mohamed napeche vskasimu kinyakali legal representative oflate ramadhani kinyakali 2020 tzhclandd 2335 5 october 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO. 189 OF 2019 (Originating from Land application No.208 of 2019 before the District Land and Housing Tribunal ofKHombero Ifakara. Also arising from Decision of the Mang'ula Ward Tribunal case number 43 of 2019.) MOHAMED NAPECHE..................................................... APPELLANT VERSUS KASIMU KINYAKALI (Legal Representative Of Late Ramadhani Kinyakali)......... ................... RESPONDENT JUDGMENT ON APPEAL S.M, MAGHIMBL J: This is a 2nd appeal by Mohamed Napeche who lost the case to the respondent in Land Appeal No. 208 of 2019 at the District Land and Housing Tribunal for Kilombero ( "The 1st Appellate Tribunal), an appeal which originated from the decision of the Mang'ula Ward Tribunal ("The Trial Tribunal") in Case No. 43/2019. In his petition of appeal, the appellant has raised four grounds of appeal as follows; 1. That the Hon. trial Chairman erred in law and facts for accepting respondent to be legal representative of late Ramadhani Kinyakali while he is not a legal representative according the law (no transmission on death for him) 2. That the hon. Trial chairman erred in law and fact for fabricating a decision in favor of respondent herein without considering that the i respondent here has not adduced any evidence to confirm that he is a legal representative of late Ramadhani Kinyakali, according the law. 3. Hon. Trial chairman erred in law and fact for determining the matter basing on weak and contradictory fraudulently letter administration of respondent. 4. The hon. Trial chairman erred in law and fact by making the decision without considering that the land was not compensated. The appellant hence prayed for the following: 1. Appeal be allowed. 2. Quash all orders granted by dismiss Tribunal (sic). 3. Costs of this appeal During the hearing of this appeal, the appellant enjoyed the service of Mr. Jumanne Fokasi Semgomba learned advocate and the respondent was represented by Mr. Eric Mukandara, learned Advocate. On the 3rd June, 2020, the court ordered hearing of this appeal to proceed by way of written submissions. Submitting on the 1st ground of appeal, Mr. Semgomba argued that the trial chairman erred in law and facts by deciding the matter in dispute in favor of the respondent by the reason of being a personal legal representative of late Ramadhani Kinyakali without the justification of the ownership of that land in dispute. That the law requires the Administrator of the deceased's estate to take into account the wishes of the deceased when administering the same. He continued to argue that since the land used to belong to the late Rajabu Kinyakali and that before his demise he distributed his properties to his heirs, so no one has the right to revoke his 2 wishes. That the power vested to the personal legal representative cannot be used to infringe the rights of ownership of other heirs simply because the personal legal representative is an administrator. The land in dispute was distributed by their late grandfather Rajabu Kassimu to his three issues including the late Ramadhani Kinyakali but the Land in dispute was given to Hadija Kinyakali of the appellant herein contrary to the argument of the respondent. Submitting on the 2nd ground of appeal, Mr. Semgomba argued that the respondent did not adduce any evidence to confirm that the land in dispute was owned by his late father Ramadhani Kinyakali. That the appellant's argument centered on whether or not the Tribunal has a power or locus to declare the ownership of the land in dispute to the respondent as a personal legal representative of Ramadhani Kinyakali while the same has already bequeathed to the heir, the late Hadija Kassimu Kinyakali from her late father Rajabu kassim Kinyakali. He submitted further that the late Ramadhani Kinyakali never owned the land in dispute as the respondent did not bring any proper evidence and when the case was in the ward tribunal no any witnesses was called to testify in the respondent's favor when the case was in the ward tribunal. That in the absence of the witnesses who would have testified in his favor, it raises the assumption that he illegally usurped the responsibility that he never had. On the third ground of appeal, Mr. Semgomba submitted that there is no evidence as to when the respondent applied for letters of administration 3 before the Mang'ula primary court. That he only presented a letter in form No. IV and No. II which invites those whose wishes could enter caveat they could do so. That the issue that the respondent did not enter caveat before the primary court has no merit because the respondent was not part to the beneficiaries of the estate of late Ramadhani Kinyakali. Submitting on the 4th ground of appeal Mr. Semgomba told this court that the Ward Tribunal erred in law and in fact to the extent of making the decision without considering that the land was not yet compensated. That the Appellants witnesses testified in the Ward Tribunal the land in dispute belonged to the late Hadija Kassimu Kinyakali as she inherited it from her late father Rajabu Kassim Kinyakali. He argued that there is no point in time that either the late Hadija Kinyakali or the appellant was compensated to the extent that the ownership passed to the respondent. He finalized his submission by arguing that the documents regarding the appointment of the administrator of the estate of the late Ramadhani Kinyakali cannot be used to justify the ownership of the land in dispute which in his lifetime, he never owned. In reply, Mr. Mukandara submitted that the respondent testified that he was appointed by the Mang'ula Primary Court as the administrator of the estate of the Late Ramadhani R. Kinyakali and he adduced the letters of administration which shows that he was appointed on 19th April 2019. That upon being appointed, he became the legal representative of the estate of the Late Ramadhani Kinyakali. To support this argument he cited Section 44 of the Probate and Administration of Estates Act Cap 352 R.E 2002. 4 and the case of Mohamed Hassan vs Mayassa Mzee and Mwanahawa Mzee [1994] TLR 225 where the court held: "upon grant of letters of administration, the grantee thereof becomes fully mandated to deal with the estate the best way he can and especially does not need consent of each of the heirs to dispose property of which are under his custody at all the time of administration " Mr. Mukandara continued to submit that in his submission, the appellant raised unfounded allegations that the disputed land was inherited by the late Hadija Kinyakali the mother of the appellant, but he never produced any evidence or proof to his rootless allegation. Here he cited the case of K.S.Builders limited V. The permanent Secretary Ministry of justice and constitutional Affairs and Attorney General, Commercial Case No. 74 of 2014 (H.C Commercial division) ( unreported) where Songoro J. stated that: " Whoever alleges a fact, unless it is unequivocally admitted by the adversary party has to prove it, albeit on the balance ofprobability." He also cited Sections 110(l)&(2) and Section 112 of the Tanzania Evidence Act, Cap. 6 R.E 2019. Mr. Mukandara further added that the appellant was not an executor/administrator of the estate of his late mother Hadija Kinyakali so he does not have a locus standi to claim ownership over the property in dispute of which he does not have any legal interest. That the Trial Chairman was correct in accepting the respondent to be the representative of the estate of the late Ramadhan Kinyakali. 5 Coming to the 2nd ground of appeal, He submitted that the Trial chairman considered all the evidences adduced by both parties which is clearly evidenced on page 3 and 4 of the judgment of the first appellate Tribunal where the Hon. Chairman Kamugisha stated that: "So in a nutshell the evidence adduced by the above two witnesses (in support of the appellant) contradicts each other even the evidence adduced by the appellant himself has not been well corroborated by his witnesses".... " there was a proof of appointment (of the respondent) as the administrator. So in his evidence the respondent was able to prove on how he came into possession of the land in dispute. His evidence that he adduced at the trial was corroborated by the witness that that adduced evidence in his favor......" "Unlike the appellant herein the respondent was able to establish ownership over the suit land. The appellant being not the administrator of the estate of his deceased mother had even no locus stand to commerce a suit before the ward tribunal." Mr. Mukandara continued to submit that the trial Tribunal and the first appellate Tribunal was able to establish that the suit land formed part of the estate of the deceased Ramadhani Kinyakali and following his death, the respondent was appointed the administrator of the deceased's estate. That the evidence adduced by the witness of the Appellant contradicts each other and that even the evidence of the appellant himself has not been well corroborated by his witnesses. 6 Submitting on the 3rd ground of appeal, Mr. Mukandara submitted that the allegation that the administration letter is weak and contradictory does not hold water because that allegation has no proof. That the appellant never challenged the appointment of the respondent as an administrator of the estate of the deceased. Submitting on the 4th ground of appeal, Mr. Mukandara told this court that the issue of compensation as it was raised by the appellant is worthless since it was the matter to be ascertained only if the land would have been under their possession. He finalized his submission by praying that this court uphold the judgment and decree of the first appellate Tribunal and the appeal be dismissed with costs. In rejoinder Mr. Semgomba reiterated what he said in his submission in chief and added that the appellant did not challenge or oppose the appointment of the respondent as the administrator of the estate of the late Ramadhani Kinyakali due to the fact that all the process of applying for the letters was not proper and that no single members of the family knows that he is a legal personal representative of the estate of the late Ramadhani Kinyakali. I have gone through the parties' submissions and the records of the Tribunals, the main issue in contention therein was on the ownership of the suit property. While the respondent alleged that the land belonged to his late father who he (the respondent) administrates his estate, the appellant's claim of ownership originates from inheritance from his mother Hadija. It is well undisputed fact that the land in dispute originally 7 belonged to one Rajabu Kassim Kinyakali who was the father to the appellants mother and the respondents father. The issue is whether the appellants mother got her share of the land to have passed her ownership to the land, something which the appellant alleges that she was while the respondent strongly disputes so. Having analysed the records of the trial tribunal, I have noted that the trial tribunal and the first appellate tribunal mainly based their decision to declare the respondent the lawful owner of the suitland on the fact that the respondent was appointed the administrator of the estate of his father in 2019; and a further fact the grant was not objected by the appellant. Even in his reply submissions, Mr. Mukandara also relied on that fact arguing that the letters of administration shows that he was appointed on 19th April 2019 and that upon being appointed he became the legal representative of the estate of the Late Ramadhani Kinyakali. With due respect to the preceding decisions, this was an irrelevant basis for determining ownership. My perusal of the records have found sufficient evidence adduced during trial which well-established that the appellants mother was given the land in 1998 and upon her death, the land passed to the appellant and he has been using the disputed land since the year 2000. This evidence was corroborated by the PW2 and PW3 who happened to be the respondent's biological brother. He admitted that the farm belonged to the appellant's mother and not his father and they were leasing the land to other people. Even in his uncorroborated evidence, the respondent admitted that there were other people who were farming in the disputed land but could not 8 specify who these people were. The respondent admitted to have started using the land in the year 2019 and could not account as to who was using the land for all the days from 2000 when the appellants mother died to the 2019 when he used the farm as he could not give any whereabouts on who was in possession of the land. It is obvious that the respondent collected the letters of administration in 2019 so that he could use them as evidence that the farm belonged to his late father, this is evidenced but the consequential event of him invading the farm immediately after obtaining the said letters. Otherwise he could not give any account as to who was using the land prior to his invasion. On the other hand the appellant's well corroborated evidence showed that he got the land from his mother ad he used it and when he left he was leasing the land to other people. This evidence as I mentioned, was well corroborated by PW2 and PW3. Furthermore, the records of the trial tribunal show that in making their decision, two members decided in favor of the appellant herein. The other two members voted for the respondent on a mere and flimsy reason that the size of the farm was different at the physical location to what the appellant had elaborated. This, with respect, is an irrelevant reason to deny ownership to a person because the size of the farm was not at issue during trial. The issue was on ownership of the farm and not encroachment therefore the mere reason that there was a slight difference in size of the land should not form the basis of denying one's right to ownership of the suitland. I have also noted that the Chairman of the trial tribunal based his decision on the fact that when the respondent was testifying, the appellant did not 9 cross examine him. This made re-visit the evidence of the respondent and I saw the reason why the appellant did not cross examine him. There was no any substance in that evidence but just a re-narration of what happened when the parties were called at the Chairman's office. Apart from that, in his evidence, the respondent made an admission that the appellant's mother owned the coconut trees in that land and he surprisingly convinced the trial tribunal and the first appellant tribunal to buy his story that one owned the coconut trees and when the coconut trees died the land resorted back to his father. I have not known of any law in Tanzania mainland that allows one to own a tree on a land, keep the tree and the other owns the land but could not use the land until the tree died. Unfortunately the trial tribunal was convinced of the story to the detriment of the appellant. I have also noted that in his evidence, which was mainly on what transpired at the Chairman's office, the respondent did not bring any witnesses to corroborate his testimony while the appellant brought there witnesses including the respondent's biological brother who testified that the land was passed on by their grandfather to the appellant's mother and then the appellant. Having made the above findings, since there is no dispute from the appellant's family of such a transfer, and the respondent's evidence having been of no substance, further having noted that the tribunal based on irrelevant reasons to reach its decision which was erroneously endorsed by the first appellant tribunal, this appeal is allowed. Consequently, the judgment of the trial tribunal and the subsequent judgment and decree of 10 the first appellate tribunal are hereby set aside. The appellant is declared to be the lawful owner of the disputed land situated at Mang'ula. The respondent shall immediately vacate the disputed land and hand over to the appellant who shall be left with peaceful enjoyment of his land. The appellant shall also have his costs for this appeal and the first appellate tribunal. Dated at Dar es Salaam this 05th day of October, 2020. 11