Evarist N. Maembe vs Ozen Chapita & Another (Civil Appeal No.210 of 2018) [2023] TZCA 17596 (5 September 2023)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWAMBEGELE. 3.A.. KOROSSO. J,A, And MWANDAMBO. J.A.l CIVIL APPEAL NO. 210 OF 2018 EVARIST N. MAEMBE ................................................................. APPELLANT VERSUS OZEM CHAPITA ........................................... . .................... . 1 st RESPONDENT KAENGESA ENVIRONMENTAL CONSERVATION SOCIETY .............. . ....................... . ...... 2 nd RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania (Land Division) at Sumbawanga) (Mgeta, 3.) Dated the 19th day of September, 2017 in Land Case No. 4 of 2014 JUDGMENT OF THE COURT 8* February & 5th September, 2023 KOROSSO. 3.A.: The appeal arises from Land Case No. 4 of 2014 which was instituted by the appellant in the High Court of Tanzania at Sumbawanga. In that civil action, the appellant claimed various reliefs including a declaration that the appellant is the legal owner of Plot No. 6 Block 8, Nyerere Road, Sumbawanga (the suit premises); a declaration that the 2n d respondent holds the suit premise only as a licensee of the appellant; vacant possession and handing over of the suit premises to the appellant; general damages to be assessed by the court; costs of the suit and any i

other relief(s) that the court may deem proper to grant. The respondents in their joint written statement of defence (WSD) strongly disputed the appellant's claims contending that the appellant never negotiated with them for the purchase of the land and that he was a mere guardian of the 2n d respondent and not its founder. Upon hearing the evidence from the parties, the trial court found judgment in favour of the respondents (defendants then) convinced that their case was proved on balance of probabilities and dismissed the suit by the appellant (plaintiff then). The brief facts of the case giving rise to the instant appeal discerned from the adduced evidence are that; the appellant, Evarist Nakwambela Maembe (PW1) who claimed to be the lawful owner of the suit premises allegedly having purchased the same in 2001 from Moshi University College of Cooperative and Business Studies (the MUCCOBS) upon payment of Tshs. 3,000,000/=. According to appellant, he and the 1st respondent, were cousins and co-founders of the 2n d respondent, Kaengesa Environmental Conservation Society (KAESO) and sometimes in 2001, the appellant negotiated with MUCCOBS to purchase the suit premises for his own use for Tshs. 3,000,000/= and the initial payment of Tshs. 1,000,000/= was paid to its Principal Officer at the Sumbawanga branch. 2

Thereafter, the appellant sold his house in Dar es Salaam and used the proceeds therefrom to pay the purchase price for the suit premises. He forwarded Tshs. 2,000,000/= to his son, Luzango Evarist Maembe (PW3), who was directed to handover the money to the 1st respondent so that he can pay MUCCOBS to purchase the suit premises. A document to record the handover of Tshs. 2,000,000/= from PW2 to 1st respondent titled "kupokea fedha za kulipia ununuzi wa nyumba ya Chuo cha Ushirika Rukwd' unofficial translation being "receipt o f money for the purchase o f Cooperative Coiiege Rukwa housd’ was tendered and admitted as exhibit PEI. The 1st respondent then paid the Tshs. 2,000,000/= to MUCCOBS for purchase of suit premises in the name of the 2n d respondent and not the appellant. The final payment forwarded by PW1 through 1st respondent was also paid to MUCCOBS in the name of the 2n d respondent. The receipts issued by MUCCOBs for the purchase were in the name of the 2n d respondent and not PW1. At the time the suit premises were purchased, PW1 permanent residence was in Dar es Salaam. According to PW1, the suit premises remained in the hands of the 2n d respondent as a licencee upon an oral agreement between them. PWl's evidence regarding the purchase of the suit premises was supported by PW2, Maria Urembo Maembe (PW3) and Paul Fidel Mwandenje (PW4). 3

PW4, the Tutor Incharge at MUCCOBS stated that for them they only recognized PW1 and not the 2n d respondent as the purchaser of the suit premises since the 2n d respondent who had been a tenant of the suit premises prior to the sale was in arrears of rental fees payment at the time. PW4 stated that PW1 had introduced the 1st respondent as his agent to purchase the suit premises but he did not explain how the receipts issued by MUCCOBS for the said purchase were in the name of the 2n d respondent. On the respondents' side, three witnesses testified. Ozem Chapita, the 1st respondent (DW1) while conceding to the fact that the money to purchase the suit premises came from PW1, contended that it was a loan to the 2n d respondent to enable them to purchase the suit premises. The minutes showing when the 2n d respondent Board of Directors resolved to get a loan from PW1 was tendered and admitted as exhibit D l. The purchase price of Tshs. 3,000,000/= for the suit premises is also acknowledged by DW1 as shown in exhibit PEI. DW1 stated that when invited to Dar es Salaam in 2013, he failed to appreciate PWl's attempt to seek for investors for the suit premises without the approval of members of the 2n d respondent of such initiative, and the suggestion by PW1 for his name to appear in the receipts as the purchaser of the suit premises instead of the 2n d respondent. This is because for the 1st

respondent the 2n d respondent was the purchaser of the suit premises and not the appellant. DWl's assertion that it was the 2n d respondent who purchased the suit premises was supported by the evidence of Edward Mwakisisile (DW2), an internal auditor with MUCCOBS and Zeno Noel Nkoswe (DW3). DW2 claimed that their records showed that it was the 2n d respondent who had purchased the premises and not the appellant. DW3, a member of the 2n d respondent who was present when the 1st respondent paid for the suit property, stated that the sale and purchase of the suit premise was by the 2n d respondent through the 1st respondent per the appellant's directives. In its determination of the suit, the trial court was guided by two issues; one, as between the parties in the suit, who is the lawful owner of the house in dispute situated at plot No. 6 Block 8 Nyerere Road Sumbawanga; and two, to what reliefs, if any are the parties entitled to. The trial court was of the view that taking account of all the presented evidence by both parties, there was no evidence that the 1st respondent in the transaction for the purchase of the suit premises was acting on behalf of or as an agent of the appellant and thus found the 2n d respondent to be the lawful owner of the suit premises. The trial court entered judgment in favour of the respondents and dismissed the suit. 5

Aggrieved, the appellant has filed an appeal to this Court through a memorandum of appeal comprising six grounds which essentially give rise to the following two points of grievance faulting the trial court for; one, failure to properly evaluate the evidence of DW1, DW3, PW1 and exhibit D2 with regard to the contents and essence of exhibit PEI; and two, improper evaluation of evidence leading to a wrong conclusion that the appellant failed to discharge his burden of proof to entitle him to a judgment in his favour. At the hearing before us, the appellant was represented by Mr. Emmanuel Msengezi, learned Advocate whereas the 1st and 2n d respondents had the services of Mr. Mathias Budodi. Both learned advocates had filed their written submissions respectively, in support and in opposition to the appeal, which each fully adopted. According to Mr. Msengezi expounding on grievance number one, he contended that the bone of contention lies in the interpretation of exhibits PEI and PE2 and their effect on the ownership of the suit premises. The counsel faults the trial Judge for considering the defence evidence only and failing to properly evaluate the appellant's evidence. The learned counsel contended that the evidence of DW1 found at pages 100-101 of the record of appeal was essentially an admission that he received the

money recorded in exhibit PEI in his personal capacity and not on behalf of the 2n d respondent to purchase an office for them. He thus argued that the trial Judge failed to consider the said admission when analyzing the evidence for the appellant hence the wrong conclusion arrived at resulting into miscarriage of justice. He invited the Court to reverse findings on the authority of the Court's decisions in the case of Director of Public Prosecution v. Jaffari Mfaume Kawawa [1981] T.L.R. 149 and Alfeo Valentino v. Republic, Criminal Appeal No. 92 of 2006 (unreported). The learned counsel further expressed dissatisfaction with how exhibit PE2 was treated arguing that the trial court took it as a conclusive contract of disposition of property ignoring the evidence of PW1, PW2 and PW4 which explained the circumstances that led to the issuance of payment receipts in the name of the 2n d respondent. That the trial court did not consider that payment of money is not a contract and the relevance of oral evidence on such matters citing an excerpt from Sarkar on Evidence 15th Edition, 2002, Reprint, Wadwa Nagpur P. 1271 for the preposition that, "... A receipt for payment o f money is not a contractor a grant or disposition o f property and orai evidence o f its contents is adm issibie...” The learned counsel thus urged us to find that the trial court's finding on this was a misdirection and misapprehension of the evidence 7

