20131210 TZHC Mbeya1

El 31 IN THE HIGH COURT OF TANZANIA 2 (LAND DIVISION) AT MBEYA LAND APPEAL NO. 22 OF 2011 (From the Decision of the District Land and Housing Tribunal of Rungwe District at Tukuyu in Land Case No. 24 of 2009) OLINI ANDENDEKISYE MWANTILA1 TABIBU OLINI ANDENDEKISYE VERSUS f ....... APPELLANTS PRIDE TANZANIA LTD1 YONO AUCTION MART ....................... RESPONDENTS SALUM ALLY MBARUKJ 26th November & 10th December, 2013 JUDGMENT MWAMBEGELE, 1: The Appellant Olini Andendekisnye Mwantila (henceforth "the appellant") together his wife Tabibu Olini Andengenye, whose appeal was on 06.06.2013 dismissed by this court for want of prosecution, unsuccessfully sued the three Respondents PRIDE Tanzania Ltd, Yono Auction Mart and Salum Ally Mbaruk (henceforth" the Respondents") in the District Land and Housing Tribunal for, inter a/ia, a declaration that 1 the auction conducted on 22.05.2009 in respect of a house located at Kiwira Kati area within the District of Rungwe null and void. The District Land and Housing Tribunal, after hearing both parties, dismissed the application and declared the third Respondent a lawful owner of the disputed premises. Aggrieved, the Appellant filed an appeal in this court advancing eleven grounds of appeal. The grounds of appeal have been presented in a discursive style but they can be summarised in three major complaints: That the District Land and Housing Tribunal did not take into consideration the fact that the loan was to be repaid in twenty four months and not eighteen months as claimed by the first Respondent; That the decision of the District Land and Housing was against the evidence adduced; and That the auction of sale conducted was illegal. The appeal was argued before me on 26.11.2013. The appellant appeared in person and unrepresented and the three respondents had the services of Mr. Mbise, learned Counsel. During the hearing of the appeal, the appellant sought to rely on the Memorandum of Appeal and adopted all the eleven grounds. He added that he was allowed to repay the loan in twenty four months at the rate of Tshs. 293,400/= per instalment and not eighteen months at the rate 2 of Tshs. 365, 600/= per instalment as claimed by the first respondent and the Loan Agreement. He went on to submit that he paid a quarter of the intended loan as security and as per PRIDE Regulations in two instalments the first being in the month of December 2007 and the second being on 08.01.2008. On the terms of the Loan Agreement, the Appellant averred that the relevant pages on which it was endorsed eighteen months and Tshs. 365,600/= were altered. That is the reason why the Agreement shows a tick on twenty four months cancelled and ticked at one and half years in its stead. The appellant went on to submit that the auction was conducted on Friday 22.05.2009 and on the following Monday; that is 25.05.2009, he went to the PRIDE Offices to which he paid part of the outstanding sum while fully aware that he had repaid about 80% of the loan and had eight months ahead to complete repayment. The Appellant complained of the whole process being unfair to him; his house was sold and yet the first Respondent continued to receive the instalments. The Respondents, through Mr. Mbise, learned Counsel, resisted the appeal with some force Mr. Mbise submitted that there was no way the appellant could win the case as the evidence adduced in court was completely hearsay as the appellant and his wife never testified after they appointed a representative one Joseph Chale on 09.11.2009 well before the hearing of the case commenced. He went on to submit that the case at hand falls in all fours with the decision of this court in PRIDE Tanzania Ltd Vs Sarah Joseph Mwakibete, Land Appeal No. 3 - 17 of 2011 (Mbeya Unreported) in which, like in the present instance, - the Respondent granted power of attorney to one Francis Mbotei Mwakajonga and the Ditrict Land and Housing Tribunal decided in favour of the Respondent but on appeal the High Court reversed the decision of the District Land and Housing Tribunal on the ground that all what was stated by the holder of the power of attorney was but hearsay. Mr. Mbise also cited Gozibert Rwamulelwa Vs Prisca Rwamulelwa [2005] TLR 417 to support this argument. He therefore sought the indulgence of this court to apply the same principles in the present case. In rejoinder, the Appellant stated that it is true he appointed a representative through a power of attorney as at that time he was in bad health and was on