Land Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 20916 OF 2024 (Appeal from the decision of the District Land and Housing Tribunal for liaia in Land Application No. 172 of2021) ANOLD KAVISHE.................................................... APPELLANT

VERSUS JUMA MANENO JIBASU................................................ DEFENDANT

JUDGMENT Date of last Order: 29/11/2024 Date ofJudgment: 10/12/2024 LA LTAl KA, J, The Appellant herein ANOLD KAVISHE is dissatisfied with the decision of the District Land and Housing Tribunal for Ilala (the DLHT) in Land Application No. 172 of 2021. He has appealed to this Court by way of a Petition of Appeal containing the following grounds.

1. That the trial Chairman erred in law and in fact in ignoring the contents of exhibit PI and the evidence of the SM2 who was the Page 1 of 10 maker the exhibit PI and proceed to decide in favour of the respondent.

2. That the trial chairman erred in law and in fact in accepting the evidence of the respondent and decide in his favour taking into consideration contents of that evidence in general.

3. That the trial chairman erred in law and in fact in ignoring/rejecting the exhibit PI on the ground that no step was taken to prosecute the respondent for the alleged forgery.

4. The trial chairman erred in law and in fact in dismissing the applicant application on the ground that the applicant failed to prove his case while in fact the evidence given was not properly analyzed as the applicant proved his case on the balance of probability required by the law. When the appeal was called for mention on 23/10/2024, parties opted to proceed to hearing by way of written submissions. A schedule to that effect was ordered. In that schedule the Appellants submission in chief was to be filed on 6/11/2024, the Respondents reply 20/11/2024, Appellants Rejoinder if any 27/11/2024. Whereas Mr. Mangiten Marwa, learned Advocate drafted the documents for the Appellant, Counsel for Respondent did not disclose his name but only indicated the law firm he was working with. I am disappointed with Counsel who fail to pay attention to details including the fact that their appearance in this court is on individual capacity and tied to specific qualifications. Page 2 of 10 Mr. Marwa argued in support of the appeal by stating that grounds one, two, and three could be combined and urged jointly. He submitted that during the hearing of the matter in the tribunal, the Appellant had tendered the sale agreement, which was admitted as Exhibit Pl, and testified about its contents. He explained that the Appellant had also called the advocate who prepared and signed the

sale agreement, PW2, one Yudathade Paul, Advocate. PW2 had testified that he prepared Exhibit Pl and denied having prepared Exhibit DI, asserting that its contents differed from those of Pl. Mr. Marwa contended that the person best positioned to resolve the issue of which agreement—Pl or DI—was proper was the advocate who had prepared the agreement. He emphasized that PW2 had testified that he prepared Pl, which was tendered by the Appellant, but the Chairman had ignored this crucial evidence. Mr. Marwa argued that the Chairman's disregard of PW2's testimony was erroneous and amounted to a misdirection, leading to the decision reached by the tribunal. He referred to page 7 of the tribunal's judgment, where the Chairman stated: "Nimepitia vielelezo vyote viwi/i Pl na DI, na nyaraka zote mbih zinatofautiana kwenye aya ya pi/i Juu ya utaratibu wa ma/ipo ya Page 3 of 10 awamu ya kwanza. Wakati kielelezo Pl kinaonyesha tu kwamba maiipo ya kwanza yata/ipwa mara baada ya mkataba kutiwa saini, kielelezo DI kinaonyesha kwamba maiipo yatafanyika kwa kuiipwa kwenye akaunti ya muuzaji ya benki Hiyopo benki ya CRDB, akaunti Na. 0152450820200. Kati ya mikataba hii miwiii, Kielelezo Pl hakionyeshi maiipo yatafanyika vipi, na waia hakisemi kwamba mdaiwa akabidhi had ya umi/iki wa nyumba kwa mnunuzi, ndipo amah'zie kufanya maiipo ya shiiingi miiioni tisini, huku kielelezo DI kikiwa wazi juu ya

