20160729 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT MBEYA LAND APPEAL NO 50 OF 2015 (Originating from decision of the District Land and Housing Tribunal of Mbeya at Mbeya) B EFINa IASESEIfA . . ................. ................. APPEIJIJAN'l' VERSUS LETISIA LUNYEMBA ............................. RESPONDENT . JUDGMENT Date of last Order: 21.07.2016 Date of Judgment: 29.07.2016 Dr. Mambi, J. In the District Land and Housing Tribunal (Mbeya District), the respondent successfully sued the Appellant, Betina Kasesela in Land Application No 132 of 2013. The tribunal declared the respondent to be the lawfully owner of the suit land. The appellant was ordered to pay the Costs of the suit. Aggrieved, the appellant filed a memorandum of appeal containing five grounds as follows:- 1. The trial District Land and Housing Tribunal erred in writing one sided judgment wholly inclined in favour of the respondent and showing it was clearly biased against the appellant. 1 tk~ The trial tribunal erred on disturbing the appellant's ownership over the disputed land she has occupied and developed from 1998 well over 15 years for unfounded reasons and in total disregard to the Law of Limitation Act. The trial tribunal erred in holding the sale of the disputed land to the appellant is doubtful for reasons given, in light of abundant evidence on the record to the Contrary. The trial tribunal made a terrible mistake on deciding the case solely by attacking the defence case when the applicant's case was not at all established. S. The respondent totally failed to explain when and under what circumstances the appellant got into the disputed land if she did not actually buy it from respondent's father. The appellant prayed for this court to allow the appeal and the judgment of the trial tribunal be reversed with Costs. On 25.02.2016, when the matter was scheduled for mention parties prayed and this court the appeal to be argued by way of written submission. While the appellant was represented by Mike T. Mbise Learned Advocate, the respondent appeared unrepresented by any Advocate. The appellant through her Advocate Mr. Mbise Mr. Mbise argued the grounds of the appeal collectively. He began by submitting that the whole decision of the trial tribunal is based on what is termed "a lot of doubts" on the sale transaction between the late Wilson Masuba and Betina Kasesela. That the decision ought to have been made on 2 p strength of the plaintiff's case and not the alleged doubts in the defence case. The learned Advocate for the appellant also submitted that the plaintiff did not advance evidence to prove her allegations. Mr. Mbise further contended that the respondent failed to state how her father got the disputed land. He averred that even the Appellant's witnesses i.e. PW2, PW3 and PW4 had nothing substantive to prove the claim of the respondent. Mr. Mbise also submitted that the evidence of the respondent at the trial tribunal was so scanty and was not capable to sustain the judgment in favour of the respondent. Mr Mbise further argued that the appellant testified and tendered credibility evidence which was ought to be clearly considered by the trial Tribunal. In this regard, Mr. Mbise submitted that the evidence indicates that the appellant legally bought the suit on 12.11.1998 from one Late Wilson Masuba and the sale was witnessed by the Village Executive Officer and the Kitongoji Chairman. The said sale agreement was tendered at the Tribunal and admitted as Exhibit P1. He thus argued that the purported doubts mentioned by the trial tribunal over the sale agreement were more than imagination than the reality. To substantiate his submission, Mr.Mbise refereed this court to the case of SELEMAN S/O DADI V. LATA D/O ALl [1987] HCD No. 23. He also referred the case of JACOB CHANGE LAGA NGONYA V. AMOS SEME MWAKASENGO MISC LAND APPEAL NO 45 OF 2011. Mr. Mbise finally prayed this court to allow the appeal with Costs. In reply, the respondent collectively in all grounds of appeal by stating 3 - that at the trial tribunal, the appellant was bound to prove that the land in question belonged to her ownership over the same land in question. She contended that the determination of any civil suit is based on balance of probability between the litigants and not at the strength of the plaintiff's case alone. The respondent further submitted that the appellant ignored to call one Aridongisye Kyando whom she alleged to be the only witness - who prepared and officiated the appellant's purported sale agreement. Failure to call such witness made the trial tribunal to be in a good position of drawing adverse inference that the witness had turned against the appellant. Referring to an Exhibit P1 (the sale agreement), the