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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB- REGISTRY AT BUKOBA LAND APPEAL NO. 22 OF 2023 (Originating from Application Case No. 26/2019from Land and Housing Tribunal of Muieba at Muieba) ARISTIDES HENERICO................... ..................... ................ .........1st APPELLANT RESPIKIUS HENERICO ......................... .................. 2nd APPELLANT RICHARD HENERICO................................. ........... ..3rd APPELLANT VERSUS ANGELINA HENERICO.................. .................. 1st RESPONDENT ELIZEUS ARISTIDES.................................. ......2nd RESPONDENT PROJESTUS HENERICO......... ...................... ...3rd RESPONDENT PAUL DEOGRATIUS (Administrator of the estate of the late Henerico Paskali).................. ........... ..4th RESPONDENT JUDGMENT 20/03/2024 & 05/04/2024 E.L, NGIGWANA, J This appeal arises from the decision of the District Land and Housing Tribunal (DLHT) for Muieba at Muieba in Land Application No. 26 of 2019 where the appellants were the applicants and the present respondents hold the same position which they have now. The brief facts of the case are imperative to the appeal at hand and are that; on 02/05/2019, the appellants filed a suit in the trial tribunal against the i respondents seeking for the ownership of the land that situates at Omukilindo, Kabutolo - Buhangaza Village, Buhangaza Ward within Muleba District in kagera Region, which was sold on 18/0.9/2010 by the 1st respondent Angelina Henerico to the 2nd respondent El izeus Aristides. The appellants claimed that the said land was sold without their consent, consent of the late Henerico Paskali who Is the husband of the 1st respondent or consent of the Buhangaza Village council despite the fact that the said suit land was allocated to their father Henerico Paskali (now deceased) by the Buhangaza Village council on their behalf on condition that the same should not be sold without their consent. The Appellants further claimed that, on 16/09/2021, after the death of the late Henerico Paskali, the third respondent Projestus Henerico, encroached into the remaining portion of the suit land and sold the same to the 2nd respondent Elizeus Aristides. The appellants prayed the trial tribunal to declare that the sale of the suit land was unlawful and fraudulently conducted, and declare them as rightful owners of the suit land. On their side, the respondents vehemently denied the claim that the suit land belongs to the appellants after being allocated to the late Henerico Paskali on their behalf. According to the appellants, the 1st respondent and 2 her husband (the late Henerico Paskali) jointly and together disposed of part of the suit land in order to raise funds for erection of the matrimonial home. After a full trial, the trial tribunal dismissed with costs the application by the appellants for being devoid of merit, and went further and declared that the sale of the suit land was rightly executed by the 1st respondent to the 2nd respondent. Lastly the 2nd respondent was declared as the lawful owner of the suit land after he had lawfully purchased it for the 1st respondent. Aggrieved by the decision of the DLHT, the appellants have knocked the doors of this court armed with six (6) grounds of appeal as follows; 1. That, the trial tribunal erred in law and facts for reaching its decision without considering the evidence adduced by the appellants. 2. That, the trial tribunal erred in law and fact for reaching its decision without considering the evidence of the key witness who distributed the land to the late father ofthe Appellants and issued a receipt. 3. That, the trial tribunal erred in law for not nullifying the sale agreement between the first respondent and the 2nd respondent which is null and avoid in the eye of the law. 3 4. That the trial tribunal erred in law for reaching its decision without considering that there is no dispute in respect with the allocation of the suit land. 5. That, the trial tribunal erred in law and facts for deciding the matter in favour of the respondents without considering that the appellants proved their case on the balance ofprobabilities. 