YESAYA GERSON MAGINGA

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA LAND APPEAL CASE NO. 97 OF 2023 (Arising from Land Application No. 2 of2020 in the District Land and Housing Tribunal for Iramba at Kiomboi) YESAYA GERSON MAGINGA (As administrator of the estates of the late Gerson Maginga Magasi, Tyumbati Maginga Magasi, PHipHi Maginga Magasi).... APPELLANT VERSUS 1. ZEBEDAYOYUDA 2. GRACE KILASI 3. LUCAS MATELA 4. DAUDI LANGE 5. JACKSON CHARLES 6. SAMSON CHARLES RESPONDENTS 7. NAKOMOLWA NOGIGWA 8. MANASE NOGIGWA 9. NOGIGWA NAKOMOLWA 10. NAGUNGWA SAMSON MSENGI (as administrator of the Estate of the late Pelipetua Samwel) 11. SAMWEL NALUMBIKYA MAKALA (as administrator of the Estate of the late Phoibe Samwel) 12. TIMOTHEO STEPHANO 13. RAYMOND MWAILA JUDGMENT 14h August & 25th October, 2024 MUSOKWA, J. In the present appeal, the appellant herein was aggrieved by the decision of the District Land and Housing Tribunal at Kiomboi (DLHT) in Land i Application No. 2 of 2020. According to the records of the DLHT, the appellant is the administrator of the estates of the late Gerson Maginga Magasi, the late Tyumbati Maginga Magasi, and the late Pilipili Maginga Magasi. The brief facts are that one Tyumbati Maginga Magasi had title to the suit land. Upon his demise in 1965, one Pilipili Maginga Magasi inherited the suit land until his demise in 1967. Thereafter, the land was inherited by Gerson Maginga Maginga who died in 1989. The suit land comprises of 34 acres of land spread across 3 farms; the 1st farm entails 25 acres and is located in Suni-Kisimba village. The 2nd farm measures 7 acres, located at Mandoya-Kisimba village; and the 3rd farm measures 2 acres located at Igugulya-Kisimba village. The suit land is in Kisiri Ward, Iramba District Council, Singida Region, valued atTZS 13,200,000/-. The appellant herein, alleging trespass to the suit land, filed an application before the DLHT seeking for orders to be declared the lawful owner of the said property. Upon a full trial, the DLHT entered judgment in favour of the respondents. Being aggrieved, the appellant lodged the present appeal based on the following grounds: - 1. That, the Trial Tribunal erred in law and fact in declaring ownership to the respondents without considering that the conditions for adverse possession were not met. 2. That, the Trial Tribunal erred in law and fact in declaring ownership to the respondents without considering that parties are bound by their pleadings. 2 3. That, the Trial Tribunal erred in law and fact in declaring ownership to the respondents without considering that the respondents did not have the good title of ownership. 4. That, the Trial Tribunal erred in law and fact in declaring ownership of the respondents without considering strong evidence of the applicant, exhibits and his witnesses. 5. That, the Trial Tribunal erred in law and fact in declaring ownership to the respondents without visiting the locus in quo to verify the address, measurement and boundaries of the suit land. 6. That, the Trial Tribunal should have declared the appellant the owner of the area pleaded by Raymond Mwaila (SU3). On the date scheduled for hearing this appeal, Mr. Samwel Mcharo, learned counsel represented the appellant. The counsel for all respondents, Mr. Emmanuel Charles did not enter appearance without notice. The 11th respondent one Samwel Makala, appeared in court and prayed to fend for himself following the absence of his Advocate without notice. The said prayer was granted. In addition, the matter proceeded ex parte against the rest of the respondents for the same reason. Mr. Mcharo, submitting on the 1st ground of appeal asserted that, the DLHT erred to decide in favour of the respondents, and to declare them the lawful owners of the suit land on the basis of adverse possession. The appellant's counsel argued that the DLHT failed to consider the fact that the required conditions of adverse possession were not met. The learned counsel stated that, in order for a person to claim adverse possession, certain conditions 3 must be met as per the case of Bhoke Kitangita vs Makuru Mahemba, Civil Appeal No. 222 of 2017, (unreported). According to the appellant's counsel, in the matter before the DLHT, the statutory conditions were not met. Further that, the testimonies of all the respondents acknowledged the presence of the appellant on the suit land, including the fact that he built a house therein. On the 2nd ground of appeal, Mr. Mcharo argued that, parties are bound by their pleadings. In the amended Written Statement of the Defense, the respondents herein, claimed ownership through various means. However, their testimonies were in contravention of the assertions in the Written Statement of Defense. The appellant's counsel contended that this is contrary to the law as the law does not permit a party to deny claims that are contained in the pleadings. Further, Mr. Mcharo stated that the respondents claimed title through adverse possession; operation vijiji and through inheritance all at the same time. According to the appellant, this was impossible as section 60 of the Evidence Act, Cap. 6, R.E. 2022 (Evidence Act) provides that parties are bound by the documents tendered in court as evidence. The case of James Funke Gwagilo vs Attorney General, [2004] TLR 161 was cited to support this point. As regards to the 3rd ground of appeal, Mr. Mcharo prayed to adopt his submissions put forward on the 1st and 2nd grounds of appeal. 