LAND APPEAL 15601

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 15601 OF 2024 (Originating From Application No. 129/2022, Kigamboni District Land and Housing Tribunal) JOSEPH SIMON MALIMA....................................................................... APPELLANT VERSUS ABDUL ABDALLAH MNOLA.......................................................... Ist RESPONDENT BAKILI MALIMA.......................................................................... 2nd RESPONDENT JUDGMENT 26/08/2024 to 17/09/2024 E.B. LUVANDA, J The Appellant named above presented evidence before the Tribunal showing that he purchased a piece of land measuring hundred meters length from east to west, thirty-five meters width on the east and forty eight meters width on the west, from Salehe Madenge on 6/02/1996 for a consideration of TZS 60,000/=, as per a sale agreement exhibit P2. The Appellant asserted that after purchasing, he instructed the Second Respond (Appellant's young brother) as a care taker. Meanwhile, the Appellant who is a retired soldier Tanzania Peoples Defence Force, asserted to have embarked on a long service of peace keeping as military member of African Union-United Nations Mission (UNAMID) in Darfur, as per the medal award exhibit P3. The Appellant accused the Second Respondent to have betrayed and disowned him and eventually disposed a i portion of the Appellants's land measuring thirty-five by thirty-five meters to the First Respondent in 2008 while the Appellant was on mission as aforesaid. The First Respondent tendered a sale agreement dated 27/05/2008 exhibit KU4 vindicating that purchase. According to the Second Respondent, after disposing the suit land to the First Respondent vide exhibit KU4, the remained portion of land he purchased from Salehe Madenge, decided to handover to the Appellant, who alleged after retirement from the army, craved for help from the Second Respondent whom I have said his business is unknown, not disclosed. And on cross examination by Mr. Akiza Rugemalila learned Counsel for the Appellant, the Second Respondent asserted that he never went to school, did not even reach STD VII. The Second Respondent whose professional, carrier, job or business, earing, income was not made clear remained unknown, asserted to had purchased the same piece of land with slight demarcations, measuring ninety-six paces length and thirty seven paces width on the east and thirty-nine paces on the west, form the same vendor one Salehe Madenge on 03/01/1996 for the same consideration of TZS 60,000/=, and tendered a sale agreement exhibit Kill. It would appear, the Second Respondent took an advantage of an order for retrial made by this Court dated 1/07/2021 in Land Appeal No. 39 of 2021 exhibit P5, where the Appellants therein who are the Respondents herein were appealing 2 against the decision of the Tribunal in Application No. 53 of 2018 exhibit P4 where the Appellant herein was decreed the lawful owner of the suit land. In exhibit P4, the Second Respondent asserted under oath that the sale agreement for purchasing a farm from Salehe Madenge, is lost, in lieu thereof, the Second Respondent tendered a loss report and an affidavit to that effects. In exhibit P5, this Court nullified the proceedings in exhibit P4 on the ground taken at its own accord proprio motuftxat the Tribunal flawed the procedures for visiting the locus in quo and made an order for any party interested with litigation to sue afresh. It is when the Appellant herein sued the Respondents herein, where in the written statement of defence and trial, the Second Respondent produced a sale agreement between him and the late Salehe Madenge, exhibit KU1. The learned Chairman along members of the Tribunal believed the testimony of the Second Respondent and hold a view that he was the first to acquire and purchase the suit land from the late Salehe Madenge, and ruled that the late Salehe Madenge had no title to pass to the Appellant afterward. Consequently ruled exhibit P2 void. In the memorandum of appeal, the Appellant grounded that: One, the Honorable Chairperson erred in law and fact for failure to analyze critically and/or evaluate and consider the evidence adduced by the Appellant on 3 disputed suit land measuring one acre and hence occasioned miscarriage' of justice; Two, the Honorable Chairperson erred in law and fact after holding that the First Respondent was the owner of part of land and not declaring the Appellant as the rightful owner of the whole part of the disputed suit land; I Three, the Honorable Chairperson erred in law and fact for not satisfying himself on the bounderies of the disputed suit land claimed by the Appellant. Mr. Samtus