before it on the matter especially since the same criteria of assessment of the evidence was not used for the defence witnesses. Similarly, he argued that there was also a misapprehension of the essence of exhibits PE3 and D2 as being conclusive on who was the actual purchaser of the suit premises especially since the trial court failed to recognize that exhibit D2 was a reply to the appellant's protest letter. With regard to grounds two, three, four and five which were argued conjointly, the learned counsel for the appellant asserted that the four grounds are essentially rolled in point of grievance number two. He contended that the contents of a document are proved by the document itself as provided by sections 63 and 64 of the Evidence Act, (the Evidence Act). He argued thus that oral evidence cannot prove terms of a contract, grant or any other disposition of property where it has been reduced to a form of document as per sections 100(1) and 101 of the Evidence Act. According to Mr. Msengezi, the trial court's finding amounted to amending the document by the oral evidence of DW1 and DW3 even though it recognized that exhibit PEI did not state who bought the suit premise. He contended further that, while the evidence of PW1 was rejected, the trial court accepted and imported extraneous evidence adduced by DW3 into exhibit PEI, as discerned from its observation that the purpose o f 8

purchasing the su it prem ises to be used as the office o f KAESO." which were not in exhibit PEI. The learned counsel for the appellant contended that the trial Judge contravened the cardinal rule of evidence and gravely occasioned serious injustice for the appellant especially since the appellant's wishes were clearly stated by PW2, PW3 and PW4 and his formal instruction to DW1. He contended further that when DW1 was cross-examined, he conceded that exhibit PEI did not show that he received the money to pay for the suit premises through PW2 in the name of the 2n d respondent but in his own name. Similarly, he argued that there is nowhere in the evidence of DW1 where he stated that he was acting as an agent of the 2n d respondent during the sale transaction. Instead, he argued, exhibit PEI shows that the 1st respondent was the agent of the appellant. He argued that PWl's evidence shows that the respondents were tenants at will or licensees to use the suit premises at the invitation of the appellant, a fact also corroborated by the evidence of PW3 and PW5. He argued that the settled position of the law is that once a person's licence to stay in one's land is revoked, the licencee is bound to give vacant possession unless otherwise agreed. He cited Registered Trustees of Holy Spirit Sisters Tanzania v. January Kamili Shayo and 236 Others, Civil Appeal No. 9

193 of 2015 (unreported) and Runda Coffee Estates Ltd v. Ujagar Singh [1966] EA 564 to cement his stance. Regarding the challenge on the trial court's analysis of evidence, the learned counsel for the appellant was particularly dissatisfied with what he contended as failure of the trial court to consider apparent inconsistencies in the evidence, particularly on two aspects. One, lack of clarity on whether the sum of money indicated in exhibit PEI was a loan or donation and whether there was an agreement concluded between the 1st and 2n d respondents. He argued that, DW1 was unclear on whether the said money was a loan or donation since he started by saying that members had resolved to get a loan from PW1 and then, he later stated that they sought assistance from PW1 while DW3 stated that PW1 donated the money to the 2n d respondent. Two, whilst the trial judge relied on exhibit D2 in his decision, there was no sale agreement produced by defence to prove the sale of the suit premises to the 2n d respondent. He also faulted the trial court for according value to exhibit D2 even though it was improperly admitted, and that it was the only document purporting to show the 2n d respondent's intention to purchase the suit premise by way of loan or donation from the appellant and thus it was improper to rely on such evidence to reject PW5's evidence on who purchased the suit premises. The learned counsel also challenged the 10

finding that the appellant failed to produce any other receipts to support his evidence that there was any other payment to the MUCCOBS for the 2n d respondent. He urged us to find the appeal meritorious and allow it with costs. On the respondents' side, Mr. Budodi responded in the manner submitted by the appellant's side. On the first grievance, he urged the Court to find no misapprehension of evidence by the trial court since DW2 testified that he received Tshs. 2,000,000/= from the appellant via his son (PW2) to purchase the suit premises for the 2n d respondent in his capacity as its chairman. He argued further that, in the alternative, even if it be taken that the 1st respondent received the money in his personal capacity, it is immaterial because what is essential to prove is the purpose of the said money which was proved by DW1 and DW3. The learned counsel contended that the respondents proved that the funds were to purchase the suit premises for the 2n d respondent. He was skeptical of the appellant's sincerity in his claims since he was aware of exhibit PE3 which shows the 2n d respondent as the purchaser of the suit premise and thus he cannot challenge its contents now while he was the one who tendered it in evidence. The learned counsel challenged the appellant's contention on the trial court's use of oral evidence to prove li

