luhiwiti

IN THE HIGH COURT OF TANZANIA (MOROGORO SUB-REGISTRY) AT I3C MOROGORO LAND APPEAL NO 16928 OF 2024 SAID RASHID LUHIWITI APPELLANT fADMINISTRATOR OF THE ESTATE OF THE LATE RASHID ALLY LlHlWm^ VERSUS ABDALLAH MAG ASA RESPONDENT ALLY RASHIDI LIHIWITI 2'^'' RESPONDENT ZAINA RASHIDI LIHIWITI 3'^° RESPONDENT DATE OF JUDGEMENT- 21 /11/2024 JUDGEMENT MANSOOR. J The appellant is the administrator of the estate of the Late Rashid Ally Lihlwltl and he claims that the land of 40 meters wide and 80 meters long situate at Gezaulole Neighborhood, Mbuyuni Village, Minepa Ward within Ulanga District in Morogoro Region, herein shall be referred to as 'The disputed land", forms part of the estate of the Late Rashid Ally Lihiwiti. He claims that the Late Rashid Ally Lihiwiti was allocated the disputed land during the 1 I Page \ operation of viilegallzatlon "operation ya vijiji" in 1975, having being relocated from Aiamba Farms. The appeliant says, his father, the Late Rashid Aliy Lihiwiti died in 2008 and left the disputed land in the care of his wife Khadija Hassan Kawiii who used it for farming until her demise in 2016. The appellant was appointed the Administrator of his late father's estate on 12 December 2022, almost 14 years after the death of the deceased. According to the Letters of Administration issued to the appellant by Lupiro Primary Court(exhibit PI), the Late Rashid Ally Lihiwiti passed away on 12 December 2008. The respondent, on the other hand, claims that he purchased the land in dispute from Asha Lihiwiti, Zaina Lihiwiti (the 3"' respondent) and Ally Lihiwiti (the 2"=" respondent) on 6 January 2018, he actually purchased three (3) acres for TZs 3,000,000/= (Tanzanian Shillings Three Million Only). See Exhibit D2. Abdallah Lihiwiti who was the appellant's witness at trial was the witness to the Sale Agreement and had confirmed before the Trial Tribunal that It is true that Abdallah Kasim Magasa,the first respondent in this appeal, had purchased the disputed land from Asha Lihiwiti, Ally Lihiwiti and Zaina Lihiwiti in 2018. The Sale Agreement(Exhibit Dl) was witnessed also by the Chairman and Secretary of Gezauiole Hamlet who signed and stamped the 2I Page Agreement. In 2019, the appellant surveyed the disputed land and was granted with the Customary Right of Occupancy under Section 25 of the Viilage Land Act, Cap 5 of 1999. The Customary Titie "Hati ya Kimiia" was admitted as evidence at Trial Tribunal and marked as Exhibit D3. The case against Ally LihIwitI proceeded exparte as he did not appear to defend his case despite efforts to serve him with the summons and pieadings, but Zaina Lihiwiti who was the 3'''' respondent at trial had confirmed before the Trial Tribunal that It Is true that her, Asha Lihiwiti and Aily Lihiwiti had sold the land in dispute to Abdallah Magasa in 2018. She also said that they were given that piece of land by their Late father Rashid Ally Lihiwiti before his demise, thus, the iand cannot form part of Rashid Ally Lihiwiti Estate. Her evidence was corroborated with Mirathi Fomu Na. 5 (exhibit P2) in which this disputed land was never listed as part of the estate of the Late Rashid Aliy Lihiwiti to be administered by the Administrator. After fuii trial, the appellant's case was dismissed with costs, and the disputed land was declared the lawful property of Abdallah Magasa, the I®' respondent herein. 31 Pa ge Aggrieved with the decision of the District Land and Housing Tribunai for 0 Uianga sitting at Mahenge, the appeliant filed an appeal raising three grounds; 1. That the Trial Tribunai erred in law and fact for its failure to evaluate assess and analyze the evidence adduced by both parties hence reaching into an unfair decision; 2. That the Trial Tribunal erred in law and fact to entertain the matter without having requisite jurisdiction; 3. That the Trial Tribunai erred in law and fact for pronouncing judgement which is contradictory and vague; The appeal was argued by written submissions; the appellant was represented by Advocate Koheleth Julius while the 3"" respondent was represented by Advocate Michael Michael ChamI,the first respondent also was represented by Advocate Delias but the appeal against the 2"'' respondent proceeded exparte. Arguing in support of the first ground,the advocate for the Appellant submits that the 2"=" and 3"^ respondents did not have good title to pass it over to the 1st respondent as the land in dispute belonged to their Late father Rashid 4 I Page Ally