athuman mohamed kwangaya administrator of the estate of the late seif mtambo vs mwanaidi omari mtambo 2022 tzhclandd 535 28 february 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 225 OF 2020 (Originating from the decision of the District Land and Housing Tribunal for Mkuranga in Land Application No. 50 of 2016) ATHUMANI MOHAMED KWANGAYA (Administrator of the Estate of the Late SEIF MTAMBO) APPELLANT VERSUS MWANAIDI OMARI MTAMBO RESPONDENT JUDGMENT Date oflast Order: 10/12/2021 Date ofJudgment: 28/02/2022 T. N. MWENEGOHA,J. Being aggrieved by the decision of the Mkuranga District Land and Housing Tribunal (herein after the trial Tribunal) delivered on the 7^^^ October 2020 the appellant appealed before this court against the judgment and decree through the following grounds; 1. That the hon.Trial chairperson erred in law and in fact by considering exhibit D1 as a valid sale agreement. 2. That the honorable trial chairperson erred in law and in fact by failing to evaluate evidence on record before the Tribunal and hence reached to a faulty decision. 3. The hon. Trial chairperson erred in law and in fact by declaring the respondent as the lawful owner of the suit land. Wherefore, it Is the appellant's prayer that the appeal be allowed and the decree of the trial Tribunal dated 7^^ October, 2020 be quashed and set aside, the appellant be declared the lawful owner of the suit land, the appellant be awarded the costs of this appeal and that of the trial Tribunal and any other relief this court may deem fit and just to grant. During the hearing of this appeal while the appellant was represented by advocate Masama Ellas, the respondent appeared In person and unrepresented. By the court's order given on the 10'''^ December, 2021, the hearing of this appeal proceeded by way of written submissions. The appellant adhered to the submission schedule, however the respondent did not do the same. It Is a trite law that failure to submit written submission as scheduled amounts to non-appearance. This position has been well stated In the matter of the Estate of the Late Peter Ksumo and In the Matter of Application for Revocation of Letter of Administration by Peter Kisumo (Misc. Land Application No. 441/2018)that:- "I can say the applicant failure to file his written submission as ordered by this Honorable Court is a serious noncompiiance. I'm mindful with the trite iaw that if the parties are to act in totai disregard to the Court orders, then Court business wiii be rendered uncertain and that wiiinotbe goodfor the efficientofAdministration ofjustice. Therefore, disobedience of an order, court naturally draws sanctions". Therefore, the Appeal proceeded exparte against the respondent. On the merit of appeal, submitting in support of the 1^ ground of appeal, Mr. Ellas submitted that, the sale agreement which was tendered before the trial Tribunal as exhibit D1 is void, this is due to the fact that it was neither signed by the parties nor their witnesses. To support his argument, he cited Section 10 of the Law of Contracts Act, Cap 345 R. E. 2019. He submitted further that, the purported sale agreement, did not indicate the size of the land purported to have been sold to the respondent, also that the said sale agreement was authorized by village officials from Mkupuka, while it is situated in Umwe Kaskazini Village. Submitting in support of the 2"*^ ground of appeal the appellant submitted that, in the trial Tribunal the appellant herein appeared in person and unrepresented, therefore, he was not aware of the procedures and substantive laws governing the principles of when to object to the tendered documents. However, that the appellant herein tried to object the validity of exhibit D1 as well as the respondent's testimonies but his objections were never recorded and the tendered exhibit D1 was admitted. He submitted further that the trial Tribunal before admitting exhibit D1 was supposed to satisfy itself on its validity. That even the witnesses (DW2 and DW3) who were called to testify in favor of the respondent denied to have witnessed the tendered exhibit. In regard to the 3'"'^ ground of appeal, he submitted that, after the demise of Salum Self Mtambo,the owner of the suit land, it was placed under the care of the respondent. She was only entitled the temporary right to use it (the usefructuary rights) but not to sell the same. Having gone through the appellant's submission the main issue for determination is whether the appeal before me has merit. In my analysis I will answer each ground of appeal as submitted Submitting on the first that Trial Chairperson erred in law and In fact by considering exhibit D1 as a valid sale agreement. Mr. Ellas contended that the Sale Agreement is void as it was not signed by the parties not witnessed. I find it prudent to reproduce what has been tendered as sale agreement hereln:- "HALMASHAURI YA