Alloyce Biseko learned Counsel for Appellant, for ground number one, submitted that most of the evidence and testimonies tendered by the Appellant was not analyzed critically or evaluated and at the end of the day disregarded and no reason was ever given. He submitted that one of the crucial evidence and testimony of the Appellant was that the Second Respondent was indeed one of the witness in the purchase of the suit land and reasonably, one cannot be a buyer in a previous month on the same suit land and later on be a witness to his own land being sold to another person, arguing this fact was never considered by the Tribunal. He submitted that despite of the difference in some of the name of the Second Respondent herein appearing in the contract, but signature pointed to him, arguing this fact was totally ignored by the Tribunal. He submitted that in the previous judgment which was quashed, the Second Respondent while under oath with the support of various documents including an affidavit, claiming to have lost the sale agreement witnessing on 4 how he obtained title to the land he sold to the First Respondent, but surprisingly without any explanation he brought the said agreement, arguing this revelation left a lot of questions which were never answered by the I i Respondents. He submitted that despite a fact that this concern was raised during trial, but the said judgment tendered, the Tribunal choose to ignore this crucial fact in arriving to its decision. He submitted that the facts adduced by the Appellant that he went for peace keeping mission left the Second Respondent as a caretaker of the suit land, and the year claimed to purchase the suit land though by the time he was a dependent, was not considered hence arrived to unjust decision. He submitted that the Tribunal was under obligation to go through the evidence and test if at all a dependent can purchase the said suit land. He submitted that though the First Respondent claimed to be a chef, and he was sent money by his un named wife were never proved. He submitted that Jeremia Mafuru Mukoi (PW1) who was the neighbour asserted that the Second Respondent was residing in the said suit land and in his brother's house and not as the owner. He submitted that the evidence of PW1 and PW2 was unjustifiably ignored by the Tribunal on a mere reason that did not sign the sale agreement, despite that the Appellant was introduced to them by Salehe Madenge and participated in the identification of boundaries of the suit land. 5 He submitted that in proving ownership, the Second Respondent tendered various documents proving that he had been paying various government levies (property tax), arguing during hearing the said documents exhibit KU2, shows he had been paying for property until 2015 a fact that contradict his testimony that he had sold the suit land to the First Respondent in 2008. He submitted that this raises serious doubt, argued it was never analyzed, evaluated and considered by the Tribunal. He cited Paulina Samson Ndawavya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2017, for a proposition that it is the duty of the trial court to evaluate evidence of each witness and make findings on the issue. For ground number two, the learned Counsel submitted that the fact that the Second Respondent has never owned a right of occupancy to the suit land (sic), he had nothing to pass to the First Respondent. He submitted that the Tribunal ought to have declared the Appellant as the owner of the whole part of the land in dispute and not otherwise, citing Ombeni Kimaro vs Joseph Mishili t/a Catholic Chrismatic Renewal, Civil Appeal No. 33 of 2017, CAT; Faraha (sic, Farah) Mohamed vs Fatuma Abdallah [1992] TLR 205 for a proposition that he who does not have a title to the land cannot pass a good title over the same land to another. 6 For ground number three, the learned Counsel submitted that the reasons for setting aside the judgment and decree in Application No. 53 of 2018, is due! to । failure to abide with guideline and procedures of visiting locus in quo. He i submitted that it is their surprise that the Tribunal never bothered to visit the i said area, to rectify the mistake of not following the procedures for visiting the locus in quowti the Tribunal to satisfy itself on the boundaries of the disputed land. He submitted that failure to visit the said land is injustice to the Appellant, argued the reason to ignore the same ought to have been disclosed. In reply, Mr. John J. Lingopola learned Counsel for Respondents, for ground number one, submitted that the Tribunal correctly evaluated and analyzed the exhibits/evidence adduced and tendered before it by both parties