Mohamedi Hussein Msudi vs Ajali Hussein Mkatamwa (Land Appeal No. 14402 of 2025) [2025] TZHC 8643 (18 December 2025)

Page 1 of 11 IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB - REGISTRY OF MTWARA AT MTWARA LAND APPEAL NO. 14402 OF 2025 (Originating from the decision of the District Land and Housing Tribunal for Tandahimba at Tandahimba in Land Application No. 06 of 2023) MOHAMEDI HUSSEIN MSUDI (Administrator of the estates of the late Hussein Masudi Basha ) …………….....................................................................APPEL LANT VERSUS AJALI HUSSEIN MKATAMWA ( Administrator of the estates of the late Hassan Masudi Basha) ...................................................................................... ......RESPONDENT JUDGMENT 11 th November & 18 th December 2025. DIGH’OHI, J ; The respondent, Ajali Hussein Mkatamwa , is the nephew of the late Hassan Masudi Basha. He initiated this case in the District Land and Housing Tribunal for Tandahimba against the appellant following a land dispute , which he claims is part of the deceased's estate. Both the appellant and respon dent serve as administrators: the ap pellant for the estate of Hussein Masudi Basha, and the resp ondent for the estate of Hassan Masudi Bas ha. The two deceased were biological brothers .

Page 2 of 11 At the trial tribunal, t he respondent alleged that the appellant tresp assed on the disputed land in 2023. This occurred five years after the death of his late uncle, who had been utilizing the land alongside his children at the time of his passing . The appellant denied the claim, asserting his right to the disputed land thro ugh inheritance from his late father. He contended that following his father’s death in 1983, the property was entrusted to the respondent’s uncle to manage as a caretaker, as the appellant and his siblings were still minors at the time. In the trial tribunal, the respondent (PW1) supported his case with the testimonies of two witnesses: Jafu Rahisi Chibwana (PW2) and Rashidi Chibwana Basha (PW3). In response, the appellant (DW1) presented two witnesses: Issa Pilla Ntalika (DW2) and Zainab u Shukurani Mdidi (DW3). PW1 testified that he was appointed administrator of his uncle’ s estate following his death in 2018, tendering a copy of the letters of administration as Exhibit P1. He further asserted that in 2023, he discovered the appellant had trespassed on the deceased’s land and refused to vacate the property despite attending family meetings. PW2 an d PW3 corroborated this testimony, stating their awareness that the land in dispute rightfully

Page 3 of 11 belonged to the deceased's estate and that the appellant held no legitimate claim to the area . On his part, t he appellant testified that his father died in 1983 , at which point the appellant and his siblings were minors. Consequently, all properties, including the disputed land, were entrusted to the respondent's uncle. The appellant contends that his uncle managed these assets until his own death in 2018 , withou t having transferred the rightful inheritance back to the heirs . His evidence as regards ownership of the disputed land was supported by DW2 and DW3. In his testimony, DW2 identified himself as the grandfather of both parties. He testified that the dispute d land rightfully belonged to the appellant's father, asserting that the respondent’s uncle only cultivated the property after his brother's death. DW3 testified that she is the widow of the late Hussein Masudi Basha. She asserted that the disputed land un doubtedly belonged to her late husband . After considering the evidence presented by both parties, the trial t ribunal determined that the appellant had not discharged her burden of proof. Consequently , it granted the application and declared the respondent the rightful owner of the disputed land.

Page 4 of 11 Dissatisfied with the decision, the appellant has preferred this appeal, which is predicated upon the following four grounds ; one , the District Land and Housing tribunal erred both in law and facts for failure to evaluate and analyze material evidence of the appellant, in steady relying on weak evidence of the respondent thus arriving into a wrong decision ; two , the District Land and Housing tribunal erred both in law and facts for delivering its judgment in favor of the respondent while the respondent had failed to prove his case at balance of probabilities ; three , the trial chairman erred both in law and facts for failure to mandatorily state the reasons of differing wit h Assessor’s op inion thus contravening the law; and four ; t he District Land and Housing tribunal erred both in law and facts for giving poor and unjustified reasoning in deciding the case which resulted into erroneous decision . At the hearing of the appea l, both parties appeared in person, unrepresented. On his submission to support the appeal, the appellant pray ed that his grounds of appeal be adopted as par t of his submission in support of this appeal. The appellant contended further that the trial tribunal erred in law by rendering a judgment without conducting a visit to the locus in quo to verify the land dispute. Furthermore, he argued that the tribunal's

Page 5 of 11 ruling improperly disregarded the opinion of the assessors, who had concluded that the land did not belong to the respondent . In reply, the respondent prayed that the trial tribunal's decision be upheld, affirming his status as the rightful owner of the disputed land. He contended that the judgment was correctly based on the prepo nderance of evidence presented by his side, which outweighed that of the appellant. In a brief rejoinder, the appellant reiterated what he submitted in his submission in chief. Having considered the submissions of both parties, the primary issue for dete rmination is whether this appeal has merit. However, u pon a careful review of the grounds of appe al, I find that grounds one, two, and four all challenge whether the respondent proved his claim to the r equired legal standard. Ground three , however, address es a distinct procedural concern. Consequently, I shall address the grounds out of order, beginning my analy sis with ground number three . The appellant in ground three faulted the trial chairman for failure to mandatorily state the reasons for differing w ith the Assessor’s opinion , thus contravening the law . This ground of complaint necessitates a consideration

Page 6 of 11 of Section 24 of the Land Disputes Courts Act [Cap. 216 R.E. 2023], which stipulates that ; ‘In reaching decisions, the Chairman shall take into acc ount the opinion of the assessors but shall not be bound by it, except that the Chairman shall in the judgment give reasons for differing with such opinion.’ A similar stance was taken by the Court of Appeal in Mwita Nchama vs. Abudu Hamis Mohamed (Civil Appeal No. 520 of 2021) [2024] TZCA 323 (8 May 2024), where the Court clarified that; ‘ The law under section 24 of the LDCA further provides that, after the assessors have given their opinions, although the Chairperson is not bound by their opinion s, he is required to take into account those opinions in the course of writing his judgment. Where the Chairperson disagrees with the opinions of the assessors, he must give his reasons for such disagreement.’ In the present appeal, the record of proceedi ngs indicates that the Chairperson of the trial tribunal sat with two assessors, M. Kaisi and L. Ndowa. Fol lowing the oral hearing on 23 rd October 2024, the Chairperson adjourned the matter to 2 7 th November 2024 for the delivery of the assessors' opinions. The record is clear that the opinions by assessors w ere given and received on 24 th January 2025. On that date, the assessors

Page 7 of 11 rendered their opinions . They all opined that the appellant is the rightful owner of the disputed property . The matter was then scheduled for judgment on 28 th February 2025 . In his judgment, the learned Chairman departed from the opinions of the assessors. In his departure, the trial chairman had the following to say at page 8 of the judgment: ‘Kwa kuwa ushahidi wa mleta maombi una mashiko ukilinganisha na ushahidi wa mjibu maombi nimetofautiana na maoni ya wajumbe wa baraza wote wawili waliokuwa upande wa mjibu maombi badala yake nimeona maombi haya yana mashiko na yamekubaliwa kwa gharama (application allowed with costs).’ In my view, the above passage shows how the trial chairman managed to handle the matter per the law. He decided the dispute after he gave the reason why he did not agree with the opinion given by the assessors. In my view, there was no more the learned trial chairman could do. There is no way we can avoid getting used that the decision of the assessors in the land dispute matters before the District Land and Housing Tribunal does not bind the chairman of the tribunal. The trial chairman was therefore right to decide the way he did. In this light, the third ground fails for lack of merit .

Page 8 of 11 I turn now to the first , second , and four th grounds of appeal, which collectively build one issue of whether the case before the trial tribunal was proved to the required standard. It is a trite law that in civil cases, the burden of proof rests upon the party who alleges, as codified under Sections 11 7 and 11 8 of the Evidence Act [Cap. 6 R.E. 2023]. See also the case of Edina Anna Mwansasu & Another vs Superior Financin g Solutions & Others (Civil Appeal No. 426 of 2022) [2025] TZCA 872 (22 August 2025). In the instant appeal, e ach party claims that the disputed land was owned by their respective deceased relative. The respondent asserts that the same was owne d by his late uncle based on a history of undisturbed occupation. In his capacity as the estate's administrator, the respondent now seeks to distribute this property among the deceased’s heirs. To establish that the land belonged to his late uncle, the respondent c alled PW2 and PW3, both of whom testified to witnessing the deceased’s continuous and uninterrupted use of the property until he died in 2018 . Conversely, the appellant disputes the allegation by the respondent's claim of ownership, asserting that the res pondent’s uncle was not the real owner but was just a caretaker. According to the appellant, the land

Page 9 of 11 belonged to his late father ; it was only entrusted to the respondent’s uncle because, at that time, they were too young to manage it. Upon reviewing the evidence presented by both parties before the trial tribunal, several unresolved questions remain. Even if we accept the appellant's version of the story as accurate, the record indicates that the respondent's uncle passed away in 2018, at which point the appellant had already attained the age of majority. It remains unclear why the appellant failed to assert his claim to his late father’s land during the respondent’s uncle's lifetime, choosing instead to wait until the respondent’s uncle 's death before taking possession of the disputed area . Furthermore, the record from the trial tribunal contains no evidence that the appellant ever asserted a claim to his late father’s property, even within a family forum, during the lifetime of the res pondent’s uncle. The appellant’s decision to remain silent until the uncle's death before encroaching upon the land unfairly prejudices the legal heirs, who had witnessed their father’s long - term and undisturbed possession of the property. The appellant’s silence during the lifetime of the respondent’s uncle is telling. Had a legitimate claim existed, it should have been raised directly with the respondent’s uncle before his passing, rather than being asserted

Page 10 of 11 only after the respondent’s uncle could no long er defend his interest in the land. In the upshot, and in light of the foregoing deliberations and findings, the grounds of appeal presented by the appellant in this case have no merit and must fail. As I find no reason to disturb the decision of the tria l chair person , this appeal is without merit. The judgment and its decree by the trial tribunal in Land Application No. 06 of 2023 are sustained. This appeal, stemming from the dispute over the landed property allegedly left by the deceased persons, who wer e biological brothers, shall carry no costs. DATED at MTWARA , this 18 th day of December 2025. S.R. DING ’ OHI JUDGE 1 8 /12/2025 COURT: The judgment delivered this 18 th day of December 2025 in the presence of the appellant and respondent, who appeared in person. S.R. DING ’ OHI

Page 11 of 11 JUDGE 1 8 /12/2025