gaudence mbulumiko vs geofrey mavika 2020 tzhc 3557 10 november 2020

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (IRINGA DISTRICT REGISTRY)

AT IRINGA (LAND DIVISION) LAND APPEAL NO. 19 OF 2020 (Originating from the District Land and Housing Tribunal for Iringa at Iringa in Application No. 01/2017 delivered by Hon.Majengo Chairman). GAUDENCE MBULUMILO.................... APPELLANT

VERSUS GEOFREY MAVIKA ................. RESPONDENT 20/10/2020 & 10/11/2020

JUDGMENT MATOGOLO, J. The appellant Gaudence Mbulumilo was unsuccessfully sued by the respondent one Geofrey Mavika for trespass to land measured four acres situated at Kinyanambo - Mafinga town which he acquired after being granted by the Kinyanambo Village Land Committee in 1977. Page | 1 The appellant was aggrieved with the whole of the decision, he filed to this court memorandum of appeal with a total of three (3) grounds of appeal as follows:- 1. That the learned trial District and Housing Tribunal chairman erred both in law and fact by deciding the matter before him in favour of the respondent relying on the sale agreement adduced by the respondent as exhibit D1 of which its attainment is tainted with a lot of illegalities and irregularities.

2. That, the learned trial District land and Housing Tribunal chairman erred both in law and fact by holding that the appellant and his 4 witnesses failed to prove the matter on balance of probability having in contemplation that the appellant proved his case on balance of probability.

3. That, the learned trial District land and Housing tribunal chairman erred both in law and fact by holding that he trusts the evidence of the respondent and his three witnesses that he is the legal owner of the suit land failing to bear in mind that the respondent and his witnesses adduced evidence which is full of contradictoriness(sic). At the hearing of this appeal parties were represented, the appellant was represented by Mr. Leonard Lazaro Sweke learned advocate while the respondent was represented by Mr. Malenga Ndunguru learned advocate. This appeal was disposed of by way of written submissions. With regard to the first ground of appeal, Mr. Sweke submitted that, the learned trial District Land and Housing Tribunal chairman erred both in Page | 2 law and fact by deciding the matter before him in favour of the respondent relying on the sale agreement adduced by the respondent as exhibit D1 of which its attainment is tainted with a lot of illegalities and irregularities. He submitted further that, the respondent in his testimony informed the trial tribunal that he bought the suit land way back on 6/05/2000 from one Sumbuko Mdapo and he tendered the purported sale agreement merely relying on the same without any corroborating evidence such as verification of boundaries among persons who own parcels of land surrounding the suit land, persons who were involved in the sale

of the suit land particularly the Kinyanambo Village Council and neighbours such as PW1, the appellant, PW2, Augustino Nyigu whose lands are adjacent to the appellant's land on the western part, Mathias Kayage on the eastern part, PW3 Sofia who cultivates together with the appellant as neighbours, PW4, Anthony Nywege who was working on the farm of one Massawe whose land is adjacent to the appellant's land. He contended that, PW5, Samweli Kavanda Matinya who is the respondent's brother in law also testified to the effect that he moved to Mafinga in 1990 at the period of time the respondent was still young and that he has no farm at Kinyanambo rather than being a business man who sells timbers in Iringa. He went on submitting that, this entails that, even if the respondent bought the suit land from Sumbuko Mdapo, he did not take any diligence search to satisfy himself that the same belonged to Sumbuko Mdapo. To support his argument he referred the case of Bartholomew Ndyanabo Page | 3 vs. Petronida Ndyamukama [1968] HCD 339, in which Seaton, J (as he then was) held inter alia that:- "As the respondent's consent to the contract was induced by fraud she is entitled to repudiate on discovering the true position" He contended that, the purported sale agreement tendered by the respondent in the trial tribunal and marked Exhibit D1 is illegal and untainable in law, hence the entire

contract is voidable as per sections 10 and 24 of the Law of contract Act, [Cap. 345 R.E 2019]. He submitted that, besides the purported sale agreement, has to be accompanied by some receipts issued by Kinyanambo Village Council upon payment of ten percent of the purchase price of the impugned farm to be the Kinyanambo village Council income accrued from the purported sale as the Village Council is vested with powers under section 147 (1), (2)(a),(b), (c), (d) and (3) of the Local Government ( District Authorities) Act, [Cap. 287 R.E 2009], to run economic activities of the village council for the welfare of its villagers. He submitted that, on top of that, the purported sale agreement is not stamped contrary to sections 5 and 47(1) of the Stamp Duty Act, [Cap. 189 R.E 2019]. With regard to the second ground of appeal, Mr Sweke submitted that, the learned Trial District Land and Housing Tribunal erred in law and fact by holding that the appellant and his 4 witnesses failed to prove the matter on balance of probability having in contemplation that the appellant proved his case on balance of probability. He submitted further that, PW1 Page | 4 before the tribunal testified that, he is the lawful owner of the suit land measuring 4 acres situated at kinyanambo - Mafinga of which he acquired after being allocated by the Kinyanambo Village Land Committee way back in 1977 and that his

