richard masanika and 2 others vs yeremiah yesaya ibadu 2022 tzhc 12144 9 august 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA MISC. LAND APPEAL NO. 4 OF 2021 (Arising from the decision of the District Land and Housing Tribunal for Dodoma at Dodoma, Land Appeal No. 249/2019 dated 07/12/2020, Original Decision of Ng'ong'ona Ward Tribunal) RICHARD MASANIKA.................................................... 1st APPELLANT MICHAEL MASANIKA....................................................... 2nd APPELANT ELIZABETH SAELA......................................................... 3rd APPELLANT VERSUS YEREMIAH YESAYA IBADU............................................... RESPONDENT JUDGMENT 30/5/2022 & 09/8/2022 KAGOMBA, J The appellants, Richard Masanika, Michael Masanika and Elizabeth Saela, being aggrieved by the decision of the District Land and Housing Tribunal for Dodoma at Dodoma (henceforth "Dodoma DLHT") in Land Appeal Case No. 249 of 2019 have filed this Appeal, seeking to overturn the i impugned decision of the Dodoma DLHT which was made in favour of Yeremia Yesaya Saela, the respondent herein. The filed grounds of appeal were as follows: 1. That, the Honourable Chairman erred in law and fact by deciding in favour of the respondent without considering that the land was sold by a person, being the 2nd appellant, who had no legal title on it and was not summoned before the Ward Tribunal to adduce the evidence. 2. That, the Honourable Chairman erred in law and fact by deciding in favour of the respondent without considering that the 3rd respondent did not witness the sale agreement. 3. That, the Honourable Chairman erred in law and fact by deciding in favour of the respondent without considering that the land in dispute is not legally owned by the appellants. 2 The background of this appeal reveals that the respondent successfully sued the appellants over ownership of a parcel of land measuring half (V2) of an acre (henceforth 'the land in dispute'). The respondent alleged during trial that the land in dispute was lawfully sold to him by the appellant's family, specifically the 3rd appellant and her children. He was however stopped from surveying the land in dispute by the 1st appellant, and the dispute arose. In its decision, the Ng'ong'ona Ward Tribunal (henceforth "the trial tribunal") found that the land in dispute belonged to the respondent and judged so. During trial, the 1st appellant conceded to have stopped the respondent to access the land in dispute for a reason that the same was already sold to a college student, and added that he was just a caretaker. He further told the trial tribunal that he even informed the Hamlet Chairman not to register a sale of the disputed land should his wife (the 3rd appellant) and his children show up for such a transaction. But he conceded to have received money from the respondent, being consideration for selling him the land in dispute. He promised to refund the respondent his money plus interest, but he never kept that promise. His wife, the 3rd appellant, conceded that it was their son, Michael Jonathan, who sold the land in dispute to the respondent. 3 The 3rd appellant testified, during trial, that they took the said money to the Chairman so that the respondent could be refunded but the respondent refused, and demanding to be paid an interest of Tshs. 900,000/= on top. She said, as the appellants could not afford paying that interest, the refund was not effected. Based on those facts, the trial tribunal found that the appellants had failed to observe their promise and therefore decided that the land belonged to the respondent. This the decision was upheld by the Dodoma DLHT, thereby prompting this appeal. On the date of hearing of the appeal, Mr. Ayoub Suday, learned advocate appeared for the appellants, while Ms. Maria Ntui, also learned Advocate appeared for the respondent. In his submission in chief, in respect of the first ground of appeal, Mr. Suday submitted that the Dodoma DLHT erred in law for a reason that the land in dispute was sold by the 2nd respondent who had no legal title to pass on. He referred to the maxim "Nemo dat quod non habet' to mean that no one can not transfer a better title than he himself has. 4 Also, he submitted that the said seller was not summoned to adduce evidence during trial, but his name appeared in the judgment among respondents without being afforded a right to be heard contrary to Article 13(6) of the Constitution of the United Republic of Tanzania, 1977 (As amended). He argued that by not considering this crucial matter, the decision of Dodoma DLHT was unlawful. He therefore prayed this court to find merit in the first ground of appeal. On the second ground of appeal, Mr. Suday submitted that while in the judgment of Dodoma DLHT it is stated that the 3rd appellant witnessed the sale of the land in dispute, in the