ezekiel mwasomola vs the registered trustee of church of god of prophecy 2021 tzhclandd 6681 17 september 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 212 OF 2020 (From the Decision of the District Land and Housing Tribunal for jemeke in Application No. 47 of 2017) V , EZEKIEL MWASOMOLA ...........APPELLANT VERSUS THE REGISTERED TRUSTEES OF ^j \ CHURCH OF GOD OF PROPHECY.... Last 0rcler:20/08/2021 Judgement date:17/09/2021 I l^U DG IVI ENT MANGO,3. The Respondent instituted Application No. 47 of 2017 before the District Land and Housing Tribunal for Temeke claiming ownership over a piece of land, located at Yombb Vituka, Temeke District in Dar es salaam. The Appellant who was the Respondent before the trial Tribunal claim to be the lawful owner of the suit land. He alleges to have purchased the land from one Grace Kassumba in 2002. The Respondent also claimed to have acquired the disputed land via purchase from the same vendor, Grace Kassumba in the same year, 2002. The Respondent alleged further that, the Appellant signed the sale agreement for purchase of the suit premises on behalf of the Respondent. The trial Tribunal ruled in favour of the 1 Respondent. Aggrieved by the decision of the trial tribunal, the Appellant preferred this appeal on the grounds of Appeal that can be paraphrased as follows:- 1. That the trial tribunal erred in law and fact for relying in his decision on incurable irregularities in proceedings and judgment; C 2. That the trial tribunal erred in law and fapt by disregarding the Appellants strong evidence and basing in his;decision on Respondents evidence which wa^ weak and (contradictory; 3. That the trial land tribunal drred in law and fact for failure to consider that the Application was time,barred at the time of its filing; 4. That the Trial tnbunal errn^ m law and in fact by failure to apply clearly.the piinciple of expert handwriting in case of Exhibit PI arid D1 in order to discover who wrote the name of purchaser;ih the two documents; 5. That the trial tribunal erred in law and in fact for failure to dp^y^independent mind to the dispute; 6. That the trial land tribunal misdirects itself in law and fact on the burden and standard of proof of cases of this nature; and 7. That the trial tribunal erred in law and fact for failure to call important witness to prove the matter accordingly On April 2021 this Court granted a prayer to have the appeal argued by way of written submissions. I am grateful to the parties as they filed their submissions as scheduled by the Court. Both parties had legal representation. The Appellant was represented by Mr. Godfrey F. Alfred, learned advocate while the Respondent was represented by Mr.,,^blnel M. Zephaniah, learned advocate. \ \\ ^/ In his submission, learned counsel for the Appellant abandoned the 5, 6, and 7 grounds of appeal. Submitting in.support of the^fi^ of appeal, he argued that, the trial tribunatdid not evaluate properly evidence adduced before it. He is of the view/that, the Appellaht's>evidence over ownership of the suit property outweighs that of the Respondent. To substantiate his argument, he highlighted weaknesses in the Respondents evidence. He argued that, although the trial tribunal held that the Respondent purchased the suit land via the Appellant there is no evidence that the Respondent had at any"^^ the Af)pellant the duty to purchase the plot on her behalf. He added that, the Appellant is not a member of board of trustees, \ • \ he was not granted any power of Attorney to purchase land on behalf of the Respondent and even the Respondent's constitution does not have any article which provides for powers of the Pastor to purchase land on behalf of the Church. The learned counsel is of the view that, the Appellant's evidence regarding ownership over the suit land is much stronger than the Respondents evidence. He argued that, as the Appellant's evidence is strong compared to the Respondents, the trial tribunal ought to have ruled in his 3 favour. He cited the case of HEMED SAID VERSUS MOHAMED MBILU to support the position that, he whose evidence is heavier than the other must win. On the second ground of Appeal, he submitted that the trial tribunal based its decision on the sale agreement. Exhibit PI which does not contain description of the suit land. He argued that despite the Sale agreement, the Respondent did not tender any documentary evidence that proVes ownership over the suit land. According to him. Exhibit PI canhdt-be>relieU upon as a \ ' -V proof of the Respondent's ownership over the suit land as it does hot indicate even the location of the suit land. He added that, as th^-^sale agreement is in written form, oral evidence regardjng such purch^e is excluded under section 101 of the Evidence Actr[Cap>6 R. E.,2019]. On the third ground of Appeal, the^'appellaht counsel submitted that the application before the'trial^tfibunal did>n;ot contain description of the suit land contrary to the requifemehts Of-Regulation 3(2)(b) of the Land Disputes Courts(The DistrictxLand add,Housing Tribunal regulations). He argued that, the Application indicates-that the suit land is located at Yombo Vituka Temeke,'Dar ds Salaam. He is of the view that, facts given as to the location of the suit land do nbt'suit the purposes of the mention regulation 3(2)(b) of the cited Regulations. He argued further that, failure to describe the suit land in the Application is a fatal irregularity. He cited the decision my brother Hon. Utamwa, J. in the case of DANIEL DAGALA KANUDA (AS THE ADMINISTRATOR OF THE ESTATE OF THE LATE MBALU KASHAHA BULADO VERSUS MASAKA IBEHO AND 4 OTHERS Land Appeal No. 26 of 2015 High Court of Tanzania at Bukoba to support his arguments on description of the suit land in an Application. On the fourth ground of Appeal he argued that the Application was entertained while already time barred. He submitted that, the Appellant has been occupying the suit land from the year 2002 to 2017 when the Respondent instituted this suit. He argued that, the law of limitations Act provide for time limit for suit for recovery of land to be 12 years. From 2002 to 2015, 15 years passed and the Appellant has been occupying and developing the suit land peacefully. He referred this CourTto the case of SHABANI NASSORO VERSUS RAJABU SIMBA (1967) HCD 233 and concluded that the suit was time barred at thf time of itS/institatiph. ^ x, In his reply submission counsel for therRespondent submitted that, the Respondent managed to prove her<pase pn the reguired standard. With regard to the alleged lack of proof orthe.Respondent's ownership over the suit land, he argued that the testimony of the vendor one GRACE KASSUMBA and the sale agreement prove that the^Bp^Pondent is the lawful owner of y A. . y / the suit land. Thus; the sale, agreement was not the only evidence that establishes the Respondent's qwnSship over the suit land. The learned counsel submitted that, the second ground of appeal is merit less because,,the trial tribunal did not base its decision solely on the contents of the sale agreement but also other evidence adduced before trial. He argued that it is.ndt disputed that both parties allege to have purchased the suit land from one vendor namely Grace Kassumba. And Grace Kassumba testified to the effect that she sold her land to the Respondent and not the Appellant. On the third ground of Appeal, the learned counsel for the Respondent submitted that the description of the suit property provided under the application lodged before the trial tribunal is in compliance with the contents of Land Form No. 1. Thus, the application was properly instituted before the Tribunal. The learned counsel submitted that the fourth ground of^Appeal is baseless as the matter is not time barred. Citing section 5(5)of the Lavy^of Limitations Act he argued that time limit for legal actions starts to run vyh of action accrues. As to when the cause of action accrues, he argued that cause of action accrues on the date wR^n The right of\action arises. He referred this Court to the case of ■JOHNvM. BYQMB^LIRWA VERSUS AGENCY MARITIME INTERNATIONAL (TANZANIA) LTD (1983) TLR 1. /■/ He argued further, that paragraph 6(f)^ 0^^ Application indicates that the cause of action in this Applicaborf arosje in 2014 when the Appellant stopped to serve as the F^espondejntS/.Pastor and refused to hand over the Respondents properties including the suit land. He prayed to have the Appeal dismissed with costs.. In his rejoinder the Appellant Counsel reiterated his submission in Chief. i ' X /' ' / I have conside'red submissions by both parties and court record. I will start with the issues that concern the competency of the Application before the Tribunal. On the issue that the Application was time barred at the time of its filing, the contents of the Application and evidence tendered during trial indicates that the suit was not time barred at the time of its institution. As correctly submitted by counsel for the Respondent, the Application itself 6 indicates at paragraph 6(i)(f) that the cause of action accrued in 2014. The Paragraph reads; 'That sometimes in 2014 the Respondent illegally withheld the church building at Yombo Vltuka which was handled to him as pastor of the said church claiming ownership of the same and converted the same for the use ofanother ministry best known to himself" -. 'v Such facts and the absence of any proof by the App.dllaht;5that.the cause of action arose prior to the year 2014, indicates that the. matter was not time •\ barred as alleged by the Appellant. Xhds,^the fourth'grognd of appeal does not have merits and is dismissed. ^ ,\ ' On the issue that the Application has not\clescriBe the land in dispute, I am of the view that this issue ogght to,havp;beefi raised before the tribunal, the tribunal would have considerMwhethef/the application described the suit land or not. If. I have to consider it now, then I will not consider the Application ;alone, I, will consider the application and evidence adduced before trial. In this,: theTfesponse will be in affirmative as first, para 3 of the Application provides that the suit land is located at Yombo Vituka Temeke District and sale agreement which was tendered and admitted as exhibit P3 indicatesXhatXhe plot sold is Plot No. 454 Vituka. The Appellant also testified to the effect that before he requested the Plot to be surveyed, it was known as Plot. No. 454. With such description, it cannot be said that the Applicant, who is the Respondent in this Appeal has not described the suit property as in the case cited by the Appellant, Daniel Dagala Kanuda's case, where the suit property was not described at all. Despite that, the cited Regulation 3(2)(b) of GN 174 of 2003 requires the Applicant to provide address or location of the suit land. The Regulation reads; An Application to the tribunal shall be made in the form prescribed in the second schedule to these regulations and shall contain: (a)N/A (b) The address of the suit premises or location oIf the land involved in the dispute to which the Application relates,(emphasis added) /> In that regard I agree with the Counsel for, the '^esponGlent,that facts provided under paragraph 3 of the Application serves the requirements of the Regulation. In such circumstances>The^^ of appeal is dismissed. N . '-\ On whether the sale agreenleht proves thXRespondents ownership over the suit land or not, I agree witH\the couhsql for the Respondent that, the Trial tribunal did not base its decfsion^splely on the sale agreement. It considers also testimonies of witnesses including the vendor of the suit land. The sale agreement produced'and admitted as Exhibit P3 indicates that, the Appellant signed a,sale agreement on behalf of MS THE CHURCH OF GOD PROPHECY. In his, testimony, the Appellant did not establish that he is the Church Of God Prophecy. Thus, the presence of his name and signature as the person who signed the sale agreement while the purchaser is clearly indicated to be the Church of God Prophecy establishes nothing other than he signed the sale agreement on behalf of the Church of God Prophecy. In such circumstance, he cannot claim to be the owner of the plot described in the agreement as Plot No. 454. 8 The Appellant produced a sale agreement between him and the said Grace Kassumba, thus making existence of two conflicting sale agreements executed on the same date by a single vendor and two different purchasers over the same piece of land before same set of witnesses. However, the seller testified to the effect that she sold her land to the church and not the appellant. The two sale agreements indicate that, they were both signed by the appellant in two capacities, they were executed on thasame date, that is, 4^*^ November 2002 and witnessed by same people Leonard Mpoflo and Victor Mwambalaswa. In the agreement produced by the Appellant(Dl), the appellants name appears as the purchaser^the suit land In the agreement produced by the Respondent(P3), the>AppeTrant the person who signed the sale agreement on behalf of the Respondent. Contents of the Respondents sale agreement^afe supported .by^ the testimony of the vendor and Leornard Mpollo (PW3')\ who \ is arribhg \ '' 'x the''witnesses ^ to the agreement while the Respondehts sale .agreement/is not supported by any of the persons who took part in it^:execution With such evidence it cannot be said that the Appellant testimony weighs more than the Respondents. In such Hixumstances I ft reason to interfere with the findings of the trial(tr^ibunal. the Appeal is here by qlisnr|issed with costs. Z. D. MA O JUDG 117/09/2021