JUDGMENT EZRAY LALIKA VS NYELELE MZOZYA AND ANOTHER LAND APPEAL NO 3652 OF 2024

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB- REGISTRY

AT MBEYA LAND APPEAL NO. 3652 OF 2024 (Arising from the judgment District Land and Housing Tribunal for Mbeya at Mbeya in Land Application No.215/ of 2017) EZRAY LALIKA………………………………………........................…APPELLANT

VERSUS NYELELE MZOZYA MZUMBWE…………….……………….…1ST RESPONDENT NYAKUSANJA CHAGUNYA MUGIRE………………………....2ND RESPONDENT

JUDGMENT Date of last Order: 20th May, 2024 Date of Judgment: 10th July, 2024 KAWISHE, J.: The appellant, EZRAY LALIKA filed an appeal in this court after being aggrieved by the decision of the trial tribunal in Land Application No. 215/2017 before the District Land and Housing Tribunal (DLHT) for Mbeya at Mbeya. The appellant filed five grounds of appeal before this court as follows: 1. The honourable chairperson of the District Land and Housing Tribunal erred in law and fact to decide that Certificate of Title No. 6346 MBYLR (P1) is no 1 longer existing as plot No. 137 and 138 was separated while exhibit P1 to date is still in existence as neither transfer nor separation of plots has been made and the appellant to date is still paying land rent for all two plots.

2. The honourable chairperson of the District Land and Housing Tribunal erred in law and fact to decide that plot No. 137 and 138 has been separated while Certificate of Title No. MBYLR (P1) consisting of Plot No. 137 and 138, at the time of the purported separation was mortgaged to CRDB Bank PLC.

3. The honourable chairperson of the District Land and Housing Tribunal erred in law and fact for failure to state on her decision as to whether she agrees or disagrees with assessors’ opinion.

4. The honourable chairperson of the District Land and Housing Tribunal erred in law and fact to ignore the request of the appellant to summon the Commissioner for Land to appear top the tribunal and testify on the legality of certificate of Title No.6346 MBYLR (P1) and Certificate of title No.11978 MBYLR(D2).

5. The honourable chairperson of the District Land and Housing Tribunal erred in law and fact for failure to properly evaluate and analyse the evidence adduced before her hence arriving at erroneous decision of granting the suit land to the 2nd respondent. The facts of the case as from the evidence of both parties at the trial tribunal and records are as follows: that, the appellant claimed to be the lawful owner of the land in dispute Plot No. 138 Block D located at Mbalizi area with Certificate of Title 6346 MBYLR. That, he bought the said land in 1995 and applied for a certificate of title in 1997, the certificate admitted as exhibit P1. That, he entered into a loan agreement with CRDB in 1997 and mortgaged his house. That, the mortgage was discharged on 4th December, 2018 the documents were 2 admitted as exhibit P2. The facts further reveal that, the two plots belong in one certificate and not two certificates. That, it was discovered that, the appellant’s wife Jenipher Ezra Lalika entered into a loan agreement with Cosmas Malila (deceased), despite that the appellant denied to know Jenipher Lalika as his wife. That, she took a loan of Tshs. 6,000,000/=. That, Jenipher was the owner of Plot No. 138 Block D located at Mbalizi. Before the trial tribunal SM1 denied to have known that there is existence of Certificate of Title No.11978 MBYLR under Plot No. 138 Block D in the

name of Jenipher Ezra Lalika. However, before 2006 the suit land was located in one certificate of title that is, CT 6346 MBYLR, there were two plots; Plot No. 137 and Plot No.138. SU4 stated that, there was an application by the appellant to divide the certificate of occupancy. Therefore, the two certificates were obtained, one with the name of Jenipher Ezra Lalika and became the owner of Plot No. 138 and another one with the name of Ezra Yohana Lalika and became the owner of Plot No.

137. That, letters of an offer of Pot No. 137 and 138 and the letter from Mbeya District Council demanding the appellant to return the certificate of occupancy were admitted as exhibit D4. The same also was denied by the appellant. 3 It was further recorded before the trial tribunal that, later on, SU1 (Nyelele Mzozya Mzumbwe bought the land in dispute (Plot No. 138 block D) from Cosmas Malila and Jenipher Ezra Lalika and there was transfer of ownership from Jenipher Ezra Lalika to SU1. The transfer form was admitted as exhibit D2. However, SU1 added Tanzanian Shillings 7,500,000/=. That, after being sued by Ezra Lalika and Jenipher Ezra Lalika in the DLHT for Mbeya at Mbeya in Application No. 22/2009, where they claimed to be the lawful owners of the said land in dispute. The dispute was settled out of the court and the parties entered into a consent judgment. The consent judgment, decree and proceedings of the trial tribunal were admitted as exhibit D1. Despite that, the appellant denied to have filed the Land Application No. 22/2009 and objected the same, but he knew there was an agreement but he was not there. Later on, SU1 sold the said land in dispute to the 2nd respondent (Nyakusanja Chagunya Mugire). Consequently, there was transfer of the ownership from SU1 to SU2, the transfer was admitted as exhibit D3. At the end of the trial, the appellant was aggrieved with the

decision hence, this appeal. Upon agreement the parties argued the appeal by a way of written submissions. The appellant appered under the service of the learned 4 counsel of Mr. G. C. Msegeya whereas, both respondents enjoyed the services of the learned counsel Mr. B. Mbwilo. In his submission the appellant’s counsel abandoned the third ground of appeal. Thus, he remained with four grounds of appeal. In the first ground of appeal that the honourable chairperson of the DLHT erred in law and fact to decide that Certificate of Title No. 6346 MBYLR (P1) is no longer existing as Plot No. 137 and 138 was separated, while exhibit P1 to date is still in existence as neither transfer nor separation of plots has been made. That, the appellant to date is still paying land rent for all two plots. The certificate of title which was tendered by the appellant was admitted as exhibit ‘P1’’ without objection from the respondents. There is no evidence from the respondents to prove that, the certificate of title was separated despite the letter of an offer and exhibit D4, that was tendered by SU3. The letters of offer are questionable on its authenticity, because no evidence was given in its corroboration that the letters offers were signed by the appellant and his wife. Also, the same letter of an offer was prepared on 7th May, 2020, almost four years since, the appellant had filed his

application in the DLHT at Mbeya, and there is no evidence that the said letter was served 5 to the appellant. Thus, he submitted that, the trial tribunal erred to decide that the said certificate of title does not exists. Regarding the second ground of appeal that the trial tribunal erred in law and fact to decide that Plot No. 137 and 138 has been separated while Certificate of Title No. MBYLR (P1) consisting of Plot No. 137 and 138, at the time of the purported separation was mortgaged to CRDB Bank PLC. That, the title has been mortgaged since 1997 and it was discharged on 2018. Thus, it was not possible to separate the two plots without obtaining consent of the mortgagee as per section 122 of the Land Act now section 123 of the same Act. The respondents claim that, the subdivision was done in 2006, while there was no said consent. Reverting to the fourth ground that the trial tribunal erred in law and fact to ignore the request of the appellant to summon the Commissioner for Lands to appear before the tribunal and testify on the legality of certificate of Title No. 6346 MBYLR (P1) and Certificate of Title No. 11978 MBYLR(D2). The learned counsel submitted that, the Commissioner for Lands being the principal administrative and professional officer, and advisor to the government in all matters connected with the administration of the land was not summoned. The appellant’s

raised the issue to join the Commissioner for Lands at page 6 21 and 22 to testify on the legality of Title No. 6346 (PI) and 11978 (D2). The counsel argued that exhibit D2 was obtained illegally. Failure to summons the Commissioner for Land is a serious illegality on the part of the trial tribunal, and its effect makes all the proceedings of the trial tribunal to be nullity. That, the Commissioner for Lands was the one to resolve the contentious issue on the existence of the two certificates on the same plot. The trial tribunal was supposed to summon the Commissioner for Lands even suo motto to testify on this. Digesting on the fifth ground of appeal that the trial tribunal chairperson erred in law and fact for failure to properly evaluate and analyse the evidence adduced before her hence arriving at erroneous decision of granting the suit land to the 2nd respondent. The counsel argued that, the exhibits which were tendered were not recognized by the witnesses. He referred page 25 and 26 that, the first witness SU1 did not recognise exhibit D1, and page 28 exhibit D2 was not recognised. The same to SU3 did not recognise exhibit he tendered which is a letter dated 7/5/2020. Thus, the documents were irregularly tendered and admitted. On the issue of analysis and evaluation of evidence he argued that, the trial tribunal had it subjected the oral evidence and 7 documentary

