kiyungi

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA LAND CASE NO. 14 OF 2022 NASSORO HAMIS KINYUNGI.................. .....................PLAINTIFF VERSUS JUMA HAMIS @MZUNGU..... .. ........................Ist DEFENDANT SHABANI MLEGA................. .................... ..............2ND DEFENDANT KHADIJA MBOGO....... ......... ........ ...3rd DEFENDANT SALIMU MECCO.................. .4th DEFENDANT ABUBAKARI SHABANI........................ ....5th DEFENDANT ABRAHAMAN SELEMANIIDDY .....6th DEFENDANT TATU MUNDE.............. 7th DEFENDANT BONIPHACE BAHEZWA.... .............. ..............8th DEFENDANT UWEZO YUSUPH ............... ...........9th DEFENDANT YASINI MADARAKA PETRO............. .......10™ DEFENDANT AWADHI ALLI KHAMISI......... ................ ....... ......11™ DEFENDANT JUDGEMENT Last Order date:24/05/2024 Judgement date: 20/08/2024 1 MANGO, J The Plaintiff instituted this suit contesting ownership of a piece of land measuring 7350 square metres located at Kidongo Chekundu Ward, formerly Ng'ambo Ward in Tabora Municipality. He alleges to have acquired ownership over the disputed land by purchasing the same from Juma Hamis @Mzungu. The said Juma Hamis passed on during pendency of this matter and he had not filed any statement of defence before his death. Unfortunately, his family did not appoint an administrator for his estate as a result, the Plaintiff prayed to remove the name of Juma Mzungu in the list of defendants in this case the prayer which was granted by the Court on 4th September 2023. The suit also proceeded ex parte against the 3rd and 5th Defendants after their non- appearance despite being served with Court summons via publication. In prosecuting this matter the Plaintiff was represented by Advocate Kelvin Kayaga, Advocate Flavia Francis represented the 2nd, 4th, 7th, 8th, 9th and 10th Defendants while the 6th and 11th Defendants prosecuted the case in persona. The Plaintiff had two witnesses himself, PW1, and one Twaha Kiswagala who testified as PW2. According to Plaintiff's testimony, he purchased the suit land from Juma Mzungu on 17th March 2011. He mentioned persons who witnessed the sale agreement between him and Juma Hamis Mzungu. The mentioned witnesses include the street chairman of the area namely Abasi Malifedha, Twaha Kiswagala arid Adam Rashid. PW1 Stated that he purchased the land at different times. For the first time, he purchased one acre from Juma Hamis Mzungu. He described the one acre to be bordered by a road to Sikonge on the Eastern part, Southern part by a road which 2 cross electricity poles, Northern and Western part the land was bordered by undeveloped land. He purchased a second portion of land measuring 0.5 acres on 3rd September 2011. He alleged that, the sale was executed between him and Awadh Ramadhani, the 11th Defendant, on behalf of the said Juma Hamis Mzungu. He stated that, the second agreement was witnessed by the tencell leader namely Fundikira Musa and he had two witnesses to the transaction namely George Masanja and Haruna. It was the Plaintiff's testimony that, he later formalized the two agreements by drawing a separate document titled "Hati ya Kukazia Mkataba wa Kuuziana Shamba la Ekari 1.5/zwhich can be translated as Confirmation of Agreement for sale of a farm measuring 1.5 acres. The document dates 4th February 2015. He tendered the three agreements as evidence and they were all admitted and marked collectively as Exhibit Pl. It was his further testimony that, the Defendants trespassed into his land. PWl's testimony is collaborated by PW2's testimony who stated that, he witnessed the sale transaction between the Plaintiff and Juma Hamis Mzungu and was actually the person who wrote the agreement dated 17th March 2011. He stated that, on the date the agreement was executed, the Plaintiff paid Juma Hamis Mzungu TZS 400,000/- as part payment of the purchase price which was TZS 700,000. According to him, that is the only agreement between Juma Hamis Mzungu and the Plaintiff that he witnessed. He added that, he has not witnessed the Plaintiff paying the remainder purchase price to Juma Hamis Mzungu. 3 The Defendants did not raise any counter claim thus, their duty was limited to defending themselves against the claims raised by the Plaintiff. All Defendants disputed the allegations contained in the plaint and Plaintiff's testimony. According to them, the Plaintiff purchased only 0.5 acre from Juma Hamis Mzungu and he did not pay the purchase price in full. Tatu Munde who testified as DW1 stated that she also purchased a piece of land measuring 0.5 acres from Juma Hamis Mzungu on 23rd June 2011. She testified further that, she sold the land to Boniface Bahezwa and she tendered the said agreement which was admitted as Exhibit DI. Boniface Nyamtema Bahezwa testified as DW2. He confirmed to have purchased the land from DW1 on 5th August 2011 at Tshs 700,000/- the price at which she purchased the land from Juma Hamis Mzungu. He tendered the sale agreement between him and Tatu Munde which was admitted as Exhibit D2. According