TEOFIL VICENT MATERU VS VALERIA BENEDICT MTALO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LAND APPEAL NO. 51 OF 2023 (Originating from Land Application No. 137 of 2014 of the District Land and Housing Tribunal for Moshi at Moshi) TEOFIL VICENT MATERU ……………………….…......... APPELLANT VERSUS VALERIAN BENEDICT MTALO ….……...........…...… RESPONDENT JUDGMENT 19/08/2024 & 27/08/2024 SIMFUKWE, J. This is an appeal against the decision of the District Land and Housing Tribunal for Moshi at Moshi (the trial tribunal), which declared the respondent the lawful owner of the house registered as Plot No. 34, Block H, situated at Kitandu Village, Longuo "B," Moshi District in Kilimanjaro (the suit house) 1 The brief history of the matter, as captured from the records, indicates that initially, the suit house was owned by the appellant. The respondent alleged that on 4/7/2013, the appellant sold the house to him through a sale agreement for TZS 24,000,000/=, which was paid partly in cash (TZS 8,000,000/=) and in kind (a car worth TZS 16,000,000/=, a Nissan Canter with registration no. T 328 AXG). It was alleged further that the said house was to be handed over to the respondent on 30/09/2013, but it was not done due to allegations of a family dispute. After failing to take possession of the house, the respondent decided to approach the trial tribunal seeking the following reliefs: One, to be declared the lawful owner of the suit house; two, the respondent (appellant herein) to be declared a trespasser; three, an eviction order against the appellant; four, specific damages of TZS 300,000 per month from 1/10/2023 until the suit house is handed over to him and; five, costs of the suit and any other relief the tribunal deemed fit and just to grant. The respondent's claim was opposed by the appellant, who vehemently denied to had entered into any agreement to sell his house to the respondent. 2 After scrutinizing the entire evidence, the trial Tribunal decided in favour of the respondent herein, granting all the reliefs prayed for except for the relief of specific damages. The appellant was dissatisfied with the findings of the trial tribunal, he filed the instant appeal on the following grounds: 1. That, the learned trial chairperson erred in law and fact by failing to properly evaluate the evidence hence reaching a wrong conclusion as he should have found that there was no sale of the suit. (sic) 2. That, the learned trial chairperson erred in law and fact by giving a decision in favour of the Respondent while the claim by the Respondent if any was not proved to the balance of probability. 3. That, the decision of the trial tribunal is bad in law as it is tainted with illegalities. The appellant prayed the appeal to be heard by way of written submissions. He was represented by Mr. Elikunda Kipoko and Ms Lilian Mushi, learned counsels, while the respondent was represented by Mr. Erasto Kamani, learned counsel. In his submission in chief, Mr. Kipoko raised the following issues: 3 First, that since the dispute was over registered land, it involved rectification of the land registry by the Commissioner for Lands and the Registrar of Titles, which are government departments. Hence, the joinder of the Attorney General to the proceedings was mandatory. Thus, the tribunal lacked jurisdiction. The learned counsel notified this court that, jurisdictional issue can be raised at any stage. The second anomaly regarding the alleged sale agreement was that, since it was purported to have been witnessed by an advocate, it was mandatory for the executing witness, Materu Advocate, to testify in support of the disputed agreement. Mr. Kipoko submitted that since the attesting witness was not called to testify and no reason was given for failure to bring such a crucial witness, the purported sale agreement was not proved. Thirdly, the appellant's counsel argued that since the sale was based on a purported sale agreement, it was necessary for the said sale agreement to have stamp duty paid for it to be accorded any evidential value. Thus, since stamp duty was not paid, the sale agreement had no evidential value. 4 Lastly, Mr. Kipoko pointed out that alternatively, but without prejudice to the above-noted anomalies, since the dispute is over the sale of registered land, for the sale to have any effect, it ought to have obtained consent and approval from the Commissioner for Land, a fact which is missing in the present case. The learned counsel prayed this court to allow the appeal with costs. In his reply, on the outset, Mr. Kamani alerted this court that the appellant submitted on different issues, leaving the grounds of appeal set forth in the memorandum of appeal unprosecuted. To substantiate his averment, he referenced at page 2 of the appellant’s submission, where it is categorically stated that the issues submitted on are those which make the appellant dispute to had entered into or signed a sale agreement, and not the grounds set forth in the memorandum of appeal. Mr. Kamani replied further that non-joinder of the Attorney General to the proceedings is not among the grounds lodged in this court. Likewise, the second issue regarding the respondent's failure to call what Mr. Kipoko referred to as a crucial