Nehemia Gilante

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA LAND CASE APPEAL NO. 35 OF 2023 (Originating from the decision of District Land and Housing Tribunal for Tabora in Land Application No. 35 of2020) NEHEMIA GERSON GILANTE ...... ....APPELLANT VERSUS MUSA MOHAMED OMARY............... ..1st RESPONDENT AMINA SHEKA MASELE............... ........................2nd RESPONDENT ABUBAKARY PAULO KALONGA............................3*D RESPONDENT JUDGMENT Date of Last Order: 21/02/2024 Date of Delivery: 09/05/2024 MANGO, J. Nehemia Gerson Gilante, the Appellant herein, unsuccessfully instituted Land Application No. 35 of 2020 before the District Land and Housing Tribunal for Tabora against the Respondents claiming ownership of land located at Usule area within Tabora Municipality. The trial tribunal declared the first Respondent to be the lawful owner of the suit land . Aggrieved by the decision of the trial tribunal, he lodged this appeal on the following grounds; i 1. That, the trial tribunal erred in law and in facts to disregard the evidence adduced by the appellant which was supported by both witness and exhibits on both, purchase and the ownership of the land in dispute. 2. That, the trial tribunal erred in law and in facts to disregard the documents which clearly proved the 2nd respondent's knowledge and her presence on the first sale of the disputed land to the appellant. 3. That, the trial tribunal erred in law and in facts as it declared the 1st respondent to be the lawful purchaser who purchased the land in 2020 instead of the appellant who purchased the same in 2013 and the lsL respondent adamantly refused to appear before the tribunal to defend his case. 4. That, the trial tribunal misdirected by Itself when it decided the dispute in favor of the 1st respondent by basing on mere narration of the 2nd respondent indeed without any support of witness nor exhibit of the said narration which did not specify the land which was given to her by the court. 5. That, the trial tribunal erred in la w and in facts by deciding the case in favor of the 1st respondent depending on the mere narration of the 2nd respondent indeed who failed to describe the size of the land in dispute. During hearing of this appeal, the Appellant was represented by Mr. Amos Gahise learned advocate while the third respondent appeared in person. The first and second Respondents did not enter appearance despite the fact that 2 they were dully served. With the proof of service, hearing proceeded ex parte against the first and second Respondents. Submitting on the first and second grounds of appeal collectively, Mr. Gahise learned advocate for the Appellant argued that, the District Land and Housing Tribunal failed to consider evidence adduced by the Appellant which was corroborated by four witnesses including the seller of the land, the 3rd Respondent herein. He argued further that, oral and documentary evidence adduced by the Appellant proved that the land in dispute is his property after he purchased the same from the 3rd Respondent. He explained that, the sale agreement between the Appellant and the third Respondent was witnessed by the second Respondent who was by that time the wife of the third Respondent. With such evidence he is of the view that the Appellant proved his ownership over the disputed land. The learned advocate also submitted on the knowledge of the sale of the suit land to the Appellant on the part of the second Respondent. He argued that, the second Respondent though denied to have knowledge of disputed sale before the trial tribunal, evidence on record establishes that she had such knowledge before she decided to sale the same land to the first Respondent in the year 2020. He referred the Court to the sale agreement which was signed by the second Respondent and the decision of the Ward tribunal in Land Case No.4 of 2015. The case was filed before the Ward Tribunal by the third Respondent against the Appellant over boundaries of the land in dispute. Judgement of the Ward Tribunal indicates that, the second respondent who was by that time a wife of the third Respondent testified to the effect that, the Appellant purchased a land 3 measuring 52x30 steps from the third Respondent. He is of the view that, with such evidence the trial tribunal ought to have ruled infavour of the Appellant and not the first Respondent who allegedly purchased the land from the second Respondent in 2020. On the third ground of appeal, Mr. Gahise submitted that, the trial tribunal erred for determining the matter in favor of the first Respondent who did not establish his ownership over the disputed land. He referred to the case of Hemed Said vs Mohamed Mbilu, [1984] TLR 113. He then explained that, the first Respondent did not tender any evidence before the tribunal so as to move the tribunal to declare him to be the lawful owner of the land in dispute. On the fourth ground of appeal, Mr. Gahise claimed that, the oral testimony by the second Respondent was not corroborated by any witness or documentary evidence to establish the legality of the alleged sale transaction between her and the first Respondent. According to him, the second Respondent failed to establish legality of the sale of land alleged to have been effected between her and the first Respondent. On the fifth ground of appeal, the learned advocate for the Appellant faulted the decision of the trial tribunal for deciding in favor of the first Respondent while the land alleged to have been sold to him by the second Respondent is not adequately described. He is of the opinion that, the decree issued by the trial tribunal cannot be executed due to lack of descriptions of the land declared to be the property of the first Respondent. To fortify his argument, he cited the case of Fereji Said Fereji vs Jaruna General Supplies Ltd and Others, Land Case No. 86/2022. He prayed that, the 4 decision of the trial tribunal be set aside and the Appellant be declared as the lawful owner of the land in dispute. On his part, the third Respondent briefly submitted that, he sold the land to