MAGAI SAFII

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND APPEAL CASE NO 314 OF 2023 (Arising from Land Application No. 276 of 2015, District Land and Housing Tribunal -Ilala) LADISLAUS MATOKE MAGAI....................................... 1^ APPELLANT BERTHA WILFRED MAHENDEKA ...............................2nd APPELLANT VERSUS MWEVI WAZIRI MKOBO.......................................... 1st RESPONDENT LEONIA KAJALA..................................................................................2ndRESPONDENT BARAKA MAKA.................................................................................... 3RRESPONDENT JUDGEMENT Date of last order; 16/11/2023 Date of Judgement; 20/11/2023 MWAIPOPO3, This Appeal traces its origin from the Judgement of the District Land and Housing Tribunal for Ilala at Kivukoni, "The DLHT", handed down on the 14th of April 2023 in Land Application No. 276/2015 (Hon. M. Mgulambwa, Chairman). Briefly, the background of this Appeal, as may be deduced from the Court records, as is narrated herein below. Ladislaus Matoke Magai and Bertha Wilfred Mahendeka, the Appellants herein, instituted Land Application no.276 of 2015 at the DLHT for Ilala District against Mwevi Waziri Mkobo, Leonia Kajala Sengo and Baraka Maka, the Respondents herein, praying for the following orders; a) Declaration that they are the lawful owners of the property described as House No. 395, registered under Residential Licence Wno. ILA 022558 located at Tabata Ward, Ilala Municipality, Dar es salaam, hereinafter to be referred to as the" the suit property". b) Nullification of the sale Agreement by the Respondents i c) Vacant possession of the house d) Declaration that the third Respondent's continuing use of the said house is illegal; e) General damages of TZS 30,000,000 for disturbance caused by the first Respondent, loss of time and money, irreparable loss and embarrassment; f) Cost of the application and advocate's fees; g) Any other reliefs the honourable Tribunal may deem fit to grant. The application was filed by the Applicants after they had failed to repay the loan advanced to them by the 1st and 2nd Respondents which triggered the sale of the disputed property to the 1st and 2nd Respondents, who in turn sold the same to the 3rd Respondent. Upon being served with the Application, the Respondents filed written statements of Defence to dispute the allegations contained in the Application. In its determination of the suit, the District Land and Housing Tribunal was guided by three issues namely; 1. Whether the Applicants are the lawful owners of the of the suit property; 2. Whether the Sale Agreement was valid 3. What reliefs, if any, are the parties entitled to. The case was heard on merit whereby the Appellants/Applicants paraded 4 witnesses while the Respondents called three (3) witnesses. At the conclusion of the trial, the DLHT entered a judgment against the Applicants/Appellants on 14th April 2023 by dismissing the Application and ordering each party to bear its own costs. The Appellants being aggrieved with the decision of the DLHT (Hon. Mgulambwa) and thus seeking to impugn the said Judgment, have knocked the doors of this court armed with six (6) grounds of appeal which were filed in the initial Memorandum of Appeal and five (5) additional grounds which were filed in October 2023 pursuant to the order of the Court, hence making a total of eleven grounds of appeal. The said grounds are as follows; 2 1. That the trial chairperson grossly erred in law in failure to hold that the sale agreement dated 22/04/2011 is /was a nullity for the said date was a public day. Judicial Notice should have taken against the same 2. That the trial chairperson erred in both in law and fact in not believing the testimony of PW1 and PW2 (the Appellants) in addition to the testimony of PW3 regarding the alleged Sale Agreement which was totally denied as they were not aware of it. 3. That the trial Chairperson went astray in believing the testimony of DW1, DW2 and DW3 who did not even call any independent witness to support them particularly those appearing on the sale agreement in controversy 4. That the trial chairperson erred in law and fact in not taking note of the fact that the Residential License in the name of the first appellant is yet to be transferred to the third Respondent hence he has no legal right over the same and the property (house) thereof. He holds it illegally 5. That the trial chairperson erred both in law and fact in holding that the Application was not meritorious when the Respondents had admitted that the Appellants only borrowed some money but denied to have sold the house 6. That the testimony of PW4 was evasive as he did not clearly prove on how he signed the sale agreement on a public day due regard being has to the fact that he was a public officer As stated above, the following additional grounds of appeal were added as follows; 1. That the chairperson erred in law and fact in holding that, the Appellants are not rightful/lawful owners of the disputed property as they failed to adduce evidence to proof (sic) the mode of acquisition of the disputed property 2. That the trial chair person erred in law and fact in holding that "exhibit KU1" is the valid Sale Agreement entered between the 2nd Appellant and the 1st and 2nd Respondents 3. That the trial Chairperson erred in fact by holding that SM4 who was the Magistrate witnessed the Sale Agreement between the 2nd Appellant and 1st and 2nd Respondents while 3 is not true; 4. That the trial chairperson erred in law and