TAG vs Arfred Maganga

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA LAND APPEAL NO. 40 OF 2023 6Originating from the District Land and Housing Tribunal for Dodoma at Dodoma in Land Application No. 112 of2021) THE REGISTERED TRUSTEES OF TANZANIA ASSEMBLIES OF GOD (TAG).............................APPELLANT VERSUS ARFRED MAGANGA........................................................ RESPONDENT JUDGMENT Date of last Order: 02/07/2024 Date ofJudgment: 09/07/202J KHALFAN, J. The appellant sued the respondent before the District Land Housing Tribunal for Dodoma at Dodoma (hereinafter referred to as the trial tribunal) for an assortment of reliefs such as declaration that the appellant is the lawful owner of a piece of land measuring about 26 to 18 feet (hereinafter referred to as the 'suit land'), the respondent to pay a sum of TZS 10,000,000/= as general damages and costs of the suit. According to the evidence on record, the appellant claimed that she owns a piece of land measuring about one acre having acquired the same by way of purchase on 23/9/2006. It was alleged that the respondent invaded a piece of land measuring about 26 to 18 feet which is part of the one acre. On the other hand, the respondent claimed that he purchased a piece of land measuring about 20 to 15 feet from one Noel Chisumuni sometime in the year 2015. After hearing the parties, the trial tribunal dismissed the appellant's case for lack of merits and proceeded to declare the respondent a lawful owner of the suit land. The appellant was displeased with the decision of the trial tribunal, hence he filed the instant appeal with six grounds of appeal, to wit; 1. That, the Honourable Chairman erred in law and in fact for deciding in favour of the Respondent without considering that the land in dispute has been legally owned by the Appellant since 2006 after purchasing the same from Ka/ebi Ma/ejehe. 2. That, the Honourable Chairman erred in law and in fact for deciding in favour of the Respondent basing on wrong, weak and contradictory evidence adduced by the Respondent and his witnesses. 3. That, the Honourable Chairman erred in law and in fact for deciding in favour of the Respondent and putting into record that the Appellant failed to call the seller of the land in dispute to him while the Appellant testified that the seller was already dead. 4. That, the Honourable chairman erred in law and in fact for deciding in favour of the Respondent without considering that the Appellant purchased the land in dispute before the Respondent and the Respondent admitted to find the Appellant's church in the disputed land. 5. That, the Honourable chairman erred in law and in fact for deciding in favour of the Respondent and putting into record that the Appellant failed to call any officer and registered trustees without considering that the available evidence from the Appellant and the respondent's side prove the ownership of the land in dispute to the Appellant. 6. That, the Honourable Chairman erred in law and in fact for deciding in favour of the Respondent without considering that the land in dispute is part and parcel of the Appellant's land which measures one (1) acre. The appeal was disposed of by way of written submissions in which the appellant was represented by Ms. Ngereza, learned advocate while the respondent was represented by Mr. Nchimbi, learned advocate. 3 In her submission in support of the grounds of appeal, Ms. Ngereza argued jointly the 1st, 4th and 6th grounds of appeal. She pointed out that, the evidence that was adduced at the trial tribunal was sufficient and proved that the appellant was the owner of the suit land. She referred this court to the evidence of PW1 and the sale agreement (exhibit Pl). She argued that PW1 testified that, the appellant bought one (1) acre of land from one Kalebi Malejehe which includes the suit land on 23/09/2006 and built a church thereon. She also argued that the respondent admitted in his evidence that when he was purchasing the suit land from one Noel Chisumuni in 2015, he found a church thereon. She submitted that exhibit DI which is the sale agreement between the respondent and Noel Chisumuni, shows the boundaries of the land he purchased to be in the North of the Church's toilet, South-Kanisa la Beloya and East-Kanisa la Beloya. Additionally, she argued that, all the boundaries named were/are of the appellant's land. She submitted that, from the whole evidence, it was clear that the respondent found the appellant at the suit land. She further argued that the appellant purchased the suit land since 2006 and had used it for nine (9) years up to 2015 when the respondent became a neighbour and continued to use the same up to 2018. She submitted that, since the total years of occupation of the suit land are twelve (12), then the suit land became part and parcel of the appellant's land. She also submitted that, basing on the evidence on the record, the appellant's evidence was heavier than that of the respondent and thus, the appellant ought to have won the case at the trial tribunal. To buttress her argument, she referred to the case of Hemed Said vs. Mohamed Mbilu [1984] TLR 113. With regard to the 2nd ground of appeal, the learned advocate for the appellant argued that, the respondent and his witnesses adduced contradictory evidence. She submitted that the respondent in his evidence stated that he bought the suit land measuring 20 to 15 feet in 2015 and executed the sale agreement in 2019. She contended that in the said sale agreement, exhibit DI shows that it was executed in 2015 and not 2019. She emphasised that the sale agreement, exhibit DI does not show the size of the land instead it shows North-15 meters and West - 215 meters. She also argued that, the trial tribunal erred in declaring the suit land to be 21 to 15 meters. She submitted that DW2, Noel Chisumuni contradicted himself that he sold 21 x 30 