will at this stage of the appeal reasoning she should have challenged its validity in 1992 when the same was made thus the ground is overtaken by events as the respondent made reference on the will to prove ownership of the disputed land when rendered clean and cogent evidence unlike mere words by the appellant. To fortify her argument that, land ownership is not established by mere plain words but by clean and cogent evidence that specifically points to the cause of acquisition and occupation of the property under contest, the Court was referred to the case of Issa Ahmed Vs. Mussa Abdul Mohamed, Misc. Land Case No. 72 of 2010 (HC- unreported). On the third, fourth, and fifth grounds, the respondent countered that there was no contradictory evidence on the respondent's side, rather genuine and cogent evidence hence appellant's claim on contradictory evidence by the respondent was a total misconception and misapprehension of evidence as 8 the trial tribunal correctly ruled out that, the respondent acquired the disputed land in 1992 from his grandmother through inheritance. According to his this testimony was supported by credible evidence of DW2 and DW3, that did not contain contradictions as claimed by the appellant. He thus urged the Court to dismiss these grounds of appeal. In response to the sixth ground on measurement of disputed land, the respondent stated that the tribunal's judgment clearly indicated that the disputed land measured 3 acres, thus there was no dispute between the parties regarding this measurement. Regarding the seventh ground, he argued that, the appellant's claim of long-term use of the land since 1974 was illogical and lacked a legal basis as in her testimony the appellant (PW1) deposed that she got married to her late husband around 1974, but did not state on how the disputed land was acquired by her late husband nor did she claim to have been in its use since then. The respondent maintained that he acquired the land in 1992 from his grandmother through inheritance and had been in its use since then without interruption until 2023 when the appellant claimed it. He dismissed the appellant's references to adverse possession cases, stating that they were not applicable to this matter as what matters is that the appellant is time barred to bring suit over the land 9 he bequeathed since 1992 as twelve (12) years have passed now. The Court was thus called to dismiss the appeal for want of merit. Having carefully considered the grounds of appeal, and the rival submissions of both parties in the light of the evidence on record. To start with the first and second grounds of appeal, appellant’s grievance is that, the trial tribunal acted wrongly to rely on oral will to base its decision despite of not being witnessed by four witnesses, as two of them ought to be close relatives and the other two none members of the clan as required by the law. The respondent is of the contrary view in that, the appellant ought to have challenged the will if so wished when it was made in 1992 hence the complaint is overtaken by event as its reference by the respondent aimed at proving ownership of the disputed land which he proved to have inherited from his grandmother through oral will. I entirely agree with the respondent that, it is improper for the appellant to raise before this Court the issue of legality of the will related to distribution of the estate of the respondent’s grandmother as in any case she is not claiming her ownership from the same will. Even if it was so I would still hold this Court is not a proper forum to address the issue as to whether the estate of the respondent’s grandmother was fairly distributed to her heirs since that is mandate is in the domain of 10 the Probate and Administration of Estate Court. My findings finds refuge in the settled principle of the law that, where there is dispute over ownership of land based on inheritance only Probate and Administration Court is seized with jurisdiction to decide on whether the suit land is the property of the deceased or any other person as it was held in the case of Mgeni Seifu Vs. Mohamed Yahaya Khalfani, Civil Appeal No. 1 of 2009 (CAT - unreported) where the Court observed thus: “As we have said earlier, where there is dispute over the estate of the deceased, only the probate and administration court seized of the matter can decide on the ownership…” Since this is not a Probate and or Administration of Estate Court, I find the two grounds of appeal lacking in merit and dismiss the same as if she wanted to challenge legality of the will that allegedly bequeathed the disputed land to the respondent, the appellant should have approached the Probate and or Administration of Estate Court. Next for determination is the 3rd, 4th and 5th grounds of appeal on the complaint by the appellant that, there was contradictions in the evidence of DW1 and DW2 used by the trial tribunal to base its decision, in which the respondent gave contrary view submitting that, there was none apart from 11 clean and cogent evidence