zaidi jumanne zaidi administrator of the estate of the late jumanne zaidi vs pili rajabu abdallah administratrix of the estate of the late rajabu abdallah mbano 2023 t

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF KIGOMA) ATKIG O M A LAND APPEAL NO. 19 OF 2023 (Arising from High Court Misc. Land Application No. 33 of 2022 originating from the District Land and Housing Tribunal for Kigoma in Land Application No. 63 of 2012) ZAIDI JUMANNE ZAIDI (Administrator of the Estate of the Late JUMANNE ZAIDI) APPELLANT VERS US PILI RAlABU ABDALALLAH (Administratrix of the estate of the Late RAJABU ABDALLAH MBANO) R ES PO ND E NT D ate of last O rder: 18/08/2023 Date of Judgem ent: 01/09/2023 JUDGEMENT MAGOIGA, J. The appellant, ZAIDI JUMANNE ZAIDI aggrieved by the decision of the District Land and Housing Tribunal for Kigoma dated 6/07/2020 in Land Application No.63 of 2012 now appeals against the said whole judgment and Decree of the trial Tribunal to this Court. The facts as depicted from the record of appeal in Land Application No. 63 of 2012 are that, Rajabu Abdallah Mbano (Now deceased) instituted a Land Application against the appellant herein above. Briefly, the claims against the appellant in the said application was for declaratory ~ Page 1 of 17 judgment and decree that Rajabu Abdallah Mbano {Now deceased) is a legal owner of the suit premises which he allegedly purchased the same lawfully at a Public Auction which was conducted at Kigoma on 6/11/1996. Upon paying the purchase price of Tshs.4,800,000/= to the defunct National Bank Commerce through M/s Furaha Auction Mart and Court Brokers Company Limited. The applicant also prayed for an order of forcefully evicting the respondent and/or his agents from the suit premises and payment of compensation of Tshs.30,000,000/= for mesne profits and trespass and costs of the application. After hearing the parties on merits, the trial Tribunal found in favour of the respondent herein and declared the rightful owner of the of the suit premises. Aggrieved by the said findings, the appellant preferred this appeal armed with six grounds of appeal faulting the trial Tribunal in the following language summarily stated; 1. That the respondent had no locus standi in the subsequently instituted Land application No.63 of 2012 and the cause of action against the appellant in his own names and capacity, 2. That the trial Tribunal erred in law and fact in overruling the appellant's preliminary objection on limitations against the respondent's application in his own names commenced in 2012 for a house allegedly purchased in 1996, Page 2 of 17 3. That the trial Tribunal erred in law and fact in inter alia awarding the respondent Tshs.30,00,000/- as compensation for mesne profit and trespass without specific proof thereof and orjustification from the respondent 4. That the trial Tribunal erred in law and fact in entertaining the respondent's application without having joined Furaha Auction Mart and Court Broker and the defunct National Bank of Commerce through the Consolidated Holding Corporation as necessary parties particularly for answering the 1st issue. 5. That the trial Tribunal erred in law and fact in evaluation of the evidence and finally conclusion that the respondent had lawfully purchased the suit house irrespective to;- a. Variances on date when the public auction took place whether on _sth November, 2006 or (lh November, 1996 while Civil Case No. 7 of 1997 was going on in the District Court, b. Variance of the purchase price on the receipt between the written words 'milioni nne na laki nne tu'and the figures as Tshs ~800/000/ without any explanation to that effect c. The respondent and the court broker did not refute to have had received a stop order on tJh November rendering proof of services supertiuous. d. Strong and uncontroverted evidence by the appellant that the public auction did not take place at all on (lh November, 1996✓ e. Variance of names of Abdallah Rajabu with introduction of "R" as appearing in the records, f. Variance of dates in the power of sale by the Consolidated Holding Corporation when executing in form No.52 whether it ~ Page 3 of 17 was on December, 2003 or November, 2006 while the receipt supporting sale is dated November, 1996, g. That the Court broker who testified in favour of the respondent did not have or produce in court authority to carry on the impugned sale and or that a 14 days' notice to carry on sale had prior been given to the appellant. 