the contents of a document and argued that there was no oral evidence contradicting documentary evidence on the owner of the suit property. He further contended that, there was ample evidence to disprove the appellant's contention that the amount of Tshs. 2,000,000/= paid was for the purchase of the suit premises for him. He argued that had it been so, the appellant could not have taken too long a time to institute the suit. According to Mr. Budodi, there was also no amendment made to exhibit PEI and that exhibit PE2 authored by the appellant did not state that the payment of Tshs. 2,000,000/= to MUCCOBS was for buying a house neither for the appellant nor the 2n d respondent. He argued that considering that PW1, PW2 and PW3 are family members the only independent and credible witness is DW3, who is also a friend of the appellant. Therefore, according to the learned counsel, DW3's evidence is more reliable and it clarified the ambiguity regarding oral instructions from PW1 regarding the purpose of the money he handed to the 1st respondent through PW2. Mr. Budodi concluded stating that a careful scrutiny of the appellant's case demonstrates that his story is a manufactured one incapable of proving his case on balance of probabilities. Regarding alleged contradictions in the evidence presented at the trial, the learned counsel implored the Court to find no contradictions in 12

the evidence presented in the trial court, arguing that exhibit D1 was well corroborated by the testimony of DW1 regarding the payment and its purpose for the suit premises. On the propriety of admissibility of exhibit Dl, the learned counsel argued that even if that was the case as contended by the learned counsel for the appellant, the trial court did not rely on it in its decision. He argued further that as a matter of fact, it is the evidence of the appellant which was inconsistent and contradictory as found by the trial Judge, such as lack of clarity on how much money was paid for the purchase of the suit premises. Elaborating, the learned advocate submitted that while PW1 had stated that he had paid the initial amount in 1997, there was no proof on it as alluded to by his witness, PW4, let alone the fact that PW1 and PW4 contradicted themselves on the status of the suit premise's habitability. Since the inconsistencies were not accounted for, the learned counsel urged us to disregard the said evidence in line with the trial Judge's findings. On claims that the sale agreement was only tendered for identification purposes thus the purchase to the 2n d respondent was not proved, the learned counsel for the respondent argued that this assertion is misconceived since exhibit D2 was admitted without objection and that was sufficient to prove that the 2n d respondent is the one who purchased the suit premises. It was his further submission that since it was the 13

appellant who filed the suit in the trial court, he was duty bound to prove that he had purchased the suit premise for his own use. The other issue raised by the learned counsel for the respondents was failure of the appellant to prove the existence of the claimed premises; Plot No. 6 Block 8 located at Nyerere Road, Sumbawanga found in the appellant's pleadings since oral and documentary evidence showed that the 2n d respondent is the lawful owner and in occupation and use of Plot No. 2 Block "M" Nyerere Road, Jangwani area Sumbawanga as shown in exhibit PE3 and the evidence of DW2. In the absence of any witness to clarify the same, the learned counsel argued, renders the claimed plot's existence, unproven. He thus prayed that the appeal be dismissed in its entirety with costs. Having read and heard the submissions from both sides, we shall delve into determination of the appeal by addressing the main two points of grievances drawn hereinabove. The thrust of the complaints boiling down to dissatisfaction with the trial court for holding that the appellant failed to prove his claims. The trial court is faulted for failing to properly evaluate the evidence before it, improper application of the principle governing proof of a fact by way of documentary evidence by considering oral evidence and reliance on inconsistent evidence of the respondents to the detriment of the appellant's case. 14

This being the first appeal, the Court's duty is essentially one of re evaluating the evidence on record and where necessary, come up with its own conclusion as mandated by rule 36(l)(a) of the Tanzania Court of Appeal Rules, 2009 (the Rules). We find it apposite to highlight matters which we find are not controverted by the competing sides as also found by the trial court; One, that the suit premises were owned by the MUCCOBS prior to the purchase which gave rise to the case, subject of this appeal. Two, the appellant did give the 1st respondent the full amount in two installments to purchase the suit premises. At the time the suit premise was being sold, the 2n d respondent was a tenant therein and remained there thereafter, and three, the purchase price for the suit premise was Tshs. 3,000,000/=. We commence by addressing the concern raised by the learned counsel for the respondents in his submissions on the failure of the appellant to establish the existence of the plot he claimed to own in the plaint and the subject matter of this appeal, that is Plot No. 6, Block 8 Nyerere Road, Sumbawanga. Having examined the evidence on record from both sides, we do not find any merit in this contention. Evidence shows clearly that the suit premises involved plot 2 Block M Sumbawanga Municipality same as described in paragraph 4 of the plaint. We thus agree 15

