gelard mwesigwa boniphace vs elgidius sosthenes 2021 tzhc 9297 21 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA DISTRICT REGISTRY AT BUKOBA MISC. LAND APPEAL NO. 52 OF 2019 {Arising from Land Appeal No. 15 of 2019 at the District Land and Housing Tribunal for Muieba and original Civil Case No. 07 of 2018 at Kishanda Ward Tribunal) 1. GELARD MWESIGWA BONIPHAS..................... APPELLANT VERSUS 2. ELGIDIUS SOSTHENES................................ RESPONDENT EX-PARTE JUDGMENT I 20/ 09/2021 & 21/12/2021 NGIGWANA, J.: This is a second appeal where the appellant is aggrieved by the decision of the District Land and Housing Tribunal (DLHT) for Muieba at Muieba in Land Appeal No. , 15 of 2019, originating from Kishanda Ward Tribunal (the trial tribunal) in Land Case No. 07/2018. Briefly, the facts which gave rise to this appeal are that, both parties to this case Gelard Mwesigwa Boniphas and Elgidius Sosthenes alleged to have purchased the disputed land from one Mamelitha Ngaiza at different dates. The appellant alleged to have purchased the same on 14/11/2004 while the respondent alleged to have purchased the same land on 13.10.2018. .i j Each party claimed that the transaction was concluded in writing. Sometimes in 20:18, the respondent instituted a suit before Kishanda Ward Tribunal which was registered as Land Case No. 07/2018 against the i appellant claiming ownership of the disputed land. Having heard both parties and witnesses, the Trial Tribunal was satisfied that the lawful owner of the disputed land was the respondent Elgidius Sosthenes. Aggrieved by the i rial tribunal decision, the appellant appealed to the DLHT vide Land appeal No. 15 of 2019, but the appeal was dismissed with । costs for want of merit. The DLHT confirmed the decision of the trial tribunal. The D_HT further advised the appellant to initiate Criminal proceedings against Mamelita Ngaiza (vendor) to recover his money. The appellant wa's again aggrieved by the decision of the DLHT, hence this appeal. The Petition of Appeal contained seven (7) grounds of appeal as l follows: - 1. That, the learned Chairman erred in law for not taking into consideration the legal fact that the appellant's evidence at the trial tribunal had clearly portrayed the fact that the appellant was in occupation ^nd ownership of the suit land for fourteen years since he bought the !same from the vendor. 2. That, the I’earned Chairman erred in law for failure to take into consideration the appellant's evidence which was portraying the fact that the vendor of the suit land, one Memelitha had sold the suit land twice. 3. That, the learned Chairman erred in law for failure to take into consideration the fact that by the time the vendor, one Mamelitha, re sold the suit land to the respondent, the said Mamelitha had no any good title tcj pass to the respondent. 2 4. That, the |learned Chairman erred in law for failure to take into consideration the fact that the trial tribunal ought to have discredited the vendor's evidence since in the record of the trial tribunal, there was strong and reliable evidence of the witnesses who witnessed the vendor selling the suit land to the appellant in 2004. 5. That, the learned Chairman erred in law for failure to take into consideration the fact that the trial tribunal had erred in admitting and basing] its judgment on the purported sale agreement dated 13th . ,i October, 2018 which was tainted with a lot of illegalities. 6. That, the learned Chairman erred in law for failure to take into consideration the fact that the trial tribunal's judgment was against i the weight of evidence adduced before the said trial tribunal. 7. That, the teamed Chairman erred in law for directing the appellant to seek, in the criminal courts, for the relief of his land rights against the suit land. Wherefore, the appellant prays for a judgment and orders as follows; That the entire judgment of the Trial tribunal and that for the DLHT be quashed and set aside. That the appellant be declared the owner of the suit land. That, costs of the appeal be provided. The respondent on 17/02/2021 filed the reply to the petition of appeal and raised therein one preliminary objection on point of law that the petition of appeal has no verification clause, thus incurably defective. The hearing was scheduled to commence on 28/04/2021 before Kilekamajenga, J. The hearing was further adjourned until 21/06/2021. Again, it was not heard on 3 that date. On 03/09/2021 the matter was re-assigned to me following my I arrival at this Registry. From there, the Imatter was cause listed in civil clearance sessions and the hearing date wa|s fixed to wit; 07/09/2021. On that date, the respondent entered to appearance, and for the interest of justice, the hearing was adjournment until 20/09/2021. The respondent was notified to appear on the hearing. Service of summons was effected to him on 18/09/2021, and he duly signed nptice/summons. Despite of that service, the respondent defaulted appearance. Having considered the nature of the objection which was raised by the respondent that, even if argued, it would definitely fail for want merit, the court ordered the hearing of the appeal to proceed ex-parte against the respondent, and hence ex-parte judgment. At the hearing Of this appeal, the appellant had the legal services of Mr. 