JONAS ISAKARI KISHIMBO VS JOHN PAUL LEYARO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

ARUSHA SUB REGISTRY

AT ARUSHA LAND APPEAL NO. 43 OF 2023 (C/F Land Application No. 119 of 2016 in the District Land and Housing Tribunal for Arusha at Arusha) JONAS ISAKARI KISHIMBO....................... ........................I st APPELLANT DAVID J KISHIMBO..... .............. ....................................2nd APPELLANT

VERSUS JOHN PAUL LEYARO........................................................... RESPONDENT

JUDGMENT 11/11/2024 & 29/11/2024 NDUMBARO, J Dissatisfied with the decision of the District Land and Housing Tribunal, the appellant has filed this appeal. The story behind this matter is, on 12/05/2009 the 1st appellant and respondent entered into a loan agreement of Tshs 7,200,000 and the loan was secured with the title deed to wit Plot No. 620 titled 25807 and Plot No. 621 titled 2580 block DD Sombetini area Arusha respectively. It was the agreement by parties that, the said loan was to be paid before 11/06/2009, it was further agreed that in the case debtor (1st plaintiff herein) failed to pay the loan on the agreed time, the title deed would be transferred to the creditor (respondent herein) and the forms for i effecting transfer were filled to that effect and kept under the custody of lawyer. The tragedy on the matter arose when the appellant failed to pay the loan on the agreed date of 11/06/2009, the payment was made on 17/10/2009. Due to the failure, the respondent transferred the titles to himself on 06/11/2024, it was two years later. However it was the testimony of the 1st appellant that, to have paid the entire 7,200,000, the transfer was made by deceitful means, the applicants requested the respondent several times to return the title, and despite several promises, it was not returned. He filed the matter before DLHT Arusha on which it was decided in the respondent's favour hence this appeal on the following grounds.

1. That, the trial tribunal erred in law and in fact in blessing the transfer of Title Number 25807 Plot Number 620, Block "DD" Sombetini area within Arusha Municipality belongs to the 2nd appellant, not the respondent. The 2nd appellant has not consented to the said mortgage and or transfer and has not signed any of the transfer documents as required by the law.

2. That, the trial Tribunal erred in law and in fact held that the loan, the 1st appellant had with the respondent, was not repaid while as per evidence on records, the same was repaid in full to the respondent Prior to the said transfer of Title Number 25807, Plot Number 629, Block "DD" and Title Number 25806, Plot Number 621, Block 621, Block " DD" both located at Sombetini area within Arusha Municipality.

3. That, the trial tribunal erred in law and in fact in blessing the transfer of Title Number 25807, Plot Number 620, Block "DD" from the 1st Appellant to the respondent while the 1st Appellant was with no title to transfer to the Respondent.

4. That, the trial tribunal erred in law and in fact in evaluating exhibits PI and P2 and hence arrived at an erroneous decision.

5. That, the trial tribunal erred in law and in fact in evaluating the evidence adduced during the trial and hence arrived at an erroneous decision.

6. That, the trial tribunal failed in law and fact by failure to endorse the evidence as required by the law, Order XIII, Rule 4 of the Civil Procedure Code [CAP 33 R. E 2019], hence causing a miscarriage of justice to Appellants herein.

7. That, the trial tribunal did not at all consider the strong evidence adduced by the Appellants, which was heavier than that of the Respondent.

8. That, the proceedings of the trial tribunal are problematic and against the law which needs the attention of this court as it led to illegal and unjustified. When the matter was called for hearing, the appellant was represented by advocate Gwakisa Sambo, the respondent, on the other hand, enjoyed the legal services of advocate Mitego Methusela. The parties made a prayer to dispose of the matter by way of a written submission, the prayer was granted. However, the appellant's counsel while submitting in support of this appeal, abandoned grounds number 8, combined grounds 5 and 7 and the rest of grounds 1, 2, 3, 5, and 6 treated separately. Submitting in support of 1st ground, the counsel argued that, the transfer of title was invalid as the 2nd appellant did neither mortgage, sign the consent form nor consented to the transfer of certificate of title No. 25806 plot No. 261 Block DD Sombetin Area Arusha. The 1st appellant cannot pass a good title to the respondent. In support of the argument cited a case of Enock Kalibwani Vs Ayoub Ramadhan and 3 others Civil Appeal No. 85 of 2020 CAT DSM unreported. As to the 2nd ground of appeal, Mr Gwakisa submitted that the mortgaged money Tshs 7,200,000 was repaid back to the respondent referred to the testimony of PW2 Jonas Isakari Kishimbo and PW3 Jacline Jonas Kishimbo together with exhibit PI and P2 (pay slip). That the appellant's

wife who is deceased paid the money. On 3rd ground, the appellants retaliated submission on the first ground that, the 1st appellant had no good title to pass to the respondent, he was not the owner of CT No. 25807 and had no power to mortgage or transfer the title. Supported the argument with the case of Farah Mohamed Vs Fatuma Abdallah (1992) TLR 205 CAT, held that he who does not have legal title to the land cannot pass good title over the same land to another. On the 4th ground argued that exhibits PI, P2, DI and D5 were not scrutinized by the trial tribunal, if scrutinized tribunal may arrive at the decision that the 2nd appellant did not consent to the transfer. On the 5th and 7th grounds, argued, the loan was paid referring to exhibits PI and P2. The transfer was made with ill motive, as payment was made on 17/10/2009 and the transfer was made on 06/11/2011 two years after, argued the trial tribunal failed to consider such strong evidence. In support of the argument cited in the case of Hemed Said Vs Mohmed Mbilu (1984), TLR 113 that, the one adduced strong evidence is the winner. It is also contention by appellants on the 6th ground that, the exhibits were not endorsed contrary to Order XIII Rule 4 of CPC Cp 33 RE 2019, the omission vitiates all proceedings, supporting the argument with a case of AAR Insurance (T) LTD Vs Batus Kisusi CAT 2016 1 TLR and Ally Omary Abdi

Vs Amina Khalil Ally Hilid (2016) 1 TRL page 43. The appellant made a prayer that the entire proceeding be quashed and set aside and matter start afresh before another chairman. Responding to the appellant's submission, Mr Mitego submitted on 1st ground that, two titles were used to secure a loan agreement, and the agreement was very clear to the effect that, Plot No. 620 titled 25807 and Plot No. 621 titled 2580 block DD Sombetini is owned by 1st appellant herein and was used as security to secure the loan. Argued if the 2nd appellant claimed to have not signed or transferred the title, he could sue the 1st appellant. On 2nd ground, it was the position of the tribunal that the 1st appellant defaulted on paying the loan as agreed, the payment was to be made on 11/06/2009, and it was not paid till today. The fact that the loan payment schedule was rescheduled is not true, further, the written agreement cannot be varied by oral agreement. The appellant testified orally that there was an extension of time between the parties on which the respondent denied the existence of such agreement and no document to prove the existence of rescheduling. In support of the argument cited a case of Lulu Victor Kayombo vs. Oceanic Bay LTD and Machinga Bay LTD Consolidated Appeal No. 22 and 155 of 2020. That, Where there is a written contract any subsequent ora! agreement is not part o f the

contract especially when there is no violation o f the terms. Mr Mitego argued that parties are bound to the terms of the contract, as the sanctity of the contract enunciated in a number of cases including Unilever Tanzania LTD Vs Benedict Mkasa Trading as BEMA Enterprises Civil Appeal No. 40 of 2009 unreported. Mr Mitego argued further that, the fact that Exhibit P2 shows Awaichi Abuneri Kisanga deposited 7,200,000, as per exhibits P2, D1 and D5, but Exhibit P2 does not show whether the amount deposited is for a clearing loan or other payment considering that the said Awaichi was the wife of 1st appellant and also a business co-owner with the respondent, further the said amount was deposited on 17/10/2009, if it was for repaying the loan it was contrary to the agreement schedule as he was supposed to pay on 11/06/2009. On the 3rd ground, the agreement was voluntarily signed by the parties and Awaichi Abuneri Kisanga (the 1st appellant's wife) witnessed. The 2nd respondent is the biological son of the 1st defendant whose mother was Awichi Abuneri Kisanga. Argued the 1st appellant declared to have the capacity to mortgage the title deed, he can not raise excuses now. The cited case of Farah Mohamed Vs Fatuma supra is distinguishable. The appellant showed capacity to a mortgage on the two titles and the wife witnessed. He cannot deny that plot No. 621 block DD is not his

property. The appellants seeking equity must come with a clear hand. On the 4th ground, retaliated his submission on the 2nd ground and added that the trial tribunal evaluated the evidence of exhibits PI, P2, D1 and D2 referring to pages 10 and 11 of the trial tribunal judgment. On grounds 5 and 7 the appellant failed to prove that the transfer of two titles was illegal. The party who alleges must prove as per section 110 of TEA Cap 6 RE 2002, argued exhibit PI is very clear how the transfer was made referring to paragraph E (i)(ii)(iii) to the effect that when should the money be repaid, two titles were used as mortgage to secure the and in the case failed to repay the loan the title will be transferred to respondent. On ground 6 argued that the exhibits tendered were properly received and endorsed by the chairman, further it the position of law that no decision of the tribunal may be varied on the ground of error or omission or irregularity or improper admission or rejection of evidence before or during the hearing unless such omission occasioned a failure of justice. Such decision as it was stated in the case AAR Insurance (T) LTD Vs Batus Kisusi CAT 2016 1 TLR and Ally Omary Abdi Vs Amina Khalil Ally Hilid (2016), argued the appellant did not show how the omission occasioned failure of justice. In rejoinder, Mr Gwakisa retaliated his submission in chief and insisted that

the 2nd appellant did neither sign nor consented to the transfer of title, the 2nd appellant was schooling at Iringa at the time the title was placed the title under the custody of the 1st appellant, and he was not a party to the agreement. Arguing two plots were owned by the 1st appellant is not true the title deed number 25806 plot 621 Block DD Sombetin is owned by 2nd, the 1st appellant denied to mortgage the property. The argument that the respondent was having another business with the appellant's wife is an afterthought. The illegal transfer was made while the loan was paid. There was no business between the respondent and the appellant's wife to pay him the same claimed amount of Tsh 7,200,000 and the contract cannot bind someone who did not sign. The counsel prayed the appeal be allowed. Having considered the submission of the parties, case laws, the provisions of the law and the record of this appeal, it is now time for the court to determine if the appeal has merit. I wish to combine grounds 1,3 and 4; grounds 2, 5 and 7 and grounds 6 since they have similar issues. On the 1,3 and 4th grounds that the transfer of two titles was not authorized and consented by the 2nd appellant and the 1st appellant did not have the capacity to mortgage the property. It is clear from the trial court records that the parties did not dispute the existence of the loan agreement. The said

loan was tendered by appellants before the trial court and admitted as exhibit PI. I wish to extract what was inspired from the said contract, particularly articles C, D and E. Hati ya Makubaliano ya Mkopo. A. Tarehe na mahali.............. B. Wahusika.............. 10 C. Ndugu John Paulo Lelayo amekubali kumkopesha ndugu Jonas Isakari Kishimbo wa Arusha Kiasi cha Shilingi (Tshs 7,200,000) mkopo ambao hauna riba D. Hati mbi/iza nyumba zenye title No. 25807land office No, 311509 Plot No. 620 Block DD Sombetini Arusha na title No. 25806plot No. 621 block DD Somberini Arusha mkopeshwaii amemthibitishia mkooeshaii kuwa viwania hiwo viwili ni maii vake binafsi haviiauzwa au kuwekwa rehanikwa mtu vevote. E. (i) Pesa zitarudishwa tarehe 11.6.2009 (ii) Mkopeshwaji atasaini transfer ya hati ya viwanja viwili zitabaki mikononi mwa wakiH aliyeandaa mkataba huu, Hi mkopeshwaji akishindwa kurudisha mkopo katika tarehe iliyotajwa mkopeshaji aweze kusajiri (transfer) ma/i hiyo katika jina lake. Article "C" shows the loan agreement was Tshs 7,200.000 and it was between John Paul Leyaro and Jonas Isakari Kishimbo. Article "D" is to the effect that the debtor (1st appellant herein) makes a representation that all title deeds Plot No. 620 and 621 Block DD Sombetini Arusha belong to him. Section 123 of Evidence Act Cap 6 RE 2019, is to the effect that, a person is estopped from denying the fact

