ADILI KASSIM SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 9517 OF 2024 (Originating from Land Application No. 153 of2022 of Temeke District Land and Housing Tribunal) ADILI KASSIM MHADA RAJ ABU................................................. APPELLANT VERSUS KIHINDA ALLY BALEWA............... ................ 1st RESPONDENT LILIAN MBWAMBO........................................................ 2nd RESPONDENT KABANGO GENERAL BUSINESS (T) LTD........................ 3rd RESPONDENT JUDGMENT 14/8/2024 & 30/8/2024 k. MSAFIRI, J. The appellant being aggrieved by the decision of the District Land and Housing Tribunal of Temeke at Temeke (herein the trial Tribunal) following the decision in Land Application No. 153 of 2022, has lodged this appeal on the following grounds of appeal; 1. That the trial Tribunal had erred in iaw and in fact by dismissing the application while the chairperson supported the assessors' opinion who opined the application be granted. 2. The trial Tribunal had erred in iaw and facts by failure to make order to the 2nd and Jd respondents who admitted the application. i 3. That the trial Tribunal had erred in law and in fact by failure to analyze the evidence adduced by both parties in reaching into injustice decision. The appellants prays that the decision of the trial Tribunal be set aside and the appeal be allowed with costs. The hearing of the appeal was by way of written submissions. The submission in chief by the appellant was drawn and filed by Mr. Godfrey Alfred, learned advocate and the reply submission by the 1st respondent was drawn and filed by Mr. Faraji Ahmed, learned advocate. The hearing proceeded exparte against the 2nd and 3rd respondents after the court was satisfied that the same were duly served and for the reasons known to themselves, they failed to appear in court for hearing. I have well considered the submissions by the learned counsels and I commend them for assisting the court in determination of the appeal. In the third ground of appeal, the appellant has complained that the trial Tribunal failed to analyze the evidence adduced by both parties hence reach into unjust decision. Being the court of first appeal, I have duty to re-analyze the adduced evidence and have discretion to come with my own conclusion regarding the said evidence, and therefore, I will revisit the proceedings and asses the available evidence. 2 The appellant who was also the applicant during the trial, sued the three respondents claiming that he is the lawful owner of the suit property located at Mbagala Street, Kizinga Ward in Temeke, Dar es Salaam. That he has lawfully purchased the suit property in an auction conducted by the 3rd respondent. That the suit property was the lawful property of the 1st respondent who mortgaged the same as a security for the loan from the 2nd respondent. Testifying as SMI, the applicant said that he purchased the suit property in an auction. That the house in dispute was sold after the 1st respondent failed to pay the loan as agreed between the 1st and 2nd respondents. He produced a Certificate of Sale which was admitted as exhibit Pl. That after the purchase, he was also given the loan agreement which was between the 1st and 2nd respondents. The said loan agreement was admitted as exhibit P2. SMI said that he saw the advertisement of an auction for the sale of house in dispute in a newspaper. He proceeded to produce the newspaper namely Uhuru dated 29/7/2022 which was admitted as exhibit P3. The witness also produced several letters on the permission to conduct an auction and the same were admitted collectively in court as exhibit P4. 3 SMI said further that after purchase, he wanted to change ownership and that is when the 1st respondent refused to give vacant possession. He prayed for declaration of ownership of the suit house and the vacant possession. In cross examination, the applicant stated that he failed to transfer ownership of the suit property since he has a photocopy of the residence license while the original one is under the custody of the 1st respondent who has refused to hand it to the applicant. The 1st respondent testified as SUI. He admitted that he failed to pay the loan which was issued to him by the 2nd respondent Lilian Mbwambo and that they were doing business together. He admitted to have an agreement with the 2nd respondent. He said that he is the lawful owner of the suit house and he has never sold it or agree to be sold by auction. He said further that the auction has procedures and that the suit house was sold for TZS 20,000,000 which was below the market price. That in the sale, the permit of the District Commissioner was required and the participation of the 1st respondent as the owner. He said that the agreement was between him, the 1st respondent and the 2nd respondent hence the applicant was not a party to the agreement. JU 4 The hearing at the Tribunal was also exparte against the 2nd and 3rd respondents. The issues framed at the trial for determination was whether the applicant is the lawful owner of the suit property by purchasing it from the 3rd respondent by auction; and the reliefs. After analysis of the evidence, the trial Chairman framed another new issue on whether the 1st respondent was the owner of the suit property and hence had the mandate to sell the suit property. This is seen at page 4 of the impugned judgment. Here I have taken an understanding that the trial Chairman meant the 2nd respondent who was the one purportedly engaged the 3rd respondent to sell the suit house by auction. In his determination of this issue, the trial Chairman relied on the principle of law that "He who does not have legal title to the land cannot pass a good title over the same land to another"and referred the case of Furaha Mohamed vs. Fatuma Abdallah [1992] TLR 205. The trial Chairman was of the view that the base of ownership of the applicant (SMI) is on ownership of the 2nd respondent which evidence shows that she got the ownership of the suit property after the 1st respondent (SUI) defaulted in payment of the loan as per the loan agreement, exhibit P2. J\fl r 5 The trial Chairman observed that in analyzing the evidence, he has failed to see the proof that SUI defaulted on loan payment and the amount of the outstanding debt was unknown so as to justify the clause in the loan agreement which stated that if the debtor failed to repay the loan, then the creditor will be entitled to sell/dispose by sale, the suit property which was secured for a loan. In addition, the trial Chairman found that even if the 1st respondent (SUI) failed to pay the loan, still the 2nd respondent had no authority to sell the suit property as she was not the owner. The trial Chairman found that the applicant was not the lawful owner of the suit property by sale. This decision of the trial Chairman aggrieved the appellant and in the instant appeal, he is complaining that the trial Chairman failed to analyze the evidence adduced by both parties to the dispute. After analysis of evidence and the findings of the trial Chairman, with due respect, I differ with the findings of the trial Chairman. This is for the reason that it is in the evidence that there was/is an agreement between the two people i.e. the 1st respondent and 2nd respondent who have lawfully and voluntarily entered and agreed on the terms therein. The 1st respondent while adducing his evidence as SUI did not dispute this agreement which was admitted in court as exhibit P2. yV L 6 In the said agreement, the 2nd respondent issued a loan of the sum of TZS 50 million to the 1st respondent whereby by the time the agreement was signed by the parties, the 1st respondent has paid only five (5) million shillings. At clause 5 of the agreement, it was agreed that in case of default, the land property which comprise of business frames (the suit property) will be sold in order to repay the loan. At clause 1 of the agreement, it was agreed that the 1st respondent will pay the loan within six months to be counted from 09/4/2018 and complete the payments by 09/10/2018. The agreement was entered on 21/3/2018. To cement that, the spouse of the 1st respondent one Zakia Hussein Lugwisa, gave the spouse consent for the mortgage of the suit property. The spouse consent was attached with the loan agreement. I will herein below reproduce item 4 and 5 of the consent, where the spouse stated that:- 4. Kwamba, katika jitihada za kuIipa deni hiIo, Kihinda Ally Balewa ameweka dhamana kiwanja chetu chenye fremu kilichopo mbagala, sababasaba kwa mpHi, wilayani Temeke chenye leseni ya makazi namba TMK0348U. 5. Kwamba, nimeridhia kuwa endapo Kihinda Ally Balewa atashindwa kulipa deni hilo, basi kiwanja hicho chenye fremu kiuzwe Hi kufidia denlhnM. 7 Therefore by this exhibit P2, it is clear that there was an agreement binding the two parties that Lilian Mbwambo (2nd respondent) agreed to lend the said sum to Kihinda Ally Balewa (1st respondent) and they both agreed that the sum should be repaid within six months and in case of failure to pay, Lilian Mbwambo was to sell the mortgaged property to recover her money. It is my view that it was not the duty of the trial Chairman to interpret the terms of exhibit P2 which he did by holding that the 2nd defendant was not the owner of the suit property hence had no right of sale. It is my finding that the right of the sale of suit property by the 2nd respondent came from the loan agreement at Clause 5 which gave the 2nd respondent the right to sell the suit property in case of the 1st respondent's default. The 1st and 2nd respondents are bound by the terms of their own agreement. In this I am guided by the provisions of Section 37(1) of the Law of Contract Act which provides that an agreement entered by parties is binding upon the said parties. This principle of law has been elaborated further in numerous cases by the Court of Appeal and even this Court. To name few, this principle of law was observed in the case of Unilever Tanzania Ltd vs. Benedict Mkasa t/a Bema Enterprises, Civil Appeal No. 41 of 2009, CAT at DSM (unreported) where it was stated 8 "Strictly speaking, under our laws, once parties have freely agreed on their contractual clauses, it would not be open for the Courts to change those clause which parties have agreed between themselves.,.." Also in the case of Mariam E. Maro vs. Bank of Tanzania, Civil Appeal No. 22 of 2017 [2020] TZCA 1789, the Court of Appeal held thus; uIt is the law that parties are bound by the terms of the agreement they freely enter into...." In the instant case, I find that the 2nd respondent had a right to sell the suit property to recover her money as per the terms of the loan agreement exhibit P2. The trial Chairman held further that even if the 2nd respondent had the right to sell the suit property, there was no evidence that the 1st respondent defaulted on payment. In this, I also differ with the trial Chairman. This is for the reason that, the issue before the Tribunal was not whether the 1st respondent defaulted or not. The applicant has not pleaded that the 1st respondent defaulted and that is why the suit property was sold by auction. What the applicant pleaded and was claiming is that he is the lawful owner of the suit property by sale. That he purchased the suit property in an auction where he emerged the highest bidder. Whether the 1st respondent paid<7 9 the loan or not that was between the respondents who were parties to their agreement. There was no evidence that the auction was ever nullified for being unlawfully conducted. To prove his claims, the applicant produced exhibit Pl the Certificate of Sale which shows that he was the purchaser of the suit property at a public auction. Exhibit P3 is Uhuru newspaper which advertised the public auction. The newspaper is dated 29/7/2022 while the auction took place on 27/8/2022. Exhibit P4 is the letter from the Office of the District Commissioner permitting the auction. The 1st respondent was aware of the auction since he and his wife Zakia Hussein Lugwisa instituted an application for temporary injunction to attempt to stop the auction. This Application No. 186 of 2018 was instituted at the trial Tribunal but it was dismissed for want of prosecution after the applicants failed to attend to it. The dismissal order of the said application was received by the trial Tribunal for judicial notice. The 1st respondent in his evidence as SUI argued that the auction did not follow the proper procedure and that the suit property was sold below the market price. However, as said above, the 1st respondent have never challenged the auction and did not state the market value of the suit property.jMkl io Basing on the above analysis, I have reached to my own, different conclusion being the court of first appeal that the applicant is the lawful owner of the suit property by the power of sale (and purchase) and hence he is entitled to claim the suit property. Since this third ground of appeal suffice to dispose of the appeal, I will not go into determination of the other two grounds of appeal. The appeal is hereby allowed and the judgment, decree and the subsequent orders by the trial Tribunal are hereby quashed and set aside. Costs of the appeal shall be borne by the 1st respondent. A.MSAFIRI JUDGE 30/8/2024 11