proceedings of the trial tribunal the 3rd appellant stated clearly that the family had not decided to sell the said land but it was their son who sold it. Hence, Mr. Suday found that the decision of Dodoma DLHT was wrongly premised. With regard to the third ground of appeal, Mr. Suday submitted that the land in dispute no longer belonged to the appellants' family and therefore Dodoma DLHT erred in its decision because as per the evidence of 1st and 3rd appellants, the family was given the said land only as caretakers as it was 5 already sold to a college student. He submitted that the resale to the respondent was illegally done by their son, a fact which the Dodoma DLHT didn't consider in its impugned decision. He cited the case of Hemedi Saidi v. Mohamed Mbilu (1984) TLR 113 adding that the evidence of 1st and 3rd respondent that their son illegally sold the land in dispute is heavier than the evidence of the respondent. He therefore prayed the court to allow the appeal, and reverse the decision of the Dodoma DLHT for being unlawful. He further prayed for costs. Ms. Maria Ntui, learned advocate representing the respondent, replied. With regard to the first ground of appeal, she submitted that the testimony of the 1st appellant revealed that he directed the 2nd and the 3rd appellants sell the land in dispute, in his absence. She highlighted the fact that the 1st appellant admitted to receive the purchase price and promised to refund the buyer accordingly, which he didn't do. Ms. Ntui argued that if the 1st appellant had not directed the 2nd appellant to sell the land, as a land caretaker he would have sued the 2nd 6 appellant. She further argued that by admitting receiving the purchase price, it becomes obvious that the 1st appellant instructed the sale to be done. Ms. Ntui further submitted that the appellants family was involved in the decision to sell the land in dispute, arguing that that is the reason for the matter to be filed at the trial tribunal as "Richard Masanika and Others". She said despite those "others" not being mentioned, it is apparent that the family was involved because the suit at the trial tribunal was filed by them, hence they can not deny their involvement. She discounted the testimony of the 1st appellant that he alerted the Chairman not to register any sale of the said land as a pretense, saying that such testimony showed that the 1st appellant knew that his wife and son would sell the land. She added that the 1st appellant was therefore pretending not to support the sale. Ms. Ntui further submitted that the sale agreement dated 11/9/2018 was witnessed by the said Chairman and the name of the seller is Michael Richard Jonathan who has used the name of Richard Masanika in this appeal. 7 For this reason, she dismissed as untrue the assertion that the 2nd appellant had no good title to pass to the respondent. Ms. Ntui emphasized that if the 1st appellant had refunded the money as agreed, there would be no dispute. Regarding the argument that the 2nd appellant was not summoned to adduce evidence during trial, Ms. Ntui argued that all the appellants were included in the plaint and that there was consensus of the parties not to call witnesses during trial. She further argued that the 1st appellant confessed that the land in dispute was sold by his son and wife and that they didn't see the need to call witnesses. For these reasons, Ms. Ntui found no merit in the first ground of appeal and prayed the court to overrule it. On the second ground of appeal, Ms. Ntui submitted that the witness to the sale agreement was the 3rd appellant. She added that according to the evidence adduced, the respondent and 1st appellant were not in disagreement regarding identity of the land in dispute and the fact that it was sold by the son and the wife of the 1st appellant. Ms. Ntui argued that the evidence of the 3rd respondent that the family had not decided to sell the land in dispute was a lie because she witnessed the sale agreement. It 8 was Ms. Ntui's argument that by witnessing the sale agreement, the 3rd appellant had a chance to stop the sale by her son if it true the family had not decided to sell. She prayed the court to dismiss this ground for being baseless. Ms. Ntui further argued that the right of the 2nd appellant to be heard raised in the second ground of appeal is a new matter being introduced at this stage. She said that the same was not raised during the first appeal. On the third ground of appeal, Ms. Ntui, submitted that there was no evidence adduced to show that the appellants sold the land to the said college student. She argued that since the 1st appellant confessed to occupy the land in dispute for 13 years, the ownership of the land in dispute should have reverted to the appellants under the Law of Limitation Act, [Cap 89 RE 2019] even if they sold the same. Ms. Ntui further argued that if the land was truly owned by the alleged college student, the appellants should have told that owner to enter 9 appearance himself to help the course of justice. She prayed the court to dismiss the appeal with costs. Mr. Suday rejoined that Ms. Ntui had not objected the fact that the land in dispute did not lawfully belong to the 2nd appellant; that there were no two sellers according to the sale agreement and there was no power of attorney signed by the 1st appellant to authorize the said sale of the land in dispute. Mr. Suday further rejoined that the consensus alleged to have been reached on matters not in dispute, between the 1st appellant and the respondent was not signed, hence doubtful. He added that Ms. Ntui conceded that there were irregularities in the plaint whereby those who were referred as "others" were not mentioned. He said, such admitted irregularity proves that the 2nd appellant was never called to defend himself. He reiterated that the 3rd appellant denied to have witnesses the sale agreement. io Regarding the argument that the ownership of the land in dispute have reverted to the appellants due long under the doctrine of adverse possession, Mr. Suday rejoined that item 21 of Part I of the Law of Limitation Act, does not apply where a party has knowledge that the land was placed under his custody. On the argument that the student should have filed the suit himself, Mr. Suday rejoined that the student was not able to do so because there was already filed a case by the respondent at the trial tribunal. He prayed the court to allow the appeal with costs. In determining this appeal, there are three established principles of the law which I shall endeavor to observe. Firstly, this being the second appeal and there being a concurrent finding that the land in dispute belongs to the respondent, I shall not interfere with that concurrent finding unless I find misapprehension of the evidence or misdirection occasioning miscarriage of justice. This principle is enshrined in numerous decisions of the Court of Appeal including the case of Nchangwa Marwa Wambura V. The Republic (Criminal Appeal 44 of 2017) [2019] TZCA 459(11 December li 2019) and the famous decision in Director of Public Prosecution V. Rashid Mfaume Kawawa (1981) T.L.R 149. Secondly; it is an established principle of law that each case must be decided on its own facts and attending circumstances. (See Athumani Rashid vs. Republic (Criminal Appeal 110 of 2012) [2012] TZCA 143 (25 June 2012). As such, all peculiar facts of this case shall be duly considered. Thirdly; matters not raised in the lower tribunals shall not be entertained at this stage. This is in line with the decision of the Court of Appeal in Gandy v. Gaspar Air Charters Ltd. (1956) 23 EACA 139; and James Funke Gwagilo v. Attorney General (CAT) Civil Appeal No. 67 of 2001 (unreported). Having heard the submission by both parties and after a careful perusal of the proceedings, it is apparent that the issue of denial of right to be heard by the 2nd appellant is a new matter that was not raised in the lower tribunals. When Ms. Ntui alerted this court on the novelty of this issue, Mr. Suday conceded in style, by not rejoining on it. I shall therefore not labour on the said newly introduced grievance. 12 The above said, I think there remains only two issues to be determined by this court based on what the learned advocates have submitted and proceedings of the lower tribunals have revealed. These are; 1) Whether the Dodoma DLHT was right to uphold the decision of the trial tribunal in the light of evidence adduced during trial. 2) Whether the appeal has merit. On the first issue, the basis for the Dodoma DLHT to uphold the decision of the trial tribunal is the admission by the 1st appellant that he will return the respondent's money taken by his family from the selling of the land in dispute. The Dodoma DLHT construed the said admission to mean that the 1st appellant was aware of the contract his son, the 2nd appellant, entered and which was witnessed by his wife, the 3rd appellant. For this reason, it estopped the appellants from getting the land in dispute back. The Dodoma DLHT further considered the strength of evidence as per trial court's records, where it was shown that the respondent adduced stronger evidence than the appellants who refused to sign his own statement and also refused to mention the name of the said college student who is the alleged owner of the land in dispute. The Dodoma DLHT lastly considered 13 the 3rd appellant agreed that it was the 2nd appellant who sold the land in dispute. Additionally, both assessors unanimously opined that the land is dispute belonged to the respondent. From the submission by the appellant's advocate, the main point raised to challenge the mantle of the impugned decision is the argument that the 3rd appellant did not witness