final LEONARD PROSPER SHAYO vs EMANUEL LETOO LAIZER AND 4 OTHERS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI SUB REGISTRY

AT MOSHI LAND APPEAL NO. 56 OF 2023 (Originating from Land Application No. 71 of 2020 of the District Land and Housing Tribunal of Moshi) LEONARD PROTAS SHAYO …………...…………….……... APPELLANT

VERSUS EMMANUEL LETOO LAIZAR ….….……………...……. 1st RESPONDENT MICHAEL EMMANUEL LAIZAR ………………………. 2nd RESPONDENT OMBENI RICHARD MREMA …………………………. 3rd RESPONDENT PAUL DANIEL MOLLEL ………………………….…… 4th RESPONDENT LAMEK MICHAEL MMANGA ……………………….… 5th RESPONDENT

JUDGMENT 18/06/2024 & 02/07/2024 SIMFUKWE, J. 1 This is an appeal against the judgment and decree of the District Land and Housing Tribunal of Moshi (herein referred as the trial tribunal) in Land Application No. 71 of 2020, delivered on 1st August 2020. The background prompting this appeal is that the appellant sued the respondents before the trial tribunal, seeking among other reliefs, a declaration that he is the lawful owner of the suit land measuring 140 X 74 located at Mtakuja village, Mabogini Ward in Moshi District. The appellant alleged that he purchased the said suit land from one Ezekiel Lengolong Mollel on 12th May 2015 for TZS 3,600,000/=. In 2018, when he visited the suit land, he found that it had been invaded by the 3rd respondent who alleged that he had purchased it from the 2nd respondent. On the other hand, the 1st respondent alleged that before 2012, the suit land belonged to Pastor Ezekiel Lengolo, who sold it to him on 14th March 2012, for TZS 7,000,000/=. He paid TZS 3,200,000/= cash and gave him his car worth TZS 3,800,000/= to satisfy the remaining amount. Then, the 1st respondent used the suit land for agriculture and kraal of his livestock. Later, he gave it to his son, the 2nd respondent. The, 2nd respondent sold the suit land to the 3rd respondent, who owned it until 2016 when this dispute arose. 2 The trial tribunal, upon full trial of the

application, declared the 3rd respondent as the lawful owner of the suit land and ordered the appellant to vacate the suit land immediately. Aggrieved by the decision, the appellant lodged the instant appeal challenging the trial tribunal's decision, on two grounds: 1. That, the learned Trial Chairman of the tribunal erred both in fact and in law when failed to properly asses, examine and evaluate the evidence brought before him which led to erroneous decision.

2. That, the Trial Tribunal’s proceeding is tainted with illegalities which are incurably fatal on the eyes of the law. The appellant prayed for the court’s order to nullify the proceedings and quash the judgment and all orders of the trial tribunal. The appeal was heard by way of written submissions, whereby both parties were duly represented. The appellant enjoyed the service of Mr. Gideon Mushi, learned counsel, whereas the respondents were represented by Mr. Erasto Kamani, learned counsel. 3 In support of this appeal, the learned counsel for the appellant commenced with the first ground of appeal. He submitted that it is trite principle of law that the Court is duty-bound to receive evidence brought by the parties together with their respective witnesses, assess the credibility of each witness, and then make a finding on the contested facts in issue. To buttress his argument, the learned counsel referred to the case of Stanslaus Rugaba Kasusura and A.G. v. Phares Kabuye [1983] TLR 334 which held that: “The trial Judge should have evaluated the evidence adduced from the parties together with their respective witnesses, assess the credibility of each of the witness, and make a finding on the contested facts in issue.” Mr. Gideon continued to submit that, it is a trite principle of law that, once the lower court fails to properly assess and analyze the evidence adduced during

the trial, the higher court will step into the shoes of the lower court re-assess and re-evaluate the said evidence and come up with its own findings. To strengthen his assertion, the learned counsel cited the case of 4 Deemay Daati and 2 others vs Republic [2005] TLR 132, where it was held that: “Where the lower court failed to properly analyze and assess the evidence from both parties, the higher court shall jump into the shoes of the lower court, re-assess and re-evaluate the said evidence and come up with its own findings.” He explained that, once the parties and their respective witnesses adduce their evidence before the court, the presiding Magistrate, Chairman, or Judge should make a verdict based on evidence presented during the trial and not otherwise. In support his observation, he cited the case of Nkungu vs. Mohamed [1984] TLR 46. Moreover, Mr. Gideon referred to section 110 of the Tanzania Evidence Act Cap. 6 R.E. 2019, which stipulates that the standard of proof in civil cases shall be on balance of probabilities. That, the party with stronger evidence compared to the other should be the one who wins the case. He 5 referred to the case of Hemedi Said vs. Mohamed Mbilu [1984] TLR 113, where it was held that: “According to the law, both parties to a suit cannot tie but the person whose evidence is heavier than that of the other, is the one who must win. In measuring

the weight of evidence, it is not the number of witnesses that counts most, but the quality of evidence.” In the present matter, Mr. Gideon stated that the appellant called five witnesses, namely: Leonard Protas Shayo (SM1), Juma Abdas Issa (SM2), Avit Stephano Shayo (SM3), Getruda Leonard Protas Shayo (SM4), and Parmet Nairugwa (SM5). All witnesses confirmed before the trial Tribunal that the appellant purchased the suit land. He observed that the number of witnesses is not what matters; rather, it is the quality of evidence adduced and the credibility of each witness, as shown in the cases of Yohanis Msigwa vs R [1990] TLR 148 and Hassan Juma Kanenyera vs R [1992] TLR 100. The learned counsel was of the view that evidence on the appellant's side was strong, consistent, and credible compared to the weak and contradictory evidence presented by the respondents. 6 Elaborating the appellant's evidence, Mr. Gideon submitted that the appellant, who testified as SM1 before the trial Tribunal, affirmed that on 12/5/2015, he purchased land from one Ezekiel Lengolong Mollel located at Mtakuja Village, Mabogini Ward, Moshi District, measuring 140×74 meters. The sale was witnessed by the Village Executive Officer, who confirmed that the seller was the owner of the said land. One of the witnesses to the sale was the 1st respondent, who witnessed the sale in four capacities: as a Seller’s

witness, a Buyer’s witness, a child and/or uncle (nephew) of the seller (Ezekiel Lengolong Mollel), and as a Member of the Village Council (Mjumbe wa eneo). The Sale Agreement was admitted before the trial Tribunal as Exhibit A1. The learned counsel insisted that the confirmation made by the Village Executive Officer (VEO) and the child/uncle of the seller, who is the 1st respondent herein, made the Appellant to believe that the sole owner of the suit land was Ezekiel Lengolong Mollel and nobody else. Mr. Gideon opined that if there was any other owner, the Village Executive Officer would have revealed it to the Appellant. He contended that the appellant is a bona fide purchaser for value. Explaining further, Mr. Gideon cited the case of Suzana 7 S. Waryoba vs Shija Dalawa, Civil Appeal No. 44/2017, Court of Appeal of Tanzania at Mwanza (Unreported), which defined a bona fide purchaser at page 5 of the judgment. In addition, the learned counsel referred to Oxford Scholarship Online, which defines a bona fide purchaser as follows: “A Bona fide purchaser is someone who purchases something in good faith, believing that he/she has clear rights of ownership after the purchase and having no reason to think otherwise. In situations where a seller behaves fraudulently, the bonafide purchaser is not responsible. Someone with conflicting claim to the property under discussion would need

to take it up with the seller, not the purchaser, and the purchaser would be allowed to retain the property.” (Emphasize underlined). Another reference was made to the case of Stanley Kalama Masiki vs. Chihiyo Kuisia w/o Nderingo Ngomuo [1981] TLR 144, in which it was resolved that a bona fide purchaser for value was entitled to a declaration that he was the lawful owner of the suit plot. The court held as follows: 8 “Where an innocent purchaser for value has gone into occupation and effected substantial development on land the courts should be slow to disturb such a purchaser and would desist from reviving stale claims.” Mr. Gideon continued to subscribe to the case of Suzana S. Waryoba v. Shija Dalawa (supra) at page 6 where it was stated inter alia that: “….. The respondent was certainly a bona fide purchaser for value; that is, one who received the land in good faith and without knowledge of any fraud.” The learned counsel faulted the reason advanced by the trial Chairman that Exh. D1 was witnessed by the wife of the seller as opposed to Exh. A1. He observed that such a reason does not hold any water since it is not disputed that the appellant purchased the suit land. As a result, the said reason doesn’t any how invalidate the Sale Agreement between the Appellant and Ezekiel Lengolong Mollel (exhibit A1). He distinguished the cases cited by the Learned trial Chairman on

