mwami m magana vs nehemia mchechu 2020 tzhclandd 149 26 may 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL N0.197 OF 2018 (Arising from the decision o f Kinondon! District Land and Housing Tribunal in Land Application No. 136 o f 2013 (Hon. R.L. Chenye, Chairman) MWAMI M. MAGANA (Administrator of the estate of the late IRENE MWAMI)......... .................APPELLANT VERSUS NEHEMIA MCHECHU.................................... RESPONDENT Date of Last Order: 11,05.2020 Date of Judgment: 26.05.2020 JUDGMENT V.L. MAKANI. J This Appeal originate from Kinondoni District Land and Housing Tribunal (the Tribunal) in Land Application No. 136 of 2013 whereby the respondent herein was the successful party. The appellant herein MWAMI M. MAGANA was aggrieved with the decision of the Tribunal and, so he filed this appeal with the following grounds: - 1. That the Honourable Chairman erred in law and facts by wrongly applying the principles o f qui prior est tempore potior est jure to arrive to a wrong conclusion and therefore judgment is problematic. 2. That, the Honourable Chairman erred in law and fact by disregarding the whole evidence o f the Appellant. 3. That, the Honourable Chairman erred in law and facts by allowing change o f the respondent by special o f power attorney (sic!) and yet the Donee and Donor both appeared as respondents procedural. 4. That the Honourable Chairman erred in law and facts by holding that the will does not amount to bequeath disputed land to the late Irene Mwami. The appeal was disposed by way of written submissions. The appellant's submissions were drawn and filed by Maunda Raphael, Advocate while those by the respondent were drawn and filed by Mr. Aliko Mwamanenge Advocate. Submitting on the first and second grounds of appeal, Mr. Maunda Raphael averred that, the Tribunal erred in law and fact by wrongly applying the principle of qui prior est tempore potir estjure, that is, he who is the first in time has the strongest claim. He said the appellant testified that he acquired the suit property from his late mother one Irene Mwami the land which was bequeathed by her late Brother one Samuel Welle in 1984. He said the suit property was in the hands of the Mwami family way back from 1984 until in 2011 when it was trespassed by respondent. He argued further that respondent was required to provide evidence on how he acquired the suit property from Mwami family. From that he said that the tribunal erred in law by applying the principle that he who is the first in time has the better title. He said that Sylvester did not have good title hence could not passed the same to the respondent since the terms of the sale agreement were not certain and was not authentic. He went further 2 that the Sale Agreement dated 7th June 1983 doesn't have signature of vendor and witness rather thumb prints despite that they were both elite. The Sale Agreement dated 8th December 1994 does not have description of the object that is location and demarcations. He added that the parties to the contract have signed the contact after the witnesses have signed. He said that those errors render the Sale Agreements void. He noted that according to section 29 of the Law of Contract Act CAP 334 RE 2002 an agreement which is not certain or capable of being certain is void. On the third ground he submitted that after the Chairman allowed change of respondent by special power of attorney both donor and donee appeared at the tribunal. That it can be seen at page 5, last paragraph of the judgment where it is stated that "the donee had adduced his evidence on 7th August 2017, the respondent appeared in person and testified in support of the donees evidence". He said that the power of attorney usually gives the donee an absolute right as if the donor were present. He referred to Order III, Rule 2(a) of the CPC and the case of Peter M. Msungu & 6 Others vs. Managing Director of Sengerema District & 3 Others, Civil Case No.l Of 2008 (HC) .Thus he concluded that it is un-procedural for donor to hire an attorney and both of them to be in court. On the fourth ground he stated that the trial tribunal erred by disregarding the existence of the last Will of the late Samwel Welle. He said the Will upon his demise he should be buried in his suit property by his late sister Irene Mwami. He added that this is enough 3 evidence to show that the suit property belongs to the late Samwel Welle which later passed to his late sister Irene Mwami who bequeathed it to her children. He added that the Tribunal had no jurisdiction of challenging the Will as it deals with land matters and not probate matters. Further, he said that the respondent under no point in time challenged the existence of the said Will in any Court. He prayed for the appeal to be allowed with costs. In reply, Mr. Aliko stated that the principle of qui prior est tempare potior estjure was correctly applied by the Chairman of the Tribunal. He added that at the Tribunal both parties claimed to have been the lawful owners of the suit land and they both produced documents. That the Chairman applied the above principle to determine who is the lawful owner of the said land and therefore priority of time favoured the respondent who bought the same from Robert Sylvester, who had previously bought the said suit property from Samuel Welle in 1983 as compared to the appellant whose family allege that the late Samwel Welle bequeathed the suit property to Irene Mwami in 1984 through the Will (Exhibit PI). On the second ground he stated that, the issue of authenticity of the documents ought to have been raised at the trial Tribunal when the documents were being tendered, he stated that those documents are genuine. On the third ground he stated that, respondent followed all legal procedures for execution and registration