paul so kuchi kulaya vs laurent so matei mushi 2005 tzhc 281 28 october 2005

IN 7KZ HUJT-T CCURT OF TANZANIA AT _ MOSirE (DC) CIVIL APPEAL NO.28 OF 2003 (0/F LAND APPEALS ''TvIBUML APPEAL NO. 72/2000 ( ORIGINAL KILIMANJARO R3GINAL CUSTOMARY LAND L] (TRIBUNAL CASE NO.27/1987 ) PAUL S /6 KUCHI K U L ; \ Y A . 0, 0. 0. . APPSIJu\NT •’ ( LEGAL PERSONAL REPRESENTATIVE ') ( OF lUS LATE KUCHI SALE’ JI KULAYA)

VERSUS LAURENT S/0 KATEI MUSHI (. A3 LEGAL PERSONAL REPRESENTATIVE) o o o o e o o . IPC^ - 1 X i iL i O iJU i\JJ.liA <.L ( OF THE LATE MKABIRIKA W/0 SALEWI ) ‘ J U ^G ^ E_M E This is an appeal a.^ainst th<j decision o f the customary Lands Arpv-aT Tribunal in the Land Appeals Tribunal Appeal No.72/2000 whereby the said Tribunal had reversed the judgement o f the Regional Customary land Tribunal o f Kilimanajro in Land Tribunal case No.27 o f 198? and allowed an appeal by one Mkaribika Salawi, the Original Respondent, The record o f the Regional' Customary . Ldnd Tribunal o f Kilimanjaro shows that the o rig in a l complainant one Kuchi Salewi had contended in his evidence before the said Tribunal that he had been given the suitland by h is la te father in 1933 and has been using and developing the same from the said year by planting tre e s, banana plants and c o ffe e tre e s . He had further contended in h is evidence that his la te father had a lso directed him to kook a fte r the o rig in a l Respondent one Mkabirika Salewi with her children which he a lso did fu lly . The said o rig in a l Respondent Mkabirika Salewi was the wife o f the father o f the said o rig in a l complainant. The dispute errupted a fte r the said Mkabirika ,S alewi, the o rig in a l Respondent purported to give the suitland to her daughter one Theresia Marthey. The said o rig in a l complainant,

Kuchi Salewi had contendod further in his evidence in the said Tribunal that he had complained before the v illa g e au th orities but was unhappy with the way how the dispute was handMd hence he f i le d the dispute before the Regional Customary Land Tribunal o f Kilimanjaro, ■v One Gulamseni Rasharasha a lso t e s t if ie d in the said Tribunal in support o f the said orig in a l complainant. He contended in his evidence that the -Pa-Hno-r* 4-'u- - - J the orig in a l Respondent. He contended further in his evidence that since 1933 the said o rig in a l complainant had been using and developing the suitland and has a lso been looking a fte r the o r ig in a l Respondent the said Mkabirika Salewi. On the other hand, the said, record shows further that in the 'said Tribunal, the O riginal Respondent that is Mkabirika Salewi was j represented by her daughter, the said Theresia Marthey. In 'her evidence before the said Tribunal, she contended that the suitland was given to her mother, the said o rig in a l Respondent Mkabirika Salewi by her la te husband who was the father o f the origin a l complainant, the said Kuchi Salewi* She contended further in her evidence that in 1987 the said o rig in a l Respondent could no longer manage to attend the suitland hence in 1938 she decided to give it to her because she was the one who was looking a fte r her. She further contended in her

evidence before the said Tribunal that the orig in a l complainant disagreed with the o rig in a l Respondent and the issue was placed, before clan members who agreed that the suitland be given to her, that is the said Theresia Marthey, She had contended further before the said Tribunal that the o rig in a l Respondent had b u ilt a house in the suitland and was attending to the c o ffe e and bananas trees thereon and that she was s e llin g co ffe e in the name o f her son one Sabal Salewi. The said Theresia Marthey contended further in her evidence before the said Tribunal that she was married in the Mushi clan and had grown up. One Joseph Izina t e s t if ie d in support o f the said orig in a l Respondent before the said Tribunal. He had contended that the suitland previously belonged to his grandfather one Salewi Nguluo, who had eight wives and and had given each one her piece o f land including the o rig in a l Respondent the said Mkabirika Salewi. According to the evidence o f the said witness, the said orig in a l Respondent liv od on the suitland since being married by the la te Salewi Nguluo v'ith whom she ’-/as blessed with fiv e children .consisting o f two g ir ls and th ree'boys. ' The la tte r v/ere a l l dead -and that whein'Tn^'gir-le-weiLe married, the o rig in a l Respondent had liv e d alone and was a ssisted by Theresia Marthey. He further contended before

