20161118 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA I.I

ATMWANZA LAND APPEAL NO. 28 OF 2014 ' (Originating from the Decision of the District Land and Housing Tribunal of Mwanza at Mwanza, in Land case no.211 of 2009} EMERENCIANA LUKONA ............................ ............. APPELLANT

VERSUS MASUNGA MBOJE .... ............ ■ • ••·•••• •••••••• I • • • ■■ •••••••••• RESPONDENT

JUDGMENT 6/9/2016 & 18/11/2016 GWAE,J Before the District Land and Housing Tribunal (trial tribunal), the respondent filed a land dispute against the appellant seeking for the following orders; Respondent to be ordered to pay Tshs. 5, 000,000/=as loan money lent to the appellant's, alternatively, the applicant to be declared the l~wful owner of the mortgaged house, Plot No. 11, Block "M", Kiseke -:-Mwanza, General damages and costs of the case. To substantiate his claims, the respondent during trial was able to tender loan agreement dated 1st December 2006 (Exh. P3), Land Rent Receipt ~IS 1 1 ' 1g97-2007 (Exhibit P1), certified copy of letter of offer dated 19th October 1987 (Exhibit P2). In her defence, the appellant patently denied to have sold or mortgaged the suit plot adding that she decided to report to police about a loss of her letter of offer, immediately when the respondent sought to forcibly evict th her from the suit premise, she then produced the Loss Report dated 7 March 2007 which was admitted as Exhibit DI. The appellant also during her defence tendered her Identity Card and voter's registration Card collectively admitted as Exh. D3. Having been aggrieved by the trial tribunal decision and its subsequent orders to wit; the appellant to pay the principal sum, Tshs. 5, 000, 000/ = plus 10% being monthly interest from the date default, alternatively the mortgaged Plot to be sold in order to realize the decretal sum and payment of general damages in the tune of Tshs. 2, 000,000/=, the appellant filed this appeal with four- grounds of appeal, to wit:- .

1. Had the trial tribunal properly evaluated the evidence would have found that the person who signed the loan agreement Exhibit Pl was a impostor masquerading as the appellant. ~ · • 2 2. Had the trial tribunal properly evaluated and appreciated the evidence would have found the appellant was not a party the loan agreement, thus was m=not liable thereto.

3. That on the evidence on record the trial tribunal ought to have found the appellant was a lawful owner of the disputed property, Plot No. 11 Block "M" situated at Kisesa in Mwanza City.

4. That the trial court erred in law and fact in awarding interest of 10 % per month on the said loan a matter which was not pleaded nor addressed by the parties at the trial. Moreover the appellant via his learned counsel, sought and was granted a leave for additional ground that is "The trial tribunal decision is erroneous for admitting and basing its decision on Exhibit P3, the mortgage deed without" proof of execution thereof as required by the law At the hearing of this appeal, ~he appellant and respondent had legal services of Mr. Matata (adv) and Mr. Makwega (adv) for the appellant and respondent respectively, the parties' advocates also were the ones who had conducts of the dispute between the parties before the trial ~ tribunal. 3 ., {, The appellant's advocate however abandoned the 4th ground of appeal and in arguing this appeal, Mr. Matata generally stated that the appellant was not a party to the loan agreement, her mortgaged house should not be held liable for possession by the respondent/ money lender or for sale to realize the loan money and that the fact that the appellant was not a party to the agreement was also supported by evidence adduced by the respondent (PWl). Mr. Mat~ta added that since there was contention as to one who exactly signed the loan agreement (exhibit P3), it follows therefore the exhibit P3 would not be admitted as there was no compliance

with section 70 of the Tanzania Evidence Act, Cap6, R. E, 2002 where an attesting officer would have been summoned to prove or disprove the assertion that the appellant appeared before him and signed the Exhibit P3. The appellant's advocate went on further focusedly submitting that the Exhibit P3 ought to have been expunged from record for non-compliance with the legal requirement. Mr. Makwega vehemently submitted that it was the SAID merenciana Lukoja who signed the loan agreement and mortgage being the Plot in dispute, thus the said mortgagor and the Mortgaged Plot cannot therefore~ 4 ' - escape from contractual liability of repaying the loan facility in the tune of Tshs. 5, 000,000/=. Mr. Makwega also submitted that if it were true that the appellant's daughter was the one who entered into the loan agreement with the respondent, the appellant would bring her daughter in court to testify to that effect adding that the Exhibit P3 should not be expunged from the record as the appellant's counsel did not object its admission during trial of the dispute. Having looked atthe appellant's grounds contained in the memorandum of appeal together with the additional ground of appeal indicated above I am of the considered view that all grounds essentially entail one ground that is 'That the trial tribunal misdirected itself in holding that appellant, Emerenciana/Emelisiana Lukona was a

party to the loan agreement'. In determining this ground, this court and the tribunal of first instance ought to ascertain actual parties who entered into the loan agreement (Exhibit P3) dated 1st day of December 2006. According to the evidence · adduced and in the trial tribunal record, exhibits inclusive, the present suit premise with a letter of offer dated 19th October 1987 bears n~mes o f ~ 5 \ ; ~ ·- - EMERENCIANA LUKOJA, appearing also in this appeal, appellant's former employment Identity Card and in the respondent's application and not EMELENSIANA LUKOJA as appearing in the trial tribunal record (case file cover), trial court judgment, loan agreement (Exhibit P3) moreover in other documents annexed or tendered in court such as the same name, Emerencuana in the written statement of defence. I think the differences appearing in the appellant's names might be so due to pronunciation or use of either English or Swahili_ language. I think the differences do not go to. the root of the case or· rather the names used refer to one person. As to whether the appellant entered into the loan agreement with the respondent as alleged by the respondent, the respondent's application was duly filed on 25/8/2009, paragraph 5 (iii) & (iv) of the application depicts that the applicant entered into loan agreement with a persori who introduced herself to be known by names of Emelenciana

