charles kagaruki vs godfrey mngenya 2018 tzhclandd 31 16 february 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 97 OF 2015 {From the Decision o f the District Land and Housing Tribunal o f KinondoniDistrict at Kinondoniin Land Application No. 501 o f2006) CHARLES KAGARUKI......................................APPELLANT VERSUS GODFREY MANG'ENYA................................... 1st RESPONDENT JUDGMENT 21/11/2017 & 16/2/2018 MZUNA. J.: Mr. Charles Kagaruki the appellant lost before the District Land and Housing Tribunal as opposed to Mr. Godfrey Mang'enya. Parties were disputing on ownership of land measuring about 2 Vi acres being and situated at Boko kwa Mpemba. Godfrey Mang'enya alleged that he bought the said plot from one Ibrahim Mganga on 3/8/1994 for Tshs 270,000/- as evidenced by the sale agreement exhibit PI. That evidence was given weight by the seller Ibrahim Mwinyijuma Mganga (PW2). On the other hand the respondent alleged that he purchased the suit land on 1st June 2002 from one Sylvester Ruta for Tshs 800,000/-. Despite the fact that he did not tender the sale agreement, however he summoned i Mr. Salvatory Mathew Shayo (DW2) the cell "Kitongoji" leader and No. E. 4202 CPL PlayGod Mshana (DW3) who posed as a witness instead of seller. The District Land and Ward Tribunal found in favour of the respondent based on the fact that he was the first to purchase the suit plot, tendered the sale agreement as opposed to the respondent. Hearing proceeded by way of written submissions. In this appeal there are two grounds of appeal. First, Mr. Mboje the learned counsel from Ottoman Attorneys argues that the sale agreement being an important exhibit was not received and recorded for undisclosed reasons. Second that the evidence of the appellant's witnesses were not considered. Reading from the submission of the learned counsel for the appellant, it is argued that the sale agreement was tendered but ignored. Second that the mere fact that the appellant never summoned the vendor could not be a ground to disbelieve his evidence otherwise the learned Chairman had in mind that there was required a number of witnesses required to prove a certain fact while it is clear that evidence should be weighed not counted. He cited section 143 of the Tanzania Evidence Act, Cap 6 RE 2002 to support his argument. On her part, Ms. Mgoi from Apex Attorneys Advocate who represented the respondent strongly opposed to this appeal. The learned counsel submitted that the allegation that the appellant brought his exhibit which they say was not considered is not true. Second that on the balance of probabilities, the evidence adduced by the respondent was much heavier than that of the appellant. She prayed for this appeal to be dismissed. 2 I am thankful to the submissions from the learned counsels. The whole case the way I see it is based on credibility and reliability of the witnesses. Reading from the evidence it was the respondent who upon seeing the trespass on the land by one Fatuma who was doing construction learnt from her that she bought the plot from the appellant. He decided to report the matter to the Village Authority about the trespass on the land in 2009. He was advised to report to the relevant Tribunal of which he did. He tendered the sale agreement and witnesses thereto. The allegation by the appellant that he tendered his document (sale agreement) but was ignored is not true. The record shows that at one time his document was rejected for being a photocopy. On another date after some adjournment he informed the Tribunal that he gave the document to the Clerk who said does not remember to have received it. On another date 9th June 2011 the said appellant never touched on that exhibit instead said that 7 do not have more words to speak"consequently cross examination followed. The allegation that it was tendered is unfounded and unsupported from the record. Now on the evidence. Reading from the adduced evidence of PW4 Charles Msongela, Street Member who signed the respondent's sale /purchase agreement on behalf of the Street Chairman said was told by the respondent that it was Fatuma who trespassed and had in fact built a foundation thereon. She in turn said purchased it from the respondent who said bought if from Sylivester Rutta who is said to be dead. It is not stated why the said Fatuma was not joined in the case. 3 It was held in the case of Juma B. Kadala vs. Laurent Mnkande [1983] TLR 103 (HC) that: "In a suit for the recovery o f land sold to a third party, the buyer should be joined with the seller as a necessary party defendant; non-joinder will be fatal to the proceedings." I have the same view. Non joinder of the buyer one Fatuma with the seller, the appellant as necessary party defendant was fatal to the proceedings. The logic is simple. Even if one can dismiss the appeal still the rights of the said Fatuma had not been determined as an interested party who was not even summoned as a witness. In other words she will not be accorded chance to be heard which is one of the cardinal principles in natural justice. That being the case, I order for a re-trial before another Chairman sitting with another set of Assessors so that the trespasser one Fatuma be joined as the defendant along with Charles Kagaruki as the necessary party. For the above stated reasons, this appeal would otherwise fail but is allowed on very technical reasons. The judgment of the District Land and Housing Tribunal is accordingly set aside. Each party to bear its own costs. 4