with the learned counsel for the appellant that the description and details of the suit premises are non-issues in this appeal since both parties clearly understood the house whose ownership was under scrutiny, the suit premise. Next, we shall consider the main complaint, that is, whether the respondent proved his case to the standard required. It is a well- established position in civil suits that the burden of proof falls on the claimant and it is on the balance of probability, founded on the provisions of sections 110 and 111 of the Evidence Act, thus: "S. 110 - (1) Whoever desires any court to give judgm ent as to any legal right or lia b ility dependent on the existence o f facts which he asserts m ust prove that those facts exist (2) When a person is bound to prove the existence o f any fact, it is said that the burden o f proof lie s on that person. 5. I l l - The burden o f proof in a su it proceeding lies on that person who would fa il if no evidence a t a il were given on either side . " The record of appeal shows that, upon considering the evidence before it, the trial court warned itself on the burden of proof in civil suits before making its findings as found on pages 176-178 of the record. It found that the exhibits relied upon by the appellant, to exhibits PEI and 16

PE2 were only for the purpose of showing that the money the 1st respondent paid as the purchase price for the suit premises originated from the appellant and did not prove that he was the prospective purchaser/owner of the suit premises. The trial Judge found that there was nothing in the two exhibits signifying that the purchased premise was meant for the use of the appellant. Additionally, he found that it was only through oral evidence of PW1, PW2 and PW3 who were family members and PW4, that the appellant's claims that the payment was meant for his own use came to light through DW3, who witnessed the handover of the funds as recorded in exhibit PEI and testified that his understanding was that the money paid for the purchase of the suit premise was for the purpose of the office of the 2n d respondent. Upon revisiting the evidence on record, we find nothing to fault the findings of the trial Judge. The appellant did not prove his case on the required standard. Our perusal of the sale agreement and the corresponding receipts, exhibit PEI and PE2 have led us to the same conclusion. Although PW1 stated that the house was purchased for his personal use and supported by PW2, PW3 and PW4 that the sum of Tshs. 2,000,000/= paid to MUCCOBS by DW2 was for that purpose, the evidence of DW1 and DW3 clearly, outweighs that of the appellant on the intent and purpose of purchasing the suit premises. This is because, one, 17

the appellant did not account for his failure to call DW3 as a witness in support of his case on the instructions to the 1st respondent regarding the use of the suit premises for his personal use upon payment of the money. Two, considering the obtaining circumstances, no reasons were provided by the appellant on why having shown interest to purchase the suit premises at an early stage as stated by PW4, he did not send the purchase price directly to MUCCOBS or through his son whom he had sent to Sumbawanga. Three, there was no evidence by PW4 that in paying the purchase price for the suit property, the 1st respondent had done that as an agent of the appellant especially where the 1st respondent categorically denied having been an agent for PW1 during the sale transaction. Four, there was no document evidencing the purported sale transaction of the suit premises between MUCCOBS and the appellant. Five, exhibit D2 clearly shows that the suit house was purchased for the 2n d respondent. Six, there was no evidence proving existence of any agency relationship between the appellant and the 1st respondent. We thus are of the view that the appellant failed to prove on the balance of probabilities his claims of ownership of the suit premises as rightly found by the trial court. The foregoing will be sufficient to dispose of the appeal and thus there will be no need to consider and determine the remaining complaints. is

In the final analysis, we find no merit in the appeal and we dismiss it with costs. DATED at DAR ES SALAAM this 11th day of August, 2023. J. C. M. MWAMBEGELE JUSTICE OF APPEAL W. B. KOROSSO JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL The Judgment delivered this 5th day of September, 2023 in the presence of Mr. Emmanuel Msengezi, learned Counsel for the Appellant also holding brief for Mr. Mathias Budodi, learned Counsel for the Respondents, is hereby certified as a true copy of the original. R- w - Chaun9 u /*S 7 '• - “ ria V n C D I I T V D C m C T E

DEPUTY REGISTRAR COURT OF APPEAL