20180824 TZHC Mwanza

) IN THE HIGH COURT OF TANZANIA . , I ' (DISTRICT REGISTRY) AT MWANZA LAND CASE APPEAL NO. 45 OF 2018 (Originating from the Decision of the Geita District Land and Housing Tribunal at Geita in Land Case Appeal No. 30 of 20174~ FATUMA HAMISI ........................;~~~·~~····~~~}/' ~ ..... RESPONDENT KATWALE MABUSHI NDOTO ................. .. ~\) . \' ~"" . . ~. {(8uo~M~~ '\ <>~ '\) Last order: 07.08;~~ \~'-_~/ Judgment Date~701B~ - · The (bpellant)F,~tuma Hamisi appealed to this court following :is \' I . dissatisfb~A/yJith the decision of the Geita District Land and Housing Tribunal in Land Application No. 30 of 2017 which in essence dismissed the appellant appeal and sustained the decision of Kharumwa Ward Tribunal. 1 ' ~ G -" Before this honourable Court the appellant filed a five point Petition of Appeal namely:- ,. That, the Appellate Tribunal erred in law and fact by holding that the suit land was lawfully ?old to the respondent by the appellant's father one Hamisi Mrisho without considering the fact that the alleged seller of th~ suit land d~ied the said sale ' ~~ transaction before the trial tribunal. Furt~er,Jhat tfre, r~0T1dent merely leased the suit and no w{jy bougli~me~o/ 2. That, the Appellant Tribunal <!JTO~&f~.~€d~\)t~ in fact by . "~~.2' relying on the sale agreem.enr\ffeJweeo the, appellant's father . and the responde'J:-ated'2~~\s,_in~rticular despite the fact that the said' Ccurr:rent ~a~orged signature of the \\ (~" ,'\) alleged seller.~~l'l\~at th'e,i'sp}d sale agreement appears in two copies,~ ~,J:?!')_~/ affixed on the face of it but withouf'10,iyia~b~r stamp and the other bears no photos but..st.am~d-~ ! . 1 3 . A ~ t e Tribunal erre d in law and in fact by not t0R:1r.ig into account the fact that the sud land 1s a clan land a~~t1t,e seller had no righ;.I to sell the land without the consent of the clan members. 4. The Wc;ird Tribunal erred in law by not taking into account the fact that the trial tribunal contradicted itself as the records in the proceedings shows that the respondent is the buyer but in 2 ' the decision the tribunal refers another person one Mwl. Bahebe who· is the respondent's wife as the buyer and she neither appeared before the tribunal nor tendered a legal document to prove the same. 5. That the appellant tribunal erred in law and~Q~t by failure to ' '-,, properly evaluate the evidence on recoQd and 'cis"0-zesultfCJiled to appreciate the appellants' evid~~os~e)/ds the testimony of the alleged seller wh~~ ~r;,,d thfi>said sale. Be fore th .1s court th e appe II~ ·~t ~ ~d af?~~re \ ' \person an d th e :.___l!J respondent appeared in p~n. ~~ (( ~ '0 Arguing in support 6f,,_his ~founas of)appeal the appellant stated that '~\' /' she was sick for~Gt,,_l~ngt-ir:ni~h~D/§he visited the disputed plot she found that 0<f~;~l~~A~ouse was constructed while it was a mirat~let ~izted)b_'Glt the case was before the Ward Tribunal and/~fs~~~ti~~d on her behalf and the Executive Village Offic~i~pe~e.d and testified for the respondent side. The · appe~.t-....__;../ sH-e~fled that his father testif.ied that the plot was not sold to· the respondent instead he rented. him. His farther said that if he had sold the plot then he could involve the village and ward leaders and neighbours to witness. The appellant further state_d that the respondent was asked by the Ward Tribunal how he bought the plot without involving· witnesses while the plot is among the deceased 3 7 ' .. \J - estate he replied that the two parties appeared before the Village Executive Officer and the appellant farther sold the plot to the respondent without any witness. The appellants further submitted that the parties have not affixed their pictures on the Sale of Agreement before th~V.i.llage Executive Officer but their pictures were affixed later(he c&J'te~e~)hat if the Sale of Agreement was valid then the piot~ol!~h~ve been \ .....) '- ~ stamped otherwise the document is i m ~ \ \ \ ' , estate was submitted "' before·the I .~ ~\, ~ The appellant further s u b m i t t ~ ~ ~ f - administrator of . ~.~ . that the plot Ward Trib1Jnal to verify "0 belongs to the clan. Ther{tore t~ plot~as not supposed to be sold by one person sinoe~ds n~~~ved by the clan meeting. She said have the docu~nt~~L~h-;i/y her legal ownership of the plot in dispute. (')) ~ .. · Nl-~ "--" /.