allegation that, since the circumstances which underlie the said cases are totally different with the matter before the trial Tribunal. He asserted that, each case should be determined on its own merit. 9 According to Mr. Gideon’s observation if the 1st respondent knew that, the suit land was previously sold, he should have told the appellant and not witness the Sale Agreement of the same land between the appellant and Ezekiel Lengolong. Regarding the second ground of appeal, Mr. Gideon argued that the anomalies underlying the proceedings and judgment of the trial Tribunal stem from the fact that the matter before the Trial Tribunal commenced on 24/4/2020 before Hon. P.J. Makwandi – Chairman, who presided over the trial until on 11/7/2022, when it was transferred and presided over by Hon. J. Kanyerinyeri – Chairman. He lamented that no reason was advanced to explain why the matter was transferred from Hon. P.J. Makwandi – Chairman to Hon. J. Kanyerinyeri – Chairman, who took over the case until 12/8/2022, when it was further transferred and presided over by Hon. R. Mtei – Chairman to its finality. It was argued further that, at page 35 of the typed proceedings and the Coram of 12/8/2022, Hon. R. Mtei – Chairman, advanced reason for transferring the said case from Hon. P.J. Makwandi – Chairman to him but did not provide any reason as to how and why the case was transferred to

him from Hon. J. Kanyerinyeri – Chairman, who was the 10 last Chairman presiding over the case after Hon. P.J. Makwandi – Chairman, which is contrary to the law. To strengthen his assertion, the learned counsel referred to Order XVIII Rule 10 (1) of the Civil Procedure Code Cap. 33 R.E. 2019, which provides that: “10(1) Where a judge or magistrate is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum has been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it.” The learned counsel cited the cases of Mariam Samburo (Legal Personal Representative of the late Ramadhan Abas) vs. Masoud Mohamed Joshi and 2 others, Civil Appeal No. 109/2016, Court of Appeal of Tanzania at Dar es Salaam (Unreported) and Ms Georges Centre Ltd vs The Honorable Attorney General and Tanzania National Road Agency, Civil Appeal No. 29/2016, Court of Appeal of Tanzania, Mwanza (Unreported) which held that: 11 “…the one who sees and hears the witness is in the best position to assess the witness’s credibility. Credibility of witnesses which has to be assessed is very crucial in the determination of any case before a court of law. Furthermore, integrity

of judicial proceedings hingers on transparency. Where there is no transparency justice may be compromised.” In the case of Ms George Centre Ltd (supra), the Court vitiated all proceedings conducted by the Successor Judge, including the judgment and decree, and remitted the proceedings to the High Court for continuation of the trial in accordance with the law. Also, the learned counsel cited the case of Kajoka Masanga vs A.G. and Principal Secretary Establishment, Civil Appeal No. 153/2016, Court of Appeal of Tanzania at Mwanza (Unreported), which at page 6 held that: “In the present case, the Successor Judge also took over the continuation of the trial by continuing to receive the evidence of PW1 without recording any reason why the case landed on his lap. We find this irregular and as we noted in 12 Ms. Georges Centre’s case, this was highly prejudicial. Those proceedings by the Successor Judge cannot be spared.” In that regard, the learned advocate averred that in this case, no reason was availed before the trial tribunal regarding the said transfers, which renders the entire proceedings and judgment of the trial tribunal a nullity. As a result, this anomaly makes the proceedings and judgment of the trial tribunal invalid. He prayed for the court to allow this ground. Based on his submission, Mr. Gideon prayed the court to allow this appeal with costs. In reply, Mr. Kamani

