Elifasi Yairo Urio (Suing as administrator of the Estate of Nikanoru Kaaya Deceased) vs Christina Nikanoru (Civil Appeal No. 430 of 2021) [2024] TZCA 1281 (13 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: NDIKA. J.A.. KITUSI. J.A. And MASHAKA. J.A.^ CIVIL APPEAL NO. 430 OF 2021 ELIFASI YAIRO URIO (Suing as administrator of the Es^iate of Nikanoru Kaaya Deceased) ............................ ........... APPELLANT VERSUS CHRISTINA NIKANORU ........................................................... RESPONDENT (Appeal from the Judgment and decree of the High Court of Tanzania, at Arusha) fMzuna. 3 ^ dated the 17th day of June, 2019 in Land Case No. 87 of 2016 JUDGMENT OF THE COURT 11th & 13th December, 2024 KITUSI. J.A.: This is a family feud that is being fought in court, at the centre of which there is a piece of land measuring 20 acres situated within Arumeru District in Arusha Region. There is no dispute that the original owner of that farmland was one Nikanoru Petro Kaaya who died in 2012, and that during his life time he had two wives, one of them being the respondent, Christina Petro. The first wife Ndelambikiwa died earlier than her husband Nikanoru Petro Kaaya, to whom we shall simply refer as Kaaya. 1

In Land Case No. 87 of 2016, from which this appeal arises, the respondent contended that the farmland was given to her by her late husband in 1996 and she continued to use it even before 2012 when her husband met his death. In 2016 the appellant was appointed administrator of the estate of Kaaya's senior wife on the basis of which he entered upon the suit land and purported to distribute it amongst beneficiaries. It is the respondent's contention that what was done by the appellant was unlawful because that land had already been given to her by her late husband. The appellant's response to that contention was lengthy but we shall reproduce paragraphs 4, 5 and 6 of the WSD so as to capture its gist: - 4. That the said land had never been given to the plaintiff even part o f it The suitiand was used by deceased Nikanoru himselfuntil he met his death. When the plaintiff got married in 1986 the late Nikanoru Kaaya under Meru customs had to purchase land for the plaintiff to wit i. Two and half acres of land at Njia ya ng'ombe Maji ya Chai. ii. One plot at Maji ya Chai Mji Mpya where plaintiff constructed her house. H i. Plot at Maroroni area where house at Kibaoni consisting of five (5) rooms was constructed, iv. Land measuring 1 A o f an acre at Maji ya Chai bordering Eiisamia's land. 2

v . One acre of land dose to the 1st wife's homestead which she is owning peacefully to date. 5. That after death o f Nikanoru Kaaya the plaintiff trespassed to the land in dispute and cultivated it from 2013 to 2016. Trespass was reported to Village Chairman who wrote to the plaintiff and copies served to Mshiii Mkuu Uko wa Kaaya and Onesmo Nikanoru but she never took heed to directives given. 6. That the plaintiff being the second wife has no right to claim land acquired and developed by Nikanoru Kaaya's first wife from 1947 when she got married. Upon the death o f Nikanoru and his wife children born by the deceased persons are entitled to inherit the said land as each woman owned separate properties. From the above, the suit arises from the respondent's contention that the disputed land was given to her by her husband which contention the appellant disputes as per the reproduced paragraphs of the written statement of defence and evidence. The respondent testified in support of her case and called witnesses to substantiate it, and so did the appellant. At the end of the trial, the High Court entered judgment for the respondent, declaring her the rightful owner of the disputed land. Aggrieved by that decision, the appellant appeals hereto on two grounds having abandoned the first ground which would have made a total 3

of three grounds. As we shall later allude to, the first ground of appeal touching on the will of Kaaya, was rightly dropped because it would not have advanced the appellant's case one way or the other. The second ground of appeal which now becomes the first ground, challenges the High Court for straying into determination of issues other than the 20 acre farmland. We shall deal with this ground of appeal, last. Ms. Christina Kimale, learned advocate, appeared for the appellant and addressed us fervently on the second (originally third) ground of appeal which is that, the High Court did not properly evaluate the evidence adduced by the respondent. The learned advocate argued that if the High Court had evaluated the evidence properly, it would have noticed contradictions inherent in it and it would not have entered judgment in the respondent's favour. She prayed that on that basis we should re-evaluate the evidence and allow the appeal after making our own findings. On the other hand, Ms. Sara Severin Lawena, learned counsel for the respondent, maintained that there were no contradictions in the testimonies of the respondent's witnesses and that if there were any, the same were minor and inconsequential. She prayed that the appeal be dismissed. So, what is that evidence that we are called upon to re-evaluate? In her testimony, the respondent testifying as PW1, referred to the fact that she married Mr. Kaaya in 1986 as a second wife and by virtue of 4

her position in the family, she was aware of the dispute that existed between her husband and his brother, over the disputed farmland. When the dispute was resolved in favour of Mr. Kaaya he decided to dispose of that land in 1996. She stated further that he divided the land into two parts, each wife was given a part including the senior wife. Although at that time the senior wife had already died, the portion given to her was distributed. to her five children, Herman, Jackson, Onesmo, Atilio and Ruth. And further that this disposition was witnessed by the children as well as Luka Kaaya, the clan leader, Fanuel Zakayo, the Boma leader (PW2) and William Lakausa, a neighbour and ten cell leaders. PW2 and Onesmo Kaaya (PW3) supported the respondent's version as they were related to Kaaya, PW2 being Kaaya's cousin while PW3 was Kaaya's son from the senior wife. William Lakausa Mbise PW4, the ten-cell leader, not only supported the fact that in effecting the disposition of the land to the respondent, Kaaya involved people including himself, but also alluded to the fact that it was Kaaya's senior wife who invited the respondent to her homestead to be Kaaya's junior wife as she had become too old and frail. PW5, who was a leader of Kaaya's clan, supported PW3 and PW4 in material particulars. PW5, a clan leader, stated that Kaaya had the right to give his land to anyone without informing his senior wife.

According to Elifasi Yairo Urio (DW1), the appellant's (defendant's) case was that the disputed land was not given to the respondent because the senior wife's children would not let that happen. The other reason is that by Meru customs, a man who marries another woman, buys a separate land for her instead of giving her the existing one. In this case, DW1 stated, Kaaya had purchased for the respondent other smaller pieces of land. DW1 said he was administering distribution of the senior wife's 20-acre land to her children, he being a brother to the deceased senior wife. However, he said, before he could do so the police intervened and the exercise stopped. Later when he obtained a court order, he distributed some portions of the entire land. However, the 20-acre shamba remained under the respondent's possession. He refuted the contention that the respondent was using the disputed land because at that time, the land was Kaaya's. Herman Nikanoru Kaaya (DW2) who was another son of the senior wife recognized DW1 as administrator of his mother's properties upon her death. He stated further that the respondent was asked to administer the entire estate upon Kaaya's death but she declined and proposed PW3 to perform that duty. Referring to Meru customs also, DW2 stated that his father would not let the respondent own and use land which he had not bought for her. That is why Kaaya sold some of his possessions to buy land for the respondent. On cross-examination, DW2 said his father could only give land to his junior wife if the senior wife had consented and, in this 6

case, there was no such consent because the said senior wife had passed on. Willy Jackson Nikanoru Kaaya (DW4) supported the fact that children of the senior wife were allocated pieces of land when their mother died, and that he got his share even if at that time he was living in Mbeya. He said however, that the pieces of land they were given were not part of the 20-acre farmland. Invariably, all witnesses alluded to coming across a written disposition of the land by Kaaya. The High Court disregarded that piece of evidence as being invalid and proceeded to determine the main issue on the basis of the oral testimonies adduced. We are raising this fact well ahead of our pronouncing ourself on the matter because on appeal before us the first ground which still pursued the relevance of the trial court's finding on the will was dropped. So, our decision is going to be informed by the testimonies rather than the will. In prosecuting the main ground of appeal which alleges contradiction in the evidence for the respondent, Ms. Kimale addressed the size of the disputed land, the location, the year of the alleged disposition and witnesses to the disposition. She submitted in respect to the size, that while PW1 and PW2 testified that the size of the disputed land was 20 acres, PW3 said it was 91 acres. As regards the location, the learned counsel submitted that 7

