Sharifa Habibu vs Mohamed Juma Ali & Others (Civil Appeal No. 445 of 2021) [2024] TZCA 1144 (25 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: NDIKA. J.A.. GALEBA, J.A.. And MGEYEKWA, 3.A.) CIVIL APPEAL NO. 445 OF 2021 SHARIFA HABIBU (as legal personal representative of the Estate of the late Habibu A LLY ) .................... ........................ APPELLANT VERSUS MOHAMED JUMA ALI.................................................................. 1 st RESPONDENT MWINCHANDE SHABAN RAMADHANI..................................2 nd RESPONDENT ASHA AMAR AW ADHI................................................................3 rd RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania (Land Division) at Dar es Salaam) fMallaba J.^ dated the 9th day of August, 2019 in Land Appeal No. 45 of 2015 JUDGMENT OF THE COURT 1st November & 25th November, 2024 MGEYEKWA. 3.A. The main issue of controversy between the parties to this appeal is the ownership of a parcel of land described as Plot No. 657, Block 31 (the suit property) situated at Kigamboni within Dar es Salaam Region. The material background and essential facts of the matter as obtained from the record of appeal indicate that the alleged owner of the suit property was the late Habibu Ally who passed away in 1987 when the deceased's daughter Sharifa Habibu was three years old. After the demise of Habibu

Ally, in 2007, the appellant was appointed by the Primary Court of Kigamboni via Probate and Administration Cause No. 64 of 2007 to administer his estate. The appellant later learnt that the first respondent had unlawfully sold the suit property to the second respondent, who subsequently transferred it to the third respondent in 2008, without her knowledge or consent. By virtue of being appointed administratrix of the estate of the late Habibu Ally, the appellant instituted a suit against the respondents. The appellant prayed, among others, for a declaration that she was the lawful owner of the suit property and for eviction of the third respondent from the suit property. In their written statements of defence, the respondents disputed the appellant's claim. The first respondent argued that the third respondent is the rightful owner of the suit property, having purchased it from Nyamkongo Said. The second respondent claimed to have bought the suit property from Habibu Ally, but later he discovered that it belonged to Nyamkongo Said, who sold it to the third respondent. The third respondent maintained that the property is not part of the late Habibu Ally's estate, as she had purchased it directly from Nyamkongo Said. After hearing the evidence from both parties, the District Land and Housing Tribunal (the DLHT) concluded that the appellant did not have

ownership rights to the suit property, resulting in the dismissal of the suit with costs. Undeterred, the appellant appealed to the High Court. After hearing both parties and analysing the evidence presented, the learned Judge concluded that the appellant's claim was doomed to fail. As a result, the appeal was dismissed on 9th August, 2019. The High Court decision has riled up the appellant that she has now approached the Court with ten (10) grounds of appeal, which can be paraphrased as follows: -

1. That the firs t appellate court erred in law and fa ct by holding that the judgm ent and proceedings in Crim inal Case No, 155/2021 between R v. K ib ib iHassan and others a t the D istrict Court o f Temeke could not a ssist the appellant in determ ining ow nership o f the disputed property.

2. That the firs t appellate court erred in iaw and fa ct fo r not evaluating exhibit P I to prove that the su it properly belonged to the late Habibu Ally\ a fa ct which was adm itted by the 1st and 2 ld respondents.

3. That the firs t appellate court erred in iaw and fa ct fo r not corroborating exhibits P2 and P3 tendered by PW1 regarding the sale o f the disputed land to the 3 d respondent to prove that it is the sam e K ib ib i Hassan who so ld it ille g a lly to the 3 d respondent

4. That the firs t appellate court erred in law and fa ct by holding, that failu re to jo in K ib ib i Hassan as a p arty before the D istrict Land and Housing Tribunal, was fatal.

5. The firs t appellate court erred in iaw and fa ct fo r not properly evaluating the evidence o f PW1 and PW2, which is why the sale agreem ent on the disputed property was not tendered a t the tria l tribunal.

6. That the firs t appellate court erred in law and fa ct fo r holding that PW 2 ought to have reported to the p olice the action o f the 1st respondent who took the sale agreem ent in respect o f the su it property and failure to do so was fatal.

7. That the firs t appellate court erred in law and fact to confirm that the evidence adduced by PW2 was hearsay evidence.

8. That the firs t appellate court erred in law and fa ct in holding that the 3 d respondent had docum ents o f title and sale agreem ents that were never proved, tendered, and adm itted in accordance with the iaw.

9. That the firs t appellate court erred in law and fa ct by not ordering the 3 d respondent to surrender the disputedproperty to the appellant because the 3 d respondent d id not tender any docum ent to prove the purchase o f the su it property fo r the court to order the 3rd respondent to possess o r vacate from the disputed property.

10. That the firs t appellate court erred in law and fa ct fo r jo in in g grounds o f appeals and thereby fa ile d to address them properly in accordance with the law.

When the appeal was placed before us for hearing, the appellant was represented by Mr. Silas Adam Nziku, learned advocate, the second respondent had the legal services of Mr. Ramadhani Chaurembo, learned counsel, and the third respondent enjoyed the legal service of Mr. Philemon Raulencio, learned counsel. The first respondent, who was duly served with the notice of hearing, did not enter appearance in Court. Mr. Nziku beseeched us to invoke the provisions of rule 112 (2) of the Tanzania Court of Appeal Rules, 2009, and order that the appeal proceed in the absence of the first respondent. We acceded to the prayer and allowed the parties to argue the appeal ex parte against the first respondent. After the appeal was filed, the learned counsel for the appellant submitted written arguments. In contrast, Mr. Raulencio opted not to file written submissions but instead chose to present his arguments orally whereas Mr. Chaurembo, learned counsel for the second respondent abstained from making any submissions for reasons that were not obvious to us. Upon taking the floor to expound on the grounds of appeal, Mr. Nziku, learned counsel abandoned the tenth ground of appeal and combined the first and fourth grounds of appeal together for the reason

that the complaints were interrelated. The rest of the grounds were argued separately. With regard to the first and fourth grounds of appeal, the issue in controversy is the failure of the first appellate court to consider the outcome of the criminal case in the land dispute. Mr. Nziku argued that the second respondent and one Kibibi Hassan conspired fraudulently to sell the suit property. Mr. Nziku referred us to exhibit P3 and contended that it was evident that there were actions of fraud before the transfer of the suit property to the third respondent. He criticized the reasoning of the learned Judge by asserting that the conclusion was flawed. Submitting on the second ground of appeal which is a complaint that the first appellate court failed to evaluate the sale agreement, Mr. Nziku spiritedly argued that the sale agreement (exhibit PI) details the process through which the first respondent sold the property to the second respondent. To support his submission, he referred us to page 161 of the record of appeal. The learned counsel further argued that the High Court misdirected itself to call for additional evidence while the first and second respondents admitted that the suit property belonged to the late Habibu Ally. He contended that had the first appellate court properly assessed the evidence of PW1, PW2, and exhibit P3, it would have concluded that the property belonged to the late Habibu Ally.

Turning to the third ground, Mr. Nziku faulted the High Court Judge for failure to appreciate the exhibits P2 and P2 corroborate the evidence on record. He claimed that the signature of the late Nyamkongo Said appearing on exhibit P2 was forged/ which means that exhibit and the transfer deed were unlawfully obtained. Based on this argument, he asserted that the third respondent had fraudulently acquired the suit property. To buttress his contention, he referred us to pages 179 and 180 of the record of appeal. In conclusion, he argued that, due to the invalidity of the third respondent's purchase, the High Court should have recognized the appellant as the lawful owner of the suit property. With regard to the fifth ground of appeal, Mr. Nziku threw a scathing attack on the learned Judge for failing to consider the admission evidence provided by the first and second respondents. He submitted that the failure of the first respondent to submit the sale agreement was critical, as highlighted by the first appellate court, but, astonishingly, it ignored the essence of the first respondent's admission that he took the sale agreement from PW2. To support his argument, he referred us to pages 135 and 136 of the record of appeal. On the sixth ground of appeal, the learned counsel for the appellant took exception to the High Court Judge's reasoning that PW2 was required to report to the police her allegations that the first respondent forcefully