henceforth reached it's wise and correct decision that the owner of the disputed Land is the First Respondent, citing page 7, 8 & 9 of the impugned judgment, argued that it critically evaluated the evidence tendered particularly exhibits P2 and KU1 which shows that the Appellant purchased the suit land from the one Salehe Madenge on 6/2/1996 and the Second Respondent herein purchased the same suit land from the same Salehe Madenge on 03/01/1996. He submitted thus that the First Respondent bought the disputed land from Second Respondent in 2008. He submitted that the testimony of the Appellant's witnesses particularly PW1 and Mohamed Omari Kalokola (PW2) were evaluated 7 by the Tribunal that they did not witness or sign the sale agreement entered between the Appellant and the said Salehe Madenge, citing page 8 and 9 of the impugned judgment. He submitted that the Tribunal clearly analyzed, evaluated Ii and scrutinized all evidences adduced by the parties and concluded that the Appellant failed to prove his case on the balance of probabilities interms of section 110 of the Law of Evidence Act, Cap 6 R.E 2022. He submitted that it is the cardinal principle of the law that in any case of double allocation of the land, the transferor would have no title to pass to a subsequent transferee under the application of priority principle. He submitted that the priority principle applies to the situation where there are two or more parties claiming over the same interest in the land in which each has the title over it, the party who acquired it prior (before) the other shall be deemed to have better interest over the other, citing Ombeni Kimaro (supra). He submitted that going through the pleadings and the testimony presented before the Tribunal it is undisputed that the Second Respondent was the first person to purchase the disputed land from the one Salehe Madenge on 03/01/1996 than the Appellant who purchased the same on 6/02/19996, arguing therefore that the principle of priority stated herein above applies to the Second Respondent as he has superior interest over the disputed title than the Appellant based on exhibits P2 and KU1. He submitted that the said Salehe Madenge had no title to pass to the Appellant 8 on 6/02/1996 after he granted the same title to the same land in favor of the Second Respondent earlier on 03/01/1996, citing Gloria Irira vs Sudi Mrisho Ngwambi and Others, Civil Appeal No. 27 of 2021; Furaha (sic, Farah) i Mohamed (supra). He submitted that going through the proceeding and the record of the Tribunal, exhibits KU2 and KU3 collectively proves that the Second Respondent purchased a piece of land in the year 1996 and sold part of it to the First Respondent in a year 2008. He submitted that since the number given to the Second Respondent consisted the whole property and that since the Second Respondent still remained with part of the land, the Second Respondent was the one who was supposed to pay land rent as all bills came through his name, argued therefore that these facts have no contradictions and the same was analyzed, evaluated and considered by the Tribunal, citing page 5 of the impugned judgment. He submitted that the Tribunal after executing its task of evaluating all evidence including exhibits tendered by all parties reached its decision by concluding that it was right for the Second Respondent to sale his own land to First Respondent on 27/05/2008, citing page 16 of the impugned judgment. He submitted that on the Appellant contention that the Second Respondent was a witness in the Appellant's sale agreement (exhibit Pl) is a fallacy as this was valiantly disputed by the Second Respondent during the trial that he never signed the said agreement as the signature and name appearing 9 therein was not his. He submitted that it should also be noted that the Tribunal is not mandatorily required by the law to discuss every fact pleaded or testified by the parties, arguing all what the Tribunal was required to do was to answer I the issue of ownership the parties were contesting and the facts that were related to the issue in question and not otherwise. He submitted therefore that the case cited by the appellant in his submission in chief, the case of Paulina Samson Ndawavya (supra) does not support his first ground of appeal rather it supports Respondent's submission for explanation that the Tribunal executed well its duty of evaluating all necessary evidence from each witness tendered before the Tribunal as required by the law. For ground number two, the learned Counsel submitted that, the Appellant herein failed to prove his case for him to be declared that he is the rightful owner of the said disputed