~~, . The a~~~At fu~r contended that the r~spondent witnesses testifie~efor~the ~trict Land and Housing Tribunal (DLHT) of Geita but d~A~di/ before the Ward Tribunal. In reply the respondent strongly contended the appellant claim that his father did not sale. the plot instead he rented the plot to the . respondent. He said the appellant ground is baseless since the 4 - respondent is the legal owner for 12 years since 2006. He said his wife rented the plot and he is the buyer of the plot, he referred this court to see annexure R1. He said he bought the plot of one acre which is dispute in 2005 for a total sum of Tshs. 100,000/= and in 2006 he bought a one acre of majalumba for a total sum of Tshs. 70,000/=. The respondent further contended that the signature" on the Sale of Agreement was not forged since the seller is ~n~~ sig~7~ the agreement. He contended that the appellankh0s rars~/a new issue which was not discussed at the lol/4er. coJ~~,. The respondent further submill!?d ~ (the seller) went to thypeciJ~e \\ge Officer without their appellant's father passport size but later th{y agree~~,am? their passport size. The \ \ (/~"'-.. v . respondent further \;nte\c;f,ed~that)tne seller had no right to sale the plot since h~a~~o.~~thQ[!ze~<tc! do he said the Ward Tribunal asked the (afp~llant if"'tklfre is any document to prove her "'') ~ "",j argu~.ts~uhshe,,.fatle~---tp produce one. Thus, they cannot blame the l(fuici"l~~~d ~ousing Tribunal for not accepting their . docl:J~~t w~, was not relevant. He said they were supposed to raise their~c;on/ern before the Ward Tribunal. '-_-/ . . The respondent disputed the appellants ground that the respondents wife was not seen in court. He said her wife was mentioned in the Sale Agreement and that both of them are owners of the said plots, he referred the court to annexure R3. The 5 · respondent further submitted that the appellant did not file any claim against his wife instead she filed a case against him thus the respondent requested the court to drop the issue regarding his wife. The respondent further contended that the appellants' right was not infringed because both parties we~e equally t~ted since the documents which were issued by both parti.e~e\~ere,~, and admitted by the tribunal. The respondent fu~~r-sul9fJ1!tle~hClf the Executive Village Officer testified that t~ale~rferrt~r.it was valid and the stamp are the same whic.rrwas )c~Red\r:>y then the District of Geita and now it is the District~oi'~y-~1\~aid the DLHT did . ,., ." ' " ' ~--..__,,; /. //- ~~ "'/ not accepted any new E;<. Plibit, the ex.hil9ils\.which were tendered at the DLHT are the one wlfliCh wer-e~ndered at Ward Tribunal he said therefore the DLHT ~ied*n t~WarGI ~J~unal exhibits. He requested the court to t?.ai~li~~n-8 dismiss the appeal. I have giv-e.n~~deration of the record of the trial tribunals as w.~t.1~l~ub.'missions by the parties and realize that the central \ \\ ~) . issue for dJet~rmination is whether or not the pre~ent appeal is ·t -~- . ) ) . ' menon0~ : · :1 will be guided by the canon of civil justice which suggests that, one "the person whose evidence is heavier than that of the other is the one who must win" - Hemedi Said Vs. Mohamedi Mbilu (1984) TLR 113. two, "where doubts are created in evidence, the same should 6 · be resolved in favour of the opposite party" - Jeremiah Shemweta Vs. Republic ( 1985) TLR 228 and three, "he who alleges must prove the allegation 11 - Lamshore Limited and J. S. Kinyanjui V Bazanje K. U. D. K ( 1999) TLR 330. With regard to the first and fifth ground of the ap~aJ the appellant ' . contended that the seller denied that the Sale Agie~roent before the Tribunal and he insisted that he merely\i~\a·· setkth~;~o't-~/to " the . 6 \ ..____,__..,____ / ,,. . . ,~. t d respondent and that the evidence w~ not\:'(perlyjevalua e since the seller denied the Sale Agre-em~'- { I have gone through the triban~~ond found that there was I /.-· ~"' ~> a lease agreement betfV'{~en tyre,~wG"fY9rties which was signed by \ \ (/"'-, · , V Hamisi Mrisho (the lessor)\and..,.Mwb Bahebe (the lessee) . But I have also found two s.01e\~ee~ts-~i~h were signed by Hamisi Mrisho /,,; :'\ " ~ -- --- (the seller) a:m~ M\y1\ Ka~,ale Mabushi Ndoto (the respondent) and ~-~I., '·v . ''~ ~ their passpQrt :size,,.,~rixed thereto. Therefore as long Mr. Hamisi ~ . Mris~°l~~e'aQ_'.;ements it means he consented the sale of the ~_);· said rQl0ts in disp~:t e therefore, his deniall is baseless. "'------- . 