esther magese vs erasto sayi noni 2021 tzhclandd 6962 26 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL No. 52 OF 2021 (Arising from Lsnd Appeai No.69 of2020 before the District Land and Housing Tribunai ofliaia, and originai case No. 52 of2020 Msongoia Ward Tribunai atliaia) ESTHER MAGESE APPELLANT VERSUS ERASTO SAYI NONI RESPONDENT JUDGMENT Date oflast Order: 4/11/2021 Date ofJudgment:26/11/2021 T. N. MWENEGOHA. J. The appellant being aggrieved by the decision of the Kibaha District Land and Housing Tribunal (herein after the appellate Tribunal) appealed to this court on the following grounds; 1. That the Ilala District Tribunal erred in law and fact for not considering that the Msongoia ward Tribunal has no jurisdiction to entertain the disputed piece of land. 2. That the Ilala District Tribunal erred in law and fact by regarding the fabricated sale agreement of Respondent and declared ownership of the disputed land. 3. That the Ilala District Tribunal has erred in law and fact when it failed to discover that, the respondent sale agreement was never stamped with Tanzania Revenue Authority consistent with the Stamp Duty Act. 4. That the Ilala District Tribunal erred in law and fact by awarding land in dispute to the Respondent without any plausible proof. It is the appellant prayers that, judgment of the appellate Tribunal be quashed and set aside, the said sale agreement be declared null and void, the respondent be declared that he is not a lawful owner of the land in dispute, the court be pleased to declare that the disputed land is the matrimonial property, costs of this appeal and any other relief(s) this court may deem fit to grant. The hearing of this appeal proceeded by way of written submissions, and during the hearing the appellant appeared in person and unrepresented whereas the respondent was represented by Mr. Aaron Lesindamu. Submitting on the first ground of appeal, the appellant claimed that the appellate Tribunal erred in law and fact for determining the disputed land without first ascertaining whether the ward tribunal had jurisdiction to entertain the matter before it. That the value of the subject matter has exceeded the pecuniary jurisdiction of three million shillings. She further submitted that, at page 19 of the judgment of the Tribunal (Ward)that the disputed land has three houses, the first house has ten rooms, the second has 3 rooms, sitting room, dinning, store and third house has one room, kitchen, and frame. That, these exceed vaiues of three miliion Shillings. That Section 15 of the Land Disputes Courts Act R. E. 2019 provides; "Notwithstanding the provisions ofsection 10 of the Ward Tribunais Act, the jurisdiction of the Tribunai shaii in aii proceedings ofa dvii nature relating to land be limited to the disputed land or property valued at three million shillings" Therefore, that, it Is the requirement of law that the pecuniary jurisdiction to the Ward Tribunal not to exceed three million shillings, but the reality of the disputed land is more than the said amount. Submitting on the 2"*^ ground of appeal the appellant submitted that, the said sale agreement is a fabricated document because the chairman of Mbondole Street who signed the said fabricated sale agreement was erected to that position in 2015 and not 2010,therefore, that the person who signed the said sale agreement was not a chairman in 2010, and the neighbours who testified in sale agreement are also fake /fabricated. Also, the seller in that sale agreement was not the owner of all disputed land as indicated in the sale agreement. The appellant added that the chairman of Mbondole Street where the disputed land is situated, in 2010 was one by the name of Matangula and not Thomas Nyanduli whose signature appeared in the fabricated sale agreement. As regard to the 3"^*^ ground of appeal, she submitted that according to Section 47(1) of The Stamp Duty Act Cap 189 R. E. 2018 which provides as follows: "No Instrumentchargeable with dutyshall be admitted In evidence for, any purpose by any person having bylaw or consent ofparties Authority to receive the evidence or shall be acted upon, registered In evidence authenticated byanysuch person or byanypublic officer'' That the directions that any instruments not duly stamped are inadmissible in evidence. To support her argument, she cited the case of Josephat L.K Lugaimukamu Vs. Father Canute [1985] TZHC the Mzuwanda Judge (he was then) Held that:- "The ruling by the trial court on the admissibiiity of the written agreement was erroneous because section 46 ofthe Stamp Duty Act^ 1972 cieariy stipulates that under no circumstances may an unstamped document which requires to be stamped be admissible in evidence" Therefore that, it was wrong for the trial Tribunal to admit the document which is not stamped as it is required by the law. Submitting on the fourth ground of appeal, she submitted that the basis of proof by the respondent at the trial Tribunal was the sale agreement which is fabricated. That, the respondent conspired with her husband, one Erick Tumaini and fabricated sale agreement, so that the disputed land could not be included in the Matrimonial Cause no. 58 of 2020 at Ukonga Primary Court. Therefore that, the trial Tribunal relied its findings on the fabricated sale agreement. The appellant finalised her submission by praying the court to quash and set aside the decision of the appellate Tribunal. When replying Mr. Aaron submitted that, the appellate Tribunal was right to reach at its decision