property before the Tribunal. He submitted that all testimonies of PW1, PW2, PW3, SDW1, SU2 and DW3 including exhibits P2, Kill, KU2, KU3 and KU4 tendered before Tribunal did prove that the Second Respondent was the legal owner of the disputed land thus the sale agreement entered between the Second Respondent with First Respondent in 2008 was valid in the eyes the law. He submitted that the Appellant evidence (exhibit P2) shows that the sale agreement was entered between the Appellant and Salehe Madenge but signed by Juma Madenge on behalf of Salehe Madenge while there 10 was no any proof from the Appellant to prove that the said Salehe Madenge authorized Juma Madenge to execute the sale of disputed land and sign on >his behalf in order to effect the sale agreement, arguing therefore that the sale of land of 6/2/1996 by Juma Madenge who acted on behalf of Salehe Madenge i was illegal in the eyes of the law. He submitted that the law is very clear when one sales the land on behalf of the owner must be satified by the owner under section 148 of the Law of Contract Act, Cap 345 R.E 2019, also cited Ombeni Kimaro (supra). He submitted that, all cited cases in the Appellant's submission in chief clearly do not support the Appellant's case rather they support the Respondents' case because as stated above all evidences and exhibits tendered before Tribunal proves that the Second Respondent was the legal owner of the disputed land who sold the same to the First Respondent in 2008. For ground number three, the learned Counsel submitted that the Tribunal did not opt to visit locus in quo because the parties herein were not disputing on the size, state, location or boundaries but on the ownership of the land in dispute. He submitted that the evidences delivered by the parties herein were enough for the Tribunal to determine the rightful owner of the land in dispute rendering the need to visit locus in quo redundant. He submitted that in several of its decisions the High Court and the Court of Appeal of Tanzania have discouraged the tendency of Courts or Tribunals to visit locus in quoasxX. will li make the Court or Tribunal take a role of a witness rather than that of the adjudicator, citing Mhela Bakari vs Manoni Bakari & another, Land Appeal No.23 of 2021. He submitted that the center of disputed was on ownership, i arguing that there was nothing to verify at the locus in quo. He submitted that II visiting of locus in quo \s not mandatory and court should strive to avoid, citing Nizar M. H vs. Gulamali Fazal larimohamed [1980] TLR 29, the Court of Appeal of Tanzania. I will start tackling ground number one. Going by the findings of the Tribunal in the impugned judgment, specifically from page six last paragraph to page sixteen, the learned Chairperson did little on evidence analysis work, mainly at page seven, eight and half of page nine. Thereafter the learned Chairperson embarked on a long narration of judicial pronouncement and precedent up to page fifteen when reverted to its mandate of evaluating evidence tendered. While it is appreciated for eloquent research work on application of laws, it is commended that the same should not overlap the dictum of scrutinizing relevant evidence and making findings on issues framed. In Paulina Samson Ndawavya vs Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017, CAT at page 17 ruled, We are not oblivious to our previous Stanslaus Kasusura's case (supra) that it is, the duty of the trial court to evaluate evidence of each witness and make findings on the issues. ,! I 12 I However, sitting as first appellate Court we are guided by rule 36(l)(a) of the Rules which empowers the Court to re-appraise i the evidence on the record and draw its own inference and findings of fact subject, having regard to the fact that the trial court had the advantage of watching and assessing the ! I witnesses as they gave evidence' Again, in Leonard Dominic Rubuye t/a Rubuye Agrochemical Supplies vs Yara Tanzania Limited, Civil Appeal No. 219 of 2018, at page 23, the apex Court commented the following, 14s a first appellate court and in situation of this nature, we have the power under Rule 36(l)(a) of the Rules to revisit and re-evaluate the entire evidence in an objective manner and come up with our own findings offact...Exercising our mandate, we accordingly step into the shoes of the trial High Court so as to reconsider the evidence availed in an attempt to satisfy ourselves on how the figure claimed was arrived at' Back to back, I will kick start my task of re-evaluating the evidence tendered before the Tribunal. Nevertheless, I will do it by reproducing the version of the finding by the Tribunal and