Metusela Mpuya vs Godi Simbi ((DC) Civil Appeal No. 15 of 1996) [1998] TZHC 2511 (30 August 1998)

IN THE HIGH COUR'r OF TANZANIA A'I" MBEYA ORIGHfaL JURISDICTION (Mbeya Registry) (::)C) CHTIL APPEAL NO. 15 O:F 1996 (:F'rom Cllunya District Court Civil Case N().,8/95) METUSELA MPUYA 000o0000000000DO;)Q01)0') .l\P?ELL.IU\IT Versus GODI SIMBI o Q O O O O O Q O O O O O O O O O O O O O o COO• O O RESPONDENT : ' JUDGEMENT The suit premise's sale as a house with a registered title deed of occupancy from the appellant Metusela s/o Mpuya to the :i-spondent Godi s/•·,SS.mbi has not been a dispute by either party_ What h,as been .in dispute is the sale/purchase price .. The appellant alleged that he s9ld it.for Shs•3000,000/-= out of which Sl1s.1,800,ooo/::: was paid ins:tantly an .. he remairtder Shs.1,200,000/:= was unpaid todte, hence his refusal to hand over the. house to the respondent, until the .final remainder sale price;:. •f'.:hs.1,200,000/;:: is paid. ,, The learned Mr. \Tbise advocate for the appelJ.ent had advanced this· argument by citing S,; 1 -: 1 of the Lsind Ordinance on which requires· consent of the President be fore a. sale of a. titled land c.:,_'l be completed. Under the ptinciple of ·the buyer beware the respondent should have first sought such eonsent to the trsnsaction tefore