priskila mwainunu vs magongo justus 2020 tzhc 3299 16 october 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF BUKOBA AT BUKOBA LAND CASE APPEAL NO. 09/2020 {Arising from Bukoba District Land and Housing Tribunal in Land Appeal No. 09/2012) PRISKILA MWAINUNU ................................................ APPELLANT VERSUS MAGONGO JUSTUS............................................................ RESPONDENT JUDGMENT Date of last order 31/08/2020 Date ofjudgment 16/10/2020 KHekamajenga, J. This land dispute reminds me of the instructions given by the Almighty God to the Israelites thus: Fields shall be bought for money, and deeds shall be signed and sealed and witnessed, in the land of Benjamin, in the places about Jerusalem, and in the cities of Judah, in the cities of the hill country, in the cities of the Shephelah, and in the cities of the Negeb; for I will restore their fortunes, declares the Lord. "Jeremiah 32:44. As I sit to pen-down this brief judgment, the High Court of the United Republic of Tanzania at Bukoba Registry is filled with land disputes of this nature. The High Court database shows that the registry has almost 40 percent of land disputes. This number of cases includes appeals from the District Land and 1 Housing Tribunals and cases instituted at the High Court on original jurisdiction. The staggering number of land disputes flooding the High Court does not include disputes settled at the family level, under the village level (the village land council), Ward Tribunal and at the District Land and Housing Tribunal. Further evidence suggests that most of land disputes reaching courts involve unregistered or land owned under customary law. Most of the disputes arise as a result of encroachment into idle or undeveloped land. Also, there are many disputes arising from unregulated procedures on sale of customary right of occupancy. My experience shows the sale of customary right of occupancy in Kagera does not seek the approval of the village council which is the organ entrusted with the business of a village. The approval by the village council is necessary in authenticating sale transactions, sealing the sale contract and setting-up boundaries to the land. The council's approval is vital because any problem concerning the land may later come back to the village or its members. Members of the village council may be able to know whether the seller legally owns the land or the same is a clan land and they may know the neighbours to the land. In addition, proper management of disposition of customary right of occupancy may trim-down the number of cases in courts. Based on the discussion below, I find it mandatory for sale of customary right of occupancy to be approved by the village council of the respective village. 2 In this case, it is alleged that the respondent, one Magongo Justus purchased a piece of land from Mr. Pancras Mulokozi on 26th September 2011 at the price of Tshs. 5,300,000/=. The sale agreement was handwritten and witnessed by four persons including the son of the seller, Mr. Phiridorinus Pancras. The sale agreement named the neighbours to that land to be Cleophasi Kagombola, Joseph Samweli and Deusdert Baisi. However, none of the neighbours witnessed the sale of the said land. Also, the village council did not approve the sale agreement. The evidence in the court file shows that the agreement was entered in the evening. Later, the agreement was typed and signed accordingly. Mr. Mulokozi later realised that the land was priced below the market value. He approached the respondent to add some money to the sale price. The respondent preferred the refund of Tshs. 5,300,000/=. According to Mr. Mulokozi's written statement of defence, he refunded the money to the respondent and rescinded the agreement. However, there is no evidence to the alleged refund. Thereafter, Mr. Mulokozi sold the same land to the appellant at the price of Tshs. 10,000,000/=. The sale agreement between Mr. Mulokozi and the appellant was signed on 24th September 2011. The agreement was witnessed by three witnesses of the seller, including the seller's son, Mr. Fridorinus Pancras and two 3 witnesses of the purchaser. The sale agreement was witnessed and sealed by the Chairman of Mayondwe Village Council, Mr. Alchedi Fredrick. The respondent later sued Mr. Mulokozi and the appellant before the District Land and Housing Tribunal for Kagera at Bukoba claiming ownership of the disputed land and refund of Tshs. 5,300,000/=. Before the District Land and Housing Tribunal, the respondent summoned two witnesses whereas the appellant had three witnesses. PW1 (the respondent) testified that he purchased the disputed land on 26th September 2011 at the price of Tshs. 5,300,000/=. The sale agreement was handwritten but later reduced into writing and witnesses by Ernest Rweshabura, Pereus Kaijage, Easter Justus and Phiridorinus