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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO 26468 OF 2024 (Originating from the District Land and Housing Tribunal for Mbeya at Mbeya in Land Application No. 49 of 2022) BOSTA SHORA…………………..……………………………………….…1ST APPELLANT ISAKWISA KAYUNI (Administrator of the estate of the late Jackson Matai Kayuni)……………………………..……..2ND APPELLANT FURAHA MWANDALIMA………………………………………………….3RD APPELLANT HASANI ARON………………………………………………………………4TH APPELLANT SAFINA MWAMKINGA…………………………………………………….5TH APPELLANT FAINES ARON…………………………………………………….…………6TH APPELLANT EMMANUEL MWAMPASHI……………………………………..………..7TH APPELLANT VERSUS KAISI JAMES MWAMBONA………..………………………….…………..RESPONDENT JUDGMENT Date: 20 December 2024 & 19 March 2025 SINDA, J.: The appellant is aggrieved and wishes to challenge the decision of the District Land and Housing Tribunal for Mbeya at Mbeya (the DLHT). The brief facts of the case are that the respondent bought a piece of land, Plot Nos. 93 and 94, Block H at Isanga Mbeya (the Disputed Property) from 1 one Jackson Mathai Kayuni (the Deceased) in 2007. Soon after, he built a nursery school on the Disputed Property. In 2012, the first appellant requested the respondent to use the Disputed Property as a church, and the respondent permitted him to use the building for only four years. The dispute arose when the respondent sought to reclaim the Disputed Property, but the appellants refused, claiming that the building, now a church, along with the land, belonged to the Pentecoste Gilgal Mission Church (the Church). During the defence, the first appellant claimed to have bought the Disputed Land from the respondent in 2006 and in 2007 handed over the Disputed Property to the Church. Thus, the respondent’s claims are untrue. Due to such controversy, the respondent successfully sued the appellants at the DLHT. Now aggrieved with the decision on the DLHT, the appellants brought this appeal on the following grounds: 1. That the trial tribunal erred both in points of Law and facts when decided in favour of the respondent by using exhibits to wit sale agreement which was unstamped contrary to Law on Stamp Duties Act and Certificate of Marriage Certificate of the respondent and the same documents were not read out after admission as exhibits. 2 2. The Trial Tribunal erred both in points of law and facts when it failed to evaluate, analyze and consider the weight of evidence adduced by Appellants and hence reached to unfair decision 3. That the trial tribunal erred both in points of Law and facts when regarded the sale agreement while there was no spouse consent by the wife of the purported seller to the respondent i.e the wife of Jackson Mathai Kayuni. 4. That the trial tribunal erred both in points of law and facts for holding that the land in dispute is lawfully owned by the respondent while the respondent sold the same to the 1st appellant way back on 2016 and the respondent attested that he bought the same land in dispute in 2007 after sale to the 1st appellant. 5. That the trial tribunal erred both in points of Law and facts after holding that the Pentecost Gilgali Mission was not registered and failed to protect the rights of the same Church after bought the said land in dispute from one Jackson Mathai Kayuni. 6. That the trial tribunal erred both in points of Law and facts when failed to decide that the time limitation to claim the land in dispute was elapsed contrary to Law. 3 7. That the trial Tribunal erred both in points of Law and facts when based on issues which were not raised by the parties in the former case at the tribunal to decide against the appellants in this case, Land Application No. 49/2022. The hearing of the appeal was conducted by way of written submissions. The appellants were represented by Ms. Joyce Kasebwa, Learned Counsel. The respondent appeared in person unrepresented. On the first ground, Ms. Kasebwa submitted that the sale agreement (Exhibit P1), was not duly stamped as required under Section 5(b) and 46(i) of the Stamp Duty Act, Cap 189 R.E. 2019 (the Stamp Duty Act) for it be tendered and admitted as an exhibit during trial. She referred to the case of Malmo Montagekonsult AB Tanzania Branch vs Magreth Gama, Civil Appeal No. 86 of 2001 CAT at Dar es Salaam (unreported), Josephat L. K. Rugaimukamu vs Kanut J. Mziwanda [1989] TLR 69, and that of Daima Yohana Madumba vs Titho Nyagawa & Another, Land Appeal No. 23 of 2023. Ms. Kasebwa continued that Exhibit P1 and the Certificate of Marriage (Exhibit P4) were not read out after being admitted. She referred to pages 4 37 and 38 of the DLHT proceedings (the Proceedings). She cited the case of Bulungu Nzungu vs Republic, Criminal Appeal No. 39 of 2018. She prayed for the sale agreement, together with the certificate of marriage, to