some witnesses said it was at Maji ya Chai village and yet others said it was at Kikatiti village. On the year of the disposition of the land, Ms. Kimale submitted that there were two versions about it. Was it in 1986 as testified by PW3 or 1996 as testified by other witnesses? As for the witnesses to the disposition, Ms. Kimale submitted that PW2's testimony that the respondent participated in the meeting is contradictory to that of the respondent herself who said she remained at home preparing food for the guests. She pointed out that PW5 was unreliable as he stated in court that he was suffering from loss of memories because of a previous accident. As pointed out earlier, the learned advocate moved us to re evaluate the evidence and come up with our own findings, if need be, and for this she cited to us the cases of Peters v. Sunday Post Limited (1958) EA 424 and Okeno v. Republic [1972] EA 32. We accept Ms. Kimale's invitation, after all, this being a first appeal, it is always in a form of a rehearing. See the cases of Sanlam General Inurance (T) Ltd (formerly known as Niko Insurance (T) Ltd) & 5 Others v. Gulf Bulk Petroleum (T) Ltd Civil Appeal No. 170 of 2016 [2021] TZCA 580 and; Madeni Ally Mohamed & 3 Others v. Shame Ally Mohamed & Another Civil Appeal No. 272 of 2020 [2023] TZCA 271. In response to these submissions, Ms. Lawena submitted that evaluation of evidence should be holistic, not done in piecemeals as

suggested by Ms. Kimale. Regarding the size of the land, she submitted in opposition. First, she argued that PW1, PW2 and PW3 said it was about 20 acres, and the learned counsel submitted that there were no accurate measurements. She pointed out that PW3's reference to the land as measuring 91 acres was corrected during re-examination. On the location, she submitted that there is no contradiction because even DW 1 and DW2 supported the evidence for the respondent that the land was somewhere between Kikatiti and Maji ya Chai at a place known as Kimandafu. It has always been the law that the judge's duty is to process the whole evidence instead of picking pieces in isolation from the main and crucial evidence. See the case of Domina Kagaruki v. Farida F. Mbaraka & 5 Others Civil Appeal No. 60 of 2016 [2017] TZCA 160. Taking a leaf from that principle, we hold the view that it is a matter of common sense that the competing parties know the size and location of the land in dispute, such that we do not need to do a toss of the coin to decide it. It is, with respect, quite absurd for the appellant, who claims a right over the same piece of land to task the respondent to provide a flawless description of that very land. We agree with Ms. Lawena and the case she cited to us, that in civil cases, unlike in criminal cases, evidence is not expected to cover every loophole. [Leonard Dominic Rubuye t/a Rubuye Agrochemicals Supplies v. Yara Tanzania Limited Civil Appeal No. 219 of 2018, [2022]

TZCA 419]. We do not agree with Ms. Kimale that there is contradiction regarding the size and location of the suit land. The other alleged contradiction is the year of the disposition. We think we should not make storm in a teacup on this. The respondent was married in 1986 and the land was disposed of in 1996 after the dispute between Kaaya and his brother was resolved. Even the witnesses for the appellant alluded to this fact. There is a complaint as to who witnessed the disposition proceedings. Certainly not everybody was there to witness. DW3 who was Kaaya's son was not there although he lived with his father, but PW3 who was also Kaaya's son participated. There is also evidence from DW2 that the respondent was asked to administer division of properties of the senior wife upon her death in 2012, but she asked PW3, a son of the senior wife, to assist. In view of these harmonious relationships, it sounds odd and improbable that attendance of these family proceedings would be as structured as board meeting proceedings. We have to say that which is settled, as rightly submitted by Ms. Lawena, that only those contradictions that go to the root of the case are relevant. The case of Mukani Wankyo v. Republic [1990] TLR 46 cited by the learned counsel. Next, we shall consider whether Kaaya gave the disputed land to the respondent and if he did, whether it was proper under Meru customs. In re-evaluating the evidence, we find the decision of the High Court that 10

