Ahmad Abdallah Kinyokwe vs Zulfa Salumu Makuka & Others (Civil Appeal No. 127 of 2021) [2024] TZCA 965 (4 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWARIJA, J.A., FIKIRINI. 3.A. And MLACHA. J.A.'i CIVIL APPEAL NO. 127 OF 2021 AHMAD ABDALLAH KINYOKWE....................................................APPELLANT VERSUS ZULFA SALUMU MAKUKA (As Administrix of the Estate of SALUM ABDULRAHMAN MAKUKA) ................................. 1st RESPONDENT DAMIAN KAKURU . ......... . ....................................................... 2 nd RESPONDENT MBARI MBUSIRO.............. . ............. . ......................... . ...... 3 rd RESPONDENT MARY FABIAN M AKOTA .................................... . .................. 4 th RESPONDENT (Appeal from the decision of the High Court of Tanzania, Land Division at Dar es Salaam) (Maigs, J,) dated the 17th day of April, 2020 in Land Case No. 349 of 2015 JUDGMENT OF THE COURT 12th July & 4th October, 2024 MWARIJA. J.A.: The appellant, Ahmed Abdallah Kinyokwe was the plaintiff in the High Court of Tanzania, Land Division at Dar es Salaam. He instituted Land Case No. 349 of 2015 ("the land case") against the late Salum Abdulrahman Makuka who was the 1st defendant together with the 2n d - 4th respondents; Damian Kakuru, Mbari Mbusiro and Mary Fabian Makota who were the 2n d - 4th defendants respectively. In the course of the trial,

Salum Abdulrahman Makuka passed away and on 14/1/2020, his daughter, who was appointed the administratrix of his state, was joined as the 1st defendant in his place hence the 1st respondent in this appeal. In his plaint, the appellant claimed for recovery of possession of a parcel of land measuring approximately fourteen (14) acres situated at Vikeji Village, Mkuranga District in Pwani Region ("the suit land").He contended that, the suit land was owned under customary land tenure by his maternal grandfather, the late Salum Mbonde ("the deceased") and after his death, the ownership rights thereof passed to him and other heirs of the deceased. He contended further that he was appointed the administrator of the deceased's estate and in the processes of administering the estate, he found out that, the respondents had trespassed into the suit land. He therefore, instituted the land case seeking inter alia >a declaration that, the suit land belonged to him and the other heirs of the deceased. He prayed for an order directing the respondents to give vacant possession of the suit land on account of being trespassers. He also prayed for general damages and mesne profits amounting to a total of TZS 50,000,000.00. In their joint written statement of defence, the respondents denied the claim that the 2n d - 4th respondents trespassed into the suit land.

They contended that, the said respondents purchased from the late Abdulrahman Makuka ("the vendor"), the respective pieces of land which they occupied. They also disputed the appellant's allegation that, the suit land belonged to his grandfather. The vendor contended that, he was the owner of the suit land and was, therefore, justified to sell it to his co respondents. At the trial, four witnesses including the appellant gave evidence for the plaintiff's case. Testifying as PW1, he started by stating the background facts on the steps taken by him before he filed the case in the High Court, Land Division. He initially filed the dispute in Vikindu Ward Tribunal, Application No. 26 of 2010. He was however, unsuccessful and therefore, appealed to the District Land and Housing Tribunal for Mkuranga (the DLHT) vide Land Appeal No. 18 of 2011. The DLHT allowed the appeal. It held that, the suit land did not belong to the vendor and thus did not have the capacity to sell it to the 2n d - 4th respondents. The respondents were dissatisfied with the decision of the DLHT and thus appealed to the High Court, Land Division vide Land Appeal No. 48 of 2012. The High Court found that, since the suit land was sold by the vendor to the 2n d - 4th respondents, the former ought to have

been joined in the application filed in the Ward Tribunal. He was informed that, he had the liberty to institute his case afresh by joining the vendor. On that guidance, the appellant filed a fresh matter, application No. 100 of 2014 in the Vikindu Ward Tribunal. The Ward Tribunal decided in his favour. It found that, the vendor did not have a title to pass to the 2n d

• 4th respondents and was thus ordered to refund the said respondents their purchase price so that the ownership of the suit land would revert to the heirs of the deceased under the administration of the appellant. The respondents appealed to the DLHT. They raised, among other grounds, the point that, the Ward Tribunal did not have pecuniary jurisdiction to entertain the claim for recovery of the suit land, the value of which was estimated at TZS 150,000,000. On that finding, the DLHT allowed the appeal and proceeded to quash the proceedings and judgment of the Ward Tribunal. Undaunted, the appellant instituted in the High Court, Land Division, the case which gave rise to this appeal. With regard to the claim, PW1 testified that, after the death of the deceased, he was appointed by the Primary Court of Mbagala to be the administrator in Probate and Administration Cause No. 142 of 2002. He tendered the copies of the letter of administration and the decision of the Primary Court and same were admitted in evidence as exhibit PI

collectively. He went on to state that, in the course of making a follow-up on the deceased's properties, he found that, the suit land had been sold by vendor to the 2n d - 4th respondents. On the ownership history of the suit land, the appellant averred that, it originally belonged to his uncle but after his demise, the ownership passed to the deceased. It was PWl's evidence further that, after the death of the deceased, the ownership of suit land passed to him and other heirs of the deceased. He therefore, prayed to be declared the owner thereof as the administrator. Another witness, Said Shaabani Mzombe (PW2) who held leadership positions in the Village, including that of a Hamlet Chairman, testified about the ownership of the suit land. It was his evidence that, from his knowledge, the same belonged to the deceased. According to him, if there had been any disposition, he would have known it because ordinarily, any disposition must be approved by the Hamlet Chairman and be accompanied by evidence of payment of 10% of the purchase price as a village levy. He stated also that, he knew the plaintiff and the vendor as relatives because the deceased is their grandfather. Other witnesses, Abdu Abdallah Kinyokwe (PW3) and Asmin Ally Ndongo (PW4) who described themselves as the brother and sister of the appellant respectively, also testified on the ownership of the suit land. It

was their evidence that, the same belonged to the deceased who, according to PW3, died in 1950, They stated further that, after the death of the deceased, the suit land remained in possession of the vendor who sold it to the 2n d - 4th respondents without an authority to do so. As a result, after being appointed the administrator of the deceased's estate, the appellant took the action of suing the respondents in the cases specified by PW1 in his evidence, the last one being the Land Case which has given rise to this appeal. On their part, the respondents, who disputed the appellant's claim that they had trespassed into the suit land, relied on their own evidence and in addition, called six other witnesses to testify. The crux of their evidence and that of their witnesses is that, the suit land was lawfully owned by the vendor who inherited it from his father, the late Abdulrahman Makuka. They contended thus that, the 2n d - 4th respondents lawfully acquired their respective parcels of land by virtue of having purchased them from the vendor. Testifying on how her father, the vendor, came to own the suit land, Zulfa Salum Makuka (the 1st respondent) who testified as DW1, averred that, as the daughter of the vendor, she knew that the suit land belonged to him and not the

deceased, the person who, despite being her maternal grandfather, had not known him as the owner of the suit land. The evidence of DW1 was supported by Zalia Salum Makuka (DW2) and Ibada Salum Makuka (DW3) who are also the offsprings of the vendor. Their evidence was to the following effect: They were born and grew up at the home of their grandparents who owned the suit land. When their grandfather died, they remained with their grandmother who later on, also passed away. In 1994, their father, sold the respective parcels of the land to the 2n d - 4th respondents. DW2 witnessed when the vendor sold the parcels of the land to the 2n d and 3rd respondents. She also recalled that, after the death of the vendor, the appellant took his death certificate on explanation that, he wanted to use it to apply for letters of administration of the vendor's estate. With regard to the claim that, the suit land belonged to the deceased both DW2 and DW3 denied that claim stating that, they had not known him before. It was after the dispute had arose that they came to know that, he was the father of their grandmother. They did not also know PW2, who testified that, he was the chairman of the Hamlet where the suit land is situated.

DWl's evidence was also supported by Ally Juma Makuka (DW9) and Ramadhani Salum Makuka (DW10), who are the grandsons of the late Abdulrahman Makuka and half brothers of the vendor. They testified to the effect that, previously, the suit land belonged to their grandfather but after his death, it was owned by their brother, the vendor. Like DW1, these two witnesses denied the allegation by the appellant that, the suit land belonged to him. They averred that, the appellant was not known to them before he appeared to claim the suit land. The 2n d - 4th respondents testified as DW4, DW5 and DW6 respectively. They stated that, on different dates, each of them purchased pieces of land measuring seven (7), three (3) and one (1) acre respectively from the vendor. It was their evidence further that, they did so after having assured themselves that the vendor was the lawful owner thereof. They added that, their sale agreements were witnessed by among other persons, the Village leaders. DW4 contended that, he bought the 7 acres piece of land at TZS 2,500,000.00 and the sale was witnessed by the vendor's son and the Village Chairman. On his part, DW5 stated that, he purchased the three acres vide a sale agreement dated 30/5/1999 witnessed by the vendor's sister, one Fatuma and another person called Huruma. As for DW6, it was her

evidence that, on 2/10/1999 she purchased one acre at the price of TZS 170,000.00 and the sale agreement was approved by Tuangoma Village Chairman, one M. M. Mbena. She contended further that, the same was witnessed by the said Fatuma Makuka and George Washington Haule. The other persons who testified on the sale of the suit land to the 2n d - 4th respondents were Asia Arufan Said (DW7) and Ally Abdallah Mponda (DW8). DW7 who was at the material time the neighbour of the 4th respondent, adduced evidence that, he witnessed the sale of land between her and the vendor. As for DW8, he testified that, he had been a resident of Vikeji Village since 1945. According to his evidence, he knew the vendor's father and that he owned the suit land. Both DW7 and DW8 averred that, to their knowledge, the person by the name of Salum Mbonde had never owned the suit land in Vikeji Village. At the commencement of the trial, the following two issues were framed and agreed upon by the parties: "1. Whether the p la in tiff is the law ful owner o f the suit property. 2. What reliefs are the parties entitled to ." Having considered the evidence adduced by the witnesses for the appellant and the respondents, the learned trial Judge found that, the

appellant had failed to prove ownership of the suit land by him or the deceased, his late grandfather, Salum Mbonde. He was of the view that, the evidence adduced by the appellant's witnesses was insufficient to establish most of the pleaded facts upon which the appellant's claim was based. The learned trial Judge observed, first, that no evidence was adduced to establish how the late Salum Mbonde acquired the ownership right of the suit land. Secondly, apart from the evidence of PW2, which was found to be unreliable because, he was aged 52 years at the time of adducing his evidence on 30/3/2020 and could not have lived to see deceased who passed away in 1950, there was no other evidence to the effect that, the said person or the appellant lived in Vikeji Village owning the suit land. On the other hand, the trial court found that, the evidence adduced by the witnesses for the defence, particularly DW7 and DW8 who were the residents of Vikeji Village, had known both the 1st respondent and his late father as residents of that village and knew also that, the suit land was previously owned by the vendor. Having so found, the learned trial Judge concluded that the appellant had failed to prove his case on the balance of probabilities. He thus proceeded to dismiss it with costs.

The appellant was aggrieved by the decision of the trial court hence this appeal in which, according to the memorandum of appeal, is based on the following four grounds: " 1. That, the tria l Court erred in law and fact for recording Zuifa Safum Makuka as adm inistratrix o f Sa/um Abduirahman Makuka without amending the pleadings. 2. That, the tria l Court grossly erred in law and fact in failing to comprehend exhibit P5 on the ground that the said judgm ent was invalidated. 3. That, the tria l Court grossly erred in law and fact in [the evaluation o f evidence thus failing to fin d that] the appellant claim ed the su it land after [h is] appointm ent as the adm inistrator. 4. That, the tria l Court erred in law and fact for failing to consider the testim onies o fD W l, DW2 and DW3." At the hearing of the appeal, the appellant appeared in person, unrepresented. Similarly, the 2n d and the 4th respondents appeared in person without having the services of an advocate. On his part, the 1st respondent was represented by Mr. Faraji Ahmed, learned counsel. The 3rd respondent, who had the notice of hearing, did not enter appearance and therefore, hearing of the appeal proceeded in his absence under rule 63 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules).

The appellant did not file written submissions in support of the appeal as required by rule 106 (1) of the Rules. He therefore, argued his appeal orally in terms of rule 106 (10) (b) of the Rules. His submissions on the grounds of appeal were brief. On the 1st ground, he argued that, the learned trial Judge erred in substituting the 1st respondent as the administratrix of the estate of her late father without amendment of the plaint. On the 2n d ground, he faulted the trial court contending that it failed to act on the decision in Mkuranga Ward Tribunal Application No. 100 of 2014 on the ground that the same was invalid. With regard to the 3rd ground, the appellant faulted the trial court arguing that, it failed to evaluate the evidence thus arriving at an erroneous decision that the suit land had never been lawfully owned by the appellant or his late grandfather. Submitting further in support of the 4th ground of appeal, the appellant argued that, the learned trial Judge did not properly consider the evidence of DW1, DW2 and DW3. It was his submission that, had the testimonies of the said witnesses given a deserving consideration, the appellant would have been found to be the lawful owner of the suit land in his capacity as the administrator of his grandfather's estate.

As was the case for the appellant, the respondent's reply submissions were brief. Replying to the arguments made in support of the 1st ground of appeal, Mr. Ahmed argued that, the 1st respondent was made a party to the case as evidenced by the proceedings at page 45 of the record of appeal and therefore, her appearance in the case as an administratrix was proper. On the 2n d ground, the learned counsel argued that, since the decision of the Ward Tribunal was successfully appealed against, the learned trial Judge correctly found that the same could not be acted upon because it was reversed by the DLHT on the ground of lack of pecuniary jurisdiction. Submitting further on the 3rd ground of appeal, Mr. Ahmed opposed the contention that, the trial court failed to evaluate the evidence to the effect that, the appellant claimed the suit land as an administrator of the estate of his grandfather hence its lawful owner. According to the learned counsel, since the dispute was centred on the issue of ownership, the evidence on whether the appellant was the lawful owner of the suit land was evaluated and the issue was answered in the negative; that the appellant did not adduce sufficient evidence to prove his claim. For the 4th ground, Mr. Ahmed disputed the submission that the evidence of DW1, DW2 and DW3 was not considered. He argued that, it

was after the trial court had evaluated the evidence of the said witnesses that it arrived at the conclusion that the suit land belonged to the vendor. The 2n d respondent supported the argument made by the learned counsel for the 1st respondent that the suit land belonged to the vendor, the person from whom he bought the seven (7) acres. He stressed that, he purchased the parcel of land knowing that it belonged to the vendor. On his part, the 4th respondent also opposed the argument that the piece of land which he purchased from the vendor belonged to the appellant. It was his submission that, he had been living in Vikeji Village and had known that the suit land, from which he purchased the three acres belonged to the vendor, the 1st respondent's late father. We have duly considered the submissions for and in opposition of the grounds of appeal. To start with the 1st ground, as stated above, the vendor who was the 1st defendant, passed away before the hearing of the suit had commenced. Following his death, on 14/1/2020, Zulfa Salum Makoka who had been appointed the administratrix of his estate, was joined as a party in his place. That was before the pre-trial conference had been conducted. From that stage, the hearing of the suit proceeded in the name of the administratrix of the deceased's estate as the 1st defendant.

The appellant's complaint is that, after the substitution of the name of the administratrix in place of the deceased vendor, the plaint was not amended. The applicable procedure where one of two or more defendants dies, is provided for under 0. X XI1 r 4 (1) of the Civil Procedure Code, Chapter 33 of the Revised Laws. That provision states as follows: " 4 -(l) Where one o f two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant dies and the right to sue survives, the Court, on an application made in that behalf, sh all cause the legal representative o f the deceased defendant to be made a party and sh all proceed with the s u it" In this case, the trial court complied with that provision. The provision does not stipulate the requirement of amending the plaint upon the substitution of the legal representative. Actually, the administratrix of the deceased's estate became the 1st defendant from the date on which she was joined. She was so cited in the judgment and the decree. In the circumstance, we find that, the 1st ground of appeal has been misconceived and thus dismiss it.

With respect to the 2n d ground of appeal, we hasten to state that, the same is also based on misconception. As shown above, the decision of Vikindu Ward Tribunal, a copy of which was contained in exhibit P5 as admitted in evidence by the High Court, was reversed by the DLHT in Land Appeal No. 18 of 2011. For that reason, the same coutd not be relied upon as having vested the appellant with a right of ownership over the suit land. We thus dismiss that ground of appeal. On the 3rd and the 4th grounds of appeal, the issue for our consideration is whether the trial court erred in its findings that the appellant had failed to establish its claim. The appellant's complaint is that the trial court did not properly evaluate the evidence particularly that of DW1, DW2 and DW3. It is trite law that, a person who moves the court to decide a certain fact in his favour must prove it. See for example, the case of Paulina Samson Ndawavya v. Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017 (unreported) in which the Court reiterated the position of the law as provided for under s. 110 of the Evidence Act, Chapter 6 of the Revised Laws. In that case, the Court had this to say: "It is trite law and indeed elem entary that he who alleges has a burden o f proof as per section 110 o f the Evidence4 Act, Cap. 6 [R.E, 2002]. It is equally elem entary that since the dispute was in civ il case, the 16

standard o f proof was on the balance o f probabilities which sim ply means that\ the court w ill sustain such evidence which is more credible than the other on a particular fact to be proved." From the above stated position of the law, the Court was not supposed to decide the case on the basis of the defence evidence unless it was one of admission. In their evidence DW1, DW2 and DW3 denied the plaintiff's evidence that he owned the suit land. It was therefore, the appellant's duty to prove otherwise. After having evaluate the evidence of the four witnesses for the plaintiff, as shown above, the trial court was satisfied that, the appellant had failed to prove that the suit land was owned by the deceased, his grandfather. Having re-evaluated the evidence the witnesses for both sides, we respectfully agree with the reasons given by the learned trial Judge for his finding. The appellant's submission that, had the learned trial Judge properly evaluated the evidence of the said defence witnesses would have arrived to a different conclusion is therefore, devoid of merit. The finding on the 4th ground of appeal suffices to dispose of the 3rd ground of appeal. Having found that the appellant did not prove that the deceased owned the suit land, the fact whether the appellant instituted the suit in his capacity as the legal personal representative or

otherwise became of no relevance in the determination of the suit. This ground is thus lacking in merit. In the circumstances, the 3rd and 4th grounds of appeal are hereby dismissed. In the event this appeal is dismissed with costs for want of merit. DATED at DAR ES SALAAM this 3rd day of October, 2024. A. G. MWARD A JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 4th day of October, 2024 in the presence of the 1st and 4th respondents and in the absence of the appellant and 2n d and 3rd respondents; is hereby certified as a true copy of the original. — 0. H. KINGWELE DEPUTY REGISTRAR COURT OF APPEAL