MOHAMED JAFFARI NGEDE VS MELECK JOHN URONU 2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LAND APPEAL NO. 10228 OF 2024 (Originating from Land Application No. 119 of 2020 of the District Land and Housing Tribunal for Moshi at Moshi) MOHAMED JAFFARI NGEDE ……………...................... APPELLANT VERSUS MELECK JOHN URONU….…………….............…...… RESPONDENT JUDGMENT 04/09/2024 & 17/09/2024 SIMFUKWE, J. Before the District Land and Housing Tribunal for Moshi at Moshi (the trial tribunal), the appellant lodged a dispute against the respondent and two others. The appellant claimed to be the lawful owner of a piece of land measuring 1.20474 acres, Farm No. 845 (suit land) situated at Kimashuku Village, Machame Kusini Ward within the District of Hai in Kilimanjaro Region. The appellant alleged that on 11th July 2019, he purchased the suit land from one Eva Livingstone Mushi and Shabani Mohamed 1 Daruweshi, who were the second and third respondents before the trial tribunal. Before hearing of the application, the appellant dropped the sellers on agreement that the sellers would cooperate to resolve the dispute. Hence, the dispute proceeded against the 1st respondent (respondent herein). Before the trial tribunal, the appellant lamented that the respondent, without lawful justification, trespassed into the suit land, cut trees, buried his mother there and conducts agricultural activities on the suit land. In proof of his allegations that he purchased the said suit land, the appellant produced a sale agreement, which was admitted as Exhibit P1 and Letter of Offer of right of Occupancy issued to Salome Nathaniel Kinasha (exhibit P2). Also, he called three witnesses to support his case. The respondent disputed the allegations, stating that the suit land belonged to him as it was bequeathed to him by his grandfather the late Athanas Kinasha Uronu, on 30/11/1985. In proof thereof, the respondent tendered the handing over document (HATI YA KUKABIDHIWA) which was admitted in court as Exhibit D1 and proceedings of Machame South Ward Tribunal of Civil Case No. 19/2012. Further, he called witnesses to support his testimony that the said land was given to him by his grandfather. 2 After a full trial, the trial tribunal decided against the appellant. The trial tribunal found that the respondent was bequeathed the suit land by his grandfather. Then, the appellant appealed against the decision of the trial tribunal on the following grounds: 1. That, the honourable tribunal erred in law and fact in declaring the respondent herein the owner of the suit land. 2. That the honourable tribunal erred in law and fact by ignoring the fact that the appellant herein is the registered owner of the suit land. 3. That the honourable tribunal erred in law in holding that the respondent is the owner of the suit land basing on hearsay and contradictory evidence of the respondent. 4. That the honourable tribunal Chairman erred in law and fact in not appreciating the field settlement between the applicant and the by then 2nd and 3rd respondents. 5. That the honourable tribunal erred in law and fact by failing to properly evaluate evidence placed before it and hence, arrived at erroneous decision. 3 6. That the judgment of the honourable Chairman of the tribunal lacks clear legal reasoning. The appellant urged this court to allow his appeal by quashing and setting aside the decision of the trial tribunal. At the hearing of this appeal, Mr. Willence Shayo, learned counsel, argued the appeal for the appellant while the respondent was unrepresented. The hearing proceeded by way of filing written submissions. In his submission in chief, Mr. Willence consolidated the first and second grounds of appeal, third and fifth grounds and argued the fourth and sixth grounds separately. On the first and second grounds of appeal; Mr. Willence contended that the honorable trial Chairman erred both in law and in fact by holding that the suit land is the property of the respondent while the appellant is the registered owner of the suit land. He explained that the application before the tribunal was in respect of registered land, namely Farm No. 845, situated at Kimashuku Village, Machame South Ward, Lyamungo Division in Hai District, which was registered on 3rd May 1994 when there was no dispute between any of the parties or their predecessors in title. 4 That, the Appellant clearly testified that he purchased the suit land from the 2nd and 3rd respondents and was registered as the legal owner on 20th January 2020. The process of purchasing and transferring the title was not at issue and was confirmed by SM2, the Assistant Land Officer from the Registrar of Titles, who supported the testimony of SM1. Mr. Willence referred the case of Leopold Mutembei vs. Principal Assistant Registrar of Titles, Ministry of Land, Housing and Urban Development, and The Attorney General, Civil Appeal No. 57 of 2017, Court of Appeal of Tanzania, at page 17, where it was held that: "We wholly subscribe to the above view. On this basis, we find exhibit D.2 is not just proof of the state of ownership over the property in dispute by the persons that conferred or terminated the respective titles to the person named herein." From the above case law, the learned counsel argued that the tribunal chairman should have recognized that the procedure for registering the suit land was genuine and undisputed. Referring evidence on record, Mr. Willence submitted that the respondent herein testified as SU1 and stated that he did not know Farm No. 845 and 5 that the said Farm No. 845 was different from the land stated in Exhibit D1. Further reference was made to the proceedings dated 30th November 2023, in which SU1, during cross-examination, stated that: "Shamba Na. 845 ni tofauti na linaloonekana kwenye kielelezo D1" "Shamba Na. 845 wala silifahamu." Based on the quoted proceedings, the learned counsel commented that the respondent himself acknowledged that the suit land is different from the land which he claimed was bequeathed to him by his grandfather and that he did not know the suit land. Mr. Willence wondered how one could be declared the owner of land he does not even know? Moreover, Mr. Willence faulted Exhibit D2, an ex-parte judgment by Machame Kusini Ward Tribunal, which was relied upon by the tribunal Chairman in his decision. It was submitted that such a decision does not state the title number, measurement, or boundaries of the suit land from the hearing to the judgment and orders of the tribunal, to manifest that it was the same land which was in dispute before the district tribunal. It was argued further that the respondent acknowledged that Exhibit D2 does not show a clear description of the land that was in dispute before the tribunal. He substantiated his contention by making reference to cross-examination of SU1 on 30th November 2023 where he stated that: 6 "Kwenye kielelezo D2 haioneshi mipaka ya eneo wala ukubwa wake. Kwenye D2 hakuna namba ya shamba wala kuonyesha liko wapi" The learned counsel stated that from the respondent's statement during cross-examination and Exhibit D2, it is clear that the tribunal's decision was on unknown piece of land, which was not necessarily the suit land before the tribunal. Thus, relying on and according weight to Exhibit D2 resulted to injustice to the appellant. Mr. Willence continued to insist that it was crucial that the relied-upon exhibit should have specifically stated the description of the suit land. He invited this court to be persuaded by its decision in the case of Daniel Kanunda (As Administrator of the estates of the late Mbalu Kashaha Bundu) vs. Masaka Ibeho and 4 Others, Land Appeal No. 20 of 2015, (HC) Tabora, in which at page 7 this court emphasized that: "For purposes of ownership or possession of land, it is specific demarcations and the location (geographical, political or otherwise) of a piece of land that differentiates it from another piece of the same earth or its surface. Admittedly, this may not be the very professional way of describing land, but at least these are the practical and common attributes exemplifying land." 7 The learned counsel suggested that, in absence of such evidence, the Tribunal should have visited the suit land to verify the facts. He cited the case of Kimonidimitri Mantheakis vs. Ally Azim Dewji and 7 Others, Civil Appeal No. 4 of 2018, (CAT). Regarding the second limb of grounds of appeal, which includes the 3rd and 5th grounds of appeal; Mr. Willence submitted that the trial chairman seriously erred in law by appreciating and according weight to the respondent's evidence, which was highly based on hearsay and hence, violated the best evidence rule, which requires direct evidence. The testimony of SU2, SU3, and SU5 was based on information supplied to them by other persons, as reflected in the proceedings of 08th February 2024 where they testified that: “SU2 “Nilichokuja kueleza hapa ni kile nilichoelezwa na ukoo na Melecki.” SU3 “Kuhusu Meleki kupewa eneo nilikuja kuelewa baadae pamoja na kuona maandishi.” SU5 “Sikuwepo wakati babu yake na Meleck akimkabidhi Meleck eneo hilo… Ni kweli taarifa za Meleck kupewa eneo hilo nilielezwa baadae….” Moreover, the learned counsel pointed out that the testimony of SU4 contradicted evidence of the rest of the respondent’s witnesses. 8 The learned counsel stressed that the respondent's witnesses should have not been accorded such weight to warrant a declaration that the respondent is the owner of the suit land, considering the standard of proof in civil cases. He recited the case of Leopold Mutembei (supra) at page 15, where it was stated that: “The above evidence is plainly worthless. It is not just hearsay but also unconfirmed information that cannot be acted upon by a court of law.” Mr. Willence continued to challenge the decision of the trial tribunal at page 7, first paragraph of the judgment where it was observed that: “Baada ya baraza la kata kusikiliza pande zote mbili liliamua kwamba mjibu maombi 1 (Meleck) kuwa ndiye mmiliki halali wa shamba hilo la mgogoro…” The quoted part of the judgment of the trial tribunal is to the effect that, the Ward Tribunal, after hearing both parties, concluded that the respondent is the lawful owner of the disputed land. However, in Exhibit D2, it is not shown that the Ward Tribunal heard both parties and delivered a decision. It indicates that the complainant was heard and no reason was given why the alleged respondent was not heard. Moreso, 9 what constituted the suit land therein. Mr. Willence was of the opinion that, had the tribunal chairman analysed properly the evidence presented before the tribunal, he could not have declared the respondent the rightful owner of the disputed land based on the ward tribunal's judgment. On the third limb, which covers the fourth ground of appeal, the trial tribunal was criticized for failing to appreciate the filed deed of settlement between the appellant and the then 2nd and 3rd respondents. The learned counsel for the appellant submitted that the deed of settlement filed on 5th May 2021, in which the Appellant agreed to drop the rest of the respondents, was not appreciated or considered to support the Appellant's case. Instead, the tribunal chairman ordered that the costs of the respondent be paid by parties who were no longer parties to the application. Lastly, on the fourth limb, which covers the 6th grounds of appeal; Mr. Willence submitted that the judgment of the honourable trial chairman lacks clear legal reasoning. He explained that the decision of the Hon. Chairman that the suit land belongs to the respondent should have been supported with clear reasoning, considering the fact that the suit land which the appellant claims to own, has been registered since 1994. Whereas the land which the respondent claims to own is unregistered. 10 The learned counsel elaborated that the tribunal chairman did not state whether he believed that the registered title was illegally obtained since the same was not disputed. Furthermore, he did not explain why the title deed should not be considered legal while the respondent claims to own unregistered land. It was observed that the decision of the trial tribunal should have reflected the analysis of ownership of the suit land by the registered owner since 1994 in comparison to the respondent's allegations of ownership. Mr. Willence was of the view that evidence of the appellant was heavier than evidence of the respondent. Hence, the appellant proved the case on balance of probabilities, deserving to be declared the owner of the suit land. He supported his argument with the case of Charles Richard Kombe t/a Building vs Evarani Mtungi, Civil Appeal No. 38 of 2012 in which the Court of Appeal emphasized that: "It is elementary that the standard of proof is always on the balance of probabilities and not beyond reasonable doubt." In his final remarks, the learned counsel for the appellant implored this court to quash and set aside the judgment and decree of the trial tribunal 11 with costs and proceed to declare the appellant the rightful owner of the suit land. In reply, the respondent resisted the appeal by supporting the findings of the trial tribunal that the suit land belongs to the respondent. He submitted that before the trial tribunal, he testified that he was given the said suit land by his grandfather in 1985, of which he provided proof. His testimony was supported by DW2 and DW5, who were clan heads of the family, as well as DW3, who was a neighbour, and DW4. Also, the respondent clarified that despite the fact that the appellant knew that the respondent was occupying the suit land and that it had encumbrances, he still proceeded to buy it, rendering the sale agreement technically null and void. He opined that the appellant should have conducted due diligence as it was held in Idrissa Ramadhani Mbondera vs. Allan Mbaruku and Another (Civil Appeal 176 of 2020) [2023] TZCA 204 TANZLII (27 April 2023). The respondent challenged the sale agreement, arguing that there were no witnesses who witnessed the contract of sale. Instead, the agreement was only attested by a state attorney who was not called to testify and corroborate the evidence. Cementing the requirement to corroborate 12 evidence, the respondent made reference to the case of Azizi Abdallah Vs Republic [1999] TLR 71 which held that: "The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm or support that which as evidence is sufficient and satisfactory and credible." Furthermore, it was contended that the appellant relied on evidence adduced by the Assistant Land Officer who acknowledged that the appellant purchased the said suit land while knowing it had encumbrances and continued to register it. The respondent was of the view that the Assistant Land Officer should have known that the encumbrances were to be settled before providing ownership. The respondent continued to state that, after purchasing the suit land on 11th July 2019, of which the agreement itself is null and void, the appellant started the process of acquiring a title on 2nd January 2020. On 7th July 2020, he filed an application before the District Land and Housing Tribunal. The respondent was of the opinion that such facts show that the appellant knew exactly to whom the suit land belonged and still wanted to be granted legal ownership of the same. He continued to submit that the judgment of the Ward Tribunal (Exhibit D2), proved that the Respondent was the lawful 13 owner of the suit land against Salome Nathanael Kinasha (deceased). Eva Livingstone Mushi and Shabani Mohammed Daruweshi alleged that the deceased was their mother, but there was no proof to support their allegations. Both of them continued to sell the suit land to the appellant, knowing that they were not lawful owners, and there was no evidence to show that the suit land belonged to them. In reply to the 3rd ground of appeal; the respondent contended that the Hon. Chairman did not base his judgment on hearsay but rather on evidence adduced by the respondent himself. Evidence of DW2, DW3, and DW5 corroborated what the respondent testified before the tribunal. Also, exhibit D2, which the appellant is relying on to claim that the matter proceeded ex parte, is not true since the proceedings show that both parties were heard and the judgment was in favour of the respondent as it was in Land Application No. 119 of 2020, the subject of the instant appeal. Responding to the 4th ground of appeal; the respondent faulted the appellant for failing to read the judgment carefully. In the impugned judgment, the trial chairman ordered the 2nd and 3rd respondents to pay costs to the 1st respondent. 14 Countering the 6th ground of appeal, the respondent asserted that the decision of the Hon. Chairman was supported by clear reasoning. Evidence presented by the appellant was a sale agreement of 2019, while the respondent produced a letter (exhibit D1) dated 30th November 1985. Moreover, the respondent submitted that the suit land had been owned by him since 1985, and that the appellant purchased it at his own risk, knowing that the respondent was the owner. There was no proof showing the appellant as the registered owner since 1994, except a purchase agreement only. The respondent concluded that the appellant's appeal has no legs to stand. Hence, the respondent should continue to enjoy his suit land in peace and that the appeal should be dismissed with costs. I have carefully considered the grounds of appeal, submissions of both parties and evidence on record. The issue for determination is whether this appeal has merit. On the outset, it may be noted that the raised grounds of appeal are centred on evaluation of evidence and validity of the judgment of the trial tribunal. This being a first appeal, this court is vested with powers to re-evaluate evidence on record and arrive at its own findings. 15 The learned counsel of the appellant criticized the trial Chairman for declaring the respondent as the lawful owner of the suit land without considering that the suit land was registered and the appellant had a title deed over the same. The argument was disputed by the respondent, who contended that he was the lawful owner of the suit land, as it was bequeathed to him by his grandfather in 1985. He further challenged the appellant for purchasing the suit land despite knowing that it had encumbrances. Section 2(1) of the Land Registration Act, Cap 334 R.E 2019 defines the term “owner” as follows: “owner” means, in relation to any estate or interest, the person for the time being in whose name that estate or interest is registered.” Again, it is an established principle of law that whenever there is a dispute over land, as a general rule the lawful owner is the person with a certificate of title. This was well elaborated in the case of