respondent maintained that its admission at the tribunal without objection was one thing and its scrutiny and analysis about its genuine was another thing. She thus argued that despite of its admission, the trial tribunal was satisfied that the document was not genuine. In rejoinder, Mr. Mbise maintained his ground of appeal and he referred this court to Section 110 (1) (2) and Section 111 of the Evidence Act that the law expressly provides that the burden of proof as to any fact lies on that person who wants the court to give a judgment in his or her favour. With regard to appellant failure to call the witness namely Andongwisye Kyando, Mr. Mbise observed that it is not the requirement of the law that all witnesses to the transaction must be called to testify. He contended that a truth is not established by a number of witnesses rather by quality of evidence. 4 Appellant. As a result, the agreement was reduced into writing, the parties signed and DW3 stamped the same. The sale agreement which was signed on 12/11/1998 by both parties (vendor and purchaser) including the "Mwenyekiti wa Kitongoji", "Mtendaji" wa Kijiji with and stamped by "Mtendaji wa Kijiji" is very clear with the title: YAH: WILSON MASUBA KUMIJUZIA ENEO LAKE LOTE NDULU BETINA KASESELA LENYE UKUBWA WA HEAKA 1 7'.Some of the contents of this document reads as follows: "Mtajwa hapojuu Wilson Masuba amemuuzia Mhusika hapojuu eneo lake lenye ukubwa uliyotajwa hapojuu zikiwemo nyumba mbili.Eneo hilo wameeuziana tshs.580,000 tu". From the above wordings, I find hesitant to agree with the assertions of the respondent that the sale agreement was invalid. I hold so since the above words extracted from the agreement sell themselves that the agreement was valid and signed by both parties before the witness. Indeed the agreement of sale of land between Wilson Masuba and the appellant was made in the presence of witnesses. This implies that the suit land belongs to the appellant who genuinely and legal bought from Wilson Masuba in 1998. As it was rightly noted by the Court in case of the Registered Trustees of Tanzania Agriculture Society versus Agnes CCCCC E. Mboya Land Appeal No.12 of 2011 (unreported) that "it is the position of law that, the valid agreement must be manifested by expressing willingness to be bound by the embodied terms in order to obtain assent of the parties". Referring the Law of contract CAP 345 [R,E,2001] (section 2(1)), the court wet on by stating that in most VA cases, it is expressed by parties signing the document something which has been properly done in our case in hand. Emphasis ) supplied). The sale agreements in our case indicates that there was the valid agreement that was manifested by expressing willingness by the parties who were bound by the embodied terms that indicated assent of the parties. The evidence on record does not reveal to the effect that at the time of purchase of the suit plot, there was a third party notice challenging the conveyance of the suit land. It is well established principle of the law that in civil matters the burden of proof lies on plaintiff. This was underscored in NATIONAL BANK OF COMMERCE LTD Vs DESIREE & YVONNE TANZAL4 & 4 OTHERS, Comm. CASE NO 59 OF 2003() HC DSM, where his lordship Massati J, observed that:- "The burden of proof in a suit proceeding lies on their person who would fail if no evidence at all were given on either side". The appellant in this case was a bonafide purchaser and had all right since he bought the said suit land. The court in various decision has explained as to who and when one becomes a bonafide purchaser as indicated here below: In SANDERS V. MCAFFEE, 42 GA 250, it was defined as: "A bonafide purchaser is the one who buys property of another without notice that some third person has a right to, or interest in, such property, and pays a full and fair price for the same, at the time of such purchase or before the number of witnesses required for the proof of fact. What matters is the weight of credibility to be attached to the evidence of the ) witness. The Court in AYUBU HASSAN VS REPUBLIC, CRIMINAL APPEAL NO. 79 OF 2009, CAT, TANGA (Unreported) held and noted that: "...what matters is the competence and credibility of witnesses and nothing more..." In the event as I reasoned above, this appeal is meritorious hence allowed. The decision of the Land and Housing Tribunal is set aside. It is hereby declared that the appellant is the lawful owner of the suit land. In the event as parties are related, I make no orders as to costs so as not to further soar their relationship. Order accordingly. Right of appeal explained. JUDGE 29.07. 2016 Judgment delivered in Chambers this 29th day of July in presence of both parties. JUDGE 29.07. 2016 10