fulgency b kitigwa vs kiparanganda hand craft group and 6 others 2021 tzhclandd 6713 8 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL N0.221 OF 2020 (Originating from Mkuranga District Land and Housing Tribunal in Land Application No.16 of 2015) FULGENCY B. KITIGWA APPELLANT VERSUS KIPARANG'ANDA HANDCRAFT GROUP alias KIKUNDI CHA SANAA MTENYU RESPONDENT VENANCE MIHURU 2^° RESPONDENT BEATUS LIKAUNGA 3^° RESPONDENT EDWARD VINTANI MTANOLE 4^" RESPONDENT MWASABULI ALLY KILUNGI 5™ RESPONDENT OIL LINK(T) LTD 6™ RESPONDENT GERALD JOSEPH @ JOSEPH JOSEPH 7^" RESPONDENT Date of Last Order: 30.09.2021 Date of Ruling: 08.11.2021 JUDGMENT V.L. MAKANI,J This is an appeai by FULGENCY B. KUWIGA. He is appeaiing against the decision of Mkuranga District Land and Housing Tribunai at Ilaia (the Tribunal) in Land Appiication No. 16 of 2015(Hon. R. L. Chenya, Chairman). At the Tribunai the appeiiant herein was daiming against the respondents for, among other things, deciaration that he is the lawfui owner of an area measuring 5 acres located at Mtenyu area in Kjziko Village (the suit land). The 6^^ respondent raised a counterclaim that he is the lawful owner of the suit land. The application was dismissed for lack of merit and the 6^^ respondent was declared the lawful owner of the suit land in terms of the counterclaim. Being dissatisfied with the decision, the appellant preferred this appeal with five grounds of appeal reproduced hereunder: 1. That^ the trial tribunalerredin iaw andfactin deciding in favour of the 6^^ respondent without considering the strong and dear evidence adduced by the appellant and his key witnesses which was supported by the and respondents to prove the fact that the appellant is the lawfulowner ofsuitiand and proved the case at the required standard. 2. That, the trial tribunal erred in iaw and fact by deciding in favour of the respondent without considering the fact the evidence of the respondent, his witnesses and admitted documents were weak and contradictory. 3. That, the trial chairman erred in iaw and fact by holding thatit was notproved how the respondent was authorized to seii the suit iand while the and respondents proved that they were the remaining members offirstrespondent, theypassed a resolution hence as per the respondents constitution it was right for them to seii the disputed iand to the appellant and the respondent to sign the said saie agreement. 4. That, the trial tribunal erred in iaw and fact by deciding in favour of the respondent on basis of members minutes/resoiution tendered while the number ofthe present membersin the purported title of the resolution and the number of members who signed differs and contradict each other. 5. That, the trial tribunal erred in iaw and fact by deciding in favour of the respondents who failed to prove his counter claim on required standard by the iaw. The appeal proceeded by way of written submissions. Ms, Costancia Wilson, Advocate drew and filed submissions on behalf of the appellant. Mr. Benedict Pius, Advocate drew and filed submissions on behalf of the 5^^ and 6^^ respondents; while Ms. FIHster Rugazia, Advocate drew and filed submissions on behalf of 2"^, and 7^^ respondents. In arguing the appeal, Ms. Wilson argued in consolidation, the first and third grounds of appeal and then the second, fourth and fifth grounds together. Submitting in respect of the first and third grounds of appeal, Ms. Wilson said that during the trial it was clearly proved by the appellant, the 2^^, 3'"'^ and 7^*^ respondents that the suit land is owned by the appellant. She said the Tribunal failed to consider the evidence adduced by the appellant which proved that he Is the lawful owner of the suit land. She said further that, this court being the first appellate court should re-evaluate the evidence adduced at the Tribunal and come out with its own findings. That at the Tribunal the appellant tendered Exhibits P4 and D6 and stated how he came into ownership of the suit land through the evidence of the 3'"'', and 7^^ respondents. She went on saying that the appellant showed how the 7^^ respondent was authorized to sell the suit land and tendered the documents in support thereof. She argued that according to the constitution of the group, when a member does not participate in three consecutive meetings, his membership ceases and is disqualified from the decision making of the group. That the remaining 8 members led by the 7^*^ respondent were automatically qualified to dispose of the suit land to the appellant. Submitting for the second, fourth and fifth grounds of appeal, Ms. Wilson said that the appellant