sophia david mansur personal legal representative of the late david mansur vs mildred kisamo 2022 tzhclandd 12669 29 november 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 121 OF 2022 (Appeal from the judgment and decree of the District Land and Housing Tribunal for Kinondoni at Mwananyamala before S.H. Wambili Chairman in Land Application No. 313 of 2009 delivered on 31.05.2022) SOPHIA DAVID MANSUR (Personal Legal Representative Of the late David Mansur)................................................. APPELLANT VERSUS MILDRED KISAMO ....................... RESPONDENT JUDGMENT Date of Last order: 14.11.2022 Date of Judgment: 29.11.2022 A.Z.MGEYEKWA, J This is the first appeal. At the centre of controversy between the parties to this appeal is a parcel of land Plot No. 231 Block “E” located at Tegeta Area within the Municipal Council of Kinondoni. The decision from which i this appeal stems are the judgment of the District Land and Housing Tribunal in Application No. 313 of 2009. The material background facts of the dispute are not difficult to comprehend. They go thus: Sophia David Mansur, the appellant herein claimed that being the legal representative of the late David Mansur she is the lawful owner of the land in dispute. She stated that the disputed land belonged to her late father David Mansur. On the contrary, the respondent disputed the allegations. The appellant decided to lodge a case to the District Land and Housing Tribunal for Kinondoni for declaration orders as per the Application including to be declared that he is the lawful owner of the suit property. The District Land and Housing Tribunal for Kinondoni determined the matter and found that the respondent was the lawful owner of the suit land. Believing the decision of the District Land and Housing Tribunal for Kinondoni was not correct, the appellant lodged a petition of appeal containing five grounds of appeal as follows:- 1. That, the Hon. Chairman of the Tribunal erred both in fact and law by holding that the Respondent had a lawful sale agreement entered on 2 the 18th December, 2003 with the late David Mansur, despite of its unauthentic and irregularities during transfer of Plot No. 231. 2. That, the Hon. Chairman of the Tribunal erred in both law and fact by holding that the Respondent is the lawful owner of the disputed property in total disregard of the decision of Kinondoni Land Dispute Committee, following the Respondent’s her own agreement to return Plot No. 231 to the late David Mansur. 3. That, the Hon. Chairman of the Tribunal erred in law and facts by holding in favour of the Respondent without considering the Appellant’s evidence adduced during trial. 4. That, the Hon. Tribunal erred in law and facts by shifting the burden of proof to the Appellant. 5. That, the Hon. Chairman of the Tribunal erred in both law and fact by failing to consider and analyze well the evidence adduced during trial. When the matter was called for hearing before this court on 14th November, 2022, the appellant enjoyed the legal service of Ms. Anna Marealle & Stephen Kimaro, learned Advocates while the respondent had the legal service of Hassan Rukwanya, learned Advocate. 3 The Court acceded to the appellant’s proposal to have the matter disposed of by way of written submissions. Pursuant thereto, a schedule for filing the submissions was duly conformed to. In her submission, the appellant’s counsel submitted in length, therefore I will summarize her submission as follows; Ms. Anna opted to consolidate the 2nd and 3rd grounds of appeal as well as the 1st and 4th grounds of appeal and argued the 5th ground separately. Submitting on the 2nd and 3rd grounds of appeal, the learned counsel for the appellant submitted that at the District Land and Housing Tribunal the appellant claimed that the suit land; Plot No. 321 Block E’ Tegeta was not sold to the respondent and they prayed for the tribunal to order the respondent to vacate the suit land. Ms. Anna contended that the appellant claimed that he is the lawful owner of the suit land. The appellant contended that in accordance to exhibits P2 and P9 the disputed land was not sold to the respondent and that the trial Chairman had erred to decide in favor of the respondent since the suit land was registered in the name of the late David Mansur and that the sale agreement between the late David Mansur and the respondent was not valid. 4 The learned counsel went on to submit that On the consolidated grounds Counsel for the appellant was of the view that the evidence on her side was not considered. He further submitted that; the burden of proof was shifted to the appellant. However, that the evidence adduced by the appellant were not well analyzed. On the other hand, Counsel for the respondent contended that the respondent did not anywhere had signed to return Plot No. 231 to the appellant, however, that there was a fair hearing on the balance of probability in which no required burden to one party was shifted to the other. In rejoinder counsel for the appellant reiterated what was stated in chief. I have revisited the evidence and submissions of both sides now, I am in a position to determine the appeal. In my determination, I will consolidate the second, third and fifth grounds together because they are interrelated. Equally related are the third and fourth grounds which I shall also determine together. Except for the first ground which I will determine separately. 