be expunged from the records. Moving to the second and fourth grounds, the counsel submitted that the first appellant testified that he purchased the Disputed Property from the respondent in 2006 and tendered the sale agreement before the DLHT, which was admitted as Exhibit D1. He then handed over the property to the Church in 2007, as evidenced by Exhibit D2. She was of the view that the respondent attempted to mislead the court by claiming that in 2007, he had bought the Disputed Land from the Deceased, whereas he had actually sold it to the first appellant. She added that in 2008, the appellants and respondent went to the Deceased, where he rejected the sale agreement between the first appellant and respondent. Thus, the Church entered into a new sale agreement with the Deceased. She added that there were no buildings on the Disputed Land as the same were built after the new sale agreement. It was the counsel’s submission that the DLHT failed to evaluate the evidence, especially on sale agreement between the first appellant and the respondent. 5 Concerning the police loss report, Ms. Kasebwa faulted the DLHT for not admitting the same for reasons that it did not bear the name of the first appellant or the Church. She explained that when the first appellant bought the Disputed Land from the respondent, the certificate of occupancy still read the names of the Deceased. At the police station, he was told that the loss report should contain the names found in the certificate of occupancy. In support, she cited the case of Hussein Idd and Another vs Republic [1986] TLR 166, Leonard Mwanashoka vs The Republic, Criminal Appeal No. 226 of 2014 and that of Philipo Joseph Lukonde vs Faraji Ally Said [2000] TLR 576. With regard to the third ground, the counsel referred to Section 114 and Section 161(3)(b) of the Land Act, Cap 133 R.E. 2019, and Section 59 of the Law of Marriage Act, Cap 29 R.E. 2019. She stated that the sections provide for spousal consent during the disposition of matrimonial property. That, in the matter at hand, the Disputed Property was a matrimonial property of the Deceased and his wife. However, there was no consent of the Deceased’s wife adduced before the DLHT as part of evidence. She cited the case of National Bank of Commerce Limited vs Nurbano Abdallah Mulla, 6 Civil Appeal No. 238 of 2017, and that of Chakupewa vs Mpenzi and Another [1999] 1 EA 32, to support her argument. On the fifth ground, Ms. Kasebwa submitted that the reason the Church appears unregistered is that the name Pentecost Gilgal Mission Church already belonged to another church. Therefore, during the change of name from Pentecost Gilgal Mission Church to Gospel Mission Church, this dispute arose, and the name registration process was halted. She added that suing an unregistered church is not fatal as it did not go to the root of the matter or cause miscarriage of justice. She cited the case of Tongeni Naata vs Republic [1991] TLR 54, Yakobo Magoiga Gichere vs Peninal Yusuph, Civil Appeal No. 55 of 2017 and Cropper vs Smith (1884) CH. D700. Submitting on the sixth ground, Ms. Kasebwa argued that the respondent's claims are hopelessly time-barred, hence the court has no jurisdiction to try them. She added that the cause of action arose in 2006 when the sale agreement was made. That is, until 2023, when the dispute arose, it amounts to 16 years. Which is contrary to Part 1, Paragraph 22 of the Law of Limitation Act, Cap 89 R.E 2019 (the LLA) that requires land matters to be brought within 12 years. She cited the case of Ali Shabani & Others vs Tanzania National Road Agency (TANROADS) & Another, Civil Appeal 7 No. 216 of 2020 and the case of Nyachiya vs Tanzania Union of Industrial & Commercial Workers, Civil Appeal No. 76 of 2021 (unreported). Addressing the seventh ground, the counsel questioned the DLHT for comparing the evidence in this case with that of Land Application No. 192 of 2016, which was filed by the respondent’s wife. She argued that although the subject matter is the same, the parties are different. Thus, it was wrong for the DLHT chairman to refer to the evidence of the previous case while discussing the matter at hand. In his reply submission, the respondent argued that at the DLHT, when the issue of an unstamped sale agreement was raised, the DLHT Chairman ordered the respondent to pay a stamp duty. The respondent paid the same as required, and the appellants were served on 21 November 2023. Additionally, he added that the exhibits were read out after admission. He cited the case of Elibariki Mboya vs Amina Abeid, Civil Appeal No. 54 of 1996. The respondent also pointed out that the issue before the DLHT was the sale agreement alone, but the appellants complained about the certificate of marriage as well during the appeal. 