witness and failure of the respondent to pay stamp duty for the sale agreement, was not among the advanced grounds of appeal. Moreover, lack of consent and approval for the sale of the suit 5 land from the Commissioner for Land was not among the grounds of appeal. The respondent’s counsel referred to Order XXXIX Rule 2 of the Civil Procedure Code (Cap 33 R.E 2019) which provides that the appellant shall not argue or be heard in support of any ground of objection not set forth in the memorandum of appeal without leave of the court. Mr. Kamani insisted that since the appellant has submitted on grounds of appeal not set forth in his memorandum of appeal without leave of this court, in view of Order XXXIX of the Civil Procedure Code (supra), this court is prohibited from hearing or considering his submission. He prayed that the said submission be ignored or rejected. Also, he was of the view that since the appellant has failed to prosecute his appeal, the same should be dismissed with costs. Without prejudice to the above submission, Mr. Kamani disputed the submission made by Mr. Kipoko for the appellant. On the issue of evaluation of evidence, the respondent's counsel submitted that it is on record that after summarizing evidence of the parties from page 1 to page 3 of the judgment, the trial chairman evaluated that evidence from page 4 to page 5 and found that the 6 respondent (then applicant) is the lawful owner of the suit house, after he had purchased it from the appellant in 2013. Responding to the allegation that the respondent did not prove his claim on balance of probability; Mr. Kamani stated that the allegation is baseless and unfounded. Through the respondent himself (PW1), the appellant's own brothers, Mr. Luka Maiko Materu (PW2) and Elika Jeremia Materu (PW3), plus a sale agreement (Exhibit P1), the respondent proved his claim to the standard required in civil cases. In addition, the trial chairman drew a negative inference from the appellant's evidence as it was not reliable. Mr. Kamani pointed out that, in his written statement of defence, the appellant pleaded that he sold the suit house to the respondent without the consent of his wife. However, during the trial, he denied to have sold it and even disputed recognizing a copy of the sale agreement which he had signed. Also, he denied a copy of his written statement of defence which he had filed in the trial tribunal. Regarding the contention that the house purchased by the respondent from the appellant is surveyed/registered land, Mr. Kamani replied that the claim is frivolous. He averred that, when the house was purchased in 7 2013, it was neither surveyed nor registered and it did not have a certificate of occupancy, CT number, plot number or block number. According to the sale agreement and oral evidence on record, the house which the respondent purchased from the appellant is House number H. 34. The letter "H" stands for House, while number 34 identifies that specific house, typically fixed on the door for identification purposes. It was asserted that the same was clarified during the drafting of Land Application No. 137 of 2014, from which this appeal arises. The learned counsel for the appellant stated at paragraph 3 that the suit land was registered as Plot Number 34, Block 34. It was replied that the advocate misunderstood what number "H.34" meant in the sale agreement. It was contended that the learned counsel for the appellant assumed that "H" stood for a block number and "34" for a plot number, which was not the case. Mr. Kamani opined that a mere statement in paragraph 3 of the application claiming the suit land as registered cannot alter the fact that when it was purchased from the appellant, it was neither surveyed nor registered. Thus, since the land was not registered, the claims that the appellant required consent and approval from the commissioner for land to sell the house are baseless. 8 Concerning the claim that the Attorney General was supposed to be joined in the proceedings filed before the trial tribunal; Mr. Kamani was of the view that the arguments are unfounded. Opposing the argument that the sale agreement was not proved due to failure to summon the advocate who attested it; the learned counsel for the respondent replied that the argument is baseless. He said, other important witnesses, including the appellant's own brothers (PW2 and PW3) were called and all of them testified that the appellant sold the suit house to the respondent. The witnesses also testified to had participated in the clan meetings that deliberated on selling that house before executing the said agreement. Replying to the argument in respect of the stamp duty; that since the applicant did not pay stamp duty for the sale agreement, that agreement has no evidential value. Mr. Kamani was of the opinion that non-payment of the stamp duty does not deprive a document its evidential value. It was stated that the issue of non-payment of stamp duty is considered by the court in deciding whether documentary evidence, which a party wants to tender, should be admitted or not, especially when it is objected by the opponent. 