ELIONA SIMON URIO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA LAND APPEAL NO. 72 OF 2023 ELIONA SIMON URIO .... COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS ANTHONY SHAYO RESPONDENT/ DEFENDANT JUDGMENT I. C. MUGETA, J, Facts o f this ease are mostly undisputed. The dispute centres on a piece o f land (the dispute land) measuring 22 paces in length and 20 paces in width. It is located at Kiranyi village, Kiranyi Ward, Arumeru district. Indisputably, the respondent bought the dispute land from Daudi Serayo (PW2) at Tshs. 4,500,000/=. This was on 28/8/2007 per the sale agreement which is exhibit A1 and the evidence o f the respondent’s witnesses who are respondent himself (PW1), (PW2 (the seller) and Edwin Israel Maleko (PW3), a witness to the sale agreement. On 13/9/2010, the first appellant resold the dispute land to the 2nd appellant at Tshs. 8,000,000/= via exhibit D l. The sale created conditions for this dispute. It finally prompted the application in the trial tribunal leading to this ease. The 1st appellant admits the dispute land belongs to the respondent. He also admits to resale it to the 2nd appellant. He testified that he did so on behalf o f the respondent and on the respondent’s instruction adding that after sale he surrendered the proceeds o f the sale to the respondent. He tendered in court a bank deposit slip worth shillings 3,000.000/“ as exhibit D2 to prove that the proceeds of the second sale were transmitted to the respondent. The respondent docs not dispute to have received that amount. The 1st appellant also claimed the balance o f the purchase price was paid in cash physically to the respondent. His story about having authority to resell the dispute land is supported by Daniel Mathayo (DW2) who is the area’s ten cell leader and allegedly a witness to the second sell. He said before its execution, he phoned the respondent to confirm if he authorised the 1st appellant to sell the land and he got a positive answer. On his part, the respondent denied to have received any money from the 1st appellant. He testified that the said money related to payment for car engine as the 1st appellant and the responded worked together as mechanics. Page. 1 With most o f the facts undisputed, the disputed is whether the 1st appellant sold the dispute land with authority from the respondent and gave the proceeds o f the sale to the respondent. The trial tribunal answered the issue in the negative and declared the respondent the lawful owner o f the dispute land, hence, this appeal. The appeal which has six ground of appeal, was argued by w'ay of filing written submissions. Miss Francisca Lengeju of the Legal and Human Right centre, prepared gratis the submissions for the appellants. The learned advocate combined the first and fourth grounds of appeal. The complaint therein is that the lower tribunal chairperson misapprehended the substance, nature and quality o f the evidence o f the appellants resulting into deciding that the 2nd respondent did not prove his title to the dispute land. Her argument is that the tribunal disregarded the evidence that the second sale was authorised by the responded. Mr. Alex Yunga, counsel for the responded does not agree. He contends that the lower tribunal reviewed all the material evidence and determined the matter on credibility o f witnesses and relevance of their testimonies. I agree with counsel for the respondent. In its decision, the lower tribunal held that there was no written consent from the respondent for the 1st appellant to sell the dispute land and, as correctly held by the trial tribunal, exhibit D1 does not reflect that the 1st appellant acted on behalf of the respondent. It further held that there was no proof that the full purchase price o f the second sale was paid to the respondent which invalidated the sale for inadequacy of consideration and capacity to dispose of the dispute land. Even if I do not agree with the trial tribunal suggestion that consent ought to have been in writing (I shall revert to this issue when addressing the third ground of appeal), I find no good ground to fault the reasoning o f the trial tribunal. 1 hold that view because the 1st appellant testified that he had exhibit A1 from the respondent to prove being authorised to sell the dispute land. However, this was not the case because the original document was tendered in court by the respondent himself as exhibit A1 as demonstrated in the facts herein above narrated. The 1st appellant, therefore, lied when he testified that the respondent gave him the original copy o f exhibit A1 to prove the authorization to sell the dispute land. The 1st appellant is incredible in his assertion that he had the authority to resell the land. Regarding the evidence o f DW2 that he phoned the respondent to confirm if he authorised the sale and that he is a witness to exhibit D l, 1 find him incredible too. Firstly, because exhibit D1 is computer printed and attested by Samson Kinabo, Advocate. While the names o f the parties and witness on it are printed, that o f DW2 is ink hand written at the bottom side o f the document which is suggestive of interpolation. On cross examination he conceded he signed exhibit Dl at his residence. Impliedly, he was not present at the time o f execution and