20190430 TZHC Dodoma

'!I.I, "ORIGINAL" IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA LAND APPEAL NO. 27 OF 2017 ORIGINAL FROM THE DISTRICT LAND AND HOUSING TRIBUNAL FOR SINGIDA AT SINGIDA, LAND Application NO 55 OF 2016) ZAWADIEL MCHOME....................................... APPELLANT VERSUS KINDOLE HAMISI SHINDANO ........................ RESPONDENT JUDGEMENT Date of JUDGEMENT- 30/04/2019 Mansoor, J: In this appeal, the appellant was represented by Advocate Ezekiel Amon and the respondent was represented by Advocate Erick Christopher. It was the case of the respondent one Kindole H Shindano at the Trial Tribunal that two plots known as plots No. 34 and Plot "ORIGINAL" No. 36 situate at Mangua Mithogo within Singida Municipality belongs to him. He said before the Singida Municipal Council allocated the land to the Appellant, the lands used to belong to him on customary title. The suit land was surveyed,,allocated to the appellant, the appellant then sold the surveyed two pieces of land to one Karim Nagji who was the respondent at the Trial Tribunal but not a party7o this appeal; and-certificate~ -- of Occupancy with No. 14072-DLR was issued to Karim Nagji. The suit premises have been developed by Karim Nagji, and - - ---· - - - - - --- - - -- this was proved by the Trial Tfibunar5yvisiting-the-locus-in-qtJo.--- - - -- --- -- The respondents' case is that before the land was surveyed he owned the land, but then he agreed to transfer the title of the land to his friend one Zawadiel Mchome in consideration that he be paid THz 500,000 and a two roomed house. The agreement to that effect was reduced in writing and one Fumbuka signed the agreement on behalf of Zawadiel Mchome. The respondent told the Trial Tribunal that Zawadiel Mchome failed to honour the agreement. 2 ''ORIGINAL'' The case for the appellant is that he was allocate.d the · disputed plots by the Municipal Council upon him applying and paying the fees. He denied to have ever entered into a contract with the respondent. The Tribunal believed the respondent m7hat-it-believed-that- ~ - there was an agreement between the appellant and the respondent, and that the appellant had breached the agreement. They ordered· the appellant to build a ·house for the · - respondent on a plot shown by the respondent. Karim Nagji was stopped from developing the plots until the appellant herein has constructed the house for the respondent. The main issue in the appeal is whether or not there was an agreement between the appellant and the respondent for payment of THz 500,000 or 700,000 and for construction of a two roomed house for the respondent. It has been contended by Counsel Amon Ezekiel that the agreement in question which 3 "ORIGINAL" the Tribunal relied upon in giving its judgement was not tendered in court, and as held in the case of Abdullah Abbas Majiri vs~ Amini Hamed Ally (2006) TLR 55, an annexure to the plaint which was not tendered as evidence and which was not tested as evidence cannot be used or be relied upon to enter a judgement. It is true that the court will not go into the merits of the document unless the document has been admitted as evidence. - - ~--· ·- Here, '-- - it is pertinent to note that, mere annexing the --· ~ . - document in the plaint or mere mentioning it during the testimony of a witness is not proof of its contents. The burden of proving the contents of the documents lies on the party seeking the court to act on the contents of a document. The Tribunal was not inclined to look into the nature of document, relevancy of the document, whether the same is disclosed in the pleadings or not, the probative value of the document can only be considered if the same has been admitted in 4 "ORIGINAL" evidence. Thus the Trial Tribunal erred in believing the contents of a document which was not tendered in court as evidence. - - Again, as argued by Counsel Amon Ezekiel, the contract· · in which the Tribunal relied upon to entered judgment in favor of the respondent was not signed by the appellant; it was si§Aed oy someb_ody _FLJryibuka._ ~here was no proof given by the respondent at the Trial Tribunal to show that Fumbuka was given a power of attorney by the appellant to sign the contract -- -- -on his behalf. There was_ no such power of attorney tendered and admitted as evidence before the Trial Tribunal. The further stand taken by the appellant was that the sale deeds or the extra agreement was not signed by him, and he never sent Fumbuka to sign any agreement for him, thus the sale deed or the extra agreement was not binding on the applicant: The trial Tribunal recorded a find that the sale deed or the extra agreement had been executed by Fumbuka on behalf of the appellant without even admitting the agreement in evidence. This is totally wrong. Prima facie the sale deeds or 5 "ORIGINAL" any agreement or document is binding on the executants, it is clear that Zawadiel Mchome did not execute the deed and so he was not a party to it, and cannot be made to be bound by the agreement to which he is neither a party nor executed it. If the respondent wanted to enforce the agreement he should have sued Fumbuka, the person who executed the deed. -For-th-e~above -stated- reesens, ~the-appeal-is- meritorious,. Lt _is hereby allowed. The decision of the District Land and Housing Tribunal is quashed and set aside. The appeal is allowed with costs. 30TH APRIL, 2019 6