as there was no proof of the value of the disputed land, no evidence of valuation report to prove the amount claimed by the appeliant herein. That at the trial proceedings the sale agreement was the only document which could be relied upon as the evidence to justify the jurisdiction of Msongoia Ward Tribunal to entertain the matter, that nevertheiess it is the duty of the one who allege existence of the matter to prove the existence of the same. Mr. Aaron further submitted that the appellate court has no room to hear new evidence, the party opposing the existence of the alleged matter had time to bring the evidence during hearing in the trial Tribunal and not at the appellate stage. Mr. Aaron consolidated and argued together the 3'"'' and the 4^^ grounds of appeal. He submitted that the appellate Tribunal was also right to decide in favor of the respondent, as the matter before it was by way of appeal, it originated from the Msongola Ward Tribunal, therefore,that at the appellate stage no new evidence is supposed to be tendered. He added further that, the appellant had a room to argue on the authenticity of the sale agreement during hearing at the trial, before Msongola Ward Tribunal not at this stage of appeal. That it is a settled principle that, the one who alleges must prove as per Section 110 (1)(2) and 111 of the Tanzania Evidence Act, Cap 6 R. E. 2019. As regard to the issues of stamping the sale agreement, and issue of fabrication of sale agreement of the suit land, he said that all these were supposed to be challenged during hearing at the trial Tribunal. That, at the time when the respondent was tendering the documents, the appellant was supposed to raise the objection to challenge the authenticity of the said sale agreement. Having gone through the parties submission, and the records of this appeal the main issue for determination is whether this appeal has merits. Submitting on the 1^*^ ground of appeal the appellant submitted that by considering the fact they made some improvements on the suit land by constructing three houses, one with ten rooms, and another house has three rooms, sitting room, dining room kitchen, and a frame, according to her the value of all these exceed three million, therefore the trial Ward Tribunal entertained the matter which it had no jurisdiction to entertain as its pecuniary jurisdiction is three miilion shiliings oniy. I am in agreement with what the appeilate Tribunal said regard to this ground, what the appellant is doing is just alleging without taking a step to prove her allegations. She has failed to tender any tangible evidence to prove her allegations there is no valuation report. It is true that when entertaining land matters the pecuniary jurisdiction of the ward Tribunal is three million shiliings and during the trial the respondent said that they purchased the suit land with the total amount of two miilion shillings and the respondent herein said presented the sale agreement proving what he said that he also purchased the suit land with the total amount of two million shillings. The Tribunal proceeded adjudicating the matter knowing the value of the suit land to be within its pecuniary jurisdiction. What I see is that the appellant is coming with this issue as an afterthought since she did not win the case, if her allegation was sincere, she was under the duty to inform the trial Tribunal. At this particular point she is estopped from denying what she presented at the thai Tribunal See Section 123 of the Tanzania Evidence Act, Cap 6 R.E. 2019. I am going to consolidate and analyse together the 2"^^ and the 4 grounds of appeal. The appellant submitted that the appellate Tribunal's decision relied upon the fabricated sale agreement, without any other reasonable proof. It is a trite law that when entertaining an appeal, the appellate Tribunal do not gather additional evidences rather it focuses oniy on the available evidences on the records. Passing through the records of the thai Ward Tribunal, it is clear that during the trial Tribunal the respondent herein managed to tender the sale agreement which was not objected by the appellant herein, and also the respondent managed to present witnesses before it whose testimony added more value to the respondent facts hence the trial Ward Tribunal decided in favor of the respondent herein. The appellant herein had a chance to object the content of the sale agreement, and also, she had a chance to present her own evidence and witnesses before the trial Ward Tribunal but she never presented any evidence or witnesses to corroborate her own side of the story, instead she is now coming with allegations which were denied by the appellate Tribunal. Therefore, the same cannot be entertained by this court. As regards to 3'^ ground of appeal. Section 47(1)(e) of the stamp duty and Act, Cap 189 R. E. 2019 provides for an exemption of stamp duty to the documents which have been executed before the government authorities, the impugned sale agreement bears the stamp of the government authority which reveals that it was executed before Mbondo street chairman, therefore, the absence of the stamp duty does not vitiate its admissibility. Accordingly, the appeal before me is not meritorious. On the above observation, this court has no basis of faulting the judgment and decree of the appellate Tribunal. The appeal is accordingly dismissed with no order as to costs. It is so ordered. Dated at Dar es salaam this 26^^ day of November, 2021. o . MWENEGOHA c JUDGE m > -k I \ rv"