4 Arguing on the 4th and 5th grounds of appeal, the counsel for the appellant asserted that the DLHT reached the decision without visiting the locus in quo. Mr. Mcharo contended that it was necessary to visit the suit land, based on the prevailing circumstances. The appellant referred to pages 69 and 95 of the typed proceedings of the DLHT, whereby the respondents testified that some graves were built within the suit land. The appellant's counsel reiterated that it was paramount for the DLHT to have paid the visit thereto in order to verify the truthfulness of the information. The case of Nizar M. H. vs Gulamali Fazal Jari Mohammed [1980] TLR 29 was preferred to cement this point. On the 6th ground of appeal, the learned counsel referred to paragraph 8 of the amended joint Written Statement of Defense whereby the respondents claimed that one Raymond Mwaila (13th respondent herein); owns one acre of land. However, when giving his testimony, the said Raymond Mwaila denied owning any portion of the suit land. The judgment of the DLHT at page 11 provides that the said Raymond Mwaila does not claim title to any portion of the suit land. In this regard, Mr. Mcharo submitted that the DLHT ought to have declared the respective acre of land, to be the property of the appellant. Therefore, the appellant's counsel prayed for this court to grant this appeal, quash and set aside the decision of the DLHT with costs. 5 In reply, the 11th respondent, Mr. Samwel Makala, vehemently disputed the 1st ground of appeal. Mr. Makala, referring to pages 11 to 12 of the typed proceedings of the DLHT, alleged that the appellant admitted, that the dispute arose in 2020. Further, the appellant admitted that one Grace Kilasi (the 2nd respondent herein) has been dwelling in the suit land since 1976. The 11th respondent stated further that the appellant also admitted that; Lucas Matela (3rd respondent) has been an occupant of the suit property since 2006. On that basis, Mr. Makala prayed that this ground of appeal lacks merit and accordingly should be dismissed. It was added that all the respondents herein have been using the suit land and have developed it for over 12 years without any disturbance. On the 2nd, 3rd and 4th grounds of appeal, Mr. Makala adopted his earlier submissions and reiterated that the suit land has been occupied for a long time, and houses have been built therein by respondents. Addressing the 5th ground of appeal, the 11th respondent submitted that, it was not necessary for the DLHT to visit the locus in quo as the testimonies of the witnesses were coherent and precise. Further, there was no contention between the parties on the size or the location of the suit land. Regarding the 6th ground of appeal which concerns one Raymond Mwaila, it was the submission of the 11th respondent that there was no evidence that was adduced at the DLHT to prove the ownership of any portion of the 6 suit land by Raymond Mwaila. Thus, this court cannot grant a person ownership to the said land, without proof of ownership thereof. The 11th respondent, reiterated that the dispute arose in 2020, as indicated at page 14 of the typed trial proceedings of DLHT. The 11th respondent further submitted that Lucas Matela built his house in 2006 and according to the law, adverse possession occurs where a person occupies land undisturbed for a period of 12 years. Thus, the decision of the DLHT was justified in granting ownership to the respondents on the basis of adverse possession. In concluding his submission in reply, 11th respondent stated that he was born in 1981, and in 1989, he was dwelling in the suit land with his relatives. In view of the foregoing, the respondent prayed that this appeal be dismissed entirely with costs. In rejoinder, Mr. Mcharo prayed to adopt his submission in chief, entirely disputing the arguments of the 11th respondent. After a thorough consideration of the parties' submissions, and taking into account the evidence on record, the issue to be determined is whether or not this appeal is meritorious. In the case of Maria Amandus Kavishe vs Norah Waziri Mzeru and Another, Civil Appeal No. 365 of 2019, (unreported), the Court of Appeal of Tanzania (CAT) at pages 15 and 16 stated that: - 7 "It is again trite law that the burden of proof never shifts to the adverse party until the party on whom onus Ues, discharges his duty; and that the burden of proof is not diluted on account of the weakness of the opposite party's case." [emphasis added] Thus, the burden of