land is adjacent to the land of one Augustino Nyigu on the western part of the suit land, Mathew Kavenuke on the Northern part, Massawe on the Southern part. And in 2015 the respondent unlawfully and without any justification encroached on the appellant's parcel of land developing part of it to wit 70 by 60 paces by planting Hechia trees, the testimony which was backed up by PW2 one Augustino Nyigu, PW3 one Sophia Makombe, PW4 one Anthony Nywage as well as PW5 one Samweli Kavanda Matinya, the respondent's brother in law. He contended that, testimony herein suffices to prove the appellant's case on the balance of probability as required by section 110 of the Tanzania Evidence Act, [Cap. 6 R.E 2019]. He submitted that, in line with the foregoing, the appellant had to win his case in the trial Tribunal, to support his argument he referred the case of HemedSaid vs. Mohamed Mbi/u [1984] TLR 113 in which the court held that; "the person whose evidence is heavier than that o f the other one must win" Regarding ground No.3 that, the learned trial District Land and Housing tribunal Chairman erred both in law and fact by holding that he trusts the evidence of the respondent and his three witnesses that he is the legal owner of the suit land failing to bear in mind that the respondent and his witnesses adduced evidence which is full of contradictions. Page | 5 He went on submitting that

there is no any evidence adduced by the respondent and his three witnesses before the trial tribunal to prove his case on the balance of probability that he bought the suit land in a means that is tenable in law. DW1, the respondent himself testified that he bought the suit land from one Sumbuko Mdapo in the presence of Tanganyika street Chairman whereas the suit land is situated in Gangilonga street within Kinyanambo village and that the suit land is approximately 70 by 60 paces at the same time DW3, John Mpaliko Mdapo, the relative of Sumbuko Mdapo testified to the effect that the suit land is situated in Gangilonga street and its size is 2 acres, the testimony which contradicts that of the respondent. DW4, Fell Marko Msungu testified that the suit land is situated in Gangilonga street and sometimes in 2009 to 2014 he was the Kinyanambo village Chairman he knew the suit land sometime when there was fire destruction and that the respondent indicated boundaries to him telling him that he is the lawful owner of the same. He went on submitting that, once you go through the purported sale agreement, the leader who seems to testify the same is from Gangilonga street. The existence of Contradictions and inconsistencies in the evidence of a witness is a basis for a finding of lack of credibility. To support his argument he referred the case of Mohamed Said Matuia vs. Republic [1995]

TLR 3 to the effect that; "where the testimony by witness contains inconsistencies and contradictions, the court Page | 6 has a duty to address the inconsistencies and try to resolve them where possible, else the court has to decide whether the inconsistencies and contradictions are only minor or whether they go to the root o f the matter" Mr. Sweke concluded by praying to this court to allow the appeal in its entirety, the proceedings and judgment of the trial tribunal be nullified and set aside with costs. In reply Mr. Ndunguru with regard to the first ground of appeal submitted that, the first ground of appeal lacks merit and ought not to be considered by this honourable court, he contended that, it was proper for the trial tribunal to rely on sale agreement which was admitted as exhibit D1 for purpose of assessing the strength of the document together with the oral evidence of respondent's witness which was material for consideration before the tribunal coming to the conclusion to which it rendered. He submitted further that, looking closely to the pleadings before the trial tribunal, it reveals that, disputants were complaining on ownership of the suit land and not dispute of boundaries as alleged by the counsel for the appellant. He contended that, the trial tribunal could not confine itself to the verification of boundaries whereas the crucial issue between the parties

was ownership of the suit land. He submitted further that, the trial tribunal findings resolved the dispute of ownership basing on the tighter Page | 7 evidence given by the respondent and his witnesses. And, the assertion by the counsel for the appellant that the trial tribunal could verify the boundaries of the neighbours surrounding the suit land is an illogical. He went on submitting that, the appellant's testimonies and evidences were not attractive for the trial tribunal to rule on his favour as they were contradictory to each other and/or to the pleadings filed before it. He argued that, the allegation that the evidence of PW5, Samwel Kavanda Matinya to the effect that the respondent in 1990 was a young, a business man thus, he could not buy any farm is an afterthought, further a young business man can own land in this country according to the laws of land, and therefore making that allegation unfounded. He submitted that, issue of voidable contract regarding Exhibit D1 cannot be raised at this stage as it is new and it is raised without leave of the court. He said Exhibit D1 was admitted without any objection on the part of the Appellant and it was essential in ascertaining the veracity of the respondent's evidence. He was of the considered opinion that, the case of Bartholomew Ndyanabo (supra) cited by the counsel for the appellant and the provisions of the Law of

