paskali edward magula vs daudiana nikolaus kasi 2023 tzhc 20180 16 august 2023

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA LAND APPEAL CASE NO. 35 OF 2Q22 (Originated from District Land and Housing Tribunal for Miele at Katavi in Application No. 2 of2021) PASKALI EDWARD MAGULA................ ........... APPELLANT :As. VERSUS DAUDIANA NIKOLAUS KASI ................... RESPONDENT JUDGMENT > id'July & id'August, 2023/ MRISHA, J. The appellant in this case is hot amused by the decision of the District Land end Housing Tribunal for Miele at Katavi (the trial tribunal) which on 21.09.2021 declared the respondent as the lawful owner of a piece of land containing 7 acres which is situated at Mamba Village of Miele District/-within Katavi Region (the Suitland). The said decision was made through a Land Application No. 2 of 2021(the main suit). In the said main suit the appellant was sued by the respondent on the allegation that he had invaded the suit land which i had been given to the appellant sometime in 2007 by the appellant's father The respondent alleged before the trial tribunal that since she was given that suit land, she had been cultivating on it peaceful but to her surprise the appellant invaded part of it containing 3 acres after the death of his father on 2019. On his side, the appellant strongly denied sbch averment-% the respondent during defence hearing. While;-not disputing the fact the respondent who used to call his father as her senior father was given that piece of land by his biological father one Edward Magula, the appellant was emphatic that the respondent was just lent that suit land and that his father left an oral, will with directing him and his fellow relatives to make follow up of the suit land so that they can divide it to each other upon his demise. However/ after hearing the evidence of both parties, the trial tribunal determined that land dispute in favour of the respondent and because of that the appellant has come to this first appellate court to challenge the decision of the trial tribunal on following grounds: - 1. That,, the District Land and Housing Tribunai erred in law and fact when it declared the respondent as the lawful owner of the suit 2 land while she is not among the beneficiaries of the late Edward Magula and ignoring the fact that the appellant is an administrator of that deceased's estate. 2. That, District Land and Housing Tribunal erred in law and fact by ignoring the evidence of the appellant who was appointed by the dan as an administrator of the deceased father's estate hence reaching to a wrong decision. 3. That, the District Land and Housing Tribunal erred in law by falling to realize that the respondent was bereaved by her husband on 'W-: 2004 who left behind-10 acres at Mamba Village which she could be appointed as administrator of her deceased husband's estate hence could not go to the appellant's family to beg for a piece of land. dd. Wheridihis appeal was called on for hearing, both parties appeared in person;/unrepresented. However, they tried their level best to submit, though briefly;, regarding the above grounds of appeal. Submitting in respect of the first ground the appellant had it that the dispute between him and the respondent originates from the probate of his late father, but the trial tribunal decided in favour of the respondent while she is not among the beneficiaries of his late father's estate. 3 In addition to the above, the appellant submitted that before hearing of the main suit he met a certain clerk and showed her his letter of administration but the said clerk told him that the document is not related to the suit land; hence he did not tender it as an exhibit before the trial tribunal. w. Having submitted the above, the appellant requested to this court to adopt the rest of his grounds of appeal as ?his submissionJn chief because such grounds are self-explanatory, and proceed to allow his appeal, quash the trial tribunal's decision and set-aside the orders passed by it. On the other side, the respondent disputed that the suit land is not among the appellant's deceased estate rather it was given to her by her senior fattier one Edward Magula on 2007 prior to his death which occurred on 2019. It was the respondent's further submission that the said suit land was given to her in front of the deceased's children and that the deceased showed her the boundaries of that suit land. Also, the respondent implored this court to adopt his reply to the petition of appeal, upheld the trial tribunal's decision and dismisses the instant appeal for not being meritorious. 4 The respondent's reply to the appellant's petition of appeal is comprised of two points which are: 1. That, as regard the 1st and 2''d grounds of appeal the Respondent avers that the same do not have merits because the dispute does not crop out of probate. The dispute related to the land which was % given to the Respondent by deceased himself before his death. 2. That, the 2nd ground of appeal does not have merits because the trial tribunal considered all evidence adduced by both parties to reach the decision. Rejoining, the appellant submitted that his^te father did not call his family and discuss about giving the; suit land to the respondent. Upon being probed by-the. court, the.appellant said he filed Probate Cause No. 1 of 2020 in the Primary Court of Majimoto on 21.11.2021 and that he filed The main, suit In the trial tribunal after obtaining letters of administration fromjthat probate court. On my side, I have carefully gone through the records of the trial tribunal as well as the submissions of both parties herein. Having done so, I think the issue for my determination is whether the present appeal has merit. 5 In my view the dispute between the appellant and the respondent revolves around one thing which is ownership of the Suitland. While the appellant claims the same to be of his late father's estate and therefore, he is entitled to benefit from it, the respondent is insisting that the suit land solely belongs to her and does not have any relationship with the appellant late father's estate. %?1. , Wife/-... "T&.. The above contention touches the first and second grounds of appeal. I think I believe so, that ownership of the suit land? neguires;;pr6of by the ;'? . ^3. one who alleges the same to be his. This ;is based op the principle that "Wfe. ,,,;y whoever wants the court to give judgment in his favour must prove existence of that fact. The above principle has its foundation under section 110(1) of the Evidence Act, Cap 6 R.E, 2019 and was relied by the Court of Appeal in the case of Standard Chartered Bank (T) vs Samwel Nyalla Nghuni, Civil Appeal No. 45 of 2020, CAT at Mwanza(unreported) where it was stated thus: "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, he must prove that those facts exist" 6 As per the records of the trial tribunal it appears that when adducing his testimony before the trial tribunal the appellant claimed that his late father one Edward Magula left an oral will on 2019 directing him and his fellow relatives to make follow up of the suit land left to the respondent after his demise. However, the appellant did not tender before the trial tribunal letters of administration to show that he had interest onrthat-suit land, ngj^did he parade before the trial tribunal the fouf<witnesses^ho^ere present when such alleged oral will was made:by his late father. X:. The above entails that the appellant had no locus stand to defend the suit against the appellant who according to the trial tribunal's records passed the test of proving theTad: that the alleged suit land was given to her by her senior father who was the appellant's biological father. Whilefmaking his decision the Hon. Chairman of the trial tribunal had the following to say: -JS "Mjibu maombi na mashahidi wake hawakupinga mwombaji kupewa eneo, ball walisisitiza kuwa eneo hllo allazlmwa tu. Ni maoni yangu kuwa ndio wenye jukumu la kuthibitisha kuwa allazlmwa na siyo kupewa. 7 Mwombaji aiipewa mwaka 2007 na ameendeiea kuiitumia kwa muda wa miaka 17. Mjibu maombi anaeieza kupokea maelekezo tarehe 14.07.2019 siku moja kabla ya kifo cha marehemu Edward Magula kwamba shamba lenye mgogoro lifuatiliwe. Hii ina maana kwamba Marehemu Edward aiitoa Wosia wa mdomo. Wosia wa namna hii unatambuiika kama utathibitishwa na Mashahidi wanne. Mjibu maombi hakuHeleza baraza kama kikao h/cho cha tarehe 14.07.2019 kiiikuwa maalumkwaajiliya kutoa wosia huo, ni akina nani waliaiikwa kushuhudsa wosia huo. Ushahidi wa mjibu maombi unawekwa kwenye kipimo cha welekea "balance of probability" kama ilivyoelezwa na Mahakama Kuu ‘ -J.-V katika kpsi^p John Rwoga vs Saiiniu Ngozi, Land Appeal No. 31 of 2017(Haijaripotiwa) {J// maoni yangu kuwa inaelekea zaldi kuwa mwombaji aiipewa shamba hilb kwani amekaa miaka mingi na mgawaji akiwepo kuliko kwamba aliazimwa tu"[Emphasis added] Reading the above excerpt between lines, I am certain that guided by the principle of law under section 110(1) of the TEA the trial tribunal was correct to find that the evidence adduced before it by the respondent, was more heavier than the one adduced by the appellant 8 which fell short of proving the fact that his late father left an oral will in relating to the suit land, and that the failure by the appellant to bring before it the persons who were allegedly to have witnessed such will, raised some doubt on his claim over the Suitland. Hence, due to the above reasons, I find no merit on the first and second grounds of appeal raised by the appellant. Coming to the second ground, the appellant has alleged that the trial tribunal ignored his evidence hence reaching to a,wrong decision. That allegation was denied by the respondent^ that the trial x.. . . '■■"-■a tribunal considered evidence of both; parties'before making its decisions. In order to determine who is right between the two parties on such rival arguments, I hdve asked myself whether it is true that the trial tribunal ignored the evidence. ofTjie appellant while making its decision. I will be guided by the sarpe principle stated in the case of Standard Chartered Bank(supra). It appears from the typed trial tribunal's judgment that the chairman of the said tribunal considered not only the evidence of the respondent who was the applicant therein, but also the evidence of the appellant. This can be gleaned at page 7 of the said typed judgment in which the Hon. Chairman of the trial tribunal wrote that: 9 "Mjibu maombi angeweza kutetea haki juu ya shamba lenye mgogoro kama angekuwa na barua ya usimamizi wa mirathi "letters of administration" Mjibu maombi hakuwasiHsha nyaraka yoyote kuonyesha kuwa aiiteuiiwa kuwa msimamizi wa mirathi ya Edward Tadeo Maguia. Ni maoni yangu kuwa mjibu maombi hana uhaiali wowote kwenye eneo ia mgogoro kwani si mail yake na hajathibitishwa na chombo chochote kuwa mrithi wa mail ya baba yake. Hata hivyo eneo bishaniwa iiiigawiwa kabiaya kifo cha mwenye naio". In a literal translation the above means that the appellant could well be in a good position to prove interest in his late father's estate had he tendered his letters of administration before the trial tribunal. Also, it is glaring that the suit land was given to the respondent by the deceased person when he. was still alive. 'Sr*..- :'- It is therefore, my considered opinion that the appellant's complaint that the trial tribunal ignored his testimony is unfounded because the typed judgment of the said tribunal is glaring like a day light that his evidence was well considered before arriving to its decision. This makes the second ground to have also fallen down. 10 Owing to the foregoing reasons, I am constrained to hold that the present appeal is not meritorious. It is therefore dismissed. Consequently, I upheld the decision of the trial tribunal and all orders made by it. However, considering the nature of the case at hand, I make no order as to costs. It is so ordered. A.A. MRISHA JUDGE 16.08.2023 DATED at SUMBAWANGA this 16th August, 2023. ii