5 As to the first and second grounds of appeal, the appellant's counsel is faulting the Chairman for holding that the respondent had a lawful sale agreement made on 18th December, 2003 with the late David Mansur despite of unauthentic and irregularities during transfer of Plot No. 231. The respondent testified to the effect that a disputed property situated at Plot No. 2319232 was sold by David Mansur to the her this is in accordance to exhibits P9 and D1. On his side, the appellant claimed that the said documents were forged whereas Plot No. 232 was sold to the respondent in exclusion of Plot No. 231. Reading the record, it shows that the appellant testified to the effect the late David Mansur in December, 2003 sold Plot No. 232 to Mildred Kisamo, and the Plot was under one Title Deed with Plot No. 231. The appellant’s claims are supported by a Certificate of Occupancy (Exh.P2) which comprises two plots 231 and 232. The appellant claimed that David Mansur and Mildred Kisamo agreed t to effect the separation of titles and thereafter the respondent to take Plot No. 232 and David to remain with Plot No. 231. To support the respondent’s argumentation SU1 who witnessed the sale agreement testified to the effect that two plots 6 were sold to the respondent. Now the matter in controversy is Plot No. 231, the appellant is claiming that the transfer was improper because there was some irregularities. I have scrutinized exhibits P9 and D1 and noted, the Sale Agreement in relation to Plot No. 2319232 Block E Tegeta, number of title is unclear and the contract was not signed in all pages. In addition, the record shows there were various correspondence letters showing that there compalints and unclea expalanation in in regard to Plot No. 231 Block 'E' Tegeta. I had to go through the District Land and Housing Tribunal proceedings and noted that the late David Mansur struggled to explain that he did not sell the suit land to Mildred Kisami, the respondent. Unfortunately, his efforts were futile. In the record there is a letter written by Mildred Julius Kisamo addressed to the Secretary of Mediation Committee Land Disputes at Kinondoni Municipality the respondent in a way admitted the resurvey of the plots and the appellant to bear the costs. There is also a letter dated 3rd September, 2008 from the Commissioner for Lands to the respondent to 7 halt construction. Again, the late David Mansur wrote a letter in 2006, claiming that he did not sell Plot No. 213 to the respondent. He blamed the respondent for not adhering to their agreement to exclude Plot No 213 when trasferring the Certificate of Title from David Mansur to Mildred Kisamo. See exhibit P3. There are two warning letters dated 3rd September, 2003 and 8th October, 2008 (Exh.P7) to restrain the respondent from developing the suit land. There is a complaining letter of forgery dated 27th October, 2008 written by Commissioner for land to Beatrice Rose Mansur (Exh. P8). As rightly stated by the appellant’s counsel that there is a letter (Exh.D3) written by the respondent admitting to return the suit land. Despite that unauthentic and irregularities during transfer, the Commissioner for Land continued to transfer the ownership of Title Deed in respect to Plot No. 231 Block ‘E’ Tegeta (Exh, D4) a letter from the Ministry for Land proves that transfer was effected while the claims of the appellant’s were not resolved. Moreover, on 3rd December, 2004, the Commissioner for Land wrote a 8 letter (Exh.P12) to the late David Mansur with registration No. LD/129334/9/JDK (Exh.P12) requesting David to swear an affidavit and to confirm his signature after noting that his signature of the transferor was questionable because the same was different from the one appended in the Title Deed. Astonishing, the one who prepared an affidavit was Mildred Kisamo, the respondent (Exh.P12), not the addressee and the affidavit was not communicated to the late David Mansur. For ease of reference I reprdouce part of the letter from the Commissioner for Land dated 3rd December, 2004:- Title: KIWANJA NA. 231, KITALU “E” ENEO LA TEGETA JIJINI DAR ES SALAAM “ Tafadhali rejea kichwa cha habari hapo juu. Ombi lako la kibali limesitishwa kwasababu saini yako inatofautiana na saini iliyosainiwa katika hati ya kumiliki ardhi Unatakiwa urekebisha kasoro hiyo kwa kutuwasilishia kiapo kwa nini saini hizo zimetofautiana.” [Emphasis added]. paragraph 1 and 6 of the affidavit (Exh.P12) hereunder:- 1. That I am the purchaser of the unexhausted improvements situate on Plot No. 231 -232 Tegeta Area in Dares Salaam City having purchased 9 the same from Mr. David Mansur. 6. That this affidavit is made to signify that the signature appearing on the certificate of title and appearing on the transfer documents are all the signatures of Mr. David Mansur. From the above excerpt, it shows unclear why the Commissioner for Land allowed the purchaser to swear an affidavit insted of the vendor. Therefore, it is impossible to ascertain whether the transfer was effected smoothly because there are lot to be desired. In my considered view, the Commissioner for Land misdirected himself in transferring the ownership of David Mansur in respect to Plot No. 231 Block ‘E’ Tegeta to Mildred Kisamo instead of the late David Mansur, the adressee. I am persuaded that the appellant's evidence treated together with the documentary evidence including the correspondence proved that the whole process of selling the suit land and transfer was improper. The documentary evidence raises doubt on the authenticity and legality of the sale and transfer of ownership from the appellant to the respondent. And the said doubts were not resolved by the Commissioner for Land. There is 10 no doubt the bedrock of the case, is tainted with material falsehood and hence, unreliable. Having reached this finding of the appeal, I deem it superfluous to deal with the remaining ground as by so doing amounts to deal with a sterile exercise. In the upshot, I quash and set aside the decision of the District Land and Housing Tribunal. I proceed to nullify the transfer of ownership to the extent that the respondent will remain with only one Plot, Plot No. 232 which is not in dispute, appeal allowed without costs. Order accordingly. Dated at Dar es Salaam this date 29th November, 2022. A.Z.MGEYEKWA JUDGE J >! '' ' - I 29<W2022 ■ * 4?'------ Judgment was delivered on 29th November, 2022 in the presence of the appellant and Mr. Hassan Lukwanya, learned counsel for the respondent. A.Z.MGEYEKWA / JUDGE 29.11.2022 Right to appeal fully explained. •'./ 11