fact by reaching to the judgment while departing on issues framed by the Court; 5. That the trial chairperson erred in law and in fact by reaching to the judgment without properly evaluating the evidence adduced by both parties On the date fixed for the hearing of the appeal, in appearance was Mr. Galinus Galikano; assisted by Mr. Innocent Mhelela learned counsel for the Appellants while the Respondents enjoyed the legal services of Mr. Yuda Thadei, learned counsel. As is the norm, the privilege of addressing the court first was accorded to the Appellants, via their counsel, Mr. Galinus Galikano In his submissions in chief, with the leave of the court, he argued ground No. 1, 4 and 6 conjointly as they are so interwoven that they cannot be separated. He then argued ground No.2, 3 and 5 separately. Submitting on ground 1,4, and 6, Mr. Galikano argued that these grounds concern the disputed property and ownership of the house. The records show that, the house was sold on 22nd of November 2011. It was sold to the 1st Respondent and evidence of sale was tendered in Court as KU1, which shows that it had a Residential Licence no ILA022558, Tabata Street, Ilala Municipality, Dar es salaam. He submitted that the said date of the sale was a good Friday which was a public holiday and the Sale Agreement was witnessed by Omari Mohamed, a Magistrate at Magomeni Primary Court. He argued that according to the law, when it is a public holiday, judicial notice has to be taken that the Government is in holiday, he referred the Court to section 159(l)(g) of the Law of Evidence Act) and the case of Swahiba Ibrahim Shaha Vs Registered Trustees Musjid Ikbra thei Quiblastain Civil Ref. No.5121, where the Court affirmed the provisions of Section 159(g) of the Law of Evidence Act, that direct the Courts to take judicial notice on things, which are supposed to be done within working days, have to be done within working days. He submitted that; for the sale, which was done on 22nd April 2011 on a holiday, the Court ought to have taken judicial 4 Notice that the officer of the Government was not supposed to be in Court on the material day. He abused the office of the Government. He referred the Court to Pg. 4 of the judgement of the Tribunal, Paragraph 1, 4th line from last. He argued that for failure to take judicial notice, the Tribunal reached a conclusion that the sale was valid, if the Tribunal had taken judicial notice, it could have nullified the Sale Agreement. He submitted further that the 1st defence witness, Mwevi Waziri Mkobo gave evidence on sale transaction to have been effected on the 21st April 2011 and not 22nd of April 2023. He referred the Court to the copy of the proceedings, evidence tendered by the witness. When asked he stated that it was human error. The learned counsel argued that whenever there is written evidence it always takes precedence. The Respondents were supposed to prove their testimony by document that the sale was conducted on the 21st of April 2011. As per the sale document, sale was done on 22nd April 2011; therefore, the chairman of the Tribunal misdirected himself, given the fact that the person who witnessed sale denied the date of sale. The learned counsel further argued that, with regard to the issue of ownership, one will note from the records that, the house has a Residential Licence no ILA 0225558; the Licence is under the name of Ladislaus Matoke. It has never changed, based on this, Mwevi Waziri Mkobo sold the house again to the third Respondent without effecting transfer of the house. The Licence is under the custody of the third Respondent, thus the first Respondent, had no authority to sale to Baraka Maka the 3rd Respondent. The sale between the 1st Respondent and 3rd Respondent is not valid as it is null and void. The first Respondent had no title to pass to the 3rd Respondent. Thus, the Third Respondent is holding the Licence illegally. He referred the Court to the case of Gloria Irira Vs Sudi Mrisho Ngwambi Civil Appeal No. 27/21 CAT DSM, pg 16, paragraph no. 3, Mohamed versus Fatma Abdalla; where the Court held that; ''He who doesn't have legal title can not pass good title over the land to another." 5 He landed his submissions on these grounds by stating that; since the name of the 1st Appellant has not changed, he prayed that the Court declares him as the lawful owner because others who bought it have no title in the house. The sale done was null. With regard to ground no. 2, Mr. Galikano submitted that the Tribunal erred in not believing the testimony tendered by PW1, PW2 and PW3 going by the name of Omar Hassan Chambuso. The evidence was clear that the house was sold by the 1st Appellant, however, PW3 who was the Mtaa Chairman, from the Office of the Local Government was not aware of the sale done on 21st April 2011 by the Respondents. Since it was a registered land, one of the requirements was to fill in transfer form. Based on the contract of 22 April 2011 KU1, clause 4 of the Sale Agreement states that; Muuzaji atawawezesha wanunuzi kubadilisha jina la Hati kupitia Ofisi ya Kamishana wa Ard hi husika. However, the requirement was not done since the Sale Agreement was null and void, it is like there was no sale. According to section 23 of the Land Act, the owner is the one who has a title granted by the relevant authority. Therefore, the registered owner is the owner of the land as per the said section and evidence tendered. Therefore the hon. Chairman misdirected himself and abridged the rights of the Appellants. With regard to ground 3 of Appeal, the counsel