medication. That he and his wife used to attend in court but were never allowed to enter the court room; they simply remained in the court precincts waiting for Joseph Chale to feed them what had transpired in court. On the cases cited, the appellant stated that the Mwakibete case is distinguishable from the present case as in that case the respondent won the case in the District Land and Housing Tribunal while in the present case he did not. On the Rwamulela case, he stated that he could not understand it well because the learned Counsel did not sufficiently elucidate on it. This case has caused me a considerable anxiety. It raises pertinent issues that, inter a/ia, that concern the administration of justice in relation to the holders of powers of attorney. It is not in dispute that t'r) the appellant appointed a holder of a power of attorney to take care of the conduct of this case and surrendering everything in his hands including testifying on his behalf. Let me, firstly belabour on this point before embarking on the grounds of appeal. A power of attorney is a formal instrument by which one person empowers another to represent him or act in his stead for certain purposes. A power of attorney may be in respect of, say a sale of a house or a conduct of a case. I wish to emphasize that if such power of attorney is in respect of conduct of a case, it is important that the donor of the power should be very careful when it comes to giving evidence in court. It will be imperative for the donor of the power of attorney to testify himself. The donee of the power of attorney should not testify for and on behalf of the donor of the power, otherwise such evidence will not escape the wrath of being declared hearsay to the detriment of the donor of the power of attorney like was the case in the present instance. As bad luck would have it, the power of attorney was not tendered in court and therefore it rendered me difficult to decipher the contents thereof. It is evident on record that on 09.11.2009 the appellant's prayer to be represented by the said Joseph Chale was granted by the court. In the premises, this court cannot be sure of the extent of such representation. I wish to state at this juncture that I am alive to the law relating to representations in the District Land and Housing Tribunal - the law does not bar representation by any relative or any member of III - the household. This is the import of the provisions of Section 30 of the Land Disputes Courts Act, Cap. 216 of the Revised Edition, 2002 which provide: "Proceedings of the District Land and Housing Tribunal shall be held in public and a party to the proceedings may appear in person or by an advocate or any relative or any member of the household or authorised officer of a body corporate". [Emphasis supplied]. In the light of the foregoing provision of the law, it was not inappropriate for the appellant to grant powers of attorney to Joseph Chale, who he said was his brother-in-law, to represent him in the conduct of this case. However, just a word of caution that donors of such powers must be very careful so that when it comes to testifying in court, they must do so themselves instead of the holders of the powers testifying on their behalf. Powers to testify must not be delegated. In the premises, what ought to have been done by the Appellant in the present case, was to testify himself and his wife in addition to other witnesses who were brought to test in support of their case. I therefore am in agreement with Mr. Mbise and in the light of the Mwakibete case (supra) that most of the testimony of Joseph Chale was but hearsay. 6 In such an eventuality, what should the District Land and Housing Tribunal have done? The answer to this question was provided by this court [Luanda, J. (as he then was)] in the Rwamule/wa case (supra) in the following terms: "Where a party to a suit has been allowed by a trial primary court to be represented by a relative or any member of a household and has adduced hearsay evidence, the court should adjourn the case and direct the party to the case to appear in person so as to enable him give his evidence". For the avoidance of doubt, Luanda, J. (as he then was) was grappling with an identical provision - section 33 (2) of the Magistrates' Courts Act, Cap. 11 of the Revised Edition, 2002 - which, like section 30 of Cap. 216, allows representation of a party to any proceedings of a civil nature in the Primary Court by way of a relative or member of a household. I fully subscribe to this