monica joseph mkulugute vs zakaria biseko another 2023 tzhclandd 17138 22 november 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 339 OF 2023 (Arising out of the decision of the District Land and Housing Tribunal for Ubungo Application No. 210/2021) MONICA JOSEPH MKULUGUTE................................................................... APPELLANT

VERSUS ZAKARIA BISEKO............................................................................. 1st RESPONDENT DENIS BENITHO MKALAWAJA........................................................ 2nd RESPONDENT

JUDGMENT 31/10/2023 to 22/11/2023 E.B. LU VAN DA, J The Appellant named above preferred an appeal against the First and Second Respondents above named. Meanwhile, the Second Respondent filed a cross appeal. It is to be noted that the trial Tribunal dismissed a claim of ownership by the Appellant and adjudged the Second Respondent the vendor to the Appellant to refund the Appeal a sum of Tshs 1,500,000/= In the memorandum of appeal the Appellant raised the following grounds:- 1. That the Honourable trial Tribunal grossly erred in law and fact for failure to properly evaluate the corroborative evidence given by the Appellant and the 2nd Respondent which established conclusively that the disputed i land belong to the Appellant herein as she legally purchased the same from the 2nd Respondent vide the sale agreement with dully paid stamp duty as required by the law which was admitted by the trial Tribunal as exhibit Pl.

2. That the Honourable trial Tribunal grossly erred in law and fact in failure to hold that the disputed land belong to the Appellant herein, thus leaving out the same with no any legal owner as between the parties herein, leading to miscarriages of justices.

3. That the Honourable trial Tribunal grossly erred in law and fact in failure to take into account the corroborative evidence of PW2 and PW3 who testified on oath that they witnessed the 1st Respondent breaking down the Appellant's house which she built in the disputed land, thus leading to miscarriage of justices.

4. That the Honourable trial Tribunal grossly erred in law and fact for having properly found that the 1st Respondent did illegally breakdown the Appellant's built house over the disputed land but failed to award any damages to the Appellant to the extent of the said breaking down of the Appellant's house.

5. That the Honourable trial Tribunal grossly erred in law and fact In holding that the Appellant did not seek in her plaint/application any damages 2 against the 1st Respondent alleged breakdown of her built house in the disputed land. In the cross appeal, the second Respondent raised the following grounds:- 1. That, the Honourable trial Chairman erred in law and fact in holding that the cross Appellant was not the lawful owner of the suit land.

2. That, the Honourable trial Chairman erred in law and fact in failure to hold that the sale agreement conducted between the Cross Appellant and the Appellant/Cross Respondent was lawful and thus the Appellant/Cross Respondent is the bonafide purchaser of the suit land.

3. That, the Honourable trial Chairman erred in law and fact in leaving out the disputed land without any lawful owner as between the parties herein, thus leading to miscarriage of justices.

4. That, the Honourable trial Chairman erred in law and fact in having properly found that the disputed land does not belong to the 1st Respondent but failed to declare the same belong to the Appellant/Cross Respondent as per the sale agreement which was tendered and admitted by the trial Tribunal as exhibit Pl. The appeal and cross appeal were argued simultaneously. The Appellant submitted that the Appellant purchased the suit land from the Second Respondent vide the sale agreement dated 21/01/2019 exhibit Pl, for a 3 consideration of Tshs 1,500,000/= She submitted that it was wrong for the Tribunal in failure to declare exhibit Pl to have legal force, and declare the Appellant the lawful owner of the disputed land. She supported an obiter by the Tribunal that the suit land does not belong to the First Respondent either, for failure to summon one Foibe Reuben Mnyuku, but arguing it was for the Appellant to be ruled a bonafide purchaser of the suit land. Ground number two, the Appellant submitted by reiterating that the Second Respondent sold a disputed land to the Appellant vide exhibit Pl, arguing the Appellant was a bonafide purchaser. She submitted that the Appellant proved by documentary evidence that she purchased the disputed land situated at King'azi, Kwembe, Ubungo from the Second Respondent, arguing the Tribunal was legally bound to declare the same to belong to the

Appellant. Ground number three and four, the Appellant submitted that there is no doubt that PW2 and PW3 witnessed the first Respondent when breaking out the Appellants house built on the suit land, argued the Tribunal was legally bound to condemn the First Respondent to pay damages to the extent of the said demolition of the Appellants house. She cited the case of Joseph Chapa t/a NRJ Company Limited vs. VGK Company Limited, Civil Appeal No. 166/2019, DSM District Registry. 4 Ground number five, the Appellant submitted that the issue of damages was pleaded in the application, she submitted that it is the law that general damages need not to be specifically claimed and proved. She cited the case of Joseph Chapa (supra). In the cross appeal, the Second Respondent submitted that since the disputed land was sold to the Appellant in the year 2019, in law the Second Respondent has no any interest over the said land dispute arguing the title passed to the Appellant. He submitted that it was not proper for the Tribunal to held that the Second Respondent is not the lawful owner of the suit land while the Tribunal knowingly that on 21/01/2019 the said land was sold to the Appellant and the later paid fully the purchase price to the Second Respondent. Ground number two, the Second Respondent submitted that he was the original owner of the disputed land till on 21/01/2019 when he legally

sold the same to the Appellant, arguing the Appellant is the bonafide purchaser of the suit land and is the lawful owner of the same. Ground number three, the Second Respondent submitted that in its decision the Tribunal has left the disputed land without any legal owner at all as between the parties. He submitted that the testimony of the First Respondent was contradictory and failed to prove that the First Respondent is the lawful owner of the disputed land. He submitted that the Tribunal erroneously failed to 5 declare it belong to the Appellant as per exhibit Pl, argued failure of which has let to miscarriage of justice. Ground number four, the Second Respondent submitted that the disputed land belong to the Appellant as she purchased the same from the second respondent, argued it was wrong for the Tribunal in failure to declare the same to belong to the Appellant as per the sale agreement. In reply to the appeal, the First Respondent submitted that the transaction from the Second Respondent to the Appellant was not good in law because the former was not the owner of said land, arguing the Tribunal was right not to declare the Appellant as the owner. He submitted that it is a principle that who have no title cannot pass it to the third party. He cited the case of Farah Mohamed vs. Fatuma Abdallah (1992) TLR 205. He submitted that the land in dispute belong to the First

Respondent, citing the testimony of DW1 and DW2, argued the First Respondent should have been declared as a lawful owner by the trial Tribunal. Ground number two, the Second Respondent submitted that this ground he have already argued in ground number one that the transaction was illegal as the Second Respondent had no title to the suit land, argued a land was sold by a trespasser. He submitted that the First Respondent purchased legally the suit land on 28/09/2018 from Foibe Reuben Mnyuku who was declared the lawful 6 owner of the disputed land in Land Case No. 325/2010 as against the First Respondent and others. Ground number three and four, the First Respondent submitted that the Appellant who testified as PW1 stated that the one who saw demolition was a person living in the hut at the disputed land, argued she failed to bring him before the Tribunal to testify. Ground number five, the First Respondent submitted that the Appellant had no locus to claim for damages even if there were demolition, arguing she was not declared as the owner of the land because any thing attached to land forms part of the land, arguing you cannot claim for damages if you a trespasser. In reply to the cross appeal, the First Respondent submitted that the Second Respondent failed to understand the Tribunal decision that when the seller fail to prove ownership, automatically the one who bought will

not have a title to the land, arguing you cannot sell what you don't have. He submitted that the Tribunal was correct because there was no proof of ownership by the Kifuru local government who purport to give the land to the Second Respondent. He submitted the Appellant will not have title because the one who sold to her had no title. 7 Ground number two, the First Respondent submitted that the Appellant cannot be a bonafide purchaser by buying the land to the trespasser, arguing the Appellant cannot have a good title to land sold by the trespasser. Ground number three, the first Respondent submitted that the land belong to the First Respondent as he legally bought it from Foibe Reuben Mnyuku who was declared by the court as the lawful owner of the disputed land in Land Case No. 325/2010 as against the First Respondents and others. Ground number four, the First Respondent submitted that the sale agreement which was based on illegal transaction has been discussed and repeated all over the submission. He insisted that the said as agreement is bad in law as the seller had no title to the land, argued that is why the Tribunal ordered the money paid to the Second Respondent had to be returned to the Appellant. On rejoinder, the Appellant submitted that there is no dispute that the Second Respondent sold the disputed land to the Appellant vide exhibit Pl, this making the Appellant

bonafide purchaser of the disputed land. She faulted a call by the Tribunal to the Second Respondent failure to tender documentary evidence to prove ownership, arguing were all supplied to the Appellant at the time of sale. She support the verdict by the Tribunal to the effects that the suit land does not belong to the First Respondent. She submitted that the First Respondent 8 did not file any appeal, arguing the court cannot award to a party to the suit without being sought. On rejoinder, to the cross appeal, the Second Respondent submitted that there is no doubt that the Second Respondent sold the suitland to the Appellant vide exhibit Pl, thus making the Appellant bonafide purchaser of the disputed land. He submitted that the Appellant proved by documentary evidence via exhibit Pl that she purchased the suit land from the Second Respondent who also purchased or allocated the same by the Kifuru Village Council and that all documents were handed over by the Second Respondent to the Appellant during sale. On my part, I will combine ground number one, two, three to the memorandum of appeal and deliberate jointly along grounds number one, two, three and four to the cross appeal. As it transpired during the arguments on appeal, the title of the Appellant was derived from the Second Respondent, the latter purported to have purchased or allocated by Kifuru Village Council and