disputed the grounds of appeal vehemently. Contesting the first ground of appeal, the learned advocate submitted that typed copy of judgment of the trial tribunal show clearly that the trial Chairman examined evidence adduced by the parties, assessed it and properly evaluated it from page 6 to 8 of the judgment. He found that Ezekiel Lengolong Mollel (seller) sold the suit land twice: on 14/03/2012 he sold it to the 1st respondent and on 12/05/2015, three years later, he resold it to 13 the appellant. In the circumstances, the learned counsel was settled that the issue for determination was who had acquired good title or interest in that land between the appellant and the 1st respondent. In resolving that issue, the trial chairman applied the priority principle, which states that: “when there are two or more parties competing over the same interest, especially in land, each claiming to have title over it, the party who acquired it earlier in point of time is deemed to have a better or superior interest over the latter.” It was concluded that since the first respondent acquired the suit land earlier, he had a better or superior interest in the suit land than the appellant. Responding to the argument that the appellant’s sale agreement was witnessed by the Village Executive Officer and the son/uncle of the seller, and that the trial Chairman ought to regard the appellant as a

bona fide purchaser for value; Mr. Kamani submitted that the cited cases of Suzan S. Waryoba and Stanley Kalama (supra), are distinguishable from the present case. He said that according to the nature of this case, the principle of bona fide purchaser cannot apply. Unlike in the cited cases, the claimant was only one, while in the present matter, there were two parties competing 14 over the same interest in the suit land. Each of them claiming to have good title over that land. Their claims based on a sale agreement which each of them had executed with the seller one Ezekiel Lengolong Mollel on different dates. Another factor which made Mr. Kamani distinguish the cited cases was that the sellers had good title or interest which they passed to the buyers while in the case at hand, the buyer Ezekiel Mollel (the seller) having sold the suit land to the first respondent in 2012, in 2015 he had no good title to pass to the appellant. Mr. Kamani made it clear that if two or more parties are competing over the same interest, especially in land, each claiming to have a good title which he acquired by purchasing that land, the court's practice has been to apply the priority principle to determine which party has a better or superior interest in the suit property. He supported his argument with the case of Merchiades John Mwenda vs. Gizelle Mbaga (Administrator of Estate of the Late

Joseph Mbaga) & 2 Others, Civil Appeal No. 57 of 2018, in which the Court of Appeal at page 22 stated that: 15 “Flowing from the above, we are satisfied that when the appellant and John Josephat Mbaga executed the sale agreement (Exh. P3) between them on 19/11/2007, title passed from the latter to the former.... Thus, in 2009 when the said John Joseph Mbaga purported to sell the disputed land to the second respondent, he had no good title to pass to him.” That, at page 25 the Court stated that: “In view of the above, we think the trial court having found that John Joseph Mbaga sold the disputed land to both the appellant and second respondent, it should have found that the appellant was the first buyer and that John Joseph Mbaga (the seller) had no good title to pass to the second respondent.” Mr. Kamani insisted that in the present case, when Ezekiel Lengolong Mollel and the first respondent executed a sale agreement on 14/03/2012, title or interest in the suit land passed from Ezekiel Mollel to the first respondent. 16 Thus, on 12/05/2015, when Ezekiel Mollel purported to sell the suit land to the appellant, he had no valid title or interest to pass to the appellant. Reference was made to the case of Ombeni Kimaro vs. Joseph Mishili t/a Catholic Charismatic Renewal, Civil Appeal No. 33 of 2017 (unreported), in which the Court of Appeal of Tanzania at page 16 held that: “In

case of double allocation of land, even when it is occasioned by an authority or a person with legal mandate to allocate or transfer the land, the law is that the authority or transferor would have no title to pass to a subsequent grantee or transferee by the application of the priority principle. The priority principle is to the effect that when there are two or more parties competing over the same interest especially in land each claiming to have title over it, a party who acquired it earlier in point of time will be deemed to have a better or superior interest over the latter.” Mr. Kamani continued to insist that since there were two parties competing over the same interest in the suit land based on the sale agreement, the 17 proper principle to be applied to determine which party has a better or superior interest in the suit land was the priority principle and not the bona fide purchaser principle. In the circumstances, the learned counsel for the respondent endorsed the findings of the trial tribunal. Submitting against the second ground of appeal, Mr. Kamani argued that no case was transferred from Makwandi to Kanyerinyeri on 11/7/2022 or any other date. Thus, the allegation was misconceived. As reflected at page 34 and 35 of the proceedings of the trial tribunal, the case was placed before Hon. Kanyerinyeri on 11/07/2022 and 20/07/2022 just for the purpose of adjourning

the case and not otherwise. It is apparent at pages 9 to 31 of the proceedings that the trial in this case was conducted by Hon. Makwandi and taken over by Hon. R. Mtei from pages 35 to 55. Hon. Mtei assigned reasons for taking over the case. Mr. Kamani stressed that Order XVIII Rule 10(1) of the Civil Procedure Code (supra) and all the cases cited by the appellant’s counsel are not relevant to this case and are misconceived. He argued that the said order is invoked when a successor judge or magistrate is dealing with evidence or a memorandum taken down by another judge or magistrate who has been prevented from concluding the trial of the suit due 18 to death, transfer, or other causes. He emphasized that Honourable Kanyerinyeri did not take any evidence and he did not see or hear any witness. Mr. Kamani subscribed to the case of Ms. Georges Center Ltd (supra), in which the Court specified that the one who sees and hears the witness is in the best position to assess the witness's credibility. Also, the learned counsel distinguished the case of Kajaka Masanga (supra) by arguing that the court was explaining about the judge who had taken over the continuation of the trial by continuing to receive evidence without recording any reason. The case of Mariam Samburo v. Masoud Mohamed Joshi and 2 Others was also distinguished by stating that the case was dealing with cases where the

successor judge had taken over the partly heard case. Thus, the said cases are not relevant and the allegations that the tribunal’s proceedings are tainted with illegalities is baseless and unfounded. In conclusion, the learned advocate for the respondents was of the opinion that the appeal should be dismissed with costs. 19 From the grounds of appeal and submissions of the learned counsels, it may be noted that, on the first ground of appeal, the appellant is aggrieved with the evaluation of evidence which was done by the trial Tribunal. This being the first appellate Court, in case the trial Tribunal erred in its evaluation of evidence, the remedy is for this Court to re-evaluate the whole evidence on record. Thus, the issue for determination is whether the trial Tribunal erred in its evaluation of evidence adduced before it. As per the records, it is undisputed fact that the original owner of the disputed land was Ezekiel Lengolong Mollel. According to the appellant's evidence presented before the trial tribunal, he purchased the said land on 12/05/2015 from Ezekiel Lengolong Mollel as per the sale agreement. That, the suit land was trespassed in 2018. On the other hand, the 1st respondent testified that he purchased the said land from Ezekiel Lengolong Mollel on 14/03/2012. He tendered the sale agreement to support his evidence and stated that he handed over the said land

to his son, the 2nd respondent. Then, the 2nd respondent sold it to the 3rd respondent, Ombeni Richard Mrema. 20 While resolving the same issue, at page 6 of the judgment the trial Chairman stated that: “Aidha kwa ushahidi huo ni dhahiri Kwamba kuna mikataba miwili (2) inayohusu ununuzi wa eneo hilo, yaani mkataba wa tarehe 12/05/2015 alitoa Mwombaji na mkataba wa tarehe 14/03/2012 uliowasilishwa na Mjibu maombi wa kwanza. Kwa ushahidi huo basi mkataba wa kwanza kufanyika ni mkataba uliofanyika tarehe 14/03/2012 kabla ya uliofanyika mwaka 2015. Aidha ni Kanuni ya kisheria kwamba mtu wa kwanza kuwepo kwenye eneo lolote linalobishaniwa umiliki basi sheria inachukulia kwamba mtu huyo wa kwanza ndiye mwenye uhalali wa umiliki wa eneo hilo bishaniwa. Kanuni hii ya kisheria hujulikana kama “priority principle”. Na kanuni hii ya kisheria ilielezwa na Mahakama ya Rufaa Tanzania kwenye kesi ya Joachim Ndelembi vs Maulid M. Mshindo and 2 Others…” At page 7 the learned Chairman added that: 21 “Aidha kwa upande mwingine mkataba uliofanyika mwaka 2012 umeonesha kuwa na uhalali zaidi kwani ulisainiwa na mke wa mnunuzi wa gari (Ezekiel Mollel) kwa mabadilishano na eneo la mgogoro…. Hii ni tofauti na mkataba wa mwaka 2015 (kielelezo P1) ambako hakuna kokote inaonekana mkataba huo kushuhudiwa na mke wa Ezekiel Mollel…” From the above findings, Mr. Gideon submitted that evidence of the

appellant was not properly evaluated. His main argument was that the appellant's sale agreement was witnessed by the Village Executive Officer and the child/uncle of the seller. He centered his argument on the ground that if there was any other owner, the Village Executive Officer would have revealed this to the appellant. With all due respect to Mr. Gideon, I subscribe to the findings of the Trial Tribunal for the following reasons: First, as rightly decided by the learned Chairman and as rightly submitted by Mr. Kamani, it is a principle of law that when there are two or more parties competing over the same land, the party who acquired such land earlier in point of time under the priority principle, 22 will be deemed to have a better interest. See: Merchiades John Mwenda (supra) and Ombeni Kimaro (supra). In the instant matter, since the 1st respondent acquired the disputed land in 2012, earlier than the appellant, it goes without saying that the 1st respondent is deemed to have a better interest compared to the appellant, who alleges to have acquired the said land in 2015. The allegation that the appellant's sale agreement was genuine solely because it was witnessed by the Village Executive Officer is baseless for two reasons. First, as found by the trial Chairman, the 1st respondent's sale agreement was witnessed by the wife of the original owner (Ezekiel Mollel), and it is

a principle of law that the one who acquired the land earlier has a better title. This adds credibility to the evidence tendered by the first respondent. The second reason is that evidence of SM2 Juma Abdas Issa, the Village Executive Officer, contradicts the evidence of one of the witnesses of the appellant. At page 23, during cross-examination, SM2 admitted that on the fateful date he did not go to the said land, which was sold to the appellant and never saw it. Whereas at page 27 of the trial Tribunal’s proceedings, SM3 stated that he met the Village Executive Officer one Musa 23 at the said land. This contradictory piece of evidence questions the credibility of the appellant’s evidence on the acquisition of the said property. From the above findings, as the first appellate court, it is my observation that the trial tribunal properly evaluated the evidence presented before it. Thus, the first ground of appeal lacks merit. Regarding the second ground of appeal, Mr. Gideon contended that at the trial tribunal, this matter was transferred to Honorable Kanyerinyeri without any reason being assigned for that transfer. On the other hand, Mr. Kamani strongly disputed the allegation, submitting that no case was transferred from Makwandi to Kanyerinyeri on July 11, 2022, or on any other date. Based on the above arguments, I have reviewed the records of the trial tribunal particularly

at pages 34 and 35 of the proceedings. On 11th July 2022 and 20th July 2022, the matter was before Honorable J. Kanyerinyeri for adjournment. Honorable Kanyerinyeri adjourned the matter twice. The records reveal further that on 12th August 2022, the matter was before Honorable R. Mtei, who before proceeding with the hearing stated as follows: 24 “Baraza: Shauri hili lilikuwa mbele ya Mhe P. Makwandi, Mwenyekiti ambaye kwa sasa amehamishwa kikazi kwenda katika Baraza la Ardhi na Nyumba la Wilaya ya Bukoba. Kwa sababu hizo nitaendelea nausikilizaji wa Shauri hili.” From the above extract of the proceedings of the trial tribunal, the record is very clear that after the transfer of Honorable Makwandi, the case was assigned to Honorable R. Mtei, who proceeded with trial of the matter to its finality. In taking over the trial, Honourable Mtei gave reasons for the re- assignment of the matter, as can be seen in the extract hereinabove. With all due respect to Mr. Gideon, Order XVIII Rule 10(1) of the CPC is not relevant as the matter was not transferred to Honourable Kanyerinyeri and he never presided over the matter rather than adjourning it twice. Moreover, the case of Georges Centre Ltd vs. Honorable Attorney General and the case of Kajaka Masanga vs. AG and Principal Secretary, referred by Mr. Gideon, are distinguishable to this matter since the record clearly shows that Honourable Kanyerinyeri did not proceed with the trial of the matter. 25 In the premises, I find that the decision of the trial tribunal was justified. Consequently, I dismiss this appeal in its entirety with costs. It is so ordered. Dated and delivered at Moshi this 2nd July 2024. X S. H. SIMFUKWE

JUDGE Signed by: S. H. SIMFUKWE 02/07/2024 26 27