johasi kashura another vs osca mhagama another 2019 tzhclandd 26 19 september 2019

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) LAND APPEAL NO. 78 OF 2017 (Land Application No. 145 o f 2011) JOHASI KASHURA.................................... ..... ......1st APPELLANTS ROSEMARY KATUNZI......................... 2nd APPELLANTS VERSUS OSCAR MHAGAMA ........................... ........ RESPONDENTS SEKUNDA MHAGAMA JUDGMENT ON APPEAL S.M. MAGHIMBL J: In this judgment the appellants were dissatisfied with the decision of the District Land and Housing Tribunal for Temeke ("The Tribunal") in Land Application No. 145/2011 where they were the 1st and 2nd respondents. They have lodged this appeal raising 3 grounds of appeal namely: 1. That the Honorable erred both in fact and law in failing to consider that failure to obtain the consent of theseller's wife in the sale of the disputed landed property in theabsence of any other relative amounted to fraudulent sale transaction and that no title could be obtained i 2. That the Honorable learned Chairman erred both in and fact in failing to take judicial notice consider the appellant's testimony in that the first respondent had taken oath stating that he had returned the disputed property to the beneficiaries in accordance to the Probate and Administration Cause No. 28 of 2002 of the Primary Court of Temeke District at Temeke and finding for the respondents contrary to the principle in the doctrine of estoppels. 3. That the Honorable [earned Chairman failed to properly analyse and evaluate the evidence before him and in so doing he arrived at a conclusion that was wrong and improper in the circumstances of the case upon reaching the decision he made and without considering the appellant counter claim or giving reason as to why he differed with the gentlemen assessors. The appellants prayed that this appeal is allowed with costs by quashing and setting aside the judgment and decree of the tribunal and for any other relief(s) that this Honorable Court may deem fit and just to grant. By an order of the court dated 08/07/2019, the appeal was disposed by way of written submissions. Before this court the appellants were represented by Mr. Zake who also drew and filed their submissions while learned Advocate Mr. Tarimo represented, drew and filed the submissions for the respondents. However, on the 22/08/2019 the 2nd respondent wrote a letter to this court along with her own submissions complaining to the court that she had lost confidence with her advocate and prayed that the submissions filed on her behalf be disregarded and instead, the court take on board the submissions attached to the said letter. Much as the court is not moved by a mere letter, I however considered the fact that the 2nd respondent has lost confidence in her advocate hence ignoring her submissions may amount to condemning her unheard. I will therefore take on board her submissions while constructing this judgment. As per the records of this appeal, the background of the dispute emanated from a sale agreement dated the 22/08/2011 (EXP1) between the 1st respondent and one Wilfred Katunzi, now deceased, who was also a husband to the 2nd appellant. The sale agreement was for a house No. TNK/KHE 238 situated at Block No 1/92 Tandika Kilimahewa in Temeke District, Dar-es-salaam Region ("The suit property"), which formerly belonged to the late Edward Kilwanila, Wilfred's father. On the other hand, the 2nd respondent is the wife of the 1st respondent. The 1st appellant is the administrator of the estate of the late Kilwanila and an uncle to the late Wilfred, the 2nd appellant's husband. After the conclusion of the sale in 2001, the respondents moved into the house where they lived with the late Wilfred. In 2002 the first appellant opened a probate cause for the late Kilwanila so as to rescue the house. The dispute arose after the late Wilfred died in the car accident in 2011 and the respondents attempted to evict the appellants from the suit property. I have considered the grounds of appeal, the parties submission for and against this appeal, the judgment of the tribunal and the records of this appeal and the following are my findings. The first ground of appeal is that the Honorable tribunal erred both in fact and law in failing to consider that failure to obtain the consent of the seller's wife in the sale of the suit property in the absence of any other relative amounted to fraudulent sale transaction and that no title could be 3 obtained. I must point out on the onset that in the first ground of appeal as well as their submissions to support the appeal, Mr. Tarimo brought a new issue that was never raised at the tribunal. I have also noted that even the 2nd appellant in her informal submissions which I said I will consider, raised the same issue which is that the disputed property was a matrimonial property for her and the late Wilfred. In his submissions, Mr. Tarimo went further to cite the case of Lota Loti Vs. Elialilia Aulo, Land appeal No. 55/2014, High Court Arusha (unreported) whereby a sale was nullified because the spouse was not involved in the said sale. On his part, Mr. Zake replied that the issue of spouse consent is not relevant as there was no proof that the property was obtained as a matrimonial asset. With due respect to the appellants, the issue of spouse consent was never raised during hearing at the tribunal where the following issues were framed for determination: 1. Whether the applicant Of all those issues raised, the issue of spouse consent was not there, neither was there any argument that the disputed property was a matrimonial property. In her testimony summarized on page 7 of the tribunal's first judgment, the 2nd appellant admitted that the suit house belonged to her ;ate father in law Edward Kilwanila, hence at this stage to raise the issue of spouse consent cannot be acceptable. I therefore cannot take on board that issue at this stage of appeal while it was never raised or argued during trial. 