Kaaya divided the land into two, with each wife getting one, to have been a sound finding supported by evidence. Throughout, witnesses born of the senior wife that is PW3, DW2 and DW3 alluded to the fact that they were given portions of their late mother's land and that the 20 acres had not been subdivided for distribution. This undistributed parcel of land is what the respondent wants to be declared lawful owner of. According to PW5, Kaaya had the right to give to the respondent the land in dispute. Ms. Kimale suggested that we should find PW5 unreliable because he stated that he had loss of memories. In reply to this aspect, Ms. Lawena submitted that PW5 was a credible witness despite the possibility of forgetting some facts. We do not agree that we should brush aside PW5's evidence off hand. Despite the accident which he said may have affected his memories, PW5 was the clan leader which is an indication that he was still held in esteem by his people. To demonstrate what we have just stated, when PW5 was responding to questions that were put to him by Ms. Kimale, he said at page 118 of the record: - "I was cut with a panga in 1938 before I had evenjoined school. I could not refuse to be a dan leader because that is a prestige". We are not prepared to conclude that the evidence of PW5 was not worth consideration given the trust his own clan gave him. A traditionalist that he was, PW5 even cautioned at page 120 of the record of appeal that

the children of the senior wife might end up with a curse if they insisted on dispossessing the respondent of her entitlement. But it is also important to note that what PW5 stated was also stated by other witnesses. For instance, at page 101, PW2 said: - "According to Meru tradition ; everybody gets her properties from her husband if there are more than one wives". Considering the seesaw nature of this dispute involving family members, we feel it apt to bring this well thought of passage from Re B [2008] UKHL reproduced in Anthony M. Masanga v. Penina (Mama Mgesi) & Another Civil Appeal No. 118 of 2014 [2015] TZCA 556:- "If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not I f the tribunal is left in doubt\ the doubt is resolved by a rule that one party or the other carries the burden o fproof. I f the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. I f he does discharge it, a value o f 1 is returned and the fact is treated as having happened." From our consideration of the evidence adduced by both sides, and bearing in mind the burden of proof in civil cases, we are satisfied that the 12

learned High Court Judge cannot be faulted for concluding that the respondent was given the land by her late husband, Kaaya. The decision by that court to declare her the rightful owner of that land is, therefore, upheld. Consequently, we dismiss the previous third ground of appeal which is now the second ground of appeal. We would ordinarily have stopped here because according to the plaint, ail that the respondent had prayed for was a declaration that she is the lawful owner of the suit land and a permanent injunction to restrain the defendant, agents and servants from entering upon that land and dealing with it. However, the previous second ground of appeal which is now the first ground raises an aspect which we must pronounce ourselves on. It seeks to fault the learned trial Judge for not confining his decision to the subject matter namely the piece of land measuring 20 acres. We have seen an attempt by the learned Judge to make guidance on how to deal with properties other than the suit land. We are afraid that was sticking out his neck too far because parties should be bound by their pleadings. Ms. Kimale submitted, and we agree with her, that if the judgment of the High Court is left the way it is, it might cause confusion and stir trouble. Ms. Lawena submitted that those other properties were mentioned by the learned Judge in passing. 13

We agree with Ms. Kimale that parties should be bound by their pleadings in order not to take each other by surprise. We therefore quash and set aside all those orders and directions by the learned Judge which are not relevant to the suit land. The first ground, which was previously the second ground is allowed. Except for the correction on the grant of unpleaded reliefs, this appeal is dismissed with costs. DATED at ARUSHA this 12th day of December, 2024. Judgment delivered this 13th day of December 2024 in the presence of Ms. Sara Severini Lawena learned Advocate for the Respondent also holding brief for Ms. Christina Kimale learned advocate for the Appellant, is hereby certified as a true copy of the original. G. A. M. NDIKA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL