Agapiti Fidelis Masika and Another vs Oliver Fidelis Masika and Another (Civil Appeal No. 466 of 2022) [2024] TZCA 1127 (19 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI ( CORAM: MWARI3A. 3.A.. KEREFU. 3.A. And KAIRO. J.A.^ CIVIL APPEAL NO. 466 OF 2022 AGAPITI FIDELIS MASIKA ................................................ 1 st APPELLANT VICTORINO FIDELIS MASIKA... ....... .......................... 2 nd APPELLANT VERSUS OLIVER FIDELIS MASIKA ......................... .................... 1 st RESPONDENT GIDO FIDELIS KIMARIO... .......... ........... .................... 2 nd RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Moshi) (Simfukwe. J.^ dated the 16th day of November, 2021 in Land Appeal No. 25 of 2021 JUDGMENT OF THE COURT 23rd October & 19th November, 2024. KEREFU. J.A.: The land dispute in this appeal involves blood relatives born of the same father, the late Fidelis Masika, who had two wives, to wit, Athanasia Fidelis Masika and Beatrice Morio Phidelis Masika, respectively, Agapiti Fidelis Masika, the first appellant herein, is the son of the first wife whereas Victorino Fidelis Masika, the second appellant together with Oliver Fidelis Masika, the first respondent herein, are the children of the second wife.

The source of the said dispute is on the ownership of a parcel of land described as Plot No. 85 Block 'A' (the suit land) situated at Tarakea Township within Rombo District in Kilimanjaro Region. It was the appellants7claim that, in 1970, the suit land, which had two houses, was given to them by their late father. That the first appellant was given the house which was on the eastern side while the second appellant was given the one located on the western side and they both rented the said houses. That, in 1993, during the town planning exercise, the appellants were issued with a Letter of Offer on the suit land by the Rombo District Council and they started to pay all the necessary land rents and fees. The appellants stated further that, at all material times, they occupied the suit land without any interference until 2017, when, the first respondent, unlawfully sold it to Gido Fidelis Kimario, the second respondent herein, who trespassed on it and started to remove the roof of the second appellant's house without the consent of the appellants. The appellants, initially and unsuccessful reported the matter to Tarakea Police Station. Subsequently, they instituted a land case via Land Application No. 60 of 2017 in the District Land and Housing Tribunal (the DLHT) of Moshi, against the respondents together with their late mother, Beatrice Morio Phidelis Masika, who is not a party to this appeal, praying for the following reliefs: (i) a declaration that the sale

transaction between the respondents is illegal and unmaintainable in law; (ii) an order restraining the respondents, their agents or anyone acting under their instructions from trespassing into the suit land; (iii) a declaration that the appellants are the lawful owners of the suit land; and (iv) costs of the suit. In their joint written statement of defence, the respondents disputed the appellant's claims as they contended that the lawful owner of the suit land is the second respondent who purchased it from the late Beatrice Morio Fidelis Masika who owned it jointly with her husband, the late Fidelis Masika. Therefore, the respondent prayed for the appellants' case to be dismissed with costs. It is noteworthy, at this juncture that, Beatrice Morio Phidelis Masika, passed away in 2020 prior to the conclusion of the trial and thus, her case was marked to have abated, upon failure by her relatives to avail the legal representative to be joined in this matter in her place. At the trial, the first and second appellants testified as PW3 and PW1 respectively. PW1 stated that they were the first male children of their late father who died intestate in 1972. That, in 1970, prior to his death, he gave them the suit land and the said transaction was witnessed by the late Nicholas Masika and the late Amosi Lwale, PW1

went on to state that since, in 1970, PW3 was still young and schooling, he collected the rent on his behalf and handed it over to his mother, Athanasia Fidelis Masika. PW1 stated further that, having been issued with the Letter of Offer in 1993, they paid all the necessary land rents and fees. PW1 tendered the said Letter of Offer which was admitted in evidence as exhibit PI together with the receipts for payment of land rents and fees which were admitted in evidence as exhibits P2 to P8. PW1 stated further that, surprisingly, in 2017, the first respondent, unlawfully sold the suit land to the second respondent without any justification. Thus, they decided to institute the suit against the respondents to protect their interests. In his testimony, PW3 supported the narration by PW1 and added that, when his father died, he was ten (10) years old but his brother, PW1 was older enough, as he was born in 1954. That, in 1983, he was informed that, prior to his death, his late father, allocated the suit land to them. Furthermore, the appellants summoned Albogasti Zacharia Mhumba (PW2), a land officer from Rombo District Council who supported their evidence and identified exhibit PI. PW2 added that, the appellants have been paying land rents from 1993 to 1996. He also