to him, he then sold part of his land to Yasini at Tshs. 800,000/- the fact which was not disputed by the said Yasini Madaraka Petro who also tendered a sale agreement executed between him and Boniface Bahezwa as Exhibit D4. Uwezo Yusufu Issa who testified as DW4 alleged to have purchased the land from Yasini Madaraka on 8th February 2015 and he tendered a sale agreement to that effect as Exhibit D5. Salum Hamis Shomary, DW5, alleged to have purchased his land from Abrahman on 16th May 2014. And he tendered the agreement as exhibit D6. Shabani Rashid Mlenga purchased his land from three persons, Awadh Juma, Juma Hamis Mzungu and Hadija Mbogo. He tendered the sale agreements in respect of the three transactions as Exhibit D7, D8 and D9 respectively. He then surveyed his land and he now holds a certificate of title No. 15862 and the land has been demarcated as Plot No. 882 and 883. The Certificate of title was tendered as Exhibit DIO. Abrahman Selemani Iddy the 6th Defendant testified as DW7. According to him the land in dispute was their family land and it did not belong to Juma Hamis Mzungu as his personal property. The land was inherited from their fore fathers. He was given the land he sold to Salum Hamis Shomary and Khadija Mbogo by his father in the year 1998. According to him, Juma Hamis Mzungu was his uncle, his father's young sibling. A similar testimony was given by DW8, Awadh Ally Hamis, the 11th Defendant. He sold his land to Shabani Mlenga. He disputed to have executed any sale agreement with the Plaintiff on behalf of Juma Hamis Mzungu. DW9, Enca Mwiru Kwemeya raised a concern on the correctness of the agreement tendered as Exhibit Pl in respect of the size of the land purchased. According to her, the land purchased by Nassoro Kiyungi cannot be 1.5 acres. According to her, four teachers namely Tatu Munde, Nuru, Kiyungi and herself purchased pieces of land from the late Juma Mzungu. Each of them purchased 0.5 acres of land and their pieces of land bordered one another in the following manner. Kiyungi's land which measured 35 steps was the first one then followed a piece of land with the same measurement that was purchased by her, then another piece of land purchased by Tatu Munde and then the last plot was purchased by Nuru Shabani. She stated that, if the contents of Exhibit Pl, the agreement that dates 17th March 2011 are correct then, neither her, Tatu Munde nor Nuru had any land in the area. She agreed that she does not own any piece of 5 land in the area as she failed to top up the purchase price after variation of the purchase price by Juma Hamis Mzungu's children. DW10 Abbas Masood Malifedha, chairman of Mbilani street from 2010 to 2015 testified to the effect that he witnessed a sale agreement between Tatu Munde and Juma Mzungu and then an agreement between Tatu Muncie and Bahezwa. He denied to have witnessed the sale agreement between the Plaintiff and Juma Hamis Mzungu. He alleges that, the document does not bear his signature. He strictly insisted that, the signature and handwriting contained in the sale agreement is not his. Ramadhani Yasini Kombo, DW11 testified to the effect that the land in dispute was formerly a family land of the 6th and 11th Defendants as stated by the two Defendants. He stated that, he used to see Mzee Selemani Iddy growing some crops in the disputed land. He mentioned Ally Hamis to be among the fathers of the 6th and 11th Defendant. That was all from the parties It is an elementary principle of evidence that, he who alleges must prove as provided under section 110 of the Evidence Act, [Cap. 6 R.E 2022]. Since the Defendants raised no counter claim, it was the Plaintiff's duty to prove his case on balance of probability. Among the basic evidence that was tendered by the Plaintiff was the agreement that was executed on 17th March 2011 between him and the said Juma Hamis Mzungu. The agreement indicates that, he purchased a piece of land measuring one acre and the land is located between Kizigo Primary School and New Era Secondary School. The genuineness of this agreement was disputed by the Street chairman, Abbas Malifedha who said the signature therein is not his, Mwl Enca Mwiru 6 who doubted the genuineness of the agreement as to the size of the land and Awadh Ally Hamis who doubted if the Plaintiff has paid the remainder purchase price. In his efforts to prove that he paid the purchase price in full, the Plaintiff tendered a sale agreement the second part of the agreement indicates that on 4th April 2011 the Plaintiff paid TZS 100>000/- as part payment of the remainder purchase price and on 1st December 2011 he paid TZS 200,000/- as the final payment for the land. The two payments were allegedly witnessed by Rashid Adam and Juma Omari respectively. I noted that the signatures of the said Juma Mzungu in the three parts of the agreement that dates 17th March are different. While in the first part executed on 17th March 2011, he inserted his thumb print, in the second part that was executed on 7th April 2011 and third part executed on 1st