Pancras. Few days later, the respondent saw the appellant digging a trench in the disputed land and sued her at the District Land and Housing Tribunal. The appellant also alleged that she purchased the dispute land on 24th September 2011. The respondent tendered the sale agreement which was admitted as exhibit Pl. Upon cross examination, the respondent informed the trial tribunal that the village chairman did not sign the sale agreement and it shows that the appellant bought the land first before him. 4 The second witness (PW2) was Ernest Rweshabura who testified that he was the brother of the seller. He was instructed by the seller to look for a customer to purchase the disputed land. PW2 got the respondent who agreed to purchase the land at the price of Tshs. 5,300,000/=. In his testimony, he informed the trial tribunal that he did not know whether the seller sold the land to the appellant before selling it to the respondent. On the other hand, the appellant (DW1) stated that she bought the disputed land from Mr. Mulokozi at the price of Tshs. 10,000,000/= on 24th September 2011. She insisted that she bought the disputed land earlier than the respondent. She tendered the sale agreement which was admitted as exhibit DI. The second witness for the defence (DW2) testified that he was the chairman of Mayondwe Village Council and knew both the appellant and the respondent. He testified that the appellant bought the disputed land from Mr. Mulokozi on 24th September 2011 at the price of Tshs. 10,000,000/=. He witnessed and sealed the sale agreement but he never witnessed the sale of the same land to the respondent. He further informed the trial tribunal that the disputed land was sold to the appellant before the respondent bought it. As the chairmanship of DW2 was challenged, the defence summoned the third witness (DW3) who was the Village Executive Officer who testified that he knew DW2 as the village chairman and that he never witnessed the sale of the disputed land. 5 At the end, the trial tribunal considered the written statement of defence which was submitted by Mr. Mulokozi who however died before commencing the hearing of the case. The case was decided in favour of the respondent. Being dissatisfied with the decision of the tribunal, the appellant appeared before this Honourable Court seeking for justice. She coined eight grounds of appeal to convince the Court that she is the owner of the disputed land. The grounds are coached thus: 1. That the trial chairman erred in law and fact to rely on the alleged 1st respondent's written statement of defence one Pancras Mulokozi who did not appear in court and testify, thus relied on the extraneous matters to decide the suit; 2. That the final written submission of the counsel for the appellant were not considered nor given out reasons in disregarding the same in the judgment; 3. That the trial chairman misdirected himself to hold for the respondent herein as his vendor had no good title to pass to him; 4. That the trial tribunal did not even consider the reliefs by the respondent such as an order against the 1st respondent (vendor) to refund to the applicant (nor the respondent) the purchase price; 5. That the trial chairman misdirected himself in fact and law when he found that the sale agreement of the appellant was back dated without supporting evidence thereto; 6 6. That the records of the trial tribunal does not disclose the reasons for the current chairman E. Mogassa to succeed the previous chairman one R.E Assey; 7. That the tribunal was not properly constituted at the commencement of the suitland and the assessor's opinion were unlawfully included on the judgment nor read to parties before delivery of the judgment; 8. That the decree was decided against the weight of evidence. The appeal was finally scheduled for hearing. The appellant appeared in person enjoying the legal services of the learned advocate, Mr. Alli Chamani whereas the respondent was presented and represented by the learned advocate, Mr. Aaron Kabunga. In the oral submission, the counsel for the appellant abandoned the sixth and seventh ground of appeal. On the 1st ground, Mr. Chamani challenged the decision of the trial chairman for basing on Mr. Mulokozi's written statement of defence (WSD) while he (Mr. Mulokozi) did not testify before the tribunal. The chairman of the tribunal considered the admission in the WSD which stated that the respondent bought the disputed land first. In the WSD, Mr. Mulokozi further admitted that he later sold the land to the appellant. Therefore, the chairman considered this admission something which is contrary to the law. To cement his argument, Mr. Chamani referred the Court to the case of Peter Ng'omango v. AG, Civil Appeal No. 7 114 of 2011. The above position of the law was also supported by the cases of Godbless Jonathan Lema v. Mussa Hamis Nkanga and