david albert david as administrator of the estate of the late peter david vs rowland patrick sawaya 2023 tzhc 21634 3 october 2023

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY HIGH COURT OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI LAND APPEAL NO. 33 OF 2023 (C/F Misc. Application No. 159 of 2018 at District Land and Housing Tribunal for Moshi at Moshi) DAVID ALBERT DAVID (As Administrator of the Estate of the Late Peter David) ……….….…………… APPELLANT VERSUS ROWLAND PATRICK SAWAYA….…………….……………..RESPONDENT JUDGEMENT Date of Last Order: 21.09.2023 Date of Judgment: 03.10.2023 MONGELLA, J. The respondent herein instituted Land Application No. 159 of 2018 in the District Land and housing Tribunal for Moshi at Moshi (the Tribunal, hereinafter) against the appellant over a piece of land located at Karanga Ward in Moshi Municipality, Kilimanjaro Region, known as Plot No. 190, Block JJJ Section III. In brief, the respondent alleged to have purchased the suit land from the late Peter David in 1998 vide an oral agreement. He claimed that the purchase was done before other witnesses whereby he was handed necessary documentation including Page 1 of 24 certificate of right of occupancy. However, allegedly, the late Peter David approached the Registrar of titles in 2018 seeking to be granted a new certificate of right of occupancy over the suit land claiming the one issued to him previously was lost. Upon discovering the move the respondent entered a caveat on the suit land and filed his claim in the trial Tribunal. The appellant sought for the Tribunal to: declare him the lawful owner of the suit property; order that the sale agreement between him and appellant was lawful; issue a permanent injunction restraining the appellant and his agents from entering the suit property; issue an order that the statutory time for the appellant to claim the property had expired; restrain the assistant registrar from issuing to the respondent a certificate of right of occupancy over the suit property; grant him general damages; grant him costs for the application and interest on decretal sum calculated from date of judgment to date of final payment and; any reliefs the trial Tribunal would deem fit and just to grant. The appellant filed his written statement of defense denying the claim. He sought for the Tribunal to declare him the registered legal owner of the suit land; declare the respondent a trespasser; restrict transfer of the suit land; general damages to the tune of T.shs. 50,000,000/=; and to be granted costs of the suit. Page 2 of 24 After hearing both parties, the Tribunal found in favour of the respondent. It declared him the lawful owner of the suit property and the appellant a trespasser to the same. The Tribunal also issued a permanent injunction restraining the appellant and his agents from entering the suit property. The appellant was also required to pay costs for the suit. Aggrieved by the said decision, the appellant preferred the appeal at hand on the following grounds: 1. That the trial Chairman erred in law and fact when he failed to properly evaluate the evidence adduced by parties during hearing. 2. That the trial Chairman erred in law and fact when he held in favour of the respondent herein above without considering that the respondent failed to prove his case on balance of probability if he could not so err he should have decided in favour of the appellant. (sic) 3. That the trial chairman erred in law and fact when decided in favour of the respondent without considering the fact that the respondent witnesses’ evidence was contradictory, inconsistence and implausible. 4. That the trial Chairman erred in law and fact when he held in favour of the respondent without taking into consideration the evidence of the appellant. Page 3 of 24 5. That the trial Chairman erred in facts and law when he held in favour of the respondent by relying on oral contract without taking any caution and there was no sufficient evidence to prove the same. 6. That the trial Chairman erred in law and fact by failing to consider that testimony of SM1 (respondent) was a lie for the fact that they purchased the dispute property in 1998 while the said disputed property was grated to the appellant in year 2000. (sic) 7. That the trial Chairman erred in law and fact for not carefully examining the contradictory evidence of SM1. 