Paulo Mashoto

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

TABORA SUB REGISTRY

AT TABORA LAND APPEAL NO. 11 OF 2023 (Originating from the decision of the District Land and Housing Tribunal for Tabora in Land Application No. 47 of 2018) PAULO JOHN MASHOTO................................................. APPELLANT

VERSUS NATHANIEL STEPHANO.............................................. RESPONDENT

JUDGMENT Date of Last Order: 03/07/2024 Date of Delivery: 01/08/2024 MANGO, J. This appeal arises from a dispute over a parcel of land situate at Kiloleni area, Plot No. 212 Block BB within Tabora municipality between the Appellant, Paulo John Mashoto on the one hand, and Nathaniel Stephano Mboya, the Respondent herein. To appreciate the appeal before me, I find it apt to narrate briefly the material background facts of the dispute between the parties, as can be gleaned from the pleadings and the entire record. It shows that in 2018 the Appellant, Paulo John Mashoto purchased the suit land from one Veronica Hakimu Mwakipesile who was the second Respondent before the trial i tribunal, at TZS 23,000,000/= the latter being the wife of the Respondent herein. All these happened while the Respondent was in Loliondo for a special official duty. Veronica Hakimu Mwakipesile disappeared after selling the suit premises to the Appellant. Nathaniel Stephano, the Respondent herein, decided to enter caveat to bar any transfer of the suit land and instituted Land Application No. 47 of 2018 before the District Land and Housing Tribunal for Tabora contesting ownership over the suit land. Summons against Veronica Hakimu Mwakipesile was issued and served via publication after a failed physical service but in vain. Therefore the trial tribunal decided to proceed in her absence. After a full trial,

the trial tribunal decided in favour of the Respondent, Nathaniel Stephano and declared that a sale agreement between Veronica Hakimu Mwakipesile and Paulo John Mashoto to be void. The trial tribunal also ordered the Appellant to vacate the suit premises. Dissatisfied by the decision of the District Land and Housing Tribunal, the Appellant preferred the appeal at hand. His memorandum of appeal contains five grounds of appeal which are hereby reproduced as follows: - 1. That, the purported judgment and decree of the trial Hon. Chairman of Tabora District Land and Housing Tribunal is legally defective since the same did not take into account, that the Applicant now the Respondent purchased the land in dispute from the third party(ies) whom are supposed to be a part to this dispute as defendants/Respondents. Upon considering the submission of the 2 parties it is dear that the purchaser was supposed to be part of the case.

2. That, the trial Hon. Chairman of Tabora District Land and Housing Tribunal grossly erred in law and fact by deciding that, the sale of plot No. 212 "BB" by the 2nd Respondent Veronica Hakimu Mwakipesile is null & void because the said Mwakipesile is a wife of the respondent by presumption of marriage of five years producing two issues and was authorized to sell the same as a wife by the respondent by a letter dated 7/3/2018.

3. That, the trial Chairman of Tabora District Land and Housing Tribunal, misdirected himself to order vacation of the Appellant in this appeal whereas the house in dispute is not the property of the Respondent formerly an Applicant in land application NO. 48/2018.

4. That, the trial Hon. Chairman of Tabora District Land & Housing Tribunal erred in law and fact by deciding the dispute in favor of the Applicant now the Respondent, because the Applicant now the Respondent is claiming non existing house since plot No. 212 'BB" which he is claiming is a property of TANESCO whereas the house existing is Plot No. KB/043.

5. That, the trial Hon. Chairman erred in law and fact by deciding the case in favor of the Applicant now Respondent because the said house No. 212 "BB" came into play in the dispute when the case had already started in the tribunal before l(fh March, 2023 and whereas the said last pay date of the plot by TANESCO was 3ffh March, 2023. 3 When the appeal was called on for hearing, the Appellant enjoyed legal services of Mr. Hassan Kilingo while the Respondent was represented by Mr. Samwel Ndanga, learned advocates. With leave of the Court, hearing of the appeal proceeded by way of written submissions. In support the appeal, Mr. Ndanga submitted in respect of both grounds of appeal lodged by the Appellant. On the first ground of appeal he submitted that, the trial Chairman erred in law and in fact by determining the matter which did not involve the third party and vendor of the suit land, one Veronica Hakimu Mwakipesile. He referred this Court to the case of Juma Kadela vs Laurent Mkende (1983) TLR 103 in which this Court held that, in recovery of land sold to third party, the seller and purchaser must be sued as co-defendants, non-joinder of either of them will be fatal. On the second ground of appeal, Mr. Ndanga faulted the decision of the trial Chairman and he considered the same to be null and void for failure to acknowledge the capacity held by the said Veronica Hakimu