9 Mr. Kamani noted that the objection as to admissibility of the sale agreement on ground of lack of a stamp duty was not raised when that document was tendered in evidence. Therefore, it is not open to the parties or even the court to re-examine the exhibit at the stage of appeal. Furthermore, the learned counsel for the respondent contended that it is settled law that when a party fails to object a document when it is tendered in evidence, they cannot object it at a later stage. He referred the case of Abbas Kondo Gede vs. Republic, Criminal Appeal No. 472 of 2017 at page 20 (Tanzlii), which quoted with approval the decision of the Supreme Court of India in Malanga Kumar Ganguly vs. Sukumar Mukherjee, AIR 2010 SC 1162, which held as follows: "It is trite that ordinarily if a part to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage." Based on the above quoted authority, Mr. Kamani commented that the appellant is estopped and precluded from faulting the admissibility of the sale agreement, which he did not object at the trial. However, the learned counsel submitted further that even if this court finds that the sale 10 agreement was improperly admitted, it will not change the fact that the respondent purchased the suit house from the appellant, as there is sufficient oral evidence in addition to that copy of the sale agreement. In view of the above submission, the learned counsel for the respondent termed the appeal lodged by the appellant as destitute of merit and prayed for its dismissal with costs. Having considered the grounds of appeal and submissions of the learned counsels of both parties, on the outset, it goes without saying that the learned counsel for the appellant raised new grounds/issues of appeal which were neither transacted before the trial tribunal nor raised in the memorandum of appeal. In the memorandum of appeal, the first ground concerns evaluation of evidence, the second ground pertains to the respondent's failure to prove the suit on balance of probabilities. The third ground challenges the tribunal's decision for being tainted with illegalities. It is astonishing that in his submission in chief Mr. Kipoko was challenging the sale agreement tendered by the respondent on the grounds that: first, there was non-joinder of the Commissioner for Land and Registrar of Titles as the suit land was registered; second, that there was failure to call Advocate Materu as a witness; third, the sale agreement lacked stamp 11 duty; and lastly, that the sale agreement ought to have obtained consent and approval from the Commissioner for Lands. Indeed, these are new grounds that were not raised in the memorandum of appeal. It is an established principle of law that parties are bound by their pleadings and the court should not entertain new grounds unless they are points of law. In the case of Julius Josephat vs Republic (Criminal Appeal 3 of 2017) [2020] TZCA 1729 (18 August 2020), Tanzlii, it was observed that: "...those three grounds are new. As often stated, where such is the case, unless the new ground is based on a point of law, the Court will not determine such ground for lack of jurisdiction." Emphasis added. The issue that remains at this juncture is whether the raised new issues are points of law worth determination in this appeal. Glancing at the raised issues, I agree that only one issue raises a point of law, which is lack of stamp duty on the sale agreement. For the rest of the issues, which concern whether the land was registered to require the joinder of necessary parties, namely the Commissioner for Land and Registrar of Titles. Although these issues seem to be points of law, they still require 12 evidential facts to prove. Thus, in this appeal, this court refrains from resolving the same. The same applies to the lamentation of failure to call a witness, namely the advocate who witnessed the sale agreement. If the appellant wished to raise new factual grounds of appeal, the options were either to raise them on appeal or, having failed to do so, to seek leave of the court to file additional grounds of appeal. Now, turning to the issue of lack of stamp duty on the impugned sale agreement; the law is very clear on the requirement for any document executed in Tanzania mainland to contain stamp duty. This is as per sections 5(1) and 47 of the Stamp Duty Act, Cap 189 R.E 2019, which, for ease of reference, I will reproduce hereunder. Section 5(1) (supra) provides that: “5. -(1) Every instrument specified in the Schedule to this Act and which– (a) is executed in Tanzania Mainland; or (b) if executed outside Mainland Tanzania, relates to any property in Mainland Tanzania or to any matter or thing to be performed or done in Mainland Tanzania, shall be 13 chargeable with duty of the amount specified or calculated in the manner specified in that Schedule in relation to such instrument...” Section 47 of the same Act provides that a document lacking stamp duty shall not be admitted into evidence. For ease of reference, the provision reads: “47.