a10 NKUNDWE THABIT ISUMO VS

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MBEYA SUB-REGISTRY) AT MBEYA LAND APPEAL NO. 88 OF 2023 (Originating from the decision of the District Land and Housing Tribunal for Kyeia at Kyeia in Land Application No. 1 of2021) NKUNDWE THABIT ISUMO (Administrator of the Estate of the late Regina Osijah Mgunda)............................................... APPELLANT VERSUS TUMBOMBELEGE KAGHE...................................................... 1st RESPONDENT CHRISTOPHER MWAMALILI................................................. 2nd RESPONDENT JUDGMENT Date of last order: 25/04/2024 Date of Judgment: 02/07/2024 NDUNGURU, J. In this appeal, the appellant, Nkundwe Thabit Isumo is contesting the judgment and decree of the District Land and Housing Tribunal for Kyeia at Kyeia (henceforth the trial tribunal)) in Land Application No. 01 of 2021, dated 29th day of August 2023. The centre of controversy before the trial tribunal was a parcel of land situated at Temeke Hamlet-Katumbasongwe i Ward within Mbeya District and Mbeya Region. In the trial tribunal, the appellant, Nkundwe Thabit Isumo as administrator of the estate of the late Regina Osijah Mgunda sued the respondents, Tumbombelege Kaghe and Christopher Mwamalili, respectively for trespass over a suit lands. The suit land consists of two pieces of land. First piece of land consists of 1 acre and second piece of land consists of 3 acres. In his brief evidence before the trial tribunal, the appellant had testified that he is an administrator of the estate of his late mother one, Regina Osijah Mgunda, in accordance with Exhibit SI. He went on to testify that, the suit property was originally owned by one, Osija Mwakakuka who later passed away. He also told the trial tribunal that after the death of Osija Mwakakuka the disputed land was inherited by the late Regina Osijah Mgunda because she was the only child of the late Osijah Mwakakuka. Finally, he testified that, he knew that the suit land is the property of the late Reginal Osijah Mwakakuka after being told by his mother in 1984. To support his case, he called only one witness namely; Ipyana Andongwisye (SM2). In his testimony, SM2 testified that, the suit land is the property of the late Regina Osijah Mgunda who inherited it from her 2 late father one, Osijah Mwakakuka. He also said that, when the late Regina Osijah Mgunda was given the suit land he was 12 years old. On the other hand, the respondents were recorded by the trial tribunal to have generally refuted the appellant's allegation that they invaded his land. The 1st appellant testified to the effect that, the suit lands developed by one, Osija Mwakakuka and after his death the said landed property was inherited by one, Juma Mwakyalaba in 1976. He also testified that, she has not invaded the suit lands because after she got marriage she left that areas and she had never came back to that areas. In his part, the 2nd appellant told the trial tribunal that, after the death of Osija Mwakakuka according to the custom and tradition of Nyakyusa his landed property and his wife was inherited by one, Juma Mwakyalaba who was to reside in the disputed land. Finally, he said that, he is an administrator of the estate of the late Juma Mwakyalaba as per Exhibit 111. To support their case, they called other two witnesses namely; Tunangisigwe Namulungu (DW3) and Richard Mwamalili (DW4). In her testimony, DW3 told the trial tribunal that, she and her late husband one, Juma Mwakyalaba inherited the suit lands in 1976 thereafter they built the 3 permanent house. Also, she said that, after the death of her late husband the disputed land was inherited by their child one, Edson Juma. Again, DW3 said that, after one, Edson Juma passed away the same inherited by Christopher Mwamalili. In his part, DW4 supported what was testified by the 2nd appellant and DW3. In addition to that, during the cross examination DW4 said that, the suit lands are the property of the 2nd appellant and the late Regina Osijah Mgunda was only allowed to cultivated in the disputed land. In its judgment, the trial tribunal found the appellant had not proved his claim that the disputed land form part of the estate of the late Regina Osijah Mgunda and also dismissed the application with costs. The appellant was unhappy with that decision hence lodged the present appeal seeking to assail the decision of the trial tribunal fronting the following grounds of complaint as reproduced hereunder; 1. That, the trial tribunal erred both in point of law and facts for failure to declare who the lawful owner of the suit land and left the dispute unresolved whereas the tribunal's jurisdiction abdicated. 4 2. That, the trial tribunal erred both in point of law and facts for failure to determine the case on merit by analyses the evidence balance of probabilities. 3. That, the trial tribunal erred both in point of law and facts for failure to consider that the evidence, hence biased. When the appeal was called upon for hearing, the appellant was represented by Mr. Joseph Mwainyekule, learned advocate whereas Ms. Tumaini Amenye, learned advocate appeared for the respondents. The appeal it was argued orally. Arguing to the first ground of appeal, Mr. Mwainyekule submitted that, the trial tribunal had required to resolve this matter by declaring who was the lawful owner of the suit lands. He added that, the trial tribunal was wrong to frame issue whether the suit land was part of the estate of the late Regina Osijah Mgunda. He also argued that, the issued framed by the trial tribunal was not based on pleadings and evidence tendered. He further contended that, the framing issue it must be what is controversial to the parties. He relied on the provisions of Order XIV Rule 1 of the Civil Procedure Code (Cap 33 R.E. 2019) to justify his submission. He 5 went on submitting that, as the issue was not proper it ended to wrong decision because nobody is declared to be the lawful owner. As regards the 2nd and 3rd grounds of appeal, Mr. Mwainyekule submitted that, the trial tribunal failed to analyze the evidence on the record. He also submitted that, the appellant's evidence was that the disputed land was owned by the late Regina Osijah Mgunda who died in 1976, the facts which the respondents did not challenge. He continued to argue that, the evidence that Osijah Mwakakuka had only one issue who is Regina Osijah Mgunda was not challenged. That, the suit land was inherited by Regina Osijah Mgunda. He further submitted that, the record reveal that Juma Mwakyalaba died in 2007. Upon his death the suit land passed to Edson Juma who later died in 2016. Thus, it was not proper to agree with the 2nd appellant that he is an administrator of the estate of Juma Mwakyalaba as upon his death the property on dispute passed to Edson Juma. On that reason, Mr. Mwainyekule argued that the trial tribunal failed to properly analyze the evidence and thus reached into wrong decision. Finally, he implored the Court to allow the appeal and the suit land be declared as part of the estate of the late Reginal Osijah Mgunda. 6 Responding to the first ground of appeal, Ms. Amenye submitted that, the trial tribunal clearly decided who was the lawful owner. She referred the Court at page 9 last paragraph of the typed judgment of the trial tribunal to the effect that the trial tribunal said that the land in dispute is the property of the late Juma Mwakyalaba. She further argued that, the issue raised by the trial tribunal was very important because the appellant filed the case in the capacity of being an administrator thus the issue was properly determined. In replying the 2nd and 3rd grounds of appeal, Ms. Amenye submitted that, these grounds of appeal are devoid of merit. She went on submitting that, it is not in dispute that Osijah Mwakakuka and Juma Mwakyalaba were blood related. She added that, it is not disputed that the suit land owned by Osijah Mwakakuka who inherited in accordance with Nyakyusa tradition or custom. She further submitted that, the issue was who inherited upon the death of Osijah Mwakakuka. Finally, she submitted that, the trial tribunal properly analyzed the evidence on the record. The rejoinder by the counsel for the appellant concentrated on cementing what he had stated in his submission in chief. He further demonstrated that it is not true that the disputed land was declared to 7 belong to Juma Mwakyalaba there is no such order. He went on submitting that, according to Nyakyusa tradition no one can inherit to the family he is not part of the clan. He added that, one, Edson Juma was not involved in this case. In conclusion, he prayed the Court to revisit the evidence on record and make its findings. He also prayed the Court that the appeal be allowed with costs. After carefully reviewing the records of the trial tribunal and considering the oral submissions made by the counsel for the parties. Issue calling for determination is whether this appeal has merits or not. To answer this issue, I find see it is prudent to dispose each ground of appeal. I shall be guided by the following principles of law. One, is that in civil cases, the burden of proof lies on the person who alleges anything in his favour founded on section 110 of the Evidence Act (Cap 6 R.E. 2019). Two, the burden of proof envisaged above is on the balance of probabilities as stated in various decisions of the Court of Appeal of Tanzania, including Anthony M. Masanga v Penina (Mama Mgesi) & another, Civil Appeal No.118 of 2014, CAT at Mwanza, Pauline Samson Ndawavya v Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017, CAT at Mwanza 8 and Hamza Byarumshengo v Fulgencia Manya & 4 others, Civil Appeal No. 33 of 2017, CAT at DSM (all unreported). Back to the merit of the is appeal. Starting with the 2nd and 3rd grounds of appeal, these grounds of appeal center on the issue of evaluation of the evidence on record by the trial tribunal. It must be noted that, the determination of a dispute is reached by a court after a thorough evaluation and consideration of the parties' evidence tendered at the trial in relation to the applicable law, and disclosing the reason for the decision and the conclusion thereon. See Abubakari I. H. Kilongo & another v The Republic, Criminal Appeal No. 230 of 2021, CAT at DSM (unreported). This being a first appellate Court I have a room to re-evaluate and re-consider the evidence adduced before the trial tribunal. See the cases of Deemay Daati & 2 others v Republic (2005) TLR 132 and Ndizu Ngasa v Masisa Magasha (1999) TLR 202. In essence, the appellant's evidence was that the late Regina Osijah Mgunda was the only heir who was entitled to inherit from the late Osijah Mwakakuka and he also believed that the late Regina Osijah Mgunda inherited the land in dispute upon the death of Osijah Mwakakuka. 9 However, the appellant did not state how the late Regina Osijah Mgunda got ownership of the land in dispute by way of inheritance take into account in his testimony the appellant said that he knew that the suit land is the property of the late Reginal Osijah Mwakakuka after being told by his mother in 1984. Even his witness, SM2 Ipyana Andongwisye failed to proof it, if it was true that the late Regina Osijah Mgunda was given the suit land during the meeting of clan member in accordance to the tradition and custom of Nyakyusa. I hold so because during the cross examination SM2 changed the story by saying that there was no any clan member from Osijah Mwakakuka who participated in the calamity and in the meeting of the distributing the estate of the deceased. In view of the above, I find that the appellant failed to prove that the dispute land is the part of the estate of the late Regina Osijah Mgunda. I hold so because, in the trial tribunal, the appellant was the complainant who was supposed to prove how the ownership of the suit land moved from the Osijah Mwakakuka to Regina Osijah Mgunda as per the claims in his pleadings. It was not possible for the trial tribunal to decide in favour of the appellant basing on the weakness of the respondents' defence herein. 10 The similar position is well stated in the case of Paulina Samson Ndawavya v Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017, CAT at Mwanza (unreported) it was held that: "It is again trite that the burden of proof never shift to the adverse party until the party on whom onus lies discharges his and that the burden of proof is not diluted on account of the weakness of the opposite party'case." From the above cited authority, I am of the same view in the instant appeal; indeed, the appellant under the given circumstances is the one having the burden to prove his assertion that the late Regina Osijah Mgunda was inherited the suit land from the late Osijah Mwakakuka In the premise, I find that the trial tribunal was correct to hold that the appellant failed to prove his case. In the circumstances, I find these grounds lack merit. In relation to the 1st ground of appeal, it is well settled that decision of a case cannot be based on ground outside the pleadings of the parties. In this ground, the appellant is faulting the decision of the trial tribunal for not directing its mind to the issue as to who is the lawful owner of the suit land. While on the one hand the counsel for the appellant have submitted n that it was very important for the trial tribunal to determine the issue who is the lawful owner of the suit land. In the other, the counsel for the respondents is of the view that that issue was not very important. I have well considered the rival arguments by the learned counsel for the parties. According to the evidence adduced by the appellant and his witness (SM2) together with the prayers sought before the trial tribunal, the appellant claims that, the suit land is the part of the estate of the late Regina Osijah Mgunda. In that regard, the argument by the counsel for the appellant that the trial tribunal was wrong for not determining who is lawful owner of the suit land is baseless and not tenable in law. I hold so because the trial tribunal had no such power of awarding of the relief that was not sought for. My position is supported by the case of Melchiades John Mwenda v Gizelle Mbaga (Administratix of the estate of John Japhet Mbaga-deceased) & 2 others, Civil Appeal No. 57 of 2018, CAT at Mbeya (unreported) where the Court of Appeal observed that: "It is elementary law which is settled in our jurisdiction that the Court will grant only relief which what has been prayed for." 12 In view of the above, I find that the trial tribunal was right to decide the matter in accordance to the relief sought and the pleadings filed before it. I therefore find this ground of appeal has no merit. In the upshot, I find out that this appeal has no merits. Consequently, I hereby dismiss it without costs due the relationship of the parties. It is so ordered. D. B. NDUNGURU JUDGE 02/07/2024 13