6. That the trial tribunal erred in law and facts for reaching its decision without considering that the 1st respondent had no capacity to sell the land to the 2nd respondent. Wherefore, the appellants pray to this court to allow this appeal by quashing and setting aside the judgment and decree of the trial tribunal, sale agreement between the 1st respondent and the 2nd respondent be declared null and void, and declare the appellants as lawful owners of the suit land. At the hearing of this appeal, the appellants had the legal services of Mr. Derick Zephurine while the 1st, 2nd and 4th respondents appeared in person, unrepresented. The 3rd respondent was served through publication after the ordinary means proved futile, but yet, he entered no appearance therefore; this appeal proceeded ex-parte against him. 4 Mr. Derick Zeph urine successfully prayed to argued the 1st, 2nd, 4th and 5th grounds of appeal together due to the fact that they all touch the question of evidence, and then, argue the 3rd and 6th grounds together. On the 1st, 2nd, 4th and 5th grounds, Mr. Derick Zephurine submitted that the appellants tendered a receipt showing that the suit land was allocated to their late father on 07/02/1986 on their behalf by the Buhangaza village council. He went on submitting that the receipt was admitted and marked exhibit Pl and PW2, Sylidion Rweyendera Mpambo who was the Secretary of Chama cha Mapinduzi (C.C.M) confirmed that he was the one who issued the receipt (exhibit Pl) to the late Henerico Paskali. He went on submitting that as per Exhibit Pl, the boundaries of the suit land were very clear; in the North, it borders one Leonard Josiah, in the South, it borders Kasharankoro, in the East, it borders Buhangaza village Government and in the West, it borders a Public road. Mr. Derick faults the trial tribunal for ruling out that exhibit Pl was defective while it was self-explanatory and during its admission, no objection was raised by the respondents, To bolster his stance, he cited the case of Eunice Mashaija Novath and another versus Ansibert Nkete, Land Case 5 Appeal No. 101 of 2020 HC Bukoba where the court found that the receipt was sufficient to show the boundaries, location and size of the suit land. Mr. Derick further stated that the trial tribunal misdirected itself to hold that the letter by the appellants' father requesting the land on their behalf from Buhangaza village council was necessary and ought to have been tendered in evidence. Mr. Derick also faults the trial tribunal for holding that the current leaders of Buhangaza village were material witnesses who ought to have been featured by the appellants. According to him, there was no such need because PW2 was present during the time of the said allocation. On the 3rd and 6th grounds of appeal Mr. Derick submitted that, looking at page 57 of the trial tribunal proceedings, there is no dispute that initially, the suit land was owned by Buhangaza village council but exhibit DI which was tendered by the 2nd respondent (DW2) was not approved by the village authority taking into account that the purchaser (DW2) was not a resident of Buhangaza village. The learned counsel cited the case of Methusela nyagawa versus Chistopher Mbowe Nyirabu [1985] TLR where it was held that rights held to land in a registered village would only be transferred with the approval of the village, and where there is no village council 6 approval, the sale becomes null and void. He also cited the case of Bakari Mhando Swanga versus Mzee Mohamed Bakari Shelukindo and 3 others, Civil Appeal No. 389 of 2019 (CAT) at Tanga (unreported) where it was held that a village council is the organ which is vested all executive powers in respect of all the affairs and business of the village. Mr. Derick further submitted that approval of the village council in disposing land located it the village is mandatory. He added that in the matter at hand, the said mandatory procedure was violated, therefore; the sale transaction between the 1st respondent and the 2nd respondent was illegal. Mr. Derick further stated that, DW1 in her evidence claimed that she sold a matrimonial property but according DW1 and DW2, at the time of the transaction, the husband of the I51 respondent (DW1) was alive. He wondered as to why the said husband (Henerico Paskali) did not witness the sale agreement. He made reference to section 59 (1) of the Law of Marriage Act, [Cap.29 R.E 2019] which demands consent of the spouse but also section 161 of the Land. [Cap. 113 R.E 2019] which also demands consent of the spouse before disposing any matrimonial property. He added that the village Executive Officer who is said to have witnessed the transaction between 1st respondent and the 2nd respondent was not 7 called as a witness by the respondents. He went on stating that the 2nd respondent as a purchaser ought to have made due diligence, but he failed to play his role therefore, he has to blame himself. He ended up his submission in chief praying to this court to allow this appeal by quashing and setting aside the