Others, Civil Appeal No. 47 of 2012, CAT at Arusha (unreported) and Kitina Gwau v. Mukhuu Gwau (1970) HCD 114. Mr. Chamani argued further that the WSD was not part of the evidence and ought not to be relied on in forming the decision. On the 3rd ground, the counsel for the appellant argued that the appellant was the first to purchase the disputed land. The appellant purchased the land on 24th September 2011 and the sale agreement was witnessed and approved by the Village Chairman. The respondent purchased the same land on 26th September 2011 and his sale agreement was not endorsed by the village chairman. Therefore, the chairman erred in deciding in favour of the respondent. On the 5th ground, Mr. Chamani argued that the findings of the trial tribunal that the sale agreement between Mr. Mulokozi and the appellant was backdated was not correct as there is no evidence to prove that allegation. On the 8th ground, Mr. Chamani submitted that the appellant's evidence was not tested vis-a-vis the evidence of the respondent. The trial chairman failed to analyse the appellant's evidence contrary to what was stated in the case of Leonard Mwanashoka v. R [2016] TLS LR 41. Mr. Chamani invited this Court to re-assess the evidence 8 which was adduced before the trial tribunal. He supported his argument with the case of Martha Weja v. AG and another [1992] TLR 35. In response, the counsel for the respondent, the learned advocate Mr. kabunga prayed for the 2nd and 4th grounds of appeal to be abandoned as they were not argued by the counsel for the appellant. He further informed the Court that the grounds of appeal argued by the counsel for the appellant have no merit. Mr. Kabunga informed the Court that exhibit Pl shows that the respondent purchased the disputed land on 26th September 2011 while exhibit DI shows that the appellant purchased the same land on 24th September 2011. The tribunal had to consider the evidence to determine the person who purchased the disputed land first because the second purchaser had no legal title to pass. The seller's WSD was filed on 05th March 2012 where he admitted to sell the disputed land to the respondent. He later required money to add to the market value of the disputed land. The land was later sold to the appellant. There is an allegation that the seller refunded the respondent Tshs. 5,300,000/= before selling the same land to the appellant. The evidence of the respondent shows that he was not refunded the money by the seller. The son of the seller, Mr. Phiridorinus Pancras witnessed the two sale agreements. He could have therefore testified for the appellant on the return of the money. The evidence on the refund of money is generally lacking. 9 The seller knew the person who bought the land first and the appellant acknowledged the receipt of the seller's WSD. The counsel for the appellant was wrong to argue that the WSD was not supposed to be considered by the trial tribunal as a civil case is always proved on the balance of probability. The trial tribunal was supposed to consider the evidence as a whole including the pleadings. Mr. Kabunga further argued that the land belongs to the respondent because he was the first to purchase the disputed land. The appellant was supposed to claim from the seller. Furthermore, Mr. Kabunga threw the burden on the appellant who failed to summon the seller's son to testify. He finally urged the Court to dismiss the appeal and affirm the decision of the trial tribunal. When rejoining, the counsel for the appellant reiterated that it was wrong to rely on the WSD to form the decision of the trial tribunal. However, the same WSD states that the respondent was refunded his money something which was not considered by the trial tribunal. The WSD does not state whether the respondent bought the disputed land first. Also, the respondent who filed the application before the District Land and Housing Tribunal was supposed to summon the seller's son and not the appellant. Mr. Chamani further argued that the pleadings 10 are always considered where the party testified. He finally urged the Court to allow the appeal. After considering the submissions from both sides, it is apposite at this stage to determine the merits in the grounds of appeal. On the first ground of appeal, the counsel for the appellant argued that it was wrong for the trial tribunal to consider the seller's WSD to reach the decision. I have gone through the decision of the trial tribunal and found out that the chairman noted the admission given by the seller in the WSD that he sold the disputed land to the respondent first. Based on that admission, the chairman proceeded to decided that the appellant who was the second purchaser had no right over the disputed land. First, I should put it clear that pleadings, that means plaint and written statement of defence, are not evidence. This position of law was clearly stated in the case of Lerna (supra) which the Court of Appeal quoted with approval the case of Sabry Hafidhi Khalfan v. Zanzibar Telecom Ltd (Zantel) Zanzibar, Civil Appeal No. 47 of 2009 (unreported). In that case, the Court of Appeal of Tanzania stated that: We wish to point out that annextures attached along with either the plaint or written statement of defence are not evidence. Probably it is worth mentioning at this juncture to say the purpose of annexing documents in the pleadings. The whole purpose of annexing documents either to the 11 p/aint or to the written statement of defence is to enable the other party to the suit to know the case he is going to face. The idea behind is to do away with surprises. But annextures are not evidence. The rationale for not considering pleadings as evidence is because they are not given on oath or affirmation; statement in pleadings therefore lack the authenticity of being considered as evidence. On this point, I wish to consider the case of Gwau (supra) which was supplied by the counsel for the appellant which stated among other things that: '...for evidence which is not subject to the sanctions of an oath or affirmation is, generally speaking, no evidence at all.' For that reason therefore, where a party supplies a pleading and later fails to appear before the court to testify, such pleadings cannot be considered as evidence because that party has not taken an oath or affirmation to testify on the statements contained in the pleadings. In other words, the statements contained in the pleadings have not been tested in court and therefore cannot be relied on for a decision. In the instant case, Mr. Mulokozi and the appellant were jointly sued in the District Land and Housing Tribunal. Before the case was due for hearing, Mr. Mulokozi died. The parties proceeded for hearing of the case before appointment 12 of the administrator of estates of the late Mulokozi. Under this circumstance therefore, it was wrong for the chairman to rely on Mr. Mulokozi's WSD who did not appear to testify before the trial tribunal. As already stated above, the statements in the pleadings are not part of evidence. On the other hand, I have closely scrutinized the signature appearing on Mr. Mulokozi's WSD, though I am not a handwriting expert, by mere comparison, it differs from the one appearing on the sale agreement tendered by the appellant and respondent. Somebody else might have signed the WSD on behalf of Mr. Mulokozi. Second, assume that the WSD was signed by Mr. Mulokozi and it was right to consider the same in the decision. Mr. Mulokozi stated in the WSD that he first sold the disputed land to the respondent at the price of Tshs. 5,300,000/=. He later realised that the land was under-priced. He approached the respondent to top-up the money to the market value but the respondent opted to be refunded the money. Mr. Mulokozi refunded the money to the respondent and they mutually agreed to rescind their initial sale agreement. Thereafter, Mr. Mulokozi sold the land to the appellant at the price of Tshs. 10,000,000/=. If this information, which also appears in the WSD is correct, then the respondent 13 ended the sale agreement immediately as he received back his money. However, this Court cannot bank on this information because, the seller did not testify before the trial tribunal and the WSD cannot be relied on due to the fact that it does not form part of evidence. Now, having disregarded the WSD, it is pertinent therefore to consider the evidence adduced before the trial tribunal in order to determine the person who was the first to purchase the disputed land. On the third ground, the appellant challenged the decision of the trial tribunal on the reason that Mr. Mulokozi had no legal title to pass to the respondent because he (seller) had sold the same land to the appellant. In my view, the argument that the land was first sold to the respondent has no leg to stand. The two sale agreements tendered before the tribunal show that the appellant purchased the disputed land on 24th September 2011 and the respondent purchased the same land on 26th September 2011. I have scrutinized the two sale agreements and in my view the record speaks for itself that the appellant was the first to purchase the land before the respondent. The sale agreement between Mr. Mulokozi and the appellant was witnessed and approved by the village chairman whereas the sale agreement between the seller and the respondent was not. In my view, the sale agreement between Mr. Mulokozi and the appellant is more authentic than that of the respondent. According to the evidence available, the second agreement entered on 26th September 2011 was void because the seller had no 14 legal title to pass to the respondent. As far as the available evidence is concerned, the appellant is the owner of the disputed land. The