WINFRIDA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA LAND APPEAL NO. 17997 OF 2024 (Arising from Land Application No. 11 of2021 of the District Land and Housing Tribunal for Muieba at Muieba) WINFRIDA KABELA NGAIZA............................................ APPELLANT VERSUS VEDASTO LUGABELA....................................................... RESPONDENT JUDGMENT 10/10/2024 & 06/11/2024 KIWONDE, J. The appellant, Winfrida Kabela Ngaiza, being dissatisfied with the decision of the trial tribunal, has preferred an appeal to this court based on five (5) grounds of appeal namely: I. That the trial tribunal erred in law and in fact to decide in favour of the respondent without carefully examining on the legality of the sale agreement tendered by the respondent. ii. That the trial tribunal failed to note that there was no proof of ownership from the purported sellers namely Chrispin W. Mgisha i and Wilbroad W. Mgisha to give them the right to sell the suit land to the respondent. iii. That the trial tribunal failed to note that the presence of the appellant as a neighbour to the suit land was fundamental in disposing the suit land. iv. That the trial tribunal erred in law and in fact to ignore the evidence on the side of the appellant and considered the weak evidence of the respondent. v. That the trial tribunal erred in law to deny the appellant the right to present the letter proving her ownership. The appellant prayed this court to allow the appeal with cost, declare the appellant the rightful owner of the suit land, expunge from the records the sale agreement and any other relief the court may deem fit and just to grant. During hearing of the appeal, the appellant was represented by Mr. Pontian Mujuni learned counsel, while the respondent was represented by Mr. Derick Zephurine, advocate. The counsel for the appellant abandoned the fifth (5) ground of appeal and argued the rest. In supporting the first and third grounds of appeal, the counsel for the appellant said the sale agreement dated 29/11/2010 was invalid for 2 wanting three ingredients like size of the purchased land, signature of one of the neighbours and approval by the village council leadership under section 31 (3) of the Village Land Act, Cap 114 (R. E 2019) and section 147 the Local Government (District Authorities) Act, Cap 287 (R. E 2019). The counsel cited for reference the case of Bakari Mhando Swanga Versus Mzee Mohamed Bakari Shelukindo and 3 others, Civil Appeal No. 389 of 2019, Court of Appeal of Tanzania sitting at Tanga, and Priskila Mwainunu Versus Magongo Justus, Land Appeal No. 9 of 2020 High Court Bukoba Sub-Registry in which it was said that if the land is a clan land, the head of clan must approve the sale. The counsel argued that the respondent had nothing to prove ownership and no neighbours signed the sale agreement. Thus, the tribunal should not have relied on it. Submitting on the second ground of appeal, the counsel said DW2 and DW3 said the land in dispute belongs to Wichislaus, while the other evidence shows that the land was given to the children of Winchislaus Mugisha. So, the land moved from the owner to the sellers, Chrispin and Willbrodi Mugisha without presence of the administration of the deceased estates. He cited the decision in Faraha Mohamed Versus Fatma Abdallah [1992] T. L. R 205 and Stanslaus Lawrence Kalokola 3 Versus Tanzania Building Agency and others, Land Case No. 12 of 2020[ 2022] TZHC in which it was held that no one can pass title which he does not have. As to the fourth ground of appeal, the counsel said the trial tribunal erred to ignore the evidence of the appellant and relied on the weak evidence of the respondent. The appellant clearly explained the marks of the suit land for she mentioned milinzi^A kidimbwi cha maji. But the chairman said he could not see such boundaries. At the same time, the same mark was recognized by the chairman mentioned by the respondent. The evidence of PW2 and PW3 clearly indicated how the appellant owned the land in dispute but this evidence was not heeded to. In reply, Mr. Derick Zephrine, advocate for the respondent submitted that the issue as to the validity of the sale agreement was a new one for it was not raised at the trial. Alternatively, he said the sale agreement was valid there was consideration, it was between people from the village so, it is not legally prepared. The purchaser is the neighbour to the suit land who knew the area. Concerning the requirement of approval by the village council, he said this was not the village property and the village has never complained of it 4 since 2010. He said the village authority was involved when the dispute arose and thus, village authority approval was not necessary. The counsel said further that it is not indicated if the land sold was a clan land or not and that the neighbour was not involved, for in 2010, he was not around but Hashimu Issa knew the boundaries of the suit land because he lived there and Theopister was there. Therefore, the sale agreement is binding upon the parties. In arguing the second ground of appeal as to proof of ownership by the sellers, he said the respondent proved the case at the balance of probabilities. DW3 said the land belonged to his brother Winchislaus Bernado, so, there is no issue of administration of the estate. The sellers, who are the deceased children were given by the clan members the property of their deceased father, so they had good title to pass and they had an automatic right to dispose the land. In the fourth ground of appeal, the counsel said the decision depends on the weight of evidence and the trial tribunal correctly evaluated the evidence. The appellant said she acquired the land in dispute in writing, but she did not tender the same at the trial. The trial tribunal said she failed to establish it since oral evidence does not override documentary 5 evidence. Under section 66 of the Tanzania Evidence Act, Cap 6 (R. E 2022), primary evidence has