JUDGMENT John Bosco Kilowoko vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY AT SONGEA LAND APPEAL NO. 19494 OF 2024 (Originating from the District Land and Housing Tribunal for Songea at Songea in Application No. 15 of 2024) JOHN BOSCO KILOWOKO ……………….……..….……….…..……… APPELLANT VERSUS STELLA MORIS MHAGAMA ..……..…..………………...…………… RESPONDENT JUDGMENT 06th & 25th November, 2024. KAWISHE, J.: This appeal originates from the decision of the District Land and Housing Tribunal for Songea at Songea (trial Tribunal) in Application No. 15 of 2024. The appellant filed this appeal challenging the decision of the trial Tribunal on the following grounds: 1. That the District Tribunal erred in law and in fact in delivering a contradictory judgment by, on one hand holding that the respondent was not the lawful owned (sic) of the suit land and on the other holding that the respondent was not a trespasser whereas the two positions are incompatible. 1 2. That the District Tribunal erred in law and in fact in failing to properly evaluate the evidence before it as had it done so it would have found that contention by respondent that she failed to pay the last installment of Tsh.750,000 to the Appellant as the appellant cited a different number of plot (i.e.no.1131) was a flimsy excuse and an afterthought unsupported by the evidence before it. 3. That the District Court misdirected itself in law and in fact in not framing and determining the one and only issue in the matter before it, which is, when did property in the goods pass from the seller to the buyer in terms of the provisions of section 20 of the Sale of Goods Act. The brief facts of the appeal are as follows: Before the trial Tribunal, the respondent successfully sued the appellant for the declaration that she is the lawful owner of Plot No. 1852, Block QQ (the disputed land) located at Mjimwema area within Songea Municipal Council, which she bought from the appellant. On his part, the appellant disputed the respondent's claim. He contended that, the respondent never bought the disputed land though she wanted to buy half of the disputed land but she failed to pay part of the agreed amount. To prove her case, at the hearing before the trial Tribunal, the respondent testified as SM1 and called two other witnesses, SM2 and SM3. She also tendered the certificate from the Ward Tribunal and the purchase contract, Land Form No. 19 in respect to Plot No. 2350, Block QQ as exhibits. In her testimony, the respondent told the trial Tribunal that on 15th May, 2021, she bought a piece of land from the appellant. 2 Again, in August, 2021, the appellant told her that he was selling the remaining part of the land in the same area. The appellant told her that he was selling the land for the reason that he has a debt with a bank at Namtumbo. They agreed that the land would have been sold at TZS. 5,500,000.00. The respondent paid TZS. 2,000,000.00 and the remaining amount was to be paid in two instalments. The first installment was to be paid on 30/10/2021 and the second instalment was to be paid on 30/12/2021. The first installment was paid as agreed. Before making the payment for the second installment, she went to the Land Office to verify on the ownership of the land and found the plot number sold to her was owned by another person. As a result, she hesitated in paying the last instalment as agreed. She testified that, she did not pay the agreed amount for the reason that she discovered that the appellant intended to cheat her and obtain the money fraudulently. Thereafter, she referred the dispute before the Ward Tribunal for mediation which proved failure and filed an application before the trial Tribunal. When cross examined by the respondent, she replied that, she was claiming for the land she bought for the second time which its number was wrongly mentioned by the appellant when preparing the 3 sale agreement. She testified further that, the remaining balance was TZS. 750,000.00. Seleman Ally Lapagani (SM2) & Lucy George Challe (SM3) told the trial Tribunal that they witnessed the sale agreement between the respondent and the appellant on 15th May, 2021. SM3 added that, after witnessing the sale agreement on 15th May, 2024, then he was called by the parties to witness the sale of the second piece of land which has a house on it. That the appellant told them that he wanted to sell the second piece of land in order to clear a loan he had with a bank. On his part, the appellant, disputed the respondent’s claim, relied on his own testimony. He never called other witnesses to testify. The crux of his evidence is that, in 2019, the respondent bought from him a piece of land in Plot No. 1131, Block QQ located at Mjimwema area. That the plot is measuring one acre and they agreed that the respondent will take only half an acre after he had been adviced by the Land Officer that it is possible to split Plot No. 1131 which was measuring one acre into two plots. He added that, he was also told by the Land Officer that the plot number changed into Plot No. 1852. Thus, the appellant remained with half an acre which has a house on it and the respondent was given the remaining half an acre. 4 Thereafter, he faced some economic hardships and approached the respondent requesting her to purchase the remaining plot. They agreed that the respondent