feet of the land to the respondent while the evidence of the respondent was to the effect that he bought 20 x 15 feet. She 5 maintained that the measurements stated by the witnesses are different from those in exhibit DI. In addition, she argued that based on the contradictions, the trial tribunal ought to have decided in favour of the appellant. Ms. Ngereza argued jointly the 3rd and 5th grounds of appeal. She contended that the appellant's failure to call a witness who had sold to her the suit land was due to the fact that the seller was dead. Referring to section 143 of the Evidence Act, [Cap 6 R: E 2022], she submitted that there is no number of witnesses that is required to prove a particular fact(s). In reply, Mr. Nchimbi contended that this appeal was overtaken by events as the decree subject of this appeal had already been executed by the trial tribunal vide Misc. Land Application No. 108 of 2023. Having been executed, Mr. Nchimbi contended, it marked the end of the land dispute between the appellant and respondent. He therefore urged the court to dismiss this appeal. He submitted that, one Rev. Erasto William Mwambeje who appeared before the trial tribunal and now before this court, had no legal capacity to prosecute the application as he was/is neither a member of the Board of Registered Trustees nor one that was appointed 6 through the Board's Resolution to act on behalf of the appellant. He referred to the case of The Board of Trustees of National Social Security Fund vs. Kampala International University Ltd, Civil Case No. 19 of 2021 (unreported). With regard to the grounds of appeal, Mr. Nchimbi submitted that the appellant failed to prove her ownership of the suit land. He submitted that the appellant, in her evidence, failed to substantiate as to from whom he purchased the land in dispute and who paid the purchase price. The learned advocate argued that, in exhibit Pl, the purchaser of the suit land was Rev. Erasto Mwambeje, not the appellant. He argued further that the appellant, being a legal entity, has a common seal and can purchase properties in its own name. Mr. Nchimbi questioned as to how it was possible for the appellant to purchase the suit land in the name of another person. The learned advocate further submitted that under exhibit Pl, the payer of the last instalment was one Daniel and not the appellant. He questioned who Daniel was in the transaction. It was his view that those unexplained conducts made the appellant's evidence weak and contradictory thus justifying the trial tribunal to decide in favour of the respondent. 7 It was Mr. Nchimbi's submission that the evidence from the respondent's side was stronger and thus proving his ownership to the suit land. In a brief rejoinder, with regard to the two issues that were raised by the respondent, that this appeal has been overtaken by events and that the appellant lacked capacity to sue; Ms. Ngereza contended that the respondent in this case never cross-appealed. That being the case, she contended that he was barred from submitting the reply to the appellant's submissions. Nevertheless, despite that, Ms. Ngereza contended that the appeal was not overtaken by events as the appellant filed his memorandum of appeal before this Court within the prescribed time of forty-five days under section 41(2) of the Land Disputes Courts Act, [Cap 216 R: E 2019], (hereinafter referred to as the LDCA). She further contended that an appeal is a constitutional right with regard to the right to be heard as envisaged under Article 13(6)(a) of the Constitution of the United Republic of Tanzania. The learned advocate further submitted that, despite the fact that the respondent was served with the summons in respect of this appeal, he nevertheless went ahead in pursuing his execution. It was her submission that since the appeal was filed within time, and it being a constitutional right, it cannot be defeated by any event (of execution) from the respondent's side. Regarding the capacity to sue, Ms. Ngereza submitted that Rev. Erasto William Mwambeje being a person working in the institution of the trustees, had the mandate to prosecute the case. Further, that being a person with knowledge on the properties of the trustees as in this case, he participated in the purchase of the suit land, he thus had mandate to testify before the court. Regarding the decision of the court in The Board of Trustees of National Social Security Fund vs. Kampala International University Ltd (supra), Ms. Ngereza invited this court to disregard it as it was an unreported case and the respondent's advocate never supplied a copy of it to this court. She further stressed that since it was a legal point, it was required to be raised at the earliest possible time. As to the grounds of appeal, Ms. Ngereza reiterated her submissions in chief. However, with respect to exhibit Pl, the learned advocate submitted that the purchaser of the suit land was the appellant and not Rev. Erasto Mwambeje. As for Mr. Daniel who paid the last instalment of the purchase price, Ms. Ngereza contended that the appellant is an institution that employs different people; therefore, it is possible for different representatives to appear and represent her like making payments on her behalf. I have gone through the grounds of appeal, rival submissions of the parties and the records. Before going further, I find it prudent to determine the two legal issues that have been brought before the court by the respondent's advocate when he was replying to the submission in chief. The same are first, whether the execution of an impugned decree is a bar to an appeal and second, whether a person who is not a member of a Board of a Registered Trustees or who has not been appointed through a Board Resolution, can sue on behalf of the Registered Trustees. As it was rightly observed by the appellant's advocate, since the respondent did not