winfrida lawson ruhumbika ntaremwa malibwa suing as next friend ruhumbika ntaremwa vs john kimaro 2023 tzhclandd 16800 25 august 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL CASE NO. 261 OF 2023 WINFRIDA LAWSON RUHUMBIKA NTAREMWA MALIBWA (Suing as Next Friend RUHUMBIKA NTAREMWA......... APPELLANT VERSUS JOHN KIMARO......................................... ...................................... RESPONDENT JUDGMENT 23rd to 25th August, 2023 E.B. LU VAN DA, J The Appellant above named raised twelve grounds of appeal challenging the decision of the Tribunal which declared the Respondent named above as the lawful owner of the suit land and ordered the Appellant to vacate for he was adjudged to be a trespasser. In the petition of appeal, the Appellant grounded that: 1. The Hon. Chairman erred in law and facts by holding that the Appellant herein did not prove his case according to the standard required by the law. 2. The Hon. Chairman erred in law by failure to properly and comprehensively evaluate the evidence adduced by the Appellant during the trial which led her to give the decision in favor of the Respondent. i 3. The trial Chairperson erred in law and facts for holding that the Respondent is a rightful owner of the land in dispute which his purported seller, Mwajuma Ramadhani Shomari failed to prove her ownership of the same, which made it impossible for her to pass a good title to the purported buyer. 4. The Hon. Chairman erred in law and facts by failing to consider the facts and the tendered documents which indicates that the Appellant purchased the piece of land from Issa Bahati Mohamed in 2016, who had previously bought the same from Mengi Sultan in 2002 in full compliance with the land statutes. 5. The trial Tribunal erred in law and facts for basing his decision on documentary evidence from the Respondent which were full of discrepancies and contradictions without assigning any reason to that effect. 6. The trial Tribunal erred in law and fact for relying its judgment on contradictory testimonies of defense witnesses. 7. The trial Tribunal erred in law and facts for not holding that the respondent's purported purchase agreements were illegal for not showing special indicative marks/boundaries as a requirement in land statutes. 8. The trial Tribunal erred in law and facts for holding that it was wrong for the purchase agreement to be witnessed by only an advocate (commissioner for oaths) 9. The trial Chairperson erred in law and facts for not holding that the respondent's purported purchase agreements were illegal for showing the co - existence of a village Authority and Mtaa Authority in one locality against the Local Government Authority statutes. 2 10. The trial chairperson erred in law and facts for not holding that the Respondent's purported purchase agreements were illegal for not indicating the position of a person who signed the purchase agreements on behalf of the local government authority as required by the Government orders. 11. The Chairperson erred in law and facts for holding that the respondent did satisfy himself on the ownership of the seller. 12. The trial chairperson erred in law and facts for holding that failure to associate neigbours at the time of purchase was fatal. Mr. Tumaini Mgonja learned Counsel for the Appellant abandoned grounds number eight and twelve, and combined grounds number three and eleven; nine and ten; one, two and four; five and six; then seven argued alone. For ground number three and eleven, the learned Counsel submitted that it is in records as reflected on typed proceedings at pages 40, 42, Mwajuma Ramadhani (DW2) was the only person purported to own the disputed land, only person who sold land in dispute to the Respondent in 2003 and 2006; there is nowhere DW2 either transferred or shared her purported inheritance with Ramadhani Shomari; DW3 averred that DW2 and Ramadhani Shomari were co-owner; per documents tendered DW2 did not sell the disputed land to the Respondent in 2003 and 2006; the Respondent and witnesses failed to tender any document indicating the late Seifu Kaisi was the original owner succeeded by the DW2's mother then to DW2 who could sell to the 3 Respondent; the Respondent failed to tender any document indicating DW2 and Ramadhani as co-owners since 1997; the Respondent failed to prove as to how he acquired the portion of land in 2006 The learned Counsel submitted that per the evidence tendered there is no proof of ownership of the disputed land from the late Seifu Kaisi to the late Zainabu Seifu and inheritance by DW2 who jointly with Ramadhani Shomari transferred ownership to the Respondent. He submitted that there was no will or letters of administration for the estate of the deceased. He cited the case of Paschal Maganga vs Kitinga Mbarika, Civil Appeal No. 240/2017 CAT Mbeya. Ground number six, nine and ten, the learned Counsel submitted that DW2 claimed to be the sole owner of the disputed land and sold to the Respondent in 2003 and 2006, while at the same time she denied involvement on the 2006 transaction. The learned Counsel faulted DW2 for not mentioning of Ramadhani Shomari during her examination in chief, arguing it being absurdity. Grounds five and six, the learned Counsel submitted that exhibit D3 is contradictory, because it indicate the