Amina Maulid Ambali & Others vs Ramadhani Juma (Civil Appeal No. 35 of 2019) [2020] TZCA 19 (25 February 2020) Tanzlii at page 6 last paragraph to page 7, where the Court of Appeal held that: 16 “In our considered view, when two persons have competing interests in a landed property, the person with a certificate thereof will always be taken to be a lawful owner unless it is proved that the certificate was not lawfully obtained.” Emphasis added I fully subscribe to the above position of the law, and it will guide me in determining the instant appeal. In the present matter, it is undisputed fact that the appellant tendered a Letter of Offer showing that the suit land was initially registered under the name of Salome Nathaniel Kinasha, the mother of the vendors who sold the same to the appellant. Further, according to the Letter of Offer of Right of Occupancy tendered (Exhibit P2) and the evidence of SM1 and SM2, the Registrar of Titles inserted the name of the vendors and later the purchaser (the appellant herein), on the same date. That is 20/01/2020. With due respect to the learned counsel for the appellant, as it was held in the case of Amina Maulid Ambali & Others vs Ramadhani Juma (supra) one cannot be a lawful owner of land where the certificate of title was obtained unlawfully. In our case, there is no evidence on record showing how the late Salome Nathaniel Kinasha was bequeathed the suit land by her father. Secondly, 17 assuming that there is evidence on how the mother of the vendors was bequeathed the suit land, for the title to be transferred to the vendors, they should have letters of administration pursuant to section 67 of the Land Registration Act, (supra) which provides that: “67. On the death of the owner of any estate or interest, his legal personal representative, on application to the Registrar in the prescribed form and on delivering to him an office copy of the probate of the will or letters of administration to the estate of the owner, or of his appointment under Part VIII of the Probate and Administration of Estates Act or the Fourth Schedule to the Magistrates' Courts Act shall be entitled to be registered as owner in the place of the deceased.” Emphasis added Section 68 (1) and (2) of the Land Registration Act provides that: “68. -(1) No assent to the vesting of any devises of bequest of any registered estate or interest, or disposition by a legal personal representative, shall be registered unless such estate or interest is registered in the name of such legal personal representative. 18 (2) Every assent to the vesting of any devise or bequest of any registered estate or interest shall be in the prescribed form.” In the case at hand, according to the record, there was total violation of section 67 and 68 (1) and (2) of Cap 334 (supra). No letters of probate and administration of the purported estate were tendered before the trial tribunal to prove that the transfer of the estate of the late Salome Nathaniel was done pursuant to the law. Moreover, on 11/07/2019 when the appellant purchased the suit land, ownership had not been transferred to the vendors as transfer was done on 20/01/2020. As a settled principle of law, one cannot give what he does not have as it was held in the case of Ombeni Kimaro vs. Joseph Mishili t/a Catholic Charismatic Renewal (Civil Appeal No 33 of 2017) [2021] TZCA 343 (2 August 2021) Tanzlii, at page 14 that: “For these reasons we attach less weight to the evidence of DW2 and hold that in 2001, if at all she sold land to the appellant, the sale was invalid as she did not have title to pass to the appellant, for she would not give what she did not have. For this stance - see Pascal Maganga v. Kitinga Mbarika, Civil Appeal No. 240 of 2017 (unreported). In this regard we are settled that the acts of DW2 in the sale of the land to the appellant brought her within 19 the famous Latin Maxim nemo dat quod non habet, meaning "no one gives what they do not have." Emphasis mine In the circumstances, this being a civil matter, evidence on record on part of the appellant was weak compared to the evidence of the respondent who had no onus of proof. On his part, the respondent tendered a handing over document dated 30/11/1985 (exhibit D1). Evidence of the respondent was supported by SU2 and SU5. Based on such findings, I am of considered opinion that the learned trial Chairman was justified to declare the respondent as the lawful owner of the suit land after a thorough reasoning as required by the law. Therefore, I dismiss this appeal with costs for being devoid of merit. It is so ordered. Dated and delivered at Moshi this 17th day of September 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 17/09/2024 20 21