PAUL SASILA ANOTHER V BETTY MASANJA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 269 OF 2024 (Arising from the DLHT for Mwanza in Land Application No. 269 of 2016) PAULO M. SASILA..................................................................... 1st APPELLANT DAUD MOSHA............................................................................ 2nd APPELLANT VERSUS BETTY MASANJA (Administratrix of the Estate of ALOYCE MATUNGE ISANZU...........................................RESPONDENT JUDGMENT 19/8/2024 & 21/10/2024 ROBERT, J:- This is an appeal by the appellants, Paulo M. Sasila and Daudi Mosha, against the judgment and decree of the District Land and Housing Tribunal (DLHT) for Mwanza in Land Application No. 366 of 2016. The respondent, Betty Masanja, acting in her capacity as the administratrix of the estate of the late Aloyce Matunge Isanzu, filed a case successfully at the DLHT claiming ownership of the suit land located at Buswelu, Ilemela District, Mwanza region. i The case is rooted in a sale agreement between the 1st appellant, Paulo M. Sasila, and the late Aloyce Matunge Isanzu, the original owner of the disputed land executed on 5th October 2006. The sale involved a piece of land for a total consideration of TZS 200,000/=. The first appellant paid TZS 60,000/= as a down payment on the same day and agreed to pay the remaining TZS 140,000/= by 1st April 2007. However, the 1st appellant allegedly failed to meet the deadline, though he occupied the land and later transferred it to the 2nd appellant allegedly without obtaining consent from the deceased's estate. The respondent, as administrator of the estate, sought recovery of the land, contending that ownership had never legally transferred due to the unpaid balance. The DLHT, after considering the evidence presented, ruled that the first appellant had breached the sale agreement, declared the respondent the lawful owner of the land, and ordered the appellants to vacate the suit land. Furthermore, the tribunal declared the sale between the first and second appellants void and ordered that the second appellant be compensated for the purchase price he paid to the first appellant. Aggrieved by the DLHT’s decision, the appellants now seek to overturn the decision on the following grounds: 2 1. That, the trial chairperson erred in law by allowing the respondent to prosecute the application without locus standi 2. That the trial Chairperson erred in law and fact by awarding the respondent the disputed landed property and not the balance of the alleged unpaid money 3. That the trial chairperson erred in law and fact by denying the second appellant ownership of the landed property whilst he was a bona fide purchaser. 4. That the trial Chairperson erred in law and fact by ignoring the applicability of the principle ofpromissory estoppel from the conducts of the respondent to transferred title of the disputed landed property to the 1st appellant before the completion ofpayment of the purchase price. 5. That the trial tribunal had no subject matterjurisdiction to entertain the application. 6. That the District Land and Housing Tribunal erred in law and in fact in ignoring the evidence adduced by the first appellant that he completed to pay the whole amount to the respondent hence delivered erroneous decision. 7. That the trial Chairperson failed to properly analyze the evidence before it hence reached to an erroneous decision. During the hearing of this appeal, the appellants were represented by Mr. Andrew Luhigo, learned counsel while Mr. Motete Kihiri appeared for the respondent. Both parties submitted written arguments. Submitting in support of the appeal, Mr. Luhigo abandoned the first ground of appeal and consolidated the sixth and seventh grounds. He further 3 structured his submissions by addressing the 5th ground first, followed by the 4th, 2nd, 3rd, and lastly, the 6th and 7th grounds as consolidated. Starting with the fifth ground of appeal, the appellants contended that the District Land and Housing Tribunal (DLHT) lacked jurisdiction to hear and determine the matter, asserting that this was not a land dispute but rather a contractual one. He referred to Paragraph 6(a)(i)-(vi) of the Respondent's application at the DLHT, as well as the issues framed in the impugned judgment on page 8. Mr. Luhigo contended that the cause of action outlined in the Respondent's application revolved around a sale agreement between the late Aloyce Matunge Isanzu and the 1st Appellant. The suit land was sold to the 1st Appellant for TZS 200,000, with a down payment of TZS 60,000 made on the date of the sale, and the remaining balance of TZS 140,000 to be paid by April 1, 2007. The Appellant failed to pay the outstanding amount, but nonetheless, built a house on the property and later sold it to the 2nd Appellant. In support of his argument, Mr. Luhigo cited Hussein Lutambika Toy vs National Microfinance Bank PLC and Another, Land Appeal No. 28 4 of 2021, High Court of Tanzania at Mbeya, and Charles Rick Mulaki vs William Jackson Magelo, Civil Appeal No. 69 of 2017, to emphasize that the DLHT should not intervene in contractual matters. He argued that the DLHT, like in the cited cases, had no powers to intervene in matters that were essentially