DORIS KATABARO SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 13962 OF 2024 (Arising from the judgment and decree of the District Land and Housing Tribunal for Ubungo in Land Application No. 58 of2023 delivered on lffh April2024- Hon. J.M. Bigambo - Chairman) DORIS DONATIANI KATABARO....................................APPELLANT VERSUS JOHN RUTAGWABA....................................................................... 1stRESPONDENT EDWARDINA ISHEBAKAKI........................................................... 2ndRESPONDENT THEODOSIA KALEMELE................................................................ 3rdRESPONDENT JUDGMENT 9h & 3ffh October, 2024 L, HEMED, J. The Appellant herein is the one who instituted the suit at the District Land and Housing Tribunal for Ubungo against the respondents herein. In the said suit which was registered as Land Application No. 58 of 2023, the Appellant was resisting the intended eviction from the suit house located at Kimara Baruti, Bucha - Ubungo Municipality. In her pleadings before the trial tribunal, she averred to be in lawful occupation of the suit landed property together with her husband (1st Respondent) since 2008. i The basis of her claim was that, she and the 1st Respondent purchased the suit premises from one Edwardina Edward Ishaba the daughter of the late Emmanuel Edward Kahangwa for TZS 15,000,000/= deposited in the CRDB Account in the name of Edwardina Edward Ishaba. The appellant alleged to have developed the suit property by renovating and building other two houses therein and that she has continued to live peacefully without any disturbance from any member of the family. The Appellant's further plea was that, her husband (1st Respondent) and members of the family have plotted to evict her from the suit landed properties. She thus knocked the gates of the trial tribunal where she sought for the following reliefs: - "a) A declaration that, The Applicant she should not be removed from the said house, (sic) b) A declaration that, the all respondents should acknowledge the purchasing amount paid/ deposited by the applicant by through the Edwardina Edward Ishab CRDB Bank account." (sic) 2 Before the trial tribunal, the matter proceeded exparte following the failure of the respondents to file defence and to appear despite being duly served. Having, heard the testimony of the Appellant who was the only witness during trial, the trial Tribunal found the Appellant to have failed to prove purchase of the suit landed property. It eventually dismissed the claims for want of proof. Aggrieved by the said decision, the Appellant is now before this court with an appeal on the following grounds:- "1) That the learned trial chairman erred in Law and fact for not considering the ownership of the disputed house belongs to the appellant and 1st Respondent. 2)That the /earned trial chairman erred in Law and in fact by failing to take into account the submitted receipt of the bank where the appellant put the money for the purpose of buying the house. 3 3)That the trial chairman erred in Law and in fact by not considering the whole evidence adduced by the appellant. 4)That the learned chairman erred in Law and in fact by making determination based on the facts not part of the evidence." Hearing of the appeal was done by way of written submissions which were filed promptly as per the directed schedule by the court. The submissions by the Appellant were drawn and filed by Consenta Boniface, advocate from Top Attorney while the respondents enjoyed the legal service of Mr. Thomas Eustace Rwebangira, learned advocate. The 1st ground of appeal was on the failure of the trial tribunal to consider that the suit property belongs to the Appellant and the 1st Respondent. It was the submission of the counsel for the Appellant that the learned trial chairman did not properly evaluate evidence on record because it showed that the Appellant and the 1st Respondent purchased the suit property from the 2nd and 3rd respondents for TZS. 15,000,000/=. The Appellant relied on the decisions in Leonard Mwanashoka vs Republic, Criminal Appeal No. 4 226 of 2014 and in Emmanuel Joseph Mahembwa vs Republic, Criminal Appeal No. 121 of 2022 where it was held that failure to evaluate evidence leads to bias decision. The 2nd ground of appeal was on the failure of the trial tribunal to take into account the submitted receipts of the CRDB Bank where the Appellant deposited money to buy the suit house. The learned counsel leveled blame to the trail chairman for not considering oral evidence of the appellant that she purchased the suit landed property. She