cross-appeal, then he is barred from introducing new matters when he replied to the submissions in chief. This is the position of the law which this court and the Court of Appeal have several times held that parties are bound by their pleadings. This rule of law is aimed at preventing the rival parties from taking their opponents by surprise. See, Martin Fredrick Rajabu vs. Ilemela Municipal Council and Another (Civil Appeal No. 197 of 2019) [2022] TZCA 434 (18 July io 2022) . However, since the issues raised are on point of laws, and as it is trite law that points of law can be raised at any stage of the proceedings, this court therefore is required to determine them no matter what is being raised during the submission in reply. With regard to the first issue of whether execution of an impugned decree is a bar to an appeal, the answer is not in affirmative, this is because the right of appeal against the decision of the trial tribunal is a statutory right. The aggrieved party is only required to appeal within 45 days as prescribed under section 41(1) and (2) of the LDCA. There is nowhere the law bars the aggrieved party from appealing against the decision, or order of the trial tribunal, just because the impugned decision has been executed. However, an appeal is, on another hand, not a bar to the execution proceedings. That is to say, failure of the appellant to apply for the stay of execution pending determination of such an appeal, may lead to the execution of the decree that is being challenged in appeal. In light of the above discussion, the first issue is answered in the negative. Coming to the second issue as to whether a person who is not a member of the Board of Registered Trustees or who has not been appointed through the Board's resolution, can sue on behalf of the Registered Trustees; there is no dispute that the appellant is registered and its Board of Trustees is incorporated. Section 5(1) of the Trustees' Incorporation Act [Cap 318 R.E 2002] provides for grant of certificate of incorporation by the Administrator General and section 8 of the same Act provides as: "Upon the grant of a certificate under subsection (1) of section 5 the trustee or trustees shall become a body corporate by the name described in the certificate, and shall have- (a) Perpetual succession and a common seal; (b) Power to sue and be sued in such corporate name," [Emphasis Supplied] There is also no dispute that the appellant is a body corporate. In that regard, it acquires a legal status to operate its businesses in its corporate name. It has long been established that the personality status which a body corporate acquires is fictitious. See the case of Salomon vs. A Salomon and Co Ltd [1897] A.C 22 which has been referred to in several cases such as Yusuph Manji vs. Edward Masanja and Another [2006] TLR 127. As an artificial person, it cannot appear in courts or execute its deeds the same way a natural person does. 12 As the law is clear that a body corporate can sue or be sued in its corporate name, the question is, who is to represent it? With respect to the case that was relied by the respondent's counsel of The Board of Trustees of the National Social Security Fund vs. Kampala International University Ltd (supra) in my view, is irrelevant to the case at hand. This is due to the fact that in that case, the court decided only on the fact that the plaintiff wrongly sued the defendant instead of suing the registered body of the trustees. However, going to section 12 of the Trustees' Incorporation Act [supra], it provides that: "(1) Every deed to which a body incorporated under this Act is a party shall be executed by such body under its common seal or by an attorney appointed in that behalf under such common seal. "[Emphasis Supplied]. In the case at hand, there is no dispute that Mr. Erasto William Mwambeje was the applicant's principal officer who actually sued the defendant at the trial tribunal on the appellant's behalf. He did this by appending his signature into the application form that was filed at the trial tribunal. Again, it was the same person who initiated this appeal at this court. 13 The question now is, was he legally right to do that without appointment through the Board's Resolution? In my view, the answer is in the negative. This is because, there is no proof that he was appointed by the appellant. Section 12 above couches in mandatory tone that "every deed of the appellant shall be executed by such body under its common seal or by an attorney appointed in that behalf under such common seal'." That being the position of the law, it is my considered view that as the registered trustee acts through its board members, if they decide to delegate their duties, it must be expressly provided for and not be presumed or perceived. That being the case, then it was upon Mr. Erasto William Mwambeje to attach the authorisation of the appellant as a proof that the appellant allowed him to prosecute a claim of the suit land. In absence of any proof, as in this case, made the application at the trial tribunal incompetent and any decision that was made therefrom, was a nullity. Now that the trial tribunal entertained an incompetent application to finality whose decision is subject of this appeal, the decision of the trial tribunal was a nullity, this appeal then lacks legs to stand. 14 In the circumstance, I invoke revisionary powers under section 43(l)(b) of the LDCA and revise the proceedings of the trial tribunal by quashing its decision and setting aside its orders. The parties are at liberty, if are still interested in pursuing this case, to start afresh. Since the second issue is strong enough to dispose of this matter, I find that the discussion of the grounds of appeal, are of no importance. In the circumstance, I will not make an order as to costs. It is so ordered. Dated at Dodoma this 9th day of July 2024. F. R. KHALFAN JUDGE 9/7/2024 15