6. That the trial Tribunal erred in law and fact in admitting as exhibits, different documents without reading them loudly as require and hence amenable to be expunged off. On the above grounds, the appellant prayed that this court be pleased to allow the appeal by quashing and setting aside the trial Tribunal decision with costs in this appeal and in the trial Tribunal. When this appeal was called on for hearing, the appellant was present in person and unrepresented, whereas the respondent enjoyed legal representation by Mr. Method R. G. Kabuguzi, Senior learned advocate. The appellant prayed this appeal to be argued by way of written submission which prayer was not objected on the part of the respondent and I granted the same. I truly recommend them for their inputs on the matter. I will not be able to reproduce each and every argument taken, but it suffices to say their respective contributions are accorded the weight they deserve. On the first ground of appeal, the appellant argued that, this matter was originally instituted in the District Court of Kigoma vide Civil Case No. 7 of ~ Page 4 of 17 19 97 o f w h ich th e fa th e r o f th e re s p o n d e n t one Abdallah Rajabu was the party to the suit but Raja bu s/ o Abdallah Mbano instituted the fresh case at the District Land and Housing Tribunal claiming for the same property which was bought by his father in public auction in 1996 without any power to institute the same while Rajabu Abdallah passed away and the only person with locus to sue is the administrator and not the son of the deceased on his own capacity and names. nd On the 2 ground of appeal, the appellant submitted that, since the respondent pleaded in the application that the matter commenced in the District Court where he was not a party but his late father, then the trial Tribunal erred to overrule the preliminary objection of time limitation. The appellant points out that the sale transaction was done in 1996 and the suit was filled in 2012, 16 years later contrary to the law of limitation in land which is 12 years. rd Arguing on the 3 ground of appeal, the appellant argued that on Tshs.30 million as mesne profit, the appellant submitted that, the respondent did not specifically prove the said award because of what he submitted that mesne profit as defined under the Civil Procedure Code [Cap 33 R.E 2019] means "those profit which the person in wrongful possession of such property actually received or might with ordinary diligence, have received therefrom together with interest on such profit but shall not include profi~ Page 5 of 17 due to improvem ent made by the person in wrongful p ossession. "The appellant pointed out that, the mere words of the respondent that the house in dispute was for the rent, hence, since there was a dispute over the suit house he did not rent the same, and hence, got a loss of Tshs.30 million without proof. It was further argument on ground four that since it was pleaded that the respondent got ownership of the house in dispute through sale which was done by public auction conducted by Furaha Mart and Court Broker Company Ltd, therefore, the said company was a necessary party to the proceedings and essentially to answer the first issue as to whether the auction was conducted. According to the appellant, Furaha Mart and Court Broker Company was a necessary party as per the provision of Order I Rule 3 of the Civil Procedure Code [Cap 33 R.E 2019] which provides; All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist whether Jointly, severally or in the alternative where, if separate suits were brought against such persons, any common question of law or fact would arise. The appellant explained that, there was a question of law or facts which required the respondent as a purchaser of the house in issue from Furaha ~ Page 6 of 17 Mart and Court Broker Company. To buttress his point, the appellant cited to this court the case of Tanzania Railway Corporation (TRC) vs GPB (T) Limited, Civil Appeal No.218 of 2020, in CAT at Tabora. As to the 5th ground of appeal, the appellant argued that, the trial Tribunal failed to analyse the evidence on record in relation to the pleadings, particularly, the application where he faulted the said Tribunal that during hearing of the matter there was a variance between the respondent's application that the impugned public auction took place on 5th November, 2006 while the document tendered exhibited a different date i.e 5th November, 1996 while the Civil Case No.7 of 1997 over the suit house was on going in the District court. He, therefore, asked this court as the first appellate court to re-evaluate the evidence and come up with independent findings. To support this argument the appellant cited the case of Standard Chartered Bank Tanzania Ltd vs National Oil Tanzania Ltd and Another, Civil Appeal No. 98 of 2008 where the court held that; "The law is well established that on first appeal, the Court is entitled to subject the evidence on record to an exhaustive examination in order to determine whether the findings and conclusions reached by the trial Court should stand. {Peters v Sunday Post, 1958 E.A. 424; William Diamonds Ltd andAnother VR 1970 E.A.:J.; Okeno V.R. :J.972 E.A.32)." P a ge 7 o f 1 7 T h e a p p e ll an t w e n t o n s u b m itt ing o n g ro u n d fi v e th a t a no th e r c o n t ra v e n tio n is o n p o w e r o f s ale b e in g issu ed in 2 00 3 a n d c e rt ifi c a te o f sa le o f th e s a m e y e a r . T he que s tio n b y th e a p p e ll a n t is w h e n did e x a ct ly the s ale to o k p la c e b e tw e e n 1 9 9 6 a s e v id e n ce d o n th e re c e ip ts , 2 00 6 as p le a d e d in th e a p p lic a tio n o r 2 0 0 3 w he n the p o w e r of s a le w as issued a n d c e rt ifi c a te o f sa le be e n g ran ted to th e re sp o n de n t . A c c o rd in g to th e a p p e ll a n t , it co u ld n ot ha v e be e n p o s sib le fo r th e re sp o n d e n t to h a v e b o ugh t th e h o u se in d is p u te in N ov e m be r, 1 9 96 a n d a w a it un t il N ov e m b e r, 2 0 1 2 (s o m e 1 6 y ea rs la te r) to in s tit u te th e cl a im o v e r the h o us e in p e rs ona l n a m e s w h il e litig a tio n h a d c o m m en c ed in the D istrict Co u rt w a y b a c k in 1 997 . O n th e 6 th ground, the appellant faults the trial Tribunal that the exhibits tendered were not read out after their admission contrary to the requirement of the law that for any exhibit to be read loud before the parties after its admission, but that was not done by the trial Tribunal. The appellant there after pressed that the remedy for unread exhibit is to expunge the same from the records. Basing on those grounds, the appellant finally prayed this appeal to be allowed with costs. On the other hand, Mr. Kabuguzi for the respondent hotly contested the entire appeal praying that the same be entirely dismissed with costs. Page 8 of 17 S u b m itt in g o n th e fi rst g ro u n d , M r. K a b u g uz i a rg u e d tha t, re ga rd le ss th e e xisten c e o f th e a lleged fo rm e r C iv il C a se n o . 7 o f 19 97 in th e D istrict C o u rt o f Kigo m a , th e resp o n d e n t's la te h u sba n d (th e la te R aja b u A bda lla h M ba n o ) h a d a lo c us sta n d i to in stitu te la n d A p p lic a tio n N o .6 3 o f 2 0 1 2 a n d h ad a ca u se o f a ctio n a ga in st th e a ppe llan t. A cco rd ing to M r. K a b u g u z i, the issue o f lo cus sta n d i, re s ju d ic a ta an d time limit were dismissed for want of merits for simple reason that he bought the said house at public auction due to the default to repay the loan to National Bank of Commerce and was supported by exhibit Pl. As to the relationship between Civil Case No.7 of 1997 and Land Application No.63 of 2012 it was the strong submissions of Mr. Kabuguzi that the two were two different causes of action with different parties and the later was between two parties' herein, so making the argument by the appellant of no help at all. On the totality of the above reasons, the learned advocate for the respondent in strong terms urged this court to dismiss the first ground of appeal. On the second ground of appeal on limitation, Mr. Kabuguzi argued that since Civil Case No 7 of 1997 was between parties, then, the time the said proceedings were pending to the time were terminated under section 21(1) of the Law of Limitation Act, [Cap 89 R.E 2019] were to be excluded ~ Pa ge 9 of 1 7 a nd a s suc h co un tin g fr o m 23 .1 1. 2 0 1 2 w h e n La nd A p p lic a tio n N o .6 3 o f 2 0 1 2 w as in stitu te d , it ca n no t be said th e sa m e w a s tim e b a rre d . O n the sa m e le n g th u rge d th is co u rt to fi nd th e seco n d g ro u n d u n m e rited a n d b e d ism is se d . R e s p o n d in g to the th ird g round o f appe a l o n a w a rd e d m e sn e p ro fit o f T sh s .3 0 ,00 0 ,0 00 /= M r. Ka b u g uz i a rgu e d tha t, th e tria l T rib un al w as rig h t beca us e e ve r sinc e he b ou g h t the sa id h o u se 17 ye a rs h a d e la p sed w ith o u t g e tt in g a n y fr u its o f ju stic e fro m the h o u se a fa c t w h ich w a s n o t d isp u te d . O n th a t n o te , th e re fo re, u rg e d th is cou rt to fi n d n o m e rits in th is g round o f a p p e a l a n d sub se q ue n tly d ism iss it. Re s p o nd ing to th e fo u rt h g ro un d o f a pp e a l o n n o n -jo in de r o f n e ce ssa ry p a rty th e co u rt b ro ke r, M r. Ka bu g u zi a rg u ed tha t the co n tro ve rsy w as on o w ne rsh ip a n d n o t p u b lic a uctio n a s su c h F u rah a A u ctio n M a rt an d Co u rt B ro ke r C o m pa n y Li m ite d w a s n o t a n e cessa ry p a rt . F u rt h e r, M r. Ka b u gu zi p o in ted o u t th a t, th e M an a g ing D irecto r o f th e a llege d n e ce ssa ry p a rty testifi e d a s P W 2 a nd na rrate d h o w he con d u cted th e a u ct io n w h ic h e ve n tu a lly en d e d u p th e p ro pe rty ch a ng in g o w n e rsh ip to th e resp o n d e n t's la te h usb a n d . U ltim a tely , th e le a rne d a d voc ate u rg e d th is cou rt to fi nd n o m e rits in th is g ro und a nd d ism iss it. Page 10 of 17 Responding to the 5th ground of appeal on failure of the trial Tribunal to analyse evidence, Mr. Kabuguzi argued that the trial Tribunal analysed evidence on record and coupled with exhibit and arrived at the just decision that the respondent is the owner of the disputed premise by purchase from public auction. According to Mr. Kabuguzi even the variance in dates was just a slip of the pen because the proceedings were clear on dates and such a fine variance cannot vitiate the strong evidence by the respondent. On that note and in strong terms urged this court to dismiss this ground as well. Responding to the sixth ground of appeal on whose complaint was that exhibits tendered were not read loud in court, Mr. Kabuguzi argued that the requirement was propagated by the case law recently and was not there when the parties testified and that no miscarriage of justice was ever occasioned. Not only that but quite different in civil cases, exhibits are served to parties to give parties enough opportunity to read them and reply before hearing, hence, no prejudice and same were properly admitted. On that note, the learned advocate for the respondent urged this court to dismiss this ground and the entire appeal with costs. No rejoinder was filed. Page 11 of 17 T h e d u ty o f th is c ou rt n o w is to d e te rm ine th e m e rits o r o th e rw is e o f th is a ppe a l. I w ill de a l w ith e a c h g round o f a p pe a l in the o rd e r a nd ma n n e r w as rep lie d by p a rt ie s . H a v in g h e a rd th e co m pe tin g a rg u m e n ts b y th e p a rt ie s a n d rea d th e re c o rd nd o f the tria l T rib una l, I fi nd tha t th e 1 st ground and 2 ground of appeal can be determined jointly because all boils down to locus stand and limitation. In the first and second