took the sale agreement from her. It was the appellant counsel's further contention that the High Court holding that the first respondent took the sale agreement by force was not an issue. What was in issue was that the first respondent used the same sale agreement to sell the suit property to the second respondent which means that the late Habibu Ally's sale agreement was in place. He insisted that the admission of the first respondent weakened the third respondent's case. To support his argumentation, he referred us to page 193 of the appeal record. Regarding the seventh ground of appeal, Mr. Nziku disputed the learned Judge's holding that PW2's evidence was hearsay. He relied on sections 61 and 65 of the Evidence Act Cap. 6 (the EA) in support of the holding thatPW2 evidence was direct evidence. He clarified that PW2 was informed by her late husband that he was the lawful owner of the suit property and, after his passing, she kept the sale agreement. Moving to ground eight of the appeal, the learned counsel for the appellant took issue with the High Court's findings that the third respondent had a document of title and sale agreement while the same was not tendered at the trial tribunal to prove her purchase of the suit property and transfer of the right of occupancy in her favour. Reinforcing his argumentation, he referred us to pages 217 to 222 of the record of

appeal and stressed that exhibit P2 does not show if the suit property was registered in her name. On the last ground, the learned counsel contended that the High Court Judge erred by consolidating the grounds of appeal. He referred us to grounds nine and ten, and argued that the High Court did not state the reasons for its decision and it did not evaluate the evidence of PW1, DW1, and DW2. In conclusion, he urged the Court to quash and set aside the first appellate court's judgment and decree with costs. On his part, Mr. Raulencio submitted in favour of the High Court Judge arguing that there was nothing blemished in the decision and implored us to dismiss the appeal. Ground one and four were argued together, where Mr. Raulencio contended that the High Court decision was sound and reasoned. The counsel referred the Court to pages 135 and 141 of the record of appeal and asserted that what transpired in the criminal case could not vitiate the land case. Mr. Raulencio contended that the appellant was required to prove her case. Expounding, he argued that the appellant is the one who alleged that she was the lawful owner of the suit property, thus, she had the burden to prove her allegations. It was his argument that, in the present case, the appellant did not discharge her duty to prove her ownership the suit property.

The learned counsel forcefully countered the argument that the suit property belonged to the appellant's late father who bought it from Nyamkongo Said. He argued that the appellant failed to present any sale agreement proving that her father purchased the it from Nyamkongo Said. He added that, there were no witnesses to the signing of the sale agreement, and the appellant neither identified anyone who witnessed the sale agreement nor specified where the sale took place. Mr. Raulencio continued to argue that the appellant cannot build her case on the weaknesses of the third respondent's case or the criminal case to claim lawful ownership of the disputed property. He asserted that exhibit P2 which is the Transfer of Right of Occupancy proves that the suit property is in the hands of the third respondent, and as per the Certificate of Title, the first owner of the suit property was Nyamkongo Said. He added that the title was transferred properly to the third respondent. Thus, he argued that the presumption operates in favour of the third respondent as a registered owner. The learned counsel for the third respondent countered the argument that the first respondent took the documents of ownership from the appellant's father, and argued that the appellant had failed to substantiate her claims or tender any loss report to prove that the said document had gone missing.

Mr. Raulencio's grounds two and three were argued conjointly, He argue that the appellant had significantly failed to establish her ownership of the suit property. He further unveiled that exhibit PI which is a purported sale agreement does not refer to the appellant's ownership of the suit property, but it reveals that the first respondent sold the suit property to the second respondent. According to the learned counsel for the third respondent, for the appellant to succeed in her claim, she had to prove that her late father bought the suit property, which was not done. On grounds number five and six which were also argued conjointly, the learned counsel valiantly contended that the High Court's decision was correct, as it rightly concluded that PW2 was obligated to report the loss of the sale agreement to the police. He continued to argue that the first appellate court was right to question the credibility of PW1 and PW2 because some facts they testified about were unclear. He clarified that the late Habibu Ally passed away in 1987, and the appellant alleged that the first respondent took the deceased's documents after a lapse of twenty-three (23) years without adducing any good reasons for their delay in instituting a case in court. Therefore, it was his argument that these grounds ought to fail. Concerning the seventh ground, the learned counsel strongly opposed PW2's evidence and argued that she did not adduce evidence to

