omary th mkweta vs fadhil th mkweta and another 2020 tzhclandd 3850 6 november 2020

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO.82 OF 2018 (Arising from the Judgment of Kilombero/Uianga, the District Land and Housing Tribunal in Land Case Appeal No. 173 of 2017, Original Land Case No. 2 of 2017 Katindiuka Ward Land Tribunal) ^ OMARYTH. MKWETA 3i,.APPELLANT i VERSUSk FADHILTH. MKWETA RESPONDENT HA3I TH. MKWETA RESPONDENT Date ofLast Order: 04/07/20m Date ofJudgment: 06/11/2020, ^ MANGO,J. ^ The Appellan'^nap^kwet^^ppealea against the decision of the District Land andgy0usinlgfei.^l)akQf Kilombero/Uianga in Land Case No. 173 of 2017^1 five gfi^d^lappeai which can be summarized as foiiows:- 1. T^^ the ^^'norabie District Land and Housing Tribunai for Kiiombero/jiUlanqa erred in iaw and fact by aiiowing the Appeai and deciaring the respondents' as iawfui owners of the suit premises despite the respondents faiiure to prove their ownership over the suit premises. I i 2. That, the Honpurabie District Land and Housing Tribunai chairman erred in iaw by concurring with the unanimous opinion of the wise assessors without considering the testimony of Zuhura 0. Sambiianda 1 the lawful wife of the late Thabit Mkweta on the age of the Respondent at the time allocation of land was effected; 3. That, the Appellate Trial Tribunal erred In law and in fact in declaring the Respondents to be lawful occupiers of the suit premises and In 1 not considering that the Appellant Is the approved administrator of Thabit Mkweta's estate and that the Respondents did not dispute the appellant's appointment to be the administrato'ifgf their late father's I estate. ' 4. That, the Honorable District Land^and ^ysMyfri^ak^rairman erred in law by declaring the Respoffents ners of the suit premises despite the fa^^«fhat^ thev diaknot produce their allocation documents as e^il^#%.d fh%|^^nHt dispute inclusion of the suit prernises^^fer f^^i^s ^^te. 5. That, the Appeal is ij, time^a%he^dgi^t of the District Land and % % ^"C Housing Tribuna||was^ivered ora|31='^ May, 2018 copy of judgment M was re^^re^gllecfi^on-4;^g|rne, 2018. The Aopellant^institlted 10. 2 of 2017 before Katindiuka Ward Tribulfl aglTtlg Respihdents claiming plots of Land allegedly belongim to theif^Me father one Thabit Mkweta as part of his estate. The Respon^lts denied such allegation, and claimed that the disputed plots are not part^Rn^father's estate because they were allocated to them by the village authorityi The trial tribunal ruled in favour of the Appellant. I Dissatisfied with the decision of the Ward Tribunal, the respondents successfully appealed before the District Land and Housing Tribunal for I Kilombero/UIanga which declared the Respondents as lawful owners of the suit land. The Appellant was aggrieved by the decision of the District Land and Housing Tribunal thus, he preferred the appeal at hand. The grounds of appeal raised by the Appellant concerns evaluation and consideration of evidence adduced before the trial tribunal. This Is reflected In the I®', 2"=",and 4'*^ grounds of Appeal. The main Issue in this appeal as It was before the tvy|^lbunals is whether the suit plots forms pjart of the estate of the lateThabi^feweta. For that reason the 3"^ and 5"^ grounds of appea fse the Si 3'" ground of appeal|concerns the appoinfn^t ofth^^|La.pUo be the administrator of the estate of the - - not dispute that the! appolntm^ Omary Mkweta Is the admi^iltor ^he iS^habirMkweta's estate. sv.^v The S''" ground of appeal & sub|piss^iri tha,|the appeal is not time barred. The appeal Is m^j^^ljtimgfebarred.^erefore the two grounds will not be considere^^ thT^oufl||g^^^ll€y are irrelevant In determination of this apReaL^_ The &peal written submissions. In their subml^sfens the '^pellant and respondent argued the entire Appeal generally.' In his submission the Appellant argued that the Respondents have not j produced any evidence to prove their allegations that the suit plots belongs to them. Their testiriiony that they have been allocated the plots by the village authority is riot backed up by any documentary evidence. It was basically mere words. According to him, the Respondents failed to prove how and when they acquired the suit plots. He argued further that, the Respondents are aware of the fact that the suit plots belongs to their late father that Is why they did not dispute Inclusion of the same In the estate of their late father during the family meeting. He submitted that Thabit Mkweta, their late father, was^glocated the suit plots In 1975 by Katlndlukja Village Government and that ffi^pverments by the Respondents that they acquired the plot In l^^^d 19^We misleading and unfound. In their reply submission, the Res^|^|nt^™ueci|t'hat the grounds of Appeal raised by the AppellalL ar%:^^$^Ue %id baseless. The Respondents submitted thafepfe Ap'^IJ.ant [f|s rals'eSl new Issue that he Is acting as an admlnlstrafer of the estate dfithe late Thabit Mkweta. Km According to them tfeis^^a'Pn^^^een raised during trial thus, the Appellant has deBanted ftom'^'ifrs-bOwn^ffeadlnQs. They argued that parties are bound to^Sr pleadlng^^ this Court cannot consider a new Issue In determMjlMjI^^^^^lgylfgued further that, the fact alleged by the Appellant that h%9wri%the suit plots as an administrator Is not proved and It has w m ^ n||jegal fouraatlon. I have co^^iigd^urt record and submissions made by the parties to this appeal. The Court record reveals that the Issue of the Appellant acting as the Administrator of the estate of the late Thabit SelemanI Mkweta Is not new. It has been raised before the trial tribunal when the Appellant was filing his case against the Respondents. And It Is clear that the appellant claim ownership over the suit land by virtue of being the administrator of his father's estate, i I The capacity of the Appellant as an administrator of the deceased estate ought to have appeared on the title of the case, however, non-disclosure of such capacity In the title of case cannot be considered to be fatal because In the entire proceedings the Appellant was considered to be the % Administrator of the estate of the late Thabit Selemanillyikweta. Therefore, the Omission can be served by Section 45 of t^and Dl^jtes Courts Act, [Cap. 216 R. E. 2019] which restricts a^ratlon|.pf''l^^e^^^of the tribunals on procedural Irregularltles^tbat di ot aflon flllire justice to any of the parties as In the case.at -Hi The dispute as to who Is ^wner^f the suit piots between the Respondents and the lat^Thabit^kwe^^was^the centre of the dispute during trial. Court re%nd ^tabllslfti^fethe'^lspute regarding ownership of the two plot^Ehgnggd ddrin^liiej^ilyfmeetlna which was conducted for the purpose^^pospg th'^^mlnlstrator of the late Thabit Mkweta's estate^Ktha^^^^^^meeffl^, properties that form part of the estate were^entlfled^^th^e^was no consensus as to who Is the owner of the suit premises bet^en The late Thabit Mkweta and the respondents. Evldence^|gLs.h)gg;further that, family members had to vote In order to determine whether the plots belongs to the Respondents or their late father. According to the copy of minutes of the family meeting which was tendered In a probate case and this case as evidence, 8 family members voted for the Respondent as owners of the suit premises and 7 family members voted for!the late Thabit Mkweta as the owner of the suit premises. This means, objections over inclusion of the suit plots into the estate of the late Thabit Selemani Mkweta started from the family meeting. Such findings disposes the ground of Appeal which concerns non-objection to the inclusion of the two plots into the deceased's estates. Record shows that the Respondents objected inclusion of the suit plots into the estate of their late father and they went ahead refusing to have the plots distributed <#' to other heirs of the late Thabit Selemani Mkweta. Fafiily members seems to have failed to resolve the dispute amicably tfatvis whvfhe Appellant had to resort to the Court process by instituting ^.e ^Ml^^roOH^before Katindiuka Ward Tribunal. m Thus, the issue of not objectingJhe ihfeiusi&ns£)f#ie two,plots in the estate of their late father is unfound, The most important' issiM in thig^p^aUs^hether available evidence establish that the pli^forr^^ft'of ra^state of the late Thabit Selemani Mkweta. The.^Respbr^nts^ummoned' witnesses who witnessed the allocation ^udii^^^ghbors around the suit plots. In addition, the testp%K oraWwi^ofJ^'Thabit Mkweta one, Zaiuba Sambilanda, was ^ husband was allocated a single plot and that t^^feputed^)ts were allocated to the respondents. Her testimony was not co^ggfed by the appellant. This made the evidence of the respondents to be stronger than the appellant. i It should be noted that the respondents did not institute the suit, therefore the duty to prove ownership on the required standard was on the appellant. The law, section 110(1) of the Evidence Act [Cap 6 R.E 2019] is very clear that whoever alleges must prove. Therefore the appellant had the duty to prove his case on the balance of probabilities. Unfortunately he failed to discharge that duty as evidence brought by the appellant was weaker compared to the evidence of the respondents. It Is trite law that the party whose evidence Is stronger than the other must win, as It was held In the case of Hemed Said Versus Mohamed Mbilu [1984] TLR 113. In that regard the District Land and Housing Tribunal for Kllombero/ Ulanga was right In allowing the respondents appeal. For that reason I hereby uphold the decision of theiAppellate trlbunal. m Appeal is hereby dismissed with cos Z. D. MANG JUDGE 06/11/202 z H