mrita safiiii

IN THE HIGH COURT OF THE UNITED REPUBLIC OFTANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL 24795 OF 2024 (Appeal from the decision of the Kinondoni District Land and Housing Tribunal Land Application No. 590 of 2018) BETWEEN KAJIA JOHN MRITA as an administrator of the estate of the late KITEMBE JOHN MRITA................... ....APPELLANT VERSUS FAUSTINE JACOB RESPONDENT JUDGMENT 10/02/2024 & 13/03/2025 N.E. MAN DI A, J The appellant, Kajia John Mrita, as an administrator of the estate of Kitembe John Mrita, being aggrieved by the decision of the District Land and Housing Tribunal for Kinondoni at Mwananyamala in Land Application No. 590 of 2018 dated the 19.08.2024 appealed to this court on the following grounds: - 1. That, the District Land and Housing Tribunal erred in law by considering the contract between respondent and the vendor which was non-existing hence, unenforceable in law 2. That, the District Land and Housing Tribunal erred in law by entertaining a dispute which was in its own out of time (time barred) 3. That, the District Land and Housing Tribunal erred in law and fact by entertaining and allowing the evidence that did not meet and stand required in civil cases. 1 4. That, the District Land and Housing Tribunal erred in law and fact in consider and accord weight extraneous factors than was pleaded by the parties 5. That, the District Land and Housing Tribunal erred in law and fact by failing to consider that the disputed land was once in Kunduchi - Mtongani in relation to Exhibit D3; hence misdirected herself by not taking into account the geographical changes in demarcation/iocation which happened after the execution of Exhibit D3 6. That, the District Land and Housing Tribunal erred in law and fact by entering judgment in favour of the respondent without considering respondent's insufficiently described the disputed land 7. That, the District Land and Housing Tribunal erred in law and fact by entering judgment in favour of the respondent without considering that respondent had no cause of action against the appellant The brief factual background of this appeal as obtained from the record is that the respondent filed an application in the tribunal claiming for trespass of his land located in Kinzudi, Goba ward, Ubungo Municipal by the appellant. The respondent claimed that he purchased th suit land on 05.08.1988 from one MARIAM SAID for TZS. 50,000 and developed it by building a house in which his aunt lives. That he stayed in the suit land uninterruptedly until 2018 when it was trespassed by the appellant. The respondent reported the alleged trespass to Mbezi Police station. That the documents for the ownership of appellant revealed that his area in located in Kunduchi - Mtongani and he once filed an application in the tribunal but later he withdrew it. The tribunal made a finding that the suit land belonged to the respondent hence, this appeal. [P 2 The appeal was first called for hearing on 25.11.2024. The appellant appeared in person and prayed for another hearing date as his advocate Roman S. Lamwai was appearing in Criminal Session No. 12 of 2023 before Hon. Malata, J. The respondent who was represented by advocate Maiko Olotu, conceded to the prayer and the appeal was fixed for hearing on 10.02.2025. When the matter was called on the set date, advocate Isiaka Juma held brief for advocate Roman S. Lamwai and prayed for adjournment because advocate Lamwai was appearing before Hon. Maghimbi, J in Criminal Session No. 9132 of 2024. Mr. Juma also submitted that advocate Lamwai will be available after 17.03.2025. The respondent appeared in person and also submitted that his advocate is sick hence, he prayed for another hearing date. As the appeal was on session which last up to 17.03.2025, and in consideration of the prevailed circumstance, the court ordered for it to be disposed by way of written submission and judgment was scheduled on 13.03.2025. The appellant was represented by Mr. Roman S. Lamwai, learned counsel whereas the respondent enjoyed the legal services of Mr. Maiko Ulotu, learned counsel. In his submission, Mr. Lamwai decided to abandon the 2nd, 4th, 6th and 7th grounds of appeal hence, submitted on the 1st, 3rd and 5th grounds of appeal. In support of the 1st ground of appeal, Mr. Lamwai submitted that the learned chairperson at page 14 of the judgment made her findings in respect of 3 txhibit P2 and Pl and stated that: "Kielelezo P2 ni uthibitisho wa umiiiki wa eneo hi/o kwa Mariam Saidi ambaio aiipewa na Serikali ya Kijiji cha Ujamaa Goba. Kielelezo Pl kwa pamoja ni taarifa ya upotevu wa hati ya manunuzi na kivuii cha hati ya manunuzi ambapo Mariam Saidi aiikuwa anamuuzia Mdai eneo hiio tarehe 5/8/1988 na kushuhudiwa na Mwenyekiti wa Zoni ya Goba aitwae Shabani Libega. That during cross examination PW1 testified that Exhibit P2 is a copy of the original and he was not given the original document. Mr. Lamwai