SERIKALI YA KIJIJICHA MKUPUKA AFISA MTENDAJIWA KIJIJI KIJIJI CHA MKUPUKA RLPeSKIBUI 1/02/1982 YAH: UTHIBinSHO WA KUUZA SHAMBA LA MIKOROSHO Mim!sdlumu seifMrdmbo nimeuzd shdmbd Ldngu Id mikorosho kwd thamani ya Tshs Eifu nne (4,000/=) tu ameiipa zote simdai chochote. Nimemuuzia Bi. MMwanaidi Omar!Mtambo, Sahihi:- Muuzaji:-(thumb print) Mnunuzi:-(thumb print) (sgd) AFISA MTENDAJI WA KIJIJI CHA MKUPUKA RUFUr It is evident, when one examine the sale agreement one find the followings. first, what was admitted as a sale agreement has a different heading and is referred as "UTHIBITISHO WA KUUZA" to mean proof of sale not sale agreement. Second, the said exhibit did not show the location of the land or its size. Third, the said sale agreement was not witnessed by any one expect the Village Executive Officer. Only the seller and buyer have put their thumb prints. This make it difficult for anyone to testify whether the said thumb print is really of the seller in absence of the witness. If that was not enough it has been alleged in the trial Tribunal that the land in question is located at Umwe Kaskazini Village while the said alleged sale agreement has been witnessed by Village Executive Officer of Mkupukwa. In addition, DWl during cross-examination admitted that it was not proper to prepare document of sale agreement for the land which is located in another village. The importance of description of property has been stated in the number of cases including the case of Daniel Dagala Kanuda (Administrator of the Estate of the late Mbalu Kushaha Buluda) vs. Masaka Ibeho and 4 Others, High Court Land Appeal No. 26 of 2015, at Tabora (unreported) where the court held that; ^^...the importance of making the detaiied descriptions of the suit iand in resoiving iand disputes cannot be emphasized. The iaw has been consistentiy underscoring that significance. The provisions of order VII ruie 3ofCap 33for exampie provide for a better wording of the requirement. It guides that in ciaims for immovabie properties, the piaint shaii disciose "a description of the property sufficient to identify it and, in case such property can be identified by a tide number under the Land Registration Act, the piaint shaii specify such titie number, in my settied opinion Reg.3(2)(b)ofthe GN No.174 of2003 cited supra should also be construed to mean what was envisaged under these provisions ofCap 33." Applying the above authority, I subscribe to the submission of the counsel on this ground and I find it to have merit. On the second ground of the appeal the counsel Is challenging the valuation of evidence as to why the Tribunal admitted the said exhibit taking into account appellant herein was unrepresented thus it was its duty to analyse it before admitting the same. He also points out that even the witnesses(DW2 and DW3) who were called to testify in favor of the respondent denied to have witnessed the tendered exhibit. I find nothing wrong with the trial Tribunal admitting exhibit Dl. Admitting and exhibit is one thing and applying it is another. As a long as it was disputed the Chairman was duty bound to examine the said exhibit in his evaluation and point the defects which are clear seen as explained above. It has been further noted that the two witnesses of the respondent herein were not sure of the sale, but they were certain that the land belonged to the deceased Self Mtambo who allowed the defendant to live there since 1982. These two defects pointed out make this ground to have merits also. The last ground was that, the Hon. Trial chairperson erred in law and in fact by declaring the respondent as the lawful owner of the suit land. On this ground the counsel submitted that after the demise of Salum Seif Mtambo who was the only surviving legal heir of his grandfather, the land was placed under the care of the respondent. She was only entitled to the temporary right to use it(the usufructuary rights) but not to sell the same. The above testimonies are also found in the proceedings of the Tribunal. Taking that into account together with the defects as stated above and the two witnesses presented by the respondent herein who were not sure nor present during the alleged sale, but rather were sure that it belonged to the late Self Mtambo,I hold that the Tribunal was not correct to declare the respondent a lawful owner of the land. All evidence pointed out that the land in dispute belonged to Self Mtambo and therefore should have been placed under the appellant herein as his administrator of his estate. This ground also have merit. In view of the above, the appellant's appeal has merits. The decision of the Tribunal is hereby quashed and set aside; the appellant is hereby declared a lawful owner as administrator of the late Self Mtambo. The appeal is hereby allowed, no order as to costs. Right of Appeal explained. T.JVI^ENEGOHA OF ^ JUDGE o C 28/02/2022 3 ¥ O /