LAND APPEAL NO

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGgH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA LAND APPEAL NO. 27005 OF 2023 (Originating from the decision of the District Land and Housing Tribunal for Masasi at Masasi in Land Application No. 63 of 2019) MUSSA EMMANUEL MBWENI ©MANDELA.... .......... APPELLANT VERSUS ABDUL SABIHI BAKARI @CHANSI................. ...... .1st RESPONDENT JOSEPH RAYMOND................................. 2nd RESPONDENT SALUMU MACHO, ................................. .......... .................3kD RESPONDENT JUDGMENT 2&h June and 3Cf July2024. DING'OHI, J; I- Mussa Emmanuel Mbweni ©Mandela, the appellant above mentioned, has filed an appeal before this court against the decision of the District Land and Housing Tribunal for Masasi at Masasi (trialtribunal) in Land Application No. 63 of 2019. The matter at the trial tribunal proceeded ex parte against the 2nd and 3rd respondents. The dispute was over the ownership of the landed property which the 1st respondent is alleged to have taken after the Page 1 of 10 appellant allegedly failed to pay the said respondent's Ioan which he took putting the suit house as security. After a full trial, the trial tribunal found for the 1st respondent. It dismissed the appellant's application with costs and declared the 1st respondent the rightful owner of the suit house. The trial tribunal went further in ordering the appellant to vacate the suit land and alternatively redeem the same after paying the 1st respondent the sum of Tshs. 5, 085,000/= being the money he took as a loan. The brief background of this matter per the record of the trial tribunal is that; On 16th May 2018, the appellant and the 1st respondent agreed to and did borrow the appellant some money. As to how much it was borrowed each person has his position. On his side, the appellant claims that he borrowed from the 1st respondent the sum of One Million and Five Hundred Thousand Shillings only (Tshs. 1,500,000/=). The 1st respondent claimed to have lent the appellant the sum of Tanzanian shillings four million (Tshs. 4,000,000/=). He tendered the written agreement to that effect which was admitted at the trial tribunal as "Exhibit D-l". According to the 1st respondent, they agreed that if the appellant failed to pay the amount lent up to the 16th of June 2018, the house in which the appellant put as security on the said loan would be taken by the 1st respondent. Page 2of 10 In his testimony, the 1st respondent told the trial tribunal that after the appellant failed to honor his contractual obligation, on 15th July 2018, he reported the failure to the primary court magistrate who witnessed the contract (Exhibit D-l) where he was advised to apply for the execution of the loan agreement. The respondents then decided to execute the same. While the 1st respondent together with the 2nd and 3rd respondents continued with the execution in taking the house starting with removing iron sheets in the disputed house, he was summoned by the police. The first respondent was required to stop the exercise of removing iron sheets and he was finally, charged in the District Gourt of Nanyumbu in criminal case No. 51 of 2018 with the offense of malicious damage to property. Subsequently, on 24th May 2019, the District Court advised the parties to file a suit before the District Land and Housing Tribunal as the case has land attributes. That decision was what led the appellant to file the land case before the trial tribunal which is subject to the present appeal. That land matter was filed by the appellant on 12th September 2019. The 1st respondent decided to follow his way for justice. He successfully filed civil case No. 08/ 2019 in Mangaka primary court against the appellant for a claim of Tshs. 4,000,000/= being the sum he alleged lent Page 3 of 10 to the appellant as aforesaid. The decision did not please the appellant, he appealed to the District Court of Nanyumbu vide Civil Appeal No. 1 of 2019. In its decision delivered on 17th February 2020, the district court upheld the decision of the primary court that the appellant should pay Tshs. 4,000,000/= to the appellant. In the land matter filed by the appellant in the trial tribunal and which is subject to this appeal, as I have elucidated above, it was again decided in favour of the 1st respondent. In that matter, the trial tribunal ordered as hereunder; 1. The applicant's prayer is dismissed with costs and the first respondent's counter-claim is allowed. 2. The first respondent is the lawful owner of the disputed area located at Kilimahewa Village within Nanyumbu District, where if the petitioner needed the disputed area he is required to pay the first respondent five million and eighty-five thousand shillings (Tshs. 5,085,000/=) from the date of this ruling. 3. The applicant is ordered to leave the scene of a dispute as soon as possible. Page 4 of 10 The decision and orders as above made the appellant come to this court as his second appeal. The petition of appeal raises the following points of complaint; 1. That, the District Land and Housing Tribunal erred in law and fact by ordering that the appellant should pay to the respondent Tshs. 5,085,000/= something that is not right 2, That, the trial District and Housing Tribunal erred in law and fact by pointing out that the appellant borrowed money of Tshs. 4,000,000/= from the 1st respondent and guaranteeing the said loan through his house without the presence of a valid contract between them, something that is against the law of contracts. 3. That, the District Land and Housing Tribunal erred in (aw and fact for deciding in favour of the respondent who claimed to be a lawful owner of the disputed plot/house without any proof thereof. 4. That, the District Land and Housing Tribunal erred in la w and fact for relying on hearsay and uncorroborated evidence tendered by the 1st Respondent in the trial tribunal. The evidence tendered by the appellant in the trial tribunal is heavier than that of the 1st respondent. Page 5 of 10 It was agreed by both parties that the appeal be disposed of by way of written submissions. Both parties appeared in person, un-represented. In my view, the 1st and 2nd grounds of appeal hold complaints on the same issue. I think I will not commit injustice, If I consider them together. The appellant faulted the trial tribunal by deciding that he was required to pay Tshs. 5,085,000/= to the respondent, and that the respondent lent him the sum of Tshs. 4,000,000/=. His take was that the trial tribunal's finding did not consider whether there was a written contract between them because any loan agreement must be in writing and the security of the said loan ought to be mentioned in the contract. On the third ground of appeal, the appellant argued that there was no evidence by way of document/title deed over the suit property or house being presented by the 1st respondent to prove the issue of the ownership of the disputed land. On the last ground of appeal, the appellant faulted the trial tribunal for its determination based on the evidence adduced by the respondent during the trial. Page 6 of 10 When he took the floor, the 1st respondent took a swipe at the arguments advanced by his counterpart. With regard to the 1st and 2nd grounds of appeal, the 1st respondent argued that the trial tribunal was right to declare that the appellant was required to pay Tshs. 4,000,000/= to him after it satisfying itself that the appellant borrowed the said amount of money he pledged the house. The 1st respondent further argued that since the appellant failed to pay back the said money the trial tribunal made a just decision in accordance of the terms of the contract. On the 4th ground, the 1st respondent argued that the trial tribunal did not make a decision based on the hearsay evidence, its findings were based on the evidence that was given by the parties who were present during handing over the money. Having carefully read the submissions of both parties, the issue for determination is whether the appeal has merits. But before I delve into a determination of the grounds of appeal, I find it appropriate to discuss in detail whether the trial tribunal has properly directed itself to declare 1st respondent the rightful owner of the disputed land. Page 7 of 10 The records show and parties agree that before the trial tribunal made the decision on 6th October 2023 subject to this appeal there was already a final decision of the District Court of Nanyumbu vide Civil Appeal No. 01 of 2019 made on 17th February 2020 where the appellant was ordered to pay a sum of Tshs. 4z000,000/= he borrowed from the 1st respondent after he put the house as security. I think it was improper for the appellant to divert the proper root by way of appealing against the decision of the district court in a normal civil suit and filing a land matter as he did. After the decision of the district court, if aggrieved, the appellant would have appealed to this court. The proceedings of the DLHT were unnecessary and will not be left to stand because they arise from the same dispute and it is an abuse of the court process. Before I pen down, I would like to make a reminder of one famous Swahili Saying: dawa ya deni ni kulipa. There are also current thinking and trending decisions of the Court of Appeal in Francis Vicent @ Mahimbo vs. The National Microfinance Bank PLC (Civil Appeal No. 120 of 2023) [2024] TZCA 355 it was held that; Page 8 of 10 "There is a famous saying that borrowing is easy, paying back is painful and the appellant has to endure the pain..." In sum, I find that since there was a decision by the civil court on the matter of the money allegedly borrowed by the appellant from the 1st respondent after the house was put as security to the loan, the land matter in the trial tribunal was unnecessary under the circumstances of this case. The proceedings and the judgment of the trial tribunal will not stand. They are hereby quashed and set aside. I am aware that there is a silent complaint by the appellant that the respondent had started the move to take the house on the allegation that was per the agreement after the 1st respondent failed to repay the loan. That is illegal, and will not be allowed at this stage without a successful application for execution of the decision of Mangaka Primary court in Civil case No. 8 of 2019. The appeal is therefore dismissed. Under the circumstances of this matter, there will be no order as to costs. Page 9 of 10 DATED at MTWARA this 30th day of July 2024 COURT: Judgment delivered this 30th day of July 2024 in the presence of parties in person. OHI JUDGE 30/07/2024 Page 10 of 10