evidence to keen scrutiny it would not have arrived at a conclusion of granting the suit land to the 2nd respondent. Also, that the division of the two plots from the one plot without application to the Commissioner for Lands. And the purported sale of Plot No. 138 to the 2nd respondent while, the certificate of title was in the hand of CRDB, the appellant did not consent the subdivision and the sale of the said plot by Jenipher Ezra Lalika to the 1st respondent without spouse consent. Therefore, this being the first appellate court has the duty to re-evaluate the entire evidence on record by reading it and to arrive at its own conclusion. He cited the case of D.R Pandya vs. Republic [1957] EA 336. Then, the counsel prayed the appeal to be allowed with costs. In reply the respondents’ counsel submitted as follows. On the first ground of appeal he submitted that, the separation of CT. No. 6346 MBYLR was done and the transfer was effected. The mere fact that, the appellant has the certificate in his hand does not mean that the certificate carries any value. The exhibit P1 is mere useless paper as it was deleted. The counsel argued further that, Plot No. 137 and 138 are not in one certificate of the right of occupancy. That, SU1 testified that Plot No. 138 which was previously owned by Jenipher Ezra who is the 8 appellant’s wife was bought for Tshs. 6,000,000/= in 2009. That,

the appellant filed a suit to claim the same land but the matter was settled out of the court. As a result, deed of settlement was filed where, a consent judgment and decree were issued. That, exhibit D1 and D2 prove the change of ownership at page 26 and 27 of the tribunal’s typed proceedings. That, the evidence of SU3 was supported by exhibit D4. There is no proof by the appellant that, he is paying rent and the exchequer receipts were not tendered to prove the seme. Responding to the second ground the counsel argued that, the same was steeled in the DLHT in Application No. 22 o 2009 per exhibit D1 and D2. The evidence of SU3 proved that, the appellant requested to separate certificate of the right of occupancy and he tendered exhibit D4. The evidence was corroborated by that of SU1. Thus, the claim that separation cannot be done while the certificate was at the bank cannot be accepted, because even CRDB BANK PLC was not called to testify or to complain that the separation was done while, the certificate was at CRDB. On the fourth ground of appeal the learned counsel averred that, it has no merit because the appellant and his advocate did not call the Commissioner for Lands as witness. He referred to page 21 of the trial 9 tribunal’s typed proceedings where the appellant’s counsel requested for adjournment of the case in order to consult his client on the need to join the

Commissioner for Lands. But on 10th October, 2023 the advocate did not give feedback and the case proceeded with the defence hearing. He added that, the appellant closed his case on 11th August, 2023 as seen at page 20 of the typed proceedings. That, 9th October, 2023 the date mentioned by the appellant’s counsel was the respondent’s case, that is after the appellant had closed his case. Thus, it was not possible to join the Commissioner for Lands during respondent’s case. Regarding the fourth ground the respondents’ counsel argued that, the grounds of tendering exhibit was not raised in the memorandum of appeal. But SU1 and SU3 recognized the documents before tendering the same. SU1 recognized exhibit D1 and D2 as shown at page 25 of the trial tribunal’s typed proceedings, and exhibit D3 was recognized by SU3 as shown at page 37 of the typed proceedings. That, the issue of spouse consent is a new issue. The counsel argued further that, the testimony of SU1 and SU2 and exhibit D1, D2 and D3 show that, the appellant filed a suit in the same tribunal where, he claimed Plot No. 138 Block D, Mbalizi Area, in Application No. 22/2009, where the case ended in settlement. The consent judgment and decree 10 finalized the matter. The learned counsel argued that, the appellant is barred by the principle of res judicata. The counsel cited the case of Bandugu Ginning Co. Ltd vs. CRDB Bank

