na TZHC Mbeya

• IN THE HIGH COURT OF TANZANIA 1. (LAND DIVISION) ATMBEYA. LAND APPEAL NO. 7 OF 2011. . (From the Decision of the District Land and Housing Tribunal of Rungwe District at 1ungwe In Land Case No... of 20...) ANGELINA SILVESTER SANYIKA ..........................APPELLANT VERSUS VENACE JONAS MWAMUNYANGE RESPONDENTS CHRISTOPHER SAKARANI MWAKANYAMALE JUDGMENT. M.P.M. Mwaimu, J. The appellant Angelina Sylvester Sanyika sued the two respondents, Venance Jonas Mwamunyange and Christopher Sarakani Mwakanyamale, the first and second respectively at the Rungwe District Land and Housing for unlawful sale of a house located at Bondeñi Squater area within Kyela District. It was the appellant's contention at the trial that the first respondent who she claimed that was her husband, sold the suit premises to the second respondent on 270 October, 2009 at a price of eight million five hundred thousand shillings without consulting her. The judgment was pronounced against the appellant where upon was not satisfied and appealed to this court enumerating twelve grounds of appeal. 1 The appellant and the first respondent appeared in person and the second respondent acquired the services of Mr. Mkumbe learned counsel. At the hearing of the appeal, the appellant adopted the grounds of appeal. The first respondent argued the appeal in support of the appellant submitting that he was the husband of the appellant and that they constructed the house in dispute together. According to him he sold the house to the second respondent for two reasons that one, he was induced by him and second because his wife, the appellant was sick. Mr. Mwakolo learned counsel who held brief for Mr. Mkumbe for the second respondent resisted the appeal and prayed the same to be dismissed for reason he advanced in the course of his submission. His first argument was that the first respondent admitted before the Tribunal that he sold the house in dispute to the second respondent. Secondly Mr. Mwakolo contended that the first respondent did not adduce evidence to prove that he was living with the appellant as husband and wife. In his third argument the learned counsel argued that neither the appellant nor the first respondent adduced evidence to prove the house in dispute was a matrimonial home. In expounding his arguments Mr. Mwakolo submitted that the alleged couple did not even bother to call relatives to prove the subsistence of the purported marriage. 2 It was his contention that the second respondent adduced ample evidence to disprove the existence of the marriage. He referred the court to the testimony of Dw2 Morfat Mwandemba and Dw3 Tusajigwe Mwakipesile who were neighbours of the first respondent. Their evidence was to the effect that the appellant and the first respondent were not living as husband and wife. Mr. Mwakolo added another point. He challenged the loss report for an alleged marriage certificate in which the appellant and the first respondent wanted to prove existence of marriage. He argued that the said loss report was incredible on ground that while the alleged marriage certificate was said to have been lost in 1997 the loss report was sought in 2009. It was his contention that the loss report was brought in after the appellant was cross examined during the trial. On top of this argument Mr. Mwakolo submitted that usually marriage certificates are issued to both spouse after signing them. He wondered why the purported couple could not produce the other certificate after one got lost. In her rejoinder to the first ground the appellant submitted that she was married to the 1st respondent in 1967 at Mbozi when both of them were teachers. She stated that at that material time only one copy of marriage certificate was issued and that the save got lost in 1997 when their child died and many items got lost. She insisted that she is married to the first respondent and that they have been blessed mine issues and that they have been living together since 1967. From this she argued that there is a subsisting marriage. 3 From the evidence on record there is no dispute that the first respondent sold the suit house to the second respondent. On this ground then the issue is whether the appellant proved subsistence of marriage between herself and the first respondent. If there was marriage between the two parties whether there was proof that the disputed house was a matrimonial home, and if that was so whether the first respondent informed the appellant about his intention to sell the house. From the evidence on record and the submissions by both parties it is obvious that although the appellant and the first respondent claimed to be spouses there was no written proof to establish existence of marriage. Their assertion is that the marriage certificate got lost in 1997. But what raise suspiscion about the loss of the marriage certificate is the conduct of the alleged spouses who could not report about the purported loss until 2010, a period of about thirteen years. Mr. Mwakolo argued that the loss report produced at the District Land and Housing Tribunal by the appellant was sought from the police on 191h day of April, 2010 a period of five months after the appellant lodged the application against the respondents at the Tribunal on 3rd November, 2009. It was his contention that the loss report was sought as an afterthought following cross examination made by the second respondent's counsel on whether there was a subsisting marriage between the appellant and the first respondent. 4 On balance of probability I tend to agree with Mr. Mwakolo that the appellant did not prove existence of marriage between herself and the first respondent through a written document. The purported loss report which was prompted by cross examination from the second respondent's counsel was an afterthought. As the nature of claim by the applicant required proof of marriage as the first requisite the appellant failed to prove this fact. The second issue on this ground is whether the house in dispute was a matrimonial home. From the answer to the first issue the answer is in the negative. As long as there was no proof of marriage, the house then was not a matrimonial home. On the other hand, even if the appellant would have proved marriage the house sold was in the name of the first respondent. This fact was admitted by the appellant when was cross examined by a lay member of the Tribunal one Mrs Amury which appears at page 8 of the proceedings of the Tribunal. She said:- "The plot beards (sic) the name, of 1st Respondent". Apart from this evidence there was evidence of Dw2 and Dw3 who made uncontroverted testimony that the appellant did not live at the suit premise. The third issue relating to ground one is whether the first respondent did not inform the appellant about his intention to sell the house in dispute. As I have already found that there was no proof of marriage and that the house was in the name of the first respondent, there was no need for the first respondent to inform the 5 appellant about his intention to sale the house in dispute. The first respondent was the owner of the house in dispute which he sold to the second respondent when he was free and of sound mind. His contention that he constructed the house jointly with the appellant and that he was induced by the second respondent and that his wife was sick, is a claim in which he intends to benefit from the second respondent and then defraud him. In ground two the appellant claimed that she was denied an opportunity to call witnesses to support her case during the trial at the Tribunal. It was her assertion that the chairman of the Tribunal told her that there was no need of calling such witnesses. Mr. Mwakolo addressing this issue argued that the record of the Tribunal is against this assertion. He drew the attention of this court to paragraph 11 of page 8 of the proceedings of the Tribunal where the appellant claimed she had no witness to call. This ground will not retain me. The Tribunal's record, as rightly pointed out by Mr. Mwakolo shows that the appellant told the tribunal that she had no witness to call and I have no doubt about this recording and in the end result I. dismiss this ground of appeal. In ground four the appellant complained of change of assessors. The learned counsel for the second respondent submitted that the appellant misconstrued the law relating to provisions governing business of assessors. He argued that change of assessors before commencement of trial is not an issue. It was his view that during preliminary stages of trial assessors may change. He submitted that there was no change of assessors after the substantive trial commenced. He finally invited this court to dismiss the appeal. I have taken due consideration of the submissions by both parties and agree with Mr. Mwakolo that the appellant misconstrued the law on coram of assessors during trial. It is a cardinal principle that as a matter of practice it is irregular to change assessors during trial. This is according to the principle laid in the case of Alexandar Killian Vs Linus Kinunda [1988] TLR 71 (HC). However, the court further held that the irregular proceedings may be upheld if no failure of justice has been occasioned thereby. This means that the court has to consider the circumstances of each case. The intention of having same assessors throughout a trial is to ensure consistency of trials. It is necessary for same persons who presides over a trial who have the opportunity to hear the evidence adduced by witnesses and observe their demeanour and scrutinize documentary evidence to do it through out. In the case before the Tribunal, though assessors appeared interchangeably before the substantive trial commenced, that was not the case when the issues were framed and witnesses testified in court. Throughout lay members were Mr. Ponela and Mrs Amury and the two of them gave their opinion in writing. In this regard I dismiss this ground of appeal. Having resolved ground one, two and five the rest are repetitive and mostly pegged on evidence and therefore I will not entertain them. 7 .4 In the end result the judgment of the Tribunal is hereby I upheld and the appeal is hereby dismissed on its entirety. The sale was lawful and no information of the sale was supposed to be communicated to the appellant. No order as to costs is made. M.P.M. Mwaimu, JUDGE.