submitted that the trial chairperson relied on the existence of sale agreement through Exhibit Pl which was a copy of the sale agreement which was lost on 05.05.2021 and reported to be lost on 06.05.2021. That PW1 did not explain how Exhibit Pl was lost. That, PW1 testimony is a mere statement under oath considering that the loss report is not a proof of existence of the said document. That the respondent had a duty to provide proof that the said contract existed by producing witnesses. That there should be evidence to collaborate the existence of the said contract between the respondent and Mariam Said and this evidence was not established by PW2. Mr. Lamwai contended that the evidence to collaborate the loss of the original document was necessary considering the fact that the respondent has more than once been lying to the court. That when PW1 examined in chief he testified that he bought the disputed property in 1988. The said testimony was given on the 11.05.2021 when the respondent admitted to have 54 years, meaning that he born in 1977. That on cross examination PW1 testified that he bought the suit land when he was 21 years old. Mr. Lamwai contended further that for PW1 who was born in 1977 to have 21 years he was supposed to execute the said sale agreement in 1998. That on 1988 when the respondent purchased the suit land as alleged he was 11 years hence, had no capacity to contract. That failure to produce evidence to collaborate the existence of Exhibit Pl and the testimony of the age of respondent at the time of executing Exhibit Pl, bound the trial chairperson to declare that Exhibit Pl is non-exiting. On the 3rd ground of appeal, Mr. Lamwai submitted that the standard of proof in civil cases is balance of probabilities. He cited the case of MATHIAS ERASTO MANGA VS. MS. SIMON GROUP (T) LIMITED, Civil Appeal No. 43 of 2013 to bolster his argument that proof in civil cases is the evidence available on record and whether it tilts the balance one way or the other. That pleadings and the testimony of PW1 that he bought the suit land from one Mariam Said in 1988 when he was 21 years old need to be scrutinized. Further that PW1 testimony that the sale agreement was lost 5 days before he testified in court and the police loss report need to be scrutinized against Exhibit D3 produced by DW1 dated 25.02.1992. That DW2, Rick Ambinga Mushi, who was a local government chairman on the ward which the suit land is located from 2004 to 2009 testified that he knows that the suit land belonged to Kitembe John Mrita (the deceased) who managed 5 to fill the planning form in respect of the said land in 2006 and that he was the one recognized by the local government. The testimony of DW2 was supported by Exhibit D4 which was land form No. 69 with Reference No. KMC/LD/46037. He contended that DW3, Samwel Baran Akunay, a 70 years' old citizen and neighbor to the appellant testified that he witnessed the sale agreement referred as Exhibit D3 in 1992 and that the appellant bought the suit land from Omary Almas. That the trial chairperson disregarded the testimony of DW3 on the reason that Exhibit D3 refers to a property situated at at Kunduchi Mtongani and not Kinzudi Goba. On the 5th ground of appeal, Mr. Lamwai submitted that it should be noted that none of the parties were called to address the issue of location of the disputed land. That all parties gave their evidence as to the ownership whereby Omari Almas was the only available neighbor to the suit land who acknowledged Exhibit D3 and that the land was sold to Kitembe John. That during cross examination he testified that he never knew Mariam Saidi. That in the absence of both parties' submission on the issue of geographical re-arrangement of the suit land, the Tribunal had no right to make findings that the suit land was not at Kunduchi Mtongani. That absence of the policy that changed the administration boundaries as by the time the appellant bought the suit land disabled the trial 6 Tribunal to determine the exact location of the suit land between Kinzudi - Goba or Kunduchi - Mtongani. He submitted further that if the evidence on record have been sufficient to dispose of the new issue, the trial Tribunal would have been justified to determine it without calling the parties to tender documents and evidence, but in absence of the policy that changed the administration boundaries at the time the appellant bought the suit land, it is certainly not justly to determine that the suit land was at Kinzudi - Goba and not Kunduchi - Mtongani. He cited the case of SCAN - TAN TOURS LTD VS. THE REGISTERED TRUSTEES OF THE CATHOLIC DIOCESE OF MBULU, Civil Appeal No. 78 of 2012 and MARGWE ERRO & 2 OTHERS VS. MOSHI BAHALULU, Civil Appeal No. Ill of 2014 to bolster the argument of affording parties a right to be heard whenever a new issue is raised by the trial court. That the trial chairperson raised a new issue suo moto in the cause