allegation that the sale agreement between the appellant and Mr. Mulokozi was back dated has no proof. Having determined the ownership of the disputed land, I now address some irregularities in the sale of customary rights of occupancy. Land is the precious real property that God gave us. We run human activity on the land; every agricultural activity is done on the land. Water, food and human settlement are all conducted on the land. God bestowed precious wealthy beneath the land for our consumption such as gold, diamond, silver, oil etc. As the world population continue to increase day by day, the size of the land does not. The size of the land remains the same despite the social and economic development. Hence, its disposition must be carefully managed. On the other hand, as started earlier, improper disposition of land has given rise to many disputes not only in Tanzania but also in other countries. Land management in Tanzania is governed by several laws including the Land Act, Cap. 113, RE 2019 and the Village Land Act, Cap. 114 RE 2019. Section 61 to 166 of the Land Act, Cap, 113 RE 2019 provides for formalised procedures on disposition of registered land. In fact, failure to follow the procedures in disposing the right of occupancy renders such disposition ineffectual. 15 However, there are no such procedures on disposition of customary rights of occupancy. Precisely, section 61(3) of the Land Act, Cap. 113 RE 2019 expressly provides that: 'For avoidance of doubt, dispositions of customary rights of occupancy shall be governed by customary law.' The emphasis on the application of customary law on customary rights of occupancy is provided under section 20(1) of the Village Land Act thus: 'Subject to the provisions of this Act, on any matter concerning the rights and obligations of a person, a group of persons or a non-village organisation occupying land under a customary right of occupancy or of any person in dispute with any persons referred to above or of any person alleging that he or she is entitled to succeed to or otherwise occupy that land on the death or permanent incapacity of a person occupying land under a customary right of occupancy or on another matter affecting land held under a customary right of occupancy and persons ordinarily resident in the village where the land is situate shall, where that matter is not otherwise provided for under this Act or any other enactment determined in accordance with customary law.' (emphasis mine). However, there is no specific customary law for disposition of customary rights of occupancy in Tanzania. Because Tanzania has almost 120 tribes, customary law 16 may vary from one tribe to the other. In addition, section 61 of Land Act expressly excludes the application of customary law on registered land. On the other hand, the Village Land Act, Cap. 114 RE 2019 does not provide any guidance on sale of customary rights of occupancy. The dearth of guidance obliges parties to revert back to the principles of the law of contract whenever selling customary rights of occupancy. Section 10 of the Law of Contract Act, Cap. 345 RE 2019 provides for the basic elements of a contract in Tanzania thus: 'AH agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.' Therefore, the major requirements for contracts in disposition of customary rights of occupancy would be governed by the Law of Contract. The contract must be made in writing, it must be signed by the parties to signify consent; the parties must be competent to enter into a contract, there must be lawful consideration and such contract must be for the lawful object. However, customary rights of occupancy being a right over an immovable property just like any other right of occupancy, its transfer must be carefully documented to avoid further disputes. 17 I am mindful of the fact that a customary right of occupancy also has two classes; first, deemed right of occupancy which is defined under section 2 of the Village Land Act as: '...a right to title of a Tanzania citizen of African descent or a community of Tanzania citizens of African descent using or occupying land under and in accordance with customary law.' See, also section 2 the Land Act, Cap. 113 RE 2019. Second, customary right of occupancy may be in form of a certificate. Section 2 of the Village Land Act defines customary right of occupancy to mean: 'customary right of occupancy" means right of occupancy created by means of the issuing of a certificate of customary right of occupancy under section 27 of this Act and includes deemed right of occupancy.' (emphasis mine). It should be clearly understood that, under the law, the grant and management of customary right of occupancy is entrusted to the village council. A person wishing to have a customary right of occupancy may apply for it to the village council. See, section 22 of the Village Land Act, Cap. 