8 On the second and fourth grounds, the respondent submitted that at the DLHT, he testified to having bought the Disputed Land from the Deceased in 2007. That his evidence was supported by PW2 and PW3, together with the stamped sale agreement (Exhibit P1). The first appellant did not object to this and informed the DLHT that he had purchased the Disputed Land from the respondent in 2008 and was given a title deed, which was subsequently lost. With that, the respondent was of the view that the DLHT had analyzed well the evidence adduced before it. He also added that the appellants’ evidence before the DLHT was very contradictory. He continued that, in Application No. 192 of 2016, the first appellant stated that the lawful owner of the Disputed Land is the Church, which was purchased from the Deceased in 2008. However, in Land Application No. 49 of 2022, he informed the DLHT that he had purchased the same from the respondent in 2006. The respondent cited the case of Emmanuel Abraham Nanyaro vs Penile Ole Saitabau [1987] TLR 47. He insisted that the respondent’s evidence was heavier as he referred to Section 3(2) and Section 110 of the Evidence Act. Also, the case of Agatha Mshote vs Edson Emmanuel and 10 Others, Civil Appeal No. 121 of 2019 (unreported). 9 On the allegations that there is no proof of spousal consent by the wife of the Deceased, the respondent argued that when the matter proceeded at the DLHT, the appellants did not object. Additionally, the deceased's wife did not complain about the Disputed Land being sold. Arguing the fifth ground, the respondent submitted that he did not sue the Church as alleged by Miss Kasebwa. Likewise, the DLHT did not deal with the Church, nor did the Church make an application to be joined in the case as one of the other five appellants to defend its case. When Application No. 192 of 2016 was referred as an appeal before the High Court, the High Court, through Miscellaneous, Land Application No. 15 of 2020, revealed that the Church lacked legal capacity. Given that it is neither a natural person nor a registered entity. On the sixth ground, the respondent argued that the matter is not time- barred. The respondent’s wife, Lucy Kyomo, brought the matter before the DLHT in 2016, after the first appellant refused to return the Disputed Property. Aggrieved by the decision of the DLHT, the respondent’s wife appealed to the High Court in 2020. Where the High Court gave leave to refile the case before the DLHT if the respondent’s wife so wishes. In 2022, 10 the respondent filed Land Application No. 49 of 2022 as a person with interest and the legal husband of Lucy Kyomo. Moving to the seventh ground, the respondent submitted that when Misc. Land Application No. 15 of 2020 was concluded at the High Court; the first appellant made no claims against the respondent or his wife concerning the Disputed Land. Also, the Church made no claims against the two applications. That is, Land Application No. 192 of 2016 and Land Application No. 49 of 2022. Furthermore, in their joint affidavit at paragraph 4(b), the first appellant denied having made the sale agreement with the respondent and his wife. During rejoinder submission, Ms. Kasebwa reiterated most of what she stated during her submission in chief. However, she added that the issue of the DLHT giving time to the respondent to solve and pay a stamp duty goes against Section 5(b) and 46(i) of the Stamp Duty Act. This prohibits the admission of an unstamped sale agreement as evidence in land disposition. I have gone through the submissions by both parties and the records of the DLHT. The pertinent issue for determination is whether I find this appeal to be meritorious. 11 Discussing the first ground, it is claimed that the sale agreement, Exhibit P1, and the certificate of marriage, Exhibit P4, were not read before the court. Also, the sale agreement, Exhibit P1, was not stamped. I find myself agreeing with the DLHT on matters of stamp duty. It has been the rule of practice that when an agreement has not been stamped, a party is given time to comply with such payment. Failure to do so will render the agreement inadmissible. From the record, the respondent complied with this requirement after being afforded an opportunity to do so. This was well explained in the case of Zakaria Barie Bura vs Theresia Maria John Mubira [1995] TLR 21, that cited the case of Sunderji Nanji Limited vs Mohamedali Kassam Ali Kassam Bhalloo (1958) 1EA 762. To wit: “As was held in Bagahat Ram vs. Rattan Chand (2)(1930), A.I.R Lah 854), before holding a document inadmissible in evidence on the sole ground that it is not being properly stamped, the court ought to give an opportunity to a party producing it to pay the stamp duty and penalty. The position in this case is exactly the same. The appellant has never been given the opportunity of paying the requisite stamp duty and prescribed penalty on the unstamped letter of guarantee on which he sought to rely in support of his claim against the second defendant or respondent and he must be given such opportunity.” As a result, based on the above authority, I find the appellants’ counsel's argument in relation to stamp duty to be misplaced. 