Hassan Furai Ramadhanifurai & Another vs Jumanne Dafi (Civil Appeal No. 647 of 2024) [2025] TZCA 1032 (7 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: NDIKA. J.A.. KIHWELO. J.A.. And NGWEMBE, J.A.l CIVIL APPEAL NO. 647 OF 2024 HASSAN FURAI FIRST APPELLANT ISSA FURAI RAMADHANIFURAI SECOND APPELLANT .. THIRD APPELLANT EMMANUEL KIDANKA FURAI FOURTH APPELLANT HASHIM HASSANI FIFTH APPELLANT VERSUS JUMANNE DAFI RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dodoma) NDIKA. J.A.: The appellants challenge the decision of the High Court of Tanzania at Dodoma dated 19th January 2024, pronouncing the respondent the rightful owner of four acres of land in Minyaa village, Kinyeto ward, Singida region. The court reversed the judgment of the District Land and Housing Tribunal of Singida, which had upheld the appellants' claim to title and possession of a twenty-acre plot of land in the same village. fMasabo. J.1 dated the 19th day of January 2024 in Land Appeal No. 65 of 2022 JUDGMENT OF THE COURT 1st & 7th October, 2025 1

The protagonists in this case are close relatives. They all descended from the late Furai Kijoji, who died intestate on 1s t January 1977. The first, second, and third appellants are Kijoji's sons, but the fourth and fifth appellants are his paternal grandsons. The respondent is his maternal grandchild, born to his daughter. The appellants sued the respondent for the twenty-acre parcel, claiming to have inherited it from Kijoji. According to them, the land went unadministered until 15th July 2019 when the first appellant was granted letters of administration (exhibit PI) by the Ilongero Primary Court via Probate Cause No. 2 of 2019 to manage and distribute the deceased's estate to the heirs. The first, second, third, and fourth appellants were each handed 4.75 acres, the fifth appellant 1 acre, and the respondent 6.75 acres. Unhappy with his portion, the respondent reportedly trespassed on the appellants' land; that is, the entire twenty acres. Conversely, the respondent claimed that he acquired the four-acre property in 1973 by clearing the bush at the age of sixteen. His brothers- in-law, Rashidi Adam Salanga and Said Adam Salanga provided testimony in favour of the respondent's claim. They stated that they obtained plots of land next to the respondent's property in 1982. Their assertion was that the

respondent had continued to occupy the four-acre land from that time onwards. The respondent's son, Muhamad Jumanne, supported his father's claim. The trial tribunal, as previously indicated, sustained the appellants' claim; however, that decision was overturned by the High Court. The High Court, in its decision, initially examined whether the trial tribunal's failure to visit the locus in quo was detrimental given the specifics of the case. It resolved the issue in the following manner: 7 am convinced that the circumstances necessitating the visit existed because , first, from the evidence it remained unresolved whether the suit land is 20 acres or only 4 acres. Whereas the respondents [now the appellants] and their witnesses stated that the suit land was 20 acres , the appellant [now the respondent] and his witnesses all stated that the appellant has only 4 acres. The visit could have revealed whether, indeed the 20 acres existed and if so, whether the 4 acres are within the 20 acres or the 6 acres allegedly devolved to him by way o f Inheritance. The fact that these matters remained unanswered, left the dispute unresolved." 3

We would like to note that, despite the above reasoning, the court did not deem it reasonable to instruct the trial tribunal to visit the locus in quo and decide the case based on that visit. The court instead assessed the evidence presented and determined the appeal in favour of the respondent. Certainly, the court reasoned that because the appellants brought the case forward alleging that the respondent had trespassed on their twenty- acre property, they were responsible for demonstrating that the plot in question belonged to them. It was noted that they merely claimed that the land passed to them through inheritance from the deceased, without providing any clarification on how the deceased obtained it in the first place. The court found the respondent's case compelling; he had acquired the four-acre plot in 1973 as pristine land and had occupied it continuously since then. The respondent's two neighbours confirmed that they found him occupying the land in 1982. Consequently, the court determined that the respondent was the rightful owner of the four-acre land through adverse possession: "Counting from 1982 when these two witnesses found the appellant [now the respondent] occupying the 4 acres to 2021 when the

respondents [now appellants] sued him in the trial tribunal, it is obvious that 39 years had elapsed. And when the time is reckoned from 1973 when the appellant allegedly acquired the land or in 1977after the demise o f the respondents' father who , as per the respondents, was the owner o f the suit land, it would follow that, the appellant had occupied the suit land for longer periods o f 48 years or 44 years. Thus, assuming as alleged by the respondents that he was a trespasser, the longevity o f his uninterrupted adverse possession has earned him protection o f the law as an adverse possessor." The appellants and the respondent appeared before us at the hearing as self-represented litigants. In essence, the appeal was argued on two grounds whose thrust is the contention that the High Court determined the appeal against the weight of the evidence on record. We propose to start off with the High Court's finding that the respondent was the rightful owner of the four-acre land through adverse possession. Certainly, adverse possession occurs when a person occupies someone else's land without permission and the owner fails to exercise their right to regain it within a certain time frame. The circumstances for 5

