mashaka halifa kimolo another vs narsis frederick mrema suing as the administrator of the estate of frederick tengia mrema 2024 tzhclandd 63 28 february 2024

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 384 OF 2023 {Originating from the Judgment and Decree of the District Land and Housing Tribunal for Ilala at Ardhi House-Kivukoni in Application No. 135 of2020 delivered by Honourable M.Mgulambwa, Chairperson on 14.08.2023.) MASHAKA HALIFA KIMOLO .............................................. ].st APPELLANT DR. CONSTANTINE MTUTWA................................................ 2nd APPELLANT VERSUS NARSIS FREDERICK MREMA (Suing as the Administrator Of the Estate of FREDERICK TENGIA MREMA)........................ RESPONDENT Date ofJudgment: 28/02/2024 Date of the last order: 13/12/2023 JUDGMENT A. MSAFIRI, J On 03rd June, 2020 the respondent Narsis Frederick Mrema instituted a suit as the administrator of the estate of the late Frederick Tengia Mrema at the District Land and Housing Tribunal for Ilala at Ardhi House Kivukoni (herein as trial Tribunal) by filing Application No. 135 of 2020. He claimed that the now appellants have trespassed into the farm land of the late Mrema who was his father. That the farm land is situated at Sangara Street, Mvuti Area, Msongola Ward within Ilala District in Dar es Salaam City. That the appellants have invaded in the said farm land. i (herein as suit land) and started to destroy the crops, trees and other property therein hence causing financial loss to the applicant. Among several reliefs, he prayed to be declared the lawful owner and occupier of the suit land. The appellants' vehemently denied the claims by the then applicant where the 1st appellant claimed that he was authorized by the late Fredrick Mrema to sell the suit land to the 2nd appellant on his behalf. The 2nd appellant beside denial of the applicant's claims, he also filed a counterclaim claiming that he is a lawful owner of the suit land by legally purchasing the same from the late Fredrick Mrema whereby the 1st appellant was the one who sold the suit land by the authorization from the late Mrema, the previous owner. The 2nd appellant prayed to be declared the lawful owner of the suit land and prayed for other reliefs. During the trial, the trial Tribunal heard both the main claim and the counter claim and found that the now respondent was the lawful owner of the suit land. The appellants herein were aggrieved with the said decision and have appealed in this court, advancing five (5) grounds of appeal as follows; ML 2 1. That, the Honorable Chairperson erred both in law and fact by holding that the respondent is the lawful owner of the disputed land contrary to the evidence on record. 2. That, the Honorable Chairperson erred in law and fact by failing to analyse and consider the testimony ofSU4, a local government member ofSangara Mvuti Msongola Ward who testified that exhibit KU1 tendered by the 1st Appellant was similar to the one which was in the village office authorizing the 1st Appellant to sell the disputed land on behalf of Fredrick Mrema. 3. That, the Honorable Chairperson erred in law and fact by accepting and believing the testimony of the respondent which was hearsay as when the transactions between the appellants were done the respondent was not around. 4. That, the Honorable Chairperson erred in law and in fact by not considering the 1st Appellant's evidence that Fredrick Mrema did receive the money in the village office before the Chairman and local village government members who testified as SU4. 5. That, the Honorable Chairperson erred in law and fact for not considering and evaluating the evidence of 1st Appellant in relation to the date when Fredrick Mrema employed SMI to be his care taker of the farm giving him the one acre as per exhibit KM1 and the date when SM2 complained to the Respondent about the Appellants. The appellants prayed for this court to allow the appeal and set aside the judgment and decree, costs, and any other relief this court may deem fit to grant. The hearing of the appeal was by way of written submissions, whereas, the appellants' submissions were drawn and filed by Mr. Methuselah Boaz Mafwele, learned Advocate while the respondent's 3 submission was drawn and filed by Ms. Catherine A. Lyasenga, learned advocate. On his submissions Mr. Mafwele, learned counsel submitted on the 1st ground that the sale of the suit land to the 2nd appellant was valid because the 1st appellant had been authorized by Fredrick Tengia Mrema to sell the suit land on his behalf in 2004 as per Exhibit Kill. That the said exhibit KU1 has never been challenged and no better evidence has been produced to rebut it. That this was collaborated by the evidence of SU4 who testified that a similar document was in the local government office. He averred that the trial Chairperson was wrong in disregarding such evidence in Exhibit KU1 and that the appellants have proved that the 1st appellant was authorized by the late Fredrick Mrema through Exhibit KU1. On the 2nd ground Mr. Mafwele contended that the testimony of SU4, a local government member of Sangara, Mvuti, Msongola Ward, was disregarded by the trial Chairperson, which revealed that Exhibit KU1 was the same with what they had in their office authorizing the 1st appellant to sell the suit land to the 2nd appellant. He added that Exhibit KU1 was sufficient to prove validity of sale to the 2nd appellant by the 1st appellant. The 3rd ground of appeal, Mr. Mafwele contended that the trial Chairperson relied on the hearsay evidence by the respondent contrary to Section 62 of the Law of Evidence Act, Cap 6 R.E 2019. He was of the 4 view that the respondent knew nothing about the suit property and that he did not know where the suit property was located, because the respondent's father died when the respondent was 16 years old, hence that he testified the hearsay evidence. On the fourth ground, Mr. Mafwele defaulted the trial Chairperson for failure to consider that Fredrick Tengia Mrema received the money for sale on 06.02.2005 at the tune of Tshs. 1,300,000/- for two instalments in which Mr. Fredrick Mrema signed to have received the said amount. That all transactions were done at Sangara Street Local Government office and witnessed by among others, the Chairman and the member who testified as SU4. That the evidence by Exhibit KU2 shows that Fredrick Mrema came and collected the money as per exhibit KU2. On the 5th ground of appeal Mr. Mafwele submitted that trial Chairperson erred for disregarding the evidence of the 1st Appellant in relation to the date when Fredrick Mrema employed SMI to be his caretaker giving him one acre of the farm land. He said that SMI was Mrema's farm care taker from 10.10.1990 and not 1989 as was testified by the respondent, hence that the trial Chairperson relied on the contradictory evidence. He prayed for the appeal to be granted. Aik 5 On reply, Ms. Lyasenga, for the respondent consolidated the 1st, 2nd , 4th, and 5th, grounds of appeal and responded to them as one ground of appeal. She submitted that it is undisputed that the suit land belonged the respondent's father, and that the same was sold by the 1st appellant to the 2nd appellant by the time the respondent's father was still alive. She contended that there was no Power of Attorney registered as per the law requirement, to empower the 1st appellant to act on behalf of Fredrick Tengia Mrema to sell the suit land to the 2nd appellant, hence that the trial Chairperson was right in deciding in favor of the respondent. On the 3rd ground of Appeal, Ms. Catherine, submitted that the respondent is the legal representative of the late Fredrick Tengia Mrema, and that he is the son of the late Fredrick Tengia Mrema, hence, that the respondent is responsible to step into the shoes of his late father as per Section 99 of the Probate and Administration of Estates Act, [Cap 352 R.E. 2019]. She maintained that the trial Chairperson was right in the findings because the respondent was representing his father hence was right to testify on his behalf. /Ul I 6 On rejoinder, Counsel for the appellants reiterated what was submitted in chief. On the 1st, 2nd, 4th and 5th grounds, he averred that the appellants proved their case on balance of probability. On the 3rd ground, the counsel responded that there is no standard power of attorney's format hence exhibit Kill which was given to SU1 by Mrema was a legal document in the eye of the law. He reiterated his prayers. Having gone through the submission of the parties the major issue for determination is whether the appeal has merit in the sense that the trial Tribunal erred in deciding the dispute in favour of the respondent. After a careful scrutiny of all the grounds of appeal raised by the appellants, it is clear that they are all based on the failure of the trial Chairperson to make proper analysis of the evidence adduced on the side of the appellants and hence reached to a wrong decision. It was the appellants' belief that they have proved their claims by standard of probability as required in civil matters. In determining whether the appeal has merit, I will therefore consolidate all five grounds of appeal and determine them together. During the trial, it was not in dispute that the late Fredrick Tengia Mrema was the previous lawful owner of the suit land. What was in dispute was whether he legally authorized the 1st appellant to sell off the suit land to the 2nd appellant. It was the evidence of the 1st appellant who 7 testified as SU1 that he and Fredrick Mrema were friends and that Mrema was the one who asked the 1st appellant to find him the buyer for the suit