for the Appellants submitted that the Tribunal misdirected itself in believing the story of the Respondents instead of the story of the Appellants. The chairman never analyzed the date of sale, which was 22nd April 2011, from a witness who contradicted himself. In law parties are bound by the pleadings. They denied the date of Agreement orally while the contract was indicating a different date. Therefore, it was not proper for the Tribunal to give them right while they had not proved it and disowned their own Agreement. He submitted that the Judgement given was against the weighty evidence tendered by the Appellants. As for ground no. 5. Mr. Galikano submitted that; the said ground concerns PW4 who was called by the Appellants named Omary 6 Mohamed. Despite the fact that he was called by the Appellants, he turned hostile. The main issue was loan, which was signed before him. When asked how much money was borrowed, he stated he did not know, when asked when the house was sold he said he did not remember. Based on the Sale Agreement, he stated that it was dated 22nd April 2011 and he identified his signatures as being his, when he was showed oath dated 21st March 2011, he recognized it as his. For the rest of the contents he was evasive. With regard to the issue of working on a public holiday, he denied the allegations. In his own words he said the transaction was done at Primary Court Magomeni. He however, denied the date and amount of loan. Mr. Galikano prayed that his evidence be discredited and the Court finds that that he was not at work on a public holiday. He rounded up submisisons on ground 1 to 6 of Appeal by praying that the Appeal be dismissed with costs. In submitting on additional grounds of Appeal, Mr. Galikano was assisted by Advocate Innocent Mhelela, who submitted on additional grounds 1-5 of Appeal. The learned Counsel began by abandoning ground 1, 2, and 3 as they had already been covered under the issue of Sale Agreement and ownership of disputed land. The learned counsel proceeded to argue on additional ground 5 of Appeal, which deals with evidence tendered before the Tribunal. He submitted that the main dispute is on Loan Agreement between the Appellants and the first Respondent. Based on the evidence adduced before the DHLT, it shows that the Appellants violated the terms of the Loan Agreement, which resulted into the sale of the house. However, if one reads the judgment of the Tribunal page 4 last paragraph, despite the fact that the evidence was identified, one will realize that in the record of the Court there was no any document tendered in court as Loan Agreement, what was just tendered was an Affidavit of Ladislaus Matoke Magai and Bertha Mahendeka Magai. He contended that these were not Loan Agreements but Affidavits. The Loan Agreement was supposed to be tendered before the Tribunal to enable it to look at the terms and conditions to see how the Appellants had defaulted. Lack of Loan Agreement raises serious concerns on the entire transaction, because someone's rights can be seen on the terms of the Agreement and not on the Affidavit. He went on submitting 7 that the law is clear that if there is loan or sale transaction of registered land, spouse consent is supposed to be secured, it can be by way of an Affidavit or prescribed form under the Land Act. In this matter, the owner and spouse both swore Affidavit, which is an undertaking in land transactions. It raises serious doubt since both the owner and borrower have also sworn Affidavits. These Affidavits were supposed to be accompanied with an Agreement, whose copy has never been an exhibit before the DLHT. By lacking a copy of the Loan Agreement, resulted into the whole transaction to be null and void. The law of land and contract recognize Agreements in any transaction. He contended that they had expected to see which clause of the Agreement was violated by the Appellants to lead into disposition of their property. He thus found that the judgment has alot of defects by recognizing Affidavits in lieu of Agreements. What was at issue was the Loan Agreement, which was not made available before the Court (See page 6 and 7 of the Tribunal Judgement). The learned counsel contended that the Tribunal was supposed to discuss the issue of Loan Agreement and not Sale Agreement, which preceded the Sale Agreement. In the absence of the Loan Agreement, whatever followed was null and void. In the Loan Agreement the Tribunal could have seen what the Appellants violated. Looking at the Affidavit, one cannot tell when exactly they violated the terms of the loan/ the learned counsel thus found the whole transaction was tainted with illegality. He thus prayed for the Court to dismiss and set aside the judgment and decree of the Tribunal. As for additional ground no 4, the learned counsel argued that; the Tribunal erred in law and fact by reaching to the Judgement while departing from the issues framed by the court. He submitted that the issues raised were 3 as found on page 5 of the Judgment, first paragraph, the three issues related to ownership of land. The owner was the first Appellant who had the Residential License granted based on section 23 of the Land Act, the issue had no dispute and was supposed to be responded to positively by the Tribunal. The second issue was with regard to whether the sale was lawful. The third issue was on which reliefs were the parties entitled to. He argued that the Tribunal departed from the main issue as to 8 whether the Appellants violated the terms of the Loan Agreement, which led to the sale. The Tribunal was supposed to direct itself on the loan and then sale, by not directing itself on the issue of loan, the Appellants felt that the issue was not thoroughly determined by the Court, while it was the main issue of the case. The learned counsel thus found the Judgment to be defective for failure to analyze the issue of loan, which preceded the sale of the house. He thus implored the Court to dismiss the appeal with costs. In rebuttal, Mr. Yuda Thadei, learned counsel for the Respondents, began by consolidating ground 1, 4, and 6 of Appeal as argued by the Appellants. He submitted that, the Appellants are the ones who filed the Appeal, however in their submissions they do not object to the issue of loan. When one looks at their prayers will note that they prayed for the DLHT to nullify the Sale Agreement. He referred the court to paragraph two (2) of their Land Application filed before the DLHT. He submitted that the counsel for the Appellants stated that they tendered w Shajara" which shows that that the Sale Agreement was signed on Good Friday. The said Shajara was never admitted in Court as shown in the Judgment. During their submissions, the Appellants also admitted that there was a Sale Agreement, however, in their evidence they never raised the issue of different dates. The issue of conflicting dates was clarified by 3 witnesses. There was a witness called by the Appellants themselves, PW4, who admitted to have signed the Loan Agreement and the Sale Agreement. The counsel for the Respondents argued that they questioned on the date of transaction, PW4 stated that it was a working day. Therefore, the date of 22nd April 2022 was not a public holiday as contended by the Appellants. The evidence of PW2 was that, 22nd April was a Great Thursday thus he emphasized to the Court that the issue of date should not detain the Court or used to nullify the Sale Agreement, that it was not there while the Appellants admitted what they did. The learned counsel thus implored the Court to consider the evidence of Omary Abdalla, the Magistrate who admitted to sign both Agreements, who stated that it was a working day; DW1 and DW2 admitted that it was a working day, DW1 said that it was a working day, DW1, said it was a human error. DW2 said he remembers it was a Great Thursday. It was their submission that since both parties agree on the existence of 9 the Sale Agreement then he prayed for this Court not to impeach the judgment. The learned counsel for the Respondent argued that the Appellants have stated that there was no any title passed on the sale between the 1st and 3rd Respondents on the ground that the Residential License was still in the name of the 1st Appellant. He contended that the sale was not in dispute between the Appellants and 3rd Respondent. He argued that was not an issue in dispute, however, the dispute was between the Appellants and the 1st and 2nd Respondents. The third Respondent was added as a necessary party. The issue of ownership was supposed to be discussed between the 1st and 2nd Appellants and the 1st and 2nd Respondents. There was no dispute that there was Sale Agreement. There is nowhere that they refused to receive money; there was consideration between parties. That means the Agreement had already been completed. Since the Agreement is on sale, title had already passed since the title was in the name of the Appellants and they don't dispute to receive money, the title immediately passed. The learned counsel disputed the case of Gloria Irira (supra) for being irrelevant. Failure to register land in their name should not be taken as a ground for nullifying sale since the property had already passed. With regard to ground no. 3, Mr. Yuda Thadei submitted that; the arguments that the chairman was never involved, does not nullify the transaction. He stated that the transaction started by way of a loan, they agreed that in the event they would fail to pay, they would add up money and sale the house. The Appellants defaulted and then it triggered sale. The Mtaa chairman was never involved since the stage of Loan Agreement. His absence in the transaction does not remove the validity of the loan agreement. As regards the arguments that the Respondents departed from their own pleadings, the 1st and 2nd Respondents Written Statements of Defence, there is nowhere the date has been mentioned of the Sale Agreement. However, what was said was that there was a Loan Agreement (Annexture ML1), there was also a Sale Transaction Agreement (ML2), as per these documents there is no where the Respondents have departed from the pleadings. The dates were similar io With regard to ground no. 6, the Appellants have stated that PW 4 was evasive; the learned counsel for the Respondents has submitted that the witness was not evasive but instead he guided the Court well. The witness stated he signed both contracts (loan and sale), that both contracts had his signature, and that he knew both Appellants. He further stated that he was called by the people of Forensic Bureau regarding the signatures and gave his cooperation. He could not remember what was the result. The witness stated that signatures were those of the Appellants. In the proceedings record, the Appellants were requested to take the Agreement to the Police Station and the DLHT allowed them, however, in their evidence, they never brought the evidence before the Court despite agreeing that they went for forensic signature identification. With regard to the additional grounds of appeal, the learned counsel for the Respondents