contractual in nature. In response, Mr. Kihiri submitted that the DLHT had jurisdiction to hear the matter, asserting that it was a land ownership dispute rather than a contractual one. He argued that the reliefs sought by the Respondent, including a declaratory order of ownership and eviction, clearly indicated that the dispute revolved around land ownership. Citing Exim Bank Tanzania Limited vs Agro Impex (T) Limited and Others, Land Case No. 29 of 2008, Mr. Kihiri emphasized that the test for determining jurisdiction involves analyzing both the facts constituting the cause of action and the reliefs sought. He argued that the reliefs sought in this matter were within the DLHT's jurisdiction, distinguishing this case from Hussein Lutambika's case. The issue to be determined is whether the DLHT had jurisdiction to entertain the matter. The appellants contended that the DLHT had no 5 jurisdiction because the dispute was contractual, not a land dispute. However, upon examining the pleadings, it is clear that the respondent's claim primarily focused on the ownership of the disputed land. The reliefs sought included a declaration that the respondent was the lawful owner of the land and an order for the appellants to vacate the land. The reliefs clearly fall within the jurisdiction of the DLHT, which is empowered to adjudicate land disputes under section 33 of the Land Disputes Courts Act, Cap. 216 R.E. 2019 and Section 167(1) of the Land Act, Cap. 113 R.E. 2019. The fact that a sale agreement was part of the evidence does not turn the dispute into a purely contractual matter. In line with the case of Exim Bank Tanzania Limited vs Agro Impex (T) Limited and Others (supra), the nature of the reliefs sought determines jurisdiction. Since the reliefs sought included a declaration that the respondent was the lawful owner of the land and an order for the appellants to vacate the land, therefore, the DLHT had the requisite jurisdiction to entertain the matter. The fifth ground of appeal is therefore dismissed. Coming to the fourth ground of appeal, Mr. Luhigo submitted that the DLHT failed to apply the doctrine of promissory estoppel. He argued that although Exhibit PE2 indicated that ownership of the disputed land would 6 pass to the 1st Appellant upon full payment, SM2 (Respondent's witness) admitted that the family allowed the 1st Appellant to begin constructing on the land before completing the payment. Mr. Luhigo argued that by allowing the 1st Appellant to begin constructing on the land before completing the payment, the Respondent had waived the requirement for full payment before ownership transfer, invoking Section 123 of the Tanzania Evidence Act. Mr. Luhigo cited Trade Union Congress of Tanzania (TUCTA) vs Engineering Systems Consultants Ltd and 2 others, Civil Appeal No. 51/2016, to support the argument that the Respondent should be estopped from denying the ownership shift. In response, Mr. Kihiri submitted that the principle of promissory estoppel did not apply in this case. He argued that there was no clear and unequivocal promise from the Respondent or its witnesses to allow the Appellant to own the land before completing the payment. He distinguished this case from Bytrade Tanzania Limited vs Assenga Agrovet Company Ltd and Another, where the court made reference to Trade Union Congress of Tanzania (TUCTA) (supra) and emphasized that the promise must create a legal relationship. He further submitted that the 7 evidence on record did not support the Appellant's claim of a waiver of the time limit. In this ground the appellants contended that the respondent's conduct of allowing the first appellant to construct on the disputed land before full payment constituted a waiver of the payment condition, thereby invoking the principle of promissory estoppel under section 123 of the Tanzania Evidence Act. For promissory estoppel to apply, there must be a clear, unequivocal promise or representation made with the intention that it will be relied upon, and the promisee must have acted to their detriment in reliance on that promise (Trade Union Congress of Tanzania (TUCTA) vs. Engineering Systems Consultants Ltd and Others, Civil Appeal No. 51 of 2016). In the present case, no evidence on record supports the assertion that the respondent explicitly waived the payment condition. The alleged permission granted to the first appellant to commence construction cannot be construed as a legally binding waiver of the agreed terms. The contractual obligation to pay the full purchase price remained intact, and the respondent 8 was entitled to demand fulfillment of that obligation before transferring ownership. Thus, the doctrine of promissory estoppel does not apply in the circumstances of this case. This ground of appeal is dismissed. The second ground of appeal faults the DLHT for awarding the respondent the disputed landed property and not the balance of the alleged unpaid money. Counsel for the appellants argued that the DLHT should have ruled that the Respondent was entitled to the outstanding balance of the sale price rather than the land itself. He submitted that time was not of the essence in the payment schedule, and the Respondent should be paid the remaining balance or damages for the delay, as per Section 