4 The second ground of appeal was that the Honorable learned Chairman erred both in law and fact in failing to take judicial notice and consider the appellant's testimony in that the first respondent had taken oath stating that he had returned the disputed property to the beneficiaries in accordance to the Probate and Administration Cause No. 28 of 2002 of the Primary Court of Temeke and finding for the respondents contrary to the principle in the doctrine of estoppels. Mr. Zake's submission was that had the tribunal considered the testimony of the appellants regarding the oath and its contents by taking judicial notice of the original Probate and Administration Cause No. 28 of 2002 by taking into consideration and admitted the letters of administrations in the said probate which had not been nullified or set aside, it could have reached a different finding basing on the doctrine of estoppel. He argued that courts are bound to take judicial notice of matters of law as well as decisions of the court and hence the tribunal had to take notice of oath taken by the 1st respondent as proved by the testimony of the appellants under Section 123 of the Evidence Act, Cap. 6 R.E 2002. He however admitted that the affidavit was not admitted arguing that tribunal should have taken a judicial notice of its existence. He further argued that according to EXP3, after the death of the seller, the Primary Court declared the issues of marriage of the late Wilfred to be the owners of the suit property and that the decision has never been challenged and that after the 1st respondent returned the house, the residential license was changed into the name of Wilfred. He concluded that the residential license reads the name of Wilfred Edward Katunzi and no objection has been made in the process of obtaining it including from the respondents. In reply, Mr. Tarimo submitted that the doctrine of estoppel is not applicable in this case as the affidavit produced was just a copy and it was not proved in any other way that it was sworn by the respondent. He argued that on page 9 of the judgment, the tribunal noted that the affidavit was not proved to have been entered by the respondent as the magistrate whom the respondent is alleged to have sworn it before was not called as a witness. He argued that the appellant's testimonies that he was drunk or the probate was not complete and the issue of affidavit were not convincing because they created contradictions and errors. I have gone through the records of this appeal, as correctly observed by the Chairman, the appellants were duty bound to prove that the 1st respondent took the oath. There is no document showing that the said oath was taken, or as correctly argued Mr. Tarimo, no witness was called to prove that the affidavit was taken. Hence this ground also lacks merits and is hereby dismissed. The third and last ground of appeal is that the Honorable learned Chairman failed to properly analyse and evaluate the evidence before him and in so doing he arrived at a conclusion that was wrong and improper in the circumstances of the case upon reaching the decision he made and without considering the appellant counter claim or giving reason as to why he differed with the gentlemen assessors. Mr. Zake submitted that there are pieces of evidence which were either nor considered in the judgment or wrongly analysed leading to wrong conclusions. He mentioned the issues to include spouse interest in the suit property which according to DW2, the 2nd appellant was the wife of Wilfred and lived in the suit property since 1992 with her husband. He argued that this part of evidence was neither disputed nor contradicted and that the tribunal had a duty to look and consider that part to see whether the suit property was matrimonial. That the buyer had to inquire from people as to the marital status of the seller. Mr. Zake submitted further that the tribunal ought to have considered other relevant pieces of evidence apart from the fact that the suit property was registered in the name of Wilfred Edward Katunzi. He supported his submissions by citing the case of Chakupewa Vs. Mpenzi and Another, 1999 EA 32 (HCT) in which the court emphasized the importance of analyzing the spouses beneficial interest and the case of Bi Hawa Mohamed Vs. Ally Sefu, 1983 TLR 32. Mr Zake also submitted on the issue of jurisdiction of the tribunal as the claim was based on a sale agreement which was purchased at Tshs. 1,500,000/- and that the value of the property was not ascertained during hearing. He cited Section 10 f the Ward Tribunal's Act, 1985 which provides the pecuniary jurisdiction of Ward Tribunal to be up to Tshs. 3 million arguing that as per Section 33(2) (a) of The Land Disputes Courts' Act, 2002 ("The Act), the jurisdiction of the tribunal is up to Tshs. 50 million. He argued though the respondents mentioned the value of the suit property at Tshs. 25 million, the same was not ascertained by evidence. On the argument that the assessor's opinion was not considered, Mr. Zake submitted that Section 24 of the Act requires the tribunal to take