8. That the trial Chairman erred in law and fact by failing to answer crucial issue No. 2 (b) raised by the parties which it is the core of the case. 9. That the trial Chairman erred in law and fact by decree that the oral agreement criteria were met by respondent. (sic) The appellant prays for the court to allow the appeal, nullify and quash the decision of the Tribunal, grant him costs and issue any other order it deems fit. The appeal was argued by written submissions whereby the appellant was represented by Mr. Caessar A. Shayo, while the Page 4 of 24 respondent was represented by Mr. Tonny Richard Mushi, both learned advocates. Mr. Shayo jointly submitted on the 1st and 2nd grounds of appeal explaining that the trial Chairman failed to properly evaluate the evidence of both parties. He claimed that, if the Hon. Chairman had done so, he would have decided differently as the respondent failed to prove his case on balance of probability as the law requires. He was of view that the balance of probability requires no doubt to be left so that the court can reach factual conclusions. That, evaluation of evidence involves assessment of the strength and weakness of a case but the trial Chairman failed to consider the whole evidence presented by the witnesses. That, the Hon. Chairman only paid attention to the examination in chief of the respondent, but did not observe the cross examination of the respondent’s witnesses. On the 3rd and 9th grounds of appeal, Mr. Shayo averred that the evidence of the respondent was contradictory, inconsistent and implausible. He said that although the trial Chairman made refence to the case of Catherine Merema vs. Wathaigo Chacha Civil Appeal No. 319 of 2017 (CAT) to the effect that in providing oral evidence there must be several pieces of evidence that point to a particular direction. However, he said, there were no such pieces of evidence on existence of the oral agreement. Page 5 of 24 Further, addressing the evidence of SM1, he considered it to be false on the ground that it was inconsistent, contradictory and doubtful. He referred to paragraph 5 (a) (ii) of the application saying that in the said paragraph it is stated that the disputed property was purchased from the appellant in 1998 while SM1 testified that the suit land was bought in 1998 and on the same date, the appellant handed over the documents of the suit land including the letter of offer. That, however, after cross examination and testimony of other witnesses, SM1 was again recalled whereby she changed her statement averring that they entered into an oral agreement with the appellant in 1998, but the necessary documents were handed over later. On the other hand, he said, the appellant was granted the suit land on 5.12.2000 through Letter of Offer, hence questionable as to how he was in possession of the suit land in 1998 while he was not yet granted the suit land by the concerned authority. Mr. Shayo further pointed out another contradiction in evidence of SM1. He said that SM1 testified that the appellant sold the property to the respondent before one Ladi Kinabo, Shambe Sagafu and Laurence Msuya and that the letter of offer and other documents were handed over to the respondent before all witnesses, but later the respondent averred that she was given the document sometime between 2000 and 2002. However, he said, all the witnesses the respondent brought testified that the documents were handed over in 1998. hence the evidence of SM2, SM3 and SM4 differed from that of SM1. Page 6 of 24 Still on the contradictions, Mr. Shayo further asserted that the witnesses contradicted on payment of consideration. He said that SM2 testified that the payment was made by SM2 while SM3 testified that he received money and handed the same to the appellant. He found these testimonies questionable as to who told the truth between the SM1, SM2 and SM3. In conclusion on this part, he asked this court to note that there were a lot of contradictions in the evidence of the respondent’s witnesses diminishing the witnesses’ credibility. On the claim that the criteria for oral agreement was not met, Mr. Shayo averred that the appellant stated that he never entered into an oral agreement with the respondent to sell the disputed property and the said agreement was not proved by the respondent’s witnesses. He referred the case of Sudhir Kumar Lakhanpai vs. Rajan Kapoor and Regalia Tanzania Limited, (Civil Case No. 125 of 2019) [2022] TZHC 12766, which ruled that for an oral agreement to stand, there must be a person present at the formation of the contract and the evidence must be consistent and uncontroverted during cross examination. Linking this authority with the holding in this case, he contended that the evidence of the respondent’s witnesses was inconsistent and did not meet the test in the said case. On the 4th and 5th grounds, he averred that the appellant’s evidence held more weight than that of the respondent. That, the appellant clearly testified that