relied on section 10 of the Law of Contract Act, Cap. 345 and the decision of the Court of Appeal in Engen Petroleum (T) Limited vs. Tanganyika Investment Oil & Transport Limited, Civil Appeal No. 103 of 2003, arguing that oral agreement is recognized under our laws. In her view, the payment/deposit receipts from CRDB Bank (exhibit Pl.) ought to have been considered as proof of the alleged purchase of the suit property. The learned counsel for the Appellant proceeded to argue that the learned trial chairman erred in law and fact by not considering the whole evidence adduced by the Appellant. According to the learned counsel, evidence of the Appellant was that the suit piece of land was purchased by the 5 Appellant and the 1st Respondent from the 2nd Respondent and 3rd Respondent, the adminstratrix of the estate of the late Emmanuel Kahangwa. She relied on the decision of Hemed Said vs. Mohamed Mbilu [1984] T.L.R 113, contending that her evidence was heavier for her to win the case. The arguments of the learned counsel for the Appellant in respect of the 4th ground was that, the trial chairman failed to consider that evidence on record showed that the Appellant, 1st Respondent and the 3rd Respondent entered into oral agreement to purchase the suit landed property. Reliance was put in the decision of the Court of Appeal in Maria Amandus Kavishe vs. Norah Waziri Mzeru and Another, Civil Appeal No. 365 of 2019 which envisages for parties and court to be bound by the pleadings. The Appellant ended up praying for the appeal to be allowed. In response thereto, the learned counsel for the respondents argued in respect of the 1st ground of appeal that the Appellant failed to prove that she purchased the disputed property. He was of the contention that a cardinal principal of law requires any disposition of land to be in writing. He relied on the decision of the Court of Appeal in John Martin Ndunguru vs Mustapha 6 Athuman Nyoni & Another, Civil Appeal No. 17 of 2021 arguing that in this matter no sale agreement was produced and tendered into evidence. In respect to the 2nd and 3rd grounds it was submitted that the alleged money was deposited in the personal bank account of the 2nd respondent who had no power to sell the disputed property of the deceased. He insisted that the Appellant failed to discharge the burden of proof and thus, the trial chairman was right when he decided that the appellant failed to prove her claim. With regard to the 4th ground, it was responded that the respondent was sued in her personal capacity and not as an administratrix. He added that, the alleged oral agreement was not proved before the trial tribunal. Having carefully gone through the rival submissions, it is now apt to determine the merit of the Appeal. To avoid repetition in determining the four grounds of appeal, I have decided to condense them into a question whether the Appellant managed to prove her case before the trial tribunal. It is trite law that incumbit probation qui dicit non qui negat. The principle that comes from the said maxim has been embodied under section 110(1) of the Evidence Act [Cap.6 R.E 2019], which provides thus:- " Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist." At the trial tribunal the Appellant who was heard exparte claimed of having purchased the suit property jointly with the 1st Respondent. It was thus the burden of the Appellant to prove that, truly she purchased the suit landed property jointly with the 1st Respondent. To prove the alleged fact of purchase of the suit landed property, the Appellant tendered exhibit 'Pl', which comprises of three pay in slips of CRDB Bank. The 1st pay in slip of 03/03/2007 shows that the amount of TZS 1,000,000 was deposited in personal account of one EDWARDINA EDWARD ISHABA, Account No. 01J2085175701. The 2nd pay in slip is of 01/09/2008, with information that the amount of TZS. 10,000,000/= was deposited into account No. 01J2508757900 - whose name of the Account is missing. The 3rd and the last pay in slip is of 19/09/2008 revealing that the amount of TZS. 1,000,000/- was deposited in account No. 01J2085175701, bearing the name of EDWARDINA EDWARD ISHABA. According to the above pay in slips, only TZS. 2,000,000/= were deposited in the account of EDWARDINA EDWARD ISHABA. The amount of TZS 8 10,000,000/= seems to have been deposited in another account number whose name has not been shown. I have noted that, the pay in slip do not show the purpose of the money deposited. If at all the money paid was for buying the suit landed property then it would have been indicated so. Furthermore, EDWARDINA EDWARD