20110310 TZHC Dodoma

IN THE HIG.H COURT OF TANZANIA

ATDODOMA LAND CASE APPEAL NUMBER 30 OF 2008 (ARISING FROM LAND CASE NUMBER 68 OF 2007 OF THE DISTRICT

LAND AND HOUSING TRIBUNAL OFDODOMA DISTRICTAT DOD OMA) AMAR SAID SALIM -------------------------------APPELLANT

VERSUS

GABRIEL RAPHAEL RESPONDENT

JUDGMENT 04-11 —2010 & 10-03-2011 S. S. MWANGESI J.: The appellant herein enjoying the services of Wasonga and Associates Advocates has preferred his appeal to this Court to challenge the decision that was given by the District Land and Housing Tribunal of Dodoma in his disfavor At the said District Land and Housing tribunal, the respondent herein had lodged a land complaint praying to be declared as the lawful owner of a plot of land comprised on plot number 666 at Chamwino District in Dodoma Region. The District Land and Housing Tribunal after haying heard the evidence from both sides, was of the I t unanimous view that the claim by the applicant who happens to be the current respondent had been established on the balance of probabilities and hence the decision which is the subject of this appeal. In his petition of appeal, the appellant has listed about five grounds namely first, that the honorable Chairman erred in law and in fact by holding that the piece of land and the structure located on plot No. 666 Chamwino lkülu belonged to the applicant/respondent while knowing that the appellant is the legal owner of the same and that he has never transferred it to any person including the respondent. The second ground of appeal is to the effect that the honorable Chairman of the Tribunal and the gentlemen assessors did err in law by not considering the evidence that the appellant

sold to the respondent his milling machine and not a piece of land and the structure as alleged by the same. It has been asserted by the appellant further that the honorable Chairman erred in law and fact by delivering judgment in favor of the respondent basing on evidence that the value of the piece of land at Chamwino Ikulu is between Tshs. 200,000/= and 300,000/= while knowing that there was no land valuer engaged to testify to that effect and that the said piece of land was worth about Tshs. 20 million as per the value estimated by the respondent himself in his application to the Tribunal. 2 The appellant has as well faulted the District Land and Housing Tribunal for declaring the respondent as the lawful owner of the piece of land and the structure thereon after developing the said piece of land while knowing that the appellant did not give consent for such development. And lastly, the appellant has complained that the District Land and Housing Tribunal did err in law and fact by delivering judgment without considering the counter claim that had been raised by the appellant in the matter at hand. On the 21st September 2010 when this appeal was called foi= hearing, it was agreed upon by Mr. Wasonga learned counsel for the appellant and Mr. Kidumage learned counsel for the respondent and consented by the Court for the appeal to be argued by way of written submissions.

Both learned counsel are commended for complying with the time frame that had been scheduled by the Court. In his written submission, Mr. Wasonga has argued together the first and second grounds of appeal. It has been his submission that the disputed plot of land that was declared by the District Land and Housing Tribunal as being legally owned by the respondent has never changed hands at any"point in time neither through sale nor any other form of transfer. The only available evidence which is the sale agreement that was tendered as exhibit Al by the respondent explicitly indicates that the sale 3 - contract that got concluded between the appellant and the respondent was for a milling machine and nothing else. The learned counsel for the appellant has castigated the Honorable Chairman of the District Land and Housing Tribunal for opining and holding in his judgment that the sale contract that got concluded between the two that is the appellant and the respondent was meant for the milling machine, the house in which the milling machine had been, fixed and the piece of land. It has been his view that such finding by the Chairman was unfounded as the sale contract does not stipulate so and further that the interpretation of the sale agreement that is being invoked by the Chairman of the Tribunal goes against the doctrine of sanctity of contract. On the contention by the

respondent that part of the purchase price to the piece, of land at issue was made through the setting off of the electricity bill which the appellant had accumulated with TANESCO, the learned counsel for the appellant has submitted that such contention is baseless as there was no any evidence to establish the existence of such an agreement. On the other side of the coin, Mr. Njulumi learned counsel for the respondent has been of the view that the respondent is the lawful owner of the disputed plot of land as held by the District Land and Housing Tribunal. This is from the fact that he acquired it through the gentleman agreement 4 C' that got concluded between the appellant and the respondent whereby the - said, plot of land was sold to the respondent by the appellant at the price of Tshs. 3,333,0001= wherein, Tshs. 1,800,000/= was paid cash and the balance of Tshs. 1,500,000/= was paid through settling the electricity bill that had been accumulated by the appellant at TANESCO. That being the case, it has been the contention of Mr. Njulumi that the appeal by the appellant is without any founded grounds. The sale contract that was concluded between the appellant and the respondent which was tendered as exhibit Al during the hearing of the matt& at the District and Housing Tribunal reads verbatim thus: "TAREHE 28IJUNE12006 UTHIBITISHO WA KUPOKEA PESA SHS 1,700,0001= Mimi Amad

Said Slim wa Ipagara Dodoma Nathibitisha kupokea shs 1,700,0001= - milioni moja na laki saba kutoka kwa ndugu Gabriel Raphael wa Bahi Road ikiwa ni malipo kwa ajili ya kumuuzia mashini yangu ya kusaga nafaka iliyoko Cham wino Ikulu. Ndugu Gabriel Raphael nimemtambua kupltia mzee wangu mwalimu Kaishozi. Mapatano kamili ya mauzo ni shs 1,800,0001= 317106 AMELIPA SHS 100,0001= signec!". 5 Si The content of the above document is the center of contention regarding plot number 666, Chamwino Village, Dodoma Rural. While the learned counsel for the appellant does content that it did not transfer the right of ownership on the plot of land from the appellant to the respondent, the learned counsel for the respondent does content that it did transfer such ownership. My literal understanding of the content of the above alleged sale agreement document is that the appellant is acknowledging acceptance of the named amount of money from the respondent being payment for the purchase of a milling machine which is at Chamwino lkulu. The question which this court had to ask itself is as to whether in the light of what is stipulated. in the above quoted statement, it can be said that there was conducted a transaction for disposition of a plot of land. My ansWer to such question will be in the negative. This is from the fact that the above quoted document categorically mentions a milling machine

as the item that was being disposed of. In my opinion, there is no way in which "a milling machine" can be interpreted to include the structure in which it is fixed plus the land on which it is situated. In his attempt to persUade this Court to hold that a milling machine as contained in the sale agreement was meant to include the land Ofl: which it is fixed, the learned counsel for the respondent has requested the court to invoke the Latin maxim "quic quid plantatur solo solo cedit". This maxim simply stated according to me is that, "whatever is permanently affixed to 41 • land becomes part of that land". As such, I find some difficulties in agreeing with the opinion of the learned counsel in that, if his proposition will be accepted, we will be subjecting Land to other fixtures which to my view is tantamount to putting the cart before the horse. The foregoing notwithstanding, even if it were to be held as suggested by the respondent's counsel that the milling machine as named in the sale agreement meant to include the structure where it was fixed, still this could not have solved the problem because the claims by the respondent as supported and granted by the honorable Chairman of the District Land and Housing Tribunal were that it included the milling machine, the house in which the machine was fixed and the whole plot of land contained in plot number 666. It is my opinion

that such interpretation as upheld by the Honorable Chairman of the Tribunal with the gentlemen assessors was so arbitrary and cannot be left to stand. The words used in the sale agreement were so clear and unambiguous, one wonders as to how such other matters came to get infiltrated in. There was yet another contention by the respondent that his agreement with the appellant was to purchase the plot of land for the price of Tshs. 3,300,000/= and that Tshs. 1,800,000/= was paid instantly and that the balance of Tshs. 1,500,000/ was paid through settling the electricity bill of the appellant that had been accumulated. It is very unfortunate that such contention of the respondent finds no any support from the sale agreement 7 and not either was it supported by any oral evidence from any of the witnesses who testified for the respondent at the Tribunal. Furthermore, even the alleged settling of the bill was made in the appellant's name a thing which creates some difficulties in ascertaining if at all such a task was indeed performed by the respondent. Additionally, there is no dispute to the fact that the disputed plot of land is a registered plot of land held under a Right of Occupancy. As such, its disposition/sale is governed by the provision of section 64 of the Land Act Cap 113 which stipulates inter alia thus: "64 - (1) A contract for the disposition of a right of occupancy

or any derivative right in it or a mortgage is enforceable in a proceedings only if- the contract is in writing or there is written memorandum of its terms; the contract or the written memorandum is signed by the party against whom the contract is sought to be enforced." In the light of what is provided in the above quoted provision of law, it was imperative for the alleged sale agreement in the matter at hand if it indeed concern a plot of land as contended by the respondent, to have categorically indicated so and not being cushioned in the sale of the milling machine as it is being alleged to have been the case. Under the circumstances, the contention by the learned counsel for the respondent 8 1. that the respondent acquired ownership to the disputed plot of land through the gentleman agreement concluded between the two is legally unsustainable. In another instance, it has been submitted on behalf of the respondent that the appellant in this matter had bad intention in his mind that is why he never disclosed to the respondent that he had mortgaged the plot of land at issue. On this contention, the Court is in concurrence with what has been submitted by the learned counsel for the appellant in reply that there was no need to do so because the plot of land had nothing to do with the transaction which they were undertaking. And at any rate, it was the duty of the respondent

himself to make the necessary inquiries if he were to transact on the plot of land so goes the Latin Maxim "Caveat Emptor" ---buyer be aware, that is, the buyer has to make the necessary inquiries regarding the piece of land which he is to buy. On the bases of all that have been highlighted above, it is evident that there was never established that there was any transaction concerning sale of land as between the appellant and the respondent. As such, it was improper and there was 'no any justification whatsoever for the learned Chairman of the District Land and Housing Tribunal to hold that the appellant had sold a piece of land to the respondent. This answer also suffices to dispose of the third and the fourth grounds of appeal as the bases of all were centered on the sale of the plot of land in dispute. The last ground of appeal has been that the honorable Chairman of the District Land and Housing Tribunal did overlook the issue of the counterclaim that had been raised by the appellant and hence not considered in the judgment. The response from the learned counsel for the respondent has been that the honorable Chairman of the Tribunal did find no need of including it in the judgment because it was baseless. Indeed in his written statement of defense, the appellant did file a counterclaim wherein the reliefs sought included declaration that he is the lawful owner of the

disputed plot of land as well as payment for special damages. This counterclaim was adequately responded by the respondent who did file a written statement of defense. And even in the issues framed by the Chairman of the Tribunal, the reliefs sought by the appellant are contained in the first and the last but one issues. However, the findings of the tribunal regarding those issues are not expressly provided in the judgment. It is the view of this Court that what occurred was an anomaly on the part of the District Land and 1-lousing Tribunal. However, on the circumstances pertaining tO this particular matter, the anomaly was not fatal. This is from the fact that the first relief prayed in the counterclaim was a common one in that it was considered while the Tribunal was considering the relief for the other side. On the question of the special damages claimed by the appellant, there was no any evidence tendered by the 10 appellant to establish as to how he had suffered the damages which he was claiming. That being the case, the failure by the District Land and Housing Tribunal to simply indicate in its judgment that the prayers on that aspect by the appellant had not been established could not have made any difference. Ultimately therefore, the appeal by the appellant is found to be with merits and has to sail through. The decision of the District Land and Housing Tribunal and

its ancillary orders are hereby quashed and set aside. It is thus declared that the appellant is the lawful owner of Plot Number 666, Chamwino Ikulu while on the other hand the respondent is the lawful owner of the milling machine which he legally purchased from the appellant as per the sale agreement that is, exhibit Dl. No order is made as to costs and therefore each party will bear its own costs. Order accordingly. I S. S. MWANGESL) iz JUDGE 10-03-2011 11 Date: 10/03/2011 Coram: R. I. RUTTA - DR Appellant: Present & Mr. Mavunde Adv. h/b for Mr. Wasonga Respondent: Present & Mr. Mavunde h/b for Mr. Njulumi Adv. C/C: R. Mahamoud Court: The Judgment has been delivered in the presence of parties and Mr. Mavunde holding brief for Mr. Wasonga and Njulumi Adv. Right of Appeal explained. 10 R. I. RUTA INISIBWA I1 DISTRICT REGISTRAR 10/03/2011