of composing her judgment and determined it without affording the parties the right to be heard. Mr. Lamwai prayed that the appeal be allowed with costs. In reply to the 1st ground of appeal, Mr. Olotu contested the submission that the trial court relied on a non-existing agreement between the respondent and the vendor to reach its decision. He cited section 2(1) of the Land Registration Act, [Cap 334 R.E 2019] which defines the term owner in relation to 7 any estate or interest. That in a dispute for land, the person with a certificate of title will be considered as a lawful owner of the land. He cited the case of AMINA MAULID AMBALI & OTHERS VS. RAMADHANI JUMA (Civil Appeal No. 35 of 2019) [2020] TZCA 19 (25 February 2020) to substantiate his argument. He contended that a sale agreement, while constituting cogent evidence of a transaction, does not in itself confer absolute ownership of land. That the respondent had tendered a sale agreement entered into between himself and the vendor, one Mariam Said which was admitted as Exhibit Pl. That the respondent also produced a title deed issued on 10.07.1976 evidencing that the late Mariam Said was granted the land in question by the Ujamaa-Goba Village, which was duly admitted as Exhibit P2. That presence of Exhibit P2 strengthens the respondent claim to the extent that it aligns with the legal requisites of a valid transfer. That the vendor, the late Mariam Saidi, must have had an indefeasible right to transfer the land, and such right must have been properly assigned to the respondent. He was of the view that instead of the appellant tendering cogent and watertight evidence to controvert Exhibit Pl and P2, he resorted to trivialities that add no legal weight to the matter. That it is trite law that he who alleges must prove. That instead of the appellant discharging this evidentiary burden by producing substantive evidence to counter the respondent's legally recognized ownership, he has chosen to mock 8 the integrity of the trial court by focusing on extraneous and legally irrelevant matters. That the respondent has met the legal threshold by producing compelling documentary evidence that unequivocally establishes ownership of the disputed property. In contrast, the appellant has failed to produce evidence to rebut the legal title in favor of the respondent. That the appellant emphasis on the respondent's age at the time of the transaction is legally frivolous and irrelevant. That the attempt by the appellant to cast doubt on the respondent's loss of original documents is irrelevant as he has dully tendered a police loss report, a document recognized by law as sufficient proof of a lost instrument. That the 1st ground of the appeal is devoid of merit and be dismissed with costs. In reply the 3rd ground of appeal, Mr. Olotu denied everything alluded by the appellant in its entirely. He contended that in civil litigation, the burden of proof is significantly lower than in criminal proceedings. He cited the case of JOSEPH CONSTANTINE STEAMSHIP LINE LTD VS. IMPERIAL SMELTING CORPORATION LTD [1945] AC 154, where the court underscored that a plaintiff is not required to prove their case beyond reasonable doubt instead, the standard applied is the balance of probabilities, which necessitates that the plaintiff demonstrates that their claim is more likely true than not. He also cited the case of BERELIA KARANGIRANGI VS. ASTERIA NYALWAMBWA, Civil Appeal No. 237 of 2017, to bolster his argument. That, in civil matters, once a 9 plaintiff presents sufficient evidence to make his claim more probable than not, the burden may shift to the defendant to counter the assertions. That the burden was upon the appellant to prove ownership of the land in dispute or cast doubt upon the respondent's case. That the 3rd ground of appeal has no merit and be dismissed with costs. In reply to the 5th ground of appeal, Mr. Ulotu submitted that during the trial, the geographical location of the disputed land was never in contention. That Exhibit Pl and P2 explicitly indicated that the suit land is situated at Kinzudi - Goba and not Kunduchi Mtongani as alleged by the appellant. That the main issue before the trial Tribunal was ownership and not location, and all parties were heard before the matter was determined on merits. That, if the appellant genuinely questioned the location of the suit land, he would have raised it as an objection at the earliest opportunity. However, no such objection was made, implying that the purported dispute over the location of the suit land is a mere afterthought and an attempt to mislead this court. He was of the view that the appellant's argument is devoid of merit and is an attempt to frustrate the respondent and prevent him from enjoying the fruits of a lawfully obtained decree. He prayed that the 5th ground of appeal be dismissed with costs. In rejoinder, Mr. Lamwai reiterated his submission in chief and