that makes another person believe that it is true as; - ii "When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed, in any suit or proceedings between himself and that person or his representative, to deny the truth o f that thing". The position above receives support in the case of Trade Union Congress of Tanzania (TUKTA) v. Engineering Systems Consultants Ltd and Others, Civil Appeal No. 51 of 2016 [2020] TZCA 251, whereby the Court adopted the decision in the case of Nairobi County Government v. Kenya Power and Lightning Company Limited [2018] KLR that:- "... in the circumstances o f this case, the doctrine o f estoppel applies against the petitioner. The petitioner is estopped by the said doctrine from turning around and reneging on what it had agreed and committed itself to and even performed its part o f the agreement The respondent in reliance to the agreement and committed not only agreed to the arrangement but acted in reliance o f the same" 12 Referring to the agreement made between the appellant and 1st respondent herein, particularly article D it is clear to the effect that, I quote for clarity; D"Hati mbi/i za nyumba zenye title No. 25807land office No, 311509 Plot No. 620 Block DD Sombetini Arusha na

title No. 25806plot No. 621 block DD Somberini Arusha mkopeshwaji amemthibitishia mkopeshaji kuwa viwanja hivyo viwili ni mali yake binafsi havijauzwa au kuwekwa rehani kwa mtu yeyote." The 1st respondent intentionally made the declaration to the effect that the two title deeds belonged to him and had never been sold or mortgaged and made the respondent believe that the title belonged to him, and the respondent acted by lending him money. That is, a declaration made by the appellant herein made the respondent believe the title belonged to him, therefore the 1st plaintiff is estopped from denying the fact by adducing contradictory testimony on what he previously stated in the agreement entered on 12/05/2009, on which the respondent relied upon and executed. Section 37 (1) of the Law of Contract Act, Cap 345 RE 2019 lays down the principles of the sanctity of contract: "37. (1) The parties to a contract mustperform their respective promises unless such performance is dispensed with or excused under the provisions o f this Act or o f any other law. The provision is clarified in the case of Unilever Tanzania LTD Vs Benedict Mkasa Trading as Bema Enterprises Civil Appeal No.41 of 2009, CAT, that once part has freely consented to the contractual clause it would not be open for the court to change those clauses which part have agreed with each other. That is to say, parties are bound

to the terms freely agreed. Connecting to the case at hand parties agreed that, the loan would be repaid after one month, if 1st appellant failed to pay the title would be transferred to the respondent, I find it as it is worthy to extract the terms in article "E" herein; - E. (i) Pesa zitarudishwa tarehe 11.6.2009 (ii) mkopeshwaji atasain tranfer ya hati ya viwanja viwili zitabaki mikononi mwa wakiii aiiyeandaa mkataba huu, Hi mkopeshwaji akishindwa kurudisha mkopo katika tarehe i/iyotajwa mkopeshaji aweze kusajiri (transfer) maii hiyo katika jina lake. 14 Parties are bound to the doctrine of sanctity of contract that, once the agreement is entered the parties must adhere to the terms, unless it is agreed otherwise by parties. Connecting to the case at hand parties agreed that the loan shall be repaid within one month, in case of the ferrule to repay the property will be transferred to the lender. I have further revisited the trial court records, it was the testimony of PW1 (2nd appellant) in cross-examination on page 9, 4th line from the top that, at the time the transfer was made in 2009 he was still schooling and the said plot was given to him by his father. On the last two lines from the bottom of the same page, PW1 testified, the title deed was under his father's custody. It was a testimony of the father PW1 (1st appellant) on the same page that, to have used the said

title as a mortgage to secure the loan, the loan agreement was witnessed by his late wife. From the extracted evidence it is clear that initially the land was owned by the father and it was registered in the name of a son when he was still studying. That is, the father had full control of the title deed, and the title was not taken from 1st appellant without his knowledge. Considering the circumstances of this case, the 1st appellant cannot claim to have no capacity and the 2nd appellant ought to sue the 1st appellant claiming the title. There is no dispute that the 2nd appellant did not sign the agreement and make a transfer but it was signed by the 1st appellant. It is clear that 1st and 2nd appellants are father and son, and initially the land was owned by the father and it was given to the son when he was still studying. It was the testimony of the father (1st appellant) on pages 19 and 22 of trial court proceedings, that, he secured the loan with two title deeds to wit Plot No. 620 CT No. 25807 Block DD Mbauda and CT No. 25806 Plot No. 621 Block DD Mbauda, considering the relationship of father and young son who was still studying and wholly depends on his father at the time of entering the said agreement and considering representation made to the respondent to own two title deed and considering that the father and respondent agreed that in case of failure to pay on time,