would purchase the said plot together with a house on it for TZS. 5,500,000.00. That, they agreed further that, the respondent was to pay TZS. 2,000,000.00 and the remaining amount be paid after three weeks. On 16th August, 2021 they met for the payment of the remaining amount of money and the respondent paid only TZS. 2,000,000.00 and the remaining amount of TZS. 1,500,000.00 was agreed that the respondent would pay in two equal instalments. That the first instalment was paid but the second was not honored. Then the respondent was in breach of the contract and the dispute was unsuccessful referred before the Ward Tribunal, then the respondent filed an application before the trial Tribunal. The appellant also tendered the sale agreement in respect to Plot No. 1852, Block QQ located at Mjimwema area within Songea Municipal, a letter requesting Songea Municipal Council to be locate Plot No. 1852, Block QQ and Land Form No. 19 which were collectively admitted as exhibit JT1. It was from the above testimonies that the trial Tribunal found the respondent failed to prove her claim on ownership of the disputed land and ordered the appellant to receive the last instalment of TZS. 5 750,000.00 for the ownership of the disputed land to change from the appellant to the respondent. Dissatisfied with that decision, the appellant preferred an appeal before this court basing on the aforementioned grounds of appeal. In this appeal, the appellant was represented by Mr. Edson Mbogoro, learned advocate whereas, the respondent had the legal service of Ms. Naomi John Ngoga, learned advocate. Upon agreement by the parties, the appeal was disposed of by way of written submissions filed by both parties pursuant to the order of this court. Arguing on the first ground of appeal, the appellant’s learned advocate submitted that, what was delivered by the trial Tribunal was not a judgment but something else. He submitted that, for a decision to be a judgment it must either give a right or take it away. There is no midway on it. He added that, the delivered judgment does not qualify to be a judgment in terms of Order XX, Rule 4 of the Civil Procedure Code (Cap. 33, R.E 2019) but a form of reconciliation. Mr. Mbogoro contended further that, the trial Tribunal erred both in law and in fact in holding that the respondent was not the lawful owner of the disputed land and at the same time holding that she was not the trespasser. He amplified that, looking even at the trial Tribunal’s decree, it is not executable. He 6 averred that the decision delivered was not in accordance to the law to make it to be a judgment. On the second ground of appeal, Mr. Mbogoro submitted that, the trial Tribunal failed to evaluate properly the evidence given by the parties. He contended that, if it would have evaluated the evidence properly, it would have not reached into the decision it made. He added that the respondent’s testimony that she failed to pay the last instalment after discovering that the piece of land she purchased from the appellant was bearing the name of another person was not correct. He insisted that, from the first instalment, the parties agreed to sale and purchase the disputed land. That, there was no any dispute on whether the appellant is not the owner of the disputed land. He contended further that, search on the disputed land was done before the sale agreement and the respondent’s assertion that she went to make search before the payment of the last instalment was an afterthought and she put such defence after failure to pay the last instalment. Mr. Mbogoro added that, there was no proof that the disputed land was bearing the plot number which the respondent mentioned before the trial Tribunal. It was his view that, the documents tendered by the appellant clearly proves that the appellant was paying the rent in Plot No. 1131, Block QQ which was 7 sold to the respondent and not in the plot mentioned by the respondent. That, the plot number was changed by the Songea Municipal Land Office on 06th February, 2024 to be Plot No. 1852 and it is still bearing the name of the appellant. Submitting on the third ground of appeal, Mr. Mbogoro faulted the trial Tribunal in hitting on irrelevant matters while ignoring the correct approach to be taken in resolving the dispute before it. He argued that, in the circumstances of the present case, the provisions of section 19 (1) and (2) of the Sale of Goods Act (Cap. 214, R.E. 2002) was to be applied. That the law states that goods pass from the seller to the buyer after the payment of the last instalment as provided under section 19(2) of the Sale of Goods Act (supra). Finally, the appellant’s advocate prayed for this appeal to be allowed with costs. Replying to the submissions made by the appellant’s learned advocate in respect to the first ground of appeal, the respondent’s learned advocate contended that, the provision of Order XX, Rule 4 of the Civil Procedure Act (supra) is not applicable before the trial Tribunal in respect of the form of judgment. She argued that, with regard to judgment writing, the relevant provision which guides the trial Tribunal is rule 20 of the Land Disputes Courts (the District Land and Housing 8 Tribunal) GN. No. 174 of 2003 read together with GN. No. 03 of 2023. She faulted the appellant’s advocate submission and maintained