'I Dustan Mutagafiywa, learned advocate. Submitting on the 1st and 2nd grounds of appdal, Mutagahywa stated that, the appellant purchased the । suit land on 14/11/2004 from Mamelta Ngaiza and stayed therein for 14 years. That later on, that is to say on 13/10/2018 the same vendor re-sold the suit land to the respondent. He added that, both lower tribunals have erred in law to recognize the 2nd purchaser because Mamelta had no right to sell the said land to the respondent any more. He made reference to the case of Melchiades John Mwenda versus Giselle Mbaga (Administratix 4 of the Estate of the Late John Japhet Mbaga and two others, Civil i appeal No. 57 of; 2018 CAT (Unreported) Arguing the 3rd ground of appeal, Mutagahywa stated that Mamelta Ngaiza I had no good title to pass to the respondent. He made reference to the case of Frank Mohamed versus Fatuma Abdak [1992] TLR. Arguing on the 4th 5th and 6th grounds of appeal, Mutagahywa submitted that both lower Tribunals have failed to analyse the evidence on record because the appellant's evidence was very strong compared to that of the respondent. Mutagahywa faulted the sale agreement of 2018 that it was not signed by those alleged to have witnessed the transaction. As regards the 7th ground of appeal, Mutagahywa argued that, it was not right for the DLI^T to direct the Appellant to initiate criminal proceedings against the sellet, the advice would have been given to the respondent (2nd buyer). ; । He ended his submission urging the court to quash and set aside the I judgments of bcjth lower tribunals, and then declare the Appellant as the lawful owner of tihe Disputed land. Now, the only issue before me is to see whether this appeal has any merit. In the case at hand, the DLHT as a first appellate tribunal went through the trial tribunal; record and submissions made by the parties before it to । see whether the first appeal had merit or otherwise and this was its findings; 5 "The appellant ^alleged to have purchased the land in 2004 while the respondent purchased the land in 2018. As per the proceedings of the trial tribunal, it appears that the said Mamelita Ngaiza testified on 07/11/2018 and confirmed to have sold her land to the respondent and not to the appellant. I find the said Mameiitha was a key witness in establishing ownership between the parties over the disputed and then it goes without saying the appellant has no right over the land in dispute—. The assessors who set with me during the hearing have both opined in favor of the appellant that he is the one who lawfully purchased the land in dispute, that when the seller (Mameiitha) was selling the land to the appellant of2004 she was of sound mind, that upon selling the land to the respondent in 2b08 she was of unsound mind. That the agreement of 2018 was a forged one. With due respect, I beg to differ with their opinions as there was no evidence to prove that in 2018, the alleged Mameiitha was of unsound mind. In the event, the appeal is hereby dismissed with costs for want of merit, the decision of the Ward Tribunal is confirmed". Having seen the ifindings of the DLHT and how the Chairman differed with the opinion of the gentlemen assessors; I found necessary to reproduce opinion given by each assessor for easy reference; Maoni ya Mjumbe wa Baraza Protazi Marijani Mrufani alikua na misingi ifuatayo, -Had ya ununuzi\kati ya Mameita na Eigidius ina mapungufu mengi pamoja na mashahidi kutoweka saini zao au dole gumba. 6 -Uzito wa ushahidi wake kutowekwa maanani, kama vile ushahidi wa Bonifasi Ngaiza ajiyekuwa akitunza shamba la mgogoro. -Utembeieaji na uahakiki wa eneo la mgogoro haukuwa na utaratibu mzuri, uiitawaiiwa na ushabiki hata kwenye kuhakiki vipimo vya hatua. i -Muuzaji bibi wa miaka 92 hakuwa na uwezo waia kumbukumbu sahihi, waiitumia nafasi hii kupindisha ukweii. । ■। Mrufaniwa alikuvya na misingi ifuatayo -Ushahidi wa Bonifasi ambaye ni Baba yake na mrufani haukuwa na ukweii baii kupendeiea mwanae. -Kwamba sababu za rufani hazikuwa na uzito wowote. I । Baada ya kusikiiiza maeiezo na mahojiano ndani ya Baraza, pia baada ya kupitia nyaraka ndani ya jaiada nimebaini yafuatayo; (i) Barua ya ununuzi kati ya Mameiita na Gerald Hitengenezwa kwa i kushuhudiwa na mdogo wa Mamelta wa kike Daria Agness na I Bonifasi, wote watoto wa Ngaiza. Wote wametoa ushahidi i kwenye Baraza la Kata. II (ii) Kwa I miaka 14 shamba Hiikuwa mikononi mwa mrufani Hkitunzwa na Baba yake Bonifasi Ngaiza. (Hi) Mameiita aiipouza shamba kwa hati ya mwaka 2004 aiikuwa na miaka 78 hivyo kuwa na akili timamu, kurudia kuuza shamba i akiwa na miaka 92 inatia mashaka. Hata uwezo wa kutoa । ushahidi mahakamani haukuwepo - ni mchezo wa kuigiza tu. Maoni: Ni maoni yangu rufani hii ikubaiiwe kwa gharama". 