see if at the end of the day I will share his view or come up with a different conclusion after rustling the evidence presented as a whole. However, in reflection, my preface above speak louder on what would be the conclusion. At page fifteen second paragraph, the Tribunal ruled, 'Kwenye shauri hili tumeridhika na ushahidi tuiiobainisha hapo juu kuwa mdaiwa wa pili aiikuwa wa kwanza kununua ardhi 13 bishaniwa tarehe 03/01/1996 kutoka kwa Salehe Madenge sawa na kielelezo KU1 akifuatiwa namdai alienunua ardhi hiyohiyo kutoka kwa mtu huyohuyo Satehe Madenge tarehe 6/02/1996 sawa na kielelezo P2. Na hivyo basi kwa kanuni za kisheria zilizonukuliwa hapo juu, ni wazi kuwa Salehe Madenge alikuwa hana umiliki wa kumuuzia mdai tarehe 06/02/1996 kama kweii aiifanya hivyo kupitia mauziano hayo ya kielelezo P2 kati ya mdai na Salehe Madenge nayo ni bati/i kisheria na hivyo mdai hajapata umiliki wa eneo hiio kutokana na kununua kutoka kwa Salehe Madenge' The learned Counsel for Respondent supported this theory that Salehe Madenge sold twice the suit land to the Second Respondent on 03/01/1996, thereafter to the Appellant on 6/02/1996, being approximately thirty-four days from the first sale. Indeed, for the same price and it was disposed to the sibling (Appellant and Second Respondent). This fact alone that the Appellant and Second Respondent are sibling, negate this theory that Salehe Madenge was capable to dispose the suit land and collect TZS 60,000 from the Second Respondent and after thirty four days, pocket another sum of TZS 60,000/= from the Second Respondent's brother to wit the Appellant. Even common sense does not support this theory, that the vendor of a land could sell the same land to close relative who knew each other and manage to collect TZS 60,000/= from each other, and the sibling remain looking to each other peacefully for a period of 14 twenty two years from 1996 to 2018 when a dispute arose or nineteen years from 1996 to 2015 when the Second Respondent allege opted to give his brother (Appellant) a remained piece of land after having disposed a suit land to the First Respondent in 2008. These propositions sound like an Indian or Chinese movie. In his testimony, the Appellant who testified as PW3 at the Tribunal, asserted that after purchasing the suit land in 1996, the Second Respondent who was a sibling (that is children of the same parent) took a role of a caretaker to the suit farm. This fact was not cross-examined by the Respondents. When PW3 was recalled on 16/01/2024 for further examination in chief, PW3 asserted that the Second Respondent witnessed in a sale agreement exhibit P2 by appending his signature. PW3 went further to tender a plaint and reply to the written statement of defence in Civil Case No. 197 of 2004 exhibit P6 and P7 respectively, indicating that the Second Respondent had sued the Inspector General of Police and appended his signature in those pleadings resembling his signature in exhibit P2. PW3 also clarified that Bakili Malima is also known as Finiasi Simon Bakili Malima. On cross examination by Mr. Akiza Rugemalila learned Counsel who at the Tribunal was representing the Appellant, the Second Respondent disowned completely the name "Finiasi". Meaning that he was avoiding to speak the truth. Indeed, in his witness statement the Second 15 Respondent introduced himself by three names of Bakili Finias Malima. On cross-examination by Ms. Lilian Kalinga learned Counsel who at the Tribunal on ! that date was acting for Respondents, did no manage to discredit the facts । adduced by PW3. In fact, a question that the Second Respondent appended a signature in exhibit P2 as a witness on the side of the Appellant, remained unchallenged at all. Therefore the argument of the learned Counsel for the Appellant that how come the Second Respondent could purchase the suit land and then afterward agree to sit as a witness for the Appellant to purchase the same land, hold water. Above all, the theory of the Tribunal is that exhibit P2 and KU1 were executed by the same vendor. However one could wonder, as to how the vendor whom the Tribunal was told he was aging, old and senile, could be smart enough, for exhibit Kill which was purportedly executed on 03/01/1996 to describe the suit farm by depicting the size by using cardinal direction and omit those features in exhibit P2 executed afterwards. Above all, as alluded by the learned Counsel for Appellant, in the proceedings of a judgment exhibit P4, the Second Respondent who testified therein as DW2 asserted under oath that a sale agreement for purchasing a farm from Salehe Madenge was lost, where he tendered a letter from Police along an affidavit, exhibit