the said Tribunal that in 1988, the o rig in a l Respondent, the said Mkabirika Salewi wrote her w ill giving the suitland to the said Theresia Marthey but the orig in a l complainant did not agree to the said matter hence he complained to clan members. He contended that clan members held that the o rig in a l Respondent was ju s t ifie d to give the suitland to her daughter, the said Theresia Marthey. However, the witness during cross-examination admitted that he was s t i l l a minor when Salewi Nguluo died hence he could not know what took place during the muorning period. Having heard the evidence o f both the o r ig in a l complainant, that is Kuchi Salewi and ^ ' • and the o rig in a l Respondent, that is Mkabirika Salewi, the Regional Customary ’ Land Tribunal o f Kilimanjaro was s a tis fie d that the orig in a l complainant Weis the heir o f the la te Salewi Nguluo and that he was directed by his la te father to maintain and look a fte r the said orig in a l Respondent and her children were s t i l l minors. It v/as further s a t is fie d that the said o rig in a l complainant had attended the suitland since 1933-1988. It determined the dispute in favour o f the said o rig in a l complainant. The orig in a l Respondent, Mkabirika Salewi was aggrderied by the d ecision o f the said Tribunal and appealed to the Customary Lands Appeals Tribunal in Land Appeal No.72 o f

2000. The said appeals Tribunal r v„r„".-.sd the d ecision o f the Regional Customary Land Tribunal o f Kilimanjaro in favour o f the said O riginal Respondent on s ix ( 6) poin ts. I w ill hereby reproduce the said s ix ( 6) points as follow s: r> Baraza la Rufaa la ardhi katika kuchunguza rufani h ii limetambua mambo mu.himv yafuatayoj" Jambo la kwanza ni madai ya mlalamikaji, K^chi Salewi sasa mrufaniwa kuv/a mlalamikiwa, Mkabirika Salewi, sasa mrufapi, rawaka 19 p;o amemuingilia katika kihamba chake a lic h o r it h i kutoka kwa baba yake, Salev/i mwaka 1933. Jambo la p i l i ni u tetezi wa mlalamikiwa Mkabirika j Salewi, sasa mrufani, kuv/a kih mba cha kahav/a alipewa na marehemu mume v/ake ( Salewi ) ambaye alikuwa na wake wengine saba* Kihamba hicho alikihiid^mia mpaka mwaka 1933 mume v/ake a lip c fa r ik i akaendelea kukihudumia mpaka mv/aka 19°*8 alipoamu- kumpa mwanae, *j?eresia ~‘1 ----vuwa akimsaidia mlalamikiwa kuhudumia kihamba hicho. Jambo la tp t” n i u tc tc z i ^ mlalamikaji tona kuv/a shauri lilip olek w a katika ukoo wa mlalamikaji ambao uliarv.ua kuv/a ardhi apewe Thepesia Marthey. Jambo la nne ni ushahidi wa Joseph Leina (7) shahidi wa mlalamikiwa, alive^leza kuwa ardhi ya daawa ilikuwa ya babu yake Salev/i Nguluo ambaye alikuwa na wake v/anane na kila-m ke' alimpa ardhi yake. Ardhi ya daawa alipewa mlalamikiwa ambaye alihudumia ardhi hiyo muda wote

tangu aolewe na alikuwa na anasaidiwa na B in ti yake Theresia Marthey* Mwaka 1988 mlalamikiwa alihandika wosia i l i ampe Theresia Marthey ardhi ya Mlalamikaji- alilalam ika la k in i tikoo uliomua. kuwa mlalamikiwa alikuv/a na haki ya kumpa haki rawanae ardhi hiyo, Jambo la tano ni maombi ya rufani ambayo ya n asisitiza uendelezaji wa ardhi ya daawa uliofanywa na mlalamikiwa. akisaidiwa na mwanae Theresia Marthey„ Jambo la s it a ni majibu ya maombi ya rufani ambayo yanasisit mila za kichaga ambazo zimepitWa na wakati kuwa watoto v/a kike hawawezi k u rith i ardhi ya daav/a. Kwa m isingi hiyo^ Baraza la R u fa a la Ardhi kwa kauli moja linatamka kuwa muendelezaji na kwa hiyo mwenye haki juu ya ardhi ya daawa kwa mujibu wa .Sheria ya Ardhi Na.^7 ya mwaka 19^8 ni rufani Mkabirika Salewi. Hukumu ya Baraza la U sululishi v/a Ardhi Kkoa wa Kilimanjaro Wilaya ya Moshi katika shauri narnba 27/198? iliy otolew a tarelie 1^: Agosti,1990 imetenguliwa. • The o rig in a l complainant that is Kucbi Salewi, the Respondent in the Customary Land Appeals Tribunal No.12 o f 2003 having been aggrieved by the d ecision o f the said APPea3-s L^nd Tribunal has appealed to th is Court by his le g a l representative one Paul Kuchi Kulawa against the said d ecision , Likevise, the o rig in a l Respondent is represen t^ by her leg a l representative one Laurbnt Matei Mushi„ The Appellant has lis t e d