vended the disputed land to the former vide a sale agreement exhibit Pl. When the Second Respondent was asked question by the wise assessors stated that he was allocated the disputed land by the hamlet council free of charge in 2006, and alleged handed over the documentations of allocation to the 9 Appellant at the time of sale. However, through out her testimony, the Appellant nowhere stated to had received documentations of allocation of the disputed land by the Kifuru Village Council to the Second Respondent, neither asserted as to whether she took trouble to inqure from the Second Respondent as to where the latter procured or acquired the suit land, as a matter of buyer beware or know your customer. Therefore neither the Appellant nor the Second Respondent tendered the purported documentations for allocation by Kifuru Village Council. The Second Respondent had alleged to have been allocated a farm size 35X30 paces, then disposed a farm size of 20X20 paces to the Appellant. Surprisingly, the Second Respondent alleged to had retained a portion of 10X10 paces, no explanation were offered for a remained portion of five paces. More importantly the Second Respondent did not explain as to what transpired to the suit land and after allocation by the purported Kifuru Village Council in 2006 up to 21/01/2019 when he disposed it to the Appellant, as per exhibit Pl. The Second

Appellant could not tell as to what was the purpose of allocation alloted to him by Kifuru Village Council, whether was for it to remain idle, without any unexhausted development. The Second Respondent could not tell if he was living thereat. The Second Respondent failed to procure any neigbours or witness to the allocation purported done by Kifuru Village Council neither summoned Kifuru io Village Council to substantiate the alleged allocation and if at all the later had any good title to pass to the Second Respondent. Therefore the Tribunal was correct to rule that the Second Respondent failed to prove the legality of ownership of the suit land. Similarly, the Tribunal was justified to rule that failure of the Second Respondent to prove that the area belonged to Kifuru Village Council and allocation to him thereof, rendered sale of the disputed plot a nullity and therefore no title passed from the Second Respondent to the Appellant. As submitted by the First Respondent you cannot sell something you don't have. Legally speaking, the Second Respondent was a trespasser to the suit land. And therefore the purchaser (Appellant) also acquired the same title of a trespasser. In other words, a trespasser cannot be accommodated under window of bonafide purchaser. More so, in the circumstances where no evidence was forthcoming from the Appellant if she took any due diligence as stated

above. However, when the Tribunal was deliberating on the first issue as to whether the Appellant is the lawful owner of the suit land, it overstretched and proceeded to declare the Second Respondent to have failed to prove that he is the lawful owner of the disputed land. To my respective view, this was improper. For one thing there was no any counter claim pleaded by the First Respondent. Secondly even the issue framed was whether the Appellant is the lawful owner. 11 There is no any issue which was framed specifically as to whether the First Respondent is the lawful owner, or generally as to who is the lawful owner. Infact those two proceeding issues could not be framed in the circumstances where the First Respondent did raise any counter claim. In the case of Olive Oswald Mosha vs. Roman Selasini Swai & Another, Land Appeal No. 240/2023, HC Land Division it was propounded that the Defendant to a suit can only be formerly disposed her title of ownership over the suit property and decreed by way of specifical findings to have failed to prove her title, only where there is a counter claim set up in his written statement of defence. Therefore the Tribunal is faulted to that extent over for stretchment for its final verdict. Otherwise grounds number one, two, three to the appeal and grounds number one to four, inclusive to the cross appeal are dismissed. Ground number four and

five to the appeal, these are consequential grounds which depend on the position of the previous grounds. Having declared the Appellant trespasser, in law there is no any remedy available to her. Notwithstanding a fact that her house was demolished on the suit land. But by virtue of the fact that she trespassed thereon, no redress can be rewarded to her. Above all, the Appellant was not elaborate as to how and why she was entitled to a compensation at a pleaded amount of Tshs. 20,000,000/= She did not depict the actual cost incurred in construction of three bed roomed house 12 alleged at rafters stage. The stated amount of Tshs. 20,000,000 for compensation was in a form of special damages, but was not specifically pleaded in the application. In totality the appeal and cross appeal are without merit. The findings and verdict by the Tribunal are upheld, including an order for the Second Respond to refund the Appellant a sum of Tshs 1,500,000/= The appeal is dismissed. However inview of the stance above, I order each party to bear its costs. \ E. B. LUVANDA 2/11/2023 Judgment delivered in the presence of the Appellant, in the absence of the First and Second Respondent, but one Hosia Mwamkwala appeared and reported that the First Respondent travelled to Dodoma. 13