utaratibu wa maiipo. Kati ya vieieiezo hivi viwiii, naamini zaidi kielelezo DI, na sikuba/iani na hoja ya SM2 kwamba aya ya pili imebadiiishwa kwani kubadiiisha mkataba ambao pande zote zimesaini ni sawa sawa na kugushi nyaraka. " Mr. Marwa argued that the Chairman had improperly assumed the role of a witness in the case instead of remaining an impartial adjudicator. He maintained that PW2, as the person who prepared the agreement, was the only one qualified to determine the authentic agreement signed by the parties. Consequently, he asserted, the Chairman's decision to reject Exhibit Pl in favour of DI was flawed. Regarding the fourth ground of appeal, Mr. Marwa submitted that the Appellant, during the tribunal hearing, had testified as PW1, tendered Exhibit Pl, and explained its contents. The Appellant also called PW2, the maker of the sale agreement in dispute, who testified that he acted for both parties during the preparation and signing of the agreement. PW2 confirmed his recollection of the contents of Pl and disagreed with certain contents of DI, asserting that Pl was the genuine agreement signed by the parties. He also elaborated on the payment terms and the method of payment for the first instalment as set out in Pl. Page 4 of 10 Mr. Marwa criticized the Chairman for rejecting the contents of Pl and accepting those of DI, as though he had been present during

the preparation of the document. He argued that the Chairman failed to properly analyze the evidence on record, leading to an incorrect decision. He concluded that if the Chairman had properly evaluated the evidence, he would not have reached the decision he made. Counsel for the Respondent outlined the brief facts of the case, indicating that on April 1, 2021, the Appellant and the Respondent entered into a sale agreement for the Respondent's house. The purchase price, Counsel averred, was agreed at Tsh. 150,000,000/=, payable in two instalments: Tsh. 60,000,000/= upon signing the contract and Tsh. 90,000,000/= on April 10, 2021. He asserted further that the parties agreed that payments would be made to the Respondent's CRDB Bank account at Azikiwe Branch. According to Counsel, a dispute arose when the Appellant failed to honour the agreement by not depositing any funds into the designated account. The Appellant subsequently filed an application before the Tribunal, claiming the Respondent breached the agreement and seeking the return of the Tsh. 60,000,000/= allegedly paid as the first installment. Counsel emphasized that there was no evidence of such payment, and Page 5 of 10 the Tribunal ruled in favour of the Respondent, leading to the present appeal. After the above introductory remarks, Counsel addressed the grounds of appeal jointly, as the Appellant had argued the

first three grounds together, and proceeded to submit as follows: Counsel argued that the trial Tribunal properly analysed the two sale agreements before rejecting exhibit PI (the sale agreement presented by the Appellant) in favour of exhibit DI (the agreement presented by the Respondent). He noted that exhibit PI was prepared by PW2, Yudathade Paul, an advocate, who denied preparing exhibit DI due to its differing content. However, Counsel contended that the Tribunal's focus was on determining the validity of the agreements and identifying the party in breach. Citing page 7 of the Tribunal's judgment, Counsel highlighted the Tribunal's reasoning: exhibit PI did not specify how payments were to be made, while exhibit DI clearly indicated that payments were to be deposited into the Respondent's bank account. Consequently, he asserted, the Tribunal found exhibit DI to be the valid agreement and rejected exhibit PI. Counsel further stated that allegations of forgery raised by the Appellant regarding exhibit DI were unsubstantiated, as no criminal action Page 6 of 10 had been initiated concerning the alleged forgery. He referred to the Tribunal's observation on page 8 of its judgment, where the Chairman noted that forgery, being a criminal offense, required action that had not been taken. To support his position, Counsel cited Peter Joseph Swai v. Hilder Emmanuel Makelemo (As

