shaaban m ngamba administrator of hadija mbwana and 2 others vs martin hariri 2021 tzhclandd 883 9 april 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO.42 OF 2018 (Appealfrom the decision ofthe District Land and Housing Tribunalfor Kinondoni at Mwananyamaia, in Land Application No. 168 of2007) SHABANI M. NGAMBA (As an administrator of esta of the late HADIJA MBWANA), m PPELLANT MWISHE AMIR APiELLANT 1 KASSIM AMIR 3RD ;^pelLANT er MARTIN HARIRI RESPONDENT Date ofLast Order:26/^207^ Date ofJudgment date:^^0. % DGEMENT The if^t^ed the respondents before the District Land and sing Tri i(|)<inondonl seeking to be declared as the owner of House NmJARKL situated at Manzese sisl kwa sisl area, Kinondoni Dar es salaam. He :o have acquired such ownership by purchasing the said house from the owner of the house, one HADIJA MBWANA on 8''^ March 2004. The appellants preferred this appeal against the decision of the District Land and Housing Tribunal for Kinondoni on the following grounds:- 1. That the honourable truibunal erred in law and facts by relying on the evidence of PW2, PW3 and PW4 who never witnessed the sale transaction which the respondent alleges to have conducted 2. That, the Honourable Tribunal erred in law and in fact on accepting a forged sale agreement and basing its judgement thereon 3. That, the Honourable Tribunal erred, in lav^nd in facts in admitting hearsay evidence in favour 6^H%^|spofi^riy> 4. That the Honourable Trial Tribunal erredlin la^l^dd in facts in holding that the respondent's a righ^ul oWper of the disputed house while he never tendered an^vi^hcelif ownership from any relevant authorities 5. That, the learned||ial chairpers||n err,pd in law and in fact by relying on evidence.pf both R]||jy2,PW3 and PW4 which were all inconsistent. M 6. That the HdnPurablJa Tribunal erred in law and in fact by planting %orisi|in, tli% mouth of the respondent and his ^ftnesfes sols to julllfy its biased decision The adifellants in tfts appeal had legal services of Mr. Gwamaka Mwaikuglle learned aTOcate \mle the respondent prosecuted the appeal in person. On 24'*^ April 2020, this Court ordered the appeal to be argued by way of written submissions. I am grateful to the parties for their compliance with the court ordered despite the fact that it was merely communicates to them via a court clerk as appearance before Judges was dispensed with due to COVID -19 pandemic. up'"''?"' Submitting on the first ground of appeai, the appeilants counsel argued that, the trial tribunal based Its decisions on the testimonies of witnesses who did not witness the sale transaction between the late Hadija Mbwana and the Respondent. He argued that, according to the testimony of PW4, GEORGE JONAS MWAKATIKA he was merely informed by the respondent that he purchased the suit house and he showed him papers, PW2 MOHAMED MTEITE testified to the effect that the respondent tool^^e sale agreement to him by the time Hadija Mbwana has already died^nd he clearly that he was not involved In the sale transaction. PW3 stated that the respondent Introduced hlm^^o hdf^l© of the suit house. Thus, It was wron^oj^he ^^trlb^l to rest Its decision on the testimonies of these wltnes|^ On the second ground of^fflll, tl%^r^^ou^^argued that the sale agreement was fraudulen^ pro^^^ ai^^hei^ Is evidence to prove the same. He argued fur^'erth^^The^e^qreer^nt was witnessed by MVULENI Mtaa Governmp^:^^le alleged sale Is located at sisi kwa sis! strA^nd %e lafeffladija was residing at sisl kwa sis! street. %> Accor^i^%^irTi'^^'afi^|ienfwas forged because It was witnessed-1 uby threeptness v%iJif%M test^ before the tribunal. % % Submltt^a.on the ftrd ground of Appeal, he argued that, the trial tribunal admitted a®l|ene^pon hearsay evidence since all witnesses who testified before the tribunal did not witness the sale transaction. He cited section 62 of Evidence Act [Cap 62 R.E 2019] which provide for Inadmissibllity of hearsay evidence. The Learned counsel argued on the fourth ground of appeal that, the respondent failed to prove his case within the required standard. Thus he is of the view that the trial tribunal erred in law and fact in holding the respondent to be the rightful owner of the suit house while he did not tender evidence to prove such ownership. He reiterated his arguments that the respondents witnesses before the tribunal did not witness the sale transaction and the sale agreement that was tendered does not contain descri^^s of the purchased property. Submitting on the fifth ground of appeg^ the OUUII IIUUI iy Wii 1.11V. argued that the Judgement of trial tnbuna%^tra^^p?ff|)f contents of the. proceedings with iM, regard ,,.4 to the »+,o fr^WtiPc 6%W2 MiPSN^ %d Wtod PW4. According ... m. %. Accordinq to '4>. B^imonies of the two the learned counsel, what is state^ro witnesses contained in thei^^tnent'-l^iffer^ from their real testimony as m % recorded in the proceeding \^ % On the sixth ground the ap^lant's advocates argued that, the evidence on r^^n :W/i to be the owner of the suit house as allwitn^^did f^;witness the sale transaction, they were only inforr^Wll^rei^enfil t he owns the suit house. In his^ly subi^nt## respondent argued that the appellant's arguments that his ^^esses^ not witness the sale transaction is not true. He argued in response^iimst ground of appeal that, all witnesses brought by him at the trial tribunal had witnessed the sale transaction and they are close relative of the deceased Hadija. He argued further that his evidence was considered to heavier than the appellants' evidence and that he managed to prove his case within the required standards. He cited the case of HEMEDI SAID VERSUS MOHAMED MBILU as authority to the effect that he whose evidence is heavier than the other must win and section 110 (1) of evidence Act on the requirement to prove any fact alleged to exist. On the second ground of Appeal the respondent argued that, the sale agreement between him and Hadija was not forged. He submitted further that, had the allegation of forgery been genuine, the appellants would have dealt with the alleged forgery by instituting a complaint and have criminal case instituted against the respondent. However, the'^^ that no criminal charges have ever been instituted by the appelliMfei,.sugge^^^^t any forgery committed by the respondent.^ Responding to the third and fourth grou^% of respondent registered his views that the evi^|nc#;^duj^^t^?^is ^tnesses before the trial tribunal is not hearsay^p ^0^ant. He added that, despite witnesses he had sale agre^^nt ^^uted between him and the late Hadiia. According to fe, wit^ch %ence he managed to prove his ownership over the sult|i.and;CHe considef&d conside the 5*^^ and 6^^ grounds of appeal as merltless q^^ei^n f^sal of the appeal with costs. ^counsel for the appellant reiterated his submlMm internet cited%humber of authorites which were neither cited m "m . . in hls'^jbmission^l^ chiW nor were they refered in the respondents reply submissiol^It is^e iaw that no arguments can be entertained during rejoinder be^feifrentertained, will occasion justice to the respondent who wiil have no opportunity to respond to the same. Thus, in my judgment, I will consider the submissions made by both parties with exception to new arguments and authorities contained in the appeliant's rejoinder submission. I considered the rival submissions from the parties and court record. According to court record, the trial tribunal sat a single assessor identified by the name of Mr. Mgombale. The law section 23 of [Cap. 216 R.E 2019] requires assessors to give their opinion in writing before judgement. Such opinion should be read before the parties so as to make it part of the proceedings of the case. The court noted that the trial tribunal did not require the said assessor to give his opinion although a piece'^^aper containing his opinion is within the court file. It is not ciear ^en and^l^ such piece of . . ^ paper was inserted in the court fiie as it is not ref^^^^ywn^s court ^ 1 record. The noted irregularity