MICHAEL KALEGI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA LAND APPEAL NO. 202407151000016904 MICHAEL KALEGI MANYANGU GEORGE ( An administrator of the Estates of the Late EX. B4896 GEORGE MANYANGU KALEGI ) ………………...APPELLANT VERSUS SHILIKALE YUMA .........................................................................RESPONDENT (Originating from Maswa Distrrict Land and Housing Tribunal at Maswa) (Ntutumengwa, Chairperson) Dated the 18th June, 2024 in Land Application No.51 of 2020 --------------------- JUDGMENT 30th October & 29th November 2024 F.H. MAHIMBALI, J The appellant herein had instituted land application before the trial tribunal for the claim of parcel of land measuring 28 acres. It was claimed that his late father had in possession of the disputed land for long time before his demise. Further in 1999 the appellant allocated to the respondent the suit long for him to use it for a while. In 2018 the appellant requested the respondent to return the suit land to enable the appellant 1 to bequeath it to legal heirs of the deceased. Surprisingly the respondent denied and claimed it to be his. Being the case, he referred the matter before trial tribunal, and after a thorough finding, the trial tribunal entered its verdict by dismissing the application on grounds that the appellant failed to prove the ownership of the suit land by deceased. The appellant is not amused with the decision of the trial tribunal, thus the basis of this appeal before this Court armed with four grounds of appeal namely; 1. That the learned trial chairman erred in law and fact by holding that the appellant failed to prove his case while the appellant proved his case within the standard required to prove a civil case; 2. That the learned trial chairman erred in law and in facts by holding that the appellant failed to establish the source of ownership of the disputed land by his late father while appellant testified on how the disputed land came into his late father’s ownership; 3. That the learned trial chairman erred in law and in facts by failure to pronounce the decree in favour of the appellant with no reasons as to why the unchallenged evidence of the appellant is not to be believed; and 2 4. That the learned trial chairman erred in law and facts by failure to pronounce the decree in favour of the appellant basing on wrongful evaluation of evidence adduced in trial. During hearing of this appeal, the appellant enjoyed legal service of Mr. Kwikima learned advocate while Mr. Dudu also learned advocate appeared on behalf of the respondent. Arguing for the appeal Mr. Kwikima adopted his grounds of appeal and prayed be part of his submission. Submitting in the first ground of appeal, Mr. Kwikima elaborated that the concern is, the appellant’s case at the trial court was well proved in the balance of probability as per law. He banked his argument with reference to the case of Joachim Ndelembi vs. Maulid M. Mshindo and 2 Others, Civil Appeal No. 106 of 2020, CAT TZ 2023 - 158 TANZLII at page 10. He also added that as per impugned decision at page 5, the trial chairperson ruled that the appellant failed to establish how his father had a good title over the said Land and that a proof of a case cannot be on a mere empty word. To him the chairperson’s findings, is the misapprehension of facts and evidence as adduced, he said. In a further elaboration, he submitted that in the cited case of Joachim Ndelembi (supra at page 7) is clear that such an evidence must 3 necessarily be in document for such old transactions. Thus, what the appellant had established before the trial tribunal sufficed the requirement of proof of ownership by his father as that was well covered. Had the trial chairperson directed his mind well in line with the cited case, he would have reached a different verdict. Reading the proceedings at page 3, it is clear that there was a misapprehension of the material facts, argued Mr. Kwikima. Further he stated that, it is trite law that every witness is entitled to credence. He stressed this by refereeing the case of Islem Shebi Isl‘em V. Republic, Criminal Appeal No. 187 of 2020 (2023 TZCA) 17625 (18 Sept 2023) TANZLII at page 19, where the CAT insisted on the credence of every witness. That was also cemented in the case of Jabir Muhumnbi. Thus, with the matter in hand, the trial chairman erred in law. This covers other grounds no. 2 and 3. On the 4the ground of appeal, Mr.Kwikima stated that their concern is on the failure by the trial tribunal to properly evaluate the evidence in record so as to reach a proper verdict. Mr. Kwikima pleased that this being the first appellate court is directly concerned to intervene in re-evaluating the trial court’s findings so as to reach its own findings as deemed right as per law. He bolstered his argument with reference to the case 4 of Luther Symphorian Nelson Vs AG and Another [2000] TLR 419 at page 444 where the CAT categorically held that the learned trial judge completely ignored the portion of material evidence, thus intervened by evaluating it. Finally prayed for the appeal to be allowed. On his part, Mr. Dudu on behalf of the respondent resisted the appeal. He stated that on the complaint that the trial chairman erred in making a finding that the suit was not established on the required standard, that is not true. Firstly, he associated with the learned advocate’s submission on the standard of proof as provided under section 110 and 112 of the TEA on the extent of proof. However, he argued that in the case of land ownership, it is now the developed principle that for proof of ownership, there must be strict proof. He referred this Court to the case of Elizabeth Jeremiah Lorenzo V. Emilian Aporonal Nogole, Land Appeal No. 36 of 2023, HC at Morogoro page 32 to 33 while also making reference of other cases. Mr. Dudu further alleged that in the current case, the appellant ought to have established all that stated in his plaint. There is a lot desired by him, which was left unattended. He exemplified that looking at his plaint, he alleged having rented his farm to the respondent but in his evidence, none is established. He just called his witness who asserted something 5 else completely departing from the pleading. Since parties are bound by their own pleadings, they should not be departing from it as cheap as done. He made reference to this court to the case of Martin Fredrick Rajabu vs. Ilemela Municipal Council and Another, Civil Appeal No. 197 of 2019 where it was insisted on the abiding of the pleading and not asserting a new case. In the current case what was pleaded and adduced in evidence is neither on balance nor on its strict sense, argued Mr. Dudu. On the issues to be determined by the trial tribunal, one was whether the suit property is part of the estate of the late George Manyangu Kalegi. It is absurd, that was not done. The deceased died long ago but the administration of his estate was recently filed after almost the expiry period of 12 years. The appellant cannot after the demise of his father more than 20 years ago, claim ownership of the said property under the umbrella of his estate. That is not the position of the law, commented Mr. Dudu. That notwithstanding, reading the evidence of the appellant at page 4 there is evidence of proof of him being administrator of the estate of the late George Manyangu Kalegi way back 1997. It is now more than 27 years. Thus, even locus standi of the appellant is legally questionable. He therefore insisted that, ownership of the said land has not been established as per law as to his opinion. 6 With the 3rd and 4th grounds of appeal, Mr. Dudu fortified that why unchallenged evidence was not believed and that the there was no proper evaluation of the evidence in record, he was further of the considered view that in traversing the trial tribunal’s records, this court will see itself even if it was skipped, but the verdict will stand on it. Let this Court revisit the trial tribunal’s records and reach a proper finding insisted Mr. Dudu. He referred the case of Leopold Mtembei V. Principal Ass. Registrar of Land Minis try of land, Civil Appeal No. 57 of 2017 CAT to that effect. The settled principles in the cited cases above in which all favor in their position is this, with land ownership, the degree of proof must even be higher than a normal standard. In consideration of the fact that, the appellant has two versions of stories under oath on the ownership of the said suit land: In the former case and in the current case. Weighing the two versions of evidence, gives uncertainty of his credence. Though it is unchallenged evidence but yet it is unbelievable on his long administration of the said alleged estate. In his conclusion, Mr. Dudu was of the view that this case was not established and remains so to date. As he has no locus standi and that in the absence of strict proof of his ownership, this appeal is impotent. 7 Mr. Kwikima in resting his submission, maintained his position in the submission in chief. He however, criticized that if the CAT’s precedent can be watered down by High Court’s stand in the case of Lorenzi. Thus, Malata’s position is not cocking in the jurisdiction it being of the lower court to CAT. It is his considered view, that Ndelembi‘s position in the principle of stare decisions is superior and binding. On the variation of pleadings and evidence, Mr. Kwikima submitted that there is no witness who is perfect in all. The respondent either being a tenant or invitee to the land does not change the legal status. On the legal status of the appellant as administrator of the estate, Mr. Kwikima resisted such argument, and alluded that in the case of Natalia Ngonda Shilago administrator of he estate of the late Ngonda Shilago Lushi V. Maliki Mashona Bugota and 2 others, land Appeal no. 36 of 2023, HC Shy such argument by the respondent was denied. Therefore, the issue of locus standi of the appellant for overstay of the administration cannot be raised now as it was not an issue at the