Administratrix of the Estate of the late Emmanuel Lazaro Makelemo), Land Case No. 104 of 2011, where the Court observed that claims of forgery required documentary evidence and could not be sustained solely on oral testimony. Addressing the fourth ground of appeal, Counsel argued that the Appellant failed to prove his case on the balance of probabilities, as required by Section 110 and Section 111 of The Law of Evidence Act, Cap. 6 [R.E. 2022]. He contended that the Appellant had not demonstrated any evidence of payment of Tsh. 60,000,000/= as the first instalment. Counsel further cited Leonard Dominic Rebuye t/a Rebuye Agrochemical Supplies v. Yara Tanzania Limited, Civil Appeal No. 219 of 2018 and Anthony M. Masanga v. Penina (Mama Mgesi) and Another, Civil Appeal No. 118 of 2014, to reinforce the principle that the burden of proof lies on the party asserting a fact. Counsel concluded that the Tribunal properly analysed the evidence before rejecting exhibit PI in favour of exhibit DI and that the Appellant Page 7 of 10 had failed to substantiate his claims. He prayed for the dismissal of the appeal with costs, emphasizing that the Tribunal's decision should be upheld. I have dispassionately considered the rival submissions in the light of the grounds of appeal. The crux of the dispute revolves around a sale agreement entered into by the parties on April 1, 2021, involving the

sale of the Respondent's house for Tsh. 150,000,000/=. The agreement stipulated that the Appellant would pay Tsh. 60,000,000/= as an initial instalment upon signing the agreement and Tsh. 90,000,000/= on April 10, 2021. Payments were to be made to the Respondent's CRDB Bank account. At the Tribunal, the Appellant claimed that he had paid Tsh. 60,000,000/= as the first instalment and accused the Respondent of breaching the agreement. However, the Tribunal found no evidence to support the Appellant's claim and ruled in favour of the Respondent, holding that the agreement (exhibit DI) presented by the Respondent was the valid contract. The following issues arise for my determination: 1. Whether the Tribunal erred in rejecting exhibit Pi and accepting exhibit DI as the valid agreement.

2. Whether the allegations of forgery regarding exhibit DI were substantiated. Page 8 of 10 3. Whether the Appellant discharged the burden of proof to establish his claims.

4. Whether the Tribunal properly analysed and evaluated the evidence on record. On the first issue, the trial Tribunal rejected exhibit PI (the sale agreement presented by the Appellant) in favour of exhibit DI (the agreement presented by the Respondent). Exhibit DI stipulated the payment terms, requiring deposits into the Respondent's CRDB Bank account, whereas exhibit PI lacked such clarity. This Court concurs with the Tribunal’s reasoning, as recorded on page 7 of its judgment, that the clarity of payment terms in exhibit DI rendered it more credible. Furthermore, no evidence was adduced to invalidate exhibit DI. I am inclined to add albeit in passing that, like the learned Chairman, I find it very difficult to accept the claim that the Appellant paid TZS 60,000,000/= in cash and in such suspicious circumstances. Formal transactions such as purchase of landed property require prudence in handling finances. Such prudence, in my opinion, extends to obtaining and keeping bank payment slip(s) for evidentiary purposes. On the second issue, regarding the allegations of forgery raised by the Appellant, I find that the claims were unsubstantiated. Counsel for the Respondent correctly submitted that no criminal action had been initiated to substantiate the allegations. This position aligns with the Page 9 of 10 principles established in Peter Joseph Swai (Supra) and Twaribu Amri

(Supra), which require documentary evidence to prove forgery claims. On the third issue, the burden of proof is governed by Section 110 and Section 111 of The Law of Evidence Act (Act) which places the obligation on the party asserting a fact. The Appellant's failure to provide evidence of payment of Tsh. 60,000,000/= as the first instalment rendered his claims unproven. Finally, on the fourth issue, the Court finds no fault with the Tribunal's analysis of the evidence. The Tribunal's conclusions were well- founded and consistent with the evidence presented. In the up shot, I find the appeal devoid of merit. The decision of the District Land and Housing Tribunal in Land Application No. 172 of 2021 is hereby upheld. Costs follow the event. It is so ordered. E.I. LALTAIKA

JUDGE 10/12/2024 Court: Ruling delivered in Court Chambers this 10th day of December 2024 in the presence of the Appellant in person and Mr. Abdul Said Naumanga, learned Advocate, holding brief for Mr. John Mlingopola, learned Advocate, Counsel for the Respondent. Page 10 of 10