20170331 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY

AT MWANZA LAND CASE APPEAL NUMBER 1 OF 2017 · {Arising From the Decision of Mwanza Land and Housing Tribunal in Land Appeal Number 140 of 2014 and Land Application Number S of 2014} 1. PAULO GEORGE ............................ 1 ST APPELLANT 2. RETISIA MAGI. ............................. 2No APPELLANT

VERSUS KULWA LUTANDULA ......•................. RESPONDENT JUDGME.NT' 21.03.2017 & 31.03.2017 Matupa, J. This appeal must succeed. It is not in dispute that the land in dispute was once owned by one Magi Ludomoja, who happens to be the father in law of the first appellant, and as the name would attest, the father to the second appellant. Also it is not in serious dispute that the said Magi Ludomoja invited the appellants to the land in dispute. It is intimated that the invitation was by way of sale and the appellants did not honor the payment of the purchase price. The trial 1 ~ . t> ward tribunal decided in favor of the appellant after it was satisfied on (~' the evidence that the land was sold to the respondent for the second time, after he had sold it to the appellants. The appellate District Land and Housing Tribunal was inclined to reverse the decision of the trial tribunal in favor of the respondent. The appellants were aggrieved by this decision. They have appealed to this court on the following grounds which can be summarized as follows. That when the land was sold to the respondent, already the appellants were _settled on the land after the same had been given to them by their father, the said Magi Budomoji, in consideration for love and affection. That despite the transfer in consideration of love and affection, still they agreed to pay the father shillings 800,000/=,

Out of which they paid ·shillings 200,000/=. Still the father decided to sell the land to the respondent. Before me both parties were not represented, they therefore fended for themselves. They did not have much to contend as the facts were agreed by the parties. The issue is whether ( the father was .. , 2 60: entitled to sell the land after he had given it to the appellants as a gift or sold it to them. The decision of the District Land and Housing Tribunal is fraught with factual incorrectness and legal impairments. The crucial paragraph in the decision is the following. "This tribunal after reading the proceedings and the admission of the respondent that they were given the land from Mzee Magi the father of the 1 st respondent while already the same had been sold to the appellant before the ward executive officer. This shows that the appellant has a legal right to continue occupying the same as the first purchaser. Being satisfied that the respondents failed to observed {sic} the doctrine of caveat emptor, this tribunal is hereby disturb the decision of the ward tribunal is hereby disturb {s!c} the decision and declare the appellant the lawful owner of the disputed plot" As can be seen, this decision is not in accord with the facts. All witnesses testified that when the land was sold to the respondent 3 ,Q,l) already the appellants were in occupation of it. Indeed, the gist

of the claim at the trial tribunal was that the appellants were resisting yielding vacant possession of the land in dispute. The decision that the appellants bought the land last, is flawed in fact and therefore, the invocation of the doctrine of caveat emptor in the circumstances of this case is equally flawed. Secondly the invocation of the doctrine of caveat emptor by the appellate Tribunal was, in the circumstances of this case desperate. The appell~nts were in ths:• occupation of the land:-at the-time the. land in dispute was sold to the respondent and it is intimated that they were coerced to give it up in order to allow the respondent to buy it for second time. This fact is not in dispute at all and this explains the decision of the respondent to sue the appellant for vacant possession. It is surprising that the doctrine of caveat emptor could be invoked against the party who was in occupation of the land and in 4 favor of the party who was supposed to have express notice that the land he was buying was occupied by another person. The issue here is whether the father was entitled to sell the land under the circumstances of the case where already he sold the land to the appellants or he gave them as a gift. Definitely, this is against the law. One, the principle of the law on donations can be found under section 25 (2) of the law of contract Act, Cap 345 of the

2002 Revised Edition of the Laws of Tanzania. Subsection (1) of the _.sectio~ yoids .agreements :ma0e without- consideration, -unless -tney -----·- - -- fall under exceptions stipulate there under. Subsection (2) provides as follows (2) Nothing in this section shall affect the validity as between the donor and the donee of any gift actually made The · Court of appeal addressed this provision in the case of Mkamangi Elifuraha versus Mwinyishehe Mwinyishehe (1991) 191 in which case the Court stated that the provision saves gifts from the requirement of consideration. The land which had been donated 5 16K i' ~.JLL., ..,,_ -..,. .. - - I J' -/•· \. ,i i V { ; ·· to the appellants vested to them whether or not there was consideration. On the issue of whether the father was entitled to sell the land after the purported default in the payment of sale price, there is a principle of the law that once a contract of sale is concluded and goods have passed to the buyer, the seller cannot go back to the goods but the only available recourse is to sue for the balance of the purchase price. This principle was stated in the case of Chandacant Vinubhai Patel versus Frank Leonel Marealle and another (1984) TLR 231. In the present case it is suggested that the father sold the farm which was already in the occupation of the appellants, who had already had the possession of the land by way of a

gift and the father wanted to. sell the land so donated as a gift. Much as the father did not have the right to dispossess the land which was so donated, he did not have the right to sell the land which has already sold. 6 In the result this appeal succeeds. The decision of the appellate \ . Land and Housing Tribunal is hereby quashed and set aside and that of the trial Ward Tribunal is restored. For avoidance of doubt, the appellants are hereby declared owners of the land in dispute by donation. The appellants shall be paid their costs of this appeal and those of the courts below. It is so ordered. ~~~ s.$.M:G.NfATUPA

JUDGE 7 Date: 31.03.2017 Coram: Hon. Matupa, J Appellant: 1st and 2nd - present Respondent: present B/C: Kaijage Court: The judgment was read in chambers in the presence of the parties this 31 st day of March, 2017. S.B'.

JUDGE AtMwanza 31 st March, 2017 8