December 2011 he signed by inserting his names. It is not clear why the said Juma Hamis Mzungu decided to use two different signatures in a single agreement. Despite such doubts as to genuineness of the Vendors signature, one of the witnesses, Abbas Malifedha who was the street chairman alleged to have witnessed the agreement tendered as Exhibit Pl disputed to have a hand in the document. Unfortunately, the Plaintiff did not bother to summon as witnesses in this matter, the said Rashid Adam and Juma Omari who allegedly witnessed the sale agreement for the purchase of land between the Plaintiff and the late Juma Hamis Mzungu as his witnesses in this matter. I am of a considered view that the two witnesses were key witnesses on the part of the Plaintiff since they would have assisted him in proving the alleged 7 purchase of land from Juma Ham is Mzungu and fully payment of the purchase price. The same Applies to the agreement that dates 3rd September 2011 which indicates that Awadh Ally sold a half an acre of the land to the Plaintiff on behalf of Juma Ha mis Mzungu, together with the subsequent document that dates 6th September 2011 which was allegedly executed when the Plaintiff paid the reminder purchase price to Awadh. The two documents were vehemently disputed by Awadh Ally Hamis. However, the documents were not executed without witnesses. The two documents indicates that they were also witnessed by George Masanja and Haruna together with Balozi Fundikira Mussa. The names of Balozi Fundikira also appears in the subsequent document which was allegedly sighed by Awadh and the Plaintiff on the 6th September 2011 when the Plaintiff paid the remaining 100,000/“ of the purchase price. In the confirmation of the agreement for sale of a farm measuring 1.5 that dates 4th February 2015 the names of Godfrey J Schalula appears as a witness to the agreement. Despite existence of all those witnesses to the agreements tendered by the Plaintiff, the Plaintiff never testified oh the whereabouts of the witnesses who witnessed the documents through which he allegedly acquired ownership over the disputed land. It is trite law that failure to call principle witnesses may render the Court to draw adverse inference against the party that, had the witnesses being summoned they would have testified against the party which did not opt to summon the witness. Circumstances in this matter especially after the Plaintiff decision to remove the name of Juma Mzungu from proceedings and his alleged death required, 8 the Plaintiff to summon these principle and neutral witnesses to prove that he indeed purchased the disputed land from the late Juma Hamis Mzungu. His failure makes this Court to draw adverse inference that had the witnesses being summoned they would have testified against the Plaintiff as what Abbas Malifedha did. The Court when faced with a similar scenario in the case of Hemedi Saidi vs Mohamedi Mbilu [1986] TZHC 15 (5 July 1986) insisted that the duty to call witnesses is not for the Court but for the party who wants to be believed in his story and win the case. It also held that, in case of a party's failure to call material witnesses, the Courts are entitled in law to draw an inference that if these witnesses were called, they would have given evidence contrary to the party which did not summon a particular witness. Also, the Court of Appeal in the case of Maria Amandus Kavishe vs Norah Waziri Mzeru & Another (Civil Appeal No. 365 of 2019) [2023] TZCA 31 (20 February 2023) held that: "When the appellant tendered exhibit Pl, she testified that it was issued by CW1 and witnessed by Said Mohamed @ Mtimkavu and Said YusufuJohora but she did not summon the saidpeople to testify at the trial to prove that fact and no reasons were explained for that failure. Such failure, in our view, entitles the trial court to draw an adverse inference against the appellant." In addition, even if the alleged purchase would have been proved within the required standards, the sale agreements do not describe adequately the land purchased by the Plaintiff. The agreement that dates 17t:> March 2011 states that, the land measuring one acre is located between Kizigo and New Era schools. The agreement that dates 3rd September 2011 indicates that it 9 concerns the land located at Mbilani area. The Confirmation of Agreement document that dates 4th April 2015 the area is described to be a farm located between Kizigo Primary School and New Era Secondary school. The Plaintiff did not adduce any evidence to establish that the entire area between the two schools is only one and a half acres and it all belonged to Juma Mzungu. In actual sense, the Plaintiff has not anyhow established Juma Hamis Mzungu's title over the disputed land so as to establish that title passed by Juma Hamis Mzungu to him is a good title. Having said all that, I find the Plaintiff to have failed to prove ownership over the disputed land on the required standard and the suit is hereby dismissed with costs. Dated at Tabora on this 20th August 2024 Z. D. MANGO JUDGE 10