of the Power of Attorney 4 and submitted the same before the honourable tribunal. That the respondent's position during the time of the trial was on going as he was the Director of National Housing Corporation, that position kept him extremely busy and required him to travel outside the country constantly hence the need of a recognised agent. He added that apart from that, the Power of Attorney was never challenged in the Tribunal and that the circumstances of this case are not similar to those of the case of Peter M. Msungu (supra). On the fourth ground Mr. Aliko insisted that the matter before us is a land matter and not a probate matter, that the duty of the Tribunal was to determine the rights of the parties and not to enforce the wishes of the deceased. That the Will stated the burial wishes of the late Samwel Welle but did not state that upon his death Irene Mwami should inherit the suit property therefore the Tribunal had no option but to interpret the Will as it was written. He prayed for the appeal to be dismissed with costs. The appellant did not file any rejoinder. I have gone through submissions by the parties and the issue for determination is whether this appeal has merit. The first, second and fourth grounds are centred on the weight of the evidence. The appellant relied on Exhibit PI which is the alleged Will of the late Samuel Welle. The appellant claims that the late Samuel Welle bequeathed the same suit property to her late mother Irene 5 Mwami. I have gone through what is alleged to be the Will. Apparently, as observed by the Chairman in his judgment, there is nowhere that the late Samuel Welle clearly expressed that he has bequeathed the suit property to the late Irene Mwami way back in 1984, resulting to the appellant claiming that suit property was family land. The content of the alleged Will reads: "....Mimi Samuel Welle naumwa mtu anaye nihudumia ndugu yangu yani dada yangu kwa jina anaitwa Elena Mwam^ huyu dada ndie ndugu yangu kabisa nikifa mzishi wangu huyo Elena Mwami naandikisha mbele ya wajumbe wafuatao..." The above quote literally states that the sister of the late Samuel Welle Elena Mwami is his relative and when he dies, she is the one to bury him. It is apparent therefore that the suit property was not bequeathed to the late Irine Mwami as claimed by the appellant as there is no express assertion from the Will to that effect. Even the name appearing in the Will is Elena Mwami and not Irene Mwami, and legally those are two different persons. On the other hand, it was the evidence of the respondent side that the respondent had bought the same land from Robert Sylvester in 1994 and he presented Sale Agreement (Exhibit D2), He also presented Sale Agreement (Exhibit D3) where Robert Sylvester bought the same land from the late Samuel Welle in 1983 that was before his death in 1984. The Exhibits D2 and D3 were admitted by the Tribunal. It is apparent from the above sequence of events that in 1983 the late Samuel Welle sold the suit property to Robert 6 Sylvester, and in that respect therefore, the alleged Will of 1984 is void as Samuel Welle could not have given what he did not have. See Farah Mohamed Vs. Fatuma Abdallah (1992) TLR 205. The priority of time as earlier stated therefore favours the respondent who bought it before the alleged Will was made. From the above analysis it goes without saying that the 1st, 2nd and 4th grounds of appeal have no merit and they are disregarded. As for the Power of Attorney the same was not objected by the appellant. The only query by the appellant is that it was un-procedural for the donor and the donee to give evidence as was the case in the present matter at the Tribunal. Indeed, a Power of Attorney is normally given to a person who is either outside the country and cannot appear in court, or is sick or mentally disturbed and would not apply if the person himself is able to appear in court unless there is an order for such a person to appear irrespective of the said Power of Attorney. It is not in dispute that the Power of Attorney was properly issued because initially the respondent considering his position, was unable to appear in the Tribunal often as required. But when he was able to appear there was need for the Tribunal to record the reasons that resulted to his presence, that is, whether he was required to do so by the Tribunal or otherwise. But having the donor and the donee at the same time was indeed un-procedural and waters down the Power of Attorney so issued. Subsequently, the evidence of the respondent shall not be considered having given the Power of Attorney to DW1 - Ally Mchechu. 7 Now what are the consequences of disregarding the evidence of the respondent? I have gone through the record, the evidence of the respondent was more or less similar to that of DW1 who gave a chronology of the events from the sale of the land from the late Samuel Wellu to Robert Sylivelister and ultimately to the respondent. DW1 was also the one who tendered Exhibits D2 and D3 Sale Agreements from Samuel Wellu to Robert Sylivester and another one from Robert Syliverster to the respondent of which contents were not disputed. There is also the evidence of DW3 the Street Chairman Alexander Kalolo that confirms that he endorsed the Sale Agreement he even went further to ask the appellant of proof of ownership, but he could bring nothing before the Tribunal but the alleged Will which as established did not grant ownership to the late Irene Mwami. In that respect, even in the absence of the evidence by the respondent still the evidence weighs more in favour of the respondent. On the basis of the foregoing, I do not find any reason to fault the decision of the District Tribunal. In that respect the appeal has no merit and it is hereby dismissed with costs. It is so ordered. 8