final judgment HASHIM H

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MOSHI

AT MOSHI LAND APPEAL NO 83987 OF 2023 (Appeal from the Judgment of the District Land and Housing Tribunal of Moshi at Moshi dated 13th October 2023 in Land Application No. 174 of 2016) HASHIM H. MUSHI………..…………………………….…………APPELLANT

VERSUS LUDOVICK LEMA……….……………………...……..………….RESPONDENT

JUDGMENT 8th & 31st July 2024. A.P. KILIMI, J.: The Appellant named above Hashim H. Mushi knocked the door of this court by way of appeal after being aggrieved with the decision of the District and Land Housing Tribunal of Moshi at Moshi delivered on 13th October 2023 in Land Application No. 174 of 2016. The appellant is praying for the judgment and decree of the trial Tribunal be set aside and this court to issue a judgment and decree in favor of the appellant as prayed in the application at the tribunal, also prays for the costs of this appeal and costs at the lower court. The appellant to compete for above prayer has instigated his claims basing on the following grounds; 1 1. That the learned trial Chairman completely failed to properly analyses evidence tendered and wrongly concluded that the appellant is not the owner of the land in dispute.

2. That the learned trial Chairman erred in fact and in law by heavily relaying on exhibit D1, D2, D3, D5, D6, D8, D9 and D10 to hold that the land in dispute does not belong to the appellant despite the existence of several errors and illegalities that vitiates the authenticity and reliability of the said exhibits. Before I dwell on above grounds, it is pertinent to have brief facts of the case gleaned from the trial tribunal records, the appellant herein sued the respondent at the trial tribunal claiming that the respondent trespassed to his land plot No. 252 Block G within Hai District “ suit land” and among her prayers was to be declared a lawful owner of the said suit land, declaration that the respondent was a trespasser to the suit land, permanent injunction to the respondent or his agents or any other person from the suit land, the costs of the case and general damages, and any other relief the tribunal may deems fit. At the trial tribunal, it was evidenced that the appellant herein bought the suit land from Joseph Mbise (PW2) for Tsh. 3,200,000/= in 2014 as depicted in exhibit ‘P1’ which is a transfer of right of occupancy (Form No. 35). It is further revealed that PW2 the seller to the appellant 2 bought the said suit land from one Lazaro Salewi in 1997 for Tsh. 300,000/= and as shown by exhibit ‘P3’ which is said to be a contract for sale of the suit land between

Lazaro Salewi and Joseph Mbise. PW2 also tendered exhibit ‘P4’ which is an offer of right of occupancy of the owner one Lazaro Salewi. The records further reveals that the appellant was informed by Joseph Mbise (PW2) that the suit land was already belong to him, but he was yet to transfer the ownership from Lazaro Salewi to himself as Joseph Mbise. It is further revealed that before selling the disputed property to the appellant herein, Joseph Mbise assigned one Ibrahim Mafeta to watch over the disputed property. The appellant further testified that after buying the said property from Joseph Mbise he started paying land rent and bought building materials and hired the contractors to build the house. It was until the contractors started their work, police visited the suit land and arrested them for the reasons that they were building on the respondent’s land. The respondent on the other hand Ludovick Festo Lema stated that he bought the said suit land from one Ibrahim Mafeta for Tsh 6,500,000/= in 2015 as per exhibit D1 which is a sale agreement. He added that he conducted due diligence at land registry and found that the owner was one 3 Lazaro Salewi and stated that he was also shown that the legal owner of the land was Ibrahim Mafeta. It was further revealed that Ibrahim Mafeta transferred the right of occupancy to the respondent through form No. 35 which is exhibit ‘D2’.

Thus, he prayed for the application be dismissed with costs. After a full trial in hearing, the trial tribunal dismissed the appellant application with costs and declared that the appellant was not the rightful owner of the suit property by reasoning that exhibit ‘P3’ were not attested by any government leaders and that exhibit ‘P1’ was a forged document as photo used was not of the seller and it lacked signature, thus held the appellant failed to prove the ownership as no title passed to him legally. The appellant being aggrieved with the trial tribunal decision lodged the appeal at hand equipped with the two grounds as mentioned herein above. At the hearing of this matter Mr. Josephat Msuya learned Advocate represented the appellant while Mr. Mandela Mziray learned advocate appeared for the respondent. Supporting the appeal, Mr. Josephat opted to argue the two grounds of appeal collectively. He submitted that as per page 5 of the trial tribunal proceedings the appellant bought the disputed plot from one Joseph Mbise 4 who told him that he bought the said land on 5/7/1997 from one Lazaro Salewi. He added that Joseph Mbise as per page 16 of the trial tribunal testified to have bought the said plot from Lazaro Salewi. The counsel went on submitting that the appellant tendered exhibit ‘P3’ a contract of sale between Joseph Mbise and Lazaro Salewi and exhibit ‘P4’ which was

an offer of right of occupancy of Lazaro Salewi where at the trial tribunal testimony from Joseph Mbise was that he was the one who sold the said plot to the appellant. The counsel submitted further that at page 10 of the tribunal proceedings, it showed how the title moved from Joseph Mbise to the appellant as Joseph Mbise testified to have sold the plot to the appellant without changing the name of the title deed. He stated that at page 57 of the trial tribunal proceedings, one Ibrahim Mafeta testified that the respondent sold plot No 254 Block G at Bomang’ombe Hai district while the disputed land was plot No. 252 Block G and no evidence were brought by the respondent to show how Lazaro Salewi disposed the title to Ibrahim Mafeta. He added that the only evidence tendered by Ibrahim Mafeta (DW3) was a letter allegedly written by Lazaro Salewi to Land registry of Hai as 5 found in page 58 of the trial proceedings, D10 the letter which did not evidence the transfer of title deed from Lazaro rather authorized Ibrahim Mafeta to develop the said area. The learned counsel also referred to paragraph 59 of the tribunal proceedings that the appellant brought witnesses including ten cell leader while none were brought by the respondent to prove transaction as evidenced in exhibit D1 of the respondent exhibits. The counsel further stated that exhibit D2 which is right of occupancy showed

different plot numbers which were altered by hand. He added that in exhibit D1, it showed the person one Johnson Omben Mbwambo to be a seller of the plot and not Ibrahim Mafeta and the said exhibit did not describe or mention the plot. He further submitted that the price in exhibit D1 was written Tsh. 6,500,000/= while exhibit D2 a transfer of right of occupancy states that it was for natural love and affection. Thus, such confusion was a prove that no genuine transfer of the suit land from parties to respondent. He added that there was alteration which were not rectified by respondent at the hearing of the application and they were altered by hands from plot No. 242 to be read as Plot No.252. 6 In respect to exhibit D6, D8, and D9 the counsel submitted that they were exhibits tendered by the police officer to prove that there was a forgery but no evidence was brought to prove the crime for forgery by using those exhibits. He added that the testimony was that a building permit were issued for block No 242 and not for the dispute suitland. He also stated that payment of government land rent fees did not amount to ownership of the said land because the appellant was also paying land rent as per exhibit P2. Arguing against the appeal Mr. Mziray learned counsel for the respondent vehemently disputed the appeal and stated that the respondent was the rightful owner of the said

property as he bought it from Ibrahim Mafeta who got from Lazaro Salewi by way of exchanging properties. He stated that as per page 12 of the trial tribunal decision, transfer between Joseph Mbise and the appellant was forged as per criminal case No.66 of 2016 as the document used to transfer plot 252 block G it bared the signatures of John Mbise, but the names of the seller were of Lazaro Salewi as the photo in the that document were also different from the seller. He then submitted that the trial tribunal correctly analyzed evidence and reached its decision. 7 In respects to exhibits, the counsel argued that exhibit P3 a transfer form revealed that the seller forged himself as Lazaro Salewi and put the photo of Joseph Mbise, thus the titles did not rightfully pass to the appellant. He added that at a police station, he admitted to have forged the signatures and sold the said land in dispute. He cemented his point by referring the decision of Bilali Kinguti vs. Ahidi Lilikwe, Civil Appeal No. 5000 of 2021 where the court stated that when two persons are competing on one land, then the one with certificate of title will be taken as the lawful owner. Submitting in regards to exhibit D1, D2, D3, D5, D6, D8, D9 and D10 the counsel stated that the trial chairman was correct to admit the said exhibits. Explaining exhibit D1 the counsel stated that during the hearing, parties prayed

