20181025 TZHC Mwanza

IN THE HIGH COURT OF TANZAN'IA (DISTRICT REGISTRY) i AT MWANZA LAND CASE APPEAL NO. 42 OF 2~18 (Originating from the Decision of the District Land 6nd Housing Tribunal of Chato in Land Application No. 22 of 2016) ! I JOSEPHAT MSAFIRI ....................................................... APPIELLANT I VERSUS PAULO KATO ........................................................... RESPONDENT I JUDGMENT Last order: 16.10.2018 Judgment Date: 25.10.2018 A.Z.MGEYEKWA, J The appellant appealed to this court following their dissatisfaction I with the decision of the District Land and Housi~g Tribunal of Chato in Application No. 22 of 2016 which dismissed the application filed by I the appellant. 1 I Dissatisfied by the decision of District and Housing Tribunal, the I appellant knocked the gates of this court with the six grounds of I appeal. Before this court, the appellant appeared in person, unrepresented and the respondent also appeared in person, unrepresented. Arguing in support of his grounds of appeal the appellant i contended that the respondent has tendered before the court I exhibits which he claims is a contract but witnesses were listed, but I they did not sign the contract including the resppndents' wife did not sign the contract. He added that that means the resp·ondents forget the documents. The respondent opposed that his wife did not sign i the contract since she objected the sale of the plot in dispute. The appellant contended that even the witn~sses were implanted I because they did not sign the contract. The appellant contended ' further that the DLHT did not visit the disputed area thus the decision ! of the chairman based on the evidenc~ adduced by the respondent only. The appellant concluded his submission by stating that there is no contract to prove that the respondent bought the plot from the : appellant and that there is no any document which situates the three installments payment and that there were no any witnesses I 2 I among his neighbour, Village Councilor who 1witnessed the sale agreement. On her second ground of appeal, the appellant submitted that the I appellate tribunal erred in law by relying on the sale agreement I between the appellants' father and the resp0ndent despite the I documents bears forged signature of the alleg~d I seller, and there are two copies of the said agreements; one fixe<J with their passport size without official rubber stamp and the othe:r bears no passport • I size but stamped. In reply, the respondent submitted that he is the: lawful owner of the plot in dispute since he bought the plot from: the appellant. The I respondent argued that the contract be<tlrs the appellants I handwriting and he directed the sale to be under the supervision of I his wife one Sofia and his young brother one P~ter. In support of his I argumentation, the respondent argued that tt:'lere are two letters i which indicate the respondent bought the plot in two installments for I Tshs. 600,000 and Tshs.1,300,000 respectively. Me added that the I documents were tendered in the trial tribunal to :prove that payment was made. The respondent submitted further that he ha9 witnesses; the first witness was his wife who handled the money tb the appellant, the I , second witness was a middleman (dalali) who was working for the I I 3 appellant and the third witness was a Village Councillor who I stamped the letters furthermore the appellant a~cepted before the ' trial tribunal that he was the one who wrote the said letters. The respondent contended that the appellant diq not produce any document in court to prove his case. Therefore, the Chairman in reaching his decision relied on the documents and exhibits tendered in the tribunal. The respondent prays for this court to find the 1 respondent as the lawful owner of the suit land. ' I The respondent argued further that there was no need to visit the plot dispute is since the dispute was regarding who is the lawful owner of the plot in dispute. In rebuttal the respondent stated that I the wife of the appellant was mentioned in the: letter of agreement thus the appellant cannot state that his wife was not among the witnesses. In his brief rejoinder, the appellant insisted that the Village Councillor I stamped the documents but the Village Councillor was from the I nearby Village of Mkuyuni. Kata ya Chato while the plot in dispute I located at Katoa ya M uungano, Kitongaji cha Mwabasabi. The appellant conceded that he wrote a letter ,to introduce her wife and young brother to proceed with the transfer of the land at the time when he was away, but his wife refused to proceed with the 4 I agreement. Therefore, the agreement was abort~d, and he insisted that he was not paid even a single cent. I will combine number one, and three six of groudds of appeal which I relates to evidence adduced at the Ward Tribuf'i'lal. After perusal of I the Ward Land Tribunal record I have fo~nd the following I documents in the record; an exhibit a letter ,marked M 1 dated ' 11/01/2015 written by Josephat Msafiri introduoing his wife Sophia . I Juma the same was copied to Peter Daudi the :1etter bears the Kijiji I 11 cha Mkuyuni stamp. There is also an annexure written, Hati ya I mauziano ya eneo la shamba" which was ~ritten by Josephat Msafiri declaring that he and his family consente~ to sole the plot for I Tshs. 1,030,000/= and that the payment was made. However, the I letter was not stamped thus I am not sure if the :signatures were the genuine one. I In the record there is also a letter written by Halmashauri ya Kijiji cha I Mkuyuni dated 13/01/2015 regarding Mauziano I ya Shambo that Msafiri Daudi sold his shamba to Paulo Kato for Ths. 600,000/= full paid but the letter lacks the signatures of the witnesses, and it is not i stamped. I expected to see the letter written by;Halmashauri to bear