yahaya ally mozzy v mariam mustapha 2024 tzhc 309 21 february 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA DISTRICT REGISTRY AT TABORA LAND APPEAL NO. 05 OF 2023 {Arising from the District Land and Housing Tribunal for Tabora in Land Application No. 92 of 2019) YAHAYA ALLY MOZZY (Administrator of the Estate of the late Queen Ally Mozzy).......................... APPELLANT VERSUS MARIAM MUSTAPHA ..................... RESPONDENT JUDGMENT Date of Last Order: 15.11.2023 Date ofJudgment: 21.02.2024 KADILU, J, On 16th September 2019, the appellant instituted a suit in the District Land and Housing Tribunal (DLHT) for Tabora against the respondent seeking the declaration that the late Queen Ally Mozzy is the lawful owner of the house built on Plot No. 68 Block FF Gongoni area within Tabora Municipality. He also prayed for an order to stop the respondent from continuing to collect rent from the suit premises and payment of TZS. 10,116,600/= being the rent collected by her from the tenants, as well as the costs of the case. The respondent did not indicate that she is acting as the administratrix of the estate of her late husband, but I think that point is not relevant to this decision. The respondent filed a Written Statement of Defence (WSD) stating that she is a lawful owner of the house in dispute after her late husband had i purchased it from the late Queen Ally Mozzy in 2010 forTZS. 25,000,000/=. She prayed for an order of revocation of the certificate of the right of occupancy over the property in dispute issued in 2018 in the name of Queen Ally Mozy. She further prayed for the costs of the suit and a permanent restraint of the appellant and all his agents from interfering with her right of occupancy over the property in dispute. I wish to state here that the matter has a long and complex background which I am not going to trace in this appeal. After hearing both sides, the learned Chairman of the DLHT (Hon. Ling'wentu) decided the case in favour of the respondent by declaring her the rightful owner of the suit property. Dissatisfied with the decision, the appellant preferred the instant appeal in this court armed with the following grounds: 1. That, the trial tribunal erred in law and facts by holding that there was an oral agreement between the late Queen Ally Mozzy and the late Abduimuhsin Ally Mozzy for the sale of the suit property (surveyed land) as a result, it arrived at an erroneous decision in total defiance of the rules ofpleadings, evidence, and rules regulating the disposition of the right of occupancy by way of sale. 2. That, the trial tribunal erred in law and facts for failure to analyze and evaluate the facts and evidence presented before it by the parties concerning the respondent's purchase of the suit property from the late Queen Ally Mozzy as a result, it arrived at an erroneous decision in total defiance of the rules ofpleadings, evidence, and succession. 3. That, the trial tribunal erred in Jaw and facts by granting reliefs to the respondent while such reliefs were merely raised in the WSD without any claim raised by way ofcounterclaim by the respondent. 4. That, the trial tribunal erred in law and facts by holding that there was a failure to cross-examine properly the respondent's witnesses that 2 imply the truth that there was ora! agreement for the sale of the suit property. 5. That, the trial tribunal erred in law and facts by drawing an adverse inference against the appellant for his failure to call Aisha Ally Mozzy @ Mama Wande while the appellant called the closest relative (PW2) as a witness. 6. That, the trial tribunal erred in law and facts in entering judgment in favour of the respondent without sufficient evidence and proof of the claim in the balance ofprobability. The appellant implored the court to quash and set aside the judgment and decree of the DLHT with costs. The respondent waived her right to file a reply to the memorandum of appeal. When the appeal was called on for hearing, the appellant was represented by Mr. Ngassa Ganja Mboje, the learned Advocate whereas the respondent enjoyed the legal service of Mr. Hassan Ki lingo, also the learned Counsel. Before submitting, Mr. Ngassa informed the court that the appellant's complaint was mainly on the respondent's illegal acquisition of the disputed property and unlawful collection of rent from the tenants in the suit property. On the 1st ground of appeal, Mr. Ngassa submitted that the DLHT erred in holding that there was a counterclaim about ownership of the disputed property. He referred to Section 61 (1) of the Land Act which prohibits the disposition of a surveyed land contrary to the provisions of the Act, and that any contravention of the Land Act relating to the disposition of the right of occupancy renders the purported transfer ineffectual. 3 He added that under Section 64 of the Act, any sale of land is required to be in writing and signed by the parties. The learned Advocate explained that in the present case, there is no evidence in writing that the disputed property was ever sold to anyone. He referred to the case of Africarrier Limited v Millenium Coach Limited, Commercial Case No. 130 of 2017, High Court of Tanzania, Commercial Division at Dar es Salaam in which it was stated that a sale agreement is mandatory in the sale of surveyed land in Tanzania. Mr. Ngassa prayed to argue the 2nd, 4th' and 5th grounds of appeal together as according to him, they all relate to the evidence presented before the trial tribunal. He submitted that in the DLHT, an adverse inference was drawn against the appellant for failure to call one Mama Wande as one of its witnesses. He argued that the principle of adverse inference was wrongly applied because the respondent's witnesses were the ones who testified about Mama Wande and that, it is only on page 11 of the proceedings where the appellant's witness mentioned Mama Wande. Mr. Ngassa said DW1 stated clearly how Mama Wande was a key witness. In his view, the materiality of Mama Wande's evidence was presented by the respondent's witnesses, not the appellant. He, therefore, argued that the respondent was responsible for calling Mama Wande so, any failure was supposed to be attributed to the respondent, not the appellant. He invited me to read the case of Hemed Said v Mohamed Mbiru [1984] TLR 113 in which the court discussed the principle of adverse inference in detail. 4 The learned Counsel submitted further that the appellant is said to have failed to cross-examine the respondents witnesses properly, hence the tribunal found the appellant's case as weak. He explained that the respondents witnesses were properly cross-examined. He gave as an example on page 32 of the tribunal's proceedings Where the bank account that was alleged to receive the purchase price of the property in dispute was stated and the total amount paid was established through cross- examination. He submitted more that the trial tribunal failed to evaluate and analyze the evidence presented before it as it failed to distinguish the burden of proof and the onus of proof. He cited the case of Crescent Impex (T) Ltd v Mtibwa Sugar, Civil Appeal No. 455 of 2020, Court of Appeal of Tanzania at Dar es Salaam in which the two terms were distinguished. According to him, exhibits Pl and D3 established that the appellant is the owner of the disputed property, though the respondent was the collector of rent therefrom. To support his point, Mr. Ngassa cited Section 40 of the Land Registration Act [Cap. 334 R.E. 2019] which provides that a certificate of title is a conclusive proof of land ownership unless it is sold to a bonafide purchaser. To buttress his argument, he quoted the case of Nichoiaus Mwaipyana v The Registered Trustees of Little Sisters of Jesus Tanzania, (jn\\ Appeal No. 276 of 2020, Court of Appeal of Tanzania at Mwanza. He opined that in the absence of a counterclaim against the seller, 5 the respondent cannot negate the prima facie evidence of the appellant's ownership of the disputed property. The learned Counsel for the appellant concluded that the appellant discharged the burden of proof that he is the owner of the disputed land whereas the respondent failed to discharge the onus of proof that she purchased the said land. He submitted further that in the 3rd paragraph of the respondent's WSD in the tribunal, she indicated that the sale agreement was concluded in 2010, but payment started in 2011 and was completed in 2012. On the evidence, she stated that the purchase was done in 2011. On page 27 of the proceedings, she also showed that some payments were made before 2011 and others were made after 2012. He stated in addition that exhibit D2 shows that the total deposit was TZS. 14 million. Therefore, the alleged TZS. 25 million was not proved as the purchase price. The sale was invalidated by the District Court and the alleged house was removed from the list of Abdulmuhsin's estate. Mr. Ngassa said, all these indicate how the respondent's case was weak, but the DLHT failed to evaluate and analyze evidence properly. Submitting on the 3rd ground of appeal, Mr. Ngassa stated that the tribunal granted reliefs without counter-claim by the respondent. He drew inspiration from the case of Melchiades John Mwenda v Gizelle Mbaga and Others, Civil Appeal No. 57 of 2018, Court of Appeal of Tanzania at Dar es Salaam where it was held that reliefs are granted if they are prayed in claims. He expounded that in this case, the respondent was granted relief 6 which she did not raise in her counterclaim, which was wrong. Finally, on the 6th ground of appeal, the learned Advocate submitted that there was no sufficient evidence by the respondent to negate the appellant's ownership of the disputed land. He cited Section 115 of the Evidence Act, [Cap. 6 R.E. 2022] which requires the respondent to prove her purchase Of the disputed land as she alleges to be the purchaser. Based on the strength of his submissions, Mr. Ngassa concluded that the appellant's evidence was stronger than that of the respondent so, he was entitled to the claimed reliefs. He prayed the appeal to be allowed with costs. Responding to the submissions by Mr. Ngassa, Mr. Kilingo stated from the beginning that he was praying for the appeal to be dismissed with costs for lack of merit. He argued that the lack of a written agreement for the sale of registered land is not the factor that invalidates every sale. According to him, the provisions of Sections 61 and 64 of the Land Act are not mandatory as they do not use the word "shall." He expanded that in the present case, the reason for not reducing the sale agreement in writing was that the seller and buyer passed away before the agreement was put in writing. He opined that it is not every agreement that must be reduced into writing regardless of whether the land was registered or not. Mr. Kilingo argued that an oral agreement is also binding in law. He referred to the case of Joachim Ndeiembi v Madid M. Mshindo and 7 Others, Civil Appeal No. 106 of 2020, Court of Appeal of Tanzania at Dar es Salaam in which it was held that oral contract is binding too. Mr. Kilingo added that in the tribunal, the respondent had no duty to prove the case, but the appellant had, which he did not do per Sections 110 and 111 of the Evidence Act. He explained that the money deposited was never returned and development made by the respondent on the disputed land was never objected to by the appellant or his deceased sister. He reiterated his earlier submission that the disposition of landed property is not always required to be in writing. He stated that although the land was registered, the agreement needed not to be in writing. He said, PW1 who is the appellant herein, stated clearly that he does not know Mama Wande so, the appellant had a chance to call her as his witness. Mr. Kilingo alleged that the whole family including the said Mama Wande turned against the respondent so, Mama Wande was not an appropriate witness for the respondent but rather, the appellant if he so wished. The learned Advocate maintained that the appellant did not cross- examine the respondent's witnesses properly. He asserted that on page 6 of the tribunal's judgment, it is clear that the appellant failed to cross-examine the witnesses summoned by the respondent. To him, the appellant's silence indicated that he admitted the truthfulness of the respondent's evidence. Concerning the counterclaim, he submitted that the DLHTs have their own rules of procedure. He explained that the DLHTs do not use the Civil Procedure Code except in a few instances. .8 According to Mr. Kilingo, there is no format for a WSD in the Regulations to the Land Disputes Courts Act which regulates procedures for land disputes in the DLHTs. He opined that a counterclaim or set-off may be included, but in this case, a counterclaim was not among the issues raised and determined by the tribunal. The tribunal was, therefore, bound to stick to the issues framed. It thus, remained with no option than to award the reliefs claimed. He conceded that the Land Registration Act is clear that a certificate of title is prima facie evidence of land ownership, but the respondent negated it by showing how she came into possession of documents of ownership. She explained that the documents were handed over to her awaiting to reduce the sale agreement into writing. It was the contention by Mr. Kilingo that there was no evidence by the appellant that the respondent stole the said documents of ownership. Thus, the respondent possessed the documents of title legally. He argued further that the certificate of title was obtained in 2018 after the dispute arose. Therefore, there is no reason why it was not produced even in 2015 during the case about the administration of the estate. Mr. Kilingo asserted that the respondent had a letter of offer long ago and the appellant processed the title deed later to prove the case about ownership of the disputed land. Section 115 of the Evidence Act was wrongly cited to shift the burden of proof to the respondent. The appellant did not prove that the respondent was collecting rent from the suit property. For that reason, the obligation 9 vested to the appellant under Section 110 of the Evidence Act was not discharged. He failed even to state the monthly rent which the respondent was collecting from the suit property. According to Mr. Ki lingo, the onus of proof and burden of proof are the same terms only different wording. He elaborated that the respondent testified that up to 2011, she paid TZS. 25 million as a purchase price of the property in dispute which she paid in various installments. He finally submitted that the appellant failed to prove his case to the required standard and the respondent had no duty to prove her case so, he urged the court to dismiss the appeal with costs. Rejoining, Mr. Ngassa maintained that Section 61 of the Land Act is coached in mandatory terms as it uses the word "shall." He insisted that the sale becomes ineffectual hence, incapable of transferring ownership if the agreement is not in writing or its terms have not been put into a memorandum. He distinguished Joachim Ndelembi'is case cited by Mr. Kilingo as in that case, the sale agreement was not authorized by the Village Council while in the case before me, exhibit D2 shows that the money was not paid to the late Queen Ally Mozzy's account, rather, to Queen Ally Mosie, a different person who is a 3rd party. He relied on Regulation 7 of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2002 which recognizes counterclaims and set off in the same way as in the Civil Procedure Code. Thus, for one to be granted reliefs based on a counterclaim, he should raise a counterclaim in the WSD. The learned Counsel argued that evidence of io PW1 and DW2 are clear about who is the owner of the property in dispute. PW1 testified that monthly rent was used for the renovation of the disputed house. He narrated that documents of ownership of the disputed property were possessed by the respondent because they were handed over to his late husband by his deceased sister to manage the disputed house. Mr. Ngassa refuted the allegation that the late Queen Ally Mozzy processed a certificate of right of occupancy to defeat the ends of justice as the said certificate was issued in 2018 and this case was filed in 2019, therefore the certificate was processed after the dispute arose. Concerning the appellant's witnesses, Mr. Ngassa submitted that PW1 was categorical that he was not aware that Mama Wande knew about the disputed house. For that reason, he couid not call her as a witness. Whether the family turned hostile against the respondent, the Advocate argued that it came up during the defence case in which the appellant had no room to call Mama Wande. Cross-examination of the respondent's witnesses was done effectively. Still, the honourable Chairman of the tribunal weakened the evidence of the appellant on the basis that the cross-examination was not proper. The appellant discharged the burden of proof as far as ownership is concerned. The discrepancies concerning the dates Of the contract and consideration paid are not minor inconsistencies according to Mr. Ngassa's submission. He wondered if the respondent purchased the disputed house, it is inconceivable how she had forgotten the dates of purchase and the it purchase price. He stated finally that the contradictions had weakened the respondent's case and that the land laws have not put as an exception to sale agreements that they may be oral where the parties are relatives. I have examined the record carefully and considered rival submissions by the learned minds for and against the appeal. I will resolve the 1st, 2nc; and 4th grounds of appeal jointly as they are all challenging the sale of disputed property by oral agreement. The appellant claims that his deceased mother was the lawful owner of the property in dispute since 1981 and that in 2010 the respondent entered into the disputed property illegally and started to collect rent from the tenants therefrom. On her part, the respondent alleges that in 2010 the late Queen Ally Mozzy sold the property to Abdulmuhsin Ally Mozzy for TZS. 25 million and entered into an oral sale agreement. The appellant avers that the house in dispute has never been sold to anyone and that in Tanzania, ownership of a landed property cannot be transferred by oral agreement. Since the respondent claims that the appellant disposed of the property to her late husband in 2010, then it is upon her to establish the alleged disposition of the right of occupancy by the appellant's deceased sister. Throughout her testimony, the respondent stated that she had no contractual document to support her claim as the sale agreement was made orally. Let me hasten to point out that one of the mandatory requirements in the disposition of a right of occupancy is that the disposition should be in writing for it to be operative. 12 This is as per Section 64 (.1) (a) of the Land Act which provides that: '14 contract for the disposition of a right of occupancy or any derivative right in it or a mortgage is enforceable in a proceeding only ifthe contract is in writing or there is a written memorandum of its terms." The rationale for having contracts for the dispositions reduced into writing was stated in the case of AbuatyAlibhai Azizi v Bhatia Brothers Ltd[2000] TLR 288 in which the Court stated that: "A right of occupancy is something like a lease and a holder ofa right of occupancy occupies the position of a sort of lessee vis-a-vis the superior landlord; therefore, a disposition of a right of occupancy is necessarily a tripartite transaction involving not only the holder of a right of occupancy and the purchaser or donee but also involving the superior landlord. Therefore, one of the conditions is that no disposition of the said right can be made without the consent of the superior landlord." That is why the Land (Disposition of Rights of Occupancy) Regulations, G.N. No. 179 of 2001 obliges the holder of the right of occupancy and the intended purchaser to apply and obtain approval from the Commissioner for Lands for the transfer of ownership to be effectual. Without the approval of the Commissioner for Lands, any disposition of the right of occupancy becomes inoperative or ineffectual; that is, it cannot operate to transfer ownership of the right of occupancy from the vendor to the purchaser. See Section 61 (1) of the Land Act which stipulates that: 13 "No right of occupancy, lease or mortgage shall be capable of being disposed of or dealt with except in accordance with this Act, and any attempt to dispose of any right of occupancy, lease or mortgage otherwise than in accordance with this Act, shall be ineffectual to create, extinguish, transfer, vary or affect any right or interest in land, or in the right ofoccupancy, lease or mortgage." In the case at hand,: the respondent testified that a contract of sale was entered into in 2010 and that the parties intended to reduce it into writing though they both passed away in 2018 before doing so. There were no justifiable reasons as to why the parties could not put their agreement into writing for 8 years of their lifetime from 2010 to 2018 when they died. The respondent averred that she obtained the letter of offer (exhibit D4) from her late husband who got its possession