tendered a receipt for the payment of stamp duty which was admitted in evidence as exhibit P9. On the other side, the second respondent, who testified as DW1 narrated the chronological account of the matter and specifically, on how he purchased the suit land from the late Beatrice Morio Phidelis Masika on 11th April, 2017. That, prior to the said transaction, he consulted the clan Chairperson and Secretary together with the children of the late Beatrice Morio Phidelis Masika who confirmed that the suit land was jointly owned by her and her late husband. DW1 stated further that, he paid the purchase price of the suit land at the tune of TZS 20,000,000.00 and deposited the same in the DW2's account as directed by the late Beatrice Morio Phidelis Masika. DW1 availed the sale agreement between him and the late Beatrice Morio Phidelis Masika which was witnessed by five (5) children of the seller, including the first respondent (DW2) and Josephat Fidelis Kimario (DW3), who was the Deputy Chairperson of the Masika's clan. The said agreement was also witnessed by Paskali Batholomew Masika, the clan Chairperson together with, Wenseslaus Nicolaus Masika, who was the clan Secretary. The said sale agreement was admitted in evidence as exhibit Dl. In their evidence, DW2 and DW3 supported the evidence of DW1. Specifically, DW2 stated that after the death of their father, the 5

remained lawful owner of the suit land was their late mother, Beatrice Morio Phidelis Masika as the suit land was never allocated to anyone. That, in 2017, she decided to sell the suit land to DW2 as she needed money to cover for her medical bills and maintenance. DW3 added that, from 1969 to 1970, PW1 was a student at Moroto Seminary in Uganda and he came back to Tanzania in 1978. That, even during the death of their late father, in 1972, PW1 was not present. As such, DW2 and DW3 disputed the claim by the appellants that they were given the suit land by their late father in 1970. Having heard the parties and analyzed the evidence on record, the Chairperson of the DLHT was satisfied that the appellants had failed to prove their case to the required standard. Specifically, the Chairperson of the DLHT found, among other things, that the suit land was lawfully sold by the late Beatrice Morio Phidelis Masika to the second respondent as per exhibit Dl. On the other side, the DLHT doubted the appellants' claim that the suit land was allocated to them by their late father in 1970, when they were still young and without any involvement of the clan elders and their mothers. As such, the Chairperson of the DLHT decided the matter in favour of the respondents and the appellants' suit was dismissed with costs.

Aggrieved, the appellants appealed to the High Court of Tanzania at Moshi, which, like the DLHT, had the view that the evidence adduced at the DLHT proved the matter in favour of the respondents. Thus, the appellants' appeal was dismissed with costs. Undeterred, the appellants lodged the current appeal containing four grounds which can conveniently be paraphrased as follows, that:

1. The learned High Court Judge erred in law and facts for failure to analyze the evidence adduced by the parties together with the arguments made by the parties at the hearing o f the appeal;
2. The learned High Court Judge erred in law and facts for failure to take into account that the appellants have occupied the suit land for more than forty (40) years without any interference from anyone and in 1993 they were officially allocated the same by the appropriate authority through exhibit PI;
3. The learned High Court Judge erred in law and facts for failure to find that the suit land was not sold by the late Beatrice Morio Phidefis Masika but fraudulently\ sold to the second respondent by the first respondent; and
4. The learned High Court Judge erred in law and facts for failure to find that the appellants proved their case to the required standard. At the hearing of the appeal before us, the appellants and the respondents were represented by Mr. Elia Johnson Kiwia and Mr. Gideon 7

Mushi, both learned advocates, respectively. Pursuant to rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), Mr. Kiwia had earlier on lodged his written submissions. On his part, Mr. Mushi did not file any written submission. He opted to addressed the Court in terms of rule 106 (10) (b) of the Rules. We, however hasten to remark, at the outset that, we will not recite each and every fact comprised in Mr. Kiwia's submissions, but we will only consider those matters which are relevant to the determination of the grounds of appeal before us. We will, as well, determine the related grounds conjointly. However, before doing so, it is crucial to state that, this being a second appeal, the Court will rarely interfere with the concurrent findings of facts made by the courts below. The exception to the rule is when the findings are perverse or demonstrably wrong - see the cases of Director of Public Prosecutions v. Jaffari Mfaume Kawawa, [1981] TLR 149 and Mussa Mwaikunda v. The Republic, [2006] TLR 387. Amplifying on the first, third and fourth grounds of appeal, Mr. Kiwia generally faulted the learned High Court Judge for failure to properly re-evaluate the evidence on record and take into account that