acquiring title to land under this principle were clearly explained in Registered Trustees of Holy Spirit Sisters Tanzania v. January Kamili Shayo & 136 Others [2018] TZCA 498. In that case, the Court quoted with approval the Kenyan case of Mbira v. Gachuhi [2002] E.A. 137 (HCK), which had relied on Moses v. Lovegrove [1952] 2 QB 533 and Hughes v. Griffin [1969] 1 All ER 460. The Court concluded that: "[On] the whole , , a person seeking to acquire title to land by adverse possession had to cumulatively prove the foilowing (a) That there had been absence o fpossession by the true owner through abandonment; (b) that the adverse possessor had been in actual possession o f the piece o f land; (c) that the adverse possessor had no color of right to be there other than his entry and occupation; (d) that the adverse possessor had openly and without the consent o f the true owner done acts which were inconsistent with the enjoyment by the true owner o f land for purposes for which he intended to use it; 6

(e) that there was a sufficient animus to dispossess and an animo possidendi; (f) that the statutory period, in this case twelve 12 years, had elapsed; (g) that there had been no interruption to the adverse possession throughout the aforesaid statutory period; and (h) that the nature o f the property was such that in the light o f the foregoing adverse possession would result "[Emphasis added] See also Bhoke Kitang'ita v. Makuru Mahemba [2020] TZCA 66. With all due respect, we believe that the High Court erred in applying the principle of adverse possession in favour of the respondent. It lost sight of the issue by focusing solely on the respondent's purported long possession of the land. Given that he claimed to be the original owner of the land in issue, having obtained it in 1973 after clearing what was then untouched land, and that he had occupied it continuously since then, he could not have presented a case for title acquisition as an adverse possessor. For starters, he could not possibly prove that the rightful owner of that land had abandoned it. Secondly, since he claimed to be the original

owner of the land, he could not subsequently switch tactics and claim to have been an "adverse possessor" with no colour of right to be there. Thirdly, he was unable to prove that he had openly and without the approval of the true owner committed activities inconsistent with the true owner's enjoyment of the land. To put it another way, he could not credibly claim that his occupation and use of the land was contrary to the interests of the genuine owner. As previously stated, in deciding against the appellants, the High Court noted that they simply asserted that the land devolved to them through inheritance from the deceased, without presenting any evidence on how the deceased obtained his title in the first place. That detail is indeed missing. Nonetheless, we believe that based on the evidence presented, it is preponderant that the land in question was always unadministered property until July 2019, when it was handed to the heirs after the first appellant was named administrator of the deceased's estate. Prior to distribution, it was shared by all family members, including the appellants and respondent. Perhaps more importantly, the fifth appellant stated in his testimony that the late Kijoji, the original owner of the land, was buried there (see page 45 of the record of appeal). The presence of that burial site on that piece 8

of property can serve as proof or indicator that the deceased interred there had some ownership rights or claims to that land, given our society's cultural and historical facets in land ownership. This evidence makes it improbable the respondent's claim that the late Kijoji was not the original owner. We are aware that the trial tribunal disbelieved the respondent's claim that he had continuous possession of the land after acquiring it as virgin land in 1973. As shown on page 66 of the record of appeal, the tribunal questioned why he initially allowed the land to be distributed as part of the deceased's estate if it was his property. The evidence shows that he later disputed the allotment, claiming title to the area in question. While it is well established that on first appeal, the appellate court has the authority to re-evaluate the evidence and draw its own inferences of fact or conclusions, it must do so with the usual deference to the trial court's findings based on witness credibility. The appellate court may justifiably overturn such conclusions if the trial court failed to consider or misunderstood any material evidence, relied on a flawed premise, or erred in its evaluation of the evidence. We are satisfied that the trial tribunal's approach to evaluating the evidence was flawless. Thus, the High Court's intervention was, with due respect, unnecessary. 9

For the foregoing reasons, we allow the appeal and proceed to quash the High Court's judgment and set aside the resultant decree. We, therefore, reinstate the trial tribunal's judgment and decree in favour of the appellants. Given that the parties to this appeal are relatives, we order each party to bear its own costs. DATED at DODOMA this 6th day of October, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 7th day of October, 2025 in the presence of the 1s t, 3rd , 4th , 5th appellants in person unrepresented, connected via video conference the 2n d appellant and the respondent are absent and Mr. John Banene, Court Clerk, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL