GODFREY ESSAU NGADU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 1135 OF 2024 (Originating from Land Application No. 13 of 2023, District Land and Housing Tribunal for Mbulu at Dongobesh) GODFREY ESSAU NG'ADU..................................................... APPELLANT VERSUS MCHOVU DAUDI @ GISOS MANYA................................ RESPONDENT JUDGMENT 19th March & 18th April, 2024 D. C. KAMUZORA, J. The Appellant sued the Respondent before the District Land and Housing Tribunal for Mbulu (hereinafter referred to as the trial tribunal) for reliefs z/tfera/zathat he is the lawful owner of a piece of land described as plot No. 11 Block D (hereinafter referred to as the suit land). According to the pleadings before the trial tribunal, the Appellant claimed to have acquired the suit land by way of inheritance from his late father who was allocated the suit land by the village authority in 1981. He claimed that the Respondent trespassed into the suit land sometimes in 2021 resulting Page 1 of 18 to this dispute. On the other hand, the Respondent claimed to be the lawful owner of the suit land having acquired the same by purchase from one Emmanuel Boay on 21/12/2019 and later on issued with a certificate of title. After hearing the parties, the trial tribunal decided the matter in favour of the Respondent and declared him the lawful owner of the suit land. The Appellant was aggrieved with such decision hence, preferred the instant appeal on seven grounds of appeal as follows; 1. That, the trial tribunal grossly erred in law and facts by not taking into considerations the credibility of the evidence presented by the Appellant and his witnesses before it hence, arriving at a wrong conclusion. 2. That, the trial tribunal erred both in law and fact in determining the case in favor of the Respondent relying on sale agreement which do not show the boundaries and the size of the land. 3. That, the trial tribunal erred both in law and fact in determining the case which was not proved on the balance ofprobability as required by the law. 4. That, the trial tribunal erred in law and fact in determining the case in favor of the Respondent basing on contradictory and inconsistence evidence on the side of the Respondent and his witnesses over the land in dispute. Page 2 of 18 5. That, the Hon. Chairman erred in law and fact by failure to consider the discrepancies on the sale agreement executed on 2/1/2020 between the Respondent and one Agnes Lagwen. 6. That, the chairman erred in law and fact by holding that the Respondent is the lawful owner of the property in dispute without establishing valid title deed. 7. That, the trial tribunal grossly erred in law and fact by not taking into consideration the fact that the registration was obtained fraudulently because there was no sale agreement in the land office as per the law requirement. At the hearing of the appeal, Mr. Simon Shirima, learned advocate represented the Appellant while Mr. Richard Manyota, learned advocate represented the Respondent. In his submission in support of the first ground Mr. Shirima argued that, the evidence proved that the Appellant acquired the land from his parent as part of his inheritance and the Appellant has been paying fees over the suit land in the name of his father. That, the Appellant had strong evidence than the Respondent thus, the trial tribunal should have decided in his favour. To buttress his arguments, the learned advocate referred the case of Mohamed Said Vs Mohamed Mbilu, [1984] TLR, 113 and sections 3 (2) (b), 110 and 111 of the Evidence Act [Cap 6 RE 2022]. He Page 3 of 18 insisted that, the evidence shows that the Appellant is the owner of the suit land which originally was allocated to the Appellant's father by the village authority. That, the Appellant inherited the land from his late father. On the second ground, Mr. Shirima submitted that the tribunal erred in making decision in favor of the Respondent relying on the sale contract which did not show the boundaries and size of the land. That, even the sale agreement between Agnes Lagwen and Emmanuel Boay does not show the boundaries or size of land allegedly sold. That, the said agreement was executed by the ward executive officer but the said officer did not appear to testify if he was the one who executed the documents. That, Agnes Lagwen and Emmanuel Baso never appeared to testify in court while they are still there and could be called to testify. Referring the case of Hemed Said Vs. Mohamed Mbilu, (supra), the learned advocate argued that where a key witness is not called to testify, the court may draw an inference that the witness could have given evidence against the party who failed to call that witness. On the third ground, Mr. Shirima submitted that, the Respondent's evidence before the trial tribunal was not strong to prove ownership of the suit land. He argued that, the exhibits tendered by the Respondent raised doubts over ownership as the source of ownership was not well Page 4 of 18 explained and even the original owners never appeared before the tribunal to state on how they acquired the land. On the fourth ground, Mr. Shirima faulted the trial tribunal in deciding in favor of the Respondent while there was contradictory evidence. He explained that exhibit U5 tendered by the Respondent referred to plot No. 55 and 57 Block A and the Appellant admitted that he conducted official search for plot No. 55 and 57 Block A while the case before the trial tribunal was for plot No. 11 Block D and all other documents were referring plot No. 11 Block D and not Plot No. 55 and 57 A. On the fifth ground, the Appellant's counsel submitted that tribunal failed to consider the difference in signature in the sale agreement between the Respondent and Agness Lagwen. He contended that there is difference in signature in that agreement as opposed to other documents. The Appellant's counsel also submitted that, the sale agreement did not meet the requirement under section 45(a) and (i) of the Stamp Duty Act, [Cap 189 R.E 2022] and section 5 of the 1st Schedule to the Act, for it contained no stamp duty. He added that, no receipt was tendered evidencing that the sale agreement was executed at the village office and necessary fees were paid. That, even the executive officer and other Page 5 of 18 people who witnessed the sale agreement were not summoned to testify before the trial tribunal. On the sixth ground, Mr. Shirima submitted that trial tribunal erred in declaring the Respondent the lawful owner of the suit land while apart from the sale agreements which are full of inconsistencies, there is no other evidence to prove the case. On the seventh ground, Mr. Shirima submitted that the trial tribunal erred in considering the registration of exhibit U4 which is the transfer between Agnes Lagwen and Emmanuel Baso while they were not summoned to testify on how they acquired the land. He argued that, there must be Form No. 29, 30 and 35 for the transfer to be complete. That, the file presented by the land officer, exhibit Bl contained transfer from Agnes to Emmanuel and the sale agreement for 2/1/2020 but other documents were missing thus, the procedures were not followed. In reply, Mr. Manyota argued the first, third and fourth grounds jointly. He submitted that, the evidence from both sides was considered by the trial tribunal and there was proper analysis of evidence. He referred to pages 2, 3, 7 and 9 of the decision of the trial tribunal and insisted that they show clearly the analysis of the Respondent's evidence. That, the trial tribunal was satisfied that the Respondent's evidence was heavier than that of the Appellant. Page 6 of 18 The learned advocate for the Respondent further submitted that, there is no dispute that the Respondent tendered a certificate of right of occupancy No 1139MNY, exhibit U4. That, the said document is not a transfer document as alleged by the advocate for the Appellant. He argued that, in land cases the person with certificate of right of occupancy is considered to have a conclusive proof that he is the owner. To buttress his arguments, he referred the case of Bilal Ally Kinguti Vs. Ahadi Mlela Said, Civil Appeal No. 500 of 2021, pg. 13 and 17 which made reference to the case of Amina Maulid Ambali and 2 others Vs. Ramadhan Juma, Civil Appeal No. 35 of 2019 (both unreported). The learned advocate for the Respondent further submitted that, there was no evidence presented before the trial tribunal to challenge the procedure in obtaining the certificate of title. That, even at the hearing of the suit before the trial tribunal, no objection was raised against the admission of the title as exhibit. Referring sections 63 (a) and 64 of the Land Act [CAP 113 RE 2019] the counsel insisted that, the evidence for ownership is proved by the document executed in writing and not mere words. That, where there is certificate of title, the boundaries and size of the land are described in the titles. That, the Respondent's title was admitted as exhibit but the Appellant never tendered any document proving ownership of the suit land. Page 7 of 18 On the argument that the tittle tendered bore different number from that referred in the case, the Respondent's counsel submitted that, the title shows that plot No. 11 Block D changed to plot No, 55 and 57 Block A. That, the evidence from the tribunal witness SB1, Allen Sarakikya at page 51 of the proceedings shows that the plot number changed after they conducted approved survey. On the argument regarding the contradictions in evidence, Mr. Manyota submitted that there were no contradictions and the Respondent's evidence was very clear and strong as opposed to that of the Appellant. That, the Respondent's evidence was supported by exhibits UI to U4 and there is no any contradiction or inconsistency in that evidence. On the argument that there was a need to call the original owners to testify in court, Mr. Manyota urged the court to be guided by the decision in the case of Kellu Kamo Lucas Vs. Dr. Luis Shija, Civil Appel No. 63 of 2022, Court of Appeal of Tanzania at Shinyanga (unreported), pg. 13 and 19, in which it was observed that, where there is a title, there is no need to call the original owners. He was of the view that, since the Appellant herein was the applicant before the trial tribunal, he could have joined the original owners to the suit if he had any claim against them. Page 8 of 18 On the argument over difference in signature, Mr. Manyota submitted that the issue of fraud related to signature requires water tight evidence and not evidence on probabilities. He argued that, there was no such evidence before the tribunal thus, such a claim is an afterthought as in this appeal, the court is bound to deal with issues that were determined by the tribunal below. He added that, there was no any reason to summon the ward executive officer or tendering of receipt from the village office because the dispute was not on whether the contract was executed or not but on who is the lawful owner of the suit land. He therefore invited the court to consider the first, third and fourth grounds of appeal to have no merits. The learned advocate for the Respondent argued the second, fifth and seventh grounds jointly. He submitted that, the original owner of the suit land as per evidence is Agnes Lagweni who sold the suit land to Emmanuel Baso @ Boay who later sold the suit land to the Respondent. Mr. Manyota pointed out that, during the period of ownership by those other people, no dispute arose until when the Respondent started to own the land. The learned advocate for the Respondent argued that, there is no any evidence over ownership by the Appellant or his father that was tendered by the Appellant before the tribunal that could invalidate the sale between the Respondent and Immanuel. He was of the view that, Page 9 of 18 the ownership history of the suit land was clearly told by the land officer who stood as SB1. That, he never mentioned if the Appellant and his father were owners of the suit land. On the argument that there was contradictory evidence for the transfer procedures were not complied with, the Respondent's counsel submitted that, it was not expected for forms No 29, 30 and 35 to be sent to the trial tribunal if the Appellant's advocate never requested them. He argued that, registration of land proves that the transactions which necessitated the issuance of the title deed were correct and it is more than a mere entry to the land register. To buttress his arguments the learned advocate referred the case of Livingstone Michael Mushi Vs Asha Magoti Magere and others, Civil Application No. 227/08/2022, pg.9 (unreported) to which the Court of Appeal of Tanzania at Mwanza observed that registration is more than a mere entry to public register and the title is a proof that the procedures in issuance of the same were correct. He therefore urged the court to find the rest of the grounds of appeal to have no merits. In rejoinder, Mr. Shirima added that from the documents tendered before the trial tribunal, the transfer was between Agnes Lagwen and Immanuel Baso but there was no any transfer document between Immanuel Baso and Gisos Manya apart from the sale agreement dated Page 10 of 18 2/1/2020. On the argument that there is no evidence on how the land was acquired, Mr. Shirima added that, the Appellant testified that his father was allocated land by the village council in 1981 and the documents proving allocation were also admitted as exhibit Ml. In determining this appeal, I will adopt the approach by Mr. Manyota by grouping the grounds of appeal into two sets. The first set covers for the 1st, 3rd and 4th grounds which refers the evaluation of evidence and credibility of evidence and the second set covers the 2nd, 5th, 6th and 7th grounds which refer to the validity of sale agreement and title deed. Although Mr. Manyota excluded the 6th ground in his submission on account that it was not argued by the counsel for the appellant, this court finds that the same was argued and will be deliberated upon by this court. I will start my deliberation with the second set. It was argued that the trial tribunal relied on the sale agreement which does not show the boundaries and the size of the land and failed to consider the discrepancies on the sale agreement executed on 2/1/2020. That, the trial tribunal did not consider that the Respondent failed to prove that he had valid title deed for the registration was obtained fraudulently because there was no sale agreement in land office as per the law requirement. The evidence in record shows that during interim survey, the suit land was surveyed as Plot No. 11 Block D Hydom. The evidence by the Page 11 of 18 land officer shows that as a result of approved survey, the same plot number 11 Block D changed to Plot No. 57 Block A and the Respondent applied to join his two plots in which he was issued one title for two plots; Plot 57 and 55 Block A. Thus, the contention by the Appellant's advocate that the Respondent's ownership documents were contradictory, is unfounded. He alleged that while the purchase document shows Plot No. 11 Block D, the certificate of title shows Plot No. 55 and 57 A. As well pointed above, Plot No 11 Block D and Plot No. 57 Block A is one and the same plot. It is true that the Appellant tendered receipts "Kielelezo M2" for land rent showing that rent was assessed, control number issued and rent paid for the same plot No 11 Bock D in April, 2018. The said receipts referred the name of Esau Slaa Ng'ada whom the Appellant claim to be his father. In his evidence he claimed that after the death of their father, the administrator of his estate who is the Appellant's mother continued paying rent in the name of the deceased. For him, "Kielelezo M2" evidence that the suit land belonged to the Appellant's father and upon his death it was bequeathed to the Appellant. Apart from the 2018 assessment document and payment receipt of the rent, no more evidence was tendered proving that the suit land belonged to the Appellant's father. The Appellant relied on Kielelezo Ml as proof for ownership, but the same are document Page 12 of 18 related to the probate mater of his father thus, proves nothing regarding the original ownership of the suit land. The Appellant claimed in his evidence that his father was allocated the suit land by the village council way back in 1981. The evidence from other witnesses and specifically; the town planner (SU2) and the land officer (SB1) reveal that there was a dispute in that area which called for the District Commissioner's interreference and it was resolved. That, through approved survey, there was reallocation of plots and the Appellant's father was left with two plots excluding the plot in dispute. The land officer tendered before the trial tribunal several documents from Mbulu district council (Exhibit Bl) including; record file for plot No.57 Block A, building permit, sale agreement, transfer documents, report on the dispute over that plot and sketch map of the surveyed land. From the analysis to the above evidence it shows that; one, Plot No. 11 Block D changed to Plot No 57 Block A. Two, Mbulu District council Database for plots shows that the said plot was allocated to Agness Lagwen and she was issued with letter of offer and building permit in 2008. Three, Agness Lagwen sold the plot to Immanuel Baso and a dispute arose in 2019 between Immanuel Baso and the Appellant herein as the Appellant was claiming ownership over the same plot. Four, subject to the report submitted by the land officer before the trial tribunal, that Page 13 of 18 dispute was resolved at district level and it was concluded that the plot belonged to Agness Lagwen who sold the same to Immanuel Baso. Five, after the dispute was resolved, Immanuel Baso sold the said plot to Daudi Manya (the Respondent herein) on 22/02/2020 who then processed for transfer and a certificate of title was issued in his name. From the Appellant's evidence and that of his witness, they admit that there was a dispute that was referred to the District Commissioner. They however differ on how the dispute was resolved. While the Appellant and his witness claim that the dispute was resolved in Appellant's favour, the evidence from the district council's office reveals that it was not resolved in their favour. The conclusion was made that the suit land belonged to Agness Lagwen to whom, the Respondent's ownership is premised. From the above evidence, I agree with the trial tribunal finding that the Respondent is the lawful owner of the suit land. It is clear that the Respondent was able to demonstrate the source of his ownership unlike the Appellant who only claimed that his father was allocated land with the village council without evidence in support of that claim. The receipts tendered evidencing payment of land rent in itself does not justify the ownership and basically, its source could not be traced. The said receipts were issued in 2018 meaning that the Appellant paid rent for that period Page 14 of 18 while the evidence proving that Agness Lagwen was the owner is traced