proving ownership to the suit land at the DLHT, was borne by the appellant herein, as he claimed ownership of the suit land. This is in line with the provision of sections 110 and 111 of the Evidence Act. Again, the standard of proof, is on the balance of probabilities as provided under section 3(2) (b) of the Evidence Act. The 1st and 3rd grounds of appeal, relates to the doctrine of adverse possession. The law provides that the possession had to be adverse in that; occupation had to be inconsistent with, and in denial of the title of the true owner of the premises for undisturbed period of 12 years. The necessary conditions thereof were sufficiently deliberated in the case of Registered Trustees of Holy Spirit Sisters Tanzania vs January Kamili Shayo and 136 Others, Civil Appeal No. 193 of 2016, (unreported). According to the records, the instant case relates to suit land that allegedly forms part of the estate of the late Gerson Maginga Magasi, whose demise was on 4th May, 1989. The appellant herein was appointed to administer the estates of the deceased persons on 16th November, 2018. In this 8 regard, section 35 of the LLA is applicable. The said section stipulates that in suits for the recovery of land relating to the estate of deceased persons; time begins to accrue when the letters of administration or otherwise probate, is granted. For ease of reference, section 35 of the LLA is reproduced hereinafter: - "For the purposes of the provisions of this Act relating to suits for the recovery of land, an administrator of the estate of a deceased person shall be taken to claim as if there had been no interval of time between the death of the deceased person and the grant of the letters of administration or, as the case may be, of the probate." In the case of Ester Bora Mbilinyi (administrator of the estate of the late Bora Dalamali Mbilinyi) versus Elia Mwiname and 7 others, Mise. Land Appeal No. 05 of 2023 (unreported), this court (Luvanda, J.) held that: - "In the persuasive decision from India, the case of Ramcharan Singh vs Mst. Dharohar Kuer, Patna High Court [AIR 1954 Pat 175] on 22 October, 1952 Reuben, C.J. had this to say at page 12, "There is ample authority for the proposition that applications for probate are not governed by the law of limitation " [emphasis added] 9 The case of Ester Bora Mbilinyi (supra) went further to distinguish between the administrator as opposed to executor of the will in relation to the time limits. It was held that: - "...a distinction must be drawn between the mandate of executor of a will and the administrator granted with letters of administration or probate. In the former, the title is vested in the executor from the moment of the testator's death. In other words, the executor comes into existence as soon as the will becomes an operative document, that is to say, when the testator dies, and time commence running from the death of the testator. On the other hand, an administrator comes into existence when there has been grant of letters of administration, and time will run from the date of a grant In Rameharan (supra) at page 8, it was held, I quote, "'Under the terms of Section 211 the executor is the legal representative of the deceased person from the date of his death and limitation would run against him from this time. In contrast, limitation would run against the administrator from the date of grant of letters of administration" [emphasis added] In this matter, the appellant was appointed to be the administrator of the estates of the deceased persons in November, 2018. Therefore, the conditions for the doctrine of adverse possession, including 12 years from the date of appointment were not met. In the circumstances thereof, the respondents herein, were wrong to claim title to the suit land through the principle of adverse possession. io The 2nd ground of appeal challenges the evidence adduced by the respondents as regards to the process through which they claim to have acquired title to the suit land. The appellant's counsel attacked the respondents' evidence for being contradictory. Further that, there is variation between the contents in the amended joint Written Statement of Defence, and the testimonies at the DLHT. Looking at the records, the amended Written Statement of Defence, provides as follows under paragraphs 4, 6 and 8: - ”4 ...The 2nd and l(fh respondents collectively state that the suit land referred by the applicant in this paragraph is an area allocated since operation vijiji 1974 as settlement area from which the above aforementioned respondents came into use and occupations about more than 30 years while the 3rd respondent come into use of the suit land since 2000after demise of the first owner one Iddi Kiwasi in the year 1989. 6...However the respondents collectively denied the averments in this paragraph and assert that originally, the 25 acres used to be Kiniunga dan property, but later allocated for use to some family members including some of respondents in this suit and part of it was sold to some of respondents. 