PLC and Others, Civil Appeal No. 265 of 2019 [2021] TZCA 158 to cement his position. The counsel prayed the appeal to be dismissed with costs. In his rejoinder the appellant’s counsel, reiterated what has been submitted in submission in chief. He added on the second ground that, there was no need to call CRDB as witness, because the witness would come with oral evidence while, the appellant had produced documentary evidence that is the Certificate of Title 6346 MBYLR and discharge of mortgage letter from CRDB. The appellant’s counsel argued that, the courts including the trial tribunal are precluded to accept oral evidence in exclusion of written agreement. He referred section 100(1) of the Evidence Act, Cap 6. R.E 2019 and the case of Umico Limited vs. Salu Limited, Civil Appeal No .91 of 2015 CAT at Iringa. Othe fourth ground the learned counsel reiterated his submission in chief. On the fifth ground the appellant’s counsel argued that, the issue of propriety of tendering exhibits, issue of spouse consent is not a new issue as argued by the respondent’s counsel. The same fall under the ground of appeal on failure to analyse and evaluate evidence. He 11 contended that, as regards to the Application No. 22/2009 the applicant denied to have filed such a case. Having summarised the evidence of both parties, the following are issues to be determined by this court, basing on the

grounds of appeal raised. Basing on the first ground of appeal the issue is whether the certificate of Title No. 6346 MBYLR is still in existence. The law is very specific that, the one who alleges must prove anything in his favour. The Evidence Act, provides this principle under section 110(1), (2) and 111. Thus, it is settled law that, a person who alleges must prove what he alleges. In this case it is the appellant who first brought the respondents before the trial tribunal and filed an appeal before this court. Thus, the duty is upon him to prove his allegations that, the said certificate of title is not separated into two certificates as said by the respondents. This burden does not shift. The same was so held in the case of Richard Kigaraba vs. Jonas Laurent and Others, Civil Appeal No.377/2019[2024] TZCA 268, where they cited the case of Paulina Samson Ndawanya vs. Theresia Thomas Madaha, Civil Appeal No. 45/2017 [2019] TZCA 453, Jasson Samson Rweikaza vs. Novatus Rwechungura Nkwama, Civil Appeal No. 305/2020 [2021] TZCA 699. 12 In the case of Jasson Samson Rweikaza (supra) they reproduced excerpt from Sarkar’s Laws of Evidence, 18th Ed, by M. C. Sarkar, S.C Sarekar and P.C Sarkar, published by Lexis Nexis thus: “… the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for negative is

usually incapable of proof. It is ancient rule founded on consideration of good sense and should not be departed from without strong reason. Until such burden is discharged the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such a conclusion, he cannot proceed on the basis of weakness of the other party…”. This is the correct legal position in our jurisdiction as well. In the case under scrutiny, the appellant has the burden of proving the fact that, there was no separation of the said title that, is Certificate of Title No. 6346 MBYLR, exhibit (P1) is still existing and to date he is still paying land rent. But the same was not proved by the appellant. It is a feeble allegation as there was no receipts tendered to prove that, he is still paying land rent in the said land in dispute. On the side of the respondents tendered letter of an offer (exhibit D4) to prove the separation. The appellant also, was bound to prove that, his wife did not sign the said letters but the same was not done. Desperately, he failed also, to summon Jenipher Ezra Lalika to prove that, she did not have the 13 Certificate of Title in Plot No.

138. Thus, the first ground of appeal has no merit. Turning on the second ground of appeal, the issue is whether the said certificate is separated into two certificates to cover Plot No. 137 and 138. The appellant argued that, the said certificate of title was mortgaged to CRDB Bank PLC. This ground will be decided basing on the above principle, that the one who alleges must prove. The appellant argued that, the said title was mortgaged to CRDB Bank in 1997 and the same was discharged in 2018. He added that, the separation was done without obtaining the consent from CRDB. I am persuaded by the respondents’ counsel argument that; the appellant was the one supposed to summon or pray for the CRDB Bank to be summoned before the trial tribunal in order to prove the same if there was consent or no. The respondents’ counsel also stated that, the same was settled in court in Land Application No. 22 of 2009. Although, the respondents called the Land Officer (SU3) and testified that, the appellant requested to separate the certificate of the right of occupancy. Thus, basing on the principle of the one who alleges must prove, this ground has no merit because the appellant has failed to discharge his duty. 14 On the fifth ground of appeal, the issue is whether the trial tribunal chairperson did not evaluate and analyse the evidence adduced before her. Having a thorough perusal of the