I a stamp or witnesses signatures, but that was not the case. Thus, I am I doubtful whether the signatures were the genui~e one. The seller Mr. Joseph at Msafiri signed the letter dated 05/02/2015 and his witness 5 1 and the buyer and one witness • I am doubtftJI on whether the t I documents were genuine and if t~ey bear the same handwriting._ I The appellant claims that the documents wer'(3 incomplete and j I contradicting. It is indisputable that the I I appellant wrote Halamashaurli ya Kijiji wrote two l,etters. One lett~r bears the names I of five witnesses without their sign'atures, I concur with the appellant f I that the letter was incomplete I and contradi~tory. Therefore this ground of appeal is allowed. I I Having traversed the trial record, ,I am unable to ,find any merit in the I complaint that the trial tribunal slipped into error by considering the ' respondent evidence only. It is' evident on the record that the I I Chairman analysed both parities' side ancrl parties had an I opportunity to call witnesses ·who testified ;and the end the I respondents' evidence overweighed the appellant evidence. I I Consequently, I have found that the Chairman in composing his I judgment considered both parties submissions. However, the ' Chairman did not bother to analyse the doc;uments which were I attached otherwise he could find that the witnesses in the said agreements of payment did not sign the documents .. However, I furthermore, there was no any' evidence reg~rding authorization. I I Peter was not authorized to receive the payment on behalf of his ' ' brother Josephat. The letter introduced the appellants' wife, and it was copied to Peter that does not amount to aythorization. i I 6 I Legally, the only document which authorizes someon_e to act on his I behalf is the Power of Attorney contrary to 1th at it means the respondent did not pay the appellant who wa:s the owner of the said plots. I Therefore, I find the above grounds of appeal r1ave merits as I am i satisfied that the trial tribunal findings were wrongly decided. I I In regard to the second ground of appeal, the appellant contended I that the Chairman erred in law and fact for holding the respondent i • as a lawful occupier of the land in dispute withot.1t taking to account i that there was no consent from the appellants' spouse. I I Having analysed the evidence on record, I I find that evidence 1 clearly shows that the appellant witness Sop~ia Juma was listed among the witness but she did not sign the agreement I and the respondent did not pay her. Therefore the same; does not prove that the appellant was fully paid. I , It is imperative to stress that the relation between the appellant and I the respondent is regulated by the law of contr01ct in Tanzania which I has been codified in the Law of Contract Act, Cap 345 RE 2002. I Section 2(1} (b} of the Act defines a contraq:t as an agreement 7 enforceable by law, section 10 of the Law of Cont,ract Act Cap. [R.E 2002] which provides that:- " All agreements are contract if they are made by the free consent of the parties competent to contract for a lawfl!I consideration and ' with a lawful object and not hereby expressly declared to be void." The proviso of section 10 stated that the contraot' is required to be made in writing or in the presence of witnesses, or :any law relating to the registration of documents. Therefore in the present case that was I not the case, the appellant did not conclude; the contract with respondent and not among the witnesses signed the contract. I Concerning the fifth ground of appeal, the ap'pellant contended ' that the Chairman erred in law in entering the judgment without visiting the disputed plot. Having traversed the trial record, I am unable to find any merit in the complaint that the trial tribunal sllipped into erro,'r by ignoring to visit I the plot in dispute. It is evident on the record that none of the parties ' moved the trial tribunal to conduct such visitatioh. More importantly, ' there was no necessity of doing any visitation primarily because of ' the matter before the tribunal was concernin~ contract and not ' boundary dispute. However, also it should be noted that the as a matter of law and practice, visitation of the locus in quo is usually discouraged and that courts of law or tribu~als are enjoyed to 8 determine property disputes based upon the E¥Vidence that is ' tendered during the trial. The decision of the Cqurt of Appeal of I Tanzania in Nizar M. H. Ladak v Gulamali Fatal· Janmohamed I I (1980}TLR 29 is instructive here. In that case, it was h~ld that: I I I " It is only in exceptional circumstances tHat a court should I inspect a locus in quo as by doing so a court:'may unconsciously I take the role of a witness rather than an adjudicator." I I In his submission, the appellant submitted that the Village Councillor • I ' stamped the documents but the Village Counoillor was from the ' I nearby Village of Mkuyuni Kata ya Chato while the plot in dispute is I located at Kata ya Muungano, Kitongaji cha Mwabasabi. This is a ' I new issue which was not raised at the trial tribunal. The appellate I ' court is not in a position to entertain a new iS$Ue which was not I I raised at the trial tribunal/court. Therefore th,e same is hereby disregarded. Subsequently, I am satisfied that in instant case there was no legal 1 ' contract between the parties even if the witness/3s have testified but ' I the documents attached thereto do not support the agreement I and the payment of the money. Therefore I wou:ld accordingly allow I the appeal with costs. Order accordingly. 9 Dated at M7~~1~:n :his 1 h l 25 day October 2;18 I . · .• ..· ·.. >:/\ A.Z.MclYEKWA , t~f:!f;~),) 2i.~~~i18 ! Deliver.~di;il);~Ct,6,ipl:5er in the P,resence of: the· applicant date 25.10.201 if·· ·~ A.Z.MG YEKW A , JUDGE 2s.Hll.201s 10 y