the late Peter David was granted Page 7 of 24 a letter of offer on 05.12.2000 and lost the same in 2017. That, he filed a loss report to that effect in Moshi Central Police station as evidenced by exhibit D4. That, after being granted the said property, he had been complying with all requirements of ownership of the same including paying rent as shown in exhibit D2 and exhibit D3. On the contrary, he argued, there was nowhere indicated that the respondent did anything on the suit premises. That, despite the trial Chairman stating that they had built a wall, they failed to prove construction of the same nor did the respondent move the court to have the premises visited to ascertain whether there existed such developments in the disputed land. Mr. Shayo argued that this was contrary to the principle settled in case of Avit Thadeus Massawe vs. Isdory Assenga, Civil Appeal No.6 of 2017 whereby the Court of Appeal encouraged visit of locus in quo in order to ascertain the location of the disputed property, extent, boundaries and boundary neighbours and physical features of the land. On the 6th ground, Mr. Shayo maintained his argument that there were contradictions on evidence of SM1. He averred that the said witness, when recalled, made a different statement and the statement was different from that of other witnesses who were allegedly present in the transaction. Further, he said that the appellant testified that he was granted the property in 2002 and he did not own the same in 1998. In the premises, he had the view that this shows that all the allegations by the respondent of purchasing Page 8 of 24 the disputed property were false. He also faulted the respondent’s reply to the petition averring that paragraph 4 of the same contained new facts as it was stated therein that there existed another letter of offer. He considered that and all other claims by the respondent being false and clouded with deceit geared at denying the appellant his right to ownership. On the 8th ground, Mr. Shayo averred that the issue regarding the legal requirements of an agreement for sale of land and how it should be was not answered. He was of the view that it is mandatory for disposition of land to be reduced into writing and parties to the said agreement must sign the same as provided under section 64 (1) (a) and (b) of the Land Act, 1999 [Cap 113 R.E. 2019], but there was no written contract signed thus no sale agreement signed between the parties. He concluded his submissions by praying that the appeal be allowed with costs, judgment of the trial Tribunal be nullified and quashed and the appellant be declared the legal owner of the suit property. In reply to the 1st and 2nd grounds of appeal, Mr. Mushi averred that the respondent adduced his evidence as required by the law and the same was evaluated on preponderance of probability. He distinguished the onus of proof with that required in in criminal cases whereby presence of a shadow of doubt allows the other party to benefit from the same. He averred that the trial Chairman properly evaluated his evidence as is vivid under page 7 to 11 of the Page 9 of 24 judgment whereby he analyzed the evidence and finally determined the matter. On the 3rd and 9th grounds of appeal, Mr. Mushi referred the court to page 9 and 10 of the trial Tribunal judgment arguing that the Hon. Chairman found that there was an oral contract between the parties and the parties had agreed to have a written agreement thereafter. He maintained that the law recognizes oral contracts. He cited the case of Catherine Merema vs. Wathiongo Chacha (supra) to buttress his point. Replying to the 4th and 5th grounds, he referred to the testimony of the respondent to the effect that they purchased the suit property and the oral agreement to do the same was witnessed by the respondent witnesses. He again referred to page 9 and 10 of the judgement of the trial Tribunal, in which the Hon. Chairman recognised the oral agreement. With regard to the 6th ground, he averred that the respondent purchased the suit land in 1998 earlier than the date in which the appellant claimed to have been granted the letter of offer. As to the 8 ground, Mr. Shayo referred the court to page 11 of the trial Tribunal judgment. He averred that a contract can be oral or written provided that conditions of valid contract under Section 10 of the Law of Contract Act [Cap 345 RE 2019] are met. He also referred to the case of Masuki General Store Limited vs. Macmillian Page 10 of 24 Johanson Elingaya and Another (Civil Case No. 3 of 2021) [2022] TZHC 14848. Rejoining, Mr. Shayo first averred that the counsel for the respondent failed to respond to the grounds of