20180910 TZHC Mbeya

; I.. -. THE UNITED REPUBLIC OF TANZANIA JUDICIARY ( ") IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MBEYA) AT MBEYA LAND APPEAL NO. 13 OF 2017 (Originating from Land Application No. 140 of 2015 in the District Land and Housing Thbuna/ for Mbeya) MAGE MASAGATI MWAMBUGHA....................I....,..1ST APPELLANT 2ND PA1RICK IALON)E....Z...III .......fl.............. APPELLANT VERSUS V U P1IL..IA JBEL IVL SJ&G,1I ..... EJItIfl ........ ....... DEFE DA11 JUDGEMENT Hearing date on: 161812018 Date of Judgement: on 101912018 NGWEMBE, J: This is an appeal from the judgement of the District Land and Housing Tribunal of Mbeya at Mbeya in land application No. 140 of 2015 delivered on 20th day of October, 2016. The genesis of this appeal is a dispute involving two administratrix, the 1 Appellant being an administratrix of the estate of the deceased Masagati Mwambugha who died on 22 June 1985 and the Respondent is an administratrix of Abel Masagati Mwambugha who 1 died on 41h June, 2003. Both parties were appointed administratrix by • Primary court of Mbeya town on the same month and year but different dates. While the 1 appellant was appointed on 4th December, 2013, the Respondent was appointed on 20th December, 2013. The appellant is a 'daughter of the deceased Masagati Mwambugha, likewise the Respondent is a daughter of Abel Masagati Mwambugha. The late Masagti Mwambugha is a father of the deceased Abel Masagati Mwambugha who is also a blood brother of the Appellant. In the circumstances, the differences are between the appellant against her aunt, daughter of her brother Abel Masagati Mwambugha. With serious note, both parties are disputing on ownership of a piece of land whose original owners died years ago. (Masagati Mwambugha died 1985 to date is equal to 33 years likewise Abel Mwambugha died on 2003 to date is equal to 15 years). In reality the •second appellant is not interested in the subject matter, and throughout in this case had not been an important partisan. The fundamental question to ask at this juncture is, why the dispute over that piece of land today after all that years of death of the original owners. This question will be answered in due course. nd According t3 the record, the source of the dispute commenced by the 2 appellant cultivating the disputed land and threated to kill Respondent, as a result the respondent opened a criminal case No 601 of 2015 in Primary Court of Mbeya town. The 2 nd appellant was charged for threatening to kill 2 the Respondent contrary to section 89 (2) (1) & (9) of Cap 16. That case did not go far for the accused who is the 2 nd Appellant asked for reconciliation with the Respondent by involving elders of their family members. Eventually, the criminal case against the 2 nd Appellant was withdrawn in court on 21/08/2015. In year 2013 the Ist Appellant ventured to institute a land dispute in the Ward Tribunal against her sister in law (wife of her deceased brother Abel) called Tamika Mwaipaja on the same disputed land, but the Respondent was declared by the Tribunal as the rightful owner. However, being dissatisfied with that decision, she appealed to the District Land and Housing Tribunal for Mbeya, which Tribunal quashed the whole proceedings of the Ward Tribunal for the complainant (1 Appellant) had no locus stand th.3t she had not yet acquired the status of being an administratrix of th deceased Masagati Mwambugha. Thus she sought the status by filling Form No. IV in the primary court of Mbeya town as Mirathi No. S.S.M.1963 finally on 4/12/2013 she was officially appointed an administratrix of her late father Masagati Mwambugha. It is also on record that the Respondent instituted a land dispute in the District Land' and Housing Tribunal against the two appellants on September, 2015 praying the Tribunal to declare that the disputed land belongs, to the deceased Abel Masagati Mwambugha and his lawful heirs. As already afforested, the Respondent is an administratrix of her father Abel Masagati Mwarnbugha who is a blood brother of the Appellant in this 3 appeal. The Tribunal determined the dispute and on 20th October, 2016 and declared the Appellants as trespassers of the lawfully owned land of the Respondent. Being dissatisfied with that decision, the Appellants appealed to this court armed with four (4) grievances, which may be summarized as follows:- The Tribunal erred in declaring the disputed land is lawfully owned by the Respondent; That the suit land is part