Respondent as a purchaser and vendor 4 at the same time and faulted the trial Chairman for not noticing such a contradiction. Grounds one, two and four, the learned Counsel submitted that the evidence of the Appellant was heavier as there was passage of title from his previous owner and was issued with prerequisite receipts of tax from the village authority acknowledging sell. He submitted that the Appellant predecessor had a good title to pass to the Appellant as opposed to the Respondent and his purported seller. Grounds nine and ten, the learned Counsel submitted that a close scrutiny at exhibit D2 and D3 purported agreement for sale, comprises of Kijiji cha Mapinga and Mtaa wa Kibosha at the same time, arguing the two local government never co-exist. He submitted that Issa Muhibu Kibwana (DW3) who purport to represent local government, did not indicate any position he was holding when he signed the purported documents. Ground number seven, the learned Cousnel submitted that exhibit D2 and D3 does not indicate neighbours whose the Respondent purport to be demarcated with, arguing exhibit P2 collectively clearly indicate boundaries and neighbours to the suit land. 5 In reply, Mr. Ambroce Menance Nkwera learned Counsel submitted that, DW2 stated that they sold the disputed land to the Respondent by virtual of inheritance. He submitted that DW3 stated that the suit land belong to DW1 because the same was sold to him by DW2 and Ramadhani Shomari. The learned Counsel submitted that even if the Respondent did not file probate cause to their late mother's, does not invalidate the fact that they are the heir and hence entitled to their mother's estate including the suit land. He submitted that even DW3 was aware of a fact that DW2 and Ramadhani Shomari are heirs to the estate of their late mother and after her demise they become the owner thereto. He cited the case of Malietha Gabo vs Adam Mtengu, Misc. Land Appeal No. 21/2020 HC Kigoma, for a proposition that the irregularity on the decision of the Tribunal can be revised only if the illegality occasioned a failure of justice. He submitted that the Appellant is the one who ought to prove his case, arguing that whoever has heavier evidence than the other party wins the case. He cited Hemed Said vs Mohamed Mbilu [1984] TLR 113. He submitted that the Respondent had heavier evidence compared to the Appellant, as he tendered evidence including the vendor. Ground number six, nine and ten, the learned Counsel submitted that co­ existence of village authority and street government authority in D2 and D3, 6 it does not contravene any law, rather gives more assurance that the sale is genuine. He submitted that the Counsel for Appellant was unable to elaborate which kind of law the exhibit contravened. He submitted that DW2 was involved in the sale transaction as per exhibit D2 including her examination in chief and further elaborated on cross examination that she and Radhamani Shomari did sale the suit land to the Respondent. Grounds five and six, the learned Counsel submitted that DW2 and DW3 clarified regarding the Respondent to appear as vendor and purchaser was a typing error or human error, but the seller was Ramdhani Shomari as discussed by the Tribunal at page 41. He submitted that nowhere DW2 explained as a sole owner of the suit land, rather clarified that DW2 and her brother Ramadhani Shomari sold the disputed land to the Respondent. He submitted that the dispute before the Tribunal was not whether or not DW2 and his brother sold the disputed land to the Respondent, rather the issue was whether the Appellant was the rightful owner of the suit land. Ground number one, two and four, the learned Counsel submitted that the exhibit tendered by the Appellant its authenticity is questionable because a signature of Bahati Issa Mohamed signed in the sale agreement dated 5/07/2001 and 03/06/2016 are quite different. He submitted that the 7 Appellant ought to summon Bahati Issa Mohamed to testify on his behalf but did not do so without justifiable cause. Ground number nine and ten, the learned Counsel submitted that at the time of executing the sale agreement by the Respondent the Kibosha Street was within Mapinga Village in Zinga Ward, arguing that whether or not Bagamoyo up to now is a Township and not municipal is immaterial, on that a dispute is not on Bagamoyo being township or being town council rather the concern is whether DW2 and his brother sold the suit land to the Respondent which fact was proved by the Respondent's witnesses. He submitted that the learned Counsel for the Appellant failed to indicate which law provide for a requirement for exhibit D2 and D3 indicating special mark. On rejoinder, the learned Counsel submitted that the Respondent is in no better position than that of the Respondent (sic, Appellant), because he purport to have purchased the suit land form DW2 who claim to have inherited the same from her mother who also purport to have inherited it from her late father. He submitted that Respondent's claim of ownership over the suit land is with no leg to stand, be it legal or factual. He submitted that the evidence of the Appellant was heavier as there was a passage of title from the previous owner who also purchased it after complying with payment of village levy and issuance of receipt. 