registered trustees of al markazl islamial ltanbihil ghafilina fii diin al amllid vs national muslim council of tanzania bakwata 2017 tzhc 2080 8 august 2017

IN THE HIGH COURT OF TANZANIAc x DODOMA DISTRICT REGISTRY AT DODOMA LAND APPEAL NO. 43 OF 2016 (Land Application No, 118 of 2013, DODOMA District Land and Housing Tribunal) THE REGISTERED TRUSTEES OF AL MARKAZL ISLAMIAL LTANBIHIL GHAFILIINA FII DIIN (AL MALLID)................... APPELLANT VERSUS THE NATIONAL MUSLIM COUNCIL OF TANZANIA (BAKWATA).....................................................RESPONDENT JUDGEM ENT Date of JUDGEMENT- 07/08/2017 Mansoor, J: This is a dispute of ownership of Masjid Munawar Mwanachungu located in Bahi, Dodoma. While the Appellant through its three witnesses Yusufu Omar (PW1), Ramadhani Issa Ramadhani (PW2), and Maulidi Mohamed Mnyang’anyi (PW3) states that the Masjid belongs to the Appellant, the respondent also contends that the Masjid belongs to BAKWATA. I went through the records and proceedings of the Trial Tribunal and have seen no proof whatsoever proving that the Masjid belongs to either the Appellant or the respondent. The Appellant is the registered body registered under the laws of Tanzania. Although no Certificate of Registration was produced before the Trial Tribunal proving that indeed the Appellant is a registered body capable to sue or be sued, I presume that the Appellant is a body duly registered under the Trustees Incorporation Act, thus able to sue and be sued. From the proceedings, PW2, one, Ramadhani Issa Ramadhani, testified that, he applied for a piece of land from the Village Council to build a masjid in 1999. That Kamati ya Ustawi wa Jamii of the Village gave him 1 V2 acres of land. PW2 did not prove anything in Court as to whether or not the Village council gave him or the Appellant the land. His evidence was a mere word lacking proof. He even failed to produce any evidentiary document to prove that indeed the Village council conferred to the Appellant the ownership of the Land. He did not produce any minutes of the Village Assembly or any Customary Right of Occupancy in the name of the Appellant. His evidence was therefore not substantiated. PW3, Maulid Mohamed Mnyang’anyi contradicted the story of PW2. He said the late Mohamed Mkali donated the land in dispute to the Appellant as a gift intervivos; A gift intervivos is defined in Black’s Law Dictionary 8th Edition at page 710 as; "...a gift o f personal property made during the donor’s life time and delivered to the donee with the intention o f irrevocably surrendering control over the property. ” The law, as it relates to the issue of gifts intervivos, is well established. In the case of Joy Mukobe vs. Willy Wambuwu HCCA No. 55 o f 2005 (unreported Ugandan case) relying on other decided cases, the court held that; <(..f o r a gift intervivos to take vrevocable roots, the donor must intend to give the gift, the donor must deliver the property, and the donee must accept the gift. In this case Musika intended to give the gift because it was reduced into writing. He delivered the gift because the appellants took possession. The donee also accepted the gift because they took possession...the requirements o f a gift intervivos was fulfilled. ” PW3 however failed to prove by any document or any other proof proving that indeed the late Mohamed Mkali had donated the land to the Appellant as a gift intervivos out of natural love and affection, It is to be noted that none of the Appellant’s witnesses; was able "to give evidence to the effect that the suit land was registered in the names of the Appellant. No document or a certificate of title was produced in court to verify the same RW1, one Idd Issa, the witness of the respondent was also not able to prove that the land belongs and was registered in the name of the Respondent. The case of Exavery Nyasio vs. Waumini wa Msikiti wa Bahi Mwachungu tried by Bahi Ward Tribunal did not prove that the Masjid belonged to the Respondent. ■in The totality of the evidence above is that there is no exhibit or any other evidence adduced in court to constitute a gift intervivos or a grant of right of occupancy by the village to either the Appellant or the Respondents. In totality, the Appellant’s evidence was insufficient to hold the plaintiffs/Appellant’s case proved when the best evidence of their own Right of Occupancy (Customary of otherwise) or Gift intervivos have not been produced in Court. No satisfactory explanation had been given for the non-production of the evidence, and the evidence given by the Appellant’s witnesses did not prove the Appellant’s case at all. The Appellant failed to make out a prima case. The Appellant who was the plaintiff at trial is bound to prove his case to the satisfaction of the court and his burden is not lightened merely because the defendant did not have any title to substantiate his ownership, as the burden of proof does not shift to the defendant. After having given careful consideration to the facts and circumstances of the case, this Court is satisfied that the plaintiff has failed to prove his claim. The burden of proof is a matter of law, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; in the sense of adducing evidence. The Evidence Act Section 110 (1) provides that “Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Section 110 (2) of the Evidence Act provides that “When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person". The principle is stated in the law from the point of view of what has been sometimes called the burden of leading or introducing evidence which is placed on the party initiating a proceeding. It says: "112. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact shall lie on any other person.” In practice, this lesser burden is discharged by merely showing that there is evidence in the case which supports the case set up by the party which comes to Court first. It was the Appellant that initiated the claim of ownership at the Trial Tribunal, but failed to substantiate the claim, therefore the trial Tribunal did not error in deciding in favor of the respondent. Thus, based on the above, the appeal must fail, and it is hereby dismissed, with costs. DATED at DODOMA this 07th day of AUGUST, 2017 'V JUDGE 08th AUGUST, 2017