LIhiwitl. That the 2"'' and 3"" respondents' claims that they were given the land by their Late father when he was still alive but they never produced any documentary evidence to prove that the Z"'' and 3"^ appellant were given the land by their Late father when he was still alive. The counsel continues to state that their father passed away In 2008 and left the disputed land In the care of his wife who used It until her demise In 2016, and that the Z"'' and respondents sold the land to the 1^ respondent immediately after their mother died. The counsel refers to the case of Abbas Ally Athuman Bantulaki and KCB (T) Limited vs Kelvin Mhaity (Administrator of the estate of the Late Peter Walcher, Civil Appeal No. 385 of 2011 (reported on TANZLII), in which it was held that a person who has no good title cannot have powers to pass it over, and the property sold remains in the property and part of the estate of the deceased. The Counsel argues further that the 1* respondent cannot be termed as the bonafide purchaser since he bought the property from the people who did not possess any title to the land, and that the sellers of the disputed land did not act in good faith and that the purchaser did not do his due diligence to make sure that the 2"'' and 3'"' respondents had a good title before he purchased the land from them. The counsel refers to the case of Gwantwa 5I Page Boniface Mwanguku (as the administrator of the Estate of the Late Boniface Mwanguku)vs Aiiecy Maiili and another. Land Appeal No. 22 of 2021(reported on TANZLII). The Counsel for the appellant abandoned ground 2 of the appeal and argued on ground three that the Chairperson was aware that the land forms part of the estate of the Late Rashid Lihiwiti, and without regard to this fact he continued to bless the sale of the land to the I®' respondent from the people who were not the administrators of the estate of the Late Rashldi Lihlwltl. He therefore urges the Court to allow the appeal, with costs. On her part, the 3^" respondent who was represented by Advocate Michael Michael ChamI, the Counsel In his submissions basically repeated the reasoning made by the Trial Chairperson of the Tribunal that there was no proof forthcoming from the appellant to prove that the Late Rashid Ally Lihlwltl was allocated this land in 1975 during the operation ya Vijiji vya Ujamaa, and if it was true that the Late Rashid Ally Lihiwiti was allocated any land during that time, the pleadings never stated in which village or area the land allocated to the late Rashid Ally Lihiwiti situated. The Counsel submits further that there was no proof that after the demise of the Late Rashid Lihiwiti in 2008,the land was used and occupied by his wife until 2016, when 6I Page the wife passed on. He submits further that there was no proof given at trial # by the appellant to prove that the wife of Rashidi Ally Lihiwiti inherited the land in dispute since there were no letters of administration exhibited before the Tribunal to prove how ownership of the disputed land passed over from the Late Rashidi Ally Lihiwiti to his wife after the death of Rashidi Ally Lihiwiti. The Counsel argues that parties are bound by their pleadings and he refers to the case of Salim Said Mtomekeiea vs Mohamad Abdallah Mohamad Civil Appaal No. 149 of 2019(2023) Tanzania Court of Appaal 15 Fabruary 2023 Tanzlii. The Counsel submits further that since the land was surveyed by the respondent and he was granted with the Customary Right of Occupancy "Hati ya Kimila", this is proof that the land belongs to the 1^ respondent, and to support his arguments he refers the court to the case of Amina Mauiidi Ambaliu and othars vs Ramadhan Juma Civil Appaal No. 35 of 2019 availabia on Tanzlii. He states that the appellant had chance to challenge the process of survey of the land but he decided to sleep on his right until the process completed and the title issued, and that he cannot now be heard to claim that the land does not belong to the title holder. 