8 On my part, the general rule is that in civil litigation, the evidence does not tie, always the one whose evidence would be evaluated heavier on a preponderance of probability, will be the winner of the battle, see section 3(2)(b) of the Evidence Act, Cap 6 R.E. 2019. For grounds three and eleven, the testimony of the Appellant on it is face, is vivid that he was conned easily by the purported Bahati Issa Mohamed whose place of abode and residence is doubtful, whether Ifakara, Goba or Kibamba, meaning that the Appellant did not observe the principle "know your customer" at the time of purchasing the disputed land. The Appellant did not consult the hamlet leadership, neither asked more details of ownership or credentials of the alleged Bahati Issa Mohamed, from neighborhood. In fact up to the time of adducing evidence the Appellant did not know even a single neighbour. The alleged Bahati Issa Mohamed is not living thereat. Payments were done on cash basis, seemingly Bahati Issa Mohamed avoided deliberately payment via bank account, instead it would appear advised the Appellant to withdraw money and pay cash, where she/he merely appended signature on a pay is slip of the Appellant, without even indicating her/his name. The Appellant had no witness whatsoever on the whole transaction of purchasing land, did not even involve his own wife during purchase as his witness. The Respondent on the other hand, showed to have a good title, occupying the 9 suit land from 20/11/2003 including an extension done on 18/8/2006, meaning have been in occupancy for the aggregate of thirteen years. Transaction of sale were blessed by the hamlet leaders including DW1 for the first transaction. The vendor (DW2) is known even by the hamlet leader to be the owner of the suit land. According to DW2 the suit land was formerly owned by her father (deceased) who was owning it under customary or deemed right of occupancy, then after his demise the title passed to her (DW2) late mother and after the death of her mother she proceeded living there. DW2 explained that she and her brother were born and throughout their livelihood they have been living there. As such DW3 was justified to refer DW2 as the owner of the suit premise. Therefore DW2 and her brother Ramadhani Shomari are taken as owner as such. In this situation, a question of a will or letters of administration was raised by the Counsel for Appellant as an afterthought. This is because both lawyers participated at a trial before the Tribunal and did not bother to raise it as of matter of serious concern at a trial. Suffices to say DW2 had a good title to pass to the Respondent. This adumbration takes into board grounds number one, two and four as well. For ground number six, nine and ten, generally there is no substance on it. Nowhere DW2 stated that she is a sole proprietor. DW2 in most of her evidence stated that they co-own with her brother Ramadhani Shomari, even 10 sale said they jointly sold that farm. A mere fact that DW2 did not mention Ramadhani Shomari during examination in chief or that in some segment she used singular or that one of them did not participate on the sale executed in 2006, does not eliminate the truth that they co-own and jointly sold. Above all, as stated by DW2, the sale agreement dated 2006 was a supplementary for an extension of the first deal of sale. Grounds five and six, these too are unmerited. DW2 explained it being a typing error regarding exhibit D3 indicating the Respondent as vendor and purchaser at the same time. Also, DW3 explained that it is a human error on the part of the Village Secretary who erroneously recorded the Respondent as a vendor as well. To my view the explanation by DW2 and DW3 is satisfactory. Human and typing cannot be a ground for invalidating exhibit D3. Grounds nine and ten, as alluded by the learned Counsel for Respondent that co-existence of village council and hamlet council in D2 and D3, it does not contravene any law. To my view, it is not harmful, importantly the learned Counsel for Appellant did not cite any law which was contravened. A mere fact that DW3 did not indicate his position when he signed the sale agreement, is immaterial. Indeed, when DW1 was cross-examined stated 11 that the documents were stamped a rubber stamp of the village chairman. As such this ground is un merited. Ground number seven, the learned Counsel submitted that exhibit D2 and D3 does not indicate neighbours. It is true that DW1 stated that there is no neighbour indicated in exhibit D2. However, on examination in chief DW1 was able to mention all neighbours: east bordering Bagamoyo Road, west share a border with Mohamed dubbed as Mudi, south his vendor were still occupying some land, north there was a grandmother who disposed it to Mushi and added further that the grandmother is a sibling to DW2. With this description, the omission in exhibit D2 and D3 cannot be said to have dented a plausible evidence of the Respondent. In the premises, all grounds of appeal are unmerited. The appeal is dismissed on its entirety with costs. .B^LUVANQ /JUDGE 25/08/2023 12 Judgment delivered in the presence of Mr. Ambroce Nkwera learned Advocate for the Respondent also holding brief for Mr. Tumaini Mgonja learned Advocate for the Appellanh^ E.B. LPVANDA /JUDGE 25/08/2023 13