of inheritance of Masagati Mwambugha; That the Tribunal failed to take note that the appellant is the true administratrix of the deceased estate Masagati Mwambugha; and The Respondent failed to prove ownership of the disputed land to the balance of probability. Upon filing the appeal, the Respondent comprehensively, responded to the Memorandum of Appeal and on the hearing date, though both were not represented by advocates, yet argued their case bravely and confidently. The appellant argued that as an administratrix of her late father, she divided the landed property according to four wives of her late father. Later on she was arrested and taken to the District Land and Housing Tribunal but the Tribunal did not listen her evidence together with her witnesses. She further submitted that there are 35 acres of land at Uporoto which are the subject of the dispute, but same belong to her late father. The land is illegally occupied by the Respondent. 4 In turn the 2tid appellant had nothing useful to add to what the 1s t Appellant has so submitted. What he argued is that he is not claiming any ownership over the disputed land. The Respondent was brief but articulate direct to the point that she is the administratrix of her late father Abel Mwambugha who died in year 2003. The land owned by her late father is only 11 acres, the alleged 35 acres are only known by the Appellant. The trees planted some of the 11 acres were planted by the late Abel's family not by the Appellant or related family. The family of Abel are known to the viUage leadership and the Ward, which they know that the family owns 11 acres. Having heard the arguments of both sides, the first issue to consider is whether the late Masagati Mwambugha owned the disputed land, if the answer is in affirmative, then whether same is subject to inheritance of his family. If the answer is in negative, then whether the disputed land is part of the division of the estate of the late Masagati. The evidence of the Respondent who was the applicant in the Tribunal stated that when she was born she found her parents using the disputed land even after death of her father the land continued being under her famUy undisturbed. One Yohana Msagati of 50 years who is living at Atwelo village where the disputed land is situated, stated in Tribunal that he knew both parties and the land belong to the Respondent's family. Another witness was Nanzalene Ndwanga of 58 years who stated that all along the 5 land belong to Abel Masagati no other person. On the appellant who was the respondent in the Tribunal, called three witnesses at the Tribunal including one Benjamin Mwashinga of 64 years old, whereby he testified that the disputed land was also part of the land of late Masagati Mwambugha. He knew the suit land and the trees therein were planted in 1960 but he did not know the size of the disputed land. Further, I had an advantage to read with due care, the documents filed by the Appellant both in this court and that in the Tribunal to find the truth and source of this conflict. In this court the appellant attached Judgement of the Tribunal, but on the Tribunal she attached several documents including Minutes tited Mirathi Na. 98/2013 ya Marehemu Masagati Mwambugha Mgawanyo wa Mashamba ya Familia ya Masagati Mwambugha dated 3/3/2015. The participants in that division were; 1.Christina Masagati Mwambugha, 2. Patrick Walonde, 3. Magreth Masagati, 4. Luse James and 6 Hana Mwakaduma, at the end of that minutes all signed against their names. Interestingly, in the list name of Abel Masagati was not included, which is a good sign that he was not among the heirs of Masagati Mwambugha. Further noted that the administratrix distributed the land while knowing that the land occupied by the family of Abel was subject to the dispute in Ijombe Ward Tribunal at Mbeya Rural and unsuccessfully appealed to the District Land and Housing Tribunal for Mbeya, appeal No. 112 of 2013, which also the appellant failed. p Though the appeal No. 112 of 2013 involved the Appellant and TamikI I Mwaipaja, yet it is noted that Tamika Mwaipaja is a wife of the late Abel Masagati and is the mother of Vumilia Abel Masagati and the disute involved the same piece of land. Also the appellant knew that the said land was subject to criminal case No. 601/2015, and the source of all that disputes was that piece of land. As already said, the family of Abel Masagati were not invite to participate, even to witness the alleged division of landed properties among family members of Masagati. Further, since the disputing parties are blood relatives from one father Masagati Mwambugha, it is common knowledge that the appointment of the appellant to the post of an administratrix of the late Masagati as well as the appointment of the Respondent as an administratrix of the late Abel must have been known to every family member. Therefore, the appellant knew the one responsible to the division and distribution of the properties of the late Abel is her daughter Vumillia, likewise the properties of Masagati is her daughter Mage. The two should not interfere into each other's statutory duty. For clarity the appellant is responsible to divide landed properties of Masagati Mwambugha and when she did so, did not involve family of Abel Masagati, with clear understanding that the said family has appointed Vumillia as an administratrix of the estate of Abel. Based on the above analysis of facts, I now wish to answer in brief if at all the Tribunal faulted any statutory duty in arriving into the appealed decision. The appellant has criticized the decision of the Tribunal that it 7 erred in declaring the disputed land is lawfully owned by the Respondent. Based on the above analysis, this ground is answered in negative. The tribunal was right to declare that the disputed land belongs to the family of Abel. The available evidence, I am not convinced that the disputed land ever belonged to Niasagati Mwambugha and same cannot be part of the landed properties subject to division by the appellant. However, the Tribunal did not find any usefulness to recognize that the appellant is the true administratrix of the deceased estate of Masagati Niwambugha, even this court we do not find its use though noted that the appellant is the administratrix of estate of Masagati Mwambugha likewise the Respondent is the administtratric of the late Abel. As rightly so said, the two are administrators of two different deceased. Each one must execute her duty without interference to another. Finally, the fact that the Respondent failed to prove ownership of the disputed land to the balance of probability, I find indeed is the appellant failed in all levels to proof ownership of the disputed land that belonged to Masangati Mwambugha. Having so said, and for the reasons above, I have no hesitation to arrive to the conclusion that the true and original owner of the disputed land was the father of the Respondent Abel Masagati Mwambugha. Therefore, the family of the true and original owner of the disputed land, have right to use it according to law. This conclusion is supported by the case of Elizabeth 8 Mohamed vs Adolf John Magesa [2016] TLS LR 114, whereby, the Courtof Appeal among others, held that: - "Children are entitled to inherit from their father estate" The appellant had no justification to engage into fruitless exercise of distributing landed properties, which did not belong to the late Masagati Mwambugha. With emphasis, section 45 of the Land Disputes Courts Act Cap 216 R.E. 2002 prohibit to reverse or alter the decision of the Tribunal if no fault was made. The section is quoted hereunder for ease of reference:- "A'o decision or order of a Ward Tribunal or District Land and Housing Tribunal shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings before or during the hearing or in such decision or order or on account of the improper admission or rejection of any evidence unless such error, omission or irregularity or improper admission or rejection of evidence has in fact occasioned a failure ofjustice ' In view of the aforesaid, and on strength of section 45 as quoted herein above, this Court finds no cogent reasons to fault the decision of the Tribunal, which was justified to declare that the disputed land belong to the Respondent. As such this court does not intend to reverse or alter the decision of the District Land and Housing Tribunal for no injustice 4 occasioned. In condusion this appeal is hereby dismissed, since parties are not represented and they are relatives, to order for costs will fuel more conflict among disputing members, therefore, each part to bear her costs. Order accerdngIy. Court: Judgment delivered at Mbeya in Chambers on this 101h day of September, 2018 in the Presence of the Appellant, and the Respondent. P.1 NGWEMBE JUDGE 10/9/2018 Order: Right of appeal to the Court of Appeal to whoever aggrieved by this judgement is explained. / c'XRT S: 46 N. I Ps). NGWEMBE JUDGE 10/9/2018 * 10