Moya Luminu vs Serikali ya Kijiji cha Chamalendi & Others (Civil Appeal No. 277 of 2024) [2025] TZCA 1139 (16 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: GALEBA. J.A., MGEYEKWA, J.A. And MLACHA, J J U CIVIL APPEAL NO. 277 OF 2024 MOYA LUMINU (as the administrator of the estate of the late LUMINU MASANGU .............................................. APPELLANT VERSUS SERIKALI YA KUIJI CHA CHAMALENDI..........................1 st RESPONDENT DISTRICT EXECUTIVE DIRECTOR - IGUNGA ................ 2 nd RESPONDENT THE ATTORNEY GENERAL ............................................. 3 rd RESPONDENT (Appeal from the decision and Decree of the High Court of Tanzania at Tabora) (Kadilu, J.) dated the 13thday of February, 2024 in Land Case No. 12 of 2022 JUDGMENT OF THE COURT 7th & 16th October, 2025 MLACHA, J.A. Moya Luminu (the administrator of the estate of the late Luminu Masangu) sued the respondents, Serikali ya Kijiji cha Chamalendi, The District Executive Director Igunga and the Attorney General (hereinafter referred to as the first, second and third respondent, respectively) in Land Case No. 12 of 2022 before the High Court of Tanzania at Tabora (the High Court) seeking to recover a piece of land measuring at 25 1

acres situated at Chamalendi village, Igunga District, Tabora Region (the suit land). The case was dismissed hence the appeal now before the Court. Briefly stated, the facts leading to this appeal may be presented as follows. Moya Luminu (PW1), a resident of Chomachankola village, Igunga District is son of Luminu Masangu who died in 1975. It was alleged at the High Court that Luminu left a piece of land measuring 25 acres which fell into the hands of PW1 after his death. The latter claimed that he used the land for agricultural purposes up to 1978 when the Land was borrowed by Chomachankola village, in line with the lands of three other villagers, to be used for community farming, in a community project called MFUMAKI. PW1 said that the suit land was returned 1999. He tendered a letter to that effect. That, sometimes in 2013, Chomachankola village was divided to create a second village called Chamalendi. PW1 remained in Chomachankola village while his land fell in Chamalendi village. He retained his land, despite the division of the village, up to 2018 when the first respondent trespassed the land and allocated it to its villagers for use, alleging it to be its land. Efforts to stop the exercise could not succeed.

In a bid to recover the land, PW1 filed Probate and Administration Cause No. 1 of 2018 at the Primary Court of Igunga District at Chomachankola and was given letters of administration (exhibit PI) on 25/7/2018 to administer the estate of his late father, which was nothing but the suit land. Upon attaining the legal status, he filed the case at the High Court. During the trial, he called Elias Nzuba (PW2) who testified that the suit land belonged to the late Luminu Masangu because he used to see him using it before he died. He added that, it fell to the appellant upon his death who used it up to 1978 when it was borrowed by the Chomachankola village. He also called Yusuphu Mwishamu (PW3) who told the trial court that the first respondent did not own the land. PW3 corroborated the evidence of PW1 and PW2 that the suit land belonged to the appellant's father and fell to the appellant upon his death. He also said that, the suit land was borrowed by the village in 1978 and returned in 1999. Robert Tungu Tegwa (PW4) had a similar story. Jimisha Mang'weng'ula (DW1), the Village Executive Secretary (VEO) told the trial court that, the land belonged to the village and when need arose in 2018, it leased it to some villagers who were in need of land. He agreed that the village took peoples' lands but dated

it to 1974. That the village took people's lands in 1974 but they were compensated by other pieces of lands. He said that the land in dispute belongs to the first respondent. That was also the evidence of Richard Onesmo (DW2). The High Court found that there was no evidence proving that the land belonged to the late Luminu Masangu. There was also no evidence showing how it passed to the appellant. It rejected the evidence of the appellant and dismissed the case with costs as intimated above. The appeal has two grounds of appeal which can be paraphrased to read as follows: one, that, the learned Judge erred in law and facts in holding that there was no proof on how Luminu Masangu acquired the land and; two, that, the learned Judge erred in law and fact to hold that there was no evidence on how the ownership of the land shifted to the appellant. The appellant was represented by Ms. Stella Thomas Nyakyi whereas the respondents were represented by Mr. Lameck Marumba, learned State Attorney who teamed up with Mses. Grace Mwema and Beatrice Manyori, learned State Attorneys.

Submitting on ground one, Ms. Nyakyi contended that, the appellant's father got the land by clearing the bush as reflected in the evidence of the appellant at page 83 of the record of appeal and the evidence of PW2 and PW3 at pages 91 and 93 respectively. She contended further that, the land was owned customarily so the appellant was not expected to tender any document of tile as found by the learned Judge. The appellant was thus correct to base his case on the evidence of PW2 and PW3 who saw his father using the land long before he died. In ground two, Ms. Nyakyi contended that the appellant proved how the land came to his possession by production of letters of administration (Exhibit PI). She contended further that, the land shifted to him under customary law following the death of his father in 1975. He referred the Court to the evidence of the hamlet leader (PW4) who gave the history of the land saying he used to see the appellant's father using the suit land and later following his death, the appellant took over the land up to 1978 when he released it to MFUMAKI. He went on to submit that there was strong evidence on how the appellant got the suit land contrary to the finding of the learned Judge. He cited the case of Sharifa Habibu v. Mohamed Juma Ali & others, Civil Appeal No.

445 of 2021 (unreported) where it was stated that whoever adduces sufficient evidence to raise a presumption that what is claimed is true, the burden shifts to the other party, who will fail unless sufficient evidence is adduced to rebut the presumption. He contended further that, the respondents were supposed to bring evidence to encounter the evidence of the hamlet leader but they did not do so. They instead brought DW1 who alleged that people were compensated in 1974 something which was out of context. He challenged the evidence of DW1 that he was not in the village in 1974 and was thus not competent to challenge things which were done while he was not in office. He cited our decision in Ombeni Kimaro v. Joseph Mishili t/a Cathoric Charismatic Renewal, Civil Appeal No. 33 of 2017(unreported) to support his contention that the appellant has an upper hand in the land because he got it earlier than the villagers who were given the land by the first respondent in 2018. Mr. Merumba opted to respond to the two grounds conjointly. Making reference to paragraphs 6, 7 and 8 of the amended plaint appearing at pages 33 to 36 of the record of appeal, he contended that the evidence that the appellant became the owner of the suit land in 1975 contradicts the letters of administration which were issued in

2018. Amplifying, he submitted that ownership of the suit land was vested on the appellant by the letters of administration which were issued in 2018 so he cannot be said to be the owner of the land in 1975. He went on to submit that, the appellant did not say how his father got the land. That, there is no evidence that the late Luminu Masangu cleared the bush as alleged. He contended further that, there is no evidence showing who gave the suit land to the village in 1978. Further, there is evidence from DW1 showing that the people whose lands were taken by the village were compensated in 1974. When he was engaged by the Court on the quality of the evidence of DW1, he agreed that DW1 is a leader of the first respondent which is the new village so he might not know issues of the old village properly. Nevertheless, he urged the Court to dismiss the appeal. In rejoinder Ms. Nyakyi maintained that, there was good evidence to prove how the appellant got the suit land from his father in 1975 and it is through inheritance. He contended that the evidence that compensation was made to the appellant in 1974 is misleading because the suit land was given to the village in 1978. She reiterated her earlier position and urged the Court to allow the appeal.

On our part, we have examined the record of appeal and considered the submissions of the learned counsel carefully. We think we should start by pointing out that this being a first appeal we are enjoined to re-evaluate the evidence on record and make our own findings and conclusions other than what was found by the trial court where need be. See Future Century Limited v. Tanesco, Civil Appeal No. 5 of 2009 and Khalife Mohamed (As Surviving Administrator of The Estate of the Late Said Khalife) v. Aziz Khalife and another, Civil Appeal No. 97 of 2018 (unreported). Also, like Mr. Merumba, we plan to discuss the grounds of appeal conjointly. The record of appeal at page 83, shows that the appellant lived at Chomachankola village from 1950 to date. He lived with his father who died in 1975. The land in dispute was owned by his father but fell to him after his death. He controlled it until 1978 when he released it to the village temporally under MFUMAKI schemes. It was later returned to him in 1999 and he continued to own it up to 2018 when it was invaded by the first respondent and handed to other villagers for use. That act, the appellant opposed without success. He regard this as trespass and wants his land back. The trial court received a letter from Chomachankola village (Exhibit P2) returning the land to the

