20161125 TZHC Mbeya

3' IN THE HIG4 COURT OF TANZANIA ; AtMBEYA WjAND APPEAL NO 40 OF 2015 (From Mbeya District Land and Housing Tribunal Application No 06 of 2013) SAKALAKANO NOLAD HIRJI ......................... APPELLANT VERSUS SAI'I'.A MWANGOKA ................................... RESPONDENT JUDGMENT Date of Last Order: 10.05.2016 Date of Judgment 25.11.2016 Dr. Mambi, J. In the District Land and Housing Tribunal (Mbeya District), the Appellant unsuccessfully sued the Respondent SAITA MWANGOKA for trespass in in Land Application No 06 of 2013. The tribunal declared the respondent to be the lawfully owner of the suit land. The appellant was ordered to pay the Costs of the suit. Aggrieved, the appellant filed a memorandum of appeal containing five grounds as follows:- 1. The District Land and Housing Tribunal erred on dismissing the appellant's case when she proved her case to the standard set by law. 1 2.The trial District Land and Housing Tribunal erred on holding the Appellant did not travel to Yemen when that was not at all disputed and was supported by the respondent. The trial District Land and Housing Tribunal having found as a fact that the appellant was not consulted or involved in the sale of the disputed land, was bound to enter a judgment in her favour. The trial District Land and Housing Tribunal erred in the process of its evaluation of evidence laid before it and this let to its wrong decision. The appellant prayed this court to allow appeal with Costs, the judgment of the trial tribunal be quashed and set aside. This court on 10.03.20 16 ordered parties to argue by way of written submissions as prayed. While the appellant was represented by Mr. Mbise the respondent had the service of Law Home Solicitors Advocates. The appellant through Mr. Mbise in his first ground of appeal submitted that there is no dispute that the suit land is the matrimonial property jointly owned by matrimonial Mwakyoma and Sakalakano Hirji (Appellant). He thus argued that since property was jointly owned, there was no room for the other party to sell the suit land without the consent of the appellant who is the co - owner. Mr. Mbise, further contended that the purported sale agreement was fabricated and invented after the death of the Appellant's husband and thus the whole selling process was invalid and the same has no legal effect in the eyes of law. It-was also the concern of Mr. Mbise that the evidence on records creates suspicious connotations and contradiction. He wondered as ) to why the respondent was so hurry in rushing to construct buildings over the suit land soon after the appellant's traveled to Yemen. The appellant through Mr. Mbise submitted that at any rate it was impossible for the appellant or husband to sell the open space directly in front of their matrimonial home. With regard to ground two, Mr. Mbise averred that, there is evidence on record that appellant ones traveled to Yemen and hence there was no reason whatsoever to doubt such fact. In his final ground of appeal the appellant through her learned advocate submitted that since the appellant was not consulted by her husband about the sale, the judgment ought to have been made in favour of the Appellant. In reply to the appellant submission, the Learned Advocate for the respondent maintained that the case at the trial tribunal was proved beyond the required standard. He further submitted that the said sale agreement was valid and is of legal effect on the eyes of law as the seller was the husband of the appellant who later passed away. He argued that the sale agreement was not fabricated as it contained the signature of the late husband of the appellant and the same was dated 16.05. 1995. The respondent Advocate for the respondent further submitted that the assertion of the Learned Advocate for the appellant that the respondent and her husband did not develop the suit land from 16.06.1995 up to 1999 is of no importance because she was not 3 r forced by anybody to develop his own land. He also submitted that the appellants' submission that she travelled to Yemen or otherwise has nothing importance to the present matter. Responding to ground three of appeal, the respondent submitted that replied that the act of the appellant not being involved in the sale of the suit does not hold water since even in the first sale, the appellant was not involved. The respondent finally submitted that the appellant claim was already time barred in instituting this matter at the District Land and Housing Tribunal. His argument was based on the fact that since the sale agreement was done in 1995 and the appellant just kept quiet until he instituted the case in 2013, in such circumstances the suit was improperly out of time filed by the Appellant at the trial tribunal. I have carefully scanned and considered the evidence on record as well as the submissions from both parties. In my considered view the main task of this court is to determine who is the owner of the land in dispute is and whether the trial tribunal erred in its decision. The appellant in her the first ground of appeal, raises an issue as to whether the appellant's claim was proved to the standard set by law. Under normal circumstance and according to the law, the appellant was duty bound to prove as to how far she was the lawful owner of the disputed land. What the appellant did, is to deny that the suit land was never sold to the respondent and it was sold then it was done without her consent since the land in dispute was a matrimonial property that was joinfly owned by the appellant and her late husband. 