the follow ing grounds o f appeal i ■ his Memorandum o f Appeal namely, th a t:- 1* The Appellate Tribunal erred in admitting a clan Resolution ( Muhtasari wa ukoo ) at the appeal stage. 2, The Appeals Tribunal erred in holding that the suit land was a jo in t acqu isition o f the Respondent (Mkabirika) and the father o f the Appellant without anv evidence in support o f such finding* 3. The Tribunal further erred in holding that the Respondent could possib ly bequeth the clan land to her daughter apart from l i f e in terest therein. *+, The Appeals Tribunal m isdirected i t s e l f in stating that I the Appellant depended on the chaga custon that women cannot inherit land. In the instant case there were was no valid bequest at a l l ^s the alleged.jtestator- had ' no ownership o f the su itlan d.' 5* The Appellant Tribunal fa ile d to note the contradiction that the daughter ( Thsr(^sia ) could not possibly take ca:e of the Respondent (Mkabirika) while she -;as married, liv in g away from her„ Based on the said grounds o f appeal, the le g a l r e p re se n ta tiv e o f the Appellant the said Paul Kucni Kulaya prayed that the appeal be allowed with c o sts . By consent, th is Court., on 9/5/-.-005, ordered the parties to argue the appeal by v/ay o f written submissions. The parties have fu lly complied with the said order o f th is Court. I w ill proceed to consider and

determine each ground o f appeal seperately. The Appellant, in the f i r s t ground o f appeal contends t-.’.at the Appeals Tribunal erred in admitting a clan Resolution ( Muhtasari wa ukoo ) at the appeal stage., In reply, the Respondent, contends that the said Appeals Tribunal did not error in admitting the said clan resolu tion as it was real evidence that supported the whole case. The issue to be considered and determined is whether the said Appeals Tribunal erred in admitting the said clan members resolu tion ( Muhtasari wa ukoo ) at the appellate stage. On page 2 o f the typed Judgement, the Appeals Tribunal stated as follow s: r; Klalamikiwa, Mkabirika So le v /i, hakuridMk^ ^ vp B araza la Usuluhish'. v/a ard>n ^- ,T‘ " _,oshi na anarufani kwa sababu z ifu a t a z o ;- 1, Baraza halikuzingatia uamuzi wa ukoo uliotolew a, mlalamikiw i ali<- mbatanisha Muhtasari v/a ukoo wa tarehe 13,Juni,1937." In my considered view, I quite agrae with the submission o f the Appellant that throughout the hearing o f the dispute at the Regional Customary Land Tribunal the said clan resolu tion ( Muhtasari wa ukoo ) was not produced as evidence. I f the said Mkabirika Salewi had such very important document showing tliat the clan members supported her claim then she should have produced it during the t r i a l . I further quite agree with the submission o f Prof.Itemba that the

said document is much more suspect when one considers it s date of 13/6/1997 b ecause at th is time the Regional Housing Tribunal was already in progress, therefore it would not have been possible to convene a clan meeting and resolve to give the suitland to Theresia when the dispute was before the t r i a l Tribunal. A^-ain the evidence on record ( page 1 o f the proceedings ) shows that-when..the dispute f i r s t arose between the p a rties it was referred to the V illage government and ' not to the clan* For the aforesaid reasons, I completely agree with Prof* Itemba in his submission that it was wrong fo r the appeal Tribunal to have admitted and taken in to consideration a document that wis not produced at the t r ia l before .the Regional Curto; arv T ribunal,1* I find and hold that the f i r s t ground o f appeal has m erit. The second ground o f appeal contends that the Appeals Tribunal erred when i t held that the land in dispute v/as jo in tly acquired by o rig in a l Respondent ( Mkabirika Salewi ) and her la te husband Salewi Kulaya. Therefore, the issue to be considered and determined by th is Court is whether the Appeals Tribun~l so erred. It was a finding o f the Appeals Tribunal that the land in dispute was not a clan land but was jo in tly acquired by t^ie said orig in a l Respondent and her la te husband* Prof.Itemba in h is submission, contends that the

