20130806 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) ATDODOMA MISC. LAND CASE APPEAL NO. 1 OF 2012 (From the Decision of the District Land and Housing Tribunal of Dodoma District at Dodoma in Land Appeal no. 94 of 2010) CHARLES MAGUNI ......................... APPELLANT VERSUS PETER PAULO MTUNYA ................. RESPONDENT JUDGMENT 06-06-2013 & [iY!iIZII1E] R. K. MKUYEJ.: This is a second appeal. The appellant Charles Maguni had lost the case at Nzuguni Ward Tribunal on a matter involving a piece of land whose ownership was being claimed by the appellant on one side and the respondent on the other side. The Ward Tribunal found the respondent to be the lawful owner of the disputed land. His appeal to the District Land and Housing Tribunal proved futile and hence, he has filed his petition of appeal with a total of three grounds of appeal of which after examining them and according to I the appellants' submission in court, only one ground emerges, which is to the effect that, the District Land and Housing Tribunal failed to examine the documentary evidence of the sale agreement which was presented in the Tribunal. The case for the respondent was that he had acquired the disputed piece of land since 1972 as a family land. In 2008, he (respondent) applied for and was issued with a Certificate of Customary Right of Occupancy (Hati miliki) whereby he was allocated Plot No. 583. That the disputed land belonged to him (respondent), or that it was allocated to the respondent's family since 1972 was supported by the evidence of Manyesela Mseude (SU2) who lived with Mtunya's family and Andrea Msihi (SU3) who was their neighbour. The case for the appellant, on the other hand, was that he bought the piece of land from Selina Mtunya, who was the respondent's sister in law in 2004 at shs. 20,000/= where upon the transaction was reduced into a sale agreement before a cell leader, one Daudi who then advised them to certify it at the village authority level. SM2, Daudi Kapaya, told the tribunal that he did not have a mandate to allocate land or to conclude sale agreements thereof. He thus advised them to finalize their transaction at the village authority level. Emi Lengai (SM3) said that the appellant bought the piece of land from Selina and the two were advised by SM2 to verify their sale agreement at the village authority. But all the three 2 Id witnesses SM2, SM3 and SM4 did not know what transpired at the village authority level. As stated earlier, the appellants' main complaint is that the first appellate tribunal did not examine and consider the sale agreement concluded at the village authority on 12/12/2008 after having purchased the suit land from Selina Mtunya and obtained an unauthenticated sale agreement concluded before the cell leader on 11/12/2008. He contented further that though the sale agreement was produced before the Ward Tribunal, it was removed from the case file. It appears that the appellants' complaint is on the agreement tendered at the Distriót Land and Housing Tribunal and not the sale agreement drawn at the Ten cell leader. It is apparent in the record that the purported sale agreement concluded at the ten cell leader was rejected by the trial Ward Tribunal and the District Land and Housing Tribunal upheld that position, and rightly so in my considered view, because it had no signatures of the vendor, purchaser and the witnesses thereof. On top of that, it did not have the village authoritys' stamp affixed to it. In my opinion, such an agreement without a signature albeit by way of a thumb print and the village authoritys' stamp had nothing to show its authenticity. If at all the sale transaction was genuine it was expected that the vendor, purchaser and the witnesses would have signed it and the village authority would have stamped it. 3 c Otherwise, if would have made no sense for the witnesses to witness the sale transaction without authenticating the witnessing. But again, the village stamp was crucial to authenticate the transaction as genuine. The importance of village authoritys' involvement is two fold. This is because the village council is vested with legal roles pertaining to matters relating to land through, one approvals to allocate land to various people; and two, allocation of land to people through its committee. SM2, one Daud Kapaya who was a cell leader denied to have had a mandate to allocate land and to verify sales agreements. This means that even the purported sale agreement that was concluded before the ten cell leader had no probative value/evidential value. And with that said, I find that the lower tribunals rightly rejected the purported sale agreement. I now turn to the sale agreement complained to have not been considered by the District Land and Housing Tribunal, which is alleged to have been removed in the case file, thus denying his (appellant) rights. The District Land and Housing Tribunals' record shows that among the appellants' complaint was that the Ward Tribunal failed to consider the sale agreement made before the village authority. 4 ti' I was, however, unable to see the said document in the Ward Tribunal's record/proceedings. Also none of the witnesses has led evidence to that, effect. Nevertheless, it is revealed in the DLHT's record that the appellant had attached the sale agreement purportedly concluded at the Village Authority to his written submission prepared by him following the Tribunal's order that the appeal be argued by way of written submission. Assuming that, that is what he meant, and I think this is the gist of his complaint, then in my view, the District Land and Housing Tribunal rightly ignored it as it was brought contrary to the rules of procedure. The law governing annextures to the written submissions was well articulated in the case of Tanzania Union of Industrial and Commercial Workers (TUICO) at Mbeya Cement Company Ltd V. Mbeya Cement Company Ltd and National Insurance Corporation (1) Ltd (2005) TLR 41 at 42 where it was held: "it is now settled that a submission is a summary of arguments. It is not evidence and cannot be used to introduce evidence. in principle all annextures, except extracts of judicial decisions or text books have been regarded as evidence of facts and, where there are such annextures to the written submissions, they should be expunged from the submission and totally disregarded". 11 After having being guided by the above authority, since in this case the said agreement was attached to the written submission, it means it introduced new evidence. As such, I hold that the DLHT rightly discarded it and even now I expunge it. It does not deserve to be accorded any weight even at this stage. That notwithstanding, the complaint that some documents were removed from the case file is a serious allegation which cannot be left unattended. To my understanding the court record is believed to contain exactly what has transpired in court. Fortunately, this issue is not a novelty in our jurisdiction. It was held in the case of Halfan Sudi V. Abieza Chichili (1998) TLR 527 that: "A court record is a serious document; it should not be lightly impeached... There should be always a presumption that a court record accurately represents what happened". I see no evidence from the appellant that rebuts, leave alone that tries to rebut the aforesaid presumption. Otherwise, it seems to me that the appelaints' allegation is a mere afterthought. All in all, after having gone through the entire evidence in this case, I find and still find and hold that the respondents' evidence weighs heavier than that from the appellants' side. In other words, the respondent together with his witnesses managed to prove on the balance of probabilities that he acquired the disputed land in 1972 1-4 where upon in 2008 he was allocated Plot No. 583 and issued with Certificate of Customary Right of Occupancy (Hati Miliki). In the final analysis, 1 find the respondent to be the lawful owner of the disputed land and as such the appeal is hereby dismissed with costs. - K. MKUYE) JUDGE 6/8/2013 Right of appeaMs explained. /AON C1011P ff K. MKUYE) V V JUDGE V j 6/8/2013 Delivered in the presence of the appellant and respondent. _c- ç T: A ~ A / r $ (R. K. MKUYE) JUDGE -r I 6/8/2013 7