114 RE 2019. In my view, despite the fact that a certificate of customary right of occupancy may be applied for in a prescribed form; the village is still not excluded from the management of deemed right of occupancy because customary right of 18 occupancy includes both the one given in a form of certificate and the deemed right of occupancy. In addition, Section 8(1) of the Village Land Act, imposes an obligation of the village council to manage all village land. The section specifically provides that: 'The village council shall, subject to the provisions of this Act, be responsible for the management of all village land.' The power of the village council on disposition of customary right of occupancy is further emphasized by section 34 of the Village Land Act which provides that: ' Unless otherwise provided for by this Act or regulations made under this Act, a disposition of a derivative right shall require the approval of the village council having jurisdiction over the village land out of which that right may be granted.' Furthermore, section 147(1) of the Local Government (District Authorities) Act, Cap. 287 RE 2002 empowers the village council to manage the affairs and business of a village. The section provides: 'A village council is the organ in which is vested all executive power in respect of all the affairs and business of a village.' As may be gleaned from the above provisions of the law, the village council has power over the customary right of occupancy including deemed right of 19 occupancy. It is therefore inappropriate and illegal to disregard the approval of the village council whenever selling customary right of occupancy. The Court of Appeal of Tanzania was also confronted with a dispute similar in the case of Bakari Mhando Swanga v. Mzee Mohamedi Bakari Shelukindo and 3 others, Civil appeal No. 389 of 2019, CAT at Tanga (unreported) and had the following to say: 'Even if we assume that the purported sale agreement was valid, which is not the case, then the same was supposed to be approved by the village council...' The Court of Appeal went on stating: 'Under normal circumstances, it was expected for the appellant after he had executed the purported sale deed with Khatibu ShembHu, to present the document to the village council of Kasiga to get its blessings...The observation we make here is that there is no due diligence on the part of the appellant in the whole process of executing the purported deed of sale. In our view, he ought to have consulted the village council before embarking on the transaction.' A sale agreement on customary right of occupancy without the approved of the village council lacks authenticity and such disposition may be ineffectual as well. In my view, the sale of customary right of occupancy should take the following form: The seller after reaching an agreement with the buyer shall approach the 20 village council. Members of the village council, the seller and purchaser shall identify the neighbours to the land and set-up boundaries. It is always prudent to have standardised form for sale contracts which may be in the custody of the village council. At the end, the sale agreement may be signed by the seller, purchaser, neighbours to the land; it may also be signed and sealed by the hamlet leader (Mwenyekiti wa Kitongoji), the Village Chairman and the Village Executive Officer. If the land belongs to the clan, the clan head must approve the sale agreement as it was stated in the case of Paulo Alfred v. Gervas Maricianus [1981] TLR 33. In absence of the clan head, the clan may approve the sale of the clan land. See, the case of Leonance Mutalindwa v. Mariadina Edward [1986] TLR 120. The advantages of involving major stakeholders in the sale of customary right of occupancy are legion. Apart from lessening land disputes, the village council may also earn an income by taxing the land transaction. The village council is well positioned to deterring unscrupulous persons who may wish to sell the land to more than one person. Also, when neighbours are involved, it helps to minimise conflicts which may arise after the sale of the land. Based on the reasons alluded above, I find the grounds advanced by the appellant have merit. I allow the appeal and I hereby set aside the decision of 21 the District Land and Housing Tribunal. The respondent should immediately vacate the disputed land and bear the costs of this case. If he has any claim, then he may proceed against the administrator of the estates of the late Mulokozi but not against the appellant. Order accordingly. Dated at Bukoba this 16th October 2011. Nte . Kilekamaj Judge 16th October 2020 Court: Judgment delivered this 16th October 2020 in the Court Chamber in the presence of the appellant and the counsel for the respondent the learned advocate, Mr. Frank John and in absence of the respondent. Judge 16th October 2020 22