7I Page On the third ground, Counsel Cham! supports the findings of the Trial Chairperson, and said that the judgement was clear and not contradictory. That there was evidence that the land belonged to the 2"'' and 3'"'' respondents as they were given the land by their late father before he passed away, thus they had a good title to pass it over to the appellant. He argues further that the fact that the land was sold to the 1=^ respondent by the 2"'' and 3'''' respondents was corroborated by the evidence of PW2, the witness of the appellant, which shows that the sellers had good title to sell the disputed land to the purchaser who now possesses the good title. The counsel prays that the appeal be dismissed as it lacks merits. I did not see the submissions by the first respondent who was ordered to file it on 29^ October,2024 and failure to file the submissions as ordered by the Court amounts to failure to defend the appeal, hence the appeal against the respondent shall also be determined exparte. I find support of the stand from various decisions of the Court including the case of Monica Dickson Vs. Hussein 3. Wasuha (KNY CHAMA CHA WAFANYABIASHARA),PC Civii Appeai No. 4 of 2019(unreported), it was held inter alia that: 8I Page "It is a settled legal principle that the failure to file written submission as ordered by the court Is a manifestation of failure to prosecute the case. Failure to file written submission on the dates scheduled by the court Is as good as non-appearing on the date fixed for hearing". Similar position was taken by the Court of Appeal of Tanzania In the case of Director of Public Prosecutions Vs. Said Saleh All [2018] TLR 131 (CA), where the Court had the following to state: "Before we conclude our decision, we think It Is worthy note that arguing on application/appeal by way of written submission Is synonymous with presenting oral submission before the court. Thus, If a party falls to file his/her submission on a scheduled date It Is equated as If he/she has failed to appear on hearing date with a consequence of dismissing the matter before a court". Coming to the merits of the appeal whether the Trial Chairperson had misdirected himself when evaluating the evidence, I shall first consider the Issue whether the 2"=" and 3"' respondents had good title to the disputed land to enable them passing It over by way of sell to the respondent. As 9I Page submitted by the Counsel for the appellant the Issue whether the land in dispute belonged to the Late Rashid Ally Lihiwiti was admitted by the 2"^ and 3'''' respondents during trial. In the proceedings Zaina Rashidi Lihiwiti who testified as SU2 said and I quote: "mashamba haya tuHpewa na baba wote wakati wa uhai wake, baada ya. kufarik! marehemu baba mwombaji akakata hapo akamuuzia mchina kuchimba kokoto, miml na marehemu dada Asha na AHi tukamuuzia Abdallah Magasa." Again, in paragraph 4 of the written statement of defence of the 3'^'" respondent Zaina Rashidi Lihiwiti admitted that the land belonged to their father Rashidi Ally Lihiwiti and that before his demise he gave the land to his children Asha Lihiwiti, Ally Lihiwiti and Zaina Lihiwiti. This paragraph reads: " eneo hilo tulilluza kwa pamoja ASHA LIHIWITI, ZAINA LIHIWrn na ALLY LIHIWm ambao tulikuwa tukimiliki eneo hilo kwa pamoja baada ya kupewa kama zawadi na marehemu Rashidi Ally Lihiwiti tangu akiwa hai" The undisputed fact, and the fact which was admitted by the respondents at trial Is that the land belonged to the Late Rashidi Ally Lihiwiti. Since the fact 10 I P a g e was not disputed, it needed no proof from the appeliant.I understand that the appellant being the plaintiff at trial had a duty to make and establish his legal claim by reasonable preponderance of evidence as stated in the Law of Evidence Act as well in a number of court decisions including the case of Crescent Impex(T)Limited vs. Mtibwa Sugar Estates Limited (Civii Appeai No.455 of 2020)[2023] TZCA 17501 TANZLII, the Court of Appeal stated; "It is also elementary that the standard of proof, in civii cases, is on balance of probabilities which means that the court will sustain such evidence which is more credible than the other on a particular fact to be proved. Likewise, it is the law that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his/her burden to prove and the said burden is not discharged or diluted on account of the weakness of the opposite party's case." However, the plaintiff discharges the duty and onus of proving a fact once the fact is admitted by the opposite side. Therefore, in this case, the fact which is undisputed and admitted by the opposite party is that the land in dispute belonged to the Late Rashidi Ally Lihiwiti, there was no requirement or burden on the part of the plaintiff/appellant to prove how and when the 111 P a g e Late Rashid Ally LIhiwItI acquired or was allocated the land as that issue was not a controverted fact. That being the case the Administrator of the Estate of the late Rashid Ally