asha ramadhani songasonga vs ahmed juma rajabu 2018 tzhclandd 428 6 july 2018

IN THE HIGH COURT OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND APPEAL NO. 203 OF 2016 (Arising from Land Application No. 196 of 2013 ofTemeke District Land and Housing Tribunal) ASHA RAMADHANI SONGASONGA.................. APPELLANT VERSUS AHMAD JUMA RAJABU (Administrator of the Estate of Mwahija Mohamed Masilini)........ .......... ...... RESPONDENT JUDGMENT 7/5/2018 & 6/7/2018 MZUNA, J.: Ahmad Juma Rajabu instituted a case against Asha Ramadhani Songasonga at the District Land and Housing Tribunal for breach of contract of sale/purchase agreement. Apparently, on 23/12/2010 she entered into a sale/purchase agreement of a house belonging to the late Mwahija Mohamed Masilini at Tshs 10 Million. Out of that sum she paid Tshs 4.5 million leaving Tshs 5.5 pending. It was agreed in that agreement to which Ahmed Juma Rajabu also signed that the remaining balance was to be paid by 23/6/2011. i Unfortunately, Mwahija, the real owner of the said house passed away on 23/11/2011 at the time when the said money had not been paid. The respondent instituted a suit claiming for the house after breach of the contract of sale. The appellant argued that she paid the amount due and attempted to tender an affidavit which is alleged to have been signed by Mwahija during her life time but was found to have been forged. The trial tribunal adjudged that the appellant should pay the respondent the balance due. It is from that decision whereby the appellant has lodged this appeal on the following grounds:- 1. That the trial Chairman erred in iaw and fact in disregarding the evidence o f the appellants especially the oath taken before the Primary Court Magistrate dated 2&h August, 2011 and thereby came up with the wrong decision. 2. That the trial Chairman erred in iaw and fact in his failure to analyze the evidence tendered in court by the appellant. Pursuant to the order of this court the appeal was argued by way of written submissions. However, the respondent did not file his submission as opposed to the appellant. 2 It is argued that, it was wrong for the trial tribunal for disbelieving the appellant that she fully paid the balance on 26th August, 2011 and went further to hold that exhibit D1 was forged by the appellant. She contended that there was no evidence to prove that the deceased was literate and that could not sign in exhibit Dl. He added that there was no evidence of complaint from the deceased that the remaining balance was not paid as alleged by the respondent. The only reason stated is that the respondent was not present when exhibit Dl was signed and that it was signed by pen instead of thumb of a deceased. It is contended further that the allegation of forgery is criminal in nature which ought to be proved beyond reasonable doubt. The appellant argued that, there was misdirection and misapprehension of evidence by the trial Tribunal and therefore there is justification for this court to interfere with the finding of the facts of the trial Tribunal and hold that exhibit Dl was not a forged document. He thus prayed for the court to allow this appeal with costs. Reading from the grounds of appeal and the submissions, it is apparent that this appeal is based on analyzing or evaluation of the evidence which I consider the trial Tribunal which had the occasion to hear and assess the evidence from the witnesses was better placed than this court which reads the transcript of the record only. The appellant has even cited the case of Archard v. Asteria Mulwani And Thobias Tegamaisho [1992] TLR 129 (CA) to augment her point that this court has powers to make any other order it may deem fit. That cited Section 29 (c) of the MCA Cap 11 RE 2002 reads: "7/7 the exercise o f its appellate jurisdiction under this Part, the High Court shall have power (a) N/A (b) N/A (c) to make any other decision or order which might have been made by the court o f first instance." I have no problem with the said provision though it may not be relevant to the Land Court but the purpose it was intended is valid. Among the grounds which were the basis to disallow the alleged exhibit D1 tendered by the appellant was that it purported to have been signed by the deceased in signed signature and contrary to exhibit PI whereby the deceased signed with a thumb print and according to the respondent it cannot be said that she could read and write. Second, that there were no witnesses of the deceased who witnessed it unlike Exhibit PI. The issue was on fraud which courts have held that proof must be on a higher standard of proof than in normal civil cases. In the case of Omari Yusuf v. Rahma Ahmed Abdulkadir [1987] TLR 169. The court further said:- "... The logic and rationality o f that rule being that the stigma that attaches to an affirmative finding of fraudjustifies the imposition of a strict standard o f proof..." I am satisfied that the Tribunal took that standard and reached at that decision fairly. The appellant never paid for the said money. I uphold the order that the appellant should pay the outstanding Tshs 5.5 Million. This will attract an interest of 7 per cent from November 2016 the date she was ordered to pay that sum by the Tribunal to its satisfaction in full, failure of which the house should revert to the respondent as the Administrator of the deceased estate. 06/07/2018 Coram: Hon. A. Teye DR For the appellant: present in person For the Respondent: absent RMA: Monica COURT: Judgment read by the Deputy Registrar before the appellant person. R/A explained. A. Teye DEPUTY REGISTRAR 06/07/2018