impugned judgment, it is very open and very clear that at page 6 up to page 12 of impugned judgment, the trial chairperson analysed and evaluated the evidence of both parties and decided that, the 2nd respondent is the lawful owner of the land in dispute. But this being the first appellate court, the law is very trite that, it has the duty to re-evaluate the evidence of the trial tribunal and may come up with its own decision. The evidence includes the exhibits admitted before the trial tribunal. In the case of Emmanuel Stephano Ngega (Administrator of the estate of the late Ngega Stephano Kiboko) vs. Butiama District Council and Another, Civil Appeal No.22 of 2021, it was stated that: “The High Court being the first appellate court, handling of the appeal before it amounted to a re-hearing which could entail carrying out a critical analysis, re-evaluation of the evidence which includes the exhibits admitted before the lower court or DLHT.” Therefore, this court has the duty to re-evaluate the evidence adduced in the trial tribunal. I am inclined to the appellant’s counsel submission fortified with the observation made in the cited case of D.R Pandya (supra). When evaluating the evidence this court is bound by the principle that, in civil cases the burden of proof lies on the person who alleges anything in his favour. This principle is anchored in 15 the Evidence Act under

section 110(1), (2) and 111, and that the burden of proof is on balance of probabilities. This has been stated in various decisions of the Court of Appeal including but not limited to the case of Anthony Masanga vs. Penina Mama Mgesi and Another, Civil Appeal No. 118/2014 and Hamza Byarumshenga vs. Fulgencia Manya and 4 Others, Civil Appeal No. 33 of 2017. Bearing in mind principle under the Evidence Act and case laws, in this case there is no dispute that Plot No. 137 has no dispute. The dispute arose in Plot No.

138. The appellant claimed to be the lawful owner of the land in dispute on the ground that, he owned the Certificate of Title No. 6346, with two plots that is Plot No. 137 and Plot No. 138 (exhibit P1). The appellant denied that, the certificate of title was divided into two that is, Plot No. 137 which is in his name, and Plot No. 138 in the name of Jenipher Ezra Lalika. He claimed that, the said title was mortgaged to CRDB Bank in 1997 and the same was discharged in 2018, exhibit P2 prove the same. The first respondent on his submission argued that, Plot No. 138 was owned by Jenipher Ezra Lalika who is the wife of the appellant. The appellant and his wife entered into a loan agreement of Tshs. 6,000,000/= with Cosmas Malila (the deceased). The property of Jenipher was used as security. They failed to furnish the contract hence, the house was sold by Jenipher and Cosmas Malila to the 1 st respondent. When the appellant and his wife entered into the loan agreement, the certificate of occupancy was already divided into two titles. Thus, Title No. 11978 Plot No. 138 was in the name of Jenipher Ezra Lalika, and Plot No. 137 was in the name of Ezra Lalika. 16 The appellant was dissatisfied, and instituted a suit in the DLHT alleging that, the respondents invaded in his land, in the Land Application No. 22/2009. The 1st respondent in 2006 and the 2nd respondent being the buyer in

2019. The said application was settled out of the court. Thus, parties enter into consent judgment, the decree and proceedings of the trial court were admitted as exhibit D1. The 1st respondent was bound to add Tshs. 7,500,000/= and he furnished the same, that is the reason why they entered into the consent judgment. Basing on the evidence that there was consent judgment despite that the appellant denied to have entered into consent judgment, he alleges that he knew there was agreement but he was not there. After having a thorough perusal of the exhibit tendered before the trial tribunal, it is clear that there was agreement between Ezra Lalika and Jenipher Ezra Lalika on one side and on the other side there was Cosmas Malila and Nyelele Mzozya. The same was signed by the appellant and Jenipher Ezra Lalika and the respondents thereto, endorsed by the District Land and Housing Tribunal for Mbeya on 26th October, 2009. The legal effect of a consent judgment is not provided for under the Land Disputes Courts Act. But the Civil Procedure Code provide the legal effect of a consent judgment. In the Land Disputes Courts Act, Cap 216 under section 52(2) provides: “The District Land and Housing Tribunal shall apply the Regulations made under section 56 and where there is inadequacy in those regulations it shall apply the CPC.” 17 The provision of the CPC under section 70(3) of the Civil