trial tribunal. With the former case‘s proceedings whose proceedings have been nullified, it is strange that this court to make reliance of the nullified 8 proceedings. With the submission from the bar, this court should disregard it as it is not part of the case‘s evidence, discredited Mr. Kwikima. Having heard the rival submissions of both parties, I have to determine this appeal and the issue for deliberation is whether this appeal has been brought with sufficient cause. To the best of my understanding what is trickling the parties is proof of claims of ownership over the disputed suit land. According to the appellant, it is his late father who owned the suit land and who he derived his rights from clan being given also by his late parents. Thus, the respondent was only rented for temporary use by the appellant. Therefore, it is not known why he had turned hostile and claimed the suit land to be his. Worthily, the suit was heard exparte and his grievance is, the trial tribunal had not accorded much weight the evidence of the appellant. The appellant blames how possible the case which was heard exparte but its testimony is not believed despite of being unchallenged. I have gone through the trial tribunal’s records on all issues complained of. During the trial, PW1 stated that the suit land belongs to 9 his late father who was given by clan. He further testified that the respondent had only rented it in 1999. In 2018 when appointed as administrator of the estate of his late father, in course of his activities, he found the respondent claiming that the suit land belongs to him. PW2 testified that he knows the suit land as it belongs to the late George Manyangu a father of the appellant. The same was given to him by his father Called Noni. The late Manyangu used to cultivate the suit land. Therefore, the respondent trespassed over it. With the piece of evidence, it is questionable on how the suit land came into possession by the late Manyangu. There is no sufficient proof as how the suit land came into possession. The evidence by the appellant left gaps on the origin of the suit land and how its title passed to the late Manyangu. In Farah Mohamed vs Fatuma Abdallah [ 1992] TLR 205, the Court rationally ruled that proof of claims of land ought to be specifically proved its origin. Being the case, I associate myself with the decision in Lorenzi(supra) as cited to me by Mr. Dudu that, the claims of land ought to be strictly proved and not merely mentioned. 10 Similarly, I agree with all the precedents referred by both Counsels, on the sense that they insist on a strict proof of claims and credence of witnesses. In Festo Mawata versus Republic, Criminal Appeal No. 299 Of 2007 (Unreported) in which the Court of Appeal held; “A witness might appear to be perfectly honest but mistaken at the same time. On the other hand, it is a fact of life again that even lying witnesses are often impressive and or convincing” The general principle as far as credibility of a witness is concerned is that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing him. See; Goodluck Kyando vs.R (2006) TLR 363. According to Mathias Bundala vs. Republic, Criminal appeal No 62 of 2004 and Aloyce Maridadi Versus Republic, Criminal Appeal No.208 of 2016 (both unreported), good reasons for not believing a witness includes where the witness gives improbable or implausible evidence or where the evidence of the witnesses materially contradicts the evidence of another or of other witnesses In this case there is no suggestive evidence on proof of ownership of the suit land by the appellant. As to when the said land was allocated to his late father and when was it rented to the respondent and on what 11 terms, is not clear. The issue of date on the fact of ownership is very essential. In this case, there is no clear indication as who rented the said land to the respondent and when that renting of land was done. It is more words than evidence. Furthermore, none of the mentioned neighbors by the appellant came to testify as who was their neighbor to the said land. Further it is not detailed at what time the late Manyagu had been in possession of the said land, neither PW1 nor PW2 testified on this. Thus, it goes without saying that the claims of ownership over the suit land was not strictly proved, despite the facts that the matter was heard exparte and the evidence was unchallenged. My position is, not every unchallenged evidence deserves an award, others are incredible and irrelevant evidence to the fact in issue. What was supposed to be established was whether the respondent was a mere an invitee to the suit land and that the appellant was the title holder. None of the testimonies received, clearly established that. Therefore, though it was an exparte case, yet the appellant had still a legal burden to discharge his pivotal role of proving the case strictly that it is his. Throughout common law jurisdictions, ours inclusive, in civil matters like the one at hand, the burden of proof of any fact lies on a party who alleges the existence of 12 the fact. As for the laws of Tanzania, this is in terms of section 110 (1) and (2) of the Tanzanian Evidence Act, Cap 6 R.E 2019. Another requirement is that the burden of proof is that the burden of doing so must be discharged such that a certain standard is attained. That standard of proof in civil matters, is on the balance of probability, also called proof on the preponderance of probability, This standard which is provided for under section 3 (2) (b) of the Evidence Act, is attained by the plaintiff, where the court, after taking into consideration of the plaintiff's evidence, believes that the fact alleged done, is indeed exist, or that its existence is so probable that a prudent man would act on a supposition that the fact actually, existed. See the case of Ernest Sebastian Mbele v. Sebastian Sebastian Mbele and Others [2021] TZCA168 on that good respect. See also Jambo Foods Products Co. Limited vs Hassan Hussein Musa and Another (Civil Appeal No. 454 of 2022) [2024] TZCA 1116 (15 November 2024). With the complaint that, the suit land was overtaken by event as alleged by Mr Dudu, I think the argument is misplaced. It is true that the claims of recovery of the land ought to be done within 12 years. See Item Twenty-two Column 1 of the Law of Limitation Act. Item 21 Column one provides for claims of movable property of the deceased to be 12 years 13 which is not the case at hand. However, as to when time starts to run? It is the principle that the time starts to run when the dispute arose. Therefore, since the suit over the land arose in 2018 the time should be construed from 2018 and not the time when the deceased died. The conception by Mr. Dudu is a narrow construction of time of limitation. If at all he wanted to challenge the order of the probate Court, would have done so vide the probate Court. The above notwithstanding, in my perusal to the trial court’s records, it is true that the matter had proceeded exparte against the respondent. However, the reason as to why the said exparte order was passed is tantamount to justice demand. There was a due notice to the trial tribunal that the respondent was sick. That notice notwithstanding, the trial chairperson’s reasoning that he had a limited time to do adjudication in the said tribunal, was not a justification of ignoring the fact of sickness unless he was dully convinced that he was being fooled. Otherwise, and as a matter of law and good practice, he ought to have adjourned the matter to another hearing date. It is a good wisdom that whenever there is a good notice of absence, the same should first be acknowledged/considered. The legal wisdom is, speed is good but justice is better (See Aloyce Chacha Kenganya t/a Aloyce Chacha Msabi 14 t/a Idara ya Maji na Ulinzi Magunga V. Irasanilo Gold Mine, Civil Application No. 582 of 2022, Independent Power Tanzania Limited & Another V. Standard Bank (Hong Kong) Ltd, Civil Revision No. 1 of 2009 and Nyanza Road Works Limited V. Giovanni Gudon, Civil Appeal No. 75 of 2020) to mention but a few. Therefore, it was unjustifiable in the presence of the notice of absence of the respondent at trial, for the trial chairperson to close its eyes at the expense of justice. All this said, the appeal is generally devoid of any merit and consequently would be dismissed for being brought without sufficient cause. However, for fairness of justice and embracing the cardinal principle of right to be heard that even if the party had been heard the result would be the same, it is settled law that the right to be heard is so basic. That any decision reached in violation of it will be nullified even if the same decision would have been reached had the party been heard, because violation is considered to be a cardinal breach of natural justice (See Charles Christopher Humphrey Kombe Vs. Kinondoni Municipal Council, Civil Appeal No. 81 of 2017, Yazidi Kassim Mbakileki Vs. CRDB (1996) Ltd and Another, Civil Reference No. 14/04 of 2018, Abbas Sherally & Another Vs. Abdul S.H.M. Fazalboy, Civil Appliacation No. 33 of 2002, North Mara Gold Mine 15 Limited Vs. Isaac Sultan, Civil Appeal No. 458 of 2020 – all by our Apex Court of the land). The above nullification notwithstanding, and at the pleasure of the appellant (if still desired), I would press for the retrial of the case expeditiously before another chairperson with a different set of assessors as I quash all the proceedings, judgment and orders issued exparte by the trial tribunal for want of justifiable reasons. I say so as per law, but otherwise, the appellant is at his pleasure to do so as per facts and evidence of his case. The choice is his, either to proceed betting and tossing of his right which is legally discouraged or consider what is right as per law. However, any choice has a remarkable consequence. I make no orders as to costs Right to further appeal is explained to any aggrieved party. DATED at SHINYANGA this 29th November, 2024. F.H. Mahimbali Judge 16