land. That after finding a buyer, Mrema authorized the 1st appellant to sell the suit property. He tendered a letter as exhibit KU1 which he claim to be authorization of Mrema to him to sell the suit land. I have read exhibit Kill. It is a letter which shows that Fredrick Mrema has authorized Halifa Mashaka to sell the suit land for the prescribed amount. The letter was purportedly signed by the author Fredrick Mrema and the receiver Halifa Mashaka. One witness has signed namely Selemani Beho. I agree with the trial Chairperson's findings that it was important for this witness Selemani Beho to come and testify on the validity of KU1. This is due to circumstances surrounding the issuance of authorization whereby the author is now deceased, and the administrator of his estate is challenging the said authorization. Another question is legality of KU1 and whether it qualify to be a power of attorney as per Section 9 of Registration of Documents Act [Cap 117 R.E. 2019] which also was discussed in the famous case of Emmanuel Murangakis as an Attorney of Anastasias vs The Administrator General, Civil Case No. 1 of 2011, HC, Dar es Salaam (Unreported). Ait 8 In his submission, Mr Mafwele stated that exhibit Kill is a valid power of attorney and that there is no standard power of attorney's format. He said further that the power of attorney is a legal document, allowing a person creating it to appoint a trusted individual to act on his behalf. That both parties must sign the paperwork and a third party is usually required to witness it. Acting on the submissions by the council of the appellants, exhibit KU1 might have been a valid power of attorney, however as per Mr Mafwele's elaboration that the power of attorney is used in temporary or permanent disability or when the principal can't sign necessary documents, in the current dispute there was no evidence that Fredrick Mrema was ill or had disability which prevented him from selling the suit land on his own to the extent that he had to appoint the 1st appellant to do so on his behalf. According to the law, the only way one can act on behalf of the other during the life time is by granting a registered Special Power of Attorney as per Section 9 of Registration of Documents Act. Even if we can believe that Exhibit KU 1 is a power of attorney from Mrema to the 1st appellant, the absence of the principal who authorized it (now deceased) and the absence of third party who witnessed it (was not 9 called to testify), cast a shadow on its validity. I agree with the reasons of the trial Chairperson in disregarding Exhibit Kill. The 1st appellant testified that he entered a sale agreement and produced exhibit KU3. In findings, the trial Chairperson doubted on the authenticity of the sale agreement as it appear to have been signed by the 1st appellant as the seller instead of Fredrick Tengia Mrema the owner of the suit property. Also the trial Chairperson observed that the appellants failed to bring important witness to prove their claims of lawful purchase of the suit land. Such witness was the Chairman of the Sangara Street, Mvuti, Msongola Ward. In his submission, Mr Mafwele, advocate for the appellants argued that the trial Chairperson erred in his findings on the failure of the appellants to bring the Chairman of Sangara Street as the evidence showed that the said Chairman is deceased. It was the evidence of SU1 and SU3 who are the appellants that Athumani Mwenda who was the Chairman of the Sangara Street was now deceased. It was not revealed when the said Chairman died. I have seen exhibits KU4 and KU3. Exhibit KU4 is declaration of the 1st appellant selling the suit land to 2nd appellant. It is signed by the "seller". It is not clear whether it was Mrema himself who signed or it was signed by the 1st appellant as attorney of Mrema. Exhibit KU3 also raises doubt about its io authenticity. It shows the names of Fredrick Mrema as the seller but someone has signed on his behalf as the place of signature it is written KNY (Kwa Niaba Ya). It means that another person signed on behalf of Mrema but this person is unknown as his name is not revealed on exhibit KU3. To sum up, I join hands with the trial Chairperson that exhibits KU1, KU3 and KU4 raises doubt as to the legal validity of those documents and hence cast a heavy doubt on the probability that the late Fredrick Mrema authorized the 1st appellant to sell the suit land. From the foregoing analysis, I find that the 1st appellant had no good title to pass to the 2nd appellant, and the whole transaction was a nullity. The trial Chairperson was right in deciding in favor of the applicant and I find no reason to set aside the judgment and decree of the trial Tribunal and I uphold the same. I find the appeal to have no merit and dismiss it in entirety with costs. It is so ordered. JUDGE 28/02/2024 li