7 MAONI YA MJUMBE WA BARAZA J. MUTALEMWA: Rufaa hii imefunguiiwa baada ya mrufani kutoridhika na maamuzi ya Baraza la Kata Kishanda na alitoa sababu zake za rufaa kama ifuatavyo; (1) Yeye amekaa na shamba hiio kwa miaka 14. (2) Kwamba shamba yeye aliuziwa na shangazi yake mwaka 2004. (3) Mlalamikaji anayenishtaki hajaniuzia shamba, angemshtaki aiiyemuuzia - Mamelita. (4) Mashatiidi wake wakati ananunua walitoa ushahidi wao katika i baraza la kata. i (5) Baraza ia Kata Kishanda wajumbe wake ni waiimu wastaafu hivyo . J was/nge mwangusha mwenzao. I Naye Mrufaniwa alijibu kama ifuatavyo:- i 1. Kwamba yeye ndiye aiifungua kesi Baraza ia Kata. 2. Kwamba Mamelita alitoa ushahidi wake akiwa na akiii timamu. 3. Madai kwamba baba yake aiikuwa msimamizi wa hili shamba siyo kweii. | I 4. Kuhusu Mkataba ni kwamba, kwa sababu niiibaki nadaiwa fedha kidogo baadhi ya mashahidi hawakusaini hadi niiipomaiizia deni ndipo waiiposaini. MAONI YANGUI: Katika rufaa hii mimi nimeamua kutumia Hati za ununuzi ziiizopokeiewa katika Baraza ia Kata, nimechunguza sana Hati zote mbiii na kugundua kuwa Hati moja inaweza kuwa ya kweii kwa sababu katika mashahidi wa Hati ya Mrufani nimekuta shahidi Bonifasi Ngaiza wakati katika Hati ya 8 Mrufaniwa Bonifasi Ngaiza ni jirani tu. HU inanipa wazo kwamba Bonifas Ngaiza asingeweza kuwa shahidi wakati akijua shamba HHshauzwa kwa mtu mwingine. Pendekezo: Napendekeza Rufaa hii ikubaUwa. Il Section 24 of the Land Disputes Courts Act, Cap 216 R: E 2019 provides that; "In reaching decisions, the Chairman shall take into account the opinion of the assessors but shall not be bound by it, except that the Chairman shall in the judgment give reasons for differing with such opinion" i I In the case at jhand, the Hon. Chairman differed with the opinion of i assessors. Let thb record speak for itself; "With due respect, I beg to differ with their opinions as there was no evidence to prove that in 2018, the alleged Mameritha was of unsound mind" j . I I Taking into account the opinion given by the gentlemen assessors as it appears herein above, it cannot be said by any means or whatever standard that the Chairman discharged his duty of assigning reasons for । differing with thd opinion of the gentlemen assessors. I ■I I have also goijie through the trial tribunal records and found that the respondent testified but also featured four witnesses. The appellant also testified and featured four witnesses. However, the evidence of both sides 9 was not analyzed and evaluated by the trial tribunal before reaching its decision. The decision was very brief. Let the record speak for itself; MAAMUZI YA BARAZA. Baraza liliposikiliza ushahdi wa pande zote mbiii na ushahidi wa aiiyekuwa mwenye shamba ambaye ni Mamelita Ngaiza Hnafahamu kwamba Eigidius Sostheness anashinda na ndiye mnunuzi haiaii wa shamba hiid' The DLHT as the first appellate court had the duty to step into shoes of the trial tribunal and re-evaluate the evidence as articulated in the case of The Registered Trustees of the Joy in the Harvest versus Hamza K. Sungura, Civil Appeal No. 149 of 2017 (Unreported) where the Court of I Appeal stated that; ”Zf is part of our jurisprudence that a first appellate court is entitled to re­ evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive to its own independent decision...... The obligation imposed on the first appellate court in handling an appeal is not a light i duty, it is a painstaking exercise involving rigorous testing of the reliability of the findings of the court below" It was further held by the Court of Appeal for East Africa in Peters versus Sunday Post Limited [1958] EA 424 that; i "It is a strong thing for an appellate court to differ from the finding, on a question of fact) of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this io is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion" In a nutshell, the first appellate court must be guided by the following principles; (a) That on first appeal, the Court is under a duty to re-consider and re-evaluate the evidence on record and draw its own conclusions; (b) That ini reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; and । (c) That it is not open to the first appellate court to review the findings! of a trial court simply because it would have reached different results if it were hearing the matter for the first time. It is unfortunate jthat, that duty was not discharged