grounds of appeal the appellant argues that the trial Tribunal erred in overruling his objections that the respondent had no locus standi and the suit was filed out of time and urged to allow the suit on these two grounds. This line of argument was strongly responded by Mr. Kabuguzi, learned advocate for the respondent, who argued to the contrary and showed that the respondent had locus standi and the suit was properly instituted because other proceedings in Civil Case No. 7 of 1997 was ongoing which ended up in 2012, hence, the instant suit in time and urged the court to dismiss these two grounds. Having carefully followed the arguments for and against these two grounds and having had time to read the trial Tribunal records, with due respect to the appellant, I find them with no iota of merits in this appeal. I will explain. One, there is ample evidence on record that the disputed house was bought by the respondent's husband through public auction ~ Page 12 of 17 b u t th e rea fte r w a s s ue d in C iv il case N o . 7 o f 1 99 7 w h ic h c u lm in a te d in 2 0 1 2 pa v ing wa y to in stitu te th e L a nd A p p lica tio n N o . 6 3 o f 2 0 1 2, s o h ad lo c u s sta n d i to b rin g th e a p p lica tion . Two, as correctly argued by Mr. Kabuguzi, the time he was being dragged in court vide Civil Case No. 7 of 1997 under the provisions of section 21(1) of the Law of Limitation Act (supra) has to be excluded, hence, making the argument that the application was out of time with no merits at all. Three, the arguments of the appellant on locus standi and limitation are but misconceived and erroneous in the circumstances of this appeal and are dully rejected. With the above three reasons, the first and second grounds of appeal are found to be of no merits and are hereby dismissed. This takes me to ground number three which was on grant of mesne profit of Tshs.30,000,000/= which was not specifically proved and justified. According to the appellant, this amount being specific claim was to be proved specifically, which was not done. On the other hand, Mr. Kabuguzi argued that the amount was justified in the circumstances and considering the time elapsed since the respondent bought the house. Having carefully followed and considered the competing arguments by parties on this ground, with due respect to the appellant, I find his arguments devoid of any useful merits in the circumstances of this appeal. I will explain. One, as rightly held in the case of Zuberi Augostine Vs. c{4. Page 13 of 17 A n icet M u gab e (1 99 2 ] T L R 137 CAT in w h ich a n a m o un t ple a de d w as n o t sp e cifi c a lly p rov ed b u t w a s g ran ted b ase d o n th e re a lity in co sts o f re pa ir w h ic h w a s n e ede d . O n the sa m e to ke n , th e re is n o d ispu te tha t th e su it p re m ise s w as g u e st h o u se a nd g ive n th e tim e o f 17 ye a rs th a t h av e e lap se d , in m y con sid e red op in io n , th e tria l C h a irp e rson w as ju stifi e d to g ra n t th e a m o u n t plea de d b e ca u se p ro ve o f the sa m e w as n ot p ossib le u n le ss h e g e ts in to p o ssessio n , w h ic h has b e e n d e n ie d b y th e a p p e lla n t w h o d id n ot de n y by evid enc e tha t th e gue st h o u se w a s n o t in u se . O n the a b o ve reaso n , th is g round to o ha d to fa il a nd is h e reby d ism isse d . N e xt is th e fo u rth g ro und w h ich its co m p la in t w as th a t fa ilu re to jo in th e cou rt b ro ke r w ho w as n e ce ssa ry pa rty vitia te d th e p ro ce ed ing s. A cco rd ing to th e a p p e llan t, F u ra h a M a rt a nd Co u rt B ro ke r C o m p a n y Li m ited w as n e ce s sa ry p a rt a nd fa ilu re to jo in h e r w as fatal to th e p ro ce ed ings . M r. Ka b u gu zi ha d d ia m e tric al d iffe ren t v ie w tha t sh e w as n o t an d m uc h a s his d ire ct o r ca m e to te stify th e sa m e ca nno t vitia te th e p roc e ed in g s . H a v in g ca re fully fo llo w e d a n d co nsid e red th e co m p etin g a rg u m e n ts o n th is p o in t a n d ha ving read the tria l trib u n al's re co rd s, th is g round