12 Regarding the said exhibits not being read. From the face of the Proceedings, it is true that neither exhibits were read during the trial before the DLHT. This is evident on pages 37 and 38 of the Proceedings. Nonetheless, I took it upon myself to visit the handwritten proceedings of the DLHT to confirm the same. Or whether there was an error during the Proceedings. However, the handwritten proceedings are also unclear. They do not provide a clear indication whether the said exhibits were read by the respondent herein before the DLHT. As a result, I will refrain from assuming any facts and adopt what has been provided in the Proceedings, that the Exhibits were not read by the respondent during the trial at the DLHT. Consequently, the impact of such irregularity does not dismiss the entire appeal. Instead, the said exhibits are expunged from the record. The same was discussed in the case of Sebastian Michael & Another vs DPP, Criminal Appeal No. 145 of 2018. The CAT provided that: “The law on the requirement on witnesses to read the contents of documentary exhibits after their admission is long settled. It has been stressed in the Court's various decision in particular; Robinson Mwanjisi & Others v. R [2003] T.L.R. 218 and many others that followed which we need not cite here. Flowing from the above, it is settled law that failure to read out the contents of any documentary exhibit after its 13 admission is fatal; such an exhibit ceases to have any evidential value and liable to be expunged from the record.” Pursuant to the provisions of the law above, I hereby expunge both exhibits, Exhibit P1 and Exhibit P4, from the record of the DLHT. Following these findings, I will address the fourth ground of appeal regarding the evaluation of evidence. It has come to my attention that, in the absence of the expunged exhibits, especially Exhibit P1, the respondent's evidence becomes lacking. Primarily because the respondent’s evidence relied on the now-expunged Exhibit P1, aside from that, his witnesses, PW2 and PW3, were not very conversant with the ordeal. The majority of the things they knew, they admitted to having been told by the respondent. For instance, PW2, at page 41, among other things, stated that Mimi mambo mengine niliambiwa na James Mwambona. That translates to: Concerning other things, James Mwamboma informed me. Again, PW3 at 43 stated, Mimi sikushuhudia mauziano. Nilisimuliwa na Kais James Mwamboma. That translates to: I did not witness the sale. I was informed by Kais James Mwamboma. The law is settled that hearsay evidence has no evidential value. See: Vumi Liapenda Mushi vs Republic, Criminal Appeal No. 327 of 2016 14 (unreported). As a result, after the above brief demonstration, I will adhere to the principle of “he who alleges must prove,” which is provided under Section 110(1) of the Tanzania Evidence Act and in several decided cases. See: Attorney General & Others vs Eligi Edward Massawe & Others, Civil Appeal No. 86 of 2002, CAT (Unreported). The respondent, being the one who alleged, failed to execute his duty as required by the law. From the foregoing and based on my evaluation of the evidence, I am firmly of the view that the appellants’ evidence was more substantial than that of the respondent. It is a trite law that the party with the stronger evidence wins the case. See: Hemedi Saidi vs Mohamed Mbilu [1984] TLR 113. The first appellant, inter alia, presented a sale agreement between himself and the respondent in relation to the Disputed Property, marked Exhibit D1, before the DLHT. He also brought a document showing that he had handed over the Disputed Land to the Church, Exhibit D2. Furthermore, he received documents from the Deceased, Exhibit D3, when, together with the Church, he purchased the Disputed Land for the second time from the Deceased. Apart from the mentioned exhibits, the appellant's evidence was strengthened by multiple witnesses. Some of whom witnessed the sale of 15 the Disputed Property between the first appellant and the respondent, to wit, DW2 and DW9. From the foregoing, I find merit in the fourth ground of appeal and do not consider it necessary to discuss the remaining grounds. I proceed to quash and set aside the decision of the DLHT. The appeal is hereby allowed. I make no order as to costs. It is so ordered. Right of appeal explained. DATED at MBEYA on this 19 day of March 2025. A. A. SINDA JUDGE 16