for alteration of plot numbers to read plot No.252 instead of plot No. 242 which were allowed after the trial tribunal ruled the objection in regard to that difference. For exhibit ’D3’ and ‘D6’ the counsel stated that they were not objected at the trial thus were properly admitted and tendered. For exhibits ‘D8’, ‘D9’ and ‘D10’ the counsel replied by referring to page 12 and 13 of the trial tribunal decision and stated that at police station when Joseph 8 Mbise was interrogated, he admitted that he did not know how the sale took place or was done between him and appellant. The counsel submitted that the appellant had no better title from Joseph Mbise because Joseph Mbise was not the owner of Suitland thus a transfer between him and the appellant was illegal. He added that plot No. 254 Block G was a non-existing plot as there were typo errors which were corrected during the hearing and during cross examination as reflected in page 8 of the trial tribunal judgment. And for the contract title on names to read Ombeni Mbwambo, the counsel submitted that it was also a typo error. He added that the said contract was witnessed by local authority leaders as per page 4 and 5 of the tribunal judgment, he further cited the decision of Charles Richard Komba vs. Kinondoni Municipal Council, Civil 124 of 2017 (unreported) on things which cannot vitiate court proceedings and then prayed for

the appeal be dismissed with costs. Mr. Msuya advocate in his brief rejoinder contended that the counsel failed to explain about documents which he said were having typo errors and further reiterated his submission in chief. Before I proceed with the merit of this matter, I am mindful this being the first appellate court, has a duty to re-evaluate the entire 9 evidence in an objective manner and arrive at its own findings of fact. (see Makubi Dogani vs Ngodongo Maganga, Civil Appeal No. 78 of 2019 (unreported). Having considered the rival submission between the parties, as argued collectively two grounds above by appellant’s counsel, to me I find convenient also that one issue for determination cuts across all two grounds of appeal which is whether evidence was properly evaluated by the trial tribunal. As per the evidence on records, it is undisputed fact that the original owner of the disputed land is one Lazaro Salewi as both Joseph Mbise the one who sold the land to the appellant and Ibrahimu Mafeta the other who sold the dispute land to the respondent, both claimed to get the better title from him and the appellant and the respondent herein are not disputing that fact. To be guided with the principle of law, it is trite law that he who alleges in civil cases has a burden of proof as per section 110 of the Evidence Act, Cap. 6 [R.E.2022]. It is also elementary that the

standard of proof, in civil cases, is on a balance of probabilities which means that the 10 court will sustain such evidence which is more credible than the other on a particular fact to be proved. According to the evidence by the appellant part at the tribunal, land in dispute is a plot no. 252 Block G, situated at Bomangombe urban area. Upon scanning the trial tribunal records as depicted at page 6 and 7 of the trial tribunal proceedings, the appellant herein stated to have bought the disputed land from Joseph Mbise “(PW2)”. The document or exhibits presented by the appellant and his witness PW2 are the transfer of right of occupancy Form No. 35 which was admitted as exhibit P1, the land rent payment admitted as exhibits P2, Contract of sale of suit land exhibit P3 and an offer of Lazaro Salewi admitted as exhibit P4. In the above regard, as per above said principle as first appellate court let me evaluate the above evidence in order to satisfy if the trial tribunal was right in its decision, and very important point here for determination is whether PW2 the seller of the suit land to the appellant had a better title to do so. According to page 5 of the typed proceedings, appellant testified that he purchased the suit land from one Joseph Mbise (PW2) and since the plot was surveyed and registered, he tendered the transfer of right of 11 occupancy document which was admitted

as exhibit P1. Another document tendered is a copy of contract of sale of the suit land from Lazaro Salewi the original owner of land in dispute. It is trite law that admission of an exhibit is one thing and the weight to be placed on that exhibit is a different thing. I am guided by the decision of the Court of Appeal in the case of Asia Mohamed Rashid vs. Mgeni Seif, Civil Appeal No. 128 of 2011 in which the Court of Appeal relied on its previous decision in Steven Jason and two Others vs. Republic, Criminal Appeal No. 79 of 1999, (both unreported) where it was observed that: "However, it is common ground that the admissibility of evidence during the trial is one thing and the weight to be attached to it is a different matter. " I have revisited the said documents, the documents which could serve the purpose for the appellant is P1 which is transfer of right of occupancy Form No. 35, but in my view of it and the oral testimony of PW2, all together shows PW2 had no good title to pass to the appellant and the following are my justification for my decision. 12 At page 16 of trial tribunal proceeding PW2 testified as follows I quote; “I know HASHIM MUSHI when I sold my plot No. 252 Block “G” Kambi ya Raha Bomang’ombe. I purchased the plot from a vendor namely Lazaro Salewi in 1997 for a consideration of 300,000/= We entered into sales contract and there were witnesses during the

sales of the suit plot. If I see the contract I can recognize the sales agreement between me and Lazaro Salewi. I do pray tender a copy of the sales contract as the evidence. The sales contract has been admitted and marked as Exhibit P3. I do pray to produce an offer as an exhibit The offer is hereby admitted and marked as exhibit P4. Lazaro Salew i told m e to transfer the ow nership but I couldn’t do it in tim e. I did it after selling if to the applicant. I w anted to transfer the ow nership to m e but I failed because I couldn’t find the seller Lazaro Salew i. There were witnesses during the sales. Rajabu Nkya was one of the witnesses. The sales contract is in the custody of HASHIMU. I m ade the transfer of the ow nership and I put a photo. I know this transfer docum ent.” 13 [Emphasis is mine] At page 17 of same trial tribunal record when PW2 cross examined by Mr. Mziray counsel for the respondent had this to say; “There is no a photo of Lazaro Salew i on the transfer form . He didn’t see it. I did sign on it. There are no signatures of Lazaro Salew i a seller and Joseph M bise as buyer. … … … … … … … … … … … … .. He used my plot since 1999 until 2004. He was my neighbor. I went last in 2015. I know it is a crim e. I sold the building m aterials to the applicant too.” [Emphasis is mine] According to the evidence above of PW2, first, in respect to exhibit P1 despite being a

copy, SM2 is admitting that the said document has a photo which is not of Lazaro Salewi, but in my perusal and as said by himself the document bears the name of Lazaro Salewi as a seller, PW2 also admitted that he signed the said document, further when asked by respondent counsel he admitted to know doing so is a crime. Also, he admitted he did not transfer the title to him legally. In respect to exhibit P1 14 also despite of concede with the observation of the trial court, also its nature and its appearing seems to be altered and erased thus its authenticity is questionable. Therefore, I have considered the above in a whole, on account of oral testimony of appellant, PW2 and the documentary evidence evaluated above, I am settled as correctly observed by the trial tribunal, PW2 had no better title to pass to the appellant, this is substantiated by his testimony above as his admission of forging when he said that he knew it was wrong to sign on behalf of Lazaro Salewi on exhibit P1, moreover he did sign exhibit P1 while the document itself bears the name of Lazaro Salewi, indeed this proves that he was not truthfully when he entered the said contract with the appellant, I am of considered opinion the said contract speaks itself that the one who sold the suit land to the appellant as per exhibit P1 is Lazaro Salewi while it was not true as evidenced by the appellant himself that

one sold the plot to him is PW2. Having considered the above, I am of the settled view the said contract was vitiated. Thus, PW2 lacked legal status to sell the said land in dispute. It is at trite law no one can give what he doesn't have, this principle is reflected by the Legal maxim of Latin origin "nemo dat quod non habet", 15 therefore, for the above evidence adduced at the District tribunal, I am satisfied that it was impossible for the Appellant herein to get good title to the land for whatever price he bought the said suit land because the one who sold to him (PW2) had no title on the same land. It is also my view according of what is reflected on exhibit P1, had it the appellant made due diligence he could have realized that the document prepared for the above disposition does not gave PW2 power to transfer the said title to him, and by not doing so is the one to blame himself. I am saying the above being fortified by the principle that, if a purchaser fails to investigate title properly, he is assumed to have constructive notice of anything that he would have discovered had he investigated the whole title diligently. (See Idrissa Ramadhani Mbondera vs Allan Mbaruku & Another [2023] TZCA 204 (TANZLII). Moreover, I may say since the land is registered, no evidence adduced at the trial that the requirements of the law was complied with before or after the alleged

