shabani m ngamba administrator of of the late hadija mbwana and 2 others vs martin hariri 2021 tzhclandd 694 9 april 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 42 OF 2018 (Appeal from the decision of the District Land and Housing Tribunal for Kinondoni at Mwananyamala, in Land Application No. 168 SHABANI M. NGAMBA (As an administrator of Of the late HADIJA MBWANA) MWISHE AMIR KASSIM AMIR.. MARTIN HARIRI ...... RESPONDENT Date of Last Order: Date ofJudgment date: DGEMENT The the respondents before the District Land and nondoni seeking to be declared as the owner of House at Manzese sisi kwa sisi area, Kinondoni Dar es salaam. have acquired such ownership by purchasing the said house from the owner of the house, one HADIJA MBWANA on 8th March 2004. The appellants preferred this appeal against the decision of the District Land and Housing Tribunal for Kinondoni on the following grounds:- i 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 law and in facts in int^ admitting hearsay evidence in favour of the respondent 4. That the Honourable Trial Triburial erred in law and in facts in holding that the resi ler of the disputed k of ownership from 5. That, the learned trial chairperson erred in law and in fact by relying on evidence of both PW2,PW3 and PW4 which were all inconsistent ' Zf 6. That the Honourable Tribunal erred in law and in fact by planting words in the mouth of the respondent and his witnesses so as to justify its biased decision C % M The appellants in this appeal had legal services of Mr. Gwamaka Mwaikugile learned advocate while the respondent prosecuted the appeal in person. On 24th 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. 2 Submitting on the first ground of appeal, the appellants 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 took the sale agreement to him by the time Hadija Mbwana has already died ^nd he stated clearly that he was not involved in the sale transaction. PW3 MWANAJDI HANS MKWANDA stated that the respondent introduced himself to her alleging to be the owner On the second ground of agreement was fraudulen According to him the agreement was forged because it was witnessed by w % w. w three fitness who did not testify before the tribunal. admitted and relied upon 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 inadmissibility of hearsay evidence. 3 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 respondent's witnesses before the tribunal did not witness the sale transaction and the sale agreement that was tendered does not contain descriptions of the purchased property. "w Submitting on the fifth ground of appeal the advocate for argued that the Judgement of trial tribunal dpntradicts With t the proceedings with regard to the testimonies of PW2 and PW4. According to the learned counsel, what is stated in the summary of testimonies of the two as recorded in Want's advocates argued that, the evidence on ri respondent to be the owner of the suit house as all witnesss did not witness the sale transaction, they were only WFWz informed by the respondent that he owns the suit house. In his reply submission the respondent argued that the appellant's arguments that his witnesses did not witness the sale transaction is not true. He argued in response to the first 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 4 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 fa^t that no criminal charges have ever been instituted by the appellants suggest |hat there is no any forgery committed by the respondent. Responding to the third and fourth grounds of respondent registered his views that the evidence adduced by fiis Witnesses before the trial tribunal is not hearsay as alleged by the appellant. He added that, despite witnesses he had the sale agreement executed between him and the late Hadija. According to nim, with si&ch "1* evidence "”“J to proveu:his 1he managed1 ----------- ~ ownership over the suflitland. He considered the 5th and 6th grounds of appeal as meritless and tie then prayed for dismissal of the appeal with costs. % J In his rejoinder submission the counsel for the appellant reiterated his submission in chief and cited a number of authorites which were neither cited in his submission in, chief nor were they refered in the respondents reply submission. It is law that no arguments can be entertained during rejoinder bee b if entertained, will occasion justice to the respondent who will 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 appellant's rejoinder submission. 5 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 of paper containing his opinion is within the court file. It is not clear when an row such piece of paper was inserted in the court file as it is not re |£ court record. The noted irregularity was not amoi appeal, therefore the court summoned parties to appear and address the court on whether such opinion was ever read before Judgement. The appellant's counsel submitted that he was merely engaged during appeal thus, he is not aware as to what transpired during trial. % The respondent, Martin Hand submitted that he remembers the assessors opinion during trial, In that regard this court considers the gave their op: provisions of section 23(2) of the Land Disputes Courts Act to have been The grounds of appeal as reproduced at the beginning of this judgement are centered on the validity of the sale agreement and weight and reliability of evidence produced by 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 8th March 2004 was admitted as exhibit Pl. 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 6 namely Bi. Nyantumbuka, Asha Bwana and Tatu Abdallah. 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 agreement. The witnesses he % summoned did not witness the sale transaction between him and the late Hadija Bwana. They were only informed about'the sale by -tfie respondent. Some of them they received such information after the deatfft of the late % % Hadija Bwana. The respondent did not mention the.reasbn Gnat prevented sisi street, his office received Hadija Mbwana after the dea Mwanaidi Hamis Mkwanda who was a member of sisi kwa sisi Mtaa Government testified as PW 3. According to her testimony, the respondent had ones brought into attention of sisi kwa sisi mtaa government, a sale agreement between him and Asha. The said Asha have never appeared before the mtaa Govern^nt as the respondent informed them that, Asha is at Mvuleni Street. According to this witness, records of ownership of the suit Mb--. house were changed 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 7 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 witnessed the sale agreement between the respondent and the late Hadija Bwana before the clan meeting which was held in the process of administering the deceased estate. It is not ;e, but % presence of such doubts and failure of the res .ummon key witnesses to the sale transaction reduces the standard of proof to below balance of probabilities. the sale agreement was the only basis of the respondents ownership over the suit land For that reason the appealis hereby allowed. The decision of the trial tribunal is quashed and set aside. Given the circumstances of this case, I award no 8