8. The contents of paragraph 6(a) (vi) are also disputed in its entirety and the applicant shall be called into strictly proof and 12th and 13th respondents contended that before operation vijiji, the original owner of the said two acres in dispute was kiniuga dan but after relocation, the two acres were allocated to respondents as residential and settlement areas, the year 1974 and they li have been under uninterrupted ownership up to date." [emphasis added] Clearly, the pleading above which is a joint Written Statement of Defence, of 13 respondents, contained assertions by all the 13 respondents as regards to how each of them, claim title to the suit land. Notably, the suit land involved a vast area of land measuring 34 acres, and spanning across 3 different villages. Further, the testimonies of the witnesses of the respondents were in line with the aforementioned. Thus, the 2nd ground of appeal is baseless and accordingly fails. The 4th ground of appeal challenges the impugned decision of the DLHT for failure to accord weight to the evidence adduced by the appellant herein. However, having carefully examined the records, it is apparent that the testimonies of the appellant and his witnesses at the DLHT, were tainted with contradictions. The records of the DLHT indicate that, SMI when cross-examined asserted that the land dispute arose in 2020. However, the testimony of SM4 was to the effect that the dispute arose in 2018. On the other hand, SM6 testified that the conflict began in 2002; whereby SM5 averred that the respondents trespassed into the suit land in 2014. On his part, SM3 stated that the conflict was resolved in 2018. 12 Looking on the typed proceedings of the DLHT, the testimony of SMI is recorded at page 14 that "Mgogoro umeanza 2020 baada ya kuapishwa mahakamani. However, SM3 at page 29 of the typed proceedings, during cross examination stated that "...2018 tulisuluhisha mgogoro ukaisha wakapewa sharti wakivuna waachie eneo na wakitaka kuende/ea kuUma wapewe ruhusa." Further, the testimony of SM4 is recorded at page 33 of the typed proceedings stating that "Mgogoro umeanza 2018 miaka ya nyuma tu/ikua tunalima wenyewe." Finally, SM6 during cross examination, testified as recorded at page 40 of the typed proceedings that "Mashamba ya mgogoro siyo ya ukoo. Shamba la Maginga Hpo Magharibi, la Ki/asi Hpo mashariki. Mgogoro huu umeanza 2002." In light of the above proceedings, it is evident that the testimony of the appellant and his witnesses at the DLHT was weak and inconsistent. This was to his detriment as he failed to discharge the duty of proving his case to the preponderance of probabilities. Accordingly, this ground is also dismissed for want of merit. On the 5th ground of appeal, the complaint is on the DLHT's failure to visit the locus In quo. However, the conduct of these visits is usually done at the discretion of the DLHT, or the court. This is dependent on the 13 compelling circumstances of each case, in order to avoid the possible danger of the DLHT becoming the witness in the case. In land matters, visits to the locus in quo assist the adjudicator in ascertaining conflicting assertions by the parties on various issues including the size or location of the suit land; or as it relates to a particular feature therein. In the case of John Chuma vs Pastoli Lubatula and Others, Land Appeal No. 9 of 2019 (unreported) it was held that: - "These visits are intended to get a visual appreciation of the area in contention and check the accuracy of the evidence given in the course of the trial. Invariably, this happens after the parties have dosed their cases. The legal holdings are to the effect that, the Court or tribunal must exercise great caution when doing that, in order not to constitutes itself as witness in the case." [emphasis added] Notably, a visit to the locus in quotes not substitute the party's obligation to adduce sufficient evidence to prove his case. Having said so, and having assessed the circumstances of this matter, I find that there was no pressing need to necessitate a visit by the DLHT to the locus in quo, as the size or location of the suit land was not in question. In view of the foregoing; the DLHT erred to declare ownership of the disputed land to the respondents based on the principle of adverse possession. However, the appellant failed to prove his claim on the balance 14 of probability. Consequently, the appeal is partly allowed regarding inapplicability of the principle of adverse possession. For the purpose of clarity, the decision of the DLHT is entirely upheld but solely on the ground that the appellant failed to prove his claim to the required standard. No order for costs because the appeal is partly allowed. It is so ordered. DATED at DODOMA this 25th day of October, 2024. Judgment delivered in the presence of the appellant, and his counsel Mr. Samwel Mcharo; and in the absence of the respondent. I.D. MUSOKWA JUDGE 15