Contract (supra) are irrelevant and distinguishable to the matter at hand, as the case cited is about voidable contract where it appears that one of the parties entered into a contract under fraud and/or misrepresentation from the other party to which is contrary to the instant facts at hand. Page | 8 Mr. Ndunguru submitted further that, regarding the point raised by the counsel for the Appellant that the trial Tribunal was wrong to admit the Exhibit D1 because that findings was based on inadmissible evidence that is the unstamped document and it was not backup with receipt of ten percent from Kinyanambo Village Council is unfounded and lacks merit whatsoever. He contended that, it is true that the said document is unstamped as required by section 47(1) of the Stamp Duty, ( Cap. 189 R.E 2019), but the same cannot consolidate the whole proceedings and the decision of the trial tribunal findings. To that he cited the case of Boniface Jeremia vs Stephen Lukumay [1995] TLR 122 where the court observed the following:- However, this argument as contended by Mr Rweyongeza is o f no avail, as that point should have been raised at the trial and not at appeal. As held by this court in the case o f Sunderji Nanji vs Bhaioo(l) the question o f admissibility o f an unstamped document cannot be raised on appeal but only at the trial. This is so that the other party can be given

an opportunity o f paying the requisite duty and thus making it admissible. Therefore, on the authority cited above I find that the finding o f the trial Magistrate about the mortgage cannot be impeached now" Page | 9 Mr. Ndunguru also cited the case of Transport Equipment Ltd vs D. P Vatambhia [1993] TLR 91, whereby the court held:- "Of course we are aware that if our assumption that the irrevocable agreement has been "acted upon" is correct, then we have on record a document which offends section 46(1) o f the Stamp Duty Act and it wiii continue to be so if we refuse to extend time so that we can rectify it on appeal. However section 46(3) o f the same Act says; "Failure by any public officer to examine and impound any instrument as required by the subsection (sic), in no circumstance affect:- (a) Any proceedings under this Act or any other written law. Without analysing subsection (3), on face o f it, we have no doubt that it covers the present situation... it would appear to us then that no offence is perpetuated. So this point o f law is not such as would persuade us to extend time" He went on submitting that, the above established legal principle and the current provision of section 47(3) of the Stamp Duty Act (supra) provides the similar stand that failure by any public officer to examine and impound any instrument, in no circumstance affect any proceedings under this

Act or any other written law. He argued that, the provision of the Local Government (District Authorities) Act is inapplicable to the present matter. Page | 10 Regarding the second ground of appeal, he submitted that, the appellant failed to prove his case at the trial tribunal on the balance of probability. From the record of the trial tribunal reveals that, the appellant complained that the respondent herein trespassed 4 acres henceforth he has a duty to prove his case as he is a party who alleges. To support his argument he cited the case of Hemed Said (supra) and the provision of section 110 of the Law of Evidence Act. He said, as correctly ruled by the Chairman of the trial Tribunal that, pleadings and oral testimonies of the appellant was contradictory to each other, and it was correct to apply the cardinal principle that, parties are bound by their pleadings. He went on submitting that perusing the trial tribunal record and judgment it is undisputed fact that, the testimonies of the appellant were contradictory to each, starting with the evidence on the size of the suit land, the appellant was quoted saying the suit land is 4 acres, but when he was cross-examined he turn to say 60 to 70 paces. To contradict, appellant's testimony some of the appellant's witnesses said, the suit land was allocated by the "balozi" others by the village land committee and some of them

