Maginya Subi Kulwa

The Judiciary of Tanzania IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA LAND APPEAL NO. 26629 /2024 MAGINYA SUBI KULWA ............................................................... APPEALLANT Versus RUBEN IKOMELA (Administrator of the Estate of the Late Nkamba Kitange Nyanza) ........................................ RESPONDENT (Originating from the decision of the District Land and Housing Tribunal for Maswa at Maswa) (Hon. J.T Kaare - Chairman) Dated the 16th October 2024 in Land Application No. 68 of 2023 ----------------------------- JUDGMENT 25th November 2024 & 31st January 2025 F.H. MAHIMBALI, J: The important question this court is invited to respond is whether there was sale of the disputed land between the appellant’s father and the respondent’s mother. This is in consideration of exhibit P1 dated November 1 2003. Whereas the respondent says that the said contract was for the borrowing of TZS: 2,000,000/= from the appellant’s late father, the latter (appellant) relying on exhibit D1 says there was sale of the disputed land at a consideration of 2,000,000/= and not hire of money as alleged. Upon a thorough digest of the facts of the case, evidence received from the parties and their exhibits, the trial tribunal ruled in favour of the respondent interpreting that in consideration of exhibit P1, there was no express terms of sale but money borrowing secured by the 14 acres. Therefore, so long as there have not been efforts by the appellant from recovering the said borrowed money by selling the said security land, the appellant wrongly purported to be the buyer of the security land. The appellant has been aggrieved by that finding thus, the basis of the current appeal predicated on six grounds of appeal which all boil into one main issue of fact, that the appellant’s case was fully established meeting the required legal standard of proof on balance of probability. During the hearing of appeal, the appellant was represented by Mr. Audax Rwechungura, learned advocate whereas the respondent who resisted the appeal, was self-represented. 2 I have keenly followed the submissions made by the parties for and against the appeal. The vital question to be responded remains only one, whether there was sale of the disputed land by the respondent for the appellant to claim lawful possession of it. Digesting the contents of the main contract (exhibit P1) which was not disputed by the appellant, it is clear that the respondent had borrowed money (2,000,000) from the appellant’s father for purposes of enabling her medication. As security for the said debt, she had secured it with her 14 acres of land in which she had allowed the appellant to be using it in between. It appears the said respondent did not pay back the said borrowed money, and there is nowhere evidence in record that the appellant pressed for the said payment in which the respondent defaulted for him to claim the lawful possession of the disputed land which secured the said borrowing. When later the respondent wanted to redeem up their land, the appellant resisted, claiming that the respondent’s mother had already sold the suit land to him. Since the matter involved the contract, we must look at the contents of the contract. Exhibit P1 reads: 3 NDUGU NKAMBA KITANGE NA SUBI KULWA: Watajwa hapo juu leo (tarehe 11 Novemba 2003), wamekabidhiana Eneo ekari kumi na nne (14). Ndugu Kamba Kitange ameweka dhamana eneo lenye ukubwa wa ekari kumi na nne sababu ya kuliweka dahamana eneo hilo amechukua fedha Tsh. MILIONI MBILI – 2,000,000/=. Huyu Kamba Kitenge ameenda kwenye matibabu yeye na hali yake ni mgonjwa. Ambazo zimelipwa leo Tsh: 1,700,000. BAKI LAKI TATU – 300,000/=. Makabidhiano haya yamefanyika mbele ya wazee wa Baraza la Kitongoji wafatao. Zingine atalipwa tarehe 25-8-2004. 1. Nolo Walwa, 2. Zakaria Mapiru, 3. Yona Supila, 4. Ramadhan Kelengesi, 5. Kisinde Masaha, 6. Sehemu Mgosa. Sahihi ya Mkabidhi…….signed. Sahihi ya Mkabidhiwa….. SUBI M/Kiti wa Kitongoji …….. ndugu Bahaye Gibosa…signed. Sahihi ya aliyekabidhiwa…..Tinya Subi Now the controversy of the saga originates from Exhibit D1 dated 27th July 2004 in which the appellant effected the final payment of 300,000/= as part of the terms in exhibit P1. Moreover, there are added words by the Chairperson that by giving 300,000/= the respondent relinquished her land to the appellant and that the respondent claims no that land. The same reads: Tarehe 27-7-2004. 4 SUBI KULWA NA NKAMBA SAMWEL. Ndugu watajwa hapo juu leo wamekamilisha fedha iliyobakia Tsh 300,000/=- Laki tatu tu. Ndugu Subi Kulwa leo amekamilisha kuzilipa hizi pesa baada ya kufika muda walioahadiana. Sahihi ya Nkanda Samwel ………………..signed. Sahihi ya Subi Kulwa …………………. Signed. After these words, the chairperson added other words in the said paper (exhibit D1): Kuanzia leo tarehe 27/07/2004, ndugu Nkamba hana madai yoyote kwa ndugu Subi Kulwa. Amekabidhiwa hilo eneo moja kwa moja Ndg Subi Kulwa amemuuzia. M/Kiti wa Kitongoji Idoselo – Bahaye Gilosa. Signed. Arguing for the appeal, Mr. Audax was of the firm view that the appellant had satisfactorily established his case as per given legal standards. The trial tribunal therefore had erred in reaching that verdict, arguing that since the whole transaction was well witnessed by the local leader Bahaye Kibusa (DW2), his testimony is clear and unambiguous that the respondent’s mother had sold that land to the appellant at a tune of 2,000,000/= payable at two installments – November 2003 and July 2004: 1,700,000/= and 300,000/= respectively. With due respect, reading the two documents i.e exhibit P1 and D1, the contents there in is very clear. There is nothing of sale but hire of 5 2000000 secured by 14 acres of land of land. The issue of surrendering/relinquishing the said land to the appellant is not the central wording of the contract but DW2’s own words added to exhibit D1. There is nothing of sale shown in the said contract. The continuous use of the said land by the appellant was subject to failure of returning the money borrowed. As there was no time limit set of its return and that the respondent is now willing and able to do so, he is not precluded from any clause in the said contract from redeeming their land. It is settled law that parties are bound by the agreements they freely entered into and this is the cardinal principle of the law of contract. That is, there should be a sanctity of the contract as lucidly stated in Abualy Alibhai Azizi v. Bhatia Brothers Ltd [2000] T.L.R 288 at page 289 thus: - 'The principle of sanctity of contract is consistently reluctant to adm it excuses for non-performance where there is no incapacity, no fraud (actual or constructive) or misrepresentation, and no principle of public policy prohibiting enforcement" See also Simon Kichele Chacha vs. Aveline M. Kilawe, Civil Appeal no. 160 of 2018, CAT at Mwanza at page 8-9. 6 With the same spirit of the principle of sanctity of contract and being mindful with the clauses of the Exhibit PI, I am reluctant to accept the appellant's excuse for non-performance of the agreement which he freely entered with sound mind. On my part, I am satisfied that the contract entered between the appellant and the respondent had all attributes of a valid contract. I therefore wish to emphasize here that since the appellant at the time he concluded Exhibit PI with the respondent was a free agent and he was of sound mind in which its terms are clear and unambiguous that it was a contract of borrowing money and not of land purchase, he must therefore adhere and fulfill the terms and conditions of it. The post suggestive words in the exhibit D1 that the respondent had relinquished her whole land to the appellant, are in conflict with the wording in the main contract (P1) and the above signed words in exhibit D1 itself which stipulates the contract as a borrowing one and not of purchase or selling of the respondent’s land. After all, they seem to be the DW2’s own inserted words and not of the parties (respondent) as they are not signed by the parties to it. Thus, they are of no any legal effect. I have found it hard and tough to buy out Mr. Audax’s view that exhibit P.1 intended the purchase of the said land at a 7 consideration of 2,000,000/= dully advanced as per post words in exhibit D1 and DW1’s testimony. To take that view, is to make one a legal blind by himself and consequently cause injustice to the other party. I am not prepared to commit such a legal sin. Had the appellant been keen enough, he would have pressed for the refund of his money, failure of which he would have claimed ownership of it as per law. So long as there was no such time limit clause in the said contract, the respondent is not precluded from redeeming up his land now as correctly done. All this said and done, the appeal is of no merit and it is hereby dismissed with costs. As to the way forward, I hereby direct the appellant to surrender the 14 acres of land held as security on return of the 2,000,000/= advanced to the respondent’s mother in one-month time from today. DATED at SHINYANGA this 31st January 2025. F.H. Mahimbali Judge 8