Bl and B2 respectively. Herein the Second Respondent tendered the 16 very sale agreement he reported at Police to have been lost. When DW1 was cross-examined by the learned Counsel for Appellant, DW1 stated that, I quote, 'Mkataba wangu wa mauziano kielelezo KU1 niHpata baada ya kupekua nyaraka zangu kama kati ya 2019-2020. Sikurudi Mahakamani kwa Mheshimiwa Chinyi/e Mweneykiti kumueleza kuwa nimepata nyaraka yangu ya mauziano. Niiienda kuripoti Poiisi kwa sababu ya kupoteiewa nayaraka yangu. NUiripoti Poiisi Kigamboni. Sikurudi Poiisi Kigamboni kuwaambia nimeipata nyaraka yangu. Sikuapa kwa WakiH au mahakani kama nyaraka zangu ziHzopotea nimeziona' Exhibit P4 depict was delivered on 10/02/2021 post recovery of exhibit Kill. DW1 did not make any application to Hon P.I. Chinyele who was the presiding Chairperson for the alleged discovery. Even when he was declared a trespasser to the suit land, the Second Respondent did not seek for review of the judgment in exhibit P4 based on the ground of recovery of new important and crucial document for determination of his right. Even when he preferred an appeal to this Court in exhibit P5, there was no ground for leave to add additional evidence. This suggest that exhibit KU1 is a fabricated document calculated to prejudice the right of the Appellant ownership to the suit land. On a further bid to prove that he is having a good title to the suit land, the Second Respondent tendered property rates bill for the year 2011 from 17 Tanzania Revenue Authority, property tax demand note 2009/2010 date l 1/09/2010 and property tax demand note 2013/2014 dated 02/05/2014 from Temeke Municipal Council, exhibit KU2 collectively, vindicating that he used to pay property tax up to the 2015. In fact, this is a concocted fact calculated to circumvent the takeover by the Appellant of the rest of un-trespassed land, whose the Second Respondent bragged to had gave the Appellant upon the former retiring from the army. It is unbelievable that someone who bragged under oath to have not been at school, failed even to complete STD VII, unable to tell his means of income, business or occupation, could volunteer to offer his property to the army officer who is returning from the UN mission and with an award of medal as a recognition for his service and having about to pocket his retirement benefit. And who (Second Respondent) up to 1989 and 1990 afterwards was hosted to Jeremiah Mafuru Mukoi (PW1). Above all, the Second Respondent did not explain as the handing over of the remained portion of land was a gift, out of love and affection or else under what consideration. It is the law that every disposition of land must be accompanied by a consideration unless it is a gift between the donor and donee. Herein during that period the situation was escalating to a dispute in court, meaning the question of donor and donee, could be ineffective among the rival brothers. No 18 wonder the Second Respondent was unable to tell its consideration, given the situation at hand. Section 25 of the Law of Contract, Cap 345 R.E. 2019, (with its long margin note, agreement without consideration, is void, unless it is in writing and registered; or is a promise to compensate for something done; or is a promise to pay a debt barred by limitation of law), provide, I bold a portion of interest to me, '(1) An agreement made without consideration is void uniess- (a) it is expressed in writing and registered under the law for the time being in force for the registration of documents, and is made on account of natural love and affection between parties standing in a near relation to each other; (b) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or (c) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, in any of the cases under paragraphs (a), (b) and (c), such an agreement is a contract. 19 (2) Nothing in this section shall affect the validity, as between the donor and donee, of any gift actually made. (3) An agreement to which the consent of the promisor is freely ' given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the court in determining the question whether the consent of the promisor was freely given' Arguably, exhibit P2 was not signed by the vendor Salehe Madenge instead it was signed by Juma Madenge (sibling) who indicated to had signed on his behalf. However, there was explanation to this situation. PW3 stated that the late Salehe Madenge was aging and illiterate. Indeed, Yusuf Salehe Madenge (DW2) confirmed that his father Salehe Madenge passed away on 14/08/1998, being two years after disposing the suit land. Importantly, DW2 asserted the following facts, 'Juma Madenge aiimiiiki eneo ia kwanza kwa kurithi kwa baba yake yeye pamoja na Salehe Madenge, Mgeni Madenge na Saudi Madenge. Ndipo waiigawana wawiliwawili na baadae wakayauza na kwa upande aliuziwa Fank Mareale' Also Mohamed Omari Kalokola (PW2) on cross-examination by Mr. John Lingolpola learned Counsel for Respondents, asserted that, 'Wakati muuzaji na mnunuzi wanaonyeshana mipaka walinitambulisha jIrani yangu ndugu Malima. 