prove that the appellant is the lawful owner of the suit property. He added that PW2 did not witness the signing of the sale agreement between the late Habibu Ally and the late Nymakongo Said. As such, he maintained that the appellant's evidence was hearsay and, therefore, unreliable. Briefly addressing the eighth ground, Mr. Raulencio defended the High Court's decision, arguing that it was flawless. He further explained that the third respondent had tendered exhibit D l, and under the circumstances of the case, she bore no burden to prove her ownership. On the final ground, Mr. Raulencio argued that the High Court addressed all the grounds of appeal and provided reasons for consolidating them. He bolstered his argument by referring us to pages 131 and 132 of the appeal record and explained that the consolidated grounds were interconnected and based on the same facts and reasoning. The learned counsel strongly supported the High Court's decision, arguing that, in the interest of justice, the court rightly ordered additional evidence to in order to have a comprehensive mastery of the case. On the strength of the above, Mr. Raulencio beckoned upon us to dismiss the appeal with costs. In a short rejoinder, the learned counsel for the appellant was not swayed that his counterpart's arguments had any semblance of merit. He

was insistent that the appellant proved her case, thus, her appeal should be allowed. We will address the grounds of appeal in the same manner as presented by the learned advocate for the respondent. That is, by determining the first and fourth grounds conjointly, the same will apply to the second and third grounds, fifth and sixth grounds and we will determine the rest of the grounds separately. This appeal will stand or fall on one issue, whether the appellant discharged his burden of proof about ownership of the suit property. The gist of the complaint in the first and fourth grounds of appeal is that the appellant premised her case on the criminal proceedings before the District Court. At the centre of this grievance is the complaint is that the first appellate court erroneously held that the judgment and proceedings of the criminal case did not assist the appellant in proving her ownership of the suit property. We asked ourselves what was the relevance of the criminal proceedings in civil cases before the High Court. Our starting point in answering this question is to make reference to section 43A of the EA. For ease of reference, we undertake to reproduce it hereunder: "43A. A fin a l judgm ent o f a court in any crim inal proceedings shall, after the expiry o f the tim e lim it 13

fo r an appeal against that judgm ent or after the date o f the decision o f an appeai in those proceedings, whichever is the later, be taken as conclusive evidence that the person convicted or acquitted was g u iity or innocent o f the offence to which the judgm ent relates1 1 . The above provision of the law is clear, leaving no room for interpretation beyond its plain meaning. We have repeatedly addressed complaints of this nature. See Charles Cristopher Humphrey Richard Kombe t/a Humprey Building Materials v. Kinondoni Municipal Council, Civil Appeal No. 125 of 2016 [2021] TZCA 337, where the Court has been firm that the judgment emanating from the criminal proceedings is only relevant as it related to conclusive evidence that the accused was acquitted or convicted. Similarly, in the case of Jongo Mwikola v. Paulina Samson Ndawavya, Civil Appeal No. 344 of 2020 (unreported), the Court drew inspiration from the distinguished authors of commentaries in the works of Sarkar's Laws of Evidence, 18th Edition, M.C. Sarkar,S.C. Sarkar and P. C. Sarkar, published by Lexis Nexis and extractedan excerpt to the effect that, the order of the criminalcourt is admissible to prove acquittal, but the conclusions drawn are not binding. From the above findings, we agree with the High Court Judge's reasoning, which was based on the rejection of the ground of the appeal related to the criminal proceedings. That, the criminal proceedings were