appeal and submissions in chief, but instead cited the judgment of the trial Tribunal. On the 1st and 2nd grounds of appeal he maintained that the trial Chairman did not evaluate the evidence of the appellant, but relied on the evidence of the respondent’s side. That, the case ought to have been resolved on balance of probability where no doubts should have been left. He reiterated his point that the issue that the appellant did not report to the police to have found the said letter was merely an assumption of the trial Tribunal and not an issue raised by the respondent’s side. In the premises, he had the stance that the Tribunal judgment is clouded with a lot of doubts which contradict the pleadings. Rejoining on 4th and 5th grounds, Mr. Shayo disputed the trial Chairman’s assertion that the appellant did not dispute the oral contract as alleged by the respondent. He maintained that the oral agreement was disputed by the respondent and even during cross examination of SM2, it was admitted that a contract for purchasing land must be reduced into writing. He further challenged the credibility of SM2 alleging that the witness did not possess knowledge over the suit property. He reiterated his averment that the respondent’s evidence was contradictory, inconsistent and implausible. Page 11 of 24 On the 6th ground, he maintained that the application did not conform to the testimony of the witnesses. That, SM1 testified that they bought the property in 1998 and after being recalled she testified that the document was handed over after 2000 contrary to the statement of other respondent’s witnesses. That, they saw the letter of offer in 1998, but the respondent was given the same after 2000. He maintained that there were no pieces of evidence pointing on the existence of the oral evidence meeting the test in the case of Catherine Merema vs. Wathioago Chacha (supra). On the 8th ground, he reiterated that the requirement under section 64 (1) (a) and (b) of the Land Act was not adhered to as the respondent alleged that she entered into an oral agreement with the appellant which is contrary to the requirement of the law. Mr. Shayo maintained his prayer for the appeal to be allowed with costs, the trial tribunal’s judgement to be nullified and quashed, and the appellant be declared the lawful owner of the suit land. I have considered the submissions by the learned counsels for both parties and gone through the trial Tribunal record. Upon going through the submissions, I have noted that the 7th ground was abandoned by Mr. Shayo and consequently, Mr. Mushi did not address the same. I have further noted that the 1st, 2nd, 3rd, 4th, 5th, and 6th grounds of appeal address the question of evaluation of evidence by the trial Tribunal while the 8th and 9th grounds address the question of validity of the oral agreement allegedly entered for sale of land. Considering these ground, I find that the entire appeal Page 12 of 24 can be conveniently disposed under one major issue as to “who is the rightful owner of the suit land?”. In the course of my deliberations, I shall address all the questions advanced in the grounds of appeal. Mr. Shayo faulted the trial Chairman for failure to evaluate the evidence before him thereby erroneously found in favour of the respondent. In the same vein, he challenged the evidence of the respondent witnesses on the ground that it was tainted with contradictions. Specifically, he attacked the evidence of SM1 for being contradictory to the application filed by the respondent. On the other hand, Mr. Mushi averred that the trial Tribunal justly found in favour of the respondent as the case was well proved on balance of probabilities whereby the respondent’s evidence held more weight compared to that of the appellant. To support is averments he mostly made reference to the judgement of the trial Tribunal. First, I find it worth noting that when the application was initially filed before the trial Tribunal, the late Per David who is now represented by the appellant was still alive. Upon his demise, the appellant stood as the administrator of his estate. This is evidenced by “exhibit D1” which is the letters of administration and judgement by the Uru primary court, which appointed him as administrator of the estate. Page 13 of 24 On the other hand, the respondent gave power of attorney to SM1, Rose Rowland Sawaya to act in his stead in this matter as evidenced by “exhibit A1” a duly registered power of attorney. The respondent’s side had four witnesses being: SM1, Rose Rowland Sawaya; SM2, Shambe Rajabu Saggaph; SM3, Ladi Hendry; SM4, Laurence Msuya and; SM5 Robert Andrea. SM1 testified that she is the wife of the respondent