NA TZHC Mbeya

IN THE HIGH COURT OF TANZANIA AT MBEYA LAND APPEAL No. 23 of 2014 (From the Decision of the District Land and Housing Tribunal of Mbeya District at Mbeya in Land Case No. 122 of 2014) HELENA CHAWE (as Legal representative of BONIFACE PAULO MFINJILWA ............................. APPELLANT VERSUS KEFASI KENYA MWAMBENJA (Legal representative of KEIIYA 11/AF4BEF13A ................ ....................... RESPOrI DEItIF JUDGMENT 29.07.2016 & 09.09.2016 CHOCHA, J. The appellant Helena Chawe, a legal representative of Boniface Paulo Mfinjilwa is on a tag of war with Kefasi Kenya Mwambenja, also a legal representative of Kenya Mwambenja. The contestants are represented by Mr. Mushokorwa and Mr. Kyando Advocates respectively. Their dispute revolve on the ownership of the house'titled H/NO.SA/196 located at Manga Ward area within Mbeya City. For convenience, the said house will be referred too as the suitpremise. As intimated, all parties in this dispute feature as legal representatives. That is a challenge to the appellant who had sometimes attempted to claim that the suitpremise 1 ought not to be disposed off without either her knowledge or consent, on the ground that she was the deceased's wife. it is fortunate the claim was not seriously pursued, otherwise it would be self defeating to what the appellant has, through her advocate introduced herself in court, a mere legal representative. So luckily, the question whether or not the appellant was the deceased's wife was left in abeyance, otherwise it would escalate the confusion. For six years now parties assisted with the same advocates are hotly debating and they are seeking this court's interference to resolve the issue whether or not the suitpremise was ever sold. The brief story giving rise to the controverse is here under restated. The appellant and Boniface Mfinjilwa cohabited together up to the later's death in 2012. I said earlier that the question whether or not they were husband and wife is not important to consider and detain me for now. Provided that, during the subsistence of their cohabitation, Boniface Mfinjilwa happen to own a suitpremise which housed his family members including Sililo and his (Mfinjilwa) own mother. There is evidence that sometimes one Theresia, a seemingly key player in my view in this dispute, also lived in the house. The respondents claim which is partly vehemently resisted by the appellant, that upon the deaths of both Sililo and Boniface's mother, the suitpremise was through Theresia, put on notice for sale. The fact that Theresia published the sale of the suitpremise was echoed by Daniel Mwakisyale and Seneta Lyoto who featured as PW 2 and DW 2 respectively. That fact was basically not resisted by the appellant. Kenya Mwambeja alleged to have learnt of the sale of the suitpremise through an undisclosed "ba/ozi''on the strength which he alleged to have bought the 2 same. The late Kenya contended that the sale was witnessed by the seller's relatives including Seneta Lyoto and John Mwiyange (DW 2 and 3 respectively). They in a way confirmed the fact which according to John Mwiyange, took place before the chairman. He could not name the said chairman. However upon evaluation of evidence, it is apparent that the referenced chairman before whom the purported sale is alleged to have taken place is PW 2 Daniel Mwakisyale. Unlike all other witnesses who allege to have witnessed the sale, he is the only one who mentioned the suitpremise's purchase price. He said the house was sold at Tshs 3.35 m/=. Not even the purchasor (DW 1) was in the position to tell it. What the appellant is vehemently disputing is that they ever either authorised Theresia to sale, or themselves (Boniface and herself) physically been involved in anyway in the sale of the suitpremise. When the trial District Land and Housing Tribunal had ruled against the appellant's expectations, the decision sparked into an appeal whose grounds are hereunder restated:- "(a) The tribunal erred to hold that the appellant had not challenged the sale agreements (EXHIBIT D 1 and 0 2) on ground of forgery. The tribunal erred to hold that the respondent bought the suit house from the late husband of the appellant. The tribunal misconstrued the evidence before it leading to a wrong verdict against appellant' During the hearing of the appeal, the learned counsels for both sides were considerably involved in wrangles most of which revolved on evidence. They were certainly reevaluating the evidence which is why I think it is MEA neceSary to begin by considering the first ground of appeal constituting the issue whether evidence was adequately evaluated. In every proceedings evidence is a master key to a decision. Credible evidence leads to a credible and fair decision. Wrong evidence, however honest will never make justice. To the contrary, justice combines and results from right evidence on the