the Appellant in the year 2013 in the presence of his former wife the 2nd Respondent and other witnesses/ thereafter they divorced. He stated further that, after divorced the court ordered that the second Respondent be given two acres of the land as part of her share in the distribution of matrimonial properties. She was given the said two acres but she sold the same to different people. To his surprise, in 2020 the third Respondent sold the Appellant's land which was not part of the two acres given to her. He argued that/ by the time of the disputed sale, the Respondent was aware that the land was not part of their matrimonial assets as it was disposed to the Appellant in 2013 before their divorce in 2019. After considering submissions by the parties and Court record, the task of the court is to determine whether this appeal has merit by determining the grounds of appeal raised by the Appellant. I will start with the first ground of appeal in which the Appellant challenged the trial tribunal for failure to consider his evidence. From Court record it is not disputed that the suit land was formerly owned by the second and third Respondents, it was then, sold to the Appellant by the third Respondent as evident from the sale agreement tendered as exhibit DI. The land in dispute has never been adequately described at any point in time. The only description given is its size 52 steps length by 30 steps width. No information is given regarding the boundaries and even location of the land. In adjudication Of Land Case No. 4 of 2015, Mbugani Ward Tribunal set 5 boundaries of the land by the consent of parties however, the said boundaries were hot recorded in its judgement. Later, the land was sold to the first Respondent by the second Respondent though the second sale is not proved by any sale agreement. It is this second sale that resulted to the dispute in this matter. According to the second Respondent, she sold the land after the same being given to her in the course of the distribution of matrimonial assets between her and her ex-husband, the third Respondent. She alleged that she was not aware that the land was sold to the Appellant before she sold it to the first Respondent. In disproving such allegations, the Appellant availed the trial tribunal with the decision of the Ward Tribunal in Land Case No.4 of 2015 which was adjudicated between the Appellant and the third Respondent. The decision indicates that, the second Respondent was aware of the said sale of land to the Appellant by the third Respondent. She actually testified on the size of the piece of land sold to the Appellant as the Appellant's witness. Although the second Respondent is not bound by her testimony before the Ward tribunal but her contradictory sworn statements may be considered by the Court in assessing the demeanour and truthfulness of her testimony. Despite that, record stablishes further that, the land in dispute was not handled to the second Respondent. Proceedings of the matrimonial cause indicates that the second Respondent was given 2 acres out of 5 acres of land located at Usuie area. It seems the decision in Matrimonial Cause 23 of 2017 of Tabora Urban primary court has not yet executed or it was not properly executed. I hold so because, a letter dated 20th December 2019 authored by the Mtaa Executive Officer addressed to the court, exhibit D2 6 indicates that the land was not distributed because the third Respondent did not cooperate. A follow up letter dated 11th February 2020 indicates that the land was handled to the second Respondent in absence of the third Respondent. It is not clear whether the land that was allegedly handled to the second Respondent is part of the matrimonial assets between the second and third Respondent or not. The dispute in this case suggests that, the land which was handled to the second Respondent by the local government leaders of the area is not part of the land owned by the second and third Respondents at the time of their divorce. In that regard, the second Respondent had no good title over the land she sold to the first Appellant. It is a trite law that, he who has no title cannot pass title to another person. See Farah Mohamed vs Fatuma Abdallah [1992] TZHC 21 (18 August 1992). Thus, the 2nd Respondent's sale of the disputed land, is not legally valid. Moreover, the second Respondent did not produce any evidence to prove the alleged sale of the disputed land to the first Respondent. No witness testified to have witnessed the agreement between the first Respondent and the second Respondent. Even the first Respondent himself did not appear before the tribunal despite the fact that he was aware of the existence of the suit in which his alleged ownership over the land is challenged. Having held so, I agree with the Appellant that the trial tribunal did not consider evidence adduced by the Appellant and it also did not evaluate well the evidence tendered by the second Respondent. Had it evaluate well evidence tendered by the parties, it would have found out that the land in 7 dispute was wrongly handled to the second Respondent as it was not part of the matrimonial assets at the time the divorce decree was issued. Thus, the sale of the land to the first Respondent is legally invalid due to lack of title over the land on the part of the vendor. By extinguishing the first and second Respondent's title, the Appellant remains as the only person who holds good title over the land. Such findings disposes the first ground of appeal and the entire appeal. Therefore, I don't find it necessary to dispose the remaining grounds of appeal. The Appeal is hereby allowed, and the decision of the trial tribunal is quashed and its orders are set aside. I would have ordered the third Respondent to pay costs since the dispute resulted from his non-cooperation with the second Respondent in division of matrimonial assets as ordered by the Court. However, such order will make the relationship between the second and the third Respondent more sour. For that reason, I do not award costs. Dated at Tabora this 9th day of May 2024 8