proceeded to reply to ground no. 4 and 5 as follows; The learned counsel for the Appellants submitted that there was no Loan Agreement while the DLHT talked of the loan but there were only Affidavits. The learned counsel for the Respondents submitted that the issue is not title but contents of what is in the Affidavit. Parties have referred to the Sale Agreement; it will be a misnomer, if parties reject or deny their Agreements, they entered themselves being Affidavits, since they do not remove the validity of the contents therein constituting the Sale Agreement. He emphasized that there was a Loan and Sale Agreement. As to the issue of spousal consent, he argued that the same was complied with that's why both parties signed the Affidavits. Based on their Application, they admitted to have received the money (See para 6(e) and (f). It is clearly shown that they borrowed money from the 1st and 2nd Respondent and agreed to return the money. The Affidavit cannot replace or remove their liability. The record of the Court is correct on what it talks about the Sale Agreement, as that was the intention of the parties. With regard to the arguments of the Appellants that the Tribunal had to determine the issue of loan first before dealing with the ii sale, he stated that the issue of loan was not an issue before the Tribunal; the Appellants both admitted there was loan. It was not the jurisdiction of DLHT. It was not an issue taken to DLHT. The DLHT had to deal with the Sale Agreement. The Tribunal dealt with pleadings only and was bound by the pleadings. Regarding additional ground no. 4, the learned counsel submitted that the Appellants argued on additional ground no. 4 on issues, which were not before the Tribunal or departed from, by the Tribunal. The Appellants submitted that the Court erred to declare the first Respondent the owner instead of the Appellant. We submit that, being in the Certificate of Title is not conclusive that one is an owner of the land in the midst of a dispute. Therefore, it was an issue rightly to be determined by the DLHT. But it does not mean that it removes the ownership of the 1st Respondent. Further, the learned counsel for the Respondents argued that the learned counsel for the Appellants also submitted on the issue of the Sale Agreement. The DLHT admitted that there was a Sale Agreement based on the evidence tendered before the Tribunal. He argued that, the Tribunal was correct to decide, evaluate and determine issues before it. The additional issue of the loan Agreement, the DLHT had no jurisdiction to deal with it and parties had no issues with the loan. He prayed that the judgment of the Tribunal be upheld and the Appeal be dismissed with costs. In his rejoinder submissions, Mr. Galikano basically reiterated his submissions in chief. With regard to ground 1, 4, and 6 he emphasized that 22nd of April 2011 was a critical date and it is based on the evidence tendered by the Respondents. The evidence was tendered as KU1; ML2 indicating date 22nd April 2011, typed, however the signature date in handwritten print is 22nd April 2011, and the first page was typed. The learned counsel did not agree with the act of saying that it was a human error. He emphasized that it was evidence, which took precedence. His bringing of the Shajara was for the court to take judicial notice. The other side was supposed to bring evidence to the contrary instead of saying it was a working date. Therefore, he still emphasized that the Tribunal erred. 12 With regard to the issue of title he rejoined that the learned counsel for the Respondents submitted that title had passed that is the transaction from the Appellants to the 1st and 2nd Respondents. He submitted that with registered lands processes must be done. The act of the 1st Respondent to sell to the third Respondents was unlawful. There was no title to pass since he was not the original owner. He cited the case of Gloria Irira (supra) pg. 16. The words in the case are clear that; the one with no title cannot pass title. Therefore, it is not true that in law the property belongs to the 1st Respondent. With regard to ground no. 3 on the non involvement of the local Government Office, he stated that it was necessary for it to be done just like the same way they Appellants were applying for loan they went to the said office. They were still supposed to go back especially for properties with Residential Licenses as per section 23 of the Land Act. Regarding the issue of departure from the pleadings, he contended that the Sale Agreement entered on 22nd April 2011 was attached as exhibit ML2. The Respondents state that they did not state dates but brought annextures, which show 22nd April 2011 as the date of sale however, their witness stated that he signed on 21st April 2011, he thus departed from pleadings. He argued that there is contradiction of the dates, which they know is 22nd April 2011 With regard to ground no 6, the learned counsel for the Appellants contended that the Respondents submitted that the witness was not evasive, he rejoined that the witness was evasive, he identified signatures but evaded other questions on the date and amount he said he never remembered. He was questioned on why he signed on the public holiday he was never in support of the Appellants but Respondents. On the issue of forensic evidence, he argued that it was not part of evidence it was just mentioned; neither the Appellants nor the Respondents brought the evidence. It could not be criteria for solving the dispute. At the time of request both parties were informed to report to the police. The Respondents were not cooperating to take the signatures. The exercise was incomplete for a year. He concluded by praying that the Appeal be allowed. 