not relevant to prove that the appellant is the lawful owner of the disputed property. It was upon the appellant to prove her ownership of the suit property, not otherwise. Therefore, we find these grounds of appeal to be without merit. We turn to the second and third grounds of the appeal, which essentially contest the High Court's factual findings that the appellant failed to prove ownership of the suit property. The appellant's counsel argued that the appellant legally owned the suit property and that no sufficient evidence was presented to prove that it belonged to the third respondent. In contrast, the third respondent's counsel contention was that it was the appellant who had a burden to establish her ownership of the suit property in the first place which burden she did not discharge. From the parties' submissions, we think, one issue only needs to be addressed in resolving these two grounds of appeal under consideration namely; whether there was sufficient evidence to establish the appellant's ownership of the suit property to the required standard. We are alive to the principle that the second appellate court, is only supposed to deal with questions of law. However, that position depends on the requirement that the finding of facts by the courts below were based on correct appreciation of the evidence in the record. The Court will only interfere with concurrent findings of fact if there has been a complete 15

misapprehension of the substance, nature, and quality of the evidence. This position was well stated in the cases of Wankuru Mwita v. Republic, Criminal Appeal No. 219 of 2012, and North Mara Gold Mine Ltd v. Emmanuel Mwita Magesa, Civil Appeal No. 271 of 2019 (both unreported). In the latter case, the Court held that: "An appellate court, like th is one, w ill only interfere with concurrent findings o f fa ct oniy if it is satisfied that "they are on the face o f it unreasonable or perverse" leading to a m iscarriage o f ju stice, or there has been a m isapprehension o f evidence o ra violation o f som e principle o f law ." Applying the above principle to the instant appeal, we hold that there was no misapprehension of the evidence. It is a well established principle that, in civil cases such as this one, the burden of proof rests on the party who asserts existence of certain facts, and the burden of proof must be discharged in such a way that a specific standard is attained. That standard required in civil matters is on a balance of probabilities, known as proof on the preponderance of probability under section 3 (2) (b) of the EA. If a party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden shifts to the other party, who will fail unless sufficient evidence is adduced

to rebut the presumption. The court makes its decision on the balance of probabilities, and this is the standard of proof required in civil cases. In the case at hand, the appellant is the one who alleged that she had an interest in the suit property, thus, she bore a burden of proof to prove to the required standard, the claim she made. We have scrutinized the record of appeal and found on page 177 of the record of appeal, that the appellant claimed that her father acquired the suit property from Nyamkongo Said. However, she did not adduce any documentary evidence in respect of the said transaction. The appellant's counsel, in his written submissions, urged us to consider exhibits P2 and P3 as evidence that the appellant is the lawful owner of the suit property. However, in our view, we find that these exhibits cannot be relied upon to support the appellant's claim of ownership of the property, as they do not establish that the late Habibu Ally was the rightful owner of the property. In the absence of the sale agreement or any other cogent documentary evidence which shows that the suit property belonged to Habibu Ally, the conclusive finding is that the appellant failed to prove her case. Therefore, these grounds crumble. With respect to the fifth and sixth grounds of appeal, the appellant's complaint is that the first appellate court did not properly evaluate the evidence of PW1 and PW2 for failure to tender the sale agreement of the 17

suit property. These grounds will not detain us. As mentioned earlier, the appellant was required to prove her case. In this case, the appellant in her testimony relied on exhibit PI to support her claim. However, as alluded earlier, exhibit PI does not substantiate her claim of ownership over the suit property. Instead, it merely shows that the late Habibu Ally sold the property to Mohamed Juma Ali. Therefore, we agree with the learned Judge's conclusion that the appellant's assertion that her late father acquired the suit property through a sale agreement which was never tendered in court, is insufficient to establish her father's and concequently her ownership. Equally, the first appellate court considered the evidence on record. At pages 135, 136,140 and 144 of the record of appeal, the first appellate court analysed the evidence of PW1, DW1, exhibits P2 and P3, and the same was heavily relied upon by the High Court to reach its decision. It provided reasons for its decision, which were sufficient to conclude that the appellant failed to prove her case that the suit property belonged to the late Habibu Ally. It is common ground that the success of the appellant's case does not depend on the credibility of the respondents. As earlier mentioned, the law is clear that, the the burden only shift to the defendant after the plaintiff has discharged his. In the instant matter, the burden of proof on 18

