20160826 TZHC Mbeya

THE HIGH COURT OF TANZANIA AT MBEYA LAND APPEAL NO. 08 OF 2013 (From the Decision of the District Land and Housing Tribunal of RUNG WE District at RUNGWE in Land case Appeal No. 34 of 2011) KIWIRA SACCOS HARVEST (T) LII)J................................. A.PPELLAN'J.'S VERSUS ISRAEL A. MWALYAJE ELIUD S. MBILINYI 5 ....... ...............RESPONDENTS JUDGMENT Date of last order: 15. 03. 2016 Date of Judgment: 26. 08. 2016 Dr. M. C. Levira, J The appellants KIWIRA SACCOS and HARVEST (T) LTD after having been dissatisfied with the decision of the District Land and Housing Tribunal for Rungwe, they decided to appeal to this court with two grounds of appeal as follows:- The tribunal erred in law and facts to hold that the suit land belongs to the 1st respondent by virtue of purchase from the 2nd respondent which transaction was prima facie a forgery lacking credible evidence as to vendor's root title and whether the land was surveyed or not. Having hold that 2nd respondent had mortgaged the disputed land to the 1st appellant the Tribunal erred in law and facts to hold that the mortgaged of the suit land by the 2nd respondent to the 1st appellant was a sham. When the appeal called for hearing Mr. Nyingi, the learned advocate for the appellants, adopted the grounds of appeal together with the Page 1 of 8 reply by the 2nd respondent. As to the first ground of appeal, he submitted that the District Land and Housing Tribunal for Rungwe erred when declared the 1st respondent the winner basing on the fact that the 1st respondent bought the disputed land from the 2nd respondent. Looking at the injunction in Application No. 34/2011 and the affidavit, the 1st respondent did not produce any evidence to show that he bought the said land from the 2nd respondent. However, later on he came with a contract in the main application to indicate that he bought that disputed land. That is why the counsel contended that it was an afterthought. It was further submitted by the counsel that even if the exhibit was correct still the content of the said contract indicate that it was a farm but mortgaged property was a plot of land, and it could be seen from the loan form attached as Annexure "Dl", clause No. 16 in the main application, and hence the District Land and Housing Tribunal erred to hold that the 1st respondent bought the disputed land from the 2nd respondent. In regard to the 2d ground of appeal, it was argued that the tribunal agreed that the 2nd respondent mortgaged the plot of land which was in conflict, hence it was wrong because it was kept by a person who did not have a title. When looking at the explanations of the appellants and the 2nd respondent you will discover that it was a plot and not a farm which was mortagaged. It was further submitted that 1st respondent bought the land indispute in 2010, but the said land was under the appellant as per loan form in clause 8. Hence it was not proper for the 2nd Page 2 of 8 ' respondent to use that land to advance loan from the appellant. Hence, the learned counsel prayed that the property was mortgaged by the 2nd respondent and having failed to pay the loan allowed the .1 appellant to sale the said property to recover the loan, and lastly prayed for the appeal to be allowed with costs. Mr. Israel A. Mwalyaje being unrepresented submitted that, the disputed land is his property and that the District Land and Housing Tribunal for Rungwe was correct. As in the sale agreement was written farm because the seller introduced that he was selling a farm and he used to 'cultivate different crops on that land. And that after buying that land he discovered that the same had becons on the demarcations and he decided to ask neighbours whether the land was surveyed. He was informed that the said land was surveyed and they advised him to go to the District Land Office. Upon reaching there he asked whether the said land was under the possession of any one (Plot No. 27 Block J) and whether the land rent was not paid. According to Mr. Israel, he showed them the sale agreement and thereafter he was given a letter of offer, He continued to pay land rent till now. There happened no one to complain that he is the owner of the land. He further insisted that, the disputed land is his property because the local government in that area knows it and they supported the sale agreement, the one who sold that land to him, his signature on the contract is the same appearing on the loan form. He contended that the said land was sold to him and that there was no fraud in the selling of the same. Page 3 of 8 He went on telling this court that the one who sold that land to him happened to mortgage the same to Kiwira Saccos to acquire a loan, and there was neither problem nor conflict, and that it is clear that the sale started and the loan followed. He mortgaged the land which he sold to take the loan, the act is against the law. However he firmly insisted that the land in dispute is his, there was no forgery during the purchasing of the same, and lastly he prayed for the court to decide that the disputed land belongs to him, as he has genuine documents over the disputed land and the appellants have to prove if there was fraud. The 2nd respondent was Mr. Eliud S. Mbilinyi, also being unrepresented, started by starting that he was speaking the truth that he never sold the plot to the 1st respondent but, he happened to take loan from Kiwira Saccos and he mortgaged his house and a plot of land (the disputed land) which is his. It is true that he owed by Kiwira Saccos and he is about to pay them in order to recover his properties. He is disappointed to hear that the same plot of land was about to, be sold without being informed. He prayed for the court to take the decision which will help him to pay the said loan, he submitted. In rejoinder Mr. Nyingi, the learned advocate stated that, according to exhibits A and B of the 1st respondent, the sale agreement and the receipts which were denied by the 2nd respondent were of 06/09/2010 but looking at exhibit "Dl" the loan form it seems that from 01/11/2009 - 01/11/2010 the said plot of land was under the custodian of the appellant. The second respondent had a good title and since he agreed that he took loan and later breached the Page 4 of 8 ' loan agreement, the learned counsel prayed for this court to allow the appellants to sale that land so as to recover their money. Having gone through submissions of both parties and court records, I find that this court need to determine two important issues as to whether the disputed land was legally sold by the 2nd respondent to the first respondent; and whether the disputed land was properly mortgaged to the 1st appellant. Starting with the first issue whether the disputed land was legally sold by the second respondent to the first respondent. I suppose the answer to this issue is not farfetched. Records of District Land and Housing Tribunal for Rungwe are very clear that on 06/09/2010 Eliud S. Mbilinyi (second respondent) entered into sale agreement with Israel A. Mwalyaje (1st Respondent) to sale his land to the respondent. The said sale agreement was witnessed by Agatha S. Mbilinyi, Ntuli Mwakibete, Naumi Mbilinyi, Amani Mwalisu and the chairman of Baturi hamlet who also approved the sale agreement on 18/10/2010 , upon payment of Tshs. 75,000/= by the first respondent, as per Annexture "A". On 08/12/2010, Eliud Mbilinyi, the 2nd respondent entered loan agreement with the first appellant Kiwira Saccos. Amongotherthings the second respondent mortgaged the land in dispute. The loan was advanced to him as per the agreement. However, the second respondent did not reveal to the first appellant that he sold the mortgaged land to the first respondent. Page 5 of 8 The learned advocate for the appellant challenged the content of the sale agreement indicating that the contract is about the farm while the mortgaged property was a plot of land as per annexture "Dl". The learned counsel argued that since the land in dispute was the property of the second respondent it was right for him to allow the first appellant to sale it. On his part, the first respondent stated that it agreement is written farm because that is how the second appellant introduced it. He also added that, the second respondent used to cultivate various crops on that land. Later the 1st respondent discovered that the land which he bought was surveyed and is plot No. 27 Block J. He obtained letter of offer after necessary measures and he is paying land rent todate. It is my considered opinion that the argument which the learned advocate is trying to advance in regard to the terminologies used whether a "shamba" or plot does not change the fact that the land in dispute was sold to the first respondent by the second respondent. This can be evidenced by the testimony of Agatha Samwel Mbilinyi who is a sister to the second appellant. In her testimony on 18/07/2012 before District Land and Housing Tribunal for Rungwe in Application No. 34 of 2011 where she testified as AWZ. Agatha S. Mbilinyi stated that the second respondent sold his land to the first respondent and she witnessed the sale agreement on 06/09/2010. She stated further that, after the sale, without her (AWZ) knowledge, the second respondent took the loan from the appellant; and that the second respondent had a robbery case and he (2nd respondent) told them that he mortgaged the land which they bought. She never got the share from the loan taken. In conclusion she stated that the signature of Eliud (2nd respondent) which Page 6of8 appears in the sale agreement resembles that of the loan agreement. From the evidence above it is very clear that the land in dispute was mortgaged after being sold to the first respondent. I find that this witness AWZ was a credible witness. Therefore I do not see the need of disturbing the findings of the District Land and Housing Tribunal for Rungwe in that aspect. In regard to the second issue as to whether the second respondent was right to mortgage the land which he sold to the first respondent. The answer to this issue is in negative. That being the case, it was also wrong for the second respondent to allow the first appellant to sale the disputed land so as to recover the money landed by the second respondent. Being as such, I am confident that, the appeal before me is without merits. It is therefore dismissed. The decision of the District Land and Housing Tribunal for Rungwe stands. Each party shall bear the costs. *Iaz- Dr. M. C. Levira i 1 Judge ~ Vf 26/08/2016 * Page 7 of 8 Date: 26/08/ 2016 Coram: Dr. M. C. Levira, J Appellants: 1st: Present 2nd: Present For the Appellants: Absent Respondents: 1st: Present 2nd: Court: Judgment delivered in the presence of first appellant and first respondent. *11 , - ~ --- Dr. M. C. Levira Judge 26/08/2016 Page 8 of 8