upendo aron mgogo vs israel aron mgogo 2022 tzhclandd 12758 24 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISCELLENEOUS LAND CASE APPEAL NO.44 OF 2021 UPENDO ARON MGOGO APPELLANT VERSUS ISRAEL ARON MGOGO RESPONDENT fRpinn pn annp;)l from the Judgment and Decree of District ^Rd and Housing Tribunal for Kilombero District at Ifakara) m|||| dated the 02"^ day of DdceW^per, 2cj|pi( in \ \ L^ndAppe|.g|9'<>fa^^^^ r JUP6M|WT6|;|,TH'fe'mVRT S.M. KALUNDE.3.: || jP'''' This is a se in ^liich the appellant is challenging the decision (nfiitl)|.Man|tt||p 'B^'ward Tribunal in Case No. 16 of 2019 (hereinafter'^lttoejlliiprd tribunal"). Before the ward tribunal the respc rt^eWtillijiplllted a'suit against the appellant for trespass into his piecil|Of lanJ||jmelsuring 1.76 acres with Customary Title No. 084KLMlf^||397,)iiocated at Kanyenja, Mikoroshini Mang'ula 'B' Ward, Kilombero District in Morogoro Region registered in the name of Tusubilege Mwasika Mwasile (hereinafter "the disputed land"). The said title was issued on the 26.08.2018. The background leading to the dispute before the trial tribunal was that: In 2001 the respondent was taken under the care of Aaro^^ Mgogo (Baba Mdogo) and Tusubilege Mwasika Mwasile (Mama Mdogo). Apparently, the late Aron Mgogo is the appellants father whilst Tusubilege Mwasika Mwasile is the appellant's stepmother. The respondent stayed at Mzee Mgogo family where he was raised and schooled for the entire period until their demise. Mzee Mgogo passed away around 2012 whilst Tusubilege Mwasika Mwasile passed away In 2019. In 2018 before her demise, Tusubilege 'fJlljy|pika Mwasile, managed to survey the suit property and,.was grlltiljid \(ylth a customary title with registration No. 084|<LM/9(jl|§^t?|]i|[Jjin th!^''passing of Tusubilege Mwasika Mwasile a disput^'ipver o'iijliershll!) of the suit property arose. The respondent,,<!l5)|lt^lj)(J^fj|Jjjt|iat ||lh'e property was given to him by the deceased''lll^^ore''h9^r demise. The appellant on the other alleged that tt p''S'Lllt pi;o|]^||j^ w^S' part of the property of their father. Having heail I the liaWfj^s, tli'e ward tribunal was satisfied that the responden^'lllj^s l||||wful|fJwner of the suit property. .i""""l|lh "' ' 'I I. The .alpbellant was nltt pleased by the decision of the ward tribun^ii'iSljll ijl\l^jjcci'i!ift!Jliy lodged Land Appeal No. 58 of 2020 at Distrj Land''^|jd l^tebsing Tribunal for Kilombero/Malinyi District at Ifaka Ijiereinjker "the DLHT"). She has now preferred the present appeal. Tf!'^"l^etition of Appeal contains five grounds of appeal which may be summarized into mainly one complaints; that the DLHT erred in declaring the respondent to be the lawful owner of the suit property without evidence exhibiting how the property was transferred from the late Tusubilege Mwasika Mwasile to the respondent^jj The appeal was argued by way of written submissions. However, it is on record that oniy the appellant was able to file her submissions. The respondent did not file their submissions. I take it that they have waived their right to be heard. I will therefore proceed to determine the appeal. In her elaboration of the grounds of the appellant alleges that in the first, second and fourth grounds olfl^peal r'||ates to the DLHT failure to re-evaiuate and anaiyz^|jit)||evidencfeifl)*'aiiable on record and thereby arriving at an ip^ccurat^jcpncltljpiofi that the respondent was the lawful owner of the sulbprop^rty,. She contended that the ward tribunal records wtere (jleiVWlitllkbe suit property was registered in the name __;P|f■' "III N. Tu|^|jbiieg^^^^I^wasika Mwasile, her stepmother and guardi^ to ttj^jresjilitjpdent. The appellant argued that it was improp^ foi|||he res[il|j ident to be declared the lawful owner of the suit prolllnty llllanwo'ijnt of inheritance without proof of .'""llllli, "111. letters of ^(|minisl|jation. mpording to the appellant, allegation that the iat^,j|j|^pl!l i^i"MW/,apika Mwasile gave him the disputed property befoi e her ise'lljipre unfounded as the property was registered in her e and r jst that of the respondent. lliiiiii''' Arguing on the third and fifth grounds of appeal the appellant contended that the respective grounds were question the respondent locus stand to institute the matter before the ward tribunal. The appellant argued that in absence of letters of administration appointing the respondent as an administrator of the estate of th late Tusubilege Mwasika Mwasile the respondent had no locus to file the suit before the ward tribunal. In support of that contention the appellant cited the provisions of section 33 and 71 of the Probate and Administrations of Estate Act, Cap. 352 R.E. 2019. As for the question of locust stand! the appellant cited the case of Lujuna Shubi Ballonzi Senior vs. Registered Trustees of Chama Cha Mapinduzi (1996)TLR 203, this Court (Samatta/'lill^^ he theq was) acknowledged/>7te/'5//a that: „ ''''llh, J'* 'ihiiiii. V "In this country, focus standiis gov^ne^^^'^ common law. According t6th^t law, order to maintain proceedings^^successfiHIy^ a plaintiff or an applicant /77£/5f we court has power to dewk^e the^jssue but also that he is entiti^dho^ bn/^\the ^h^^tter before the ( 4iii "I ■ Relying on the llj|pv0!