Misc

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA MISC. LAND APPEAL NO. 5170 OF 2024 (Originated from the District Land and Housing Tribunal for Rukwa at Sumbawanga in Land Application No. 24 of2023)

BETWEEN NICHOLAUS SALUM SIMTOWE................................................ APPELLANT

VERSUS PRISCA SPIKA NZICHE.......................................................... RESPONDENT

JUDGMENT 16h October & 4h December, 2024 MRISHA, J. The appellant having been aggrieved by the decision of the District Land and Housing Tribunal for Rukwa at Sumbawanga in Land Application No. 24 of 2023 (the trial tribunal) which upon hearing of the application between him and the respondent, found in favour of, and declared the respondent as the lawful owner of the disputed land to wit: a 20/50 paces piece of land, has appealed to this court seeking for the orders that the court be pleased to allow the present appeal with costs, nullify an invalid sale agreement between 1 Edward Chatengwa and Prisca Nziche and proceed to nullify the proceedings as well as the decision of the trial tribunal. His prayers are based on the following grounds: - 1. That, the trial tribunal erred in law and fact for ignoring the strong and reliable evidence adduced by the appellant’s side which proved that the land in dispute belongs to the appellant.

2. That, the trial tribunal erred in law and fact by upholding an invalid sale agreement dated 19.06.2006 between one Edward Chatengwa and Prisca Nziche, the respondent which disposed of the land which did not belong to the seller.

3. That, the trial tribunal erred in law and fact by declaring the respondent a rightful owner of the land in dispute.

4. That, the trial chairperson favoured the respondent in all circumstances.

5. That, the appellant was fairly treated in all circumstances. On the other hand, the respondent has strongly disputed the appellant’s prayers and grounds of appeal. She has instead urged the court to dismiss the instant appeal with costs and upheld the decision of the trial tribunal on the grounds that: 1. That, the respondent vehemently disputes the first claim of the appellant and put him to strict proof of the same. What the respondent call back 2 to her mind, is that during cross examination before the trial tribunal, the appellant was asked to show the way he got the disputed plot and the way he sold it, but he replied that he sold the disputed plot without any sale agreement; hence failed to show the way he got the disputed plot, thus his blame against the trial tribunal is hopeless.

2. That the trial tribunal after its perusal found the sale agreement dated 19.06.2006 to be valid as between Edward Chatengwa (who bought the disputed plot from the appellant) and Prisca Spika Nziche (the respondent). The trial tribunal also found the respondent to be the rightful owner of the plot in dispute; which she bought from the deceased Edward Chatengwa.

3. That, the appellant’s intention is nothing, but to disturb the respondent whom he did not meet with anywhere and make any business, instead the appellant should have disturbed the deceased Edward Chatengwa when he was still alive.

4. The respondent made a sale agreement on 19.06.2006 until today it about 18 years past, and the appellant was silent; that by quick judgment of thinking, can be said that the respondent is being disturbed because of her womanish. 3 5. That, the trial tribunal made the righteous declaration by announcing the respondent as the rightful owner of the land in dispute for there is no any correspondence between the appellant and the respondent.

6. That the appellant is put to strict proof in respect of the fourth and fifth grounds of appeal. It came out that when the matter was called on for hearing, none of the parties to this appeal was legally represented, rather each of them appeared in person and prosecuted his/her case orally. Being the first to take the floor, the appellant first adopted his grounds of appeal so as to form part of his submission in chief. Secondly, he reiterated his previous prayers before the court which include to allow the present appeal with costs and, to nullify the sale agreement between one Edward Chatengwa and the respondent. On her side, the respondent being a layperson like her counterpart, did not have much to submit before the court, rather she also adopted her reply to the petition of appeal to form part of her submission in chief and ended up by imploring me to dismiss the instant appeal with costs. According to the impugned trial tribunal’s judgment and the records of that tribunal, it appears that the disputed land is at a place called Chemka which is within Sumbawanga District in Rukwa Region and both parties are at one that before being sold to the respondent, the said land was belonged to the 4 appellant, but sometime in 2005 the appellant sold it to one Rosemary Feliciano Sadala (one of the appellant’s witnesses before the trial tribunal) who later sold it to the

respondent. The only thing which appears to have made the appellant and the respondent to tangle over the said land, thus leading to the institution of Land Application No. 24/2023 with the trial tribunal and now the present appeal, is the size of the land alleged to be sold to the respondent by the last vendor who in this case is one Rosemary Feliciano Sadala. This is because during trial, the appellant who testified as SM1, while his two witnesses namely Festus Jailos and Rosemary Feliciano Sadala, testified as SM2 and SM3 respectively, claimed that the land which he sold to SM3 and which was later sold to the respondent, was of 20 paces width and 30 paces length. Like his witnesses, the appellant vehemently denied the fact that the size of that land (the disputed land) is 20/50 paces. However, on the adversary side, the respondent has strongly denied such averment and maintained that the size of the disputed land which she purchased from SM3, is 20 paces width and 50 paces width and she added that she purchased that land from SM3 for Tshs. 55,000/=. Having looked at the grounds of appeal as raised by the appellant in his petition of appeal, the entire records of the trial tribunal and the rival 5 submissions by the parties herein, I am of the view that this appeal can be disposed of based on grounds 1, 2 and 3 of appeal. This is because the remaining grounds of appeal are

mere allegations which are not supported by any cogent evidence from the respondent as nowhere in the proceedings of the trial tribunal it is revealed that the respondent was favoured by the learned trial chairperson or that the appellant was not fairly treated in all circumstances. Hence, I dismiss such grounds of appeal for being unmerited and, proceed to deal with the merits or otherwise of the remaining grounds, as stated above. In ground 1, the appellant has faulted the trial tribunal both in law and fact for ignoring his strong and reliable evidence which according to him, prove that the disputed land belongs to him. By its appearance, this ground falls under the principles relating to the standard of proof in civil cases which is elaborated in various legal sources. For instance, under section 3 (2) (b) of the Evidence Act, Cap 6 R.E. 2019 (the Evidence Act), it is provided that: “A fact is said to be proved when— (a) (N/A) 6 (b) in civil matters, including matrimonial causes and matters, its existence is established by a preponderance ofprobability...” Also, section 110 (1) and (2) of the Evidence Act provides that: “100. Burden of Proof (1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it

is said that the burden ofproof lies on that person” Likewise, in the case of Paulina Samson Ndawaya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 (CAT at Mwanza, unreported), it was stated intel alia, that: "It is again trite that the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his and that the burden of proof is not diluted on account of the weakness of the opposite party's case” The above principles clearly demonstrate that it is upon the party who wants any court to enter judgment in his favour to prove existence of a particular fact on the balance of probabilities. The burden of proving so lies with the one 7 who alleges existence of a certain fact and, it cannot shift to the other (adverse) party until the party on whom the onus lies has fully discharged his. The above principle suits the circumstances of the case at hand where the appellant claims that his evidence before the trial tribunal was strong enough to prove the fact that the disputed land belongs to him. This means, it is him who bears the burden of proving such fact on the balance of probabilities and not the respondent. As it has been alluded earlier, the appellant’s case is that his evidence was strong enough to prove his claim against the respondent and the trial court ought not to disregard, but accept it and enter the judgment in his

favour. However, having gone through the records of the trial tribunal as well as the impugned judgment, I am with all due respect, unable to accept such argument by the appellant. Apart from the rival submissions of the parties in relation to the size of the disputed land, it is not in dispute between the appellant and the respondent that disposition of the said land between SM3’s husband one Edward Chatengwa (the appellant’s witness) and the respondent, was made in writing, or in other words it can be said that the sale agreement between those two persons was reduced into writing, as exhibited by a sale agreement executed on 19.06.2006. 8 The relevant part of that agreement may be reproduced as hereunder: "...99/6/6666

YAH MAUZO YA SHAMBA LA KUJENGA NYUMBA LILILOKO

KATIKA MTAAWA CHEMKA

NDUGU EDUARD CHATENGWA AMEMUUZIA NDUGU PRISCA NZICHE ENEO (SIC) LILITAJWA HAPO JUU KWA MAKUBALIANO YA THAMANI YA SH 55,666/= HAMSINI NA TANO ELFU ENEO HILO LINA UPANA W HATUA 20 NA UREFUHATUA 50...” It is apparent from the above excerpt, that apart from describing the parties to the said agreement as being Mr. Edward Chatengwa, as the seller of the disputed land whom the appellant and SM3 have conceded to have been the person who sold the disputed land to the respondent with his wife who is SM3, and Prisca Chinze, the respondent herein, as the buyer, the same also reveals that the said land was sold to the respondent. The fact that the disputed land was sold to the respondent by the husband of the appellant’s second witness (SM3), was not disputed by the appellant and SM3, his second witness, as it is shown at pages 3 and 8 of the trial tribunal typed proceedings whereby SM3 categorically admitted to have sold to the respondent the disputed land with her husband. 9 The said witness did not end there, but she also admitted through her evidence before the trial court, to have sold the disputed land to the respondent at the price of Tshs. 55,000/= which is also stated in the sale agreement tendered by the respondent, as it is shown at page 8 of the typed proceedings of the trial tribunal. The records of the trial tribunal also reveal that in adducing her evidence before the said