judgment and decree of the trial tribunal, declaring the appellants as lawful owners of the suit land, and the respondents be condemned to pay costs. In reply, the 1st respondent submitted that the suit land was allocated to her husband the late Henerico Paskali by Buhangaza village council, whereby the same became a matrimonial property. She added that as husband and wife, they agreed to sell the suit land to the 2nd respondent to raise fund for treatment of her husband and construction of a good matrimonial home. She went on stating that her husband consented to the transaction orally and she is the one who received the money from the 2nd respondent. She added that after construction of the house using the money they got from the said transaction, she stayed in the said house with her late husband for good two (2) years before his demise. She went on stating that the appellants remained silent when her husband was alive, but later on, after his death, they emerged. The 1st respondent added that the receipt which was tendered in evidence in the trial tribunal 8 was hot genuine that is why her name is not there while the suit land was allocated to her husband and formed part of matrimonial properties, and were blessed with ten (.10), children. She wondered how can the land be sought on behalf of three (3) children only?. She ended up her submission urging the court to dismiss the appeal for being devoid of merit. On his side, the 2nd respondent admitted that he legally purchased the suit land from the 1st respondent and the one who sought him is the 1st appellant and he told him that his parents (Husband and wife) wanted to sell the suit land to get money so that they can construct a nice house. He wondered why the appellants emerged and filed a case against him. The 4th respondent who is the young brother of the late Henerico Paskali and the administrator of his estate; stated that, he did not include the suit land in the estate of the deceased because the 2nd respondent purchased it lawfully before the demise of the deceased Henerico Paskali. In his rejoinder, Mr. Derick submitted that exhibit Pl was not objected during its admission on the ground that it was not genuine therefore, such objection cannot be raised at this stage. 9 Having considered the grounds of appeal, the rival submissions made by the parties and also have gone through the entire record of the trial tribunal, the major issue for determination is whether the appeal is meritorious. The appellants herein filed the matter at hand in the trial tribunal praying to the court to declare them as lawful owners of the disputed land, and declare that the sale transaction between the 1st respondent and the 2nd respondent was unlawful. On that ground, the onus of proving ownership of the suit land as well as the unlawfulness of the sale transaction of the suit land between the 1st respondent and the 2nd respondent, was upon the applicants/appeilants. This position was stated in Godfrey Sayi versus Anna Siame as Legal Representative of the Late Mary Mndolwa, Civil Appeal No. 114 of 2014 (CAT) (unreported) as follows; "It is cherished principle of law that, generally, in civil cases, the burden of proof lies on the party who alleges anything in his favour. We are fortified in our view by the provision of sections 110 and 111 of the Law of Evidence Act [Cap. 6 R.E. 2002] which among other things states: io 110 Whoever desires any court to give judgment as to any iegai right or liability depends on existence offacts which he asserts must prove that those facts exist. Ill, the burden of proof in a suit lies on that person who would fail if no evidence of all were given on either side" In the case of Paskali Nina versus Andrea Karera (Civil Appeal No. 325 of 2020) [2023] TZCA 35 (21 February 2023), the Court of Appeal reiterated the standard of proof in civil proceedings. It stated that: "In resolving the question at hand, we think it is necessary, at the very outset, to reiterate the basic rule that he who alleges has the burden ofproof as per section 110 of the Evidence Act, It Is also essential to keep in mind that the standard of proof in a civil case is on a preponderance of probabilities. Therefore, the court will sustain such evidence that is more credible than the other on a particular fact to be proved - see Paulina Samson Ndawavya versus Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 (unreported). In that case, the Court also underscored that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his burden and that the burden ofproofis not diluted on account of the weakness of the opposite party's casd' ii It is common knowledge that framing of issues is very important as it defines and narrows down the scope of the contention and thereby making the trial more focused and short-lived. See Barclays Bank Tanzania Limited versus Sharaf Shipping Agency(T) Limited and Habibu African Bank Limited vesus Sharaf Shipping Agency (T) Limited and Barclays Bank Tanzania Limited, Consolidated Civil Appeal No. 117/16 of 2018 and 199 of 2019, CAT (Unreported). Explaining the importance of framing issues properly, my learned brother, Ismail J in the case of Letshego Bank (T) LTD versus Sarah Maginga and Another, Civil Appeal No.23 of 2020 HC -Mwanza (Unreported) had this to say; "The noteworthy point is that, trial proceedings in civil matters are guided by the framed issues before commencement of the hearing* Issues help in guiding the parties and the court in identifying areas of contention and resolve them. They also guard the proceedings against going astray and avoid arriving at a conclusion which was not desired" In the matter at hand, the first issue which was framed by the trial tribunal Was whether the applicants were the lawful owners of the Suit land. The trial tribunal, upon analyzing and evaluating the evidence adduced before it, was satisfied that the applicants now appellants have failed to discharge their duty of proving their ownership of the suit land. 12 The record of the trial tribunal revealed that the first appellant who testified as PW1 told the trial tribunal that their father made an application to Buhangaza Vil lage Government requesting the village government to allocate land to his sons (Appellants) who were minors, and following the said request, six (6) acres of land were allocated to him on their behalf on 07/02/1986. The tribunal record revealed that PW1 tendered the receipt which was admitted as Pl. I have gone through the evidence of PW3 and PW4 on whether the suit land was allocated to the late Henerico Paskali on behalf of the applicants/ appellants and found that their evidence is hearsay evidence; hence it has no evidential value. PW2 testified in the trial tribunal that from 1977 - 1989, he was the Branch Secretary of Chama cha Mapinduzi (C.C.M) at Buhangaza Village. He told the trial tribunal that in 1986, the applicants' deceased father wrote a letter to Buhangaza Village requesting to be allocated land on behalf of his three sons (Applicants/Appeliants). Part of PW2's evidence reads; "Aiikua anaomba ardhi kwa ajiiya wataoto wake watatu ambao in Aristides Henerico,, Respicius Henerico na Richard Henerico.Aiipokuja kuomba Ardhi, aliieta barua ya maombi, nikaipokea, tukaitisha Haimashauri ya Kijij'i 13 ■kuijadHL Baada ya kumjadili, kikao kiiikubaliana na maombi. Wakati huo tulikua tunagawa ardhi kupitia kikao cha Halmashauir ya Kijiji, hivyo tulimgawia mwombaji ardhi ya ukubwa wa ekarisita" Under the circumstances of this case whereby the appellants are among ten (10) issues of the 1st respondent and the late Henerico Paskali, I agree with the finding of the trial tribunal that it was necessary for the applicants/appellants to tender in evidence the application letter by their father applying for the land on their behalf. It was also very Important to tender the minutes of the Village Council which discussed the application and finally, allocated land. It should be noted that there is nothing on record showing that the offices of Buhangaza Village office were at any point in time, destroyed or that its documents were ever damaged, destroyed, or stolen. Exhibit Pl to wit; receipt No.014 dated 07/02/1986 stamped with the stamp of the Buhangaza Village Council on the front page, reads; "Nimepokea kutoka kwa HENERICO PASCHAL Kiasi cha ELFU MOJA NA MIA MBILI TU Kwa ajili KUPEWA ARDHI UMULIKINDO HEKARI 6 TSH.1200/= SAHIHI YA MPOKEAJI" 14 Reading the front page of Exhibit Pl, it is very easy to discover that; one; there is nothing indicating that Henerico Paskali was allocated the land on behalf of the applicants/appellants. Two, it was not written at the bottom the words "Please turn over (PTO)" to indicate that there is more writing on the other side. Surprisingly, on other side of exhibit Pl, it was written in small letters that Henerico Paschal requested to be allocated land on behalf of the applicants/appellants. The same indicated the boundaries and the condition that the same should be disposed of without seeking the consent of the applicants/appellants. The back side was not stamped with the Village Stamp like the front page; it was just signed by "KATIBU TAWI". In his evidence, PW2 told the trial tribunal that he was the one who wrote the front page and the back side but he could not explain why the back side was not stamped and why on the front page he used capital letters but on the back, he used small letters. Three, there is no doubt that the 1st respondent and the late Henerico Paskali were blessed with ten (10) issues, how possible for the father to request allocation of land on behalf of his three (3) children only?. There is no evidence on record as to why seven (7) children were excluded. 