establishing how he acquired ownership over the disputed land. Having thoroughly revisited the evidence of DW1 and DW2 in a bid to investigate appellant’s complaint that is full of contradiction. I find the same to be unfounded and baseless as DW1 never stated in his evidence that she acquired the disputed land by way of grant instead said was by way of inheritance through oral will which was witnessed by appellant’s late husband and two aunts one on which testified as DW3 to corroborate his account that after being given that land he cleared it and continued to use the same. And that, the appellant decided to claim the said land after demise of her husband despite the fact the respondent was born and raised in that land before he bequeathed it from his grandmother. Respondent’s account was further corroborated by DW2 who also confirmed that the disputed land was given to the respondent by his grandmother who was also DW2’s grandmother and appellant’s mother in-law and that, the respondent has been in uninterrupted use of that land for more than 32 years after clearing it. As alluded to above since all three defence witnessed gave similar account on how the respondent acquired the said disputed land and given the fact that, the appellant did not state as to how her late husband acquired the said land apart from claiming that she found him therein when married to 12 him, like the trial tribunal this Court is satisfied that, there is no contradiction in the evidence of DW1 and DW2 and that, regarding ownership of the disputed land respondent’s evidence is more credible than that of the appellant hence no good ground to fault the tribunal’s findings. The above finding is fortified in the principle well spelt in the case of Bakari Mhando Swanga Vs. Mzee Mohamedi Bakari Shelukindo and 3 Others, Civil Appeal No. 389 of 2019, (CAT-unreported) that, the standard of proof in civil suit is on the balance of probabilities simply meaning that, the Court will sustain such evidence which is more credible than the other on a particular fact to be proved. For that matter I dismiss appellant’s third, fourth and fifth grounds of appeal. Lastly is the sixth and seventh grounds of appeal in which the trial tribunal is faulted by the appellant for deciding in favour of the respondent on the ground that, the appellant failed to establish the size of the disputed land and for basing on the presumption of long use of the land. Having investigated this ground and revisited the impugned judgment as well as the pleadings, I find no merit on the appellant’s complaint. It is true in paragraphs 3, 4, 6(a)(i) and (iii) of the application the appellant referred the size of the disputed land to be 4½ acres, while throughout her evidence 13 claimed the disputed land to be three (3) acres. It is settled law that, parties are bound by their pleadings the rationale behind being parties to adduce evidence proving what is claimed or deposed in the pleadings and not to take by surprise the opposite party, otherwise amendment of the pleadings must be sought first to accommodate the evidence not pleaded or deposed. See the case of Charles Richard Kombe t/a Building Vs. Evarani Mtungi and 2 Others, Civil Appeal No. 38 of 2012 (CAT-unreported) where the Court had this to say: ’’It is cardinal principle of pleadings that the parties to the suit should always adhere to what is contained in their pleadings unless an amendment is permitted by the Court. The rationale behind this proposition is to bring the parties to an issue and not to take the other party by surprise. Since no amendment of pleadings was sought and granted the defence ought not to have been accorded any weight.’’ Applying the above principle to the facts of this case, whether the appellant pleaded and claimed the size of disputed land to be 4½ acres and in her testimony testified to be three (3) acres without asking for amendment of her pleadings, I find the trial tribunal was correct in its finding when held that, she failed even to establish the size of the disputed land. As to the 14 application of presumption of long usage of land in determining ownership of land, I do not find anything wrong in it as the principle which I need not even cite any authority in support of is that, where the party has been in long uninterrupted use of land for more than 12 years the other party is estopped to raise any claim over the same land. In view of the above stated, I dismiss the two grounds of appeal by the appellant. All said and done this appeal is unmerited and the same is hereby dismissed in its entirety. As parties are members of the same family or clan to maintain peace and harmony within, I order each one to bear own costs. It is so ordered. Dated at Dodoma this 21st day of February, 2025. E. E. KAKOLAKI JUGDE 21/02/2025. Court: The Judgment has been delivered at Dodoma today on 21st day of February, 2025, in the presence of both the Appellant and Respondent in person and Ms. Veradina Matikila, Court clerk. Right of appeal explained. 15 E. E. KAKOLAKI JUGDE 21/02/2025. 16