egnas mushi machowela vs efc tanzania mfc ltd 4 others 2022 tzhclandd 12472 29 september 2022

c IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL N0.54 OF 2022 (From Land Application No. 389 of2015, by the District Land and Housing Tribunalfor Ilala. ) EGNAS MUSHI MACHOWELA APPELLANT VERSUS EFC TANZANIA MFC LTD RESPONDENT MATHEI MUSHI MACHOWELA alias MATHEW JOSEPH 2"" RESPONDENT MASHAKA MUSTAFA MGAYA S"" RESPONDENT BLUESKY AUCTION & REAL AGENCY CO. LTD...4™ RESPONDENT MICHAEL LYMO 5™ RESPONDENT JUDGMENT Date ofLast Order: 05.09.2022 Date ofJudgment:29.09.2022 T. N. MWENEGOHA,J. The appeal lies on the following grounds; - 1. That, the trial chairperson grossly erred in law and fact by failing to evaluate properly the evidence adduced before the tribunal hence decided the matter in favour of the 5^^ respondent. 2. That, the trial chairperson erred In law and fact by failure to take into consideration that there was ample evidence adduced before the trial tribunal to prove that the appellant took necessary steps to protect his rights over the suit property against the alleged fraud. 3. That, the trial chairperson grossly erred in law and fact by failure to take notice that the 2"^ respondent had no good tittle to pass to the respondent at the time of signing the impugned mortgage contract. 4. That, the trial chairperson grossly erred in law and fact by declaring that, the sale of the suit property to the 5^ respondent was valid while the same contravenes the rules governing the conduct of public auction. 5. That, the trial chairperson grossly erred in law and fact by holding that the 5^ respondent is protected under section 135 of the Land Act as a bonafide purchaser. The appeal was heard by written submissions and exparte against the 2"^ to 5^ respondents. The appellant was represented advocate Helmes Marcell Mutatina. The respondent was represented by Advocate Cleophas James. IN my judgment, I will consolidate all fiye grounds of appeal and discuss them together. I do so in consideration of the fact that, all them are based on evaluation and analysis of evidence. Generally, the appellant has faulted the trial tribunal for its failure to make a proper analysis and evaluation of the evidence before it hence wrongly decided the matter against him. In his written submissions Mr. Mutatina, maintained that, the entire evidence adduced by the respondents' witnesses, there no are witness who testified on ownership of the suit land. Only the evidence of DW2 who admitted'that he Is a bonafide purchaser of the suit land. On the contrary, the appellant and his witnesses especially PW3 (Shakila Rashid Magombe) have shown how the suit land was obtained by the appellant. Also, the existence of exhibit PI corroborated well the evidence of the appellant with regard to the ownership of the said land. He referred the case of Haruna Mpangos and Others versus Tanzania Portland Cement Company Limited {2012} 1 E.A 79. Mr. Mutatina went on to argue that, there was fraud in changing the ownership of the said land from him to the 2"^ respondent. That, the appellant took all necessary steps to protect his property including reporting the matter to the police and was issued with a reference Number VNG/RB/2666/2015. Therefore, it was wrong to decide the matter in favour of the respondents regardless of all these evidences adduced by the appellant to show that the residential license was obtained fraudulently and the sale of the suit house was not conducted in public as stated under section 134(2) of the Land Act, Cap 113 R. E. 2019. The position was taken in the case of Freight & Logistics EA Limited vs. Terrence Mapunda and Others, Land Case No. 211 of 2008, High court of Tanzania, Land Division at Dar es Salaam. That, above all, the 5"^ respondent is not a bonafide purchaser deserving the protection of the law under section 135 of the Land Act. It is because the transfer was not registered. He referred the court to the case of Moshi Electrical Light Co. Ltd & 2 Others versus Equity Bank Ltd & 2 Others, Land Case No. 55 of 2015, High Court of Tanzania at Mwanza (unreported). In reply, Mr. James for the respondent maintained that the trial chairperson evaluated the evidence on record properly and reached to a just decision. The aliegatlons that the 2"'^ respondent forged the residential license in his favour are unfounded and were not proved as stated in Ratilal Gordhanbhai Patel versus Laiji Makanji(1957)EA 314. Therefore, the 2"^ respondent was a lawful owner of the suit property and capable of guaranteeing the loan facility. He had a good title as a registered owner of the property in dispute as held In Haji Ngura versus Mary Simon Mwanga^ Matrimonial Appeal No. 02/2021, High Court of Tanzania (unreported). Mr. James further argued that, since the appellant was not a party to the loan agreement, he lacks the rights to challenge the legality of the sale of the mortgaged property. This right is available only to the 2"*^ respondent who pledged the said property. Therefore,the 5^ respondent Is a bonafide purchaser and need to be protected by the Law, under section 135(1) of Land Act, Cap 113. In rejoinder, the appellant reiterated his submissions In chief. Having gone through the submissions of parties as shown herein above, the question for determination is whether the appeal has merits or not. I have noted from the records at hand that, the case at the trial tribunal was centered on the ownership of the suit property. As between the appellant and the 2"^ respondent who was the lawful owner the land In question. The said question was answered in affirmative by the existence of exhibit D5 (a residential license). The same proved that, the land in question belonged to the 2"^ respondent, Mathel MushI Machowela. Therefore, the claims by the appellant that he was the one who owns the land in question lacked proof. So are the allegations of fraud on part of the 2"^ respondent to cause the registration of the said land into his name. The appellant was duty bound to prove to the satisfaction of the trial tribunal that, the 2"^ respondent obtained the ownership of the land in question fraudulently. He failed to do so, he cannot fault the trial tribunal for deciding the matter against him. The law of evidence is clear that, a person wishing the court to believe the existence or non-existence of what he or she asserts, must prove what he or she asserts. This is provided under section 110 of the Evidence Act, Cap 6 R.E 2019 which says as follows; - "110.(1) Whoever desiresany courtto givejudgmentasto anylegal rightor Habiiity dependenton the existence offacts which he asserts mustprove that those facts exist (2) When a person is bound to prove the existence ofany fact, itis said that the burden ofprooflies on thatperson''. Therefore, if what is explained herein above is the position, then the 2"^ respondent had a good title over the land at the time it was guaranteed for the loan between the 3'"'^ respondent and the 1'^ respondent. The default in paying the loan, resulted into the sale of the mortgaged property, hence falling into the hands of the 5^ respondent who purchased the said house bonafidely, see section 135(1)of Land Act, Cap 113. Hence, the findings of the trial tribunal were correct so is its decision. As argued by the respondent's counsel, all five grounds in the appeal at hand are devoid of merits. The same are rejected. In the end, the appeal Is dismissed with costs. The decision and orders of the trial tribunal are upheld accordingly Costs to follow the event. It is so ordered. SV3RT c <5 M JM. MWENEGOHA JUDGE S' s: t- 29/09/2022 ★