hawa said akinunga vs kawaida issa bogoma 2021 tzhclandd 208 24 may 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 187 OF 2018 (Arising from the decision of liala District Land and Housing Tribunal in Land Application No.165 of 2013) HAWA SAID A. KINUNGA (Administratix of Estate of the .......... APPELLANT Late Said Abdallah Ki nun ga)iaaaaiaaaiaai aa. i i ................... .................... . VERSUS KAWAIDAISSA BOGOMA......... .................. RESPONDENT Date of Last Order: 20.04.2021 Date of Judgment: 24.04.2021 JUDGEMENT V.L. MAKANI. 3. The appellant HAWA SAID A. KINUNGA is appealing against the decision of liala District Land and Housing Tribunal (the Tribunal) in Land Application No.165 of 2013 (Hon. M. Mgulambwa, Chairperson). The genesis of this appeal is on the ownership of the house which is at Kiwalani Relini within liala District in Dar es Salaam Region (the suit house). At the Tribunal the applicant's application was dismissed for lack of merit and therefore she preferred this appeal on the following grounds: 1. That the District Land and Housing Tribunal erred in iaw and fact by admitting the respondents tax receipt with House No. ILA/KWN/MZF25/206H without calling a Tax Officer to identify and prove the authenticity o f the said document since the appellant had produced the same document with House No.ILA/KWN/MZF25/213H 2. That the District Land and Housing Tribunal erred in law and fact by admitting the cynical sale agreement submitted by the Respondent, whereby she failed to collaborate it by not bringing the vendor o f the said property during the trial to testify upon the said sale. 3. The District Land and Housing Tribunal erred in law and fact by entering judgment in favour o f respondent without considering the strong evidence adduced by the appellant and her witnesses that the suit premise was lawful owned by iate Said Abdallah Kinunga. The appellant prayed for the appeal to be allowed with costs and the decision of the Tribunal be quashed and set aside and the suit property be declared to form part of the estate of the late Said Abdallah Kinunga under the custodian of the appellant as Administrate of his estate. Hearing of the appeal proceeded by way of written submissions. The appellant's submissions were drawn Gratis by Legal And Human Rights Centre and filed by the appellant while the respondents submissions were drawn gratis by Grace Daffa, Advocate and filed by the respondent. 2 Arguing the first ground of appeal, the appellant said that the presiding Chairman failed to address the matter upon the two tax receipts without giving reasons as to why he preferred the respondent's receipt and disregarded the appellant's receipt. He further said that the Chairman decided without giving reasons nor involving the opinion of assessors contrary to section 24 of the Land Disputes Courts Act, Cap 216 RE 2019. He said that the Tribunal could have summoned Ilala Municipality for authentication of the tax invoices of both parties therefore the Tax Officer could be summoned to clear the contradictions. He said that the adduced tax receipt by the appellant bears the name of the late Abdallah Kinunga hence it is awkward for the presiding Chairman to deviate without any reasons to justify his action. That due to existence of two tax receipts with two different numbers, the presiding Chairman could have opted to visit the suit property to avoid inconveniences. She relied on the case of Avit Thaddeus Massawe vs. Xsdory Assenga, Civil Appeal Nb.6 of 2017 (2018) TZCA 357;(13 December 2018) where the Court of Appeal relied on the case of Akosile vs Adeye (2011) 17 NWLR (Pt 1276) p.263. 3 On the second ground of appeal, she said that the respondent's witness one Issa Abrahaman Mzinga testified to have witnessed the sale, unfortunately the name in the sale agreement does not correspond with that of the witness. That the sale agreement bears the identical signature of one Isa Mzingo the witness and Kawaida Issa Bugoma the purchaser. She said that it proves that the respondent and her accomplices are trying to deny justice to the heirs of the late Said Abdallah Kinunga by excluding the suit property to form part of the estate of the deceased. She added that the respondent was a housewife thus there is no proof that she was generating income enabling her to build the disputed house. She said that throughout her marriage with the late Said Issa Kinunga, it was the deceased who was the sole income earner as a broker of real estate and that the Tribunal erred in relying on the statement of DW3 Abdallah Yahaya just because he was receiving money from the respondent, it does not mean that it was her money but that of the deceased. On the third ground she submitted that the trial Chairman failed to consider the evidence adduced by the appellant of the tax receipt and disregarding the same and allowed that of the respondent. She argued 4 the court to re-evaluate the adduced evidence in the trial Tribunal since the presiding Chairman acted contrary to what was held in the case of Stanslaus Rugaba Kasusura and another vs. Phares Kabuye (1992) TLR 338. He further prayed for this appeal to be allowed. In reply the respondent said that the suit property belongs to the respondent and that the Tribunal considered the evidence from both parties to the extent that all the documents tendered were in favour of the respondent. He quoted paragraph 1 at page 3 of Tribunal's judgment and insisted that it was correct for the Tribunal to admit the respondent's tax receipt with house No.ILA/KWNZ/MZF25/206H which were marked as Exhibit D2 and that the Chairman also stated that the appellant tendered TRA receipts which hid the name of the late Said Abdallah Kinunga. She quoted paragraph 1 at page 2 of the Tribunal's judgment. She insisted that the documents tendered by the respondent had no problem as they were authentic, and the Tribunal was satisfied with them compared to the documents tendered by the appellant. 