way back in 2008. If the receipts were issued on basis that Essau Ngadu was the owner, it was expected for the Appellant to have records proving his ownership thus, the Appellant was expected to produce document evidencing allocation of the suit land to his late father. On the argument that the sale agreement contained discrepancies for not showing the boundaries and the size of the land and for not containing stamp duty, this court finds the argument weak. The suit land being surveyed and registered, its size is automatically indicated in the certificate of tittle/tittle deed. It would have been a different case if the land in question was un-surveyed land. Even in his pleadings before the trial tribunal, the Appellant himself described the suit land as plot No. 11 Block D, the description which is indicated in the sale agreement. The Appellant's counsel also submitted that, the sale agreement did not meet the requirement under section 45(a) and (i) of the Stamp Duty Act, Cap 189 R.E 2022 and section 5 of the 1st Schedule to the Act, for it contained no stamp duty. He added that, no receipt was tendered evidencing that the sale agreement was executed at the village office and necessary fees were paid. It is in record that when the said sale agreement was tendered, the Appellant raised no objection. It is my Page 15 of 18 considered view that, such an issue was supposed to be raised during trial for determination and not on appeal. On the argument that there was need for the village executive officer who witnessed the transaction and the previous owners to testify before the tribunal, I find the argument to be weak. I say so because there was no dispute over the sale agreement between the Respondent and the previous owners. Agness Lagwen was acknowledged in the official documents as the original owner and the Respondent's ownership traced its root from Agness Lagwen. Since, no dispute arose and a title was issued, failure to procure the attendance of Agness and village executive officer cannot invalidate the ownership passed legally through Agness who was the original owner. On the argument that the Respondent failed to prove that he had valid title deed and that the registration was obtained fraudulently, this court also find such argument misplaced for two reasons; one, such a claim was not specifically pleaded or raised as an issue before the trial tribunal thus, as rightly as argued by the learned advocate for the Respondent, raising the claim of fraud at this stage is an afterthought. Two, such a claim raises the question over the legality of allocation and registration of land which cannot be discussed without joining authorities responsible for allocation and registration of titles. That could be done at Page 16 of 18 the trial tribunal and not on appeal. In that regard, bringing that issue at this stage is an afterthought and this court cannot fall in the trap of entertaining issues not raised and determined by the trial tribunal. This court therefore finds no merit on the second set of the grounds of appeal (2nd, 5th, 6th and 7th grounds). Turning to the first set, it was argued by the Appellant's counsel that the trial tribunal did not take into consideration the credibility of the evidence presented by the Appellant and his witnesses. That, the case was not proved on balance of probabilities as required by the law for the Respondent's evidence was contradictory and inconsistent to prove ownership of the suit land. To him, had the tribunal properly evaluated the evidence, it could have discovered that the Respondent's evidence did not prove the case on the required standards. I patiently went through the tribunal's judgment to see if there was proper evaluation and consideration of evidence from both parties. From page 1 to 6, the chairman gave a summary of the dispute, identified issues for determination and in summary, captured the evidence from both parties. From the same page 6 to page 10, the chairman analysed the evidence from both parties and captured assessors' opinion before he came to the unanimous conclusion that the Appellant's claim was meritless as opposed to that of the Respondent. Page 17 of 18 I did not see anything in the tribunal's judgment that could be faulted and in considering my discussion to the second set of the grounds of appeal, I find that the tribunal was correct in declaring the Respondent the lawful owner of the suit land. The first set of the grounds of appeal (1st, 3rd and 4th grounds) are also meritless. I therefore agree with the trial tribunal that the Respondent's evidence was strong as opposed to that of the Appellant. Consequently, I find the appeal lacking in merits and the same is hereby dismissed with costs. DATED at BABATI this 18th Day of April, 2024. JUDGE Page 18 of 18