55(1) and (2) of the Law of Contract Act. He cited Esther Kimbulu and Two Others vs Piganio Mwita, Civil Appeal No. 484 of 2020, to support this submission. In response, Mr. Kihiri opposed the Appellant's claim that the Respondent should only be entitled to the remaining balance. He argued that the agreement was clear: ownership would only transfer upon full payment. Since the balance was not paid within the agreed timeframe, the Respondent was rightly awarded ownership of the land. He distinguished Esther Kimbulu (supra) on the grounds that no discussion or agreement had been made to extend the payment period. The general rule in contract law is that time is of the essence where it is expressly stipulated in the agreement or implied by the nature of the transaction. In the present case, the sale agreement expressly stated that the balance had to be paid by 1st April 2007. No evidence was adduced to show that the respondent waived or extended this deadline. In land transactions, failure to meet payment deadlines can constitute a fundamental breach, allowing the seller to terminate the agreement and reclaim the property. The appellants' argument that the respondent should have pursued the balance alone is misplaced, as ownership does not transfer until the purchase price is fully paid. This ground of appeal is dismissed. On the 3rd ground, Mr. Luhigo submitted that the 2nd Appellant was a bonafide purchaser for value and, as such, should not have been denied ownership of the property. He cited the cases of Peter Adam Mboweto vs Abdallah Kulala and Another (1981) TLR 335 and Said Mpambije Kamaga and Another vs Nyamende Swetu Fundikira and 2 others, Civil Appeal No. 430/2022, to support this position. 10 In response, Mr. Kihiri argued that the 2nd Appellant was not a bonafide purchaser, as he was aware of the outstanding balance owed by the 1st Appellant. He referred to the cross-examination of the 2nd Appellant, where he admitted having knowledge of the sale agreement between the 1st Appellant and Respondent. Citing Halima Simba Salum vs Zaria Ramadhani Yakubu, Land Appeal No. 115 of 2020, he submitted that the 2nd Appellant could not claim bonafide purchaser status as he had notice of outstanding rights over the disputed land. The doctrine of bona fide purchase requires that a purchaser must acquire property without knowledge of any existing adverse claims and must have paid valuable consideration in good faith (Peter Adam Mboweto vs. Abdallah Kulala and Another [1981] TLR 335). Upon reviewing the evidence, this court finds that the second appellant had notice of the unresolved payment issue at the time of purchase. The sale agreement, which the second appellant admitted having reviewed, explicitly indicated that the first appellant had not completed payment. A purchaser with such knowledge cannot qualify as a bona fide purchaser. The principle is clear: constructive or actual notice of any defect in title defeats the claim of bona fide purchase (Halima Simba Salum vs. Zaria Ramadhani ii Yakubu, Land Appeal No. 115 of 2020). Accordingly, this ground of appeal also fails. On the Consolidated 6th and 7th grounds, Mr. Luhigo submitted that the DLHT erred by failing to properly evaluate the evidence, particularly the testimony of the first appellant, who stated that the respondent was unwilling to accept the outstanding payment. He contended that the tribunal ignored key inconsistencies in the respondent's testimony, thereby reaching an erroneous decision. He argued that this oversight led to an erroneous decision and prayed that all reliefs sought by the Appellant be allowed with costs. Mr. Kihiri submitted that the DLHT properly considered the evidence of the 1st Appellant (SU1), particularly the contradictions in his testimony regarding the payment of the balance. He argued that SU1 admitted that no formal agreement was made to settle the outstanding balance, and the DLHT correctly evaluated this evidence in reaching its decision. He prayed that the appeal be dismissed with costs. This court has carefully reviewed the record of proceedings. The DLHT found that the first appellant admitted to not having completed payment and 12 failed to provide documentary proof of payment in kind, as alleged. Furthermore, the DLHT noted that the respondent's claim for ownership was supported by documentary evidence, including a title deed in the respondent's name. The DLHT's evaluation of evidence was comprehensive, and there were no material errors that would warrant interference by this court. It is trite law that an appellate court should not interfere with findings of fact unless it is demonstrated that the lower tribunal misapprehended the evidence or reached a conclusion that no reasonable tribunal would have reached (Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores vs. A.H. Jariwalla t/a Zanzibar Hotel [1980] TLR 31). Therefore, this court finds no fault in the DLHT's assessment of the evidence and upholds its findings. In view of the foregoing analysis, this court finds that the appeal lacks merit. Accordingly, the appeal is dismissed in its entirety. The decision of the District Land and Housing Tribunal is hereby upheld. The appellants shall bear the costs of this appeal. It is so ordered. 13 14