into account the opinion of assessors, something which he argued that the Chairman did not do. He argued that on page 8 of the typed judgment the chairman held that the assessors gave their opinion in writing and opined that the application should be dismissed but he did not say whether the 7 opinion was considered. He submitted further that the chairman did not consider the counterclaim filed by the appellants on the 12/08/2015 in which the first appellant appeared as a representative of the late Edward Kiiwanila. He argued that there is nowhere in the judgment that the counterclaim was considered. In reply, Mr. Tarimo submitted that there was no error on the jurisdiction of the tribunal as the value of the subject matter was stated to be Tshs. 25 million. On the opinion of the assessors he submitted that on page 8 of the judgment, the chairperson mentioned the assessors positions and gave his position concerning those opinions before making a decision. On the failure to consider the counter claim, Mr. Tarimo pointed out that on last para of page 2 and the whole of page 3, the Chairman addressed the contents of the counterclaim arguing that the decision of the tribunal contains joint reflections of the plaint and the counterclaim. On my part, I have analysed the ground including the records of the tribunal, I made these observations and findings. In his testimony, the 2nd appellant had testified that after the late Wilfred sold the house to the 1st respondent, is when he opened a probate cause and was then appointed administrator of Kiiwanila's estate in 2011 (EXD3). There is however another EXD2 which shows that the 1st appellant was appointed administrator in 31/05/2001 hence we are not sure as to which document is telling the truth or when the 1st appellant was appointed administrator. The above notwithstanding, it is trite law in land disputes, the conclusive proof of ownership of a property is a document. In this case, we have EXD4, EXD5, EXD8 and EXD9 which are all documents which were 8 tendered by the appellants herein proving that the owner of the disputed property was the late Wilfred Katunzi. This fact was not disputed by any of the parties during trial hence there was sufficient proof to conclude that the disputed property belonged to Wilfred Katunzi. Since there was conclusive proof that the late Wilfred Katunzi owned the disputed property, the sale of the suit property to the 1st respondent (EXP1) cannot be doubted for reason of spouse consent which was not raised during trial or drunkenness of the seller at the time of sale. As I said in the first ground of appeal, the issue of spouse consent was never raised and determined by evidence, it cannot be raised at this point. Regarding the opinion of assessors, at page 8 of the typed judgment the Chairman wrote: "At the beginning o f the hearing the two assessors Mr. Kantabula , and Mrs. Zella who gave out their written opinion and they have unanimous opinions that this application has no merits because the house was sold before the probate was filed and also the 1st applicant handed over the suit property to the deceased's children before Hon. Nyanda 12/10/2017. I will start with the first Issue whether the applicants purchased the suit premises by virtue o f the agreement dated22/08/2001" These words suffices that the two assessors gave their opinion in writing as required by the provisions of Section 24 of the Act and since the tribunal gave reasons for its decision contrary to the opinion, I find that the argument hence lacks merits and is hereby dismissed. 9 Mr. Zake also raised the issue of jurisdiction of the tribunal of the tribunal arguing that at the time of purchase of the suit property, the value of the subject matter was Tshs. 1,500,000/- and the alleged Tshs 25 million at the time of filing the application was not proved. With due respect to the learned Counsel, first of all, one will not expect that a house purchased in the year 2001 at Tandika would still be worth than Tshs. 3 million ten years later. Land appreciates in value and it will be unfair to argue that the value of the land remained at Tshs. 1.5 million ten years later. That and a further fact that the issue of the value of the subject matter was not raised during trial notwithstanding, even if we were for the sake of argument, to consider that the value of the suit property didn't exceed Tshs. 3 million, it cannot be said that there was a lack of jurisdiction on the part of the tribunal. Indeed the Section 13 of the CPC requires suits to be filed at the courts of lowest jurisdiction, however, failure to do so and the matter having' proceeded up to the judgment stage will not render the proceedings or judgment a nullity for want of jurisdiction. When it comes to pecuniary jurisdiction, acting on a matter which the subject matter value is below your pecuniary jurisdiction should be differentiated with want of or lack of jurisdiction where in the latter case, it renders the proceedings a nullity, but in the former case, it doesn't render the proceedings a nullity. Furthermore, as correctly argued by Mr. Tarimo, the estimate value was given at the time of filing the application. Considering the fact that the same was neither disputed nor contradicted, it cannot be used as a ground for nullification of proceedings at this stage. 10 On those findings, I see no reasons to interfere with the decision of the tribunal. The appeal before me lacks merits and is hereby dismissed with costs. Dated at Dar es Salaam this 19th day of September, 2019. JUDGE. 11