to be produced as evidence. Apart from that, the counsel said the visit to the locus in quo was proper and the tribunal discerned some matters. Therefore, it cannot be said that the evidence of the appellant was not considered. The respondent's evidence was heavier than of the appellant. He prayed the appeal be dismissed with cost for lack of merits, the decision of the trial tribunal be upheld, the respondent be recognized as the lawful owner of the suit land and any other relief this court deems fit and just to grant. In his rejoinder submissions, Mr. Pontian Mujuni, advocate, insisted on the approval of sale of land by the village authority and that the ownership by the vendors was not proved. However, he conceded that the appellant did not truly produce the document at the trial which she said it proved that she was given the land. As to the boundaries, he argued that the tribunal rejected the marks of the boundaries mentioned by the appellant, yet he agreed that the same marks like /77/7//7z/mentioned by the respondent were there. So, it was not proper to do so. 6 From the trial tribunal records and the oral submissions, the main issue for determination is whether this appeal is meritorious or otherwise. In third ground of appeal, the appellant argued that involvement of the appellant in disposing land by way of sale was important as she is a neighbour to the suit land. Indeed, there is no law which requires that when one sells hie land must involve the neighbour. What is required is only that the vendor must have a good title to pass to the purchaser. Thus, this ground of appeal is wanton of merits. Concerning ownership of the of the suit land by Chrispin Winchislaus Mugisha and Wilbrod Wichislaus Mgisha, in the second ground of appeal, it is averred that it was not proved. The counsel argued that the land is said to pass from their deceased father to the children while there is no evidence that there was proper inheritance through probate and administration cause. However, the evidence on record shows that the land truly, belonged to their father; after his demise, it was put under the supervision of their aunt, one Conchesa (DW3). The evidence indicates that it was so because the children were still minor. But when they turned adults, Conchesa showed and gave them their land. For that matter, it is not always that there must be probate and administration cause to prove inheritance under the circumstances. The second ground of appeal crumbles too. 7 In the fourth ground of appeal, it is complained that the trial tribunal relied on the weak evidence of the respondent to decide the matter. But the record is clear that the appellant had no heavier evidence that that of the respondent. She said she was given land by writing, a Will, but the document was not admitted in evidence. While, the respondent produced he sale agreement, DW2 Wilbrod Winchslaus Mgisha, DW3 Conchesa and PW3, Aristides said the respondent bought the land in dispute and the deceased children are the ones who sold it to the respondent. The counsel for the appellant argued that the tribunal chairman rejected the boundaries showed by the appellant at the same time he relied on the same boundaries of milinzi mentioned by the respondent. However, the tribunal visited the locus in quo and was satisfied that the marks/boundaries which the appellant based on her claims were no longer there. Also, the appellant's witness, PW3, Aristides Rweyemamu, testified that the land sold to the respondent is not the one in dispute. For that matter, the ground of appeal lacks merits. Reverting to the first ground of appeal, the counsel for the appellant challenged the validity of the sale agreement on reason that it does not indicate the size, it is not approved by the village authority/council and that a head of clan did not approve it. It is obvious from the evidence that the sale of this land was authorized by Conchesa, the one who was 8 entrusted to oversee the land for the minors Wilbrod Winchslaus Mgisha and Chrispin Winchslaus Mgisha, so, the issue of head of clan does not arise here. Also, in law, where the parties enter into a binding agreement, with their free consent, with intention to be bound by it, the same is regarded valid despite some minor shortcomings for it was prepared by lay persons. At this juncture, I should state that this agreement was entered into by the parties, viva voce and freely. They are laymen. In law, the contracts of sale made by the laymen, remains valid. Technical aspects are not considered. In Philipo Joseph Lukonde v. Faraji Ally Said [2020] T. L. R 57, the Court of Appeal of Tanzania stated that where parties have freely entered into binding agreements, neither courts nor parties to the agreement should interpolate anything or interfere with the terms and conditions therein, even where binding agreements were made by lay people. Also, in George Shambwe V. National Printing Co. Ltd [1995] T. L. R 262, it was decided that the court has to look at the intention of the parties to the contract. The contract of sale even if made by lay people not in formal language, it has to be considered by the court with no legal technical concept; intention of the parties is the key element. 9 As to the approval by the village council, I find it not tenable since the parties were selling the individual land freely and with intention to enter into contractual relationship. The argument, thus, is vague. For this reason, I find no basis to fault the trial tribunal chairman basing his decision on the document. The first ground of appeal is devoid of merit. As a result, the entire appeal lacks merit and it hereby dismissed with cost. Dated at Bukoba this 6th November 2024. F. H. NDE JUDGE 06/11/2024 Court: Judgment is delivered in chamber in the presence of the appellant and Mr. Derick Zephurine for the respondent and Grace Mutoka (RMA) this 6th November 2024 and the right of further appeal is explained. F. H. KI JUDGE 06/11/2024 io