issue o f whether or not the land was a clan land was never considered at the t r i a l stage, it was quite a new matter raised at appeal stage. On the other hand, the l"-gal r©presentantive o f the o rig in a l Respondent contends in his reply submission that the issue o f v/hether or not the land was clan land was raised at appeal stage and that the disputed land /as not a clan land but accuired jo in tly by the o rig in a l Respondent and her la te husband Salewi Kulaya„ The said le^ al representative contends further in h is submission that the la te o rig in a l Respondent ( Mkabirika) was among the eight ( 8) wives o f the la te Salewi whereby he had given a piece o f land to each one including the er^'d ^ rika honce the s'.\id it was astonishing fo r the origin?*! Appellant to have contended in his evidence at the t r i a l that h-: was given the suitland. by his father the la te Salewi while Mkabirika had her own children to take care through the said suitland. Having considered the submission o f both parties against the As fax’ as the record is concernedy the t r i a l at the ^regional crcrstoinaxy Land Triounal had proceeded on 'the ba sis that the Land was governed by customary law o f the Wachaga trib e and had evolved-through customary or clan tenure as submitted by P rof. Itemba, Therefore, it was an error on the; point’ •of the appealer Tribunal to have accepted

and acted on the matter as i f it v/as a fa ct in issue and the seriousness o f the error is that it goes to the r o o f o f the ju r is d ic tio n o f the two Tribunals below. I quite agree with the submission o f Prof.Itemba that i f the suitland was not held under customary tenure then both Tribunals below had no ju r is d ic tio n to deal with the matter because both o f them were established t o adjucate on matters concerning land held or governed by customary law. Therefore, unless tlie suitland was a clan land and had evolved according to customary law both tribunals below lacked ju r is d ic tio n . Further, I quite agree with the submission o f Prof.Itemba that the evidence on record shows that the the suitland was a clan land and was not jo in tly acquited as held by the appeals Tribunal,, Mkabirika was one o f the eight (8) wives o f the la te Salewi and on h is death land was divided up and the said orig in a l Respondent, Mkabirika, came to liv e on‘,th6*' suitland1which the la t e ’ Salewi gave to his son, the o rig in a l Appellant and was a lso given the duty to look a fte r and take care o f Mkabirika', the orig in a l Respondent h is stepmother„ I quite agree with th e’ submission o f Prof.Itemba, that- had the suitland been jo in tly owned." T'by Mkabirika arid la te 'S a le w i, then upon the death o f Salewi, Mkabirika' would" have claimed her share but the

fa ct that Mkabirika accepted the d iv ision o f the land by the clan meant that the suitland was a* clan land''and her claims o f 'j o i n t ownership were ah afterthought. Based on the aforesaid, I find and hold that the second ground o f appeal has merit* ‘ 1 ssi% •*•• •• ; • ' • • . ‘ - ■•f ' , ' • '• • . v: The third ground of. appeal contends that the appeals Tribunal erred .when it found that the Respondent could boqueth; the suitland to her daughter one Theresia Marthey, The issue to be considered and ’ A ' • 7 ■ X ■’ * ■ “- ... determined is whether the said finding o f the Appeals Tribunal was co rre ct. The le g a l re p r e se n ta tiv e o f the o rig in a l Appellant in his submission contends that the finding was correct on the ground that Theresia Marthey was the only remaining ch ild o f Mkabirika, among her fiv e children. However, P rof, Itemba. _in h is submission contends, quite, co rre ctly in my considered view that, the ..-finding had no basis in that ir; order to bequeath o' e has f i r s t to 07/:'. but there was no evidence in the t r i a l tribunal that Mkabirika .owned the suitland. she was l e f t in. the, suitland by her la te husband Salewi in th e ... care o f the o rig in a l Appellant, Xuchi Salewi, she was not the heir o f Salewi, le t alone a join t owner. . Her in terest in the suitland was not d iffe re n t from the other seven wives o

