ZWENA MSELEMU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB REGISTRY OF SHINYANGA AT SHINYANGA LAND APPEAL NO. 41 OF 2023 (Arising from the judgment and orders of the district land and housing Tribunal of Shinyanga at Shinyanga in Land Application No 14 of 2021) 1. ZWENA MSELEMU 2. ZENGENI SAID ………………..………… APPELANTS 3. OMARY MWENDA VERSUS NESTORY NG’HOBOKO.…………….…….……… RESPONDENT JUDGMENT 11 June, & 12 July, 2024. th th MASSAM J:. In this appeal, the respondent before the District Land and Housing Tribunal of Shinyanga at Shinyanga in Land Application No. 14 of 2021, took legal action against the appellants claiming to be approved as the legally owner of a suit property with 120 acres located at ‘’Kitongoji cha Kagoma’’ in Ngofila village within Kishapu District, which he had obtained from one Said Slim Slem after being failed to pay back the money he borrowed from him amounted to Tshs. 6,500,000/= and subsequently decided to transfer that disputed land property to the Respondent. 1 The trial tribunal heard the matter in the absence of the 2nd and the 3rd appellants and held in favour of the respondent herein above by declaring him as the legal owner of the disputed land property. Being pained by the decision and orders of the trial tribunal, the appellants appealed to this court based on ten grounds of appeal as advanced in the petition of appeal to the effect that, the matter before the trial tribunal was not proved to the required standard. When the matter was called for hearing, it was argued orally and both the appellants were represented by Mr. Frank learned advocate while the respondent had a legal service of Mr. Sululu learned counsel. Submitting in support of his grounds of appeal, the counsel for the appellants chooses to abandon grounds number 1,6,8,9 and 10 and argued on grounds number 2, 3, 4, 5 and 7. Arguing on the 2nd ground, the counsel for the appellants submitted that, the tribunal erred to held in favour of the respondent while the evidence tendered was contradictory regarding to the issue of boundaries since the exhibits tendered did not support the testimony of the respondent. Again, the counsel stated that, another contradiction is seen from the respondent who testified that he was given that land after the deceased one Said Slim failed to pay back the loan he owed but exhibit 2 M2 shows nothing about those facts. As well, the testimony of SM4 at Pg 33 shows that, he took the money because he was sick and after being recovery he will fix it hence these are the contradictions which shows that the deceased did not transfer the disputed property. With ground number three, the learned counsel submitted that, since the 1st appellant was the legal wife of the deceased, then the land was a matrimonial property and therefore it was not supposed to be mortgaged without her consent, thus, the trial tribunal held that the 1st appellant was not a legal wife of the deceased was an error because even the respondent did testify that she was the deceased’s wife but were currently divorced without bringing any exhibit to prove his claim. The counsel also submitted that, SM3 testified to know the 1st appellant as the wife of Said Slim and they were living at Ngofila Village at Kagoma Harmlet, the evidence which was supported by SM6 at Pg 38, and it was enough to proved that the 1st appellant was the legal wife of the deceased. The counsel added further that, the evidence of SU1 at Pg 42 and 47 shows that they obtained that piece of land way back in 1978 from different people and therefore that evidence prove that the 1st appellant was the wife of the deceased and the property is a matrimonial property 3 and therefore section 59 of the Law of Marriage Act and Section 112(2) of the Land Act must be complied with since the 1st Appellant had interest on it, and due to those reasons the counsel submitted that the exhibits tendered to wit exhibit M1 and M2 should be expunged from the records and the remaining evidence is not enough to support the case in favour of the respondent. Submitting on ground number four the counsel succumbed that, the trial tribunal failed to recognized mortgage made by the deceased one Said Slim as a result, reached into a wrong decision because, the disputed property was mortgaged due to the loan made in favour of the deceased, and the respondent used to rent that land and use it, and as per the provision of section 116 (1) of the Land Act, that property was not required to be transferred to the respondent but rather to remain as a security until payment of the loan. With regard to the fifth ground, it was submitted by the counsel that, as per the decision made before the trial tribunal, it did not consider the evidence tendered on how the respondent obtained that land because, as per the evidence testified preferably that of SM3, it reveals that, the letter dated on 5/02/2017 was to prohibit Farida from troubling 4 the respondent while using that piece of land and therefore the respondent was given that land to use it only and not to own it. On his reply, the counsel for the respondent reasoned that, with the exhibits tendered (exhibits M1 and M2) as challenged by the counsel for the appellants, it is not every facts are required to be stated in those exhibits, because other facts were to be clarified by the respondent, therefore the contradictions claimed by the learned counsel is not existing. Again, the counsel clarified that, the submissions by the appellants that, the alleged plot was mortgaged and not sold is neither in the exhibits nor pleaded in their written statement of defence. Similarly, the counsel added that, the mortgage expired after the deceased failed to pay back the loan he obtained from the Respondent that is why he decided to hand over the land voluntarily to the respondent through exhibit M2 which was witnessed by the respondent’s witnesses including his son and thus the