decision. Applying this principle to the case at hand, the District Land and Housing Tribunal, in the interest of justice, ought to have adjourned the case and directed the Appellant and his wife to appear in person and give evidence. It is in so doing that the oft-quoted aphorism of Lord Hewart 0 [in Rex. Vs Sussex Justices; Ex-parte McCarthy [1924] 1 KB 256 at 259, [1923] All ER 233 at 234] that justice should not only be done, but should manifestly and undoubtedly be seen to be done, would be put into real practice. The Tribunal did not direct itself to such an important step in the administration of justice. Witnesses who were fielded in support of the Appellant's case at the trial included one from the first Respondent. Sarah Alinanuswe Iswaga who testified as PW1 is a founder of PRIDE Tanzania Ltd; the first Respondent. How would, in the circumstances, the first Respondent's member and founder of the institution have testified in favour of the Appellant? This, naturally, would not be humanly possible. Another witness - Felix Marko - who testified as PW2 was a Village Executive Officer to whom the Appellant lodged a complaint in May, 2009 after the disputed house was auctioned. He had no material relevance to the Appellant's case. It may not be out of place to underscore that holders of powers of attorney should not only perform their roles diligently but also should not transform themselves into the like of advocates. The way Mr. Joseph. Chale; a retired High Court Registry Officer, conducted this suit leaves a lot to be desired and leaves no doubt that he masqueraded the powers of an advocate. At this stage, I wish to echo what was stated by this court in Eustace Ndebeya Vs Christina Herman, Civil Appeal No. 17 of 1987 (Bukoba Unreported). That decision is discussed by Ben Lobulu in his book entitled Pitfalls in Litigation (Perfect Printers, 2004) at pp 14, 15. The present appeal falls in all fours with Eustace 8 11-4-11A~ ) ~ Ndebeya. In that appeal, the Respondent granted power of attorney to a public writer who testified in court in place of the Respondent. This court (Munyera, 3.), on powers of attorney, held: "There are two irregularities which this court cannot tolerate; first the respondent was represented by a character known as a public writer. This court has always ruled that such pretenders have no locus standi in court because they are not recognised counsels (sic). The so called power of attorney does not authorise to practice as advocates". On the holder of power of attorney testifying in place of the donor of the power, Munyera, J. (as he then was) stated: "... the respondent whose name appeared on all documents did not give evidence, instead the public writer testified on his behalf, he spoke as if it was the respondent himself speaking. This was no evidence at all as it was not given by the person wh knew those facts. Even if a party is represented by an advocate still he must give evidence, the advocate's duty is to examine him and his witnesses and make legal submissions. I am surprised that the trial magistrate allowed the court of law to be turned into a vagary forum of bush lawyers". Likewise, in Mrs. Theresia J. Mubfru Vs Zainab Zakaria, Civil Appeal No. 24 of 1988 (Arusha Unreported), discussed at a considerable length by Ben Lobulu in his Pitfalls in Litigation (supra) at page 15 through to page 18, this court [Mroso, 3. (as he then was)] stated that where an attorney is appointed, he cannot purport to give evidence on behalf of the principle. In the light of the foregoing, it is evident that the Appellant and his wife, who were applicants in the application before the District Land and Housing Tribunal, ought to have testified in support of their application. Leaving Joseph Chale; holder of power of attorney, to testify on their behalf was inappropriate and made a greater part of his testimony hearsay. The appellant has complained that as per the Loan Agreement, the loan was to be repaid in twenty four months while the first Respondent avers that it was to be repaid in eighteen months. It is a word against another. The Appellant told the court he was not allowed to remain with a copy of the Loan Agreement. The Agreement was tendered in evidence as Exh. Dl. I have seen it. It is ticked at a place showing the 10 loan will be repaid in 11/2 years and ticked and cancelled at a place showing the loan was to be repaid in 2 years. It is important to remember the fact that the relationship between the appellant and the first Respondent is that of a stronger party (the first Respondent) and the weaker party (the Appellant). It is a salutary rule that when there are two conflicting factual positions between a stronger and a weaker party, the court is enjoined to construe the position that is favourable to the weaker party. In the circumstances, I find myself persuaded by the appellant's story to the effect that the loan was to be repaid in 2 years (twenty four months). The foregoing conclusion is based on the evidence adduced at the trial and in the light of Exh. Dl. It is provided in Exh. Dl at paragraph 3b as follows: "mikupuo hiyo ni lazima iwe imelipwa tarehe 07 ya kila mwezi kuanzia tarehe 0710212008 na kumalizika tarehe 07/08/2009". [Emphasis mine. The dates in the foregoing quoted paragraph have been hand-filled. Except for the signature of the parties at the end of the Agreement, there is no endorsement on each page of the agreement. The house which was put as collateral was sold in May, 2009. This was, as per the foregoing quoted term of the Loan Agreement, well before the dead 4. line. This lends credence to the appellant's story to the effect that he • still had time to play with in repaying the loan. The cumulative effect of the foregoing discussion is a finding that the Appellant was advanced a loan which was to be repaid in a period of time whose dead line was 07.08.2009 as indicated in paragraph 3b of the Loan Agreement. I so find and hold. Having so found and held, one wonders why the first Respondent rushed into auctioning the collateral in May, 2009 well before the indicated and agreed dead line. I use the word "rushed" because it is clear the Agreement provided for the time frame within which to repay the loan. In addition to that, paragraph 1 of Part Four of the Loan Agreement provides in no uncertain terms that such a course of action would only be resorted to after efforts to settle the dispute amicably failed. Let paragraph 1 of Part Four of the Loan Agreement paint the picture: "Kasoro yeyote (sic) ita kayoj itokeza kutokana na mkataba huu itasuluhishwa kwa njia ya majadiliano. Hata hivyo MKOPESHA.JI anayo haki ya kuchukua hatua za kisheria ikiwa ni pamoja na kuuza vifaa na vyombo wakati wowote kufidia marejesho ya mikopo na g harama zitakazohusika pale ambapo 12 usuluhishi wa kasoro hizo utashindikana kwa njia ya majadiliano". [Emphasis supplied]. The gist of the foregoing quote is that any disputed arising out of this agreement will be settled amicably failure of which recourse may be made to have the collateral sold to recover the loan money. According to this paragraph the course of action opted by the first Respondent ought to have been resorted to after efforts to settle the matter amicably failed. At the trial, there were disclosed no reasons why paragraph 1 of Part Four of the Loan Agreement was not brought into play. And before me, there have been disclosed no reasons why paragraph 1 of Part Four of the Loan Agreement was not brought into play before taking the path taken which has led into all this mess. I wish to point out before penning off that the Mwakibete case (supra) is distinguishable from the present case for the simple reason that in the present case the house which was put as collateral was sold before the expiry of the time frame within which the loan was to be repaid thereby making the whole process of auction null and void. The foregoing discussion answers the second and third grounds of appeals as consolidated above in the affirmative; that the District Land and Housing Tribunal decided the case before it against evidence. The purported auction, which was conducted before the dead line of 13 4 repayment of the loan and which was resorted to before paragraph 1 of Part Four of the Loan Agreement was brought into play, was null and void. In the upshot, this appeal is allowed. The judgment of the District Land and Housing Tribunal is quashed and the flanking orders thereof set aside. The appellant is declared the lawful owner of the disputed premises. The disputed premises should revert to the Appellant immediately after completing payment of the outstanding sum of the debt as at the date of auction which he is to pay in four months from the date of this judgment. The third Respondent is at liberty to claim from the first Respondent the monies he parted with as a result of the auction, if he so wishes. The appellant to have his costs in this court and the court below. It is so ordered. DATED at MBEYA this 10th day of December, 2013. J. C. M. MWAMBEGELE JUDGE 14