13 Mr. Mhelela, the learned counsel for the Appellants also rejoined on the additional grounds of Appeal as follows; He disputed the issue of the Loan Agreement being titled as an Affidavit because those who prepared it did not know law. He stated that the documents were witnessed by the Magistrate who understood well between an Affidavit and Agreement. He is the one who witnessed the sale. The issue of not understanding the nature of the document should be dismissed. There is a big difference between the Affidavit and the Agreement. The issue for consideration is usually in the Agreement. What is available in the record of DLHT is Affidavit and not a contract. Lack of the agreement is fatal because it was a source of a dispute and that it is where the rights of the parties are. Parties agree that there was an Agreement but there was no copy submitted. It is a source of dispute to challenge it. With regard to the issue of the loan, it was submitted that it was material, in order to show that the Appellants defaulted or not, if you read the proceedings and judgments, the Appellants state that they paid money. The Loan Agreement could have proved it. Therefore, the issue of loan was supposed to be resolved at the Trial Tribunal. Lack of it raises serious question of all the transactions. He thus prayed for the Court to dismiss and set aside the judgment of the Tribunal and the Appeal be upheld. Having heard the relatively lengthy submissions of the learned counsel for the parties herein, in light of the record of Appeal before me, I am now called upon to determine whether this appeal is meritorious by considering the competing arguments made by the learned trained minds. Starting with the contention on the ground no. 1, 4 and 6 of Appeal. The Appellants advanced the following two key issues; the Sale Agreement being signed by the Respondents witness (PW4) on a public day, which was a holiday and not a working day and the suit property being sold by the person (Respondents) who did not 14 have title to pass it. The Respondents in their submissions denied the arguments by arguing that the Sale Agreement was entered on a working day and that the title of the landed property passed from the Appellants to the 1st and 2nd Respondents immediately after they had received consideration and when the Sale Agreement was effected. I have perused the Judgment and noted that; with regard to the issue of the date of the sale agreement being on a public holiday, the Appellants could not prove before the Tribunal that indeed the sale of the house was conducted on a public holiday. There was no any evidence tendered by any of the witnesses from the Appellants' side and admitted by the Tribunal to prove their assertion. The learned Advocate for the Appellants attempted to tender "Shajara" which he called a ''Catholic Schedule" to do the same after the closure of the evidence of the Appellants/Applicants. The same was denied by the counsel for the Respondents and consequently by the Tribunal. In rejecting the document, the learned counsel for the Respondents stated in the proceedings; "Document anayoirejea hajawahi kuitoa kama kielelezo na zaidi amefunga ushahidi wake. Hii siyo procedure" The Tribunal following the objection by the Counsel for the Respondents also denied the same to be admitted. It stated; "Nimepokea Maombi kutoka kwa Wakili Galikano baada ya kufunga ushahidi upande wa Mdai na katoa Catholic Calender ya 2011(shajala), hata hivyo kwa kuwa Mdai amefunga upande wake napanga tarehe ya utetezi na sio maamuzi ya Public holiday" Further in the Judgement, the Tribunal also stated as follows on page 4 1st paragraph; "Baada ya hapo Wakili Galikano alifunga kesi upande wao. Na kabla ya kuanza utetezi Wakili Galikano alileta shajala ya Kanisa Katoliki 15 kuonyesha tarehe na siku kwa mwaka huo wa mauziano2011, lakini si ushahidi." Therefore, based on those extracts from the proceedings and the Judgement, I am of the firm position that the issue of proof of the date of sale being a public holiday attempted to be supported by a copy of the Catholic Calendar (Shajala) was denied before the Tribunal and that it can not be raised again at this juncture as an afterthought. The arguments by the Appellants under section 159 of the Evidence Act Cap 6 Re 2019 are also not relevant under the circumstances of this case and so is the case of Swahiba Ibrahim Shaha (supra) cited by the Appellants. Similarly, ground 6 of Appeal which refers to the Agreement being signed on a public holiday is also denied based on the analysis above. With regard to the issue of the 1st and 2nd Respondents selling the property while they did not have title to pass, I have gone through the court records and observed that the Appellants borrowed some money from the 1st and 2nd Respondents. In their Application to the Tribunal they have stated that they borrowed only TZS 5,000,000, with an interest of TZS 2,500,000, payable within one month. That they paid part payment of the loan through mobile phone not within the time agreed upon then they finished paying the balance using the rent proceeds. The Appellants further agreed that upon failure to pay the loan, their mortgaged house would be sold. Despite discharging the loan over and above, the 1st and 2nd Respondents proceeded to sale their house to the 3rd Respondent. An act they termed as illegal and unacceptable. Hence, they filed the case before the DLHT so that they could be declared the lawful owners since the 1st and 2nd Respondents had no right to sale the house. The Applicants/ Appellants attached a copy of annexture B in their Application, which is a Loan Agreement indicating that the 1st Appellant borrowed and received TZS 7,800,000 from the 1st and 2nd Respondents and agreed to pay back the money on 25th April 20211 and that failure to pay the loan would entitle the 1st and 2nd Respondents to purchase the house upon payment of TZS 15,000,000. 16 I have also perused the record of the Proceedings where the 1st and 2nd Respondents tendered documents showing that they granted a loan amounting TZS 13,000,000 to the Appellants and upon failure to repay the loan they were supposed to add up TZS 2,000,000 extra, so that the House, which was mortgaged as a collateral could become the property of the 1st and 2nd Respondents. The lenders, i.e. the 1st and 2nd Respondents tendered exhibit Kill and KU2 to prove the same. The Appellants never objected to the sale documents. They were all admitted as Exhibits in Court and formed part of the evidence of the Respondents. In the Sale Agreement, the 1st Appellant undertook to assist the 1st and 2nd Respondents to change the title before the Office of the Commissioner for Lands. The House was finally sold following their failure to repay the loan. Thereafter, the 1st and 2nd Respondents proceeded to sale the House to the 3rd Respondent because the property had already been sold to them legally and consideration had already been paid. I thus agree with the submissions by the counsel for the Respondents that the sale was not in dispute between the Appellants and 1st and 2nd Respondents. The third Respondent was added as a necessary party. The issue of ownership was supposed to be discussed between the 1st and 2nd Appellants and the 1st and 2nd Respondents in the first place. Similarly, there was no dispute that there was a Sale Agreement. There is nowhere that the Appellants have denied to have received money lent or advanced or granted to them by way of a loan by the 1st Respondent therefore there was indeed consideration between the parties from the moment they received the money. Therefore, title had already passed since the Appellants have not disputed to have received money as consideration, the title immediately passed as argued by the Respondents. What was pending was the administrative action of effecting the change, which was supposed to be facilitated by the Appellants as per the terms of the Sale Agreement. Thus, failure to register land in the name of the third Respondent should not be taken as a ground for nullifying the sale since consideration had already been paid and not in dispute and the property had already passed regardless of the fact that the final process of registration had not yet been done. The Appellants could not have 17 both, the house and loan amount belonging to them. Further, the assertions that the Appellants repaid the loan, was not proved by any physical evidence apart from mere assertions, no phone records were attached in the pleadings or tendered in court. Similarly, the tenant who is said to have paid rent proceeds to the Respondents to foot the loan amount was also not paraded as a witness in the Tribunal. Similarly, the Appellants have contended that the Tribunal erred in law in not declaring them as the owners of the property in Dispute while the records before the Tribunal indicated that the Residential Licence was in the name of the 1st Appellant. On this ground, I agree with the submissions by the learned counsel for the Respondents that before the Tribunal the Appellants filed an Application to be declared the lawful owners of the property in dispute. However, they could not provide proof of ownership and their focus was on whether the Sale Agreement was valid. They thus failed to discharge their burden as per section 110, 111 and 112 of the Evidence Act Cap 6 RE 2019. Thus, they cannot be allowed to complain about the fact that title did not pass at this juncture. In view of the foregoing, I am inclined to agree with the submissions by the Counsel for the Respondents that, ground 1,4 and 6 of Appeal have no merit. They are hereby dismissed. I now move to ground no. 2, 3 and 5 of Appeal, which essentially challenge the Sale Agreement and evidence tendered by the Respondents before the Tribunal; The Appellants contended that the house was sold without involving PW3 who was the Mtaa Chairman; therefore, the sale was null and void. That the Tribunal erred in believing the story of the Respondents on the alleged sale agreement while the Appellants had totally denied it and was not aware of it and the Respondents had contradicted themselves and that the Chairman of the Tribunal did not analyze the date of sale and that the evidence of PW 4 who turned hostile should be discredited since he was not consistent on his evidence. 18 In dealing with this issue, I find it pertinent to determine the issue that was raised by the Appellants of denying their handwriting signatures on the said Sale Agreement. The Appellants denied to have signed on the Sale Agreement. On the other hand, the Respondents adduced evidence to the effect that, the Appellants borrowed TZS 13,000,000/= from the 1st and 2nd Respondents and placed their house as a security for the loan. Then later on when they had defaulted to pay the said loan, they consented to sale their house to the 1st and 2nd Respondents for TZS 15,000,000, which was paid by the latter by adding up an amount of TZS 2000,000 to the already advanced loan of TZS 13,000,000. Further with regard to the said signatures appended on the alleged Sale Agreement, the Respondents also stated during hearing that the Appellants reported the matter of their alleged forged signatures to the Police -Forensic Bureau to seek opinion from the handwriting expert, however they never got any results. It is my firm position that, this issue was raised before the Tribunal by the Appellants themselves whereby they pursued the matter to the Forensic Bureau to seek for its investigation in order to establish whether the handwriting contained in Sale Agreement was that of the Appellants. The Criminal investigation Department Forensic Bureau at Dar es salaam carried out its investigation and issued results that the handwriting and signatures in the Sale Agreement were indeed those of the Appellants as the specimen matched. These results were not tendered by the Appellants before the Tribunal as evidence. This begs the question as to why the Appellants never tendered the results Report before the Tribunal. This Court like the Tribunal also takes negative inference against the conduct of the Appellants and holds that they were indeed parties to the said Sale Agreement and were very much aware of it. In failing to tender the Report as evidence the Appellants have denied this court the opportunity and the expert material sufficient for it to determine the issue of handwriting apart from taking a negative inference from their conduct. I refer to page 6 of the Judgement of the Tribunal to concretize my position, where the Chairman analyzed this issue as follows; Kwa kiini cha pili kuhusu M kata ba wa mauziano kati ya wadaiwa yaani uhalali wao, kwa uso wa nyaraka KU1 M kata ba wa Mauziano, naona ni kati 19 ya mdai na wadaiwa Na. 1 na Na. 2 ila wadai wamelalamika kwamba hizo saini si zao na Mkataba wa mauziano si halali, katika hili wadai wangepaswa kwenda wa wataalam wa maandishi ili walete uthibitisho wa uhalalo wa mkataba ambapo naona wakili wa wadai alileta nyaraka za nyongeza kutoka Polisi kwa wataalam wa vidole lakini wadai hawakutoa taarifa hiyo kuwa ushahidi. Kwa kuegemea maamuzi ya kesi ya Hemed Said Vs. Mohamed Mbilu (1984) TLR 113 wadai wangepaswa kuleta ushahidi wataalam wa maandishi na vidole kutoka polisi ili wathibitishe kwamba hati ya mauziano ya nyumba kati ya wadai na wadaiwa Na. 1 na 2 ni halali au la. Lakini hawakuleta ushahidi hivyo, basi Baraza hili linachukua dhana kwamba kama usahidi ungeletwa ungekuwa kinyume na maslahi ya wadai. The trial tribunal Chairman went on to state that; Kwa kuwa sina ushahidi wa kitaalam kupinga uhalali wa nyaraka/Hati ya Mauziano na kwakuwa shahidi wa wadai aloshuhudia mauzo haya SM4 ambaye ni Hakimu ametambua mauziano kati yao na kwamba wadaiwa Na. 1. Na. 2 walinunua toka kwa wadai basi kiini cha pili kinajibiwa kwa chanya, kwamba mauzo kati ya wadai na wadaiwa Na. 1 and Na. 2 ni halali. Nikiangalia pia vipengele vya uhalali wa mkataba kama tunavyoongozwa na kifungu cha 10 cha sheria ya mkataba 'law of Contract ” naona kielelezo KU1 ni halali na kinakidhi vigezo vya kifungu cha 10 cha sheria ya Mkataba. Further, PW4 who was also called by the Appellants testified before the Tribunal that he witnessed the sale agreement following failure by the Appellants to repay the loan. See page 4 Para 1 of the Judgement of the Tribunal, which is reproduced herein below; Shahidi mwingine alikuwa Bw. Omary Mohamed 20 Abdallah akiwa ni SM 4 amesema kwenye Baraza hili kwamba yeye ni Hakimu wa Mahakama ya Mwanzo Magomeni ambapo wadai walikopa fedha kwa mdaiwa na. 1 na walipeana muda wa kurudisha fedha hizo na kwamba wakishindwa wataongezewa kiasi fulani cha fedha ili wadai wawe wameuza na ndicho kilichotokea na kwamba SM 4 alishuhudia viapo vya kukopa fedha kwa mdaiwa na 1 na baadaye kusaini hati ya kuuza nyumba kwani wadaiwa walishindwa kulipa deni. SM4 amesema zaidi kwamba wataalam wa FORENSIC walikuja kupima vidole na mwandiko lakini hafahamu majibu yake.... In this regard I also distinguish the case of Gloria Irira Vs Sudi Mrisho (supra) and the case of Mohamed versus Fatma Abdalla (supra) cited by the Appellants as they sold the house in dispute and consideration was effected. The Appellants having sold the house they cannot turn back against their own actions. With regard to the issue of ownership, there have been arguments relating to the fact that the said suit property was registered and it had a Residential License number ILA O22558.The Appellants have submitted that the said Licence has not been changed it still bears their names therefore they are still the lawful owners. The respondents while they have acknowledged that title has not changed from the Appellants names, they have argued and emphasized on the fact that there was unequivocal consideration and that sale was effected. I have perused the proceedings records and observed that the 1st and 2nd Appellants in their evidence before the Court made reference to the said Residential License however, they never tendered it as evidence before the Court. The Law of Evidence Act requires a person who asserts a right to prove it. See section 110,111 and 112 of the Evidence Act, Cap 6 RE 2019. Since the Appellants were the ones who prayed to be declared the lawful owners of the House no. 395, located at Tabata Street, Tabata Ward, Ilala Municipality, Dar es salaam they were duty bound to provide proof to the Tribunal, something which they did not. The Tribunal in its Judgement on page 6 stated that and I quote: 21