especially PW2 did not know even the size of the suit land. The assertion that the respondent encroached to the suit land of size of 60 to 70 paces out of 4 acres has no stand, as the appellant failed to prove ownership of the suit land but heavily relied on hearsay and contradictory evidence. Page | 11 With regard to the third ground of appeal, he submitted that the counsel for the appellant did not master correctly the records and facts on the proceedings of the trial tribunal. He submitted that the Chairman of Tanganyika street is a neighbour owning a piece of land adjacent to Sumbuko Mdapo at Gangilonga Street. He was of the view that, the Chairman of Tanganyika street was material witness to participate in the sale of land. He contended that, the respondent bought the suit land at Gangilonga Measured 70 by 60 paces out of 2 acres of Sumbuko Mdapo as correctly testified by the then Chairman of Kinyanambo Village Chairman DW4, Fell Marko Msungu. That the assertion by the counsel for the appellant that, it was wrong for the leader from Gangilonga street who appeared on the sale agreement to testify is unfounded. It was convenient for the Chairman of Gangilonga street who witnessed the sale of land between Sumbuko Mdapo and the respondent herein to testify on existence of such agreement. He contended that, the case of Mohamed Said Matula (supra) cited by the counsel for the

appellant is irrelevant and is distinguished to this case, firstly, it cannot be said that the appellant adduced evidence which proved in any way allegation in the application before the trial tribunal. Secondly, the case mentioned above is a criminal case whose standard of proof is beyond reasonable doubt to which its principle is inapplicable and we cannot borrow anything from this case whereas the present case is a civil case whose standard of proof is on the balance of probabilities. Page | 12 The learned counsel submitted that, the above mentioned case is on failure by the prosecution side to prove the charge to which they failed to convince the court in relation to the connection between the appellant and the death of the child in which it raises a lot of doubt. To the same, the court came into conclusion that, the inconsistence and contradictory testimonies raises doubt which benefited the Appellant. He contended that, in this case, there is no doubt that, there was sufficient evidence on record of the respondent before the trial tribunal which necessitated for it to decide as it did. He prayed to this court to disallow and dismiss the appeal with costs. In rejoinder Mr. Sweke reiterated what he submitted in his submission in chief, he agreed that the parties in the matter at hand are disputing on ownership of land and not boundaries, but in order for either party to

prove his ownership, his testimony must be accompanied with corroborating evidence such as verification of boundaries of people who own parcels of land surrounding the suit land, persons who were involved in the sale of the suit land particularly the Kinyanambo Village council. He contended that, it should be understood that as per Section 147(1) of the Local Government Act (supra), a village Council is the organ which is vested with all executive power in respect of all the affairs and business of a village, the only proper organ to certify the transfer of the suit land from Sumbuko Mdapo to the respondent was the Kinyanambo Page | 13 Village Council and not the Gangilonga Chairman who had no any authority in the impugned transfer of land and/or sale Agreement. With regard to the cases of Jeremia and Valambhia as cited by the counsel for the respondent, he said the cases are distinguishable to the instant matter. The counsel for the appellant insisted for this appeal be allowed, the proceedings and judgment of the trial tribunal be nullified and/ or set aside with costs. Having read the respective submissions by the parties, going through the grounds of appeal and having perused the court records, the issue for determination here is whether this appeal was brought with sufficient grounds of complaint.. With regard to the first ground of appeal the complaint is that,

the respondent failed to call witnesses to testify on the boundaries or his neighbours on verification of boundaries. The respondent tendered before the trial Tribunal the sale agreement to prove that he purchased the suit land and thus ownership to the land. That evidence was corroborated by the evidence of DW2 Gervasi Choga who witnessed the sale agreement when the respondent purchasing the suit land from one Sumbuko Mdapo as can be seen at pages 35 to 36 of the typed tribunal proceedings. As the issue before the trial tribunal was who is a legal owner and not on verification of boundaries, the issue of bringing the witnesses or Page | 14 neighbours to verify the boundaries of the suit land as alleged by the counsel for the appellant was not necessary. The second complaint is in respect of Exhibit D1 that was wrongly admitted as the same was not stamped, thus contravened sections 5 and 47(1) of the Stamp Duty. It is correct as submitted by the appellant's counsel that the sale agreement, exhibit D1 is not stamped to show that Government revenue was paid. The position of the law is that the sale agreement which is not stamped has no evidential value. In the case of Montakonsu/t AB Tanzania Branch vs. Margaret Gama, Civil Appeal No. 86 of 2001, CAT at Dar es Salaam (unreported) at page 9 and 10 it was held:- "A sale agreement which is not stamped ought not to have been admitted

in evidence and should not be considered in deciding the rights o f the parties regarding the disputed property" However this was not raised at the trial nor was it adjudicated. At the trial appellant was represented by the learned Advocate, he ought to have raised this issue so that the respondent could be given opportunity of responding to it or paying the requisite duty and making the sale agreement admissible but not to keep quite and then raising it at an appeal stage. (See the case of Boniface Jeremia vs Stephen Lukumay (supra). For that reason the decision of the trial chairman about the unstamped sale agreement cannot be challenged now. Page | 15 The third complaint is that, the respondent bought the land from Sumbuko Mdapo and he did not take any diligence to satisfy that the same belonged to Sumbuko Mdapo, I think this complaint has no merit, if the appellant wanted the sale agreement to declared void for contravening sections 10 and 24 of the Law of Contract Act [Cap 345 R.E 2019], he was supposed to raise this issue at the trial tribunal when the same was tendered but the Appellant had not raised this issue so that the same could not be admitted, but the trial tribunal records speak louder that the sale agreement was admitted in evidence without being objected basing on its validity. Now the appellant cannot at this stage raise the issue of invalidity of the sale

agreement while at the trial tribunal failed even to cross examine the witness who tendered the same on its validity or otherwise. His act of not objecting its admission and not to cross-examining the witness who tendered the sale agreement signify that he admitted its contents and the validity of that sale agreement as it was held in the case of Nyerere Nyague vs R, Criminal Appeal No.67 of 2010 ( unreported), in which the Court held:- "/4 s a matter o f principle a party who fails to cross examine a witness on a certain matter is deemed to have accepted that matter and will be stopped from asking the trial Court to disbelieve what the witness said" Basing on the above argument, it is my considered opinion that, ground of appeal No.l has no merit. Page | 16 Regarding the second ground of appeal, the appellant complaint is that, the trial tribunal chairman erred in law and fact by holding that the appellant and his four witnesses failed to prove the matter on balance of probability having in contemplation that the appellant proved his case on balance of probability. It is my considered opinion that, looking at the trial tribunal proceedings the evidence adduced by the appellant and his witnesses failed to prove the case on balance of probability. This is because looking at the evidence of the appellant and his witnesses, the same contradicts each other. The appellant testified

that, the size of the suit land is 4 acres, but when he was cross-examined he said his land has size of 60 to 70 paces. Moreover his witnesses said the suit land was allocated by the cell leader (balozi), others by the village land committee and PW2 did not know even the size of the suit land. While PW5 gave hearsay evidence that, he was told by PW1 that he got the land from the Government. The appellant's evidence was not corroborated with the evidence of his witnesses. These discrepancies and contradictions in the appellant's witnesses was the basis of the findings by the trial tribunal that the evidence lack credibility as it was held in the case of Maramo Slaa Hofu and Three Others vs. R., Criminal Appeal No. 246 of 2011 (unreported) where the court held:- " / f is now settled that, discrepancies and contradictions in the evidence of witnesses are basis for a finding o f lack o f credibility" Page | 17 For that reason it is my considered opinion that the appellant failed to prove his ownership over the suit land. This ground fails. With regard to the last ground of appeal, the appellant complained that, the trial tribunal erred in law and fact when decided the matter in favour of the respondent while his evidence and that of his witnesses were full of contradictory. This ground of appeal has no merit, due to the fact that the trial tribunal proceedings speak louder that,

the evidence of the respondent was heavier than that of the appellant, because the evidence of the respondent proved that, he is a legal owner of the suit land with a size of 60 to 70 paces as he purchased the same from Sumbuko Mdapo in 2000 and to prove the same, he tendered the sale agreement. DW2 Grevasi Choga corroborated the evidence of DW1 that, he witnessed the sale of the Land to DW1 from Sumbuko Mdapo in 2000 and the land has size of 60 to 70 paces. Likewise DW3 John Mgelkoli Mdapo told the tribunal that his young brother sold the land to DW1. Furthermore the evidence of DW4 the former Chairman of Kinyanambo village corroborated the evidence of DWI to the effect that the land belongs to DWI and he knew that when he was the chairman due to the fire incident which occurred in 2012, the respondent was among the villagers whose trees were burnt by fire. For that reason it is my firm view that the evidence of the respondent is stronger than that of the appellant and the trial tribunal rightly decided in favour of the respondent. It is the cardinal principle of law that a person Page | 18 whose evidence is heavier than that of the other must win the case as it was held in the case of Hemed Said (supra). Having state as herein above there are no good complaints raised to warrant interference of the finding by the trial tribunal. I find no merit in this appeal the same is dismissed with costs. DATED at IRINGA this 10th day of November, 2020. F.NLMATQGOLO

JUDGE 10/ 11/2020 Date 10/ 11/2020 Coram Hon. F. N. Matogolo - Judge L/A B. Mwenda Appellant Present Respondent Absent C/C Grace Mr. Leonard Sweke - Advocate: My Lord I am appearing for the appellant. The respondent is absent. The matter is for judgment we are ready. Page | 19 COURT: Judgment delivered.