the appellants have occupied the suit land for uninterrupted period of almost forty (40) years from 1970 to 2017 and in 1993 they were issued with a Letter of Offer. That, after being issued with the Letter of Offer, they paid all necessary land rents and fees as evidenced by exhibits P2 to P8 which were not objected by the respondents. He contended that, the Letter of Offer is conclusive evidence that the appellants are the lawfully owners of the suit land as the same is equal to the right of occupancy. On being probed as to whether, in 1970, the appellants had the necessary legal capacity to own land, although, he readily conceded that the first appellant did not have the legal capacity to own land in 1970, Mr. Kiwia argued that, in accordance with the Chagga customary law, the said arrangement is allowed. He then argued that since during the trial the respondents failed to cross-examine PW3 on that aspect, it should be deemed that they have accepted that fact. To support his argument, he referred us to our previous decisions in the cases of Oroko Wankuru @ Mniko v. Republic, Criminal Appeal No. 514 of 2019 [2021] TZCA 651 and Cyprian Athanas Kibogoyo v. Republic, Criminal Appeal No. 88 of 1992 (unreported). It was the further argument of Mr. Kiwia that, since during the trial, the respondents have not stated that exhibit PI was obtained 9

fraudulently, it was improper for the lower courts to disregard the said document. Citing the principle of buyer beware, Mr. Kiwia also blamed the advocate who processed the sale agreement for failure to conduct thorough search of the suit land, prior to the said transaction. To support his proposition, he referred us to the cases of Registered Trustees of Holy Spirit Sisters Tanzania v. January Kamili Shayo and 136 Others, Civil Appeal No. 193 of 2016 [2018] TZCA 32 and Shose Sinare v. Stanbic Bank Tanzania LTD and Another, Civil Appeal No. 89 of 2020 [2021] TZCA 476. He then insisted that, since the appellants have managed to prove their case through the Letter of Offer (exhibit PI), it was improper for both lower courts to find that the respondents' evidence was heavier than that of the appellants. In conclusion and based on his submission, he urged us to allow the appeal with costs. On his part, Mr. Mushi responded generally to the grounds of appeal by arguing that, before the trial court, the appellants failed completely to prove their case to the required standard. He contended that, before the trial court, although, the appellants claimed that, in 1970, the suit property was given to them by their late father and in 2017, it was fraudulently sold to the second respondent by the first responded, they did not produce any tangible evidence and or the sale

agreement to prove those assertions. It was the argument of Mr. Mushi that, since before the trial court, the appellants failed to lead evidence to prove their allegations as required, then, both lower courts rightly decided the matter in favour of the respondents as even, in 1970 the appellants, were still young and did not have the legal capacity to own land. Mr. Mushi also challenged the submission made by his learned friend by arguing that the long occupation of the suit land and or having a Letter of Offer does not in itself give the appellants the rights to own it. It was his strong argument that, the appellants were first required to prove on how the suit land was transferred to them, to support the alleged Letter of Offer. To buttress his proposition, he referred us to the case of Registered Trustees of Joy in The Harvest v. Hamza Sungura, Civil Appeal No. 149 of 2017 [2021] TZCA 139 and insisted that the Letter of Offer and payment of land rents and fees, cannot legally be considered as conclusive evidence on the ownership of the suit land. On that basis, he urged us to find that the appellants' complaints under the first, second, third and fourth grounds are baseless. Finally, he prayed for the entire appeal to be dismissed with costs for lack of merit.

In a brief rejoinder, Mr. Kiwia reiterated his earlier submission and maintained that the appellants have proved their case to the required standard and thus insisted for the appeal to be allowed. On our part, having carefully considered the submissions advanced by the learned counsel for the parties and examined the record before us, it is clear to us that, the main issue which reigned the day at the trial was on the ownership of the suit land. Upon perusal of the impugned judgment, it is evident that the learned High Court Judge properly re evaluated the evidence on record and determined the grounds of appeal submitted before her under the main two issues as to whether the trial Tribunal properly evaluated the evidence adduced before it and who is the lawfully owner o f the suit land. Having thoroughly re-evaluated the evidence on record around those issues, at page 203 of the record of appeal, while upholding the decision of the DLHT, the learned High Court Judge observed that: 7 join hands with the trial Tribunal that the evidence o f the respondents was heavier than that o f the appellants. It is illogical to believe that the disputed land was Offered to the appellants leaving their mothers who were still alive with nothing. The first appellant was 10 years old by then , while the second appellant was abroad. The appellants have not established any reasons 12