claim by the counsel for the appellants that exhibits M1 and M2 should be expunged from the records is not effective as he did not give valid explanation on how those exhibits are contrary to the law while he used the same to defend his clients at the tribunal. With the issue of elaborating the boundaries as complained by the appellants, the counsel took this court to the case of Kilombero Sugar 5 Co. Ltd Vs Commissioner General (TRA), Civil Appeal No. 26 of 2018, CAT, and submitted that, the exhibits admitted to the court were clear that is why the tribunal used it. Arguing on the third ground, the counsel reasoned that, the tribunal was right to held that the 1st appellant was not the legal wife of the deceased since the evidence tendered shows that, when the disputed land was offered to the respondent, they were no longer husband and wife, thus the 1st appellant was required to bring evidence to counter that she is the legal wife of one Said Slim and the tribunal at Pg 11 of the judgment makes clarifications as to why the 1st appellant was not recognised as the legal wife of the deceased since she did not tender any marriage certificate, and therefore the issue of consent was not required as there was no prove as to whether the land was a matrimonial property or not. The counsel also argued that, the contents of exhibit M2 are clear as there is nowhere reads that the land was mortgaged but rather it reads “makabidhiano ya eneo” and also it shows that, the deceased, Said Slim, obtained that property himself and it does not state as to whether it is a matrimonial property. The counsel added that, it was from the 1st appellant that they bought the said land from different people but she did 6 not bring any witnesses to support her claim as stated in the case of Hemed Said Versus Mohamed Mbilu, [1994]. Submitting on the fourth ground, the counsel maintained what he had stated earlier in his submission to the effect that, no evidence was tendered to prove that, the land was mortgaged rather it was given to the respondent after deceased failed to pay back the said loan as agreed. On ground number five, the counsel contended that, the respondent obtained possession of the disputed land after the deceased failed to pay back the loan he owed, that is why the land was handed over to the respondent voluntarily. Moreover, the claim by the appellant that the respondent is required to pay the appellant Tshs. 7,900,000/= after deduction of his money which is Tshs. 6,500,000/= is an afterthought as it was not raised before the tribunal and the appellant was required to file a counter claim before the tribunal because, even the other appellants did not appear before the tribunal to claim ownership of that land. Further to that, the counsel contended that, as per the contents of exhibit M2, it is clear that, Said Slim handed the disputed land to the respondent and he did not mortgage it and the act of the 1st appellant and one Omary Mwenda who went to evict the respondent from that land 7 while they are not administrators of the estate of Said Slim and started to use it forcefully is against the law hence this appeal has to be dismissed. Resting his submissions, the counsel for the appellants insisted that, since the 1st appellant was the wife of the deceased, she had interest over that land and she was not barred from using it as they jointly get it way back in 1978 from different persons and even if the deceased was alive and divorced to the 1st appellant, there was no way he could take that land alone but rather could be divided to amongst. Yet again, the counsel added that, since one Omary Mwenda was a leader in that area where the land is situated, he was helping the 1st appellant to obtain her land and to evict the respondent from trespassing it. Once more, exhibit M2 did not show that the respondent was given that land after failure to pay the loan but exhibit M1 shows that, the deceased received the money from the respondent and hand over his land to be used, and after Farida had started to annoy the respondent, the deceased decided to make exhibit M2 to risk the situation. Also exhibit M1 and M2 had no consent as the 1st appellant was the legal wife of the deceased as there was no any affidavit sworn by Said Slim to show that he was not married. Further to that, the counsel maintained that they managed to call material witnesses and also there was no need of calling 8 the 2nd and 3rd appellant to testify as they brought joint written statement of defence. After going through the arguments from both sides, the records and the law, now the issue for determination is “who is the really owner of the disputed land”. The law under the provisions of section 110 and 111 of The Evidence Act, Cap. 6 R.E 2019 is clear that, 110.-(1) 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. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. On whom burden of proof lies, 111. The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side. Also, it is obvious the burden of proving a fact rest on the party who substantially proclaims the affirmative of the issue and not upon the party who denies it, for negative is usually incapable of proof. Much less the 9 person whose evidence is heavier than that of the other is the one who must win. In this dispute, both the 1st appellant and the respondent claimed to be the legal owner of the disputed land hence they invited this court to acknowledge their prayers. To commerce with, this court will make analysis of the entire evidence offered before the tribunal to resolve the dispute. From the evidence on record, it was from the 1st appellant that, the disputed land belongs to her since she is the legal wife of one Said Slim, thus it is a matrimonial asset, and again they jointly bought it way back in 1978 from different people. She was aware that her husband took the money to respondent but she said nothing if they returned the money or not. On the other hand, the respondent also claimed that, he obtained possession of the disputed land from One Said Slim way back in the year 2017 after the deceased had borrowed money from him and failed to return it back as per exhibit AK-1, and thereafter the deceased decided to transfer the possession as per exhibit AK-2. From the above observations this court is of the view that, the evidence testified by the Respondent was stronger than that of the appellants due to the fact that, first, he managed to testify on how he 10 gets that land as per exhibit AK-2 which reads “HATI YA MAKABIDHIANO YA ENEO KATI YA MZEE SAID S/O SLIM NA NESTORY NG’HOBOKO. From the above heading, it is clear that one Said Slim decided to surrender his land to the respondent and prevented other trespassers from stopping him from peacefully enjoyment of the land. Further to that, it is the appellants and their counsel who had failed to understand the contents of exhibit AK-2 as that heading was seem to be ambiguous to the parties. Without rounding the bush, and in a plain language makabidhiano means handing over and according to the Cambridge Dictionary, it was defined to mean; “to give another person control of someone or something, or responsibility for dealing with him, her, or it” or to give something to someone else: If that is the case, it is openly that the land was given to the respondent to own and enjoy it without any conditions that he should return it back, and if the deceased purpose was different from what have been stated in Exhibit AK-2, he would have stated it in that exhibit but subsequently he kept quiet, and this court thinks that, he had some other reasons which lead him to surrender that land to the respondent despite the facts that he had children or other people whom he could have 11 surrender the land to them including the one who is claiming to be his wife. Equally, nothing from that exhibit displays as to whether the land was surrendered to the respondent after failure to pay back the money landed to Said Slim who after his failure to return it back, he thereafter decided to give back his land as a compensation, subsequently, this court may term this as new facts because it was not stated in either of the exhibits. Besides, the evidence on record also shows that, before surrendering of that land to the respondent, the deceased had another agreement with the respondent to the effect that, he borrowed money from the respondent, and that property was put as a security as per the contents of exhibit AK-1. From its contents, this court is of the view that, what had been agreed in exhibit AK-1 and AK-2 are different from each other for the reasons that Exhibit AK-2 which was the latest does not speak as to whether it had emanated from Exhibit AK-1. And therefore, the facts that, the land was obtained after failure of payment of the loan by the deceased is nowhere to be seen in those two exhibits, and this court is believing that the land was transferred to the respondent for the 12 unknown reasons kept back by Said Slim and makes Exhibit AK-1 to expire. Moreover, the 1st appellant claimed that, the property is a matrimonial one hence the deceased was not required to transfer it without her consent. From these facts, this court thinks that, he who assert must prove. Consequently, nothing was brought to prove that she was married to the deceased, then how could this court get satisfied that she was his wife, the 1st appellant should be aware that mere words are not acceptable in this technology. See the case of Helena Kakusya Vs. Dennis Methew Mabubu & two others, Land Case No 432 of 2017 HCT at Dar es Salaam, where it was stated that, it is through certificate of marriage can ascertain the married person. Further to that, the appellant claimed that, they jointly acquired that land way back in 1978 from different people, but the records show that, neither an exhibit nor witnesses were brought to prove her allegation as to who sold that land to them or who witnessed it. Refer the case of Mashimba Dotto @ Lukubanija vs. Republic, Criminal Appeal No, 317 of 2013 and CRDB Bank PLC v. Africhick Hatchers Ltd & Another, High Court Commercial Case No.97 of 2017, where it was held that; 13 “Where a party fails to call a material witness without any justification, the court should draw an adverse inference against the party who failed to do so”. See also the case of Ester Aman V. R, Criminal Appeal No. 69/2019 (2020) TZCA (12, Dec, 2020 at Pg 14 and Aziza Abdalah V. Republic [1991] T.L.R 71. Once more, this court is bound with the contents of exhibit AK-2, I quote; “………. Na mashamba ni mali yake mzee ambayo aliyatafuta mwenyewe……. ” From the above quote, if the land was a joint property as alleged by the 1st appellant, the deceased would have stated it, hence the allegations by the appellant has no leg as she is bound with the above words and she was not recognised by the deceased as his wife or even his nearby friend. Therefore, it was the 1st appellant who was required to prove that the disputed property was definitely a matrimonial property. See the case of Habiba Ahmed Nangulukuta & two others Vs Hassan Ausi Mchopa (the administrator of the estate of the late Hassan Nalimo & another, Civil Appeal No. 10 of 2022 CAT Mtwara. 14 From the above meticulously findings, and in applying the principles cited early, this court is blessed to conclude that, the respondent’s evidence was stronger than that of the appellants, and I do not think if the tribunal was wrong to held that, the respondent was the legal owner of the said property. I therefore hold that, the appellant’s grounds of appeal are unmerited required to be dismissed. Consequently, this appeal is dismissed with costs for being unmerited. The trial court decision remains undisturbed. It so ordered DATED at SHINYANGA this 12th day of July, 2024. R. B. Massam. JUDGE 15