JUDGMENT OF YONA MWASANGUTI VS YUSUPH MWALUSAMBA

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA LAND CASE APPEAL NO. 74 OF 2023 CASE REFERENCE NO. 20230725000513672 (Originating from Application No. 74 of 2022 in the District Land and Housing Tribunal for Mbeya at Mbeya) YONA ANDWELE MWASANGUTI ……………………………………..APPELLANT VERSUS YUSUPH MWALUSAMBA ……………………………………………..RESPONDENT JUDGMENT Date of hearing: 13/6/2024 Date of judgment: 26/7/2024 NONGWA, J. The appellant sued the respondent in the District Land and Housing Tribunal for Mbeya at Mbeya vide Application No. 74 of 2022 for recovery of a piece of land located at Itanji, Igawilo ward within the district and region of Mbeya on ground that he never sold to the respondent. Thus, prayed to be declared the lawful owner, that the respondent is the trespasser, order to evict the respondent in the suit property, compensation for disturbances and costs of the suit. 1 Briefly, parties had agreed to make transaction over the suit property, the appellant being the seller and the respondent as the buyer. The suit property had been developed by the appellant to the foundation stage. It was alleged that parties went to the advocate to prepare the contract but they did not sign because the respondent did not have money to pay. Further, it was alleged that the appellant went to attend his sick mother and when returned in 2022 found the respondent had finished building the house. This forced the appellant to file application in the tribunal for the reliefs already cited above. In defence the respondent admitted to have arranged with the appellant to purchase the suit property. He alleged that after they had agreed they went to the advocate signed the contract and from that date he became the owner of the suit property. Thus prayed the application to be dismissed with costs. The tribunal upon hearing parties was convinced by evidence of the respondent that they concluded and signed sale agreement of the suit property. Finally, the appellant’s application was dismissed with costs. The appellant is aggrieved with the above decision, filed memorandum of appeal on two grounds; one, that the trial chairman erred in law for not holding that the contract was voidable for want of sufficient consideration and two, that the trial chairperson erred in law and fact when failed to 2 evaluate evidence on record on the balance of probabilities as the result reached the wrong decision by declaring that the land in dispute belongs to the respondent. When the matter came on for hearing, parties were represented by Mr. Siamini Ngwembe and Nickson Kiliwa, both learned counsels for the appellant and respondent respectively. Counsel prayed and were granted leave to dispose the appeal by filing written submission. They conformed to the scheduling order. In his submission Mr. Ngwembe submitted that the contract was voidable as consideration was not paid in full as agreed. He stated that per exhibit D1 and respondent’s witnesses admitted that they witnessed payment Tsh. 1,000,000/= and there was no proof that the remaining Tsh. 3,000,000/= was paid. Counsel referred to section 37(1) of the Law of Contract Act [Cap 345 R: E 2019] that parties must perform their contractual obligation unless dispensed or excused by law. Counsel argued that failure of the respondent to pay purchase amount in full rendered the contract voidable under section 55(1) of the Law of Contract. He supported the stance by the case of Joseph F. Mbwiliza vs Kobwa Mohamed Lyeeselo Msukuma & Others, Civil Appeal No. 227 of 2019) [2022] TZCA 699 (10 November 2022; TanzLII). 3 In second ground that evidence was not properly evaluated, it was submission of Mr. Ngwembe that the suit property was disposed without consent of the appellant’s legal wife who testified as PW2. He referred to sections 161(3) of the Land Act [Cap 113 R: E 2029] and 59 of the Law of Marriage Act Cap 29 to support the argument that consent of spouse in disposition of matrimonial asset is required. In response, Mr. Kiliwa submitted that in the tribunal there was no issue of payment of consideration because the appellant denied completely to sale the suit property to the respondent. In alternative counsel submitted that payment of full purchase price was proved on balance of probabilities. On complaint that evidence was not properly evaluated, counsel for the respondent submitted that evidence in record was all in favour of the respondent. Regarding absence of spouse consent it was argued that the appellant failed to prove that he did not dispose the suit property to the respondent. He added that non-involvement of wife was just fabrication. I have considered the record of appeal and rival submissions filed by learned counsels for the parties, the appeal will be disposed in the manner it was argued. Before getting to grounds of appeal, I find it pertinent to have some of principles of law; one, rule of pleadings, it is 4 the position of the law that parties are bound by their pleadings and they cannot be allowed to raise new issues which are not backed by their pleadings unless by way of amendment. See Ernest Sebastian Mbele vs Sebastian Sebastian Mbele & Others, Civil Appeal No. 66 of 2019 [2021] TZCA 168 [ [2021] TZCA 168 (4 May 2021; TanzLII). And two, burden of proof, it is a cherished principle of law that, generally, in civil cases, the burden of proof lies on the