Lukoja and now it was· alleged before the trial tribunal that the mother of mortgagor obstructed the respondent from exercising one of his remedies, notably, of . I occupying the mortgaged house by contending that she is owner of the / , ~ mortgaged property. 6 · I think the trial tribunal ought to look at the parties pleadings, framed issues according to the contentious matters from the parties' pleadings as was persuasively held in Bros v Bell [1931] 1 KB 557 at 582 and 583 that: "In my opinion the practice of the Courts has been to consider and deal with the legal result of pleaded facts ... " In view of the above persuasive authority, the trial tribunal ought to look at the parties' pleadings and clearly understood the area of controversy and evidence adduced before it, the appellant from her written statement of defence and her testimony is found alleging that she is called Emerenciana Lukoja, the owner of the house in question and that the one who transacted with the applicant is different and distinct person, the evidence necessary was whether the appellant is called Emerenciana Lukoja or not if in affirmative whether the appellant is the owner of the mortgaged property, the respondent, to my considered opinion, ought to have proved beyond balance of probabilities that the appellant is not called Emerenciana Lukoja and therefore not the owner of the suit premise, With

due respect, it has sufficiently been established that the appellant is . called Emerenciana lukoja by exhibit D3 (identity Card and Voter's name), the appellant had also established that she was born in 1942, now ~ - 7 an old woman which is according to the evidence of PW2, Jackson Nyanjo who testified that during identification beacons of the Plot No. 11 he was assisted by one lady estimated by then to be of 16-30 years old, definitely not the appellant. Moreover the certified copy of letter of offer admitted as exhibit P2 dated 19th October 1987 bears names of Emerenciana Lukoja, names of the appellant as earlier pointed out, It should be known in advance that the one called a lady if born in 1980 was still of 26 years old in the year 2006, was it possible for a girl of six or . seven to have been granted a letter of offer in 1987? To my view, the answer is negative. I am however aware that the loan agreement entered on 01/12/2006 ought to have been tendered by an attesting officer ( commissioner for oath) as provided for under section 70 of the Tanzania Evidence Act, Cap 6, R. -E, 2002, which is reproduced herein under.for the purpose of better understanding "70. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness has been called for the purpose of proving its execution, if there is an attesting witness alive . .

I· and, subject to the process of the court, capable of giving evidence". !~" 8 . In this instant matter, the appellant's counsel during hearing of this appeal sought for an order of this court expunging the Exhibit P3 (Loan agreement) for the reason that the same was unprocedurally admitted. Nevertheless, in our case, I think compliance with section 70 of TEA was not necessary as there is no dispute that the respondent entered into a loan facility with a person who introduced herself to be known by names of Emerenciana Lukoja except that the appellant is vehemently contending that she is the owner of the suit plot and if the respondent had entered into loan agreement, he must have done so With a different and distinct person with no right over the plot in dispute or in other words the one who entered into loan agreement with the respondent on 1/12/2006 must have impersonated to be known by names of Emerenciana Lukoja, since it was not contested the respondent had not entered into loan agreement with appellant and since the respondent is not alleging that he entered into agreement with the present appellant except an assertion that the appellant is neither called Emerenciana Lukoja nor is she a lawful owner. of the mortgaged premise. In the present land dispute, I am satisfied that the trial tribunal did not . direct its mind properly in contentious issues before it and

eventually did ~ 9 not objectively evaluate the evidence adduced before it. The appellant to my considered view had testified· to the reasonable decree of reasonable probability that she is the rightful owner of the suit premises and that her names are Emerenciana Lukoja, hence her testimony is more probable than not (see a persuasive decision in Miller v Minister of Pensions [1947] 2 All ER 372. I say so for the following reasons, namely:- 1. That, the appellant had sufficiently proved to be called Emerenciana Lukoja by tendering Exhibit D3 and the respondent had failed to establish that the appellant is not called Emerenciana Lukoja and therefore not owner of the suit premises.

2. That, the alleged Emerenciana Lukoja/ Emelensiana Lukoja identified to be different from the present appellant by PW2, was a young lady wh_o assisted him in the demarcation process in the Plot in dispute in the year 2006 3. That, there is ample evidence that the letter of offer in respect of the Plot in dispute got burnt/lost (see exhibit Pl-affidavit and loss report), hence it was high probable that the appellant's daughter~ 10 v. would use that event to pretend herself to be the owner of the house taking into account that the former letters of offer did not bear passports of their respective owners For the foregoing reasons the appeal is not without merits. I therefore allow it, set aside the trial tribunal decision and its ancillary orders thereto. Due to the nature of the matter at hand, I shall make no order as to costs; in other words, each party shall bear its own costs. It is so ordered. ~ . M.R~~ Judge 18/11/2016 Right of Appeal and its pre-requisite actio.,~ exp~ained M .t'l.~--'e-- . - ~) ~,,-- - i l- , I) Judge 18/11/2016 -Court. Ruling delivered in the presence of Mr. Chama (adv) holding brief for both Mr. .Matata and Mr. Makwega, . for the appellant and respondent respectively, this18 th November 2016. -/.:hlnl~· f1771 ._ -~ . -·- - I, 1 ,~·:· M.R.G Judge 18/11/2016 11 Court. Copies of the judgment and decree collectable today subject to compliance with the necessary payment of court fees /}~\ M.~:'~. Judge 18/11/2016 12 .-, "'f