by the DLHT. Now, this being a second appellate court, I am alive that my duty is to determine matters of law only unless it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, interference of the court is necessary. See R.V. Hassan bin Said (1942) 9 EACA 62. In the case at hand, as per trial tribunal records, the respondent told the trial tribunal that he purchased the disputed land from Mameiitha Ngaiza (PW1) in 2018 at the price of Tshs. 1,500,000/= He tendered the sale agreement dated 13/10/2018. PW1 confirmed to have sold the disputed land to the respondent. Her evidence was supported by the evidence ii Evelistus Ngaiza (PW2), Felician Ngaiza (PW3). PW2 and PW3 also admitted that the disputed land was under care of Bonifasi Ngaiza. PW4 Gordian Godwin ^id not specify as to whom the disputed land was sold. On his side, the J appellant told the trial tribunal that he purchased the suit land from PW1 in 2004 at Tshs. 160,000/= He tendered the sale agreement dated 14/11/2004. DW1 Dalia Ngaiza (DW1) who is the young sister of PW1 confirmed that PW1 sold the disputed land to the Appellant I 14 years ago at'Tshs. 160,000/=. DW1 further told the trial tribunal that PW1 had no right to re-sell the said land. Bonifasi Ngaiza (PW2) who was taking care of the disputed land as acknowledged by PW2 and PW3, gave similar evidence! that the suit land was sold to the Appellant in 2004 at Tshs. 160,000/=. He further told the trial tribunal that, the respondent consulted him before purchasing the suit land in 2018, and he cautioned I him that the suit land was already sold to the appellant. Robert Eustas (DW4) gave similar evidence to the effect that PW1 sold the disputed land to the appellant in 2004. I have considered the fact that the sale agreement of 2004 was not disputed in the itrial tribunal. The evidence of the appellant, which was supported by the evidence of DW1, DW2, DW3, and DW4 but corroborated by the evidence of PW2 and PW3 was very strong as compared to that of the respondent; side. Furthermore, the sale agreement concluded on 14/11/2004 between PW1 and the appellant is self-explanatory. It is trite law that where the terms of a contract, grant or any disposition of property have been reduced to form a document, no evidence shall be 12 given in proof of the terms of the contract but the document itself or secondary evidence of its contents. See the case of Tanzania Fish Processors Ltd versus Christopher Luhanyula, Civil Appeal No.21 of 2010 CAT (Unreported). A court of law makes determination based on evidence and the law, and where a party fails to establish his/her assertions, a codrt can not act arbitrarily and award him/her that which has not been proved. As per evidence available in the trial tribunal record, the appellant had proved his case because, PW1 had sold the land to the appellant in 2004, therefore, she had no good title to pass to the ■I respondent in 2018. It is trite law that, nobody can give what he/she does not have or possess (Nemo dat quod non habet). In Frank Mohamed versus Fatuma Abdak [1992] "I^LR 205 it was held that he who does not have good title to the land cannot pass the same to another. The anonymous opinion given by the two gentlemen assessors was very proper. They discharged their duty according to law bearing in mind the interest of justice. The Court of Appeal of Tanzania addressing the situation similar to this in the case of Melchiades John Mwenda versus Giselle Mbaga (Administratix of the Estate of the Late John Japhet Mbaga and two others, Civil appeal No. 57 of 2018 CAT (Unreported) had this to say "In view of the above, we think, the trial court, having found that John Japhet Mbaga sold the disputed land to both the Appellant and the 2fd respondent, it should have found that the appellant was the first buyer and 13 that John Japhet Mbaga (the seller) had no good title to pass to the 2nd respondent!'. Being guided by the herein above cited authority, and upon consideration of the submissions by Mr. Mutagahywa, learned advocate for the appellant when arguing the grounds of appeal, I find merit in this appeal and allow it. In consequences whereof, I quash the judgements of both lower tribunals and set aside the orders entered thereto. I proceed to declare the appellant Gerald Mwesigwa Bonifasi as the lawful owner of the disputed land. The respondent is a liberty to initiate legal proceedings against Mamelitha Ngaiza so as to recover his money. Given to the nature of the appeal, and the' fact that the hearing proceeded ex-parte as against the respondent, I make no order as to costs. 21/12/2021 Judg^enfeafliv^red this 21st day of December, 2021 in the presence of Mr. Mutagahywa, learned counsel for the appellant, the respondent in person and Mr. Gosbert Rugaika B/C. Right of appeal explained. E L. NTOWANA 21/12/2021 14