the sale agreement. In my opinion, this argument is insignificant and doesn't water down the finding of the Dodoma DLHT, for the following reasons: - Firstly; on the trial proceedings of 21/08/2019 the 1st appellant agreed that the said land was sold by his son and his wife, Elizabeth, who is the 3rd appellant. Secondly; while the advocate of the appellants alleged that the 2nd appellant was not competent to sell because of his age, nowhere in evidence the age of the 2nd appellant was mentioned or proved to be a minor. Thirdly, the 1st appellant testified that he visited the land in dispute and found beacons planted, and that there were two trips of sand which were poured on the site by his wife, Elizabeth, the 3rd appellant. He did not question the reason for his wife to pour two trips of sand on someone's land. Fourthly; the 1st appellant testified again that he alerted the Hamlet Chairman not to register the sale of land by his son or his wife, because the land belongs to someone. Apparently if his family was duly informed that the land belonged to third party, there could be no worry of it being resold. Fifthly; the 1st appellant is on record agreeing to refund the money taken from the respondent, and Sixthly; the name of the owner has remained a top secret kept by the 1st appellant todate. Even this court has not been told his or her name. I stated earlier on that the law requires each case to be decided on its own facts and circumstances. Section 8 of the Evidence Act, [Cap 6 R.E 2019] provides for res gestae rule. The said provision states: "8. Relevancy of facts forming part of same transaction Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant whether they occurred at the same time and place or at different times and place ". 15 In this case, the facts in issue include the sale of the land with knowledge and or consent of the 1st appellant by the appellants family. To disprove this fact, the learned advocate for the appellant has submitted that the 1st and 3rd appellants did not consent to the sale as per testimonies. He further submitted to the effect that the land in dispute belongs to the unnamed student and was sold by the 2nd appellant who had no good title to pass to the respondent. In my considered view, the seven facts listed above, considered as pieces of jigsaw puzzle in the light of the res gestae rule, reveal that there is no other owner save the appellants' family. The college student is nonexistent. The owner should have been mentioned by the appellants during trial but the 1st appellant refused to mention him or her. Under such circumstances, it is justifiable to draw a negative inference that the said owner does not exist. With that inference drawn, it remains that the family own the land and vide the 2nd appellant, the same was sold to the respondent. This is deemed so because of the admission by both the 1st and 3rd appellants that they received the amount of Tshs. 3,300,000/= from the respondent for the land 16 in dispute. The 1st appellant is readily to refund the money, with interest, but had not done so. In the circumstances above, I draw inspiration from the judgment of the Court of Appeal in Philipo Joseph Lukonde v. Faraji Ally Saidi, Civil Appeal No. 74 of 2019, CAT at Dodoma, when it stated: 'We take any such deliberate breach of contract very seriously. Once parties ha ve duly entered into a contract, they must honour their obligations under that contract. Neither this Court, nor any other court in Tanzania for that matter, should allow deliberate breach of sanctity of contract'. In the above cited case, the court of appeal referred to its earlier decision in Abualy Alibhai Aziz v. Bhatia Brothers Limited [2000] T.L.R 288 where at page 289 the Court had stated 'the principle of sanctity of contract is consistently reluctant to admit excuses for non-performance where there is no incapacity, no fraud (actual or constructive) or misrepresentation, and no principle ofpublic policy prohibiting enforcement' 17 I am aware that the cited decisions of the Court of Appeal may not directly relate to the facts of the case in hand. However, I am inspired to refer to the cited decisions for the underlying principle that parties should keep their promises and courts should not tolerate excuses from parties who are keen to benefitting from their own breach of agreements. In the circumstances of this case, the appellants want the court to help them keep both the land in dispute and the consideration for its purchase paid by the respondent. Such a decision shall obviously lead to miscarriage of justice against the respondent who will be rendered a net loser. For the interest of justice, all the excuses raised by the appellants are disregarded. Accordingly, I find no merit in the entire appeal. That said, the appeal is dismissed with costs. Dated at Dodoma this 27th day of June, 2022 18