20 Wakati wa kuonyeshana mipaka waiikuwepo Salehe Madenge, i Juma Madenge, Said Madenge na Mgeni Madenge. j i Sikuuiiza kwa nini aHesaini ni Juma Madenge wakati muuzaji ni Salehe Madenge kutokana na uzoefu wa mkataba wangu aiieniuzia ni Salehe Madenge na aHesaini mkataba wangu ni j Juma Madenge' On re-examination, PW2 stated that, 'Kwa mkataba wangu mimi hauna tatizo lolote. Walikuwa wanamteua anaejua kusoma na kuandika. Salehe Madenge hakua na uwezo wa kusoma na kuandika' What I have grasped above, the title of Salehe Madenge and kindred was derived from their father by way of inheritance. In that way, it was okay for Juma Madenge to sign on behalf of his brother one Salehe Madenge who was illiterate. The question by the Tribunal where asked DW2 as to whether Salehe Madenge was literate, to my view, this question prejudiced the Appellant's case, as was intended to rebut the position by PW2 and PW3 who asserted that the old man was illiterate and was always avoiding to sign. j The provision of section 148 Cap 345 (supra) with its margin, right of person as to acts done for him without his authority and effect of ratification, referred by the learned Counsel for the Respondents, provide, 'Where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to ! 21 disown such acts and if he ratifies them, the same effects will follow as if they had been performed by his authority' To my view, this provision is relevant in the situation where something is done i by someone behalf without knowledge and authority of that person, it is when the person whose the act was done on his behalf may either ratify or refute it. Herein, all witnesses for the Appellant, to wit Jeremiah Mafuru Mkoi (PW1), Mohamed Omari Kalokola (PW2) and PW3 all asserted that Salehe Madenge was present during the execution of exhibit P2 and is the one who exhibited bounderies of the suit land to the Appellant including introducing the Appellant to PW2. Therefore, the question of ratification is inapplicable. Equally neither DW2 nor Zainabu Sefu (deceased) alleged wife of the late Salehe Madenge, can query exhibit P2 under the provision of section 148 Cap 345 (supra). This is for reason that the said provision is exclusively a defence in person for the one whose act was done on his behalf. A third party cannot challenge a deed under a ground of ratification. I therefore hold that the Appellant had a good title vide exhibit P2. Exhibit Kill is invalid. Consequently, the Second Respondent had no title to pass to the First Respondent. Therefore exhibit KU4 is of no legal effect as far as ownership of the suit land is concerned. In that respect the First and Second Respondent are i i | 22 declared trespassers to the suit land measuring thirty five paces length and । thirty five paces width situated at Vijibweni Hamlet/Ward part of exhibit P2. j The above adumbration takes into board, ground number two as well. Ground number three, this ground was lodged without sufficient ground of complaint. This because the proceedings in Application No. 53 of 2018 has nothing to do with the case at hand. This was a fresh suit. Therefore, the order in exhibit P5 was not meant to bind the future proceedings between parties. Indeed, nowhere in the said exhibit P5 this Court said or ordered that in the future proceedings the Tribunal should ensure visitation to the locus in quo. bs alluded by the learned Counsel for Respondent visiting the locus in quo is ordinarily restricted to the situation or in exceptional circumstances where the Tribunal form an opinion either at its own accord or upon application and request by parties to the suit, that visiting the site is vital for purpose of ascertaining the state, size, location, features, marks of the premises or property in question. Consequently, the decision of the Tribunal is quashed and orders emanating therefrom are set aside. The First and Second Respondent are declared trespassers to the suit land. The Appellant is declared the lawful owner of the suit land measuring thirty five paces length and thirty five paces width situated 23 at Vijibweni Hamlet/Ward part of exhibit P2. The First Respondent is ordered to demolish his house and whatever structure at the suit land at his own costs. The appeal is allowed. Given the nature of the dispute, I find its desirable to 24