for being given the disputed iand by their father out o f more than 8 sibiings and their mothers. Worse enough, without involving their dan leaders." Having scanned the entire record of appeal, it is evident that, although, before the trial Tribunal the appellants claimed to have been given the suit land by their late father in 1970 and, in 2017, the same was sold to the second respondent by the first respondent, they failed to adduce material evidence (oral or documentary) to prove those facts. As even the alleged sale agreement between the first and second respondents was not produced and the appellants ended up challenging the sale agreement between the late Beatrice Morio Phidelis Masika and the second respondent produced by the respondents. It is a cherished principle of law that, generally in civil cases, the burden of proof lies on the person who alleges anything in his or her favour. This is the essence of the provisions of sections 110 (1), (2) and 111 of the Evidence Act, Cap. 6. It is equally elementary that, since in this appeal the dispute between the parties was of civil nature, the standard of proof was on a balance of probabilities, which simply means that the court will sustain such evidence which is more credible than the other on a particular fact to be proved. See: Anthony Masanga v.

Penina (Mama Ngesi) & Another, Civil Appeal No. 118 of 2014 [2015] TZCA 556 and Hamza Byarushengo v. Fulgencia Manya & 4 Others, Civil Appeal No. 246 of 2018 [2022] TZCA 207. It is again trite that the burden of proof never shifts to the adverse party until the party on whom onus lies, discharges his and that the burden of proof is not diluted on account of the weakness of the opposite party's case. We seek inspiration from the extract in Sarkar’s Laws of Evidence, 18th Edition M.C. Sarkar, S.C. Sarkar and P.C Sarkar, published by LexisNexis and cited in Paulina Samson Ndawavya v. Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017 (unreported), that: "...the burden of proving a fact rest on the party who substantially asserts the affirmative of the Issue and not upon the party who denies it; for negative Is usually Incapable of proof. It is ancient rule founded on consideration o f good sense and should not be departed from without strong reason...Until such burden is discharged the other party is not required to be caiied upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such a conclusion, he cannot

proceed on the basis of weakness o f the other party..." [ Emphasis added]. Therefore, in the light of the above position of the law, it was incumbent for the appellants to first prove with tangible evidence on how the suit land was transferred to them. However, and at any standard, since in 1970, the first appellant was below the age of majority, as readily conceded by Mr. Kiwia, he had no legal capacity to own land on his personal capacity. In the case of Asha Juma v.Hawa Juma Zakumba, Civil Appeal No. 118 of 2009 [2016] TZCA 790, when we considered the ownership of a suit land that was transferred to the appellant who was below the age of majority, we stated that: "The Letter o f Offer, Exhibit D l was issued in 2&h December, 1964 and the conveyance was made on 22n d January, 1958 between Saium Bin Kambenga and Asha Binti Juma. In 1964 when the Letter of Offer was issued, it could not have been issued to the appeiiant. At that time, she had not attained the age o f the majority. Her testimony was that she was born in 1954. This means that, in 1964 she was aged 10 years. *Emphasis added. Likewise, since, in the instant appeal, PW3 clearly testified at pages 102 and 104 of the record of appeal that, in 1970, when the suit

land was allocated to them, they were below the age of majority, we find the submission by Mr. Kiwia on this aspect to be misconceived. We are increasingly of the view that, having failed to discharge their duty to prove their case to the required standard, the appellants' criticism on the findings of the learned High Court Judge is, with respect, without any justification. In the event, we find the first, third and fourth grounds of appeal devoid of merit. We are aware that, in his submission on the second ground, Mr. Kiwia relied on the long occupation of the appellants on the suit land, the Letter of Offer issued to them in 1993 together with the receipts for payment of land rents and fees. With profound respect and as correctly argued by Mr. Mushi, the appellants were mandatorily required to first establish on how the suit land was transferred to them, to support the alleged Letter of Offer and the receipts. In addition, and on account of our finding in the first, third and fourth grounds together with our previous decision in the case of Registered Trustees of Joy in The Harvest (supra) cited to us by Mr. Mushi, we equally find the second ground of appeal with no merit. In view of what we have endeavoured to discuss, we do not find cogent reasons to disturb the concurrent findings of the lower courts, as we are satisfied that the appellants had failed to prove their case to the 16

required standard in law. Consequently, we hereby dismiss the appeal in its entirety. Considering the circumstances of this appeal, we make no order as to costs. DATED at DAR ES SALAAM this 18t h day of November, 2024. A. G. MWARDA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL The Judgment delivered this 19th day of November, 2024 by video conference from High Court Moshi, in the presence of Mr. Elia Johnson Kiwia, learned counsel for the Appellants and Mr. Gideon Mushi, learned counsel for the Respondents is hereby certified as a true copy of the