omary hassani tambali vs asha halfa ngoso another 2023 tzhclandd 17016 11 october 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 289 OF 2023 (Originating from Land Case No. 216/2019, Kibaha Land and Housing Tribunai) OMARY HASSANITAMBALI APPELLANT VERSUS ASHA HALFA NGOSO RESPONDENT ABTON EPAPULA 2"" RESPONDENT JUDGMENT 6th to 11th October, 2023 E.B. LUVANDA,J The Appellant above named Is challenging the decision of the Tribunal dismissing his suit/claim of ownership of the Impugned shamba located at Kwala Village Kibaha District, for want of proof. In the memorandum of appeal, the Appellant raised four grounds of appeal: One,the Tribunal erred in law and fact to declare that the First Respondent Is the rightfully owner of the suit property; Two, the Tribunal erred in law and fact to recognize the First Respondent as administrator of her father's estate and heir of the suit land without the proof of letter of administration of estate from court; Three, the Tribunal erred in law and fact to hold that the First Respondent have adverse possession of the suit land without any proof that she held the said land for twelve years undisturbed; Four, the Tribunal erred in law and fact for not holding the Appellant have adverse possession of the suit land despite the fact that he have been In possession of the suit property from 1990 to 2016 undisturbed; Five, the Tribunal erred In law and fact for failure to consider, analyses and evaluate properly all the evidence presented before it therefore leaving out some evidences of the Appellant. Ms. Zawadl Beatus Lupelo Esq learned Counsel for Appellant submitted In respect of ground number one, two and three together, she submitted that there Is no evidence adduced at the Tribunal to prove that the First Respondent possessed the disputed land for any period let alone twelve years to warrant her ownership under the adverse possession. She submitted that the only evidence which was considered by the Tribunal was a fact that the Appellant shifted from the disputed land In 1974 and resumed back in 1990, argued there was no evidence that when the Appellant returned back at the suit land found the First Respondent or her father in occupation of land, while when the Appellant returned at the disputed land it was undeveloped. She submitted that In order for the Tribunal to apply the doctrine of adverse possession in favour of the First Respondent it was her duty to prove that she possessed the suit land for more than twelve years, arguing the Tribunal did not explain as to when the twelve years started to count. She cited section 110(1) and (2) of the Law of Evidence Act, Cap 6 R.E. 2019, for a proposition that it was the duty of the First Respondent to prove her twelve years adverse possession also prove by tendering letters of administration thatshe is really an administratrix of and heir of her deceased father, arguing the First Respondent was sued on her own capacity. She cited the case of Bhoke Kitang'ita vs Nakuru Mahemba,Civil Appeal No. 222 of 2017(unreported). For ground number four, the learned Counsel submitted that the Appellant have been In occupation of the suit land for more than twelve years since 1974 and after returning back in 1990 still found the land undeveloped, arguing was supposed to be declared to have been acquired ownership of the suit land under the doctrine of adverse possession. She submitted that the First Respondent invaded the suit land. For ground number five, the learned Counsel submitted that ail witnesses summoned by the Appellant that is PWl,PW2,PW3,PW4 managed to prove that the Appellant have developed the suit land and have been in occupation of it for long time more than twelve years, arguing the Appellant tendered letters of administration of the estate of the late Ramadhani Kinini Juma. In reply, Mr. Albert Andrew Kikuli learned Counsel for Respondent submitted that the decision of the Tribunal is based on the evidence of DWl the First Respondent herein supported by DW2, Dw3, DW4 along the opinion of assessors. He argued that the Tribunal did not find any cogent evidence to prove ownership of the Appellant over the suit property. For ground number two, the learned Counsel submitted that a person can inherit land from her father and can be the owner of that land according to customary law, argued DW2 and Dw4 proved that the First Respondent is the owner of the suit land. He submitted that the Appellant failed to prove ownership of the suit property, arguing his witnesses PW2, PW3, PW4 their testimony was hearsay hence inadmissible. He cited section 110(1) Cap 6 (supra), Anthony M. Masanga vs Penina (Mama Mgesi) & Another, Civil Appeal no. 118/2014. The learned Counsel consolidated ground number three and four, submitted that the First Respondent did not plead to rely on the doctrine of adverse possession and thus never abandoned the suit property and is in actual possession. He submitted that the Appellant claim to have adverse possession over the suit land baseless and cannot be maintained. He cited the case of Joseph Alphonce & Another vs Mariamu Masanja(the Administrator of the Estate of the Late Makula Masanja), Misc. Land Appeal No. 21 of 2021, HC Shinyanga. For ground number five, the learned Counsel submitted that the finding of the Tribunal was appropriate when it raised doubt over the Appellant evidence which was Insufficient to prove his case. On rejoinder, the learned Counsel for Appellant submitted that the First Respondent faiied miserably to prove that she occupied the suit land for twelve years to warrant her benefit from the doctrine of adverse possession, arguing that the reason used by the court (sic. Tribunal) that the Appellant abandoned the suit land from 1974 to 1990 was not substantiated for the ground that the Appellant proved that even when he returned back to the suit land In 1990 he found It no one In occupation, where he continued to clean and cultivate until when the First Respondent invaded It. She submitted that the First Respondent cannot claim the suit land under two capacities as an heir and as an administratrix at the same time. I will tackle the grounds of appeal In the manner consolidated and argued by the Appellant who lodged a complaint. To start with ground number one, two and three together. The learned Counsel for Appellant aligned her argument to the doctrine of adverse possession, arguing was Inapplicable against the First Respondent and opined It to have been well established by the Appellant who alleged to have shifted from the suit land In 1974 and resumed back In 1990 and found the land yet undeveloped. Essentially this doctrine was In applicable In either side. This Is because for adverse possession to apply, the one who wish to rely on It, must plead and tender evidence suggesting he/she acquired an abandoned land by virtue of adverse possession. Herein none of the parties alleged to had acquired land adversely. The Appellant alleged his uncle the late RamadhanI Kanlnl Juma (passed away In 1984), acquired the suit land since 1949 and tendered a document exhibit P2 where the alleged RamadhanI Kanlnl Juma alleged handed over the suit land to his nephew Including the Appellant, after the deceased secured a job of cookery at the Department of Railway. Meanwhile the First Respondent alleged that her late father to whom she Inherited, Invented this farm and mow the bush during the colonial era. In the case of Bhoke Kitang'ita (supra), at page 9 the apex Court, said. We have taken note of the appellant's advocates' concession that their client did notadvance evidence during trial to show that the principal of adverse possession shielded him' At page 13, the apex Court went on to say, To summarize the position, given that the appellant never said anything rightfrom the beginning depicting his desire to rely on that doctrlne;...we are settled that the appeal lacks merit' In the case of Joseph Alphonce (supra), this Court speaking through Honorable Mkwizu, J had this to say, A' person asserting the doctrine of adverse possession should have no colour ofright over the suitland except his entry on the same without the owner'spermission' In the circumstances, and as said above the doctrine was neither applicable to the Appellant nor First Respondent. In fact, both of them suggest to had abandoned the disputed land at a certain point in time: the Appellant stated that the disputed farm was abandoned in 1974 during operation villages, remained without being developed, no crops and remained a bush land for quietly long time. The First Respondent honestly stated to had renegaded and deserted this farm for quite iong without deveioping it, oniy that she couid not teii the exact period due to being iiiiterate. Unfortunate the iearned Counsei dweit her submission attacking the victory of the First Respondent, without arguing as to how her client had a good title. In law who alleges, must prove. Herein the Appellant is the one who sued, therefore the onus of proof rested unto his shoulder. However, the Appellants(who is aged 84 anos) his evidence was weak and contradictory. For one thing, while he allege to have abandoned the farm since 1974, remained undeveloped and bush land, while PW2 Omary Miiambo Mtipuia (couid not recite his age) stated to have been assigned to mow as a caretaker; PW3 Ally Mbwana Mwamboka (aged 50 anos) who is hailing from Lindi, alleged to have been sending money for mowing, however couid not teii as from when, but is living in Lindi and visited at the suit farm for the first time in 2014; PW4 Ibrahim Sentiba (aged 55 anos)stated that he is not familiar where the suit land is situated and stated that he has been living abroad, and for quite iong have been living in Uganda. While on the First Respondent, her witnesses including DW2 Mohamed Saium Hassan Tambaii aged 51 anos (sibling of the Appellant, uncle); DW3 Khamis Amani Mfaume aged 69 anos (Appellant's young brother); Ally Rajabu Kizigo aged 70 anos (Appellant's sibling, uncle) all testified consistently that the suit farm belong to the First Respondent who inherited it from her late father. All DW2, DW3 and DW4 disowned the Appellant as far as ownership of the suit land is concerned. In the premises, I endorse the findings by the Tribunal that the Appellant failed miserably to prove ownership of the suit land including a fact that the First Respondent evidence was heavier on the balance compared to that the Appellant. To my view, the Tribunal ought to have ended there, in view of the fact that the First Respondent did not make any counter claim. The above adumbration takes into board ground number four and five as well, and they are all dismissed for want of merit. Regarding a complaint that the First Respondent did not tender letters of administration to prove that she is really an administratrix of and heir of her deceased father. Arguably, the First Respondent was sued under her own capacity. In other words, the Appellant is bringing a ground to defeat his own course by virtue of the fact that he is the one who sued the First Respondent as such. Be as it may,the argument by the learned Counsel that a person can inherit land from her father according to customary law, reign, no wonder the Appellant sued her under that capacity. The appeal is dismissed. However,I spare the Appellant costs of this appeal, being at the apparent age above 85 anos. Ofi c o s; 7 E.B.^VANDA S: V l/njDGE il/10/2023 Dm Judgment delivered in the presence of Evance Lazaro learned Counsel holding brief for Ms. Zawadi Beatus Lupelo Esq learned Advocate for the Appellant and Mr. Albert Andrew Kikuli learned Counsel for the First Respondent, in the absence of the Second Respondent. Cj V- E.B. WVANDA ★ JUDGE 1//IO/2023