right issue, time and place, needless to mention many more factors. Theresia, however sidelined or ignored, still stands as said before, a key player in this dispute. Her role and her ommission during the trial had in any case, a serious adverse impact on the administration of proper justice during the trial. Theresia's role cannot so easily be ignored and her evidence cannot be left out. It is the reason why the matter was picked up during the appeal. Unfortunately, the best it advanced, was to narrow it to the extent of parties shifting the budern of proof. The trial tribunal had found that it was the applicant's/appellant's duty to bring Theresia failure whereof costed her. It is pertinent at this juncture, to remind the trial court that the budern of proof is a legal requirement provided for under s. 110 (1) and (2) of the Tanzania Evidence Act Cap 6 RE 2002; namely:- "(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the exi5tence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burdern of proof lies on that person ' From the wording of this legal principle I agree with Mr. Mushokorwa that the District Land and Housing Tribunal wrongly shifted the budern of proof to the appellant on a very crucial issue whether the publication of the 4, salef the suitpremise was authorised by the appellants. That fact was the respondent's assertion. Apparently it was only Theresia who could give a viable explaination to that. It was therefore the respondent's budern to establish that fact and in effect, it him who was bound to cause Theresia's presence to court. Why Theresia is important? It is so far not clear, critically reading the evidence, to whom exactly was the purchase price paid. DW l's evidence is even worse. He does not say how much and to who was the money paid. The question who or how was the money taken away is explained by the purported eye witnesses differently. One of the key witnesses over that issue is as noted already, PW 2 Daniel. On his party, he mentions the figure. However he does not say who took the money. As to whether or not Boniface Mfinjilwa was around on the date the money is purported to have been paid he said:- tThere was no writting but he told me that the said father Mt/nfl/wa is sick and he cannot come, the mother (wife) of the deceased was nursing him (the deceased). The house was sold at 31 350, 000/=. Later on they came to me confirming that they have sold the house and they came into the office and I told them to sign the seller was Boniface Mfinjilwa. I told them to writting (sic) so as to put evidence and to send the writing to the said Boniface Mfinjilwa so as he can sign " Unlike PW 2, DW 2 Seneta Lyoto who also alleged to have witnessed the sale, much as he supports that there was no writting at the time the purchase price was paid to the buyer the amount of which he did not mention, on his party he said the money was given to the deceased and his wfe. This was an important evidential area for the trial to consider and clear. Where there is a conflicting evidence on an important issue, the court has the duty to address on the discrepancy and state its position. Reverting to the requirements of S. 110 (supra), the first answer to the question how much and to who was the money paid, ought to come from the purchaser and pay master. He missed that very important explaination. The ommission would be forgiven if the court was perhaps informed that he sent someone to undertake the job on his behalf. Now that it is clear that everything was his manual work, then there was still a lot to be desired from his evidence which short coming could not pass unnoticed by the District Land and Housing Tribunal. I associate with Mr. Mushokorwa's fear that there was an inadequate evaluation of evidence. That will introduce me, for proper chronology, on the second ground, whether the suitpremise was bought from the appellant's husband. Having evaluated the first ground at length, this issue is made simple. We have seen already that respondent failed as he was expected, to show that the appellant (including Boniface) was responsible for the publication and subsequently the sale of the suitpremise. That finding results from failure to call Theresia. The respondent's seemingly uncertainty on what he exactly did adds salt on a wound. PW 2 before whom negotiations are alleged to have taken place clearly said the deceased and his wife were not around. His evidence closely looked at, suggest that it was Theresia and Seneta Lyoto whom the respondent was transacting with, believing they were representing the appellant. I agree again with Mr. Mushokorwa that not sufficient evidence was advanced to show that the house was bought from the appellant's 6 tW husband. That said I will now move to the dispute over the sale agreements. This is another important area which the trial court ought to invest sufficient research, investigation and guidance. The appellant is complaining that all purported sale agreements are fake and fictitious. Mr. Mushokorwa considers the documents to be fake for containing information based on impersonation. His counterpart Mr. Burton Yesaya Mahenge who featured as DW 4, had his evidence constitute the trial court's fulcrum to a finding that the appellant signed the documents and in effect sanctioned the sale. DW 4 who is an advocate, claimed to be the manufacturer of the said documents. The value of these documents in this dispute may be assessed both from evidence and legal perspectives. From the evidential perspective the question should be whether the appellant signed the documents. The appellants are denying. The respondent contends that he did. Three respondent's witnesses including DW 2, 3 and 4 support the later fact. Assuming the appellants truly signed the documents, that is supposed to be on a day other than when the purchase money is purportedly paid. I so find because there is no dispute that at least on the day which money was paid there was nothing condensed in writting. I am saying that is a mere presumption relying on DW 2's contradictory statements on page 34 of the trial courts proceedings. Whereas he alleges that the 1st contract was sent to Dar es Salaam for the appellant to sign, he 2nd was signed by himself before the advocate, presumably in said the Mbeya. What DW2 does not explain is who sent the document to Dar es Salaam and why. The only possible reason if we are to believe the story that the document was indeed taken to Dar es Salaam for signature, is the 7, versin explained by the appellant that indeed Boniface was sick hence incapable to make it to Mbeya. For that same ground it would defeat the logic that Boniface would in the next two days manage to recover and appear before DW 4 for the more or less similar purpose! I am not at all impressed by Respondent's explaination. On legal perspective. DW 4 confirmed to be an author of one document. He introduced himself as an advocate. As an advocate, he is an officer of the court whose evidence is always deemed credible. It is not expected an officer of the court to temper with his oath and betray the proper administration of justice. An advocate is expected to conduct himself in a manner which assists the proper administration of justice. That includes rendering honestly and professionally, proper advise to clients and to court. On my party, after my evaluation of the totality of the evidence I find neither the appellant nor the deceased ever appeared before either the chairman (PW 2) or DW 4 Mr. Mahenge for signing of the documents. As matters stand, the business was transacted by Theresia and Seneta Lyoto. I find it is wrong to allege that the appellant was at all involved in the signing of the documents. And assuming the appellant, his representative or agent signed the sale agreement such that the suitpremise was eventually sold, I find that the purported sale if any, was void. The reason I am saying this is that after my examination of the records, it is now apparent that the suitland as clearly stated in the plaint (application), located at a now hot prime business area, Mwanjelwa. That is undoubtedly now both the heart and City Centre. Land management in areas like this one is no longer WEa disordëiiy. Laws, regulations and rules are in place to ensure proper .7 planning. It is the reason why people in the 1egal fraternity when I, approached for legal advise on land related issues, they should take trouble to render skilful and professional advise as practicable as possible. Records reveal that the then suitpremise titled H/No.SA/196 was transformed to Plot No 70 Block 9 Mwanjelwa. It is therefore a registered land. Any disposition of a Right of Occupancy of the land like the suitpremise shall by operation of law in line with the provisions of s. 36(1)(a) and (b) of the Land Act Cap 113 RE 2002, comply with the provisions of ss.37, 38, 39 and 40 of Cap 113 (supra), else, the purported disposition shall be void. The referenced provisions requires the involvement of the Commissioner who may approve or otherwise the disposition. The Commissioner may provide for classes or dispositions which require approval or otherwise. And it is categorically clearly provided u/s. 37 (5) of Cap 113 (supra) that:- A disposition has been carried out without first obtaining the approval of the Commissioner shall be inoperative " Mr. Mahenge ought to advise his clients in terms of those legal requirements for which he would automatically realise that he had no powers to prepare any sale agreement. In fine therefore, I agree with Mr. Mushokorwa for the appellant that there was no evidence not even on the balance of probability that the appellant (deceased) ever disposed of the suit premise. Even assuming there was one, it was void for non compliance with the law.