the title would be transferred to the respondent, representation made by father speak louder and cannot be to the detriment of the respondent. The title was under the custody of the 1st appellant and the 1st appellant was used as security, there is no dispute that the 1st appellant failed to pay the loan on time which led to the respondent executing the terms. If the 2nd appellant had any claim he could sue his father (1st appellant) who intentionally represented himself as lawful owner of two title deeds. It is my view that the 2nd respondent is denied to claim for capacity and absence of consent for transferring the title, the 1st respondent, knowingly consented to secure the loan with the said two title deeds therefore is barred from seeking justice while his hands are not clean, that who seekjustice must come with a dean hand. Grounds 2,5 and 7 as to whether the money was paid. It was the testimony of the appellants that the money was paid to the respondent on 17/10/2009, however, the transfer of title was made malafide on 06/11/2011, and it was the testimony of respondent DW1 on page 42 of the proceedings that, he was having a business relationship with 1st appellant wife claiming that the amount paid thereafter do not relate on repaying the loan. I had time to go through the court records, particularly on page 37 of trial tribunal proceedings connecting to exhibit D3

{titledKikao cha maiaiamiko ya Ndugu David Jonas Kishimbo dhidi ya John P. Le/ayo kiiichofanyika tarehe 27/02/2024) admitted before the court without being objected, the exhibit shows the matter was before the ward tribunal on 27/02/2013, it was the testimony of the 1st appellant in the said tribunal meeting that, he took a loan of Tshs 5,000, OOOfrom respondent the said loan attached with the interest of Tshs 2,200,000, 17 the loan was secured with two titles, and it was the testimony of 1st respondent that, the loan was Tshs 7,200,000 and it was with no interest, it was agreed that to be paid after one month, but it was not repaid till that time, I wish to reproduce the paragraph for clarity:- '"Mimi nakumbuka ndugu Jonas Kishimbo na marehemu Mke wake walifika kwangu na kuniomba niwakopeshe fedha kiasi cha Tshs 7,200,000 na siyo 5,000,000 kama alivyoeleza ndio maana amesaini mkataba wa Tshs 7,200,000/= na siyo 5,000,000 hivyo ndivyo ninavyofahamu mimi, na fedha hizo hadi leo hazijarucfishwa " From the above extract of a piece of testimony from a respondent in a ward tribunal meeting made on 27/02/2013 and minutes signed on 15/03/2013, it is clear that till that time the money was not paid. It was the testimony of the 1st appellant before the trial court that he repaid the loan on 17/10/2009, and the title was transferred by the respondent in 2011, two years after payment of

the said loan agreement. The facts are clear to the effect that, the case before the ward tribunal was in 2013, whereby the 1st appellant testified to have not paid the loan, the said testimony was made before the ward tribunal in 2013, but when the matter was before DLHT in 2015 the 1st appellant 18 claiming to pay the loan to the respondent on 17/10/2009. If the loan was repaid on 17/10/2009, how come it was not testified before the ward tribunal in 2013 that the money was paid, the contradiction cannot be overstated, and it is to the detriment of the appellants herein that probably the money was not paid. On 6th ground, the exhibit tendered was not properly received and endorsed. Going through trial court proceedings page 34 exhibit D1 (title deed) was received and read on pages 34 and 35; exhibit D2 (financial accounts) was admitted on pages 35 and 36 but it was not read before the court; exhibit DW3 (ward tribunal meeting minutes) was admitted in page 36 and was read; Exhibit D4 (case filed against respondent before the high court Arusha) was admitted and read before the court on page 37; and exhibit D5 (other loans between respondent and appellant) was admitted and read before the court on pages 37 and 38 of the trial tribunal proceedings. With the exception of exhibit D2 (financial accounts) which was admitted but was not read before the court the rest of the exhibits

were admitted and read before the court. Since exhibit D2 was not read it denied the party from cross-examining. However, despite the fact the appellant did not show how he was 19 prejudiced on such irregularities. I therefore find this ground to have no merit. The fact that the 1st appellant knowingly represents himself as the owner of the title deed and later on claims the title, not his, and since the respondent acted in good faith, the 1st appellant is estopped from denying the fact and is responsible for his action toward his son's title The 2nd appellant can choose to sue the 1st appellant on the claim of his title. Based on the above findings it's my view that the appeal has no merit. I, therefore, dismiss the appeal with cost. It iS'SO prdered. o '- 11 \ D. D. MDUMBARO

JUDGE 29/11/2024 20