Land Appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 18288 OF 2024 (Originating From Application No. 342 of 2022, Temeke District Land and Housing Tribunal) DEUS MUGANYIZI............... APPELLANT VERSUS MERRY ISACK TITO (Administratrix of the Estate of the Late Paschal Elias Nchoti)................................................. 1st RESPONDENT MERCIANA PASCHAL ELIAS (Administratrix of the Estate of the Late Paschal Elias Nchoti)................................................. 2nd RESPONDENT JUDGMENT 2nd to 15th October, 2024 E.B. LUVANDA, J The Appellant named above is challenging the decision of the Tribunal which ruled that a house situated at Kigezi Chini Area, Buyuni Ward, Ilala District is a property of the late Paschal Elias Nchoti whose estate is administered by the First and Second Respondent above mentioned. In the memorandum of appeal, the Appellant grounded that: One, the Tribunal erred in law and fact by failure to frame the proper issues; Two, the Tribunal erred in law and fact for failure to take into account the wight of the evidence tendered; Three, the Tribunal erred in law and fact to conclude that the Appellant is a trespasser. i Mr. Respicious Ishengoma learned Counsel for Appellant, for ground number one, submitted that framing issues is a mandatory requirement, citing Order XIV rule 1(5) of the Civil procedure Code, Cap 33 R.E. 2019. He submitted that issues ought to be framed at the first hearing after reading the plaint and the written statement (sic) if any. The learned Counsel faulted the Tribunal for nullifying the sale of the disputed land and declaring the Appellant a trespasser without framing issues concerning the legality/validity of sale of the disputed land along trespassing into the suit land. He cited Godwin Kashaigili and Others vs John M. Nchwende, Civil Appeal No. 20 of 2020, HC Bukoba; Bank of Africa Tanzania Limited vs Malima Maghembe Chiwanyi, Civil Appeal No. 43 of 2021, HC Mwanza. He submitted that in both cases the proceedings were quashed and judgment set aside and invited this Court to adopt that approach. The learned Counsel combined ground number two and three, he submitted that the following facts were undisputed: that the Appellant paid TZS 10,000,000 by bank deposit as the purchase price to the legal owner the late Paschal Elias Nchoti; that both the Appellant and the late Paschal Elias Nchoti went first to the local government for signing their sale agreement before the chairman of Kigezi local council; that the local chairman of Kigezi council directed them to make payment first and then return for signatures; that after 2 payment, the late Paschal Elias Nchoti handed over the title deed of the suit land and keys of the house to the Appellant; that the Appellant has been living peacefully in the said house for more than one year before the death of the late Paschal Elias Nchoti; that there has never been any loss report regarding the title of the suit land; that there has never been any claim of trespassing into the land in dispute before the death of the late Paschal Elias Nchoti; that until his last breath and despite his promise, the late Paschal Elias Nchoti had not yet returned to the local government for signatures. The learned Counsel faulted the Tribunal for failure to evaluate the evidence on record on the balance of preponderance of probabilities and thereby reaching at a wrong decision. He submitted a view that the above facts on record cannot be ignored nor undermined just as the learned Chairperson did thereby nullifying the sale of the disputed land and declaring the Appellant trespasser simply because the late Paschal Elias Nchoti until his death had yet to return to the local government for signatures. He cited Joseph F. Mwilizi vs Kobwa Mohamed Lyeselo Msukuma and Others, Civil Appeal No. 227 of 2019, CAT Tabora, for a proposition that the first appellate court has a duty to re-evaluate the evidence and come up with its own conclusion. In reply, the Respondents submitted that the Tribunal was correct to frame issues as it did in line with the dispute before it, for purpose of determining as 3 to who is the lawful owner of the suit land. They submitted that the argument by the learned Counsel that the Tribunal ought to frame issues in line with the sale agreement, is misleading. For grounds number two and three, the Respondents submitted that for an agreement for disposition of land to be valid, it ought to be in writing and signed, citing section 64(l)(a)(b) of the Land Act, Cap 113 R.E. 2019. They submitted that so far the Appellant is conceding himself that the late Paschal Elias Nchoti did not sign the sale agreement, argued the sale agreement is null and void in law. They submitted that for a contract to be valid, there must be consent from both sides, citing section 10 of the Law of Contract Act, Cap 345 R.E. 2002. They faulted the sale agreement exhibit DI for argument that the Appellant said he paid in cash a sum of TZS 10,000,000 while in evidence the Appellant said he paid vide bank transaction. They cited section 101 of the Evidence Act, Cap 6 R.E. 2019 for a proposition that oral testimony cannot be received to alter the terms of a written document, also cited Nicholous Mwaipyana vs Trustees of Littue Sister of Jesus Tanzania, Civil Appeal No. 276 of 2020, CAT. They submitted that while the Appellant alleged that he is the one who effected payment, but a pay slip exhibit D3 reflect it is one Sweetbert Katoto who deposited