stated that the respondent has failed to grasp the submissions on the grounds in support of io an appeal. In respect of the 1st ground, he rejoined that the respondent's counsel relied on the decision in the case of AMINA MAULID AMBALI AND OTHERS (supra) which was in respect of a dispute over ownership of a piece of registered land while in the instant matter the disputed land is un-surveyed and with no certificate of title. That relying on the decision of the cited case aimed at misleading this court. That the circumstances are distinguishable. Rejoining on the 3rd ground, Mr. Lamwai argued that argument that the appellant was aware of the standard of proof as regard to criminal justice and that of civil suit as in the cases of JOSEPH CONSTANTINE STEAMSHIP LINE and BERELIA KARANGIRANGI (supra) that is why he quoted the case of MATHIAS ERASTO MANGA (supra) is a misconception as the appellant never submitted on the criminal standard of proof. Rejoining on the 5th ground, he argued that Mr. Olotu has admitted that there was no issue on geographical location, but he is wondering the trial chairperson rises the same and decided on the said issue without calling the parties to address on it. Having gone dispassionately through the record and submission of the parties, the pertinent issue for my determination is whether the appeal have merit. u A- li Starting with the 1st ground that the trial Tribunal erred in law by considering the contract between respondent and the vendor which was non existing; hence unenforceable in law; it was submitted that the trial chairperson relied on Exhibit Pl which was a copy of the sale agreement which was lost on 05.05.2021 and reported to be lost on 06.05.2021. That, the loss report is not a proof of existence of the sale agreement. That evidence was needed to collaborate the existence of the sale agreement. On the other side it was argued that the respondent had tendered a sale agreement between himself and one Mariam Said which was admitted as Exhibit Pl. Further that the respondent also produced a title deed issued on 10.07.1976 evidencing that the late Mariam Said was granted the suit land by the Ujamaa - Goba Village which was duly admitted as Exhibit P2. After going through the record, I have noted that Exhibit Pl was a copy of the sale agreement and a police loss report. The said documents were undisputedly admitted by the Tribunal as part of the respondent's evidence. I subscribe to the argument by Mr. Lamwai that a copy of the sale agreement needed corroboration however, in my view the police loss report corroborated the said agreement. It was a proof that the original sale agreement is lost. It does not matter as to when the original document gets lost, it suffices to have a recognized proof that in actual fact the original document is lost. It is also strange to note that even the appellant, in order to prover his ownership relied 12 on a copy of the sale agreement accompanied by a police loss report which was admitted as Exhibit D2 and D3 respectively. In the circumstance, the question of relying on copies of sale agreement befalls on both parties. It is trite law under section 63 of the Evidence Act [Cap 6 R.E 2019] that the contents of documents may be proved either by primary or by secondary evidence. Further section 67 (l)(c) and (2) of the said Act provides that: 67.-(l) Secondary evidence may be given of the existence, condition or contents of a document in the following evidence cases- (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (2) In the cases mentioned in paragraphs (a), (c) and (d) of subsection (1) any secondary evidence of the contents of the document is admissible. Therefore, it is my considered position that the trial Tribunal was right to consider Exhibit Pl as the evidence in favour of the respondent. On the allegation that when the respondent purchased the suit land in 1988 he had no capacity to contract and that failure to produce evidence and the testimony of his age at the time of executing Exhibit Pl bound the trial chairperson to declare that Exhibit Pl non-exiting, is in my view is a new issue which was not raised in the trial Tribunal and which calls for evidences. For that reason, I do not see the point of discussing it at this stage. This ground has no merit and is dismissed. fx_ 13 On the 3rd ground that, the Tribunal erred in law and fact by entering and allowing the evidence that did not meet standard required in civil cases, it was argued that pleadings and the testimony of PW1 that he bought the suit land from one Mariam Said in 1988 when he was 21 years old and that the sale agreement lost five days before giving his testimony and that the police loss report need to be scrutinized against Exhibit D3 produced by DW1. On the other side it was argued that the respondent has tendered cogent and compelling evidence and witnesses that established his ownership of the suit land and demonstrated