^|jg^m|^tte, the appellant insisted that this Court finds ||jj'^Wtll|n the''fe([jpeal and proceed to allow the same and consequenV|l||fip';tiing|||si(;ie the judgment and decree of the DLHT e w I'' jw thai I' the appellant has questioned whether the first appellate lUdlllrt properly re-evaluate and analyze the evidence available, I propose to start by considering whether that duty was abdicated by the DLHT. In its decision, having considered the evidence on record, the first appellate court concluded that the respondent had established his ownership over the suit property through a registrable interest under the customary certificate of title which had devolved to him following the demise of the lawful owner Tusubllege Mwaslka Mwaslle. The question now Is whether these findings were supported by the evidence on record. The respondent testimony before the ward tribunal was to the effect that the late Aaron Mgogo (Baba Mdogo) and Tusubllege Mwaslka Mwaslle (Mama Mdogo) had been living ^^hd take care of him since around 2001. The late Aaron Mgogo passecJ^l^way In'|pi2, thereafter In 2014 the appellant and her relatlltes.,filed a illijfjidgalnst the late Tusubllege Mwaslka Mwaslle,,({jeek fdt|^ plltolfj^tion of the estate of the late Aaron Mgogo.^ It w^5,|^resli(|ved that all the properties remained to be tlj||' pr{llp'll'(l)''''lifflllithe late Tusubllege Mwaslka Mwaslle. In 201i3|||the'lln^nd w^s, surveyed followed by Issuance of a customatij'certlfjfjj^te'l!jfl||j;itle was Issued to the said Tusubllege Mwasll^j'Mvl|slle. Pa'i'll||ol' the respondents' testimony reads as follows: '''llii, ''llllliiniii'''' ,.-"',',"111 |(l'"M{jl , "III M||jj ,,iilljj "Mr \mo 20u^yliilifika Mangula na huyu mama '' shamba na marehemu baba m'Obgo , ndiyo walikuwa wananilea. 'al^omesha kuanzia darasa chekechea hadi l\dato cha nne mwaka 2012, Marehemu baba \\\\\xxii^i^dogo ah'fariki dunia. AHbakia mama mdogo alinilea hadi mwaka 3/2019 akafariki dunia - lilipofika 2014 mdaiwa Pamoja na ndugu yake mwengine waiiozaiiwa kwa baba mmoja waiiweza kumpeieka marehemu mama mdogo Mahakamani wakidai maii ya marehemu baba yao. Baada ya mama mdogo kuwashirikisha kwamba nataka kuuza sehemu moja ya kiwanja changu nataka nijenge nyumba nyingine Hikuwa nyuraba hiyo imechoka. Hikuwa inavuja sana. Ndipo waiipoweza kumkataiia. Na kumwambia kuwa, huna mamiaka ya kutupangia mail aiizoacha marehemu baba yetu. Ndipo Watoto hawa waiienda kufungua mirathi iakini iiishindwa maii iiibaki kwa mke wa marehemu. Tangu hapo mdaiwa na ndugu zake waiikuwa hawasaiimiani na mke wa mareher^i^)^ hivyo mpaka mungu anachukua uhai wake baa^.ya W hapo nikawa nimebaki mimi na \mama WtUte tu. Baada ya ndugu zetu kutut^^%\\\KatikaY famiUa hiyo tarehe 22/Q^/201^^bpacia\^ mashamba hayo tuii^nda na mama kwenda waliposajiii ^^usubUege Mwasike Mwasile\na ahayefatia ni mimi Israel Argh' ^go^o^ada^ya marehemu mama j kufarOif^u J^^riia niiiendeiea kuiii^unza}^. Kwa sababu hiio shamba nime^as ^kpU^urp^s 2014. Na shamba ka 2bf^ niiipotaka kwenda kuiima ba hiB\^ekuta shamba hiio iimekwisha \f^i^\)laa^(^pkuuil^^ mdaiwandiyoameiima. [Emphasis is mine] testimony is supported by Daniel Peter Mdaila (AW2) who recalled having seen the appellant cultivating on the suit property since around 2014. Another supporting testimony came from Rosse Mwasika Mwasile (AW3) a sister to the late Tusubilege Mwasika Mwasile. Her testimony was that she has bee cultivating on the farm between 2010 and 2013 before her sister took over the farm and handled It over to the respondent. In addition to the above orai testimony, the respondent tendered in evidence a copy of the certificate of customary right of occupancy issued in accordance with provisions of the Village Land Act, Cap. 114 R.E. 2019 (hereinafter "the Act). Ir||j&ccordance with the Act the procedure for the application, grant and lll(^|j|agem^t of customary right of occupancy is provided for'l|jJi|j|er sectllli|jpif^2, 23 and 24. Under section 25 of the /\({|: upot^^ jijjl'lJilljj^idn of the application procedure an applicant is grantfec]^ witPii.a "certificate of customary right of occupan^''. l^(|!l!IW'&!