khadija seleman mohamed vs emmanuel henry mrema 2018 tzhclandd 144 4 may 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC LAND APPEAL NO. 136 OF 2017 (From the D ecision of the District L a n d a n d Housing Tribunal of KINONDONI in L a n d A p p e a l No. 57 of 2016 a n d original W ard Tribunal of M ABW EPANDE in a p p lica tion no. 95 of 2015) KHADIJA SELEMAN MOHAMED........................................ APPELLANT Versus EMMANUEL HENRY MREMA........................................... RESPONDENT JUDGMENT Date of Last Order: 22.3.2018 Date of Judgment: 4.5.2018 S.A.N. WAMBURA, J: Aggrieved by the decision of the District Land and Housing Tribunal for Kinondoni the appellant Khadija Selem an M oham ed has filed this app eal on the following grounds: 1. That the District Land and Housing Tribunal for Kinondoni erred in law and fact in deciding the ca se in favour of the respondent without considering the fact that the trial Ward tribunal did not give appellant's right to be heard (Audi Alteram Partem) basing on the facts that the appellant m ade requests more often to bring his witness and other evidences unsuccessfully. i 2. That the trial tribunal co n d u cted the proceedings unjustly by entering decision relying on the respondent’s non-existing sale agreem ent and absence of enough evidence. She therefore prayed that this Court quashes the decision of the District Land and Housing Tribunal and order that the trial be conducted de novo. The respondent Emmanuel Henry Mrema did not file a reply thereto. The appellant was represented by Mr. Om ar Abubakar while the respondent was represented by Mr. Mawi A d vo cate. In support of the first ground of appeal Mr. Abubakar submitted that the trial Ward Tribunal denied the appellant the right to call her witnesses to prove her allegations. That the seller one Khadija was not called to state whom between the two actually bought the suit land. As for the second ground of appeal Mr. Abubakar submitted that the respondent did not produce the sale agreem ent and the receipt at the trial Ward tribunal so as to prove that he purchased 2 the said disputed land. He therefore prayed to this court to allow the ap p eal and set aside the decision of the lower tribunals. In reply to the first ground of ap peal, Mr. Mawi submitted that the ap p eal is devoid of merit as it is on the record that the respondent w as the first person to purchase the disputed land. He further averred that the appellant was given an opportunity to be heard and summoned one witness. He stated that it is not the duty of the tribunal to summon the witnesses, as the parties themselves had a duty to call their witnesses to support their cases. On the second ground of appeal Mr. Mawi contended that both the appellant and the respondent produced the sale agreem ent which w ere admitted as Exhibits. He therefore prayed for the dismissal of the app eal with costs. In reply Mr. Abubakar reiterated his earlier submission in chief. Having considered the rival submissions of both parties, I will now determine the ground of appeal in seriatim. 3 On the 1st ground of appeal, the appellant alleged that he was not given a right to be heard at the trial Ward Tribunal. Upon carefully perusal of the court record, this court finds that the appellant was given a right to be heard. The court record shows that he was the one who instituted the complaint at the trial Ward tribunal, and called one witness namely Hafidhi Thabithi Selemani so as to prove her case. Thus it was her duty to prove her case on balance of probability and not the tribunal. As correctly reasoned by the learned Chairman at the first appellate court, the duty of the appellant was to prove her case. That if she needed any Local Government witness, she had a duty to move the Ward Tribunal to issue such summons to the contended Local Government witness. It appears that the appellant is trying to shift the burden of proof to the tribunal forgetting that she is the one who filed the suit before the trial tribunal. If she felt that there was a need to call Local Government Leader she could have done or said so. Sections 110 (1) and 111 of the Law of Evidence Act, Cap 6 RE 2002 provides that the burden of proof lies on the one who alleges; 4 “Section 110(1) Whoever desires any court to give Judgm ent as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Section 111 The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side". Thus from the abo ve evidence, this ground of appeal fails for lack of merit. With regard to the 2nd ground of ap peal, the evidence on record is that the appellant purchased the suit land from one Khadija Nkini in September, 2014 for Tshs 3,000,000/=. According to her testimony, the said sale agreem ent was witnessed by the local Governm ent leader of M abw epande. That after she purchased the disputed land, she did not visit the suit land for one year. She stated that one day when she went to visit her suit land she found out that the respondent trespassed into her suit land and m ade a structure therein (house). The respondent's evidence on the other hand was that in the sam e year 2014 on 25th day of June he purchased a suit land 5 from the same vendor one Khadija Nkini for Tshs 3,000,000/-. The respondent’s testimony was corroborated by DW2 and Dw3 who witnessed the sale agreem ent between the Respondent and his vendor. According to the evidence ad d u ced at the trial Ward tribunal, there is no dispute that both the appellant and the respondent purchased the suit land from one Khadija T. Nkini for the sum of Tshs.3,000,000/=. What is in dispute is who the lawful ow ner of the suit land is. From the evid ence tendered as well as the sale agreements at trial Ward tribunal there is no doubt that the lawful owner of the disputed land is the Respondent. This is because he was the first person to buy the suit land from the seller one Khadija T. Nkini on 25/06/2014. The second sale between the appellant and the said Khadija Nkini w as unlawful as the seller had no good title to pass, it follows that, the appellant cannot claim ownership of the land in dispute as no good title has ever passed onto him. 6 It is a settled principle of law that, a person without a good title to goods cannot pass a good title to the transferee than his own. This is supported by the ancient maxim “Nemodat Quod non-habet” which means that “No one can transfer a better title than he himself has. The position was also maintained in Bishopgate Motor Finance Corporations Ltd Vs. Transport Brakes Ltd (1949) IKB 322 and in the ca se of Farah Moham ed Vs Fatuma Abdailah (1983) TLR 205. The law clearly provides that in order for the buyer to acquire better title there must be an authorization from the real owner. In the instant case as I here stated earlier that the real owner of the disputed plot is the respondent, as the seller had already passed her title to the respondent. It follows that the subsequent transfer to the appellant by one Khadija Nkini was null and void. Thus having said that, this court finds no reasons to disturb the finding of the lower court. The decision of the District Land and Housing Tribunal of Kinondoni in Land Appeal No. 57 of 2016 is upheld. 7 The ap p eal is accordingly dismissed with costs. S.A.N. V^AMW/RA ^TUDGE 4.5.2018 8