abderehemani ally mussa the administrator of the estate of the late ally mussa mwenda vs ahmed hassan mkungu 2023 tzhc 19246 27 july 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA LAND APPEAL NO. 18 OF 2022. : (Originating from the District Land and Housing Tribunal for Mtwara at Mtwara in Land Application No.72 of 2019) ABDEREHEMANI ALLY MUSSA (The administrator of the Estate of late Ally Mussa Mwenda).......... ........................................... .......APPELLANT VERSUS ' . AHMED HASSAN M6CUNGU .............. RESPONDENT JUDGMENT 18th & 27th July 2023 LALTAIKA, J. The appellant herein ABDEREHEMANI ALLY MUSSA suing as an administrator of the estate of the late Ally Mussa Mwenda is dissatisfied with the decision of the District Land and Housing Tribunal for Mtwara (the DLHT) in Land Application No.72 of 2019. He has appealed to this court by way of a petition of appeal on the following grounds: Page 1 of 11 L That the that tribunal erred in taw and fact in entertaining the matter without requisite jurisdiction 2. That the trial Tribunal erredin taw and fact in admitting and relying on evidence outside the respondent's pleadings 3. That the trial Tribunal erred in la w and fact to hold that the appellant sold the land in dispute to the Respondent 4. That the trial Tribunal erred in law and fact for failure to properly evaluate the evidence on record and hold that the land in dispute is the lawful property of the Appellant 5. That the proceedings are irregular as were conducted contrary to and in violation of the law. When the appeal was called on for hearing on the 18th of July 2023 both the appellant and respondent were in court enjoying skillful services of Messrs. Stephen Lekey and Rainery Songea, learned Advocates, respectively. The next part of this judgement is on a summary of their rival submissions. Submitting in support of the appeal, Mr. Lekey stated that the appeal at hand alleges that the appellant sold two unsurveyed pieces of land located at Mbae Mianzini and Mbae Chundi, measuring 1.5 acres and 7 acres, respectively. The alleged agreements to sell the land were made an 2014 and 2015, with prices of TZS 2,000,000 and TZS 15,000,000, respectively. It was further claimed that the appellant trespassed onto the areas and 'started using them. The appellant was also accused of refusing to sign the earlier entered agreement, which led to a land case at DLHT, Mtwara. The DLHT ruled in favor of the respondent. Mr. Lekey explained that the petition of appeal contained five grounds, but he chose to focus on the 2nd, 3rd, and 4th grounds, combining the 3rd and 4th. Regarding the 3rd and 4th grounds, Mr. Lekey argued that the DLHT ruled in favor of the respondent based on three reasons: first, an oral Page 2 of 11 contract between the parties; second, oral evidence from the respondent; and third, the demeanor of the appellant as the first witness. Mr. Lekey referred to the LAW OF CONTRACT ACT IMO 345 RE 2019, which defines a contract as either written or oral, but insisted that law requires that contracts for the disposition of a right of occupancy must be in writing, as per Section 64(1) of the LAND.ACT CAP113''RE 2019. He cited the case of ISHFAQUE SHABIR YUSUFALl v. ANIL MOHAMED VISRA and 3 OTHERS Land Case No 202 of 2013 HCT Dar es .Salaam to highlight that oral contracts alone were: not sufficient evidence for land sales. Mr. Lekey argued that since there was no written evidence of the purported disposition of the land, it would be ineffectual and unenforceable according to Section 61 of the Land Act. Regarding the credibility of witnesses, Mr. Lekey mentioned the case of PIA JOSEPH v. REPUBLIC [1984] TLR161z stating that the court would not easily interfere with the DLHT's decision on credibility. However, he referred to the case of KHALXFE MOHAMED v. AZIZI KHALXFEand ANOTHER Civ. Appeal No 97 of 2018 CA 2020, asserting that the appellate court could assess the consistency of the witness and make its own findings. Regarding the amount of money exchanged, Mr. Lekey presented contradictions in the testimonies of PW1, PW2, and PW3, the witnesses at the DLHT. He argued that the uncertainty and lack of clarity in the terms of the contract rendered it void, as per Section 29 of the LCA. Mr. Lekey also criticized the DLHT's observation of the appellant's demeanor, as there were no recorded remarks as required by ORDER XVIII Page 3 of 11 Rule 8. He referred to GOODLUCK'KYAN DO v. REPUBLIC [2006] TLR 363 the Court of Appeal case which emphasized that every witness should be given credence unless there were cogent reasons not to do so. Mr. Lekey concluded by praying that the DLHT’s decision be reversed and that this court find that the appellant never sold the land. On the second ground, he argued that the respondent's evidence contradicted the pleadings, which should be binding on parties and courts, citing the case of JAMES FUNKE GWA'GILO v. The AG [2004] TLR 161 and the CAT case in SALIM SAID MTOMEKEA vs. MOHAMED ABDALLAH MOHAMED Civ. App. 149 of 2019 TZCA p. 15. He prayed for the appeal to be accepted with costs. Mr. Songea, Counsel for the respondent, responded to Mr. Lekey's submission, expressing agreement with the decision of the DLHT. He stated that the DLHT’s ruling was a correct position based on the entire proceeding of the court. As this was the first appellate court, Mr. Songea believed that it could assume the position of the lower tribunal and find that there was an oral agreement, and the dispute arose when it was time to sign the agreement. Regarding PWl’s evidence, Mr. Songea pointed out that the arrangement was for the agreement to be put in writing after completion of payment. He referred to Section 10 of the LCA, which accepts oral contracts. He argued that the case of ISHFAQUE was distinguishable as it involved surveyed land that required documentation for ownership transfer, unlike the current case with unsurveyed areas. Page 4 of 11 Mr. Songea asserted that, based on Section 3(2)(b) of The Evidence Act Cap 6 RE 2022 (TEA) the testimonies of PW.1, PW2, and PW3, when compared with the evidence adduced by the respondent, supported the DLHT's ruling in favor of the respondent. He contended that the exhibits presented (eight in total) were not read out after admission, and therefore, they should be expunged from the court records, following the case of ROBINSON MWANJISI and 3 OTHERS v. REPUBLIC [2003] TLR218. Mr. Songea further argued that the evidence provided by the respondent’s witnesses indicated that the appellant failed to prove their case. He cited discrepancies in the testimonies of PW4 and the witness from the Municipal Council regarding the land survey process. He emphasized that these discrepancies were due to forgetfulness and did not render the evidence untruthful. Regarding the issue of demeanor, Mr. Songea stated that it was the domain of the trial! court to observe the witness while testifying and determine their credibility. He pointed to the DLHT’s finding that the witness DW1 could not be trusted, and he believed that this court could come to the same conclusion upon reviewing the records. Mr. Songea reiterated that the main issues of the case, who was the owner of the suit land and whether the respondent sold the land to the applicant, were proved. He prayed that the decision of the DLHT be upheld, and if deemed appropriate, an order for costs be made. He referred to cases like EUNICE MASH AD A NGVETH and Another.v., ANSIBERT NKETE Page 5 of 11 Land Appeal No 101 Of 2020 HCT, Bukoba and PHILIPO JOSEPH LUKONDE v. FARAJI ALLY SAIDI Givil Appeal No 74 of 2019 to support his argument. In conclusion, Mr. Songea believed that the evidence clearly showed the existence of an oral agreement, and the conflict arose at the last minute. Mr. Lekey, in a rejoinder to his earlier submission, reiterated his previous points. Regarding the prayer for expunging the documents, he questioned whether it was a cross-appeal. He referred to the DLHT records, pp 22ff, where the current counsel representing the respondent had requested and received all the records to prepare for the hearing. Mr. Lekey believed that the counsel had an opportunity to go through the documents and was satisfied, which is why no objections were raised during their admission. He argued that the essence of reading an exhibit was for parties to be aware of the content, and this purpose was fulfilled by the counsel's access to the records. Addressing the assertion that the respondent went to sign the agreement in 2018, Mr. Lekey considered it without merit. He questioned the possibility of paying millions of shillings without documentation and stressed that the law.insists on written agreements for the sale of land. Regarding the claim that DW4's boss was not aware of his testimony, Mr. Lekey argued that the joint witness had testified that the area was surveyed by a licensed surveyor. He implied that the awareness of DW4s boss was not relevant in this context, as long as the surveyor's testimony supported the survey claim. Page 6 of 11 Regarding DWl's statement that he did not buy the land from the owner, Mr. Lekey pointed out that there was no dispute about who.sold the land to him. However, he argued that if the seller was not the rightful owner, the entire sale should be nullified, as the appellant did not have a good title to sell the land. Mr. Lekey dismissed the contradictions asserted by the respondent's counsel, stating that they did not go to the root of the dispute. He concluded by praying for the appeal to be allowed with costs, I have dispassiohately considered thie''riyati''submissions and thoroughly examined the Sower court records. I must say that this is the strangest appeal I have come across in this court so far. I can also safely assert without exaggeration, that this is one of those cases that show how courts (in this case including tribunals) can be abused to the detriment of not only individuals but also their families after their demise. I will explain is the simplest of expressions. Picture this: you wake up in the morning, your next-door neighbour comes with two million shillings claiming that you needed to receive it, sign a piece of paper, and leave your land for him. He goes on to claim that you orally agreed to sell him the land and that he had already given you TZS 15,000,000 (or any other amount). He or she, however, has no document to prove such payment or even such agreement for you to sell the land. You refuse and he drags you to court. This may sound like a hypothetical to teach law students problem solving skills but that is exactly what happened in this case. Page 7 of 11 I am dumbfounded, to say the least, to contemplate that the learned lawyers for the respondent (then claimant) had the audacity to take up the case in the first place. This is despite the fact that their client had absolutely nothing to prove his claims. I am even more astonished if not immensely flabbergasted to read through the tribunal's decision and find out that the learned Chairman actually believed what the responded was saying. l am in total disbelief. To be fair, oral evidence, and indeed oral contracts, as argued by the learned counsel are a part and parcel of our daily lives. No court of law can lockout its doors completely and refuse to consider oral contracts. However, as correctly argued by Mr. Lekey some transactions including the transfer of land requires specifically that contracts be in writing. See Section 64(1) of the LAND ACT CAP (supra) as correctly cited by Mr. Lekey. Here is another reasons I am in total shock on how the learned Tribunal arrived at its utterly unreasonable decision. Imagine that we agree with his reasoning that he had observed the demeanor of the appellant and was convinced that he had received the money and was "hiding something." How unfortunate! Was the learned Chairman a prophet of some sort? If this court was to uphold this decision and the same is used as precedent in lower courts, how many people would do a way with outright thievery ujambazi by simply walking to the tribunal, claim that they had an oral contract with their neighbour and the neighbour had sold them their family property? Is that not tantamount to using the court to rob the poor in broad daylight? I am alive to the use of demeanor evidence in our jurisdiction and other common law countries with which we share legal ancestry. The word Page 8 of 11 demeanour [ spoiled "demeanor" in American English] is defined by the Black's Law Dictionary as follows: "...the tone of voice in which the witness' statement is made, the hesitation or readiness with which his answers are given, the look of the witness, his carriage, hisevidence of surprise, his gestures, his zeal, his bearing, his expression, his yawns, the use of his eyes, his furtive or meaning glances, etc. " Although demeanour evidence is recognized in our law as an exception to the general rule that evidence must be formally tendered, challenged and admitted by the court, the same is not without safeguards. As correctly argued by Mr. Lekey, the learned Chairman did not document his observation. For demeanor evidence to be considered it has to be written down. The observer needs to. describe exactly what he is seeing and why he or she thinks the observed behavior indicated untruthfulness. Be it as it may, this form of evidence should be avoided. Psychologists and other experts in human behavior have indicated how unreliable such "opinion" formed by a judge or magistrate maybe. According to Professor Wellborn in "Psychologists and other students of human communication have investigated many aspects of deceptive behavior and its detection. As part of this investigation, they have attempted to determine experimentally whether ordinary people can effectively use nonverbal indicia to determine whether another person is lying. In effect, social scientists have tested the legal premise concerning demeanor as a scientific hypothesis. With impressive consistency, the experimental results indicate that this legal premise is erroneous. According to the. empirical evidence, ordinary people cannot make effective use of demeanor in deciding whether to believe a witness. On the contrary, there is some evidence that the observation ofdemeanor diminishes rather than enhances the accuracy of credibility judgments. Page 9 of 11 See Olin Guy Wellborn III, Demeanor , 76 Cornell L Rev. 1075 (1991) Available at: http://schoIarshipdaw.corneh,.edu/clr/vol76/iss5/3 (emphasis added) It is noteworthy that the learned Chairman of the tribunal had the assistance of two assessors. These are members of the iocal community whose opinion/ although not binding, provide the court with the much- needed perspective of the wananchi. These assessors were of a firm view that it was not possible to imagine that the respondent had paid The appellant more than ten million shillings without any written agreement. I agree with them. It is unthinkable. Even siblings including identical twins cannot enter into such an agreement involving such a huge amount of money without anything written. The learned counsel for the respondent's argument that the sighing was to come after the payment is totally unfounded. It defeats not only logic but also real-life practice as we all know among wananchi in this .country. Even those who have not been to school at all would always demand a written piece of paper whenever they give out their cash be it to an individual or an organization. The saying ukiuza toa risiti ukinunua toa risiti although it is meant for tax collection, has become a part and parcel of the lives of many Tanzanians. Now back to the respondent, one may ask, what if, in the wildest of imaginations, he actually paid the monies to the (now deceased) neighbour and the oral contract had in fact been entered into? That would be most unfortunate because courts of law have their language. That language is called evidence. Deciding a matter simply by observing a litigant and Page 10 of 11 concluding that he looked like he/she is lying would be turning a court of justice into a fortune teller using ramlichonganishi as a tool for decision making in a court of justice. That is not right. Premised on the above, I allow the appeal. I quash the judgment of the trial tribunal and set aside all orders emanating therefrom. JUDGE 27.07.2023 This judgement is delivered today in the presence both the appellant and respondent who have appeared in person, unrepresented. The right to appeal to the Court of Appeal fully explained. Page 11 of 11