15 It should be noted that the trial tribunal, upon subjecting the same under scrutiny, reached to the conclusion that Exhibit Pl was not genuine and that the words appearing on the back were added to favor the applicants now appellants. Having gone through exhibit Pl and its short comings as explained herein above and having gone through the evidence of PW2 on record, I agree with the trial tribunal that the words on the back of Exhibit Pl were added in order to favor the applicants/appellants. Indeed, in absence of the application letter by Henerica Paskali and the minutes of Buhangaza Village Council, Exhibit Pl cannot be relied upon to prove that the land was allocated to Henerico Paskali on behalf of the appellants. The letter would have disclosed the intention of the writer, and the minutes would have disclosed what was discussed, and the conclusion reached. According to Mr. Zephurine, Exhibit Pl was not objected in the trial tribunal but the record shows that during admission of the same, the respondents responded "We have no comment". It is unfortunate that the record does not show what right the respondents were given before they made such reply. The term "We have no comment" cannot be interpreted to mean; "We 16 have seen and examined the receipt, therefore, we have no objection to its admission". On that ground, it cannot be said with certainty that Exhibit Pl was not objected by the respondents. It also worth noting that it is a trite law that, admission of exhibit is one thing f* but its reliability completely center on another realm all together. This uncompromised requirement is gathered in Ndalawa Shilanga and Another versus Republic, Criminal Appeal No 247/2008, CAT, (unreported). To that extent, the complaint raised through the 1st, 2nd 4th and 5th grounds of appeal that evidence adduced in the trial tribunal by the appellants proved that the suit land is owned by the appellants, but the trial tribunal reached to a wrong conclusion for its failure to consider it, has no merit at all therefore; I proceed to dismiss the 1st, 2nd, 4th and 5th grounds of appeal for being devoid of merit. I now turn to the 3rd and 6th grounds of appeal. The same were aimed to challenge the sale transaction on two angles, one, that the sale transaction was invalid for want of consent of Henerico Paskali who was the husband of the 1st respondent. Two; that the sale was unlawful for want approval of the village Council. 17 There is no doubt that the appellants are children of the late Henerico and the 1st respondent. I agree with Derick Zephurine that disposition a matrimonial property without spousal is generally void as per Section 59 (1) of the Law of a Marriage Act. However, disposition of matrimonial property does not, as per the law, require the consent of children. I also shake hands with Mr. Zephurine that Section 161 of the Land Act, Cap. 114 R.E 2019 requires consent of the spouse in disposition of matrimonial property, However, as far as the matter at hand is concerned where the land in dispute falls within the Village Land Act, the Land Act cited by Mr. Derick Zephurine was misplaced. The 1* respondent who testified in the trial tribunal as DW1 told the trial tribunal that the late Henerico Paskali consented orally to the sale transaction that is why, after building the house using the money they obtained from the said sale, they lived peacefully with her husband for good two years before his demise. The well- established principle expressed in the maxims: nemo dat quod non habet which is allied to; nemo plus juris ad allum transferre potest quam ipse habet, that is, no one can give what he or she does not have and no one can transfer any right greater than he himself possesses. It means that where a person who is not the owner and possesses no mandate to do 18 so purports to sell or transfer property, such sale or transfer is a nullity. See H Silberberg and J Schoeman, Silberberg and Schoeman's The Law of Property, 2nd edition, Butterworths, Durban, 1983 at p72. In the matter at hand, I agree with the trial tribunal that sale transaction was done during the life time of the Henerico Paskali, and he consented to the transaction, therefore