the appellant's trespass. That the burden was upon the appellant to prove his ownership of the land. As alluded earlier, the issue of the age of the respondent in a new one hence, at this stage, I hesitate to make my analysis and finding because it needs evidence. On scrutinizing Exhibit Pl against Exhibit D-3 which are both sales agreements and which have been admitted by the Tribunal, I have noted that both are copies accompanied by police loss report. However, they differ in locating the suit land. Exhibit Pl refers that the suit land is in Kinzudi Goba while Exhibit D-3 states that the land is in Kunduchi Mtongani. It is on record that the respondent in his amended application filed in the Tribunal, under paragraph 3 and 5(a)(i) described the land as located at Kinzudi, Goba Ward within Ubungo Municipality Dar es Salaam while the appellant in his defence file in the Tribunal, 14 under paragraph 1 admitted the location of the suit land despite the fact that Exhibit D-3 described the land to the contrary. It is clear that the respondent land is located at Kinzudi, Goba as supported by the testimony of PW1, PW2 and Exhibit Pl and P2. These evidences in my view proved the respondent case on the standard required under civil case, balance of probabilities hence, the burden was upon the appellant to parade his evidence that counter that of the respondent, something which in my view was not properly done. I have gone through the testimony of DW2 which was supported by Exhibit D-4. However, Exhibit D-4 does not show that the appellant's father was the owner of the suit land nor was it signed by the appellant's father hence, in my considered view Exhibit D- 4 is just a mere document with no any evidentiary value hence, it cannot be said to be a good evidence. Again, I am of the view that it was proper for the Tribunal to disregard the testimony of DW3 that he witnessed the sale agreement (D-3) in 1992 because it referred to a land situated at Kunduchi Mtongani and not Kinzudi - Goba. I am satisfied therefore that; the Tribunal was correct to allow the said evidence as they passed the standard required in civil cases compared to the one tendered by the appellant. This ground also in my view has no merit. In respect to the 5th ground that the Tribunal erred in law and fact by failing to consider that the disputed land was one in Kunduchi Mtongani in 15 relation to Exhibit D3; it was submitted that none of the parties were called to address the issue of location of the disputed land. That all parties gave their evidence as to the ownership whereby DW3 acknowledged Exhibit D-3 and that he never knew Mariam Said. That in the absence of both parties' submission on the issue of geographical re-arrangement of the suit land, the Tribunal had no right to make findings that the suit land was not at Kunduchi Mtongani. On the other side it was submitted that during trial, the issue of geographical location of the suit land was not in contention. That Exhibit Pl and P2 explicitly indicated that the suit land is situated at Kinzudi - Goba and not Kunduchi Mtongani as alleged by the appellant. That the main issue before the Tribunal was ownership and not location and all parties were heard before the matter was determined on merits. Having perused the records, at the outset i should admit that the Tribunal did not deny any party the right to be heard. Again, it is trite law under Order VII Rule 3 of the Civil Procedure Code [Cap 33 R.E 2019] that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. I am also persuaded by the holding of this court in the case of FEREJI SAID FEREJI VS. JALUNA GENERAL SUPPLIES LTD & OTHERS, Land Case No. 86 of 2020 (unreported), that description of the property helps the court in establishing the territorial jurisdiction and assisting in 16 issuing executable orders. As said earlier, the respondent in his amended application to the Tribunal under paragraph 3 and 5(a)(i) has given a proper description of the suit land as evidenced by Exhibit Pl and P2 altogether, I have also noted that the appellant in his defence filed before the Tribunal has admitted to the said description despite the fact that Exhibit D-3 described it to the contrary. It is my settled observation that the Tribunal was correct in considering that the suit land was not the one in Kunduchi Mtongani due to fact that all the testimonies of the appellants' witnesses in the Tribunal refereed the suit land to be located in Kinzudi Goba. Determination of the application was mainly based on the testimonies of the witnesses and evidence tendered in the Tribunal. If at all this was a contentious issue, it would have been raised during trial and not at this stage. This ground, in my view has no merit or at all. In the end result, and without prejudice to my observation, I find that the appeal is devoid of merit. In the circumstance, i hereby dismiss the appeal in its entirety with costs. 17