attestation o f exhibit D l by the advocate, therefore, he could not have phoned the respondent. Secondly, he could not have seen exhibit A1 before the signing of exhibit Dl because, as I have held, the 1st appellant had not the copy thereof. Therefore, he lied on this aspect of his evidence. In case the 1st appellant had anything to do with exhibit A l, it was not the original copy. Admittedly, the respondent did not cross examine DW2 on the issue o f his inquiry by phone about selling the land. However, that does not give credence to DW2 considering the circumstances of this case and my finding that he lied on other material facts o f the case like witnessing the sale at its execution and having seen the copy o f exhibit AI before signing exhibit D l. Failure to cross examine has adverse effect to the failing party if the evidence concerned has probative value. A lie has no evidentiary value. 1 hnd no merits in the first and fourth grounds of appeal. ! dismiss them. 1 he second and sixth grounds of appeal were also combined. They cover the complaint that the respondent gave false evidence as to the purpose and use o f the Tshs. 3,000,000/= and the trial tribunal erred by failure to rule that it related to paying to the respondent the proceeds o f the second sale. Counsel for the appellants has supported the complaint by submitting that the respondent did not prove that the payment was tor car engine as the allegation is unsubstantiated by documentary evidence while the 1st appellant tendered exhibit D2. Counsel for the respondent has replied that it was upon the 1st appellant to prove the deposit related to proceeds of second sale. 1 find that counsel for the parties are at loggerhead as to whom the burden o f proof lied. In my view, the principle he who alleges must prove under section 110 o f the Evidence Act [Cap. 6 R.E 2022] relate to allegation on a fact in issue. The burden lies on who asserts first and would fail if the assertion is not proved. In this case the issue is: what was the Tshs. 3,000,000/= deposited in the respondent’s account by the 1st appellant for? It is the 1st appellant who presented the proposition that it was payment for the second sale, therefore, the burden lies on him. I have examined exhibit D2, unfortunately, it does not state the purpose o f the deposit. In that regard, the assertion by the respondent that it related to other transaction is sufficient to rebut the assertion because it was not even pleaded. In terms of section 100 o f the Evidence Act, a document ought to be self-explanatory which is not the case here. I hold that the 1st appellant has failed to discharge the burden that the Tshs. 3,000,000/= related to proceeds of the second sell and was deposited into the account the respondent for that purpose. The second and sixth grounds o f appeal are also dismissed for want of merits. The third and fifth ground o f appeal were also combined. The complaint is that the trial tribunal disregarded the evidence that the contract authorising the 1st appellant to execute exhibit D l was oral while the evidence of the 1st appellant to that cffcct was unchallenged. 1 promised to revert to the issue of oral contract and this occasion is the opportune time. To support the complaint, counsel for the appellant submitted that it was an error for the trial tribunal to demand documentary evidence o f the authorisation because oral contracts are valid under section 10 o f the Contract Act and the decision in Leonard Dominic Rubuve t/a Rubuye Agrochemical Supplies v. Yara Tanzania Limited, Civil Appeal No. 219 o f 2018 [2022] TZCA 419 13 July 2022 at page 15. It was held: It is not necessarily that an agreement should be in a written form ” Counsel for the respondent did not meaningfully respond to this argument. I agree with counsel for the appellants that oral contracts are contracts recognised by the law. However, its existence must be proved. In this case such proof does not exist. As held by the trial tribunal, no evidence has been provided by the 1st appellant as to why he had to act on behalf o f the respondent. He has not even proved that after the sale he paid fully the purchase price to the respondent as consideration. In case o f oral contracts, subsequent acts or omissions of the parties are material to prove its existence. Failure by the 1st appellant to prove that the Tshs. 3,000,000/= relates to the second sell and that he folly paid the consideration to the respondent do not suggest execution o f the alleged oral contract. It may be true as argued by counsel for the 1st appellant that the evidence of the first appellant is unchallenged. However, for reasons herein above demon,;t?ated, that evidence cannot be true. I understand the 1st appellant is entitled to credence in his evidence that he was authorised to sell the land and that he paid the consideration to the respondent. However, his failure to explain why he had to act for the respondent and lying that he had the original copy o f exhibit A 1 make his evidence on the material facts highly improbable. The third and fifth grounds of appeal have no merits. They are dismissed. In the event, the whole appeal fails. It is dismissed accordingly. Costs to the respondent. Dated at ARUSHA ZONE this 16th of October 2024. JUDGE OF THE HIGH COURT