Land Appeal NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 15302 OF 2024 (Originating from the decision of the District Land and Housing Tribunal for Kibaha at Kibaha in Land Application No. 272 of 2017) ZAINABU SAIDI PINGILI............................................... APPELLANT VERSUS ROSE MUNISI.............................................................. RESPONDENT JUDGMENT Date of last 0rder:29/ll/2024 Date ofJudgment: 10/12/2024 LALTAIKA, J, The Appellant herein ZAINABU SAIDI PINGILI is dissatisfied with the decision of the District Land and Housing Tribunal for Kibaha at Kibaha (the DLHT) in Land Application No. 272 of 2017. She has appealed to this Court by way of a Petition of Appeal containing the following grounds. 1. THA T, the Trial Chairperson erred in law and fact by entertaining the matter with an authorized Representative or agent hence the purported Respondent had no locus standi to be a lawful owner of the disputed Land according to Exhibit DI. 2. THA T, the Trial Chairperson erred in law and fact by failing to evaluate evidence on record that the Respondent failed to identify the disputed land in land Page 1 of 12 Application No 32 of 2016 between ROSE MUNISI v MICHAEL JULIUS and the disputed land in this Land Appeal. 3. THA T, the Trial Chairperson erred in law and fact by declaring that the disputed /andbelongs to the Respondent while she failed to prove the case on the balance ofprobability as required by the law. 4. THA T, the Trial Chairperson without anyjustifiable reasons erred in law and fact by failing to properly evaluates the evidence adduced before it as such it had ended in unjustifiable judgment. 5. THA T, the Trial Chairperson erred in law and fact by failing to take into consideration what was observed when the Tribunal visited the iucus in quo, that the Plot belongs to the Appellant is not the one which the Respondent won her case against one MICHAEL JULIUS in land Application No 32 of 2016 6. THAT, the whole judgment is problematic and incapable of support. When the appeal was called for mention, parties opted to proceed to hearing by way of written submissions. A schedule to that effect was ordered. Whereas the appellant's documents were appreciably drafted in grat/sby the Legal Aid Centre of the Law School of Tanzania (LST) the Respondent enjoyed skilful legal services of Mr. B.L. Tarimo, learned Advocate. The next part of this Judgment is, in that order, a summary of submissions by both parties, my analysis of the law and the verdict. The Appellant submitted that the appeal was against the judgment and decree of the District Land and Housing Tribunal of Kibaha in Land Application No. 212 of 2017, which was delivered on May 15, 2024, before Hon. S.L Mbuga, Chairperson. She stated that she was aggrieved by the judgment and decree and raised six grounds of appeal. However, she decided to abandon the fourth and sixth grounds of appeal on the basis Page 2 of 12 that they were intricately intertwined with the remaining grounds. She proceeded to submit as follows: With respect to the first ground of appeal, the Appellant contended that the trial chairperson erred in law and fact by entertaining the matter with an unauthorized representative or agent, resulting in the Respondent lacking locus standi to be declared the lawful owner of the disputed land, as per Exhibit DI. She argued that the main issue in contention from Land Application No. 212 of 2017 was the ownership of a parcel of unsurveyed land measuring one and a half acres located at Simbani Street within Kibaha Municipality, Coast Region. Referring to Exhibit DI, which was a sale agreement between Saidi Abdallah Tonitoni and Chigama M. Mkinda dated June 27, 1984, the Appellant pointed out that it was the late Chigama M. Mkinda who had purchased the disputed land from Saidi Abdallah Tonitoni for TZS 3,500. The plot measured two acres. She asserted that the Respondent introduced herself as the lawful owner of the land and was sued in her own capacity. However, during the trial, the Respondent tendered Exhibit DI, which showed that the purchaser was the late Chigama M. Mkinda and not the Respondent. Furthermore, the Respondent did not provide any evidence of being the legal representative of the deceased, which, Page 3 of 12 according to the Appellant, invalidated the trial tribunal's proceedings and decision. The Appellant further contended that the Respondent lacked locus standi to be declared the lawful owner of the disputed land, as only a person granted letters of administration could act as the legal representative of a deceased person. To support this argument, she cited the case of Omary Yusuph vs. Albert Munuo, Civil Appeal No. 12 of 2018 [2021] TZCA 605, where the Court emphasized that only a legally appointed representative of a deceased person could sue or be sued on behalf of the deceased. Based on this observation, the Appellant prayed for the appeal to be allowed on this ground. Regarding the second and third grounds of appeal, the Appellant argued that the trial chairperson erred in failing to evaluate the evidence, particularly the Respondent's inability to identify the disputed land as the same land involved in Land Application No. 32 of 2016 between Rose Munisi and Michael Julius. She referred to Exhibit D3, which indicated that the land in that case was a one-acre parcel at Miunguni Area, Mwendapole, Kibaha, while the disputed land in the current appeal was located at Simbani Street, Kibaha Municipality, and measured one and a half acres. She maintained that the two plots were distinct and that the Page 4 of 12 Respondent failed to prove ownership of the disputed land on the balance of probabilities. The Appellant emphasized the principle that parties are bound by their pleadings, citing James Funke Gwagilo vs. The Attorney General, [2004] TLR 161 and Peter Karanti and 48 Others vs. The Attorney General and 3 Others, Civil Appeal No. 3 of 1994. She also referenced the case of Abdallah Rashid Abdallah vs. Sulubu Kidongo Amour and Another, Civil Appeal No. 13 of 2008, where the Court held that the purpose of pleadings is to ascertain disputes and narrow areas of conflict. She argued that the Respondent’s evidence and pleadings were inconsistent and failed to identify the disputed land. Consequently, she prayed for the appeal to be allowed on this ground. In relation to the fifth ground of appeal, the Appellant argued that the trial chairperson failed to consider the observations made during the tribunal's visit to the locus in quo. She stated that the trial chairperson acknowledged that the land shown by the Respondent during the visit, which was linked to Land Application No. 32 of 2016, was different from the disputed land in the current appeal. The Appellant maintained that this inconsistency further demonstrated the Respondent's failure to prove ownership of the disputed land. Page 5 of 12 The Appellant reiterated the importance of parties being bound by their pleadings and cited relevant cases to support her argument. She contended that the tribunal's findings at the locus in quo contradicted the Respondent's written defence, as the plots described in the two cases were different in size, location, and ownership history. She concluded that the trial tribunal erred in its decision and prayed for the appeal to be allowed on this ground. In conclusion, the Appellant prayed that the appellate court allow the appeal, quash the judgment and decree of the District Land and Housing Tribunal of Kibaha, and award costs to the Appellant. Mr. Tarimo, Counsel for the Respondent, argued that the Appellant's first ground of appeal lacked merit. He stated that the Counsel for the Appellant had contended that the Respondent introduced herself to the Appellant as the lawful owner of the disputed land but later tendered Exhibit DI, which showed that the purchaser of the land was not the Respondent. Moreover, the Appellant argued that the Respondent did not provide any document proving her capacity as the legal representative of the late Chigama M. Mkinda, who was the purchaser. Consequently, the Appellant maintained that the Respondent lacked locus standi to be declared the lawful owner of the disputed land without establishing that she acted as the legal representative of the deceased. Page 6 of 12 Responding to this contention, Mr. Tarimo submitted that the trial tribunal had properly considered and addressed the pleadings, testimonies, and exhibits tendered by both parties. He asserted that the Counsel for the Appellant failed to disclose the contents of Exhibit D2, which was a marriage certificate indicating that during the purchase of the two acres of land (part of which was the disputed plot), the purchaser, Chigama M. Mkinda, was married to the Respondent. He noted that Chigama M. Mkinda died in 1989, leaving the Respondent as his widow. Since then, she had owned, occupied, and developed the disputed unsurveyed land uninterrupted for over thirty years. Mr. Tarimo emphasized that the land in dispute was unsurveyed and had been left under the care and ownership of the Respondent as the widow, distinguishing this case from others. He further contended that this issue had been addressed during the hearing of Land Application No. 32 of 2016 and could not be raised at the appellate stage since it was not argued at the trial tribunal. He referred to Exhibit D3, where the tribunal noted that the Respondent had continued developing the property since her husband's death in 1989. He also cited the case of Constantino Mhaluka vs. Pius Lupala, PC Civil Appeal No. 01 of 1999, where the High Court held that when a man dies intestate, the widow acquires Page 7 of 12 her husband's interest in land as if they were joint tenants. Based on this, he prayed for the first ground of appeal to be dismissed for lack of merit. Regarding the second and third grounds, Mr. Tarimo argued that the Appellant's claims of distinct plots were baseless. He submitted that the Respondent had consistently testified about her ownership of the two- acre plot mentioned in Exhibit DI and had identified the boundaries clearly. He explained that the Appellant's assertion of discrepancies in land size and location stemmed from evidence presented in different applications involving distinct parties and periods. He insisted that the Respondent's testimony and evidence were consistent and credible, supported by witnesses, while the Appellant failed to prove ownership of the disputed land. He argued that the burden of proof remained with the