ownership of the land was transferred to the appellant, I think the Commissioner for Lands who was not been made a party at the tribunal could have evidenced on the real situation, therefore I am of considered view, the disposition of the land in dispute to the 16 appellant was made contrary to the requirement of the law, the law in disposing registered land is very fundamental. To echo the wording of the court in Nitin Coffee Estates Ltd vs United Engineering Works Ltd [1988] TLR 203, the court said; “There is no freehold tenure in Tanzania. All land is vested in the Republic. So land held under a right of occupancy is not a freely disposable or marketable commodity like a motor car. Its disposal is subject to the consent of the superior and paramount landlord as provided for in the relevant Land Regulations.” Nonetheless, the appellant’s counsel in his submission tried to water down the evidence by the respondent at the trial tribunal that it did not prove that the land belongs to him, with respect, as alluded above it was the appellant who was required to prove his case and not the adverse party. Therefore, the burden of proof never shifts to the adverse party until the party on who the onus lies, discharges the burden. It does not cease on account of the weakness of the case of the adverse party. This was emphasized in the case of Paulina Samson Ndawavya vs

Theresia 17 Thomas Madaha, Civil Appeal No. 45 of 2017 (unreported), where the Court said: "... since the burden of proof was on the appellant rather than the respondent, unless and until the former had discharged hers, the credibility of the respondent was irrelevant” Therefore from the above deliberation, then it is not true that the learned trial Chairman relied heavily on exhibit D1, D2, D3, D5, D6, D8, D9 and D10 tendered by respondent part at the trial tribunal, I am saying this because the decision by the tribunal is apparent at page 17 to 18 of the typed judgement where it held that Joseph Mbise (PW2) did not have legal capacity to transfer the ownership to the appellant because the contract deed and transfer deed were not valid since PW2 forged Land form no. 35 by representing himself as Lazaro Selewi which caused the contract to be void. The tribunal referred the case of Farah Mohamed vs Fatuma Abdallah [1992] TLR 205) which enshrine a principle that “he who doesn't have legal title to land cannot pass good title over the same to another” 18 In respect to allegation as envisaged by the appellant in second ground that the trial tribunal erred in deciding that the land in dispute did not belong to the appellant despite the existence of several errors and illegalities that vitiates the authenticity and reliability of the said exhibits. In my reply to this allegation, as

alluded by principles above, at the trial it was the duty of the appellant to prove his case since he was the one who alleges, thus he cannot base on the weakness of the defendant/respondent to prove that the transfer of the suit land to him was legal while it was not. In conclusion thereof this ground is devoid of merit thus, dismissed forthwith. In view of what we have endeavored to discuss, I am settled the appellant failed discharged his burden as required under section 110 of the Evidence Act. And to insist again as alluded above, his burden of proof has never shifted to respondent upon his failure to discharge that burden. In the meantime, as said the weakness of the respondents' case, if any, cannot salvage his unproven case. For the foregoing reasons, I am satisfied that the trial tribunal properly evaluated the evidence and its findings that the title did not pass 19 to appellant was justified. Thus, I find no reason to fault the decision of the trial tribunal. Consequently, I find this appeal devoid of merit and is hereby dismissed in its entirety with costs. It is so ordered. DATED at MOSHI this 31st day of July, 2024.

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JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 31st day of July, 2024 in the presence of Mr. Josephat Msuya for the appellant, also appellant present whereas Ms. Mwanaidi Idrisa holding brief of Mr. Mandela Mzirayi for the respondent. Sgd; A. P. KILIMI

JUDGE 31/07/2024 Court: Right of Appeal explained. Sgd; A. P. KILIMI

JUDGE 31/07/2024 20