appellant. The appellant brought PW2 who saw the appellant's father using the land prior to his death and saw the appellant using it at a later stage before he handled it to the village for MFUMAKI schemes. He brought PW3 who is a neigbour living close to the land. PW3 told the trial court that the land does not belong to the first respondent but the appellant tracing ownership from this late father. He brought PW4 who is the hamlet leader. PW4 told the trial court that the land was taken to the village temporarily in 1978 and returned later. He said that the appellant's land which measurers 25 acres was returned to him after the closure of MFUMAKI schemes. He described neighbours of the appellant as Shamo, Luzuba and Nagala. He said that the land remained with the appellant from 1999 up to 2018 when it was invaded by the first respondent. In defence, there is the evidence of DW1, the first respondent's the VEO who was employed in 2019. He told the trial court that the first respondent took people's land in 1974 but they were compensated. He denied to invade the land because it is village land which was merely rented to villagers. He tendered minutes of the Village Council (Exhibit Dl) which has a resolution to lease the land to villagers. DW2 was the first respondent's chairman from 2014 to 2019. Like DW1, he told the

trial court that the village borrowed the land in 1974 but compensation was done to prior occupiers. He denied the allegation of taking the land from the appellant in 2018. Having examined the evidence critically, we have the view that there was good evidence to show that the appellant's father occupied and used the suit land prior to his death in 1975. Truly, there was no evidence of a person who said he saw him clearing the bush, but that notwithstanding, there was evidence that he lived in the suit land from 1950 up to 1975 when he died. We have the view that, the fact that the appellant's father lived in the land from 1950 to 1975 and the fact that he was seen by people using the land was good evidence to prove that he owned the land. We do not think that there was need of producing documentary evidence, as the trial Judge suggested in his judgment, to prove that he owned the suit land. In the like manner, the fact that there was no witness who saw him clearing the bush does not mean that he was not the owner of the suit land. Long uninterrupted use of land may also be used to prove ownership of suit land in rural unsurveyed areas in the absence of evidence to the contrary. 10

On how the suit land fell to the appellant, the evidence is clear that the appellant was an administrator of the estate of his father. That is the practice in many rural communities and we don't find it to be strange. We should perhaps state that, in most rural communities, if a person dies leaving behind his land, the clan may give it to his siblings and or his wife, and title may pass under customary law without going to any land office. Further, in many cases, this is not documented. And, failure to document it does not mean that title did not pass. It follows that, the appellant became the owner in 1975 under customary law despite the fact that he had no documentary proof. The oral evidence adduced in court was, in our considered view, enough to establish the fact. It also went ahead to prove that he released the suit land temporarily to the village in 1978, regained possession of it in 1999 and remained with it up to 2018. It follows that the letters of administration issued in 2018 did not vest any ownership of land to the appellant but was merely a way of giving him the legal status to allow him to sue in our conventional courts. As to how the suit land was returned to the appellant, we have the evidence in exhibit P2, appearing at page 105 of the record of appeal, which reads, in part as under:

"OFISI YA AFISA MTENDAJIKIJIJICHA MACHANKOLA KATA YA CHOMA WILAYA YAIGUNGA MKOA WA TABORA 20/11/1999 NDUGU MOYA LUMINU MA5ANGU YAH: KUKABIDHIWA MASHAMBA YALIYOAZIMWA NA SERIKALI YA KIJIJI CHA CHOMACHANKOLA MW AKA 1982 MALI YA FAMILIA YA LUMINU MASANGU Husika na Kichwa cha Habari hapo juu Serikali ya Kijiji cha Chomachankola imemrudishia mashamba hayo ndugu MOYA LUMINU MASANGU ambaye ni msimamizi wa mirathi ya marehemu LUMINU MASANGU. Eneo la ekari 25zilizopo eneo la kitongoji cha Mbuyuni (MFUMAKI). Mashamba hayo magharibi yamepakana na Barabara ya kwenda Shinyanga; Kaskazini yamepakana ana Mahona Jipande na Nhagala Chemu; Mashariki yamepakana na EHas Luzuba; Kusini yamepakana na Mishamo Ntonyongo ...... Nambatanisha na muhtasari wa kikao cha serikali ya Kijiji Chomachankola kilichokaa tarehe 12/11/1999. Signed KAJIBU" We think exhibit P2 said it all. It defeats the defence brought by the respondent to justify what the first respondent did in 2018. It also defeats the evidence of DW1 who said that the suit land was acquired and people were compensated in 1974. 12

Based on what we have demonstrated above, we have the view that, there was good evidence showing that the suit land belonged to the appellant's father long before it fell to him. Further, the suit land was borrowed by the village but later returned to the appellant. The appellant is thus the lawful owner of the suit land. The grounds of appeal are found to have merit. The appeal is allowed with costs. DATED at TABORA this 16th day of October, 2025. Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 16th day of October, 2025 in the presence of Mr. Frank Kavishe holding brief for Ms. Stella Thomas Nyakyi, learned counsel for appellant, Mr. Samwel Mahuma, learned State Attorney for the Respondents and Mr. Oscar Msaki, Court Clerk, is hereby certified as a true