was nofwiong ^f appeal, therefore the court summoned parti^to api^c and#ddress the court on whether such opinion was evertead f|fpt^|i^^rio|>to delivery of the Judgement. The appellant's^eounsersubmifted that fie was merely engaged ^0 ' " W/' during appeal thus, he is aware td%taat tl^ljnspired during triai. The respondent, suoniilM^thaf he remembers the assessors gave their regard this court considers the provisions of "s^ion||3(2) of^he Land Disputes Courts Act to have been complirfMtoan#^fceSd^;t9^ determine the appeal on merits The ^unds of ^^eal^reproduced at the beginning of this judgement are centere^ji the va||ity of the sale agreement and weight and reliability of evidence pfSd9Ge|[^y the respondent. I will start with the first ground of appeal which concerns validity of the sale agreement. Evidence on record indicates that the respondents produced a sale agreement allegedly executed between him and the late Hadija Bwana. The alleged sale agreement which dates 8^ March 2004 was admitted as exhibit PI. It is purported to have signed by the late Hadija Mbwana by affixing her thumb print and it is alleged to have been witnessed by three relatives of the late Hadija Bwana namely Bi. Nyantumbuka, Asha Bwana and Tatu Abdaliah. The witnesses also signed the agreement by affixing their finger prints. The agreement shows that Mr. Abdallah Msumi who was a member of Mvuleni Mtaa Government witnessed the agreement. During trial the respondent did not summon any of the witnesses who allegedly witnessed the execution of the sale agreeiront. The witnesses he summoned did not witness the sale transaction bet^^him and the late Hadija Bwana. They were only informed about-^^^^ale b'^^e resgndent. Some of them they received such inforr^tion Hadija Bwana. The respondent did not me^n ttf|^^#l^t prevented him from summoning witnesses whoi^ji%^l^dis^ed sale transaction. According to PW2 Mohamed Mte^^hd%|^s ^airman of sisi kwa sisi street, his office receives*'sale%rgem% between the respondent and Hadija Mbwana after the dlth of HJga l^lwana^ % % % Mwanaidi Hamis Mki^^dat^o was^ member of sisi kwa sisi Mtaa Government to her testimony, the respondent had ones bro% i^latten%of sisi kwa sisi mtaa government, a sale agree^fift^ee^m ind^,Asha. The said Asha have never appeared befor^he mtaa%|vem^nt as the respondent informed them that, Asha is at Mvul%^Street. ^prding to this witness, records of ownership of the suit house we^l|an#i from the said Asha to the respondents name after production of the sale agreement and property tax payment receipts which had the respondent's name. The respondent did not summon anybody from Mvuleni Street where the transaction was concluded. In the case cited by the appellant, HEMEDI SAID VS. MOHAMED MBILU, the Court held that failure to summon key witnesses by a party to the case may move the court to draw inference that perhaps the said witnesses would have testified against a party who refrained from summoning them. I also find the same in the case at hand as the respondent has not summoned any of the witnesses who witnessed the sale agreement between him and the late Hadija Bwana. In addition, it was the testimony of the appellant that one of the witnesses ASHA BWANA declined to have witnes^d the sale agreement between the respondent and the late Hadija Bwana the clan meeting which was held in the process of administering t|^^easd ^55^tate. It is not clear why the said Asha Bwana was not summone^c in%^^e,but, %, f iMummon key resp oresence of such doubts and failure of of proof to below witnesses to the sale transaction r balance of probabilities. I find no reason to deteWne the reti^ni rounds of appeal because findings on reliabilitv of tdsale^l^fmenlyetermines the entire appeal as the sale agreement w< basis oft^e respondents ownership over the suit land. he%)y allowed. The decision of the trial tribunal isqui^^^fe^5et%ide. m the circumstances of this case, I award no costs.'®ch party f^uldtear his ow^cost^. O' Z. D. MANqiO JUDGE wo • 9/4/2021 O..: