salehe mohamed muhawi vs sultan hassan mkangama 2014 tzhclandd 33 27 may 2014

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO. 68 OF 2013 SALEHE MOHAMED MUHAWI............................................APPELLANT VERSUS SULTAN HASSAN MKANGAMA (Administrator of the estate ofMwa ntu m uSeif) ............................................................ RESPONDENT Date of the Lost Order: 11103)2014 Date of the Judgm ent: 2710512014 JUDGMENT B.R. MUTUNGI, J. Mr. Lutufya counsel representing the Appellant, Salehe Mohamed Muhawi has raised three grounds of appeal. They are as hereunder:- 1. That, the Honourable Chairperson erred in law and in ; fact by relying on a document in delivering Judgment : which appeared to be forged or issued by unauthorized authority. 2. That, the Honourable Chairperson erred in law and fact in failing to consider evidence tendered by the Appellant, hence arriving at a wrong decision. 3. That, the Honourable Chairperson erred in law and fact by failure to consider evidence tendered at the ward tribunal, hence conning at a wrong decision. In support thereof the learned counsel submitted that in so far as the first ground is concerned the document in controversy is Exhibit PW1 which is very different from Exhibit ‘Dl’ which was tendered by the Respondent. The learned counsel prayed before the court to find that the Respondents document had neither the signature of the buyer nor the seller. To add salt to the wound the same had no one testifying having been present at the time of signing the document. The learned counsel further submitted that upon finding the foregoing short falls they had inquired and the answer they got was perplexing. It was alledged that all the eight witnesses in relation to the said document had passed aw ay. It cannot enter any sane person of how such a big number of witnesses can coincidentally all be dead. In support of the same ground, the Appellant’s counsel informed the court that the dispute at hand had gone through various places from 1995 to 2011. These included the Mwanamsekwa village council and Mikwambe ward tribunal. In all these places the respondent had never tendered the said document till the year 2013 in the District Land and Housing Tribunal. The secretary as shown on Exhibit ‘Dl' is Y.S. Singilimo whereas in Appellant’s document the secretary was one Ra.shid H. MikukiSingilimowhoby that time was no longer in office as his office tenure had long expired. As the lower tribunal did not consider all the foregoing discrepancies this court is asked to go through all that has been submitted and uphold the first ground of appeal. In regards to the second ground which was consolidated with the third ground of appeal, the Appellant's counsel submitted that there was an allegation that the suit land belonged to MwatumuSeif which evidence was refuted by various witnesses and MwatumuSeif herself. The truth was such that she was not the owner of the suit land, but, as she had occupied the same over a long period had asked for compensation. This was paid by the Appellant and thereafter MwatumuSeif vacated the area’. This is supported by Exhibit ‘D3\ All this piece of evidence was ignored by the trial tribunal and infact the tribunal went ahead and declared MwatumuSeif as the legal owner. Thus in itself was an error on the part of the trial tribunal and'the court is called upon to hold otherwise. In response the Respondent (unrepresented) submitted that the evidence was crystal clear in that the legal owner of the disputed land was MwatumuSeif as she had bought the disputed land in 1988. The truth of the matter is that the Appellant had bought the suit land from one Asha Said and she was the one to be sued. The Respondent in this appeal Sultan Hassan Mkangama stands as the administrator of the late MwatumuSeif. Having gone through the above foregoing summary I find that the dispute indeed has been complicated by the existence of two sale documents. The first one Exhibit ‘Dl’ 18/9/1988 (the sale between Asha Said and MwatumuSefu) jn regard of the suit land for 20,000/= on the other land Exhibit ‘PI’ dated 11/12/1992 the sale Agreement (between Asha Said and Salehe Mohamed Mulawi) for 20,000/= in all these documents the seller was one Asha Said. It is upon the above sale documents that each side is purporting to be the legal owner of the disputed land. To satisfy myself I have gone through the trial tribunal's proceedings and found as a fact that while purchasing the suit land in 1992 the Appellant had found on the disputed farm the late MwatumuSefu's house and crops. It is also a fact that the Appellant together with the village leaders in his company did satisfy themselves that indeed MwatumuSefu was living there and in occupation of the disputed land. It is also a fact that the sale proceeded dispite the absence of the late MwatumuSeif. On the other side of the coin it was established by the Respondent that the late MwatumuSeif had bought the disputed land in 1998 and thereafter cultivated and built a house therein. Even on the Appellant coming to buy the