f The evidence on record shows that Theresia got married in 19^8 or there about but the o rig in a l Appellant, Kuchi Salawi continued to support Mkabirika, the o rig in a l Respondent u n til when Mkabirika, decided to give away the suitland to Theresia alleged ly by a w ill* However, as submitted by Prof.Itemba, 110 such w ill was produced during the t r i a l at the t r i a l Tribunal land there, was no- clan* . ~> •; • support,, I quite agree with the submission o f Prof.Itemba that the purported dispos?,l or bequeath by Mkabirika to Theresia Martey o f the suitland was invalid-hence the said Theresia would not acquire any t i t l e to the guitla n d . Mkabirika the alleged testa tor had no t i t l e h erself ''ence she could net confer any t i t l e o f the suitland to the said Theresia Marmthey, her daughter. I further quite agree with the submission o f Prof.Itemba that even i f there was a va lid w ill it s e ffe c t would have c^rae a fte r the death o f the te sta to r, however, at the time o f the t r i a l , Mkabirika was s t i l l very much a liv e hence the finding o f the Appeals Tribunal that Th .resia Martey had in h e r it e d the suit land from her mother, Mkabirika, the o rig in a l Respondent had no basis as co rre ctly and r ig h tly submitted by Prof.Item ba. Based on the aforesaid submission o f Prof.Itemba, I f ii d and hold that the third ground o f

appeal has m erit. The f i f t h ground of appeal contends that Theresia Martey could not take care o f the orig in a l Respondent, Mkabirika ( her mother ) as she ( Theresia ) was married and liv in g far av/ay from the disputed land. The issue to be considered and determined is whether Theresia could take care o f her mother ( Mkabirika ) as she was liv in g f o r a-/ay from her a fte r being married. The le g a l representantive o f the orig in a l Respondent in h is submission contends that the la te Mkabirika on the dea;.h o f her husband she was l e f t with the suit land and her daughter Theresia hence she needed to not to be taken core from anyone and that Kuchi Salewi, the o rig in a l Appellant could not take care o f Mkabirika as ho had his own mother to take care and that a fto r Theresia got married she got a good chance to support her mother Mkabirika as she used to send grandchil ’ em to sleep with her as ’woll as attending other matters or works. However, it is the submission o f prof dtemba, which I quite completely agree wit’; that thene was a finding o f fa ct by the t r i a l tribunal and which was not challenged at the appeal stage to the e ffe c t that when Salewi died in 1933? Theresia was a l i t t l e g ir l hence she could not take care o f her mother, that is why Kuchi Salewi, the o rig in a l Appellant was given the r e sp o n s ib ility o f taking

care o f Mkabirika and that when Theresia grew up she was married to the Mushi clan far from the suitland such that there was no way she could attend and support her m o th e r . Mkabirika to the extent o f deserving to be her h e ir. I n ’ ray considered view, I quite,agree with Prof.Iterr.ba in his submission that it was an, error on the part o f the Appeal Tribunal to find and conclude that Mkabirika was the ono who had developed the suitland. ' The.true owner .arid developer o f the suitland was Kuchi Salewi, the o rig in a l complainant as found and held by the t r i a l Tribunal when i t stated that: papo hapo iinethibit ika kuwa mlalamikaji ndiye araekuwa akiwatunza mlalaciikiwa na watoto wake ambao waliachwa wakingali vwadogo bado na marehemu biba yao S alew i.'r This finding o f the t r i a l Tribunal was based on the evidence adduced before it hence the Appeal Tribunal in ray considered view erred when it. • he?_d th a t: Kwa m isingi hiyo ; B .r.iza „ la Rufaa la Ardhi linatamka kuwa muendelezaji na kwa hiyo mwenye haki juu ya ardhi ni rnrufani Mkabirika Salewi” . In the fin a l analysis, I find and hold that the f i ft h ground o f appeal lias m erit. Based on the aforesaid grounds o f appeal., I -iuite agree with Prof.Item ta that the Custcmry Land Appeals Tribunal erred when it the sound and clear judgement o f the Regional Customary Land Tribunal. The judgement o

f the said /Ippeal Tribunal does not shov any fa u lts o f .fact or o f reasoning in the judgement o f the t r i a l Tribunal. Therefore* the appeal lias merit and I hereby accordingly allow it with c o sts . The d ecision o f the Appeals Tribunal is hereby quashed and set aside and the dec? sion o f the Regional Customary Land Tribunal is restored. It is so oidered. F*A0Ro JUTCuIJf jirxi'i s 28. '1 0/2003 Right o f appeal explained* - F.A.R jundu, Jinan., 28/10/2005 DATS: 28/10/2005 CQRAM:- F.A.R. JTJNDU,J FOR THE APPELLANT:' Present FOR THE H^SPONDEMT: Present CC: KIMvRIO • , -.. COURT: Judgement delivered in 'th z presence o f the le g a l representative o f the Appellant and in the presence o f the le g a l repr&Sentafive „ o f. .the - Respondent • . ,< O" • Q>\v JUDG.t.'ly 28/10/2005 at mog: i i .