proved his case by tendering evidence showing how he became the lawful owner of the suit land. That the respondent failed to prove what was alleged in the counterclaim. Counsel relied on section 100 and 110 of the Evidence Act, CAP 6 RE 2019 and the case of Hemed Said vs. Mohamed Mbilu [1984] TLR 113 where the Court held that the party whose evidence is heavier than the other is the one who must win the case. She said the appellant's evidence was heavier than that of the respondents and prayed for the appeal to be allowed. Ms. Rugazia submitted on behalf of the 1^, 2"^, and 7^"^ respondents. On the first and third grounds of appeal, Counsel said that the records of the Tribunal clearly show that the suit land is lawfully owned by the appellant. She said the evidence by the appellant carries weight than that of the 4^^ ,5^^ and 6^^ respondents. Counsel insisted that this court, being the first appellate Court, must re-evaluate the evidence presented at the Tribunal so as to reach its own conclusion. On the second, fourth and fifth grounds of appeal, Ms. Rugazia said that the evidence by the appellant was heavier than that of the 6^ respondent. She said the 4^'^ and 5^^ respondents were no longer members of the respondent since they were disqualified according to the group's Constitution and the documents produced by them had no legitimacy. Counsel relied on the case of Hemed Said (supra) and section 110 of the Evidence Act. She prayed for the appeal to be allowed. In reply to the first and third grounds of appeal, Mr. Pius submitted that the appellant failed to prove ownership of the suit land. He said the appellant had stated that he was given ownership by the Village Council but on 29/11/2016 when he was ordered to tender the document of ownership he failed to do so as reflected at page 14 of the Tribunal's typed proceedings. He said the appellant's failure to tender ownership document waived his rights to prove the same. He said even the 2"^ and 7^^ respondents failed to adduce strong evidence as to the ownership of the suit land by the appellant. That Exhibits P4 and D6 were considered by the Tribunal to the extent that the 2"^^ and 7^^ respondents did not have capacity to dispose the suit land. He insisted that Exhibits D4 and D6 do not prove that the appellant was the owner of the suit land. He said the Sale Agreement (Exhibit D4) was signed by the 2"^^ and 7^^ respondents who did not have the authority and consent from other members to dispose the suit land. That the 7^^ respondent failed to establish where the 8 members got authority to expel the other members from the organisation. That the minutes were manufactured to necessitate disposing the suit land. Counsel insisted that the evidence of the 7^'' respondent was weak. On the second, fourth and fifth grounds of appeal, Counsel said that the appellant complained that the evidence by the 6^^ respondent was weak and contradictory, but she did not point out how the evidence was contradictory. He said that the 6^'' respondent proved that she purchased the suit land from the respondent and the same was proved through Exhibit P7 which Is the Sale Agreement as well as the minutes of the meeting which resolved the disposition of the suit land to the 6^"^ respondent. That the 6^^^ respondent proved her counterclaim which the trial Chairperson considered. Counsel Insisted that, the trial Chairperson considered the capacity of 4^^ 5^^ and 6^^ respondents to sell the suit land as members who convened a meeting and passed a resolution to dispose the suit land. Counsel prayed for the appeal to be dismissed with costs, In rejoinder, Ms. Wilson reiterated her main submissions. I have gone through the proceedings at the Tribunal and the submissions by the parties. This being a first appellate court, I am guided by the principle that this court has a duty to reconsider and evaluate the evidence on the record and come to Its own conclusion bearing In mind that It never saw the witnesses as they testified. See the cases of Audiface Kibala v. Adili Elipenda & others. Civil Appeal No. 107 of 2012,(CAT-Tabora)and Maramo Siaa Hofu & others v. Republic, Criminal Appeal No. 246 of 2011 (CAT" Arusha)(both unreported). It is not in dispute that the respondent is a group registered under Baraza la Sanaa la Taifa (BASATA) under Certificate of Registration No. BST/262 dated 25/05/1995. Further, it is not disputed that the original owner of the suit land is the respondent. The issue in controversy is who, between the appellant and the 6^"^ respondent acquired a better title from the respondent. It is on record that, the appellant and 6^^ respondent presented Sale Agreements at the Tribunal to corroborate what was testified by the witnesses orally during the hearing. It is convenient therefore to determine the validity of the Sale Agreements. In Exhibit D4 the 2"^ and 3'"'^ respondent appear as the sellers on behalf of the 1^^ respondent. The said Sale Agreement is dated 15/03/2002 and the same has not been witnessed by the Village Authority but only a rubber stamp of the 1^ respondent which is not supported by a signature. Exhibit D6 is Confirmation of Sale CUthibitisho wa kuuza 8 Eneo la Shamba') by the Village Authority. Like in Exhibit D4, the seilers in Exhibit D6 are the and 3'^ respondents in their personal capacity and the saie has been witnessed by Viiiage Executive Officer of Kiziko Viiiage. In what seems to be an afterthought, the words WAUZAJI UONGOZI WA KIKUNDI CHA SANAA MTENYU has been written in an informai place as the seller's name, at the left top side of the said Exhibit D6, Therefore, Exhibit D6 reflects that the 2^^ and 3*^^ respondents are the seiiers and so is KIKUNDI CHA SANAA MTENYU. On the other hand. Exhibit D7 is the Sale Agreement presented by the 6^'^ respondent. The seller is KIKUNPI CHA SANAA KAZI ZA MIKONO KIPARANG'ANDA (the respondent) and the buyer is the 6^*^ respondent. The said Sale Agreement has been witnessed by the hamlet Chairman and has been confirmed by the office of the Viiiage Executive Officer. Now, what is the difference between the Sale Agreement by the appellant and by the 6^^ respondent. In the appellant's Sale Agreement, the 2"^ and respondents appear as sellers whereas in the 6^"^ respondent's Sale Agreement the seller is the respondent; KIKUNDI CHA SANAA ZA MIKONO KIPARANG'ANDA. It should be noted that, the parties are not disputing that the original owner of the suit iand is the respondent, therefore, the seiier must be the respondent. Further, in Exhibit D6 there appears on top of it the words WAUZAJI UONGOZI WA KIKUNDI CHA SANAA MTENYU as the seiiers. However, according to the Constitution of the respondent and the Certificate of Registration from BASATA (Exhibit D1 and D2) the respondent is recognised by the name of KIKUNDI CHA SANAA ZA MIKONO KIPARANG'ANDA and not KIKUNDI CHA SANAA MTENYU as it appears on appeiiant's Sale Agreement. Therefore, the 2nd and 3'^'^ respondents and WAUZAJI UONGOZI WA KIKUNDI CHA SANAA MTENYU cannot be the seiiers because KIKUNDI CHA SANAA ZA MIKONO KIPARANG'ANDA,the original owner of the suit land, had the sole mandate to dispose of the suit iand and not any other entity. KIKUNDI CHA SANAA MTENYU is a non-existing entity and thus couid not be the seiier as alleged by the appellant, 2"^, 3'"^ and 7^'' respondents. There is an allegation that the 2"^^ and 3'^ respondents as Chairman and Secretary of the respondent had the mandate to sell the suit iand. However, in the meeting (see the minutes Exhibit D3) which 10 allegedly gave the mandate to the said 2"^ and 3'"^ respondents had only 8 members in attendance. As pointed out by the Chairman of the Tribunal, the and 3'^ respondents did not state why there were oniy 8 members as opposed to the 60 members of the group as reflected in the Constitution of the group (Exhibit Dl); the number of the attendees was not even half of the members. Further the Minutes do not reflect that the other members had ceased to be members and only 8 members remained to enable them make decisions as per paragraph 5(1) of the Constitution. On the other hand, 35 members participated in the meeting that mandated the saie of the suit land to the 6^^ respondent (Exhibit D8). The decision of the sale to the 6^^ respondent was therefore by majority members. In that regard the sale between the 1'^ respondent and the 6^^ respondent is vaiid as it was supported by binding documents as explained hereinabove. Subsequentiy, I agree with the Chairman that the 1'^ respondent had titie to pass to the 6^^ respondent in terms of the case of Farah Mohamed vs. Fatuma Abdaiiah [1992] TLR 205 where it was stated: ''He who has no legal title to the land cannot pass good title over the same to another". 11 In this present case, it was oniy the respondent who had good titie over the suit iand and so she had aii the right to pass on the title to the 6^*^ respondent. And vide Exhibit D6 the respondent iawfuiiy soid the suit iand to the 6^^ respondent hence the iawfui owner of the suit land. In that regard, I find no fault in the decision of the Tribunal. Subsequently, the appeal has no merit, and it is hereby dismissed with costs. It is so ordered. Co r\ mm hp •i" ,Wvvi. / If / // V.L. MAI JI JUDGE 08/11/2021 12