Appellant, as the applicant in the trial tribunal, and prayed for these grounds to be dismissed as meritless. As for the fifth ground of appeal, Mr. Tarimo contended that the Appellant's argument regarding the tribunal's visit to the locus in quo was unsubstantiated. He submitted that although parties are bound by their pleadings, there was no indication in the Respondent's pleadings or testimony to suggest that the entire two acres were trespassed upon. Instead, the disputed one-acre portion was part of the larger two-acre plot indicated in Exhibit DI. He maintained that the Respondent's Page 8 of 12 ownership was well-established and that the tribunal's findings supported this conclusion. He, therefore, prayed for the fifth ground to be dismissed. In conclusion, Mr. Tarimo prayed for the appeal to be dismissed in its entirety with costs, as all grounds lacked merit. I have dispassionately considered the rival submissions. I have also thoroughly examined the trial Tribunal's records. The following issues call for my determination: 1. Whether the Respondent had locus standi to be declared the lawful owner of the disputed land. 2. Whether the trial tribunal properly evaluated the evidence adduced during the hearing. 3. Whether the tribunal's visit to the locus in quo was adequately considered. I will proceed to address each of the above issues starting with the first on locus standi. The Appellant argued that the Respondent lacked locusstandi^ecd^se Exhibit DI, the purchase agreement, indicated that the purchaser was the late Chigama M. Mkinda, and the Respondent failed to tender proof of her legal representation of the deceased's estate. The Respondent countered that as the widow of the deceased, she inherited the land by operation of law and had uninterrupted possession and development of the land for over 30 years. Page 9 of 12 In addressing locus standi, it is fundamental that a party must demonstrate a legally recognizable interest in the subject matter of the dispute. This principle aligns with the case of Lujuna Shubi Ballonzi v. Registered Trustees of Chama Cha Mapinduzi [1996] TLR 203, which requires a party to show a direct legal or equitable interest. The trial tribunal noted, and this Court concurs, that the Respondent's long possession, coupled with her status as the widow of the purchaser, sufficiently established her interest in the land. The High Court in Constantino Mhaluka v. Pius Lupala (Supra) held that a widow acquires her deceased husband's interest in land as if they were joint tenants. This principle is applicable here, where the Respondent demonstrated uninterrupted occupation and development of the land since 1989. Thus, this issue is resolved in favour of the Respondent. Moving on to the second issue, The Appellant contended that the trial tribunal failed to consider the evidence regarding the ownership and boundaries of the disputed land. He further alleged inconsistencies in the Respondent's claims about the land's location and size. Conversely, the Respondent maintained that her testimony and evidence were consistent and supported by credible witnesses. The trial tribunal evaluated Exhibit D3, which documented the Respondent's successful claim against a trespasser in relation to part of Page 10 of 12 the same land. The tribunal also considered Exhibit DI, which showed the purchase of two acres of land by the Respondent's late husband. The tribunal's findings established that the Respondent owned and occupied the land for over three decades without interruption, and the alleged discrepancies regarding boundaries were immaterial to the ownership dispute. As noted in Hemed Said v. Mohamed Mbilu [1984] TLR 113, courts are mandated to assess the credibility of witnesses and the consistency of evidence. In this case, the Respondent's evidence outweighed the Appellant's assertions, as the Appellant failed to discharge the burden of proof as required by law. Therefore, it is my finding that the trial tribunal properly evaluated the evidence, and this Court finds no fault in its findings. On the third issue, the Appellant argued that the trial tribunal erred in disregarding the observations made during the visit to the locus in quo, which allegedly supported his claim. However, the Respondent contended that the visit corroborated her ownership and occupation of the disputed land. A visit to the locus in quo serves the purpose of clarifying evidence presented in court, as emphasized in Nizar M.H. Ladak v. Gulamali Fazal Janmohamed [1980] TLR 29. The trial tribunal's observations, Page 11 of 12 as recorded in Exhibit D3, affirmed the Respondent's uninterrupted occupation and development of the disputed land since 1989. This Court finds that the tribunal appropriately considered the findings from the visit to the locus in quo, and the Appellant's argument on this ground is unsubstantiated. In the upshot, the appeal is hereby dismissed in its entirety. I make no orders as to costs since the Appellant is a legal aid recipient. It is so ordered. E.I. LA LTAl KA JUDGE 10/12/2024 Court: Judgment delivered in Court Chambers this 10th day of December 2024 in the presence of the Appellant who has appeared in person, unrepresented and in the absence of the Respondent and/or her Counsel. Page 12 of 12