tribunal, the respondent repeated what was stated in the sale agreement which was executed on 19.06.2006 and, mentioned one Edward Chatengwa as a person from whom she purchased the disputed land. Her evidence was corroborated by one Oscar Sichone (SU2), her only witness who apart from mentioning one Edward Chatengwa as the vendor of the disputed land, went an extra mile by telling the trial tribunal that the disputed land was sold by the said person at the price of Tshs. 55,000/=. Regarding the size of land, I have gone through the trial tribunal’s records and observed that the evidence of the appellant and his two witnesses was shaken during cross examination, as it is shown at page 8 of the trial tribunal typed proceedings where upon being cross examined, SM3 said: "Tliizziwa hatua 20 kwa 30 na ndizo tulizokuuzia.Hatukukuuzia eneo lenye ukubwa wa hatua 20 kwa 50..." 10 Flowing from the above excerpt, it is apparent that by probing such witness on the size of the disputed land, the respondent intended to show to the trial tribunal that the size of the disputed land which she purchased from SM3 and her husband, was not 20/50 paces, but 20/50 paces. On my part, I am convinced to believe and find her evidence to be credible because apart from being corroborated by the evidence of SU2 (who was the respondent’s witness), the same is also corroborated by the sale agreement which

apart from showing the amount of consideration, also depicts the same size of the disputed land as the one stated in the evidence of the respondent and her witness, as indicated above. More so, it is on record that during examination by the trial tribunal, the appellant who stood as SM1, told the trial tribunal that, "...Enoo gombewa ni hatua 18 kwa 20” (the size of the disputed land is 18/30 paces), while in responding to the same question, SM2 said, "Enoo gombewa ni hatua 20 kwa 13” (the same is 20/13 paces). In my view, the above tells it all that the appellant and his witness were not certain in regard to the actual size of the disputed land which indicates clearly that their evidence is not true and cannot be said to be strong as the appellant would want the court to find. 11 Besides, the law is clear that when the terms of a contract, grant, or any other disposition of property, have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant, or other disposition of property, or of such matter excerpt the document itself. (See: section 100 (1) of the Law of Evidence). In the present appeal, there is no dispute that the disputed land was sold to the respondent and the agreement in relation to that sale was reduced into writing. In the circumstance, the oral evidence of the appellant and his witnesses which appears to

have questioned the legality of the sale agreement between one Edward Chatengwa (the SM3’s husband) and the respondent, cannot be used to disprove the contents of the said sale agreement. Thus, due to the above reasons, I find that the first ground of appeal has no merit. This means the appellant failed to discharged his burden of proving his case against the respondent on the standard required by the law. This makes such ground to crumble. Turning to ground 2, the appellant has complained that the trial tribunal erred in law and fact by upholding an invalid sale agreement dated 19.06.2006 between one Edward Chatengwa and Prisca Nziche (the respondent in this 12 appeal) which disposed of the land which according to the appellant, did not belong to the seller. This ground cannot make the court to spent much time in addressing it. In the course of dealing with the first ground, it has been found that the sale agreement referred by the appellant was not challenged by the appellant in accordance with the law. Also, in the course of his testimony, SU2 who was the respondent’s witness narrated that the sale agreement relating to the disputed land was prepared by the street chairman and he appended his signature on the same, as the respondent’s witness. In my examination of the said sale agreement, I have observed that truly SU2 had put his signature on the said document as a witness

which tells that his evidence before the trial tribunal, was true. All that indicates that the said sale agreement was valid as it contained almost all the features of a valid contract/agreement as stipulated under section 10 of the Law of Contract, Cap 345 R.E. 2019 which provides intel alia, that: "...AH agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a HawfuH object.” 13 I also took time to go through the records of the trial tribunal and observed that the sale agreement under scrutiny was made by competent parties to it because there is nowhere it is stated therein that either one Edward Chatengwa or the respondent, was under the law incompetent to enter into such agreement. I also observed that the said agreement involved a lawful object which was to enable the respondent to build a house on that land and also, I observed that the said agreement involved a lawful consideration which was paid in full by the respondent before the disputed land was handed over to her. Thus, owing to the foregoing reasons, it is my settled view that the second ground of appeal also lacks merit and is hereby dismissed. As for ground 3, I hold the same position that the same cannot waste my time in addressing it because the same is also bound to be dismissed for want of merit. Since, it has been found that the

appellant failed to discharge his onus of proof, one should not have expected the trial tribunal to have hesitated to declare the respondent as a lawful owner of the disputed land. In fact, based on the principles of law as to standard of proof in civil cases, as referred to hereinabove, it was the duty of the appellant to prove his claim over the disputed land against the respondent, but in this case, it appears that the respondent was well prepared and managed to lead sufficient evidence which any court of law would find to be credible and watertight, as the trial 14 tribunal did. In the circumstances, I cannot, but agree with the findings of the trial tribunal that given the circumstances of the case at hand, the respondent deserves to be declared as the lawful owner of the disputed land. In the premise, I find and hold that the present appeal has no merit. Hence, I dismiss it with costs and upheld the decision of the trial tribunal. A.A. MRISHA

JUDGE 04.12.2024 DATED at SUMBAWANGA this 4th day of December, 2024. A.A. MRISHA

JUDGE 04.12.2024 15