4 Itc-is well established principle of the law that in civil cases, the burden of proof lies on the plaintiff and the standard of proof is on ) the balance of probabilities. This simply means that he who alleges must prove. This can be reflected from Section 112 of the Law of Evidence Act, Cap 6 jR.E20021, which provides that: "The burden ofproof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by law that the proof of that fact shall lie on any other person". The duty for the appellant to prove her or his case was also underscored by the court in the NATIONAL BANK OF COMMERCE LTD Vs DESIREE & YVONNE TANZAIA & 4 OTHERS, Comm. CASE NO 59 OF 2003() HC DSM, where it was observed that:- "The burden of proof in a suit proceeding lies on their person who would fail if no evidence at all were given on either side". The evidence on records show that the respondent in this case was a bonafide purchaser and had all right since he legally bought the said suit land without any objection or caveat. The court in various decision has explained as to who and when one becomes a bonafide purchaser as indicated here below: In SANDERS V. MCAFFEE, 42 GA 250, it was defined as: "A bonafide purchaser is the one who buys property of another without notice that some third person has a right to, or interest in, such property, and pays a full and fair price for the same, at the time of such purchase or before he has notice of the claim or interest of such other in the property ". 5 Thea.ppellant has disputed the signature of the seller (the deceased) in the sale agreement since they believe it was forged and thus the contract was not valid. I agree with the trial Tribunal Chairman who at page 3 of his judgment stated that the deceased signature on the 1993 sale and that of 1995 are similar and there is no difference. In his judgment the trial Tribunal Chairman stated that: "the deceased signature on the 1993 sale and that of 1995 are similar and I have failed to differentiate them". As it was rightly noted by the Court in case of the Registered Trustees of Tanzania Agriculture Society versus Agnes CCCCC E. Mboya Land Appeal No.12 of 2011 (unreported) that "it is the position of law that, the valid agreement must be manifested by expressing willingness to be bound by the embodied terms in order to obtain assent of the parties". Referring the Law of contract CAP 345 [R,E,20011 (section 2(1)), the court went on by stating that in most cases, it is expressed by parties signing the document something which has been properly done in our case in hand. Emphasis supplied). The sale agreements in our case indicates that there was the valid agreement that was manifested by expressing willingness by the parties who were bound by the embodied terms that indicated assent of the parties. The evidence on record does not reveal to the effect that at the time of purchase of the suit plot, there was a third party notice challenging the conveyance of the suit land. It appears from the record the disputed land was already sold. There is nowhere the appellant ever disputed the said sale agreement and signature and eventhat sale agreement was not disputed at the trial tribunal. It is my considered opinion that the sale agreement cannot be termed a fabricated document merely because the appellant was not consulted but the appellant needed to prove the the purported appellant's husband signature was forged. Since 1993 and 1995, it is now almost more than twenty years since the disputed land was sold to the respondent, however the appellant just kept quite as if she consented if it was matrimonial property. There is also another undisputed fact that in the year 1994, the appellant and her late husband sold the plot that had unfinished house (Pagala) to the respondent. Despite the appellant claim that she was involved by her husband in selling such Pagala, the records does not show on how far she was part to the deal. The question is how can it be possible to draw the same inference that the said "Pagala" and the suit property were solely properties of her late husband?. Looking at the ground of appeal, that the was not aware on the transfer of the dispute land since she travelled to Yemen, I don't see if this ground is meritorious since this was not an issue but rather the issue is whether the respondent lawfully acquired the suit land. Even the allegation by the appellant that her evidence was not considered and evaluated, does not seem to hold water. I hold so since the trial Tribunal Chairman in his Judgment clearly considered and evaluated her evidence as indicated from page 3 to 6. Having evaluated the evidence, the trial Tribunal Chairman he was satisfied that both the foreside (suit land) and the back side of the appellant's 7 houe.. was already sold. He also noted that the appellant had remained with a land locked house with narrow passage (outlet to the neighbourhoods. To satisfy itself, the trial tribunal also visited the locus in quo. From the foregoing reasons, I have no reason to fault the findings reached by the trial tribunal rather than upholding its decision. In the event as I reasoned above, this appeal is non-meritorious hence dismissed. The decision of the Land and Housing Tribunal is uphold and it is hereby declared as done by the Trial Tribunal that the respondent is the lawful owner of the suit land. In the event as parties are related, I make no orders as to costs so as not to further soar their relationship. Order accordig1y. Right of appeal explained. R. 7 JUDGE 25.11. 2016 Judgment delivered in Chambers this 25th day of November 2016 in presence of both parties. DR.A.J JUDGE 25.11. 2016 8