the money, and the name of the Appellant is missing and even the purpose of payment was not stated. They queried as to 4 why the Appellant stayed from 19/03/2021 when alleged sale was done until in 2022 when Paschal Elias Nchoti passed away. They submitted that even the testimony of DW2 and DW3 is contradictory as to where the sale agreement was executed, argued DW2 alleged it was executed at the office of Kigezi hamlet while DW3 stated that he was summoned to supervise the sale. They cited Shaban Daudi vs Republic, Criminal Appeal No. 28 of 2001, for a proposition that the evidence ought to be consistent and not contradictory. They therefore submitted a view that the Tribunal evaluated properly the evidence on record for both sides and correctly ruled that the Appellant is a trespasser to the suit land. On my part, I find no merit on the first ground of appeal. This is because in Godwin Kashaigili (supra) this Court was dealing in a situation where the trial magistrate (in its judgment) was himself heaping blame to lawyers for failure to raise an issue pertinent for determination of the real question in controversy; and in Malima Maghembe Chiwanyi (supra), there was a total non- compliance to the provisions of Order VIII rule 40(1) of the Civil Procedure Code, Cap 33 R.E. 2019, in that, framing of issues was completely omitted/skipped. Herein going by the pleadings (application and written statement of defence), the substantive issue was whether the suit land fall under the estate of the late Paschal Elias Nchoti. To my respective view, the 5 question of trespass in the circumstances of this case, was a mere consequential and not a substantive one. Therefore, the cited cases are distinguishable in that respect. For ground number two and three. As it transpired in the arguments herein as well in the impugned judgment, much concentration was focused on torching the shortcomings of the defence case or the Appellants case for this matter. This can be seen at the beginning of the reasoning of the learned Chairperson, at page six middle paragraph, I reproduce, I bold a targeted portion, 'Kwa kuanzia na kiini cha kwanza, hakuna ubishi, kulingana na ushahidi wa pande zote mbi/i kwamba nyumba na eneno bishaniwa ni ma/i ya marehemu PASCHAL ELIAS, Ha mgogoro unatokana na kitendo cha mdaiwa kutuhumu kwamba aliuziwa nyumba na eneo hi/o na marehemu PASCHAL ELIAS NCHOTI Kwa hiyo kwenye hii, mdaiwa aiikuwa na jukumu la kuthibitisha kwamba ameuziwa ardhi bishaniwa na marehemu PASCHAL ELIAS NCHOTI' Form the above quoted portion, it can be said that the take off by the learned Chairperson was premised on the wrong footing, for declaring the late Paschal Elias Nchoti as the lawful owner of the suit property before even examining the testimony and evidence tendered by both sides, regard being a fact that a title deed for ownership of the said Paschal Elias Nchoti (deceased) to wit exhibit D2 was in possession of the Appellant. Another fatal mistake committed by the 6 learned Chairperson at the opening statement of its reasoning, is that he made a sharp U-turn by shifting the burden of proof by shouldering the entire burden to the Appellant as having an obligation of proving as to how he purchased the suit land, overlooking that the role of the Appellant was merely simple as that of defending regard that the Appellant did not raise a cross-suit or counter claim. In fact, in the entire reasoning by the learned chairperson in the impugned judgment as from page six to ten dwelled, entirely evaluating the evidence of the Appellant lopsided as if the trial or evidence was presented ex- parte. Nowhere the learned chairperson said or commented anything on the evidence presented by the Respondents. No wonder it is the reason for the learned Chairperson landing on a wrong conclusion. In the case of Mary Agnes Mpelumbe vs Shekha Nasser Hamd, Civil Appeal No. 136 of 2021, the apex Court ruled, 'The burden ofproof never shifts to the adverse party until the party on whom the onus lies discharge his burden and that the burden of proof is not diluted on account of the weakness of the opposite party's case' At the Tribunal it was the Respondents' case, in a sense that it is them who sued claiming that the suit land fall under the estate of the late Paschal Elias Nchoti. In the application the Respondents pleaded that they are administrators 7 with a mandate to collect the estate of the late Paschal Elias Nchoti. To this end they tendered a letter of administration (exhibit Pl) showing that they were appointed on 28/06/2022 to administer the estate of the late Paschal Elias Nchoti. The Respondents did not tender any document showing that the suit property is owned by the late Paschal Elias Nchoti. Neither tendered any inventory where they listed it as among the estate of the deceased subject for collection. Nor tendered family meetings where it was resolved that the suit property belongs to the deceased. In other words, the Respondent they absconded their duty of proving their claim instead they banked on criticizing the evidence presented by the Appellant. Admittedly, the evidence presented by the Appellant was not straight away. Instance it is undeniable fact that the late Paschal Elias Nchoti did not append his signature into a sale agreement exhibit DI. But the Appellant produced witness to the sale who explained as to what happened culminating for non signing by the late Paschal Elias Nchoti. Clement Shemenya Sharuter (DW3) who is the suburb