that, the judgment of the trial Tribunal was correctly made and in accordance to the law. Responding to the second ground of appeal, Ms. Ngoga submitted that, the trial Tribunal properly evaluated the evidence given before it and reached into a proper decision. She contended that, the evidence given before the trial Tribunal proves that there was a contract for the sale of Plot No. 1852, Block QQ located at Mjimwema area within Songea Municipal Council. That the appellant received the sum of TZS. 4,500,000.00 but he refused to receive the remaining amount of TZS. 750,000.00 for the reason that he got loss. She contended that, the respondent’s evidence was found to be heavier than that of the appellant as a result, the trial Tribunal decided in favour of the respondent. Emphasizing on her submission, she referred this court to the decision in the case of Anthony M. Masanga vs. Penina (Mama Ngesi) & Another, Civil Appeal No. 118 of 2014, Hemed Said vs. Mohamed Mbilu [1984] TLR 113 and Evarist Maembe vs. Ozem Chapita & Kaengesa Environmental Conservation Society, Civil Appeal No. 201 of 2018. 9 With respect to the third ground of appeal, the respondent’s counsel faulted the appellant’s advocate stance that, the sale of land is governed by the Sale of Goods Act (supra). She argued that, section 2 of the Sale of Goods Act (supra) excludes the agreements for the sale of land. That land is not among the goods governed by the Act in relation to the sale agreements. She prayed for the appeal to be dismissed with costs for lack of merits. The appellant’s counsel had no rejoinder submission. Therefore, having carefully gone through the submissions made by the learned counsel for both parties, upon perusal of the grounds of appeal and scrutinized the original records, it is an ample time to deliberate on the merits or otherwise of the appeal. This court shall be guided by the main issue, whether this appeal has merits. In determining the appeal, I will start with the second ground of appeal in which the appellant is faulting he trial Tribunal for failure to evaluate properly the evidence tabled before it. It is the trite law that, the first appellate court can step into the shoes of the trial court (tribunal), evaluate the evidence and come up with its own findings. This principle was accentuated by the Court of Appeal in the case of 10 Herman Faida vs. The Republic, (Criminal Appeal No. 479 of 2019 [2021] TZCA 405 (TanzLII). The Court held that: “We wish to start by stating that, this being a first appeal it is in the form of a re-hearing, therefore the Court, has a duty to re- evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and, if warranted, to arrive at its own conclusion of fact.” See also the case of Paulina Samson Ndawavya vs. Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (TanzLII), D.R. Pandya vs. Republic [1957] EA 336 and Reuben Mhangwa and Another vs. Republic, Criminal Appeal No. 99 of 2007 (unreported). The gist of the matter is the respondent’s claim before the trial Tribunal to be declared the lawful owner of the disputed land. From the decision of the trial Tribunal, it is clear that, she failed to prove ownership over the disputed land. The trial Tribunal found the ownership over the disputed land was still under the appellant. The reason being that the appellant refused to receive the last instalment of the agreed purchase price. Also, in her testimony, the respondent told the trial Tribunal that she did not pay the last instalment of TZS. 750,000.00 for the reason that, before making the payment she made a search and found the land was registered in the name of another 11 person. On the other hand, it was the appellant’s claim that, it was the respondent who breached the contract for sale of the disputed piece of land for failure to honour the contractual agreement. That, the respondent failed to pay the last instalment of the purchase price on her defence that, the purchased plot of land was bearing the name of another person the fact which is not correct. Given the complaint by the appellant’s learned counsel, I had to peruse the evidence adduced before the trial Tribunal. The evidence and the trial Tribunal’s judgment show that the chairman evaluated the evidence, but with due respect misdirected himself in the judgment and the orders issued. From the available testimonies, it is evident that, the parties had a contractual agreement for the sale of the disputed piece of land. Similarly, it is clear that, the parties agreed that, the respondent would pay the purchase price in instalments but she failed to pay the last instalment. The respondent in her testimony put her defence that she failed to pay the last instalment for the reason that she discovered that the disputed plot was bearing a name of another person different from the appellant. The appellant in this appeal faults the trial Tribunal in entering the judgment in favour of the respondent who was in breach of the 12 contract. He also faulted the trial Tribunal for believing the respondent’s testimony that she discovered that the land was registered in the name of another person who was not called to testify or even mentioned in her testimony. He questioned on the credibility of the respondent’s testimony and assertion that the plot was registered in the name of another person while the