the appellant was not discharged to the required standard. This principle was emphasized in the case of Paulina Samson Ndawavya v. Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 and Agatha Mshote v. Edson Emmanuel & Others, Civil Appeal No. 121 of 2019 [2021] TZCA 323. In Paulina Samson Ndawavya (supra), the Court held that: "... In our view, since the burden o f proof was on the appellant rather than the respondent, unless and u n til the form er had discharged hers, the credibility o f the respondent was irrelevant. It is thus our firm view that the appellant's criticism against the learned tria l Judge is, with respect, w ithout any justification and so, ground one is held to be devoid o f m erit..." Therefore, grounds five and six lack merit. The seventh ground, relates to hearsay evidence. In this respect, the appellant's complaint is not backed by the record. We are mindful that section 62 (1) of the EA which prohibits reliance on hearsay evidence. In Sarkaron Evidence, 14th Edition, at page 39, the author emphasizes the importance of direct evidence, which is that the witness personally reports having seen or heard through their own senses. We note that at page 56 of the record of appeal, PW2 testified that Habibu Ally told someone that he bought the suit property from Nyamkongo Said.

Similarly, on page 57 of the appeal record, during cross- examination, PW2 admitted that she did not know when her late husband, Habibu Ally, purchased the suit property from Mohamed Juma. Moreover, PW2 was not a witness to the sale of the property between the late Habibu Ally and Nyamkongo Said. As such, we are of the view that the testimony of PW2, who testified in the appellant’s favour, was pure hearsay. Her evidence lacked valid proof of ownership, thus unreliable under the law. This ground has no merit, and we hereby dismiss it. Next for our consideration is the eighth ground of appeal which is the complaint that the third respondent did not tender any document to prove the purchase or transfer of the right of occupancy. As earlier mentioned, the weakness of the case of the adverse party does not make the appellant the lawful owner. That, since the appellant failed to discharge its burden of proof that she is the lawful owner of the suit property, then the evidence of the third respondent cannot be relied upon to decide in her favour. See North Mara Gold Mine Ltd v. Emmanuel Mwita (supra). Consequently, we are not compelled to interfere with the concurrent findings of the lower courts. From what we have stated above, ground nine has no merit and should fail. We dismiss it accordingly.

On the final ground, the appellant's complaint is that the High Court Judge erred by consolidating the grounds of appeal. We wish to underline here that, judgment writing is a matter of style, where every magistrate or Judge has his or her own. What is pertinent is the judgment to contain the summary of facts as presented by both parties, critical analysis of the facts about the law, decision, and reasons for the decision arrived with a clear conclusion in terms of Order XX rule 4 of the Civil Procedure Code Cap. 3. This has been well elaborated by the Court in a plethora of authorities. See amongst others, The Director of Public Prosecutions v. Josephat Joseph Mushi and Another, Criminal Appeal No. 471 of 2019 (unreported) and Amiri Mohamed v. Republic [1994] T.L.R. 138. In the latter case, the Court held that: "Every m agistrate o r Judge has got his or her own style o f composing a judgm ent, and what vitally m atters is that the essential ingredients sh all be there, and these include critica l analysis o f both the prosecution and the defence." A quick glance at pages 143 to 147 of the appeal record, it transpired that the first appellate court considered all grounds of appeal. As rightly submitted by the learned counsel for the third respondent the consolidated grounds were interrelated this were determined together. We are, therefore, satisfied that the first appellate court correctly

reevaluated the evidence adduced at the trial and arrived at the correct conclusion. Therefore, the learned Judge cannot be faulted. Ground nine is equally without merit. We dismiss it. The net result is that this appeal is dismissed on all grounds of appeal with costs. DATED at DAR ES SALAAM this 19th day of November, 2024. G. A. M. NDIKA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered 25th day of November, 2024 in the presence of Ms. Milela Mbilinyi holding brief for Mr. Silas Nziku, learned Counsel for the Appellant, Ms. Zarina Nassoro holding brief for Mr. Philemon Raulencio, learned Counsel for the 3rd Respondent and in the Absence for first and second Respondents is hereby certified as a true copy of the original