and that the respondent entered into an oral agreement with the late Peter David on sale of the suit land which was undeveloped. That the respondent purchased the land from the late Peter David in 1998 for consideration of T.shs. 3,000,000/-. The said sale was witnessed by SM2, SM3, SM4 and herself. That, the Letter of Offer of the Late Peter David was handed to the respondent on the same day of purchase. She tendered the Letter of Offer, which was admitted as exhibit A2. She alleged that later they found out that the late Peter David was seeking to be granted a new certificate of right of occupancy so they sought to enter a caveat, but was denied by the registrar of titles on the ground that the occupancy was not yet finalized by issuance of a certificate of occupancy/title deed. They thus filed the case in the Tribunal. Subsequently, SM1 was recalled to tender other documents to wit; the Letter of offer that was admitted as exhibit P3, receipt issued by the Municipal Council, admitted as exhibit P4, three receipts issued by the government admitted as exhibit P5 and three letters from Moshi Municipal council admitted as Exhibit P6. She further stated, Page 14 of 24 in the cross examination, that she was handed the exhibits between 2000 and 2002 before SM3, SM4 and, SM5 thereby contradicting her initial statement that she was handed the exhibits in 1998. SM1 further stated that they had constructed a wall in the suit land and they used the land as storage for scrappers until 2004 when they migrated to Dar es Salaam. SM2, SM3 and SM4 testified to have witnessed the said sale which was contracted by oral agreement between the respondent and the late Peter David claiming that the same was executed in the respondent’s garage at a consideration of T.shs. 3,000,000/-. According to SM2, he and SM3 stood as witnesses for the respondent while SM1 and SM4 stood as witnesses for the late Peter David. All of them further maintained that they witnessed the exchange of the documents and that it was the respondent who built the wall therein. SM5 testified that he is a neighbour to the suit land and the same belongs to the respondent whom he was introduced to when he was in the process of purchasing Plot 188 in the same area. He however, had no details as to the dispute pertaining the suit land. In defense, the appellant stood as SU1 and called one witness being, SU2, Veronica Kisaka, an Assistant Land officer. The appellant testified that the respondent had trespassed the suit land which belonged to the late Peter David. That, he was offered a Letter of Offer on 05.12.2000 and he paid all rents in the suit land. Page 15 of 24 He produced the invoice issued for the payment of the said rent, which was admitted as “exhibit D2” and a CRDB pay slip evidencing the payment of the said rent, which was admitted as “exhibit D3.” He further argued that the Letter of Offer was lost thereby produced a loss report filed through RB/27/48/17, which was admitted as exhibit D4. In his evidence, he added that they used the suit land to farm beans, groundnuts and maize since 2000 and that they noted that the same was trespassed when the Letter of Offer was lost in 2017. SU2, testified to have known the late Peter David. She said that the late Peter David was given the suit land on 20.08.1999 via a letter informing him that he would be allocated the suit land. The said letter was admitted as exhibit D5. She added that the said Peter David was also given the Letter of Offer whereby he paid necessary fees. In 2015, the ate Peter David submitted a loss report in her office informing her that he lost the letter of offer. That, after conducting investigations, the loss of the Letter of Offer was advertised. An acquittance of the respondent showed up with the lost documents ready to file the same to the Land Commissioner for transfer of certificate of occupancy. The same became impossible due to absence of a sale agreement. It is settled position that all witnesses are entitled to credence. See Goodluck Kyando vs. Republic 2006] TLR 367. It is also known that statements made by witnesses may vary due to various factors such as age, memory or the amount of time since the particular Page 16 of 24 incidence took place. In the premises, it is therefore the duty of the court to address the inconsistencies in the case and decide as to whether they are minor or material. Minor inconsistencies can be ignored while material inconsistencies go to the root of the matter and affects the credibility of the witnesses. See, Dickson Elia Nsamba Shapwata and Another vs. Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17 TANZLII. Notably, in the testimonies of the respondent’s witnesses there were contradictions on how the payment was made. SM2 alleged that the money was handed first to him by SM1 which he then handed to the late Peter David. SM3, on the other hand, testified to have received the money and handed the same to the late Peter David. SM1 and SM5 testified that the money was handed to the late Peter David by the respondent. These contradictions, however, are found to be minor not affecting the root of the case. Another contradiction is seen in the evidence of SM1 who first testified that the documents including the Letter of Offer were handed to her on the day of the alleged sale. However, when recalled to tender the said documents, she testified to have been handed the same sometime between 2000 and 2002. Her statement also contradicts the contents of paragraph 5 (a) (ii) of the amended application filed before the trial Tribunal, in which it was alleged that the documents were exchanged in the transaction. This is found to be a material inconsistency. Page 17 of 24 In observing the evidence of all witnesses, I have noticed that all respondent’s witnesses, except SM5 testified that the documents were handed in 1998 although they admitted to having no knowledge on what documents were exchanged between the parties. The documents at hand seem to have been issued between 1999 and 2002. Exhibit P6 comprised of three letters: first, a letter informing the late Peter David that he was found eligible to be allocated a plot issued on 20.08.1999; second, a letter informing the late Peter David that the Right of Occupancy over the suit property had been approved, which was issued on 10.05.2002; and three, a letter informing the late Peter David of two attached copies of Certificate of Right of Occupancy issued on 10.05.2002. The letter of offer was issued on 05.12.2000. The Certificate of Right of Occupancy (Exhibit A1) was issued on 01.10.2001. Receipt issued by the municipal council (Exhibit P4) for payment of premium was issued on 20.01.2000 while government receipts (exhibit P5) for payment of Certificate of Occupancy, stamp duty and deed plan were issued on 05.12.2000 and receipt for registration fees was issued on 04.01.2001. In the light of the tendered exhibits by the respondent, it is apparent that the late Peter David was allocated the said land in 1999 and granted Certificate of Right of Occupancy in 2002. This indeed raises questions as to the agreement between the late Peter David and the respondent allegedly made in 1998 and which allegedly included exchange of the necessary documents on the same day the sale was allegedly effected. Page 18 of 24 In this case, there is rather a strange occurrence that SM1, SM2, SM3 and SM4 testified as to the agreement being made in 1998 while the suit land was formally allocated to the late Peter David in 1999. On top of this strange occurrence, there is another rather questionable detail on how SM1 and the respondent came to possess at the same time exhibits A2, P3, P4, P5 and P6 in their actual original form in which the said documents were personally addressed to the late Peter David. There is no way the respondent and SM2 would have come in possession of the documents unless they had been given to them by the late Peter David or rather stolen or allegedly “found”. This thus renders SM1’s assertion that the documents were given in later years possibly true thereby dissolving the inconsistence in her testimony. I am therefore of the considered view that the respondent discharged his part of the burden of proof. While the evidence of the respondent was filled with multiple strange details, on the other hand, the evidence of the appellant is as well questionable in several aspects. For instance, as seen in exhibit D2, the due land rent payments commenced from the year 2001/2002 to 2017/2018 amounting to T.shs. 430,950.00. All payments of land rent were effected on 03.08.2017 as evidenced by Exhibit D3. To justify the rather odd bulk payments, the appellant averred that the late Peter David had no means to pay the rents. Exhibit D4, the loss report, on the other hand, partly states: Page 19 of 24 “LAND OFFER PLOT NO. 190 JJJ- WHICH LOCATED AT KARANGA MOSHI, ISSUED BY MOSHI MUNICIPAL.” This evidently shows the loss report was issued pursuant to the loss of the Letter Offer of the suit land alone and not the rest of the documents. The appellant did not explain why the loss report merely addressed a single document alone. It is further questionable as to why the late Peter David who was then alive in 2017, never took any action against the respondent after SM4 showed up to the land office reporting the necessary documents to be in possession of