Procedure Code Cap 33 provides that: “No appeal shall lie from a decree by the court with the consent of the parties”. Therefore, in this case at hand, there was a consent judgment entered by parties and the trial tribunal prepared a decree. Pursuant to the provisions of the CPC quoted above therefore, no appeal shall be allowed once there is the consent judgment. The issue is whether the appellant may challenge the consent judgment by opening a separate suit. In the case of Arusha Planters and Traders Ltd and two Others vs. EURO AFRICAN Bank (T) Ltd, Civil Appeal No. 78/2001, it was held that: “On our part, we must admit that we could not come across a provision in the Civil Procedure Code stating specifically that a consent judgement may be challenged by way of instituting a separate suit……… What is clear in the Civil Procedure Code and Appellate Jurisdiction Act is that such judgement can be challenged by way of a review or appeal by a way of leave of the High Court”. Having seen the above provisions of the law and the case law, I am convinced by the respondents’ counsel that, the Application No. 215/2017 made this matter res judicata and the trial tribunal had no jurisdiction to hear the same. This ground disposes the whole of appeal. But there are other grounds of appeal raised by the appellant. That the tendered exhibits such as D1, and D2 were not recognized before its

admission. I concur with the respondent counsel, that the allegation has no merit because the 18 same was recognized by the witnesses before its admission see page 25, 26 and 37 of the trial tribunal’s typed proceedings. On the allegation that the one who mortgaged the house to Cosmas is not his wife and he did not know her. He denied also to know the existence of application No. 22/2009. The documentary evidence tendered by the respondents exhibit D1 proved that, there was a relationship between Ezra Lalika and Jenipher Ezra Lalika and that, there was consent judgment entered in Land Application No. 22/2009. Thus, at this stage alleging that Jenipher Ezra is not familiar to him and that he did not institute the case, is an afterthought which totally renders this ground meritless. In the issue of separation of the certificate of title, the appellant denied the same to be separated by tendering the certificate of title with registration No.

6346. But on the side of the respondents proved that, there was separation whereby the land officer (SU3) proved the same. The letter of an offer was tendered and admitted as exhibit D4. Also, the evidence that, there was transfer of title from Jenipher to Cosmas then from Cosmas to SU1 and then from SU1 to SU2. Therefore, given the available evidence which was tendered, I am of the view that, the certificate of title was separated and the appellant did not return the certificate of title which was nullified by the land office. The appellant claimed that during the sale of the said plot the certificate of title was mortgaged at RDB Bank. But the appellant did not summon the CRDB to testify that there was no consent on separation of certificate of title. He claimed also that, the said subdivision was not signed and that in the said sale of land there was no spouse consent. At the same time the appellant claimed that, he did not know 19 Jenipher Ezra and at the very point of time alleges that the need of spouse consent, while Jenipher is not his wife. This proves that, the appellant was not a credible witness before trial tribunal and his evidence not to be relied upon. In my view, the appellant is trying to make a story which in turn knotted himself. Therefore, this being a civil case, the proof is on balance of probabilities, in my view, the evidence of the respondents is

heavier than that of the appellant. Thus, the trial tribunal was right to hold that the 2nd respondent is the lawful owner of the land in dispute. On the fourth ground of appeal on the issue that the Commissioner for Lands was not summoned. In my opinion basing on the above discussion the Commissioner for Lands was not a necessary party. This is necessitated with manner the appellant’s counsel handled the matter before the trial tribunal. He prayed for time to consult on whether to join the Commissioner for Lands or not. When the matter resumed on the agreed date, he never said anything as it was well argued by the respondents’ counsel. He did not wish to join him, raising it at this time it amounts to the dying cockroach’s kick against a wall. It may not yield any fruit, in the same pace, the ground has no merit. Having done that much, the appellant failed to prove that the disputed land was not separated. Also, failed to prove that CRDB Bank’s consent was not obtained. The evidence available shows that, there was a consent judgment resulted in a settlement between the appellant and the respondents in Land Application No. 22 of 2009 which renders the matter res judicata. Consequently, the appeal is dismissed with costs. 20 It is so ordered. Right of appeal explained. Dated at MBEYA this 10th day of July, 2024. E.L. KAWISHE

JUDGE 21