signed documents and all receipts he used in paying the rent bear his name. It is a trite law and indeed elementary that he who alleges has the burden of proof as per section 110 of the Evidence Act (Cap. 6, R.E 2022). It is equally elementary that since the dispute was of civil nature, the standard of proving was on the balance of probabilities as provided under section 3 (2) (b) of the Evidence Act (supra). Proving on the balance of probabilities simply means that the court will sustain such evidence which is more credible than the other on a particular fact to be proved. See the decision of the Court of Appeal in Paulina Samson Ndawavya vs. Theresia Thomasi Madaha (supra). I fully subscribe to the above position of the law to be the correct legal position in the context of the matter at hand. In my view, and as the trial Tribunal so found, the respondent failed to prove her ownership in order to be declared the lawful owner of the disputed land. The trial 13 Tribunal found the ownership of the disputed land was still under the appellant for the reason that the respondent was not yet to pay the last instalment of TZS. 750,000.00. However, it proceeded to order for the respondent to pay the remaining purchase price to the appellant for the ownership of the disputed land to shift into the respondent. In my view, the appellant’s criticism on the finding of the trial Tribunal is justifiable. Since the land was not proved to be the property of the respondent and the only reason was on the respondent’s failure to pay the last installment of the purchase price, it is clear that, the respondent breached the contract of sale of the disputed plot. Her defence that she did not pay the last installment on the ground that she found the disputed piece of land was registered in the name of another person was not established. Thus, the trial Tribunal’s order that the respondent was to pay the remaining installment was not correct. The respondent herself told the trial Tribunal that, she failed to pay the last installment as agreed which means that, she was in breach of the contractual agreement. In its decision, the trial Tribunal’s stance was on the legal principle that courts have to enforce the contractual terms as it was substantiated in the case of Lulu Victor Kayombo vs. Oceanic Bay Limited & 14 Another, Civil Appeal No. 22 & 155 of 2020, Simon Kichele Chacha vs. Aveline M. Kilawe, Civil Appeal No. 160 of 2018 and Miriam E. Maro vs. Bank of Tanzania, Civil Appeal No. 22 of 2017 (both unreported). But, in the circumstances of the present appeal the claim was not for the enforcement of the contractual terms. The evidence clearly show that the respondent was in breach of the contract. The reason that the respondent failed to pay the last installment on a reason that the owner was not the appellant is not maintainable. In the event, I find the trial Tribunal’s order for the respondent to make the remaining payment for the purchase of the disputed piece of land was erroneously made and the second ground of appeal is found to have merits. Reverting back to the first ground of appeal that, the trial Tribunal judgment is contradictory and it was made contrary to the law, the appellant’s learned advocate argued that the decision was contrary to the provision of Order XX, Rule 4 of the Civil Procedure Code (supra). On the contrary, the respondent’s learned advocate submitted that, the trial Tribunal in writing judgment is not guided by the provisions of the Civil Procedure Code (supra) rather, rule 20 of the Land Disputes Courts (the District Land and Housing Tribunal) GN. No. 174 of 2003 read 15 together with GN. No. 03 of 2023. I fully agree with the respondent’s counsel on that respect. On the issue of contradiction of the judgment of the trial Tribunal, I will not spend much time discussing on it. I think this has been made clear while I was discussing the second ground of appeal herein above. It is my humble finding that, the trial Tribunal was wrong in ordering the respondent to make the last payments for the ownership of the disputed land to pass from the appellant to the respondent. It is not clear where the trial Tribunal based its order. In the applicant’s application, among the reliefs sought, there is none requesting the trial Tribunal to order the appellant to accept the payment of the last instalment. Hence, the appellant is justified to see it as a contradictory decision. Therefore, the first ground of appeal is allowed to the extent stated herein above. The third ground of appeal is on the applicability of the Sale of Goods Act (supra). The appellant’s advocate contended that, the trial Tribunal was to apply the provisions of section 19 (1) & (2) of the Sale of Goods Act (supra). The appellant’s advocate contention was attacked by the respondent’s counsel that, section 2 of the Sale of Goods Act (supra) excludes the applicability of the Act in the agreement involving the sale of land. The relevant part provides as follows: 16 "goods" includes all chattels personal other than things in action and money, emblements, industrial growing crops, and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale.” From the citation herein above, it is clear that; the sale of land is not among the goods governed by the Sale of Goods Act (supra). Therefore, the appellant’s complaint