after the property was sold to him and that the late Queen processed the right of occupancy after the dispute arose. With due respect, without full compliance with the legal procedures, mere possession of title documents does not: pass ownership of landed property from one person to another. Testifying as PW1, the appellant stated that the respondent included the disputed property treating it as among the estates of her late husband. The late Queen contested it up to the District Court of Tabora where the court ordered the said property to be removed from the list of the estate of Abdulmuhsin Ally Mozzy. In establishing the late Queen's claim of title, the appellant tendered the certificate of title number 8724LR Tabora over the property dated 21st November 2018 issued in the name of Queen Ally Mozzy (Exhibit Pi). 14 In my humble opinion, the DLHT erred in deciding this issue in favour •of the respondent regardless of clear evidence that the late Queen Ally Mozzy held title to the property as revealed by the certificate of title (Exhibit Pl). Section 40 of the Land Registration Act, [Cap. 334 R.E. 2019] provides that the certificate of the right of occupancy is conclusive proof of the matters contained therein, which include the fact that the late Queen is the registered occupier of the property in dispute. In the case of Leopold Mutembei v The Principal Assistant Registrar of Titles and Another, Civil Appeal No. 57 of 2017, Court of Appeal of Tanzania at Mwanza, it was observed that, aside from being a conclusive proof of ownership over land, a certificate of title is evidence confirming the underlying transactions that conferred or terminated the respective titles to the persons named therein. Therefore, this court finds that the respondent could not prove the alleged transfer of the right of occupancy through oral evidence. She could only do so by tendering a written sale agreement. The absence of the written agreement defeats her claim of acquisition of title through the so-called purchase. For the stated reasons, I find the 1st ground of appeal meritorious. Concerning the 3rd ground of appeal, the appellant complains that the DLHT erred in law and facts by granting reliefs to the respondent while such reliefs were merely raised in the WSD without any claim raised by way of counterclaim by the respondent. I have examined the record, judgment, and decree of the DLHT and failed to grasp the appellant's complaint on this ground of appeal. Indeed, the respondent did not raise any counterclaim in 15 her WSD. In the judgment of the tribunal, there is nowhere that the respondent was granted any relief. The tribunal only stated that the respondent being a wife of the late Abdul Ally Mbozzy, has the right over the disputed house. Therefore, I dismiss the 3 rd ground of appeal for being baseless. The other complaint by the appellant is about the evidence presented by the parties before the trial tribunal as depicted on the 5th and 6th grounds of appeal in which the appellant alleges that the trial tribunal erred in law and facts in entering judgment in favour of the respondent without sufficient evidence and proof of the claim in the balance of probability. Since I have already faulted the finding of the DLHT regarding the existence of proof of transfer of the right of occupancy over the disputed property, this ground of appeal has been answered while resolving the 1st, 2nd' and 4th grounds of appeal. Lastly, the appellant alleges that the trial tribunal erred in law and facts by drawing an adverse inference against him for failure to call Aisha Ally Mozzy @ Mama Wande while the appellant called the closest relative (PW2) as a witness. I should state here that, in terms of Section 143 of the Evidence Act, evidence is usually weighed, not counted. There is no particular number of witnesses required to prove certain facts. The evidence of a single witness may be sufficient to establish some facts in dispute if that witness is found by the court to be credible. Therefore, whether or not the appellant proved 16 the case on the balance of probabilities, depends on the probative value of the evidence presented before the trial tribunal. In the case at hand, I am satisfied that the number of witnesses called by the appellant managed to prove his case on the balance of probabilities hence, I agree with Mr. Ngassa that the principle of adverse inference was wrongly applied in this case. In the case of Paulina SamsoniNdawanya v Theresia Thomas Madaha, Civil Appeal No. 45 of 2017, the Court of Appeal stated that: "It is equally elementary that since the dispute was in a civil case, the standard of proof was on a balance of probabilities which simply means that the Court will sustain such evidence which is more credible than the other on a particular fact to be proved." Given the above, I uphold the 5th and 6th grounds of appeal. For the reasons shown, I allow the appeal by quashing and setting aside the judgment and decree of the trial tribunal. This court holds that the purported sale of the suit property was invalid. As the matter is in the nature of the administration of estates, each party shall bear its costs. Order accordingly. DILU, M.J. JUDGE 21/02/2024. 17 Judgment delivered in chamber on the 21st Day of February, 2024 in the presence of Mr. Yahaya Ally Mozzy. MJ., JUDGE 21/02/2024. 18