Mgore Kasara

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA LAND APPEAL No. 000024303 REFERENCE NO. 202409301000024303 (Arising from the decision of the District fend and Housing Tribunal for Tarime at Tarime in Land Application No. 30 of2022) BETWEEN MGORE KASARA......... ................. .............................................. 1st APPELLANT CHARLES WAMBURA................................................................. 2nd APPELLANT VERSUS LEOKADIA MEJA.......................................................................... RESPONDENT JUDGMENT March & f” April, 2024 M. L, KOMBA, J.; This appeal originates from the decision of the District Land and Housing Tribunal for Tarime at Tarime (the DLHT) in Land Application No. 30 of 2022 where Chairperson considered evidence adduced by both sides and find respondent was lawful owner of disputed land found in Komuge village with the measurement of 70 by 70 footsteps boarded Mgere Kasaka, Eneriko Edward Masatu, Paulo Magasha and Jabu Mkami Nyanda from East, West, South and North respectively. Page 1 of 10 As gathered form proceedings, respondent and her husband (who is not part to this case) were give land by village Government in 1974 and they stayed in their land while owning a mud house which was dilapidated and fall, the area has also fruit trees. The respondent did not manage to rebuild another house due to conflict with the second appellant. Appellants resist the award to respondent and have filed eight (8) grounds of appeal; 1. That, the learned Honorable chairperson erred In law for delivered expert judgment against the 1st respondent in neither die notice for hearing expert against the 1st appellant nor further notice for deliverance of the expertjudgment against the 1st respondent 2. That, the learned trial chairperson erred in law and fact for failure to determine that the respondent have no locus stand to sue in that land application as she is not administratix estate of her husband Juvinaiis Edward. 3. That, trial tribunal erred in law and facts for denied to visit locus in quo, white there is a strong reasons which accelerate the justification for visiting locus in quo, as there is contradiction evidence from parties which needjustification through visiting locus in quo. 4. That, the teamed trial chairman erred in law and facts for denied to put into consideration that, the evidence of the appellants and their witnesses who have strong evidence building the permanent building over the land in dispute, for 30 years. Page 2 of 10 5. That, the trial chairman erred in law and in facts for denied to put into consideration the evidence of the DW2 without assigned any reasons of disregard its evidence. 6. That, the learned Honorable chairman erred In law and facts when he based his decision on the respondent's witness allegation that he was the overseer of die disputed land without any grounded evidence of his given authority over die property in dispute. 7. That, the teamed Honorable chairman erred in law and in fact when he did not take into consideration on the testimony of the defence witnesses who gave their testimony on oath. 8. That, the learned Honorable chairman erred in law and in fact for holding the respondent the lawful owner of the disputed land on the light evidence given by the respondent. When the appeal was placed before me for hearing, appellants was represented by Mr. Emmanuel Gervas, Advocate while the respondent stood solo without representation. When given the floor, counsel for the appellants submitted that the tribunal errored to entertaining the matter without giving notice of hearing neither notice on judgment to the 1st appellant contrary to law. He went on submitting for the second ground that respondent had no locus to file because she was not administrator of the estate of his late husband. Referring to pleadings at paragraph 6(a) respondent informed the Tribunal Page 3 of 10 that they owned the disputed land together with her husband; However, she insisted that the 1st appellant requested her husband of the respondent for the area to make her home and was allowed. He went on lamenting that after the death of respondent husband, respondent take the whole land contrary to the wish of the husband. Basing on that information, counsel insisted that respondent had no locus because the land was owned by her husband. In Khaji Abubakar Athman vs Daudu Ndyakugile T/A DC Alminium and Other, Civil Appeal No. 86 of 2018 decided by this court (Mwanza Sub registry) where judges insisted that where husband and wife own property jointly there must be administrator to claim property and in Mary Luis Elikana Mkono vs Majembe Wasigana Nyerere, Land Case No. 23 of 2023 it was decided that where there is interest of deceased there must be administrator to manage estate of the diseased. On the 3rd ground he faulted the DLHT for not visiting the disputed land regardless that there are contradictions about the size and boundaries from both sides but tribunal did not visit the locus. Though he noted that visiting locus in quo is an option, he insisted that in circumstances of this case where there is contradiction visiting was necessary. He prayed this court to find visiting locus in quo was important and the ground has merit. Page 4 of 10 Mr. Gervas combined the rest of grounds 4th, 5th, 6th, 7th and 8th which was about the evidence and submitted that respondent had two witnesses whose testimony prove that the land was abandoned by respondent and 1st appellant make a home in the land but the testimony of respondent was not proved to the balance of probability. Respondent handled the land to PW2 as overseer and that PW2 saw appellants building housed but he did nothing. On the other side DW1 (Charles) informed the tribunal how appellants got the land the testimony which was collaborated by DW2 who said the land is 140 by 140 footstep. He complained that the Tribunal did not consider the size of disputed land and prayed the appeal to be found with merit and declare that appellants are lawful owners. He then pressed for costs. Respondent resisted the appeal. She acknowledges that the tribunal did not visit that locus in quo and went on informed this court that it was the 2nd appellant who did not corporate, he refused to