20160608 TZHC Mbeya

_ _&_4 ' tj ~ IN THE HIGH COURT OF TANZANIA = 911 (LAND DIVISION) AT MBEYA LAND APPEAL CASE NO: 25 OF 2014 (From the Judgment in Land Application No: 28 of 2012 of the District Land and Housing Tribunal for Rungwe District at Tukuyu) DAIJDI MWAKALINGA .. ............................ APPELLANT VERSUS THE REGISTERED TRUSTEES OF THE REDEEMED ASSEMBLIES OF GOD IN TANZANIA(RAGT) ......... RESPONDENT From the Judgment of the District Land and Housing Tribunal for Rungwe at Tukuyu, A. J. Majengo - Chairperson) Date of Last Order: 24.03.2016 Date of Judgment: 08.06.2016 JUDGMENT Dr. Mambi, J. The appellant one Daudi Mwakalinga was the 2nd respondent in the main Land Application filed by the Applicant one, The Registered Trustees of the Redeemed Assemblies of God in Tanzania (RAGT) at 1 ) Rungwe District Land and Housing Tribunal at Tukuyu, whereby his co respondents there were Uchaguzi Greyson Mwakabana and The Registered Trustees of the Revival and Healing Ministry Assemblies of God (T), as the 1st and 3rd Respondents respectively. In the District Land and Housing Tribunal for Rungwe, the appellant lost the case as the respondents was declared to be lawful owner of the property (land) in dispute. Aggrieved, the appellant has filed an appeal with five (5) grounds namely. 1. That Hon. Chairman made legal mistake by giving judgment the respondent of the ownership of land where he included his land. 2. That the Chairman did not take into consideration the documentary evidence tendered in tribunal as exhibits by the respondent, which differed with the testimonies respondent and his witnesses. The exhibits lacked essential elements like names, signatures and official stampsof leadersof the Village governments who wrote a sale agreement. The exhibit of the respondent from the face of records seem to be forged one, appeared on phase " KWA NIABA YA KANISA, KA TIBU WA KANISA" 3. That, the Chairman greatly, misdirected himself in his judgment, by; i) He failed to assess the testimony of AW3 Staili Hoji Isyani, whose testimony explained the buying transaction 2 of 2008, but in his judgment he relied on the buying ) transaction in 2004. ii) In thebuying transaction of 2004, was no done between Redeemed Assemblies of God (RAGT) and the vendor Mwangomo Mwandetele, but it was between Omary Mwakyagi and Daudi Mwakalinga. That, the Tribunal was not cautious in its judgment, since the appellant proved at the trial that, the land claimed by the appellant is his personal property as a Pastor and he was supported by DW 1, DW 4, and DW S. That, Tribunal failed to consider that, the appellant failed to consider that, there was no evidence that the appellant was given money to buy land on behalf of the Church. On 24th. 03. 2016, this court issued an order to the parties to file written submissions. The appellant started by filing his written submission, he just repeated what he alleged in his grounds of appeal. However, he materially submitted that, it was improper for the Tribunal to recall the witness Edom Mwamboneke who had already testified during the applicant's hearing case. He submitted that, the Tribunal failed to assign reasons how the respondent won the case without regarding the evidence of the appellant. 3 In response, the respondent through its Advocate the learned counsel Mr. Kyando, filed their long written submission in response to the appellant's appeal. In their submission they wished to maintain that the respondent's witnesses were genuine ones and impartial during the trial, compared to the evidence adduced on the by the appellant, whom they regarded as traitors, since he decided to move away from the Redeemed Assemblies of God-RAGT, and later established their own Church known as Revival and Healing Ministry. They thus submitted that their testimonies were tainted with bad will. The respondent continued to aver that, although the sale agreement does not bear the signature of the name of the Village Executive Officer, whom the respondent admits to be the one who drafted and witnessed the sale, the alleged defects had nothing to do with the validity of the sale agreement, because all questions were addressed before the tribunal and very well answered. The respondent testified that, the basing on the evidence of the vendor PW4 and the testimony of Village Executive Officer, who were not members of the church in the respondent's Church, and basing on the testimony of PW6, who witnessed as a secretary to the respondent's Church, in which the appellant was a Pastor, in no doubt the disputed area was purchased for the Church and not a personal property. The Tribunal suo motu summoned the last witness who testified that, it was the appellant and his group who followed him soliciting 4 him to do some alterations in the sale agreement to satisfy their ill motives. Further the respondent submitted that, in 2004, the time of purchase of the disputed area which forms part of the respondent's Church's premises/surroundings, the appellant was the respondent's Pastorentrusted to perform the work of God and who wasin control of all the Church's assets, including funds at the centre, that alone was enough to prove on balance of probabilitythat the disputed land was purchased for the respondent. In his rejoinder submission, the appellant argued that any document written by any leader of the Government e.g. (Village Chairman), involving any contract of sale, must bare signature of the one who prepared it and should be stamped, the thing which was not done in annexure RAGT-2.The appellant concluded by submitting that, the Tribunal did not properly consider the testimony of the appellant's evidence. Having summarized submissions from both parties let me now at this juncture analyze their arguments and determine the merit for this appeal. The Court has perused and considered both submissions from the parties including different exhibits which were tendered by parties at the Tribunal. The applicant produced 3 exhibits as RAGT-1, 2 and 3. RAGT-1 was sale agreement dated 09 1 h .05.2004, between Omary Jacob Mwakyagi and Redeemed 5 Assemblies of God (T), whereby Daudi Mwakalinga acted on behalf of the Church. The document indicates that the land was sold at Tsh.36'000/ -. The other key document produced was Exhibit RAGT-2,tender as a sale agreement dated 02nd .03. 2008 between Mwangomo Mwandetele and Waumini Kanisa la Redeemed Assemblies of God. This document shows that the land was sold at Tsh. 70'000/-. The applicant finally producedExhibit RAGT-3, which was a letter dated 12th .12. 2010 written by incognito person to "Askofu Uchaguzi Greyson Mwakabana" having the reference that, "MALI ZA MUNGU CHINI YA RAGT ULIZOONDOKA NAZO ULIPOJIONDOA RA GT". Like the applicant, the respondents during the trial, also tendered some exhibits. Whereas R- 1, was the decision of "Baraza la ardhi la kijiji" (Village land Council) dated o2nd .08. 2012 application no: 02 of 2012 between applicant Joseph Mwakalasa against Uchaguzi Mwakabana, whereby the council gave respondent the judgment, the other exhibit was a sale agreement dated 071h• October 1994, between Mwangomo Mwandetele, who sold a piece of land to one Uchaguzi. G. Mwakabana, at Tsh. 23'000/-. The respondent last exhibit was a letter from "Mwenyekiti wa Kifiji" cha Busona dated 23rd 06.2012 to the "Mkuu wa Wilayaya 11 (RungweDC)", with reference "MGOGORO KATI YA REDEEMED ASSEMBLIES OF GOD NA REViVAL AND HEALING MINISTRY ASSEMBLIES OF GOJY', whereby the "Mwenyekiti" was informing the DISTRICT Commissioner how he resolved the dispute. I agree with the applicant submission that the Tribunal Chairman in his decision erred in law by just merely relying with one witness (Omary Jacob Mwakyagi) and not considering evidence by the respondent (who is now refereed as appellant) and the genuineness of exhibits produced in his Tribunal. The appellant submitted that, on 051h .09.2004, he bought a piece of land on his own individual capacity which had some banana trees from one Omary Jacob Mwakyagi, and he was using the land in dispute without any disturbance. In his one of the main reasons for his decision, The Hon. Chairman of the Tribunal at page 5 of the judgment just stated that: "I get impression that the said Daudi Mwakalinga entered into the sale contract with Omar-y on behalf of the Church-RAGT2". This implies that the Tribunal Chairman decision was just based on exhibit RAGT-1 as he just got mere impression that, Daudi Mwakalinga entered into a sale agreement with Omary Jacob Mwakyagi on behalf of RAGT without considered whether the appellant in this case (Daudi) has capacity to execute such transaction. The Tribunal in its decision just quoted part of the sale agreement between RAGT and Omary Jacob Mwakyagi ("Mnunuzi 7 wa shamba hilo ni Mchungaji wa Kanisa la Assemblies of God (7') ndugu Daudi Mwakalinga kwaniaba ya Kanisa), before it held that, Daud Mwakalinga entered in that sale agreement on behalf of the RAGT Church. It appears the Tribunal did not determine some key issues before reaching its conclusive decision as to the legal owner of the land in dispute. If one look at the records from the Judgment, one will observe that the Tribunal decision was mainly based on the following reason that: "Due to the evidence of Omary Jacob Mwakyagi (vendor), A W4, I am so convinced that, he sold the land in 2004 to RAGT for Shs.36'0001-. The 27d respondent Daudi Mwakalinga was a pastor by then, so he signed the document dated 09.05.2004 on behalf of the Church as testified by Staili Hoji Isyani- A W3, and Omary Jacob Mwakyagi AW4.The evidence of a vendor of the land was not so properly challenged by the defence side. Also I am so persuaded by the evidence of Edom Safi Mwamboneke, who testified that, the land was sold to RAGT by Omary Mwakyagi." The importance of clearly analyzing and determining whether the evidence is acceptable as true or correct, was clearly discussed by the court in the case of Jeremiah Shemweta versus Republic [1985] TLR 228,where it was held:- "By merely making plain references to the evidence adduced without even showing how the said evidence is acceptable as true or correct, the trial Court Magistrate failed to comply with the requirements of Section 171 (1) of the Criminal Procedure Code Section E. 312 (1) of the Criminal Procedure Act, (1985) which requires a trial court to single out in the judgment the points for determination, evaluate the evidence and make findings of fact thereon". Some of the key issue that The Tribunal was required to consider was whether the appellant had capacity to buy the suit land on behalf of the respondent. Presuming that the appellant bought the suit land on behalf of the respondent, the issue, did the Appellant had such capacity? The answer could be no on the following reasons: - The respondent according to the law was already registered entity. And therefore it is governed by Trustees Incorporation Act Cap 318 and in terms of s.8 and other related sections, a single person is not allowed to transact on behalf of the church except the body of trustees. Let's say there wasn't a body of trustees to act on behalf of the church, there is no clear evidence on record to show that the Appellant (Daudi) had the power of attorney to pursue the duties (enter into sale agreement) of the church. I am therefore of the considered opinion and hold that the Appellant had no such capacity to enter the contract on behalf of the Church which is a legal entity unless he could have been entrusted with the power of attorney something which was not done. The respondent appears to have just inserted the words "KWA NIABA YA KANISA" (PAG-2) without the knowledge of the appellant which may also attract to criminal charges to anyone who may have for forged the documents. During the trial, Daudi Mwakalinga DW2 testified that, the copy Exhibit RAGT 2, which was produced by the applicant was a forged one, the additional words were altered by leaders of Redeemed Church, in order to mislead the Tribunal. It is my considered opinion that, where the party to the case brings a forged document to the court of Law, if proved it means such party intentionally wishes to mislead the Court of law to arrive at a wrong decision, which will lead that court not to dispense rightful justice. Reference can be made of the Osborn's concise Law Dictionary, Seventh Edition by Roger Bird, (On page 154) which provides a Latin maxim that; "frausomnia vitiate" means Fraud vitiates everything". Similarly, the same dictionary on page 230, provides a Latin maxim which stipulates that; "nemo expropriodolo consequituractionem" means No one obtains cause of action by his own fraud". I am of the view that, as alleged by the appellant that the respondent in this appeal appears to have forged the sale agreement dated 09th .05. 2004, between AW4: Omary Jacob Mwakyagi and Kanisa la Redeemed Assemblies of God (T), AS ragt-2. There is another suspect part over the sale agreement (exh RAGT - 2). Paragraphs 2 and 3 appears to be contradictory and for easy reference I shall quote them. 10 - Paragraph 2: "Mnunuzi wa shamba hilo ni MHUNGAJI WA KANISA LA REDEEMED ASSEMBLIES OF GOD (T) NDUGU DA UDI MWAKALINGA KWA NIABA YA KANISA ". Paragraph 3: "Hivyo kuanzia hivi hilo shamba ni mali ya matangaji (sic) DA UDI MWAKALINGA ". Reading between the lines, the 1st paragraph demonstrates that the appellant bought the piece of land for the respondent but only the contrary para 3 maintains that the suit land is the sole property of the appellant. I therefore find hesitant to concede with the assertions of the respondent because the words sell themselves that the suit land belongs to the appellant. The other issues to be determined is the discrepancies on the signature for authenticating the genuine of the documents. Another