- (1) No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties’ authority to receive the evidence or shall be acted upon, registered in evidence, authenticated by any such person or by any public officer, unless such instrument is duly stamped...” The Court of Appeal in the case of Alex Msama Mwita vs Leonard Reed (Civil Appeal No. 620 of 2022) [2024] TZCA 477 (19 June 2024) at pages 18 to 19 made reference to the case of Zakaria Barie Bura v. Theresia Maria John Mubiru [1995] T.L.R. 16, which held that: "The second reason why the appellant could not have obtained the title to the suit premises, even if the sale 14 agreement had not been tainted with illegality, is the fact that neither document containing the agreement bears any indication of payment of stamp duty according to the Stamp duty Act. By law, such omission renders the sale agreement inadmissible as evidence in court, unless the party concerned pays the stamp duty before the document is admitted as evidence." In the present matter, looking at the impugned sale agreement, it is clear that it lacked stamp duty, thus contravening the law. In the cited case of Zakaria Barie Bura (supra), the omission to pay the stamp duty rendered the sale agreement inadmissible as evidence in court. In the circumstances, the only option left is to disregard the sale agreement (exhibit P1) and not accord it evidential value while re-evaluating the evidence. As previously established, despite finding that the rest of the issues raised by Mr. Kipoko are different from those raised before the trial tribunal and in the memorandum of appeal; I will not overlook the grounds of appeal and leave them unattended. 15 The first and second grounds concern failure to evaluate evidence. Having examined the entire evidence in relation to the trial tribunal’s judgment, I agree that it is trite principle of law that in civil cases, the burden of proof lies upon the person who desires the court to rule in his favour. The standard of proof in any civil case is on balance of probabilities according to section 110 (1) and (2) of the Evidence Act, Cap. 6 R.E 2022. See Jasson Samson Rweikiza vs Novatus Rwechungura Nkwama (Civil Appeal No. 305 of 2020) [2021] TZCA 699 (29 November 2021) [Tanzlii] at page 14 where the Court of Appeal stated that: “It is again elementary law that the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his burden and that the burden of proof is not diluted on account of the weakness of the opposite party's case.” In the present matter, without further ado, the learned trial Chairman, at pages 4 and 5 of the trial tribunal’s judgment, weighed the evidence of the appellant and that of the respondent and found that evidence of the respondent was heavier than that of the appellant. 16 According to the record, the respondent testified that he entered into an agreement with the appellant to purchase a house for twenty-four million shillings. The mode of payment agreed upon was that the respondent would pay eight million shillings as cash and provide his car, valued at sixteen million shillings, to make a total of twenty-four million. The sale agreement was witnessed by SM2 Luka Maiko Materu and confirmed by SM3 Elikana Jeremia Materu. The witnesses testified that prior to the sale, there was a clan meeting which discussed and approved the appellant's sale of the said land. According to the testimony of SM1, SM2, and SM3, it was agreed that the appellant was to hand over the suit land to the respondent on 30/09/2013. This evidence sufficiently proved the claim on balance of probabilities, as the appellant, apart from testifying that he did not enter into the said agreement, adduced no other evidence to dismantle the respondent's strong case. He only called SU2, who knew nothing about the agreement and simply stated that he had never heard about the sale agreement. Looking at the respondent's evidence, this court is of settled opinion that even without the sale agreement (Exhibit P1), evidence of the respondent was stronger than that of the appellant. The witnesses sufficiently proved 17 that there was initially an agreement between the duo, where the appellant agreed to sell the suit house to the respondent. In the premises, as correctly argued by Mr. Kamani, it is my strong opinion that the trial tribunal sufficiently discharged its primary obligation of evaluating the evidence on record exhaustively. Thus, the 1st and 2nd grounds of appeal are without merit. The last ground of appeal concerns the illegalities of the trial tribunal's decision. I am aware that the tribunal's decision should contain a summary of facts, findings on issues, the decision and reasons for the decision. This is as per Regulation 20(1)(a), (b), (c) and (d) of the Land Disputes Courts Regulations of 2003, which provides that: “The judgment of the tribunal shall always be short, written in simple language and shall consist of: (a) a brief statement of facts; (b) findings on the issue; (c) a decision; and (d) reasons for the decision.” 18 I have carefully examined the impugned judgment to determine whether there is any illegality. I have noted that the impugned judgment contains all the necessary elements of a judgment. Thus, the third ground lacks merit. Besides, the learned counsel for the appellant did not specify the kind of illegality he was referring to. For the foregoing reasons and based on the findings herein above, I dismiss this appeal with costs. It is so ordered. Dated and delivered at Moshi this 27th day of August 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 27/08/2024 19