that the trial Tribunal was to use the provisions of the Sale of Goods Act (supra) is unfounded and the third ground of appeal lacks merit and it is dismissed. Therefore, from the foregoing discussion, this court is of the view that, although the agreement for the sale of the disputed piece of land for TZS. 5,500,000.00 stated that the money would be paid in instalments, it did not state the terms and conditions in case of default by either party to the agreement. It lacks sanctions on the breach of contract. However, it is still enforceable as it stated the deadline for the payment which should have been honoured by the respondent. It is not in dispute among the parties that the appellant received TZS. 4,50,000.00 from the respondent. That, the amount due is TZS. 750,000.00. The last instalment was due on 30th December, 2021 as per their agreement. It is undisputed that, the respondent did not honour the agreement until March, 2022 when she wanted to pay the last instalment but the appellant refused. The respondent claimed that, upon 17 legal search she realised that, the plot was registered in a name of another person that is why she did not pay the second instalment. She adduced no evidence to prove the same and show that the appellant intended to deceive her as she alleged. It is not unfolded as to why she did not even bother to call her brother Augustino Mapunda whom she claimed to have sent for the legal search to testify before the trial Tribunal. Instead, she called other two witnesses. None of them testified on the legal search. Although, the sale agreement was not concluded between the parties, the agreement on the payment is not disputed, and the respondent breached the agreement for not paying the last instalment. As a result, the intended contract was not signed to transfer ownership from the appellant to the respondent. It is a bit strange for her to insist the appellant to accept the last instalment at this stage while she condemned him to have sold her a piece of land registered in the name of another person. Now the question is, will it make any difference if the appellant accepts the money? Will the name of the other person be cancelled mysteriously? The answer is no. I am saying so because there is no effort made to rectify what the respondent claimed. It is a settled principle that, every right has a corresponding duty to be undertaken. The respondent was duty bound to pay the last instalment as agreed in order to realise her right to the transfer of the 18 ownership of the dispute land. To the contrary she did not fulfil her duty. Thus, the respondent’s prayer to be declared the lawful owner of the disputed land while she has not fulfilled her duty, in my view, she is trying to meander the law to favour her over the appellant. In simple words, she is the one who is deceiving the court as compared to her claim that the appellant deceived her. A fact which was not proved. From the discussion made herein above, I am convinced that, failure to honour the payment agreement as scheduled, and failure to adduce evidence to support her claim that the piece of land was discovered to have been registered in the name of another person, she failed to prove her allegations as per the provisions of section 110 of the Evidence Act (supra) and the principle propounded in the case of Paulina Samson Ndawavya vs. Theresia Thomasi Madaha (supra). Consequently, she cannot be declared to be the lawful owner of the disputed piece of land. The ownership of the disputed land never shifted from the appellant to the respondent. Its shift was subject to the payment of the last instalment and signing of the sale agreement between the parties as it was agreed. Given the fact that, the respondent paid the appellant TZS. 4,750,000.00 what is her fate? Taking into consideration that there is no dispute that the appellant was paid and received the money, and it is 19 settled that the ownership of the disputed land was not transferred to the respondent, her money cannot be forfeited. If so, she will be punished twice. That is losing her desired piece of land and the money. That will against the principles of equity. Hence, she is entitled to be refunded her money she paid to the appellant, since she did not state if she developed the disputed land. In the event, I find the appeal is partly allowed to the extent explained above. Subsequently, the judgment and the orders of the District Land and Housing Tribunal for Songea in Application No. 15 of 2024 are hereby quashed and set aside. This court orders that: (i) The appellant is the lawful owner of the disputed piece of land Plot No. 1852, Block QQ, located at Mjimwema Area within Songea Municipal Council. (ii) The respondent be refunded the money she paid to the appellant, TZS. 4,750,000.00 (iii) The respondent to give vacant possession of the disputed land, Plot No. 1852, Block QQ, located at Mjimwema Area within Songea Municipal Council. (iv) The respondent to bear the costs of this appeal. It is so ordered. 20 DATED and DELIVERED at SONGEA this 25th day of November, 2024. E. L. KAWISHE JUDGE COURT: Judgment delivered in the presence of Mr. Edson Mbogoro, learned counsel for the appellant and in the presence of the respondent, Ms. Stella Moris Mhagama in person. Right of appeal is explained. E. L. KAWISHE JUDGE 25/11/2024 21