chairperson, asserted that he directed for payment to be effected first at the bank then appending signatures to follow after proof of payment. DW3 asserted that thereafter the Appellant produced evidence of payment which formed the basis of DW3 and other witnesses to sign exhibit DI while the late Paschal Elias Nchoti did not turn up. However, when DW3 was 8 asked questions by the assessor, he stated that the late Paschal Elias Nchoti surrendered his title deed to the Appellant. DW3 also clarified regarding discrepancy of the dates, being that exhibit DI was crafted on 19/03/2021, but witnesses appended signatures on 20/03/2021 after payment were effected in the bank. The Tribunal also faulted a bank pay deposit slip (exhibit D3) that it reflects the payer was Sweetbert Katoto and not the Appellant, also that purpose of payment was not indicated. To my view this was unnecessary overstretching issues, regard being the alleged anomaly had no effect of denouncing a fact that payment was made into the account of the late Paschal Elias Nchoti. Indeed, there was no dispute that the late Paschal Elias Nchoti received payment a sum of TZS 10,000,000/= as a consideration for disposing a suit property to the Appellant. There was also an argument that exhibit DI indicate that payment was in terms of cash, while exhibit D3 vindicate payment were effected electronically vide bank. This argument is misleading, exhibit DI bears headed paper for Ofisi ya Serika/i ya Mtaa wa Kigezi Chiniatong emblem for Halmashauri ya Manispaa ya Ilala, meaning is standard form, therefore it will be unfair to fault the Appellant. It is true that Selemani Abdallah Kiumbo (DW2) who is the hamlet chairperson at Kigezi asserted that the Appellant along the late Paschal Elias Nchoti visited at his (DW2) office for purpose of executing an agreement for sale, where DW2 9 revealed a suit house is not within his jurisdiction, where he escorted the duo up to Kigezi Chini where the suit house is located within that hamlet jurisdiction. According to DW2 execution were done at the office of hamlet chairperson Kigezi Chini. On the other hand, DW3 asserted that execution was done at Kigezi hamlet. To my view, this was a minor discrepancy, which had no effect of invalidating exhibit DI. As stated above, the obligation to prove that the suit house fall under the estate of the late Paschal Elias Nchoti was for PW1 (Second Respondent, and daughter of the deceased), PW2 (First Respondent, senior daughter of the deceased) and PW3 (wife of the deceased). The sale was done on 19/03/2021, the late Paschal Elias Nchoti passed away on 2/03/2022, the Respondents were appointed on 28/06/202. Surprisingly, PW3 who alleged was served a notice of three days to give vacant possession of staff police quarter at Kurasini where alleged was living with the deceased, asserted that she visited to the suit house after being told to vacate the government quarter. But at the preface of her introduction, PW3 introducing as a residence of Mwanza Sengerema. PW1 (who is a resident of Temeke) and PW2 (who is a resident of Sengerema Mwanza) asserted to had visited at the suit house post appointment as administratrix of the estate of the late Paschal Elias Nchoti. PW3 did not tender any marriage certificate to io vindicate that she is a wife of the late Paschal Elias Nchoti. In her testimony in chief, PW3 at her testimony in chief she stated that, I bold pertinent portion, 'Mimi marehemu ni kama mume wangu, nimeishi naye miaka ishirinina tano, tukiishikota za PoiisiKurasini...' Again at cross-examination by the Appellant, PW3 stated that, 'Mimi ni shahidi, nikiwa kama mke wake' In her testimony PW3 did not state as to when she relocated to Sengerema Mwanza from Poiisi Quarter Kurasini and vice versa. Neither PW1 nor PW2 or PW3 could tell as to how the original title deed for the suit house exhibit D2 landed to the Appellant. Nowhere they stated to had lodged any complaint regarding loss of that title deed, exhibit D2, notwithstanding a fact that the late Paschal Elias Nchoti was retired police officer. This fact creates more doubt to the testimony of PW3 who alleged up to the demise of the late Paschal Elias Nchoti, they were still living at the Police Quarter at Kurasini. In totality, it is the Respondents who failed to prove their case. The evidence presented by the Appellant demonstrate that a contract was discharged. In an article Common Legal Ground For Discharge of Contract: Explained, accessed on 8/10/2024 at 23.50 hours, at https://www.mydock65.com the author commented that, I bold a pertinent portion, 11 "Contract discharge refers to the fulfilment or completion of the contractual obligations by both parties, resulting in the termination of the contract. In other words, there is a discharge of contract when both parties have performed their respective duties and obligations Herein, parties who were privy to the sale agreement to wit the Appellant (purchaser) and Paschal Elias Nchoti (deceased, who was a vendor), discharged their respective obligation, where the purchaser completed payment of the whole consideration and the vendor handed over title deed and a suit house to the purchaser. In that regard, the decision of the Tribunal cannot sail through, it is quashed and award set aside. I rule that the suit property do not belong to the late Paschal Elias Nchoti, therefore does not form part of his estate. The appeal is allowed. Given the situation and circumstances of the matter, it