party who alleges anything in his favour in terms of sections 110 and 111 of the Law of Evidence Act [Cap 6 R.E. 2022]. In that regard the Court is required to sustain such evidence which is more credible than the other on a particular fact to be proved. See: Nuru Finance & Business Services Co. Ltd vs Benjamin Adamson Masuba, Civil Appeal No. 284 of 2020 [2024] TZCA 169 (8 March 2024; TanzLII) and Stanslaus Rugaba Kasusura and Another vs Phares Kabuye [1982] TLR 338. Having the above principles in mind, I venture to determine grounds of appeal. In the first ground it was argued that the respondent did not prove that he paid the purchase price in full, on the contrary the respondent submitted that was not an issue in the tribunal after the appellant had denied to have concluded any contract with the respondent. 5 I have perused the application filed on 3rd October 2022 by the appellant in the tribunal, the claim is found under in paragraph 6(a)(iv- (vii) of the application. What is grasped is that the parties agreed to conclude sale agreement of the suit property, went to advocate who prepared the contract but they did not sign it because the respondent had no money and the contract was destroyed instantly. It was until August 2022 when the appellant found the respondent had finished the house and residing. Hence filed this appeal on account that he did not sell the suit property to the respondent. The respondent refuted this claim. To resolve the dispute three issues seen at page three of the typed proceedings were framed one, who is the lawful owner of the area with dispute, two, if the applicant sold the suit property to the respondent and three, reliefs parties were entitled. These three issues were all answered in favour of the respondent. In this appeal it is complained that purchase price was not paid in full making the contract voidable. From the pleadings filed and issues framed, the issue of non-payment of full purchase price is not discerned in pleading of the appellant and evidence adduced in the tribunal. In the tribunal as rightly submitted by Mr. Kiliwa the appellant completely denied to have signed the contract to dispose the suit property to the respondent but in appeal has changed the case trying to challenge the sale on account 6 on non-payment of full purchase price. The settled law is that a new factual point cannot be taken for the first time in the appeal because in appeal the court is only required to look for errors committed by the lower court which its duty is the search of truth on evidence placed before it. Akin scenario was discussed in Erastus Vicent Mtui vs Coca Cola Kwanza Limited, Consolidated Civil Appeal No. 619 of 2022 & 13 of 2023 [2024] TZCA 122 (23 February 2024; TanzLII) and the court held; ‘... It is axiomatic that, like trial courts, the arbitrators' duty at the CMA is to search for truth from the facts, issues and evidence before them. It is equally true that appellate and revisional courts are concerned with search for errors from the trial.’ In the case of Nurdin Musa Wailu vs Republic, Criminal Appeal No. 164 of 2004 cited in Galus Kitaya vs Republic, Criminal Appeal 196 of 2015 [2016] TZCA 301 (15 April 2016; TANZLII) the court held that: ‘...usually, the Court will look into matters which came up in the lower courts and were decided. It will not look into matters which were neither raised nor decided either by the trial court or the High Court on appeal.’ The issue of payment of full purchase price was not pleaded and is not seen in evidence of the appellant, the reason no issue was framed for resolution by the tribunal, raising it in this appeal is unwarranted and this 7 court cannot delve to discuss the matter which was not determined by the tribunal. The first ground therefore fails. Sailing to the second ground that there was no consent of wife, it was submission of Mr. Ngwembe that there was no consent of wife of the appellant who testified as PW2 as required by sections 59 of the Law of Marriage Act and 161 of the Land Act. For the respondent Mr. Kiliwa replied that evidence was evaluated and further that the appellant failed to prove that he did not dispose the suit property to the respondent. First the issue of spouse consent was not pleaded no there was any suit filed by the wife of the appellant challenging disposition of the suit property. That falls that evidence of PW2 to the effect that she was not consulted and involved in the transaction is nothing but an attempt to make a mountain out of a molehill. In Makori Wassaga vs Joshua Mwaikambo & Another [1987] TLR 88 the Court said; ‘A party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence; hence he is not allowed to set up a new case.’ Given the above, as there was no claim of the wife regarding the sale agreement and more so that the issue of spouse consent surfaced during evidence of PW2, the appellant can only succeed on what he pleaded. As it was not pleaded, in this appeal the appellant cannot seek shelter under 8 section 59 of the Law of Marriage Act and 161 of the Land Act and try to create a new case in appeal. This ground too fails. From the above, I find no reason to fault the decision of the tribunal, consequently, the appeal is dismissed for devoid merit with costs. V.M. NONGWA JUDGE 26/7/2024 DATED and DELIVERED at MBEYA this 26th day of July, 2024, in absence of the parties. V.M NONGWA JUDGE 9