Mwakipesile at the time she sold the said house Plot No. 213 'BB' to the Respondent. He argued that, at the time of effecting the said sale, Veronica Hakimu Mwakipesile was authorized by the Respondent and she was also a wife of the Respondent. He referred the Court to section 60 of the Law of Marriage Act [Cap 29 R.E 2019] and argued that, any property acquired during the subsistence of a marriage in the names of the husband and wife jointly, there shall be a rebuttable presumption that their beneficial interests therein are equal. On the allegations that the Respondent authorized Veronica Hakimu Mwakipesile as a wife to sell the house, the learned counsel referred the Court to the letter dated 7/3/2018. 4 Mr. Ndanga went on to submit on the third ground of appeal that, the trial Chairman misdirected himself in his decision in paragraph three (3) because they have conducted an inquiry with the assistance of Tabora Municipal Council and the inquiry revealed that, the plot in dispute is not the property of the Appellant but it is the property of TANESCO. On the fourth ground of appeal, he contended that, the trial Chairman erred in law and fact by deciding in favor of the Respondent because the Appeallant and the Respondent are contesting against a property of TANESCO because the plot No. 212 'BB' is a property of TANESCO whereas Plot No. KB 1043 is the property of the

Applicant. Lastly, he argued that, the trial Chairman erred in law and fact by deciding the suit in favor of the Respondent without taking into account of existence of contradictory facts in this matter. He argued that, Court record indicates that, this case started before 10th March 2018, whereas the last bill paid by TANESCO over the same plot dates 30th March 2023. He prayed the appeal be allowed with costs. Responding to the first ground of appeal, Mr. Kilingo argued that the seller and purchaser of the suit land, to wit, Veronica Hakimu Mwakipesile and Paulo John Mashoto respectively were party to Application No. 47 of 2018 before the trial tribunal, thus, the allegations by the Appellant's counsel that the suit suffered from non-joinder of either of them is meritless. On the allegation that, the suit land belongs to TANESCO which constitutes the Appellant's submission in respect of the third, fourth and fifth grounds of appeal, Mr. Kilingo insisted that, the house number cannot be considered to be similar to Plot number. He added that, the land in dispute 5 has been surveyed and the suit land has been demarcated as Plot No 212, Block " BB" Kiloleni, within the Municipality and Region of Tabora as per Exhibit Pl, a Caveat filed by the Respondent. He also stated that, the issue of the suit land being owned by TANESCO is a new fact(s) that was never conversed during trial as

evident from the contents of the proceedings of the trial Court. He urged this Court to ignore the same for being out of site. On the second ground of appeal, Mr. Kilingo joined hands with the findings of the trial tribunal that, Veronica Hakimu Mwakipesile had no power to pass over title to the Appellant much as she had no Registered Power of Attorney that authorized her to sell the house in dispute. He further pointed out that, it is not disputed that, the house being a subject matter of the suit is a property of the Respondent and, it is not disputed also that, the same is in the names of the Respondent. The only dispute is over the capacity of Veronica Hakimu Mwakipesile to sell the suit land to the Appellant. He prayed for the appeal be dismissed with costs. Having gone through the written submissions filed by the parties and closely examined the record and the grounds of appeal, I find that, the issue for determination in this appeal is basically on the capacity and validity of transfer of the suit premises from Veronica Hakimu Mwakipesile and Paulo John Mashoto. I hold so because it is not disputed that, the said Veronica Hakimu Mwakipesile sold the suit land to the Respondent and she received consideration for such sale. It is also not disputed that, at the time the sale transaction was executed, the suit land was registered in the names of the Appellant. 6 I will start

with the alleged capacity of Veronica Hakimu Mwakipesile to sell the Respondent's land. Although the Appellant claimed that he purchased the the suit premises from the Respondent's wife, Veronica Hakimu Mwakipesile who was authorized by the Respondent to sell the same, he never tendered any document indicating such authorization. I hold so while aware that the Appellant claimed to have obtained all relevant documents pertaining to the said sale and ownership of the land from the Respondent's wife because, my perusal of Court record revealed that, the Respondent did not tender any document as evidence. What can be grasped from page 26 of the trial tribunal's typed proceedings is an order by the tribunal directing the Appellant to bring the original documents as evidence. Unfortunately, the Respondent never complied with the order. In brief, the alleged documents were neither tendered nor admitted as exhibits during trial. With such findings, the core issue in this appeal, is answered in negative. Veronica Hakimu Mwakipesile did not lawfully sell the suit property to the Appellant since she was not a sole owner of the suit property nor was she authorized by the Appellant to dispose his land. It is the principle of law that no one can pass a better title than he himself possesses. In the case of Farah Mohamed vs, Fatuma Abdallah (1992) TLR 205 it was held that:- "He who has no

legal title to the land cannot pass good title over the same to another." It goes without say therefore that, a person without good title to the property cannot pass a title to another. Thus, Veronica Hakimu Mwakipesile had no good title to pass to the Appellant. 7 With regard to the allegation brought to attention of this Court by the Appellant that the suit land is the property of TANESCO, this fact was not pleaded and there were no material facts placed before the Tribunal, therefore raising the same at this stage is potentially an afterthought. Moreover, if the same is true then, TANESCO will be at liberty to contest her ownership over the disputed land in Courts of law. In that regard, I accordingly disregard the same. For those reasons, I find no merit in all grounds of appeal. Consequently, I dismiss the appeal in its entirety. However, given the relationship between the Respondent and the Veronica Hakimu Mwakipesile and the fact that, the Appellant suffered loss for purchasing the land from the Respondent's wife, I do not award costs. Right of appeal explained. Dated at Tabora this 7th day of August 2024 JUUUt 8