5 On the issue of assessors, she said that it was addressed by Chairperson of the Tribunal at page 4 where he concurred with the opinion of the wise assessors. She further insisted that there was no contradiction to the tax receipts tendered by the respondent and that there was no need to visit the locus in quo since as per the documents tendered there was proof that the suit property belonged to the respondent. On the second ground she said that the Tribunal was correct in declaring the respondent as lawful owner of the suit property. That the Tribunal admitted and considered the respondents sale agreement of 1993. She said that it is very clear that the suit property does not belong to the late Said Abdallah Kinunga as claimed by the appellant. She quoted paragraphs 1 and 4 at page 4 of the Tribunal's judgment and insisted that the appellant who is an administratix of the deceased estate is required to deal with deceased's properties in exclusion of respondent's house. As for the third ground of appeal, she replied that the Tribunal considered the evidence from both parties:. That both parties adduced documentary evidence to prove ownership of the disputed land which indicates that the suit property belongs to the respondent. She insisted that the Tribunal correctly analysed and considered the evidence from the appellant and respondent and finally the respondents evidence was heavier than that of the appellant. She relied on the case of Hemed Said vs. Mohamed Mbilu (1984) TLR 113 together with section 111 and 112 of the Evidence Act. Cap 6 RE 2019 and added that the appellant has failed to prove the ownership of the suit property. Further she said that the appellant has failed to substantiate on how the Tribunal did not corroborate the evidence and therefore such ground of appeal should be dismissed for lack of merit. She prayed for this appeal to be dismissed. In rejoinder, the appellant reiterated her main submissions and added that if the matter was a matrimonial issue where the late Said Abdallah Kinunga had a chance to defend himself, he would have his rightful share. That his rightful share is only claimed by an administratix thus the respondent has grabbed a golden chance to deny the efforts contributed by the late Said Abdallah Kinunga. He prayed for the appeal to be allowed. 7 Having summarized the submissions by the parties, I will now deal with the grounds of appeal as raised seriatim. On the first ground which also covers the third ground on tax receipts, the appellant had two arguments. She challenged the existence of two tax receipts with two different house numbers. She questioned on how the Tribunal considered that of the respondent without giving reasons. She was also of the view that the Chairman did not consider the opinion of the assessors in his judgment. In reply the respondent had notning much to say on the Tribunal's decision. She was of the view that what is alleged by the appellant is clear on the Tribunal's judgment. Having gone through parties' submissions I have noted that the Tribunal's decision is very clear that apart from the tax receipts (Exhibit D2) there was a sale agreement (Exhibit Dl) and marriage certificate (Exhibit D5) which shows that the respondent purchased the suit property before she married the deceased (Said Abdallah Kinunga). That is why, in my view, the Tribunal accepted the tax receipt submitted by the respondent in corroboration with other evidence. 8 In any case, looking at the receipts submitted by the parties, there is a iot to be observed apart from the fact that they had different title numbers. The receipts in the name of the Said Abdallah Kinunga are dated 31/01/2011 but according to the records Said Abdallah Kinunga died on 09/08/2010. The receipts therefore could not have been paid by the deceased as alleged by the appellant as he was already deceased. The authenticity of the said receipts which was admitted as Exhibit P I collectively is questionable arid that is why it cannot be relied upon. Further, the ownership of the suit property by the respondent has a history in that there is a sale agreement which shows that the respondent purchased the suit property on 23/11/1993. On the other hand, the appellant is claiming that the suit property belonged to the deceased but has no document other than the receipts which has already been discredited. In that respect, these grounds by the appellant have no merit and are dismissed. On the issue of the assessors' opinion, this will not take much of my time as at page 4 in the last paragraph of the Tribunal's judgment the Chairman concurred with the opinion of his wise assessors. The opinion by the assessors is also found in the record of the Tribunal. So, this ground too has no merit. On the second and third grounds which are all based on the weight of evidence, the appellant challenged the testimony of Issa Abrahaman Mzingo who alleges to witness the sale but, in the sale, agreement the name indicated is that of Issa Mzingo. To the appellant these are two different people. The respondent stated that the Tribunal was correct on relying on the sale agreement of 1993 tendered by the respondent. If the sale agreement was unchallenged at the Tribunal and the question of different names was not at issue, then there was nothing wrong to rely on the testimony of Issa Abrahaman Mzingo who Witnessed the sale. Indeed, his name appears in the sale agreement. The main question at the Tribunal was to consider the evidence before it and among it was the sale agreement by the respondent to prove that she acquired the property before marriage. The sale agreement was strong evidence as it proves the ownership and acquisition of the suit property. And the marriage certificate is equally strong to prove that the said property was acqureid by the respondent before her marriage with the deceased. The question that the respondent was a housewife and that she did not have money to build a house as was witnessed by DW3 has no merit because it has been established that the suit 10 property was acquired before marriage so it was not a matrimonial property. In this regard these ground too have no merit. Having said that, I find no fault in the decision of the Tribunal as the evidence by the respondent at the Tribunal was heavier than that of the appellant; and in terms of the case of Hemed Said vs. Mohamed Mbilu (supra) the respondent is the lawful owner of tne suit property. In the result this appeal has no merit, and it is dismissed with costs. It is so ordered. 24/05/2021 11