w ith du e resp e ct to th e a ppe llan t, I fi n d it w ith o u t a n y u se ful m e rits. I w ill e xp lain . One, while I agree with the appellant that failure to join necessary party to proceedings is fatal but in the circumstances of this appeal the alleged party was not necessary but was a proper party, if need arises. Two, ~ P ag e 1 4 o f 1 7 th e re w a s no issue a s to th e la w fulne ss o f th e a u ctio n co n d u ct e d a nd g ive n th e docu m e n ta ry e vid e n ce te n d e re d le a d in g to the re g istra tio n o f the resp o nd e n t as th e o w ne r, I fi n d n o m e rits in th is g ro un d . T h is g ro un d h a s a s w e ll to fa il an d is h e reby d is m isse d . N ex t is th e fift h g ro u n d o f ap p eal w h ic h m a in co m p la in t is tha t tria l T rib una l fa ilu re to e va lu a te e vid e nc e o n reco rd a n d a rriv e d a t w ro n g a n d unju st d ec is ion . A cco rd in g to th e a p p e lla n t, th e e vide nc e sa id to ha v e n o t b ee n co n s id e re d is th e va ria tio n o n da te s o f au ct io n , p ric e , n a m e s, fa ilu re to co n s id e r stro n g e vid enc e o f th e a p p e llan t, fa ilu re to p rod u c e p o w e r o f sa le a nd w a n t o f 14 da y s' n o tice . M r. Ka b u g uz i w as b rie f to th e p o in t tha t the e vid e n c e o n reco rd su p p o rt e d stron g ly the ca s e fo r re s p o n de n t a nd a rgued tha t e v en if th is co u rt a na lyse the e vid e n ce w ill still rea ch the sa m e co n cl us io n . H a v in g co n s ide red th e co m p eting a rgu m e n ts a nd rea d th e re co rd o f th e trial T rib un a l, w ith d u e re sp e ct to th e a p p e llan t, I fi n d th is g ro u n d still o f no m e rits. I w ill e x p la in . One, some of the factual matters raised in this appeal now were not matters that were raised and determined by the trial Tribunal to give justification of this court to make any finding on them as of now. These are power of sale and 14 days' notice. As to the rest, I find were adequately respondent by the respondent evidence and I find no reasons to fault the trial Tribunal's finding. ~ Page 15 of 17 O n th at rea son , I fi n d th is g ro u nd to o w a n ting in th e c irc u m sta n c es of th is a p p ea l. T he la st b u t n ot le ast w as g ro un d n u m b e r s ix w h ich w a s tha t the ex h ib its te n d e red w e re n o t re a d o u t a nd u rg e d t h is co u rt t o e x pun g e t h e m . Ac c o rd in g to t h e a p p e ll an t, u p o n · th e e x h ib its e x pun g e d , t h e re is n o e v idenc e t o s u p p o rt t h e res ponde n t 's c a s e . O n th e o t h e r h a n d , M r . Ka b u g u z i a rg u ed to th e co n tra ry tha t fa il u re to re a d the ex h ib its in c iv il cases is n o t p reju d ici a l b eca u se s a m e a r e s e rv ed to t h e pa rt ie s a nd re ad be fo re e v e n t he t ra ils a s op p o s e d to c rim in al c a s e s . H a v ing co n s ide re d th is g rou nd a n d th e co m p etin g a rg um e n ts , I ha v e n o t ed t ha t , one, indeed, the tendered exhibits were not read out but were annexed to the application and served to the parties at the institution of the suit so the appellant was not in any way prejudiced or taken by surprise as correctly argued by Mr. Kabuguzi. Two, as correctly held in the case of Pyrethrum Company of Tanzania Limited Vs. Homange Kastory Kunzulaga, Civil Appeal No. 1 of 2023, HC (Iringa) by his Lordship Mugeta, J, in which it was held that much as the said exhibits were annexed to the plaint and served to the appellant, no prejudiced was caused and no miscarriage of justice was occasioned. Pa g e 1 6 o f 1 7 I take this line of argument that m uch as no prejudice and m iscarriage of justice w as proved, then, the exhibits w ere at hom e and dry w ith the law and w ere w ell considered for the interest of justice. T hat said and done this ground too has to fail. On the totality of the above, this court find this appeal devoid of any useful m erits and sam e is hereby dism issed w ith costs . It is so ordered. er, 2023. ' ?tttmmk;;:--------~ 01/09/2023 Page 17 of 17