Lihlwltl Is entitled to administer this piece of land as part of the Estate of the deceased. The pertinent question is whether It is true that the land was given to Asha Lihlwltl, Zaina Lihlwltl and Ally Lihlwltl by their Late father Rashldl Ally Lihlwltl before he passed away and that Asha ZaIna and Ally were In possession and use of the disputed land before and after the death of their father, the Late Rashid Ally Lihlwltl. Since this fact Is alleged by the 3^" respondent, and disputed by the appellant, this Is the pertinent fact which needed proof, and now the burden of proof shifted. The one alleging ownership by way of gift or to be given by the Late Rashid Ally Lihlwltl I.e. the respondent herein needed to bring proof that Indeed before his demise In 2008,the Late Rashldl Ally Lihlwltl had given the land In dispute to his three children I.e. Asha, Ally and ZaIna and had excluded the appellant herein who Is also his son, or that he gave the land to all his children,.and who was allocated what. I had a chance to peruse not only the written statement of defense filed by ZaIna Rashid Lihlwltl, the S"' respondent herein, but also the entire records Including her testimonies at trial but did not find any proof adduced by her 12 I P a g e to prove whether it is true that she was given this disputed land by her father # before he died. She simply averred without providing any evidence that the land belongs to her as she was given by her father before he died. Parties are bound by their pieadings and can only succeed according to what she has averred in his pieading and proved in evidence; the 3'^ respondent who introduced a fact that the land is her land having been given by her father when her father was stili alive was required to parade evidence to support what she had earlier pieaded. The burden of proof shifted on the 3'^ respondent who introduced that fact in her defence and the proof is on the balance of probabilities. See the case of MARTIN FREDRICK RAJAB VS. ILEMELA MUNICIPAL COUNCIL AND ANOTHER CIVIL APPEAL NO. 197 OF 2019, reported on Tanzlii. Having failed to discharge that duty, it is obvious that Asha Lihiwiti, Zaina Lihiwiti and Aily Lihiwiti had no land to sell, they did not possess a good title to be able to pass it over to the respondent. This brings to the issue on whether the Customary Title Issued to the respondent is valid. There is a principle In law known as "buyer beware principle", also known as"caveat emptor". This is a legai concept that places the responsibility on buyers to research and inspect products before making 13 I P a g e a purchase. The term comes from Latin and means "let the buyer beware". Buyers are responsible for assessing the quality of products and understanding the risks associated with a purchase. As the purchaser of title to the land, the respondent was required to conduct a thorough search through the Village Land Register or through the Village Land Council in order to make sure that indeed it is true that the land belongs to the sellers. It is not clear whether the sellers had disclosed to him how they became the owners of the land; before purchasing the land he was required to investigate the title of the sellers and be satisfied that the land legally belonged to the sellers before making the purchase. He failed to do that and he can never become the bonafide purchaser. He took the risks and must face the consequences. As held herein above, the Sellers of the disputed land could not prove that they possess good title to be able to pass it over to the respondent. Consequently, the Sale Agreement entered between the I®' respondent, and the 2"'' and 31^ respondent cannot be a valid Sale Agreement as a person cannot sell what he does not have. It follows therefore, the Sale Agreement between the respondent, and the 2"=" and Srd respondent is declared Invalid hence void ab initio. It follows again that the consequential steps taken by the 1=^ respondent, the survey of the land 14 I P a g e and the Customary Title "HatI ya Kimila" granted to the respondent becomes Invalid. Consequently, and based on the above, the grounds of appeal succeed, and the land in dispute Is declared to be part and parcel of the estate of the Late Rashid Ally LihiwItI, and the appellant herein Is entitled to administer It. The appeal Is meritorious and it Is hereby allowed, with costs. DATED AND DELIVERED AT MOROGORO THIS 21^ DAY OF NOVEMBER 2024. 02^ -9 \ LATIFA MANSOOR Uj X 2 \'V JMDgE 21/11/2024 15 I Page