omary mohamed vs godson sanze chamaku 2020 tzhclandd 124 13 may 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 103 OF 2019 ( Originating from Land Application No. 183 o f 2019 before the District Land and Housing Tribunal of Temeke before Hon. R.L Chenya.) OMARY MOHAMED...................................................... APPELLANT VERSUS GODSON SANZE CHAMAKU................................. RESPONDENTS JUDGMENT ON APPEAL S.M MAGHIMBL 3: The appellant, being aggrieved bythe decision ofthe District Land and Housing Tribunal for Temeke inLand application No.183 of 2017, appeals to this Court on the following Grounds: 1) That the trial chairman erred both in law and fact for failure to evaluate the tendered testimonies. 2) That the trial chairman erred both in law and fact for failure to consider that the respondent had already sold the suit land and later mortgaged to Usaka Saccos. 3) That the trial chairman erred both in law and fact in failing to evaluate the tendered testimonies which rendered to conclude that the appellant not tender sale agreement which would have operated as proof of ownership while appellant purchased in the public auction. 4) That the trial Chairman erred in law and fact for concluding that Appellant ought to have called Bernard Kalosi to establish how he acquired the suit land. The Appellant's prayer was that the judgment and decree of the tribunal be set aside and the appeal be allowed with costs. During the hearing of this appeal the appellant enjoyed the service of Mr. Samuel Shadrack Ntaliba, learned advocate while the respondent appeared in person. The appeal was disposed by way of written submissions. In his submission to support the appeal, Mr. Shadrack submitted that according to the records of the trial tribunal at page two second paragraph, it provides that the respondent (the applicant in the trial tribunal) appointed and ordained his powers to Joseph William as a donee but there is nowhere in the proceedings the said donee testified. That during the trial in the Tribunal, the respondent had already sold the land in dispute to Edson Niyo Mayugi so he had no any land to claim in the tribunal. He submitted further that the appellant purchased the suit premise in the public auction conducted on 27th November 2013 and there is sale agreement executed upon fall of hammer for 25,000,000/=. He continued to submit that the sale agreement was not tendered because of the ignorance of the procedure on the side of the appellant and lack of guidance of the Tribunal. He argued that the Tribunal ought to have guided the parties because he was not represented though he had a sale 2 agreement in his hand but failed the procedure of tendering in the Tribunal. Lastly Mr. Shadrack submitted that the tribunal Chairman glossily erred when he said that Bernad Kalosi ought to have been called to testify as he was the one who borrowed and defaulted to pay the loan. He questioned how the said Bernad Kalosi was supposed to be called to testify while he has no interest to the suit premise? He argued that after the suit land was sold, it was not easy to locate him. In his reply, the respondent submitted that the "donee" cannot testify and he did not testify in the trial tribunal but the he was called and he testified. That the appellant failed to produce any credible evidence of the disputed plot apart from reproducing some statements which are known to himseif. The respondent cited section 100(1) of the Evidence Act Cap 6 R.E 2002 which provides that: "When the terms o f the contract, grant, or any other disposition o f the property have been reduced to the form o f a document, and in all cases in which any matter is required by iaw to be reduced to the form o f a document, no evidence shall be given in proof o f the terms o f such contract,grant, or other disposition o f property, or o f such matter except the document itself, or secondary evidence o f its contents in cases in which secondary evidence is admissible under the provisions o f this Act. He argued that the appellant failed to produce the sale agreement during the trial. That the appellant claimed to have bought the suit premise 3 through public auction but never produced any proof of such auction mart and the existence of the Saccos. The respondent submitted further that there was never any auction conducted as per virtue of the law and that all these issues can be traced in the records of the trial proceedings. He prayed that this court dismiss this appeal. On my part, I have analysed the grounds of appeal and the records of the tribunal and have made the following findings. In his evidence to prove ownership, the respodent who testified as PW1 at the tribunal on 15th December 2017, told the tribunal that he bought the suit land from one Omary Muhsin Mnyasi on 07/07/2004 and he tendered the sale agreement EXP1. He called the vendor Muhsin Omary who testified as PW2 and he admitted to have sold the land to the respondent and not anyone else. The said PW2 also testified that at some point he travelled and left his land to the care of the ten cell leader but did not give any instructions to sale his land. When he came back he noticed some improvements to the suit property and decided to report the matter to the police who decided to call a person who sold the land to the respondent. On his part the appellant had testified as DW1 to have bought the suit Land in 2013 from GLTZ Co. at the price of 25,000,000/=. He however did not tender any sale agreement to show that the said land was sold to him. Even more so for the need of documentary proof, the appellant claims to have bought the land in a public auction after the owner Bernad Kalosi defaulted in repaying the loan advanced to him after mortgaging the Suit land. He should have therefore brought such evidences including the auction advert, the certificate of sale. Furthermore to his detriment, his 4 DW2 testified that they sold the suit iand privately after the failure of the public auction. Therefore there are contradicting stories on how the land was passed on to him. While the appellant's evidence was well supported by that of his vendor PW2. Having made those observations in the trial evidence, I see no reason to interfere with the findings of the trial tribunal. The appeal before me lacks merits and it is hereby dismissed with costs. Appeal Dismissed. Dated at Dar es Salaam this 13th of May, 2020.