ISHABA was not made a party to the proceedings before the trial Tribunal nor was she called to testify if the the money that was deposited into her account was for purchasing the suit land. The Appellant did not also call the owner of account No. 01J2508757900 to tell the trial tribunal if the amount of TZS. 10,000,000/- deposited into her/ his account was for buying of the suit landed property. In the pleadings and testimony before the trial tribunal, the Appellant alleged that she purchased the suit landed property together with the 1st Respondent, her husband. However, the said person was never called by the Appellant for him to substantiate the claims of the Appellant. In my firm view, the owners of the accounts in which the money was deposited and the alleged co-owner, were material witnesses to support the Appellant's case. In Hemedi Saidi vs Mohamedi Mbilu [1984] TLR.113, the Court had this to say:- 9 " Where, for undisclosed reasons, a party fails to call a material witness on his side, the court is entitled to draw an inference that if the witnesses were called they would have given evidence contrary to the party's interests." [Emphasis added] In the present matter, the Appellant never called not only the persons whose accounts received money but also the alleged co-owner. In the circumstance of this case, the trial tribunal was entitled to draw an inference that, if those persons would have been called by the Appellant, the would have testified to the contrary. Therefore, the fact that the said pay in slip do not indicate the purpose for which the money was deposited in the accounts aforesaid, the said pay in slip cannot be a proof for purchase of the suit landed property. As previous said, before the trial tribunal, the Appellant was claiming to have purchased the suit landed property but she never tendered sale agreement into evidence. I am on the same page with Mr. Rwebangira, learned advocate of the respondents that a cardinal principle of law requires any disposition of land to be in writing. This principle was echoed in John 10 Martin Ndunguru vs. Mustapha Athuman Nyoni and Another, Civil Appeal No. 17 of 2021 thus:- "...the second respondent could not have proved the alleged disposition through ora! evidence. She could only do so by tendering the alleged written sale agreement. The absence of that agreement, therefore, defects her claim of acquisition of title through the so called purchase. z/[ Emphasis added] The requirement of disposition of right of occupancy being in writing has also been insisted under section 64(1) (a) & (b) of the Land Act [Cap.113 RE 2019], thus: - "64,-(l) A contract for the disposition of a right of occupancy or any derivative right in it or a mortgage is enforceable in a proceeding only if- (a) The contract is in writing or there is a written memorandum of its terms; (b) The contract or the written memorandum is signed by the party against whom the contract is ought to be enforced." In the light of the above authorities, there is no way the Appellant could prove to have purchased the suit landed property. In that regard, I find the trial chairman to be justified to find the Appellant to have failed to prove purchase of the suit landed property. Moreover, evidence on record shows that the Appellant had adduced that the suit land belonged to the late Emmanuel Kahangwa and that Theodosia Ndibalema was the administratrix of the estate of the late Emmanuel Kahangwa. Nevertheless, the 3rd Respondent was not sued in the capacity of administratrix of the estate as she has been sued in her personal capacity. In order to prove that the 2nd and 3rd respondents sold the suit property to the Appellant in the capacity of administrators of the estate, it was necessary also to prove that fact. According to the records of the trial Tribunal, the Appellant did not prove that the 2nd & 3rd respondents were administrators of the estate of the late Emmanuel Kahangwa never did she sued them in that capacity. In the absence of prove by letters of appointment of administration of estate, the 2nd and 3rd respondents could not have capacity to dispose of the suit landed property by sale to the Appellant and the 1st respondent. In Jaffer Almasik Karmali vs. Juma Ali Juma [2020] 1 TLR 419 the court held thus:- 12 "In land matters, a non-owner cannot sell and pass title to the buyer because of person does not sell that which does not belong to him." In the upshot, I find the appeal to have no merit. I proceed to dismiss the entire appeal with no orders as to costs. Order accordingly. DATED at DAR ES SALAAM this3Qth of October, 2024 ..THEMED 13