the 1st respondent had mandate to dispose the Suit land. It is judgment; the trial tribunal ruled out that since the sale transaction was lawful, the 2nd respondent is the owner of the Suit land after he had purchased it from the 1st respondent. The sale agreement was admitted and marked Exhibit DI. However, it is unfortunate that the trial tribunal did not move a step further to decide whether the sale transaction was approved by the Village Council, and if not, whether the transaction was still lawful or otherwise. The record of the trial tribunal shows the 2nd respondent (DW2) was cross- examined as to whether the sale agreement was approved by the Village Council, and he responded that the village Executive Officer namely Elgidius Kamsinza was present. DW2 also admitted that, there is nothing in Exhibit 19 DI indicating that Elgidius was the Village Executive officer and that he approved the sale agreement in that capacity. DW4 Paul Deogratius who is the 4th respondent but also an administrator of the estate of the Late Henerlco Paskali testified that since the land was already allocated to the deceased, there was no need anymore to involve the village in the sale transaction. He used these words: "Henerico alipata ardhi kutoka Serikaii ya kijiji. Hakukua na sababu ya kuhusisha uongozi wa Kijiji kwenye mauziano kwa sababu kiiishagawa ardhi. Wanaotakiwa kuhusika in majirarii" In the case at hand, there is no dispute that the land in dispute was un­ surveyed and that it is located at Buhangaza Village. The position of the law has long been settled to the effect that the sale of a village land becomes lawful upon obtaining sanction of the Village Council. This legal position was settled in the long celebrated case of Metthuselah Paul Nyagwaswa versus Christopher Mbote Nyirabu (Supra). Even the land which has already been allocated to the villagers, its disposition requires the village council approval/blessings. The rationale behind such requirement is to avoid fraudsters who would sale lands not belonging to them because the village authority is in a better position of 20 knowing its people and the lands legally allocated to them. See Mayuma Investment Co. Ltd versus Attorney General and Another, LAND Case No.9 of 2028 HC at Mbeya (unreported). The Court of Appeal of Tanzania when confronted with a similar situation in the case of Bakari Mhando Swanga vs Mzee Mohamed Shelukindo & Others, Civil Appeal of 2019, GAT (unreported). "Even if we assume that the purported sale agreement was valid, which is hot the case, then the same was supposed to be approved by the village council.... Under normal circumstances, it was expected for the appellant after he had executed the purported sale deed with Khatibu Shembilu, to present the document to the village council ofKasiga to get its blessings" Considering the rationale behind approval of disposition of the village land or land located to the villagers and the fact that the 1st respondent disposed the land to the respondent in 2010, and since then, the 2nd respondent had developed the same by planting trees for timber, coffee trees, banana plants and some houses, but also considering the fact that the administrator of the estate of the late Henerico Paskali (4th respondent) did not include the disputed land into the properties of the deceased, and the fact that no 21 evidence on the record that Buhangaza Village Council had ever lodged a complaint since 2010 that 1st respondent had disposed the land which was not allocated to Henerico in 1986, and also considering the fact that each case has to be decided in its own facts and circumstances, it is my considered view that, the lack of the village council approval/ blessings in Exhibit DI cannot in itself render the sale transaction between the 1st and 2nd respondent unlawful. Indeed, I shake hands with the trial tribunal that the 2nd respondent purchased the land indispute legally, hence he is the lawful owner of the same. In the event and for the fore going reasons, this appeal is hereby dismissed for being devoid of merit. Given the fact that the appellants are biological children of the 1st respondent while the 4th respondent is their young father and the administrator of the estate of the late Henerico Paskali, I enter no order as to costs. It is so ordered. Dated at Bukoba this 5th day of April 2024. JUDGE 05/04/2024 22 Judgment delivered this 5th day of April 2024, in the presence of the 1st Appellant and their advocate Mr. Derick Zephurine, 1st, 2nd and 4th respondents in person and Ms. Queen Koba, B/C but in the absence of the 3rd respondent. E.L. NGIGWANA 05/04/2024 23