1 . On her second ground of appeal, the appellant submitted that the appellate tribunal erred in law· by relying on the sale agreement between the appellants' father and the respondent despite the documents bears forged signature of the alleged seller and there are two copies of the said agreements; one fixed with their passport 7 ~ size without official rubber stamp and the other bears no passport size but stamped. After perusal _of the Ward Land Tribunal record I have found a Sale Agreement marked as annexure R2 which was signed on 24 th day of August 2005 by the respondent and the seller befOFe the Executive Village Officer of the Kharumwa Ward, Distrir~~~'-~d ~pother Sale Agreement which was signed on 7th dGJ~f~a~~"(/2006 by Hamisi Mrisho (the seller) and Mwl. KGtwa1e~\061.1shi,,Ndoto (the ~~ . "/ respondent)before the Executive Vrllog.e OHiGer oz\~harumwa Ward, District ofGeita. ~-, ~~ .,- It is imperative to stressi that t~!i'G>n between the appellant1s \ \ (/\,"' "'"' father (seller) and the res~,<~\~dent ~;frgulated by the law of contract in Tanzania whi.cb ~~'be'en'co{Jjfi~d in the Law of Contract Act, Cap 345 RE,42.S~--~ti~- n~:nJ~(~)J~f the A.ct defines a contract as an ~," ) ~ " i agre~.gr:iJ~nforceabl~::~y klw. As long the Executive Village Officer was rr~if'm~~)he witnessed their Sale Agreement by signing it. It is«_ a m')atory requirement to affix the parties' passport size on the Sale~A~r,eement, section 10 of the Law of Contract Act Cap. · . ~y · [R.E 2002] provides that:- 11 All agreements are contract if they are made by the free consent of the parties competent to contract for a lawful consideration and with a lawful object and not hereby expressly declared to be void.'' 8 " The proviso of section 10 stated that the contract is required to be made in writing or in presence of witnesses, or any law relating to th~ registration of documents. Therefore the affixation of passport is not mentioned under this section. With regard to the third ground of the appeal the"Glppellant stated that the appellate tribunal erred in law and,..tac_ t ~~t tak/ing_ into ,·~ '"· J account the fact that the suit land is a clan ld~'---_d,dnd thbf'the seller \\ ) " '.j' had no right to sell the land witho~the coD-sen"t~~f' the clan members. . . ~~~ 0 As per the record of tril~Jomcil\h~e~nd that the respondent and the seller in the yea( 2005.,..-c5ln~006 entered into written Sale \ \ ( /'-,>,, ',,) Agreements and t~ller'\,_erified'!O> sell the second plot which was no'. in _disput/'f~at~\,~itrre'/of fhe clan _members raised_ an obJect1on oJ the~le. Th~obJect1on came up 1n 2017 at the ·time ~~) !. ' \ where tl::le~~Gln~~Ppointed to be the administrator of his gran-,~r,Jsta~ ~ 0 ..... On the fot:J1:tl:1 ground of appeal the appellant stated that the trial ~ tribunal contradicted itself as the records in the proceedings shows . . that the respondent is the buyer but in the decision the tribunal referred the name of Mwl. Bahebe who is the respondent's wife, who . . neither appeared before the tribunal nor tendered any document. 9 As far as the case before me is concerned the issue of Mwl. Bahebe, who was referred in the decision of the trial tribunal cannot be entertained at this juncture since the proper procedure of tendering new issues have not been followed and this matter have been raised this second appellant courts as new issues while it-was supposed to be raised in the DLHT. : ~' ./ . ~~~/ The fifth ground is baseless since the D'S,._~ev~d,.Jh,~~idence on record whereas the respondent evider-i~e was'(1eavier than that ·. of the appellant's evidence as it w~~~~ case of Hemedi Said v Mohamed Mbilu (su~a). \_ ~ . ( (~ v This court has foun~~a\0e fihding~ of trial tribunal and the District Land and Housiog Tribwr,:ial w)re-ri'6Ktly determined the respondent's evidence o~e1~eciJ~,~;;;;-;llant's evidence therefore I dismiss "" " 'cost~ the apg_eat,wit_l:;) ) - "v> . ·/~~~· . C( 1:.~ \ Order 0ccordingly . 'v . ~J DATED at Mwanza this 24 th day of Augu_st 2018. A.Z.MJEKWA JUDGE 24/08/2018 10 ,. j Delivered in Chamber in the presence of both parties this date ·I I 28/08/2018. i I Right of Appeal is fully explained. 0--. \ . ( /~ ."' \ (/))' . ~ ........... - /_,,.,,/ '--...._ ________ \./ 11