the respondent. Further, apart from the land officer who testified as to the Letter of Offer being issued to the late Peter David, the appellant did not bring any witness to prove the alleged trespass by the respondent. To this point, the evidence of the respondent is found to hold more weight compared to that of the appellant thus proving that there was indeed an oral contract for sale of the suit land between the late Peter David, as vendor and Rowland Patrick Sawaya, as purchaser. Having found that there was an oral contract between the late Peter David and Rowland Patrick Sawaya, I shall now address the question as to whether the contract was valid. As proved, the suit land was allocated to the late Peter David in 1999. The same was registered in 2002 as witnessed by exhibit A2. At no time was this Page 20 of 24 property claimed to have been unregistered despite the questionable details of the same being sold in 1998. The registration of the suit land which took place in 2002 and the title deed seemingly handed to the respondent, shows that there may have been subsequent agreements between the late Peter David and respondent as to exchange of the documents. It is well settled that disposition of a right of occupancy can only be operative if it is in writing and is approved by the paramount landlord, who in our case, is the President of the United Republic. This was the position under Regulations 3 (1) of the Land Regulations, 1960 (GN. No. 101 of 1960) which stated: "3-(l) A disposition o f a right of occupancy shall not be operative unless it is in writing and unless and until it is approved by the Governor.” The provision was well discussed in Nittin Coffee Estates Ltd vs. United Engineering Works Limited [1988] TLR 203; Abually Alibhai Azizi vs. Bhatia Brothers Ltd. [2000] TLR 288. The provision has also found its way into section 64 (1) of the Land Act, 1999 [R.E. 2019] which reads: “64.-(I) 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; Page 21 of 24 (b)the contract or the written memorandum is signed by the party against whom the contract is ought to be enforced.” This position has recently been discussed by the Court of Appeal in its plethora of authorities. See: Registered Trustees of Holy Spirit Sisters Tanzania vs. January Kamili Shayo and 136 Others (Civil Appeal No.193 of 2016) [2018] TZCA 32; John Martin Ndunguru vs. Mustapha Athuman Nyoni and Another, (Civil Appeal No. 17 of 2021) [2023] TZCA 17508 and; Aziz S. Masasi vs. Emmanuel T. Makene (Civil Appeal No. 35 of 2021) [2023] TZCA 17553 all from TANZLII. In Registered Trustees of Holy Spirit Sisters Tanzania vs. January Kamili Shayo and 136 Others (supra) the Court stated: “There is, in this regard, a long line of authorities to the effect that an oral and unapproved agreement for the disposition of land held under a Right of Occupancy such as the one relied upon by the respondents, is in operative and of no effect.” In John Martin Ndunguru vs. Mustapha Athuman Nyoni and Another (supra) the Court addressed the provision in the old Land Regulation Act and the present Land Act and stated: Page 22 of 24 “At the material time, such a disposition could not have been operative if it was not in writing. For one of the mandatory requirements under Regulation 3 (1) of the Land Regulations, 1960 made under the old Land Act, Cap. 113 was that such a disposition had to be in writing - see Abualy Alibhai Azizi v. Bhatia Brothers Ltd. [2000] T.L.R. 288. To be sure, that position of the law has been retained under subsection (1) of section 64 of the Land Act, Cap. 113 ("the Land Act"), the current law…” In Aziz S. Masasi vs. Emmanuel T. Makene (supra), the Court reasoned: “…the disposition of the right of occupancy will only be enforceable if it is reduced in writing in the form of a contract or memorandum. Failure to do so renders the sale inoperative.” In the light of the above cited decision, it is evident that an oral agreement for sale of land shall be inoperative and to that effect, the court cannot enforce the same. It follows therefore that since the sale agreement between the late Peter David and the respondent was made orally, the same cannot be enforced as it is inoperative for not being reduced in writing. In that respect, the late Peter David stands to be the rightful owner of the suit land. In the circumstances, I hereby quash the judgment and decree of the trial Tribunal that declared the respondent the rightful owner. Page 23 of 24 The appeal is allowed. Given the circumstances of the case, I make no orders as to costs. Dated and delivered at Moshi on this 03rd day of October 2023. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 24 of 24