®ilieecls: , "25.- (1) grant of a customa^ rigl\t\\of oc^gpancy has been concludeh.a villagk,counci/ shall, within /io^'''Wreil!ll|f^a/i filnety days of that ^^qonclusldn, a customary right of oc^panc/^ythe applicant who accepted ^ Inferred to In section 23 by .('""""'llllii, 3 certificate, to be known as a \ificate of customary right of Occupancy'to that applicant. llllliiiiii'R^ A certificate of customary right of occupancy shaii be- (a)in a prescribed form; (b)signed by the Chairman and secretary of the viiiage council; (c) signed or marked with a personal mark by the grantee of the customary right of^ /V occupdncy to which it relates at the foot of each page ofthe certificate; (d) signed, sealed and registered by the District Land Officer of the district in which the village is situate. It would appear that the late Tusubllege Mwasika Mwasile complied with the appiication procedure provided ,&j|i|^under the Act. As a resuit, on 26.08.2018 she was granted with Custolfi)|tY Titj^ No. 084KLM/90397. In terms of section 27 of the ;^lti|[)^|Custd!jtli'ry Titie was given to the late Tusubllege Mwasl^ Mw^^jj^'fot'H&n indefinite period. The said certificate was t^/ji(j|^|j|d adi'ljipied in evidence. According to"FOMU YA UHAKI>(i(j||/VA fevA MPANGILIO"the late Tusubllege Mwasika i^wfesjle illtegist^^ as the lawful owner of the suit property and jl he re4(i|ndeljjt)'''lSRAEL ARON MGOGO is registered as a per^P w k registered interest over the suit property Neither the appellant or any member ofil|(|e |mily o^^tedted to the issuance or grant of the custo()aaiiyilljdgfll|j|jj)/""lil!Jdupancy to the late Tusubllege Mwasika Mwajjie. I dcfl|ot jjlll'nk it would be appropriate for them to appear and itTferfere was property now. •^Illliiiii"'' On the other hand, through her testimony, the appellant insisted that the suit property formed part of the property of her father. Justin William Mdlml (RW2) informed the ward tribunal that he was a neighbor to the suit property. This is correct and he indicated as such in the customary certificate of titie. In addition t that he said that the appellant was the daughter of the late Aron Mgogo. That was about it, there was nothing pointing to the fact that the witness knew the appellant as the owner of the suit property. Kaisi Hosea Cheyo (RW3) testified that the suit property was rented to Afredi Nyirenda after the demise of the late Aaron Mgogo and Tusubilege Mwasika Mwasile to avert family disputes. Throughout her evidence the appellant did not pr^^t any credible evidence that her father remained the lawfui,|Owner or'ljtj| P[;<^rty of that she was the lawful owner of,the Yli'llp;[fj|j3ert:\l!' In her testimony she admitted that the ownef''6¥i,the stijl!' property was her stepmother. However, her complafrt|ljjinii|^fj|i|]||>peV'and the appeai before the DLHT was that the''l|^^onc!te(;it was riot the owner but a mere beneficiary. But as il"feve ,erii!|^vor!^d to demonstrate above, the respondent is not n(|ferely ^''l^nefitelly of the suit property has registered interest'll^l|j|je li|||i|^rope,t^. All saifljjancl'l bne, lil!^|);he two courts below, I am satisfied that the res);|(}j|jjdeilll|[|iii'ttiiiriight in instituting the suit before the ward tribu|al be(!)kse'''ljjjriider the certificate of customary right of occupkjncy the )-espondent has a registered interest over the suit property'.'''ftliinli!' view he was not supposed to stand and watch when the appellant trespassed and interfered with the property to which he has registered interests. In similar vein, I am convinced that the two lowers' courts were correct in declaring the respondent to be the lawful owner of the suit property.^ ff For the above reasons, I cannot interfere with the concurrent findings of the two lower courts because I have not seen any misapprehension the evidence or omission to consider available evidence. There is also no indication that the two lower courts have drawn wrong conclusions from the facts, or that there is a misdirection or non-direction on the evidence. As stated earlier, I see no reason to disturb or interfere with concurrent ffrtilj[jigs of th^ two lower courts. V} ''li' ""lIUu In the end and for the above re^gjpns, I ^njisail^^ed that the appeal is destitute in merits. It is accordi^ly diVjssed. Given the circumstances, no order for cos^'i's rll^|l!"'""lllillii,. It is so ordered. , ''l|||i. )•"' IiksALAAtoj' '"V this y24'" day of NOVEMBER, 2022. C:; c X "lllll :r LXJ -r- > I ,»"""H||| — /g. M. Kalunde lllliiiii'' JUDGE 10