thing, other witnesses have contended that they witnessed the transaction/conveyance. The appellant testified that the document had neither signatures nor stamp of leaders (Edom Mwamboneke, the then Village Executive Officer of Busona village) who witnessed the disposition of the land, he records indicates that one among of the village leaders cemented to the effect that he witnesses but he did not sign or stamp the document. This seems to be little awkward, as witnessing means to execute the document agreed. As a matter of fact, the other disputed issue was is over a written document, therefore the only matter that ought to be proved I suppose was the existence of signature and the stamp. 11 As it was rightly noted by the Court in case of the Registered Trustees of Tanzania Agriculture Society versus Agnes E. Mboya Land Appeal No.12 of 2011 (unreported) that "it is the position of law that, the valid agreement must be manifested by expressing willingness to be bound by the embodied terms in order to obtain assent of the parties". Referring the Law of contract CAP 345 [R,E,2001] (section 2(1)), the court wet on by stating that in most cases, it is expressed by parties signing the documentsomething which has not be properly done in our case in hand. Emphasis supplied). Leaving that alone, the document in question concerns the conveyance or disposition of land. Therefore its admissibility before the court depends entirely on the guidelines laid down by the Stamp Duty Act Cap 189, Section 47 of the Act that read together with S.5 (1) and item 22 of the schedule maintains that no instrument shall be admitted by any authority unless such instrument is dully stamped. Looking at the sale agreement between Omary Jacob Mwakyagi and Redeemed Assemblies of God, there are some discrepancies that Tribunal ought to have considered and addressed. Under the document on sale agreement between Omary Jacob Mwakyagi and Redeemed Assemblies of God we find there are only signatures or names of the vendor Omary Mwakyagi and the purported signature of the purchaser D. Mwakalinga, who appeared to have two 12 witnesses but there is no any signature from the Vendor's witnesses who witnessed such transactions, though there is a signature of the "Mwenyekiti wa kitongoji". This creates some doubts as testified by this the vendor (Omary) who said that Edom Mwamboneke (Tribunal's witness who was the village executive officer), did not sign and his name did not appear in that sale agreement. The document seem to be more confusing on its genuineness if one read some phrases of paragraphs exhibit RAGT 2 which involved the parties, as produced bellow: "Sahihi ya mwenyekiti wa kitongoji ............. (signed") Serikali There is no doubt that "The mwenyekiti wa kitongoji" and the village executive officer are two different leaders. The Tribunal, was supposed to consider who between the two leaders actual witnessed and who was required to sign as a witness leader. Regardless of those discrepancies, it is my viewed considered opinion that the land in dispute belongs to the appellant on the reasons I have given above. There is no clear evidence to show that the appellant bought the land on behalf of the respondent ad he had no such capacity as I reasoned above. Reference can also be made to other evidentiary documents on the ownership of the disputed land. For instance the document which was tendered as one of the exhibitsthat is a sale agreement dated 07th .October 1994, between Mwangomo Mwandetele and Uchaguzi. G. Mwakabana, where the piece of sold land was Tsh.23'000/-, shows all ingredients of a contract for sale. The respondents at the trial, 13 1. produced, a letter from Mwenyekiti wa kijiji cha Busona, dated 23rd .06.20 12 to the "Mkuu wa Wilaya", where the "mwenyekiti" was informing the District Commissioner, how he ("mwenyekiti") had resolved a land dispute between Redeemed Assemblies of God and Revival and Healing Ministry Assemblies of God. The letter was very elaborative, as it described the source of the dispute and how they resolved them. The letter emphasizes that, Uchaguzi G. Mwakabana, had his land, the appellant had hisown land that is now in dispute and Redeemed Assemblies of God had a small area that does not involve the land in dispute. In the event as I reasoned above, this appeal is meritorious hence allowed. The decision of the Land and Housing Tribunal is set aside.It is hereby declared that the appellant is the lawful owner of the suit land. Costs to follow the event. Order accordingly. Right of appeal explained. Dr. A.J. Mambi Judge 08.06.2016 14