facilitate the tribunal to visit the land because was in fear they may know the truth. She went on submitting that the 1st appellant asked for a land and was given 70x70 footsteps and respondent remained with 70 x 70 footsteps which is claimed by the 2nd appellant who is son of the 1st appellant. She lamented that 2nd Page 5 of10 appellant wants all the land to be his land but is impossible as respondent will remain without piece of land. Historically, she said village Authority gave them (respondent and her husband) 140 x 140 footsteps during operation vijiji and that she was the one who gave 1st appellant piece land which 70 x 70 footsteps where she built a house, a son of 1st appellant who is the 2nd appellant claiming for the remaining 70 x 70 footsteps which belongs to respondent. She insisted to be the lawful owner as the tribunal decided and prayed the decision the DLHT to be uphold. During rejoinder Counsel for appellants insisted that ward tribunal failed to visit the locus in quo and that is fatal. My duty is to determine the appeal before me by analysing grounds of appeal as filed by applicants. The first ground about participation of the 1st appellant in the case that she was not heard and there is no ex- parte order, this being the first appeal, this court has powers to reevaluate evidence make its own findings. See Registered Trustees of Joy in The Harvest vs Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139 (28 April 2021). Page 6 of 10 I read the record and find 1st appellant was aware of the case as she filed reply to application on 21/06/2022 and she signed. In my perusal I noted that, the Land form was amended on 13/02/2021 and the 1st appellant signed again her reply to amended land form on 27/3/2023 explaining how she was given a piece of land by respondent husband. This court is satisfied that 1st appellant was aware of the case as she replied to land application filed to the DLHT. The position of this court is that the matter was not heard ex-parte as 1st appellant was aware of the case. About the position of the respondent in this matter, Counsel for appellant claimed that respondent was a wife and his husband passed away, for her to claim the land there must be an administrator to manage the estate. From the land form, respondent explained the land was given to the two (respondent and her husband) the two lived in the land till when respondents' husband died. Respondent went to treatment left the land under care of PW2 and when she return, she found appellants trespassed to her land there was no house but 2nd appellant resisted the respondent to build a house claiming that the land belongs to appellants. I find the land was co-owned by respondent and her husband and; respondent is claiming for her land in which she had a home. Respondent Page 7 of 10 was not claiming for her husband land as a heir so that administration of the estate to come into play, she is claiming her land. The cited case of Khaji Abubakar Athman vs Daudu Ndyakugile T/A DC Alminium and Other (supra) is not about joint ownership of the property by married couple, rather it is about entertaining preliminary Objection before determining the merit of the case. The case of Mary Luis Elikana Mkono vs Majembe Wasigana Nyerere, (supra) is distinguishable as the child of the deceased had interest in what was identified as deceased property which was bought by deceased. In the case at hand, respondent was allocated the said land during operation vijijiand I find the second ground is of less merit. About visiting locus in quo, as noted by counsel for appellants that is option, visiting in necessary only when tribunal or court find contradictions which may be cleared at the scene. However, record show that the DLHT planned to visit the locus in quo on 16/04/2024 after submission by both parties that they don't object the visit but appellants did not corporate and on 02/07/2024 the DLHT vacated its order. Gathered from the land form, respondent claimed 70 by 70 footstep land and she maintained that size of land even in her testimony that it was remaining party after she offered Page 8 of 10 half of the land to the 1st appellant. Appellants claimed that they were given 140 by 140 footsteps piece of land by respondent husband. There is no contradiction on size of the land as respondent is claiming her half which is 70 by 70 footstep after she offered another half to appellants, there is no doubt that appellants were welcomed at that village by respondent and her husband, and basing on testimony in record, I find the 3rd ground to have no merit. The rest of the ground is on analysis of the evidence. This a civil case and the proof is on the balance of probability as provided under section 3(2) (b) of the Evidence Act, Cap 6 R.E 2022. At the DLHT respondent explained she owned the land and leave under care of PW2 when she went for treatment. PW2 know respondent as her neighbor since 1974 as picked form page 20 of the DLHT proceedings. PW2 testified that respondent lived in the disputed land till 1999 when she welcomed the 1st appellant. On the other hand, upon perusal I noted 2nd appellant testified that her mother who is 1st appellant was given the land way back 1993 and were living in the area they were given. When the matter was in trial, record show that the 1st appellant was alive as recorded in reply to application but 2nd appellant decided not to call 1st appellant who is his mother to testify. It is Page 9 of 10 in record that 2nd appellant on 24/07/2022 prayed to prosecute the case alone while representing her mother who is the 1st appellant. 1st appellant is key witness in this case, I call her a key witness as she know when and the size of the land given to her by respondent. DW2 was married and found 2nd appellant and her mother in the land, her testimony is hearsay the only person with knowledge on the area is respondent and the 1st appellant, whom this court draw adverse inference that if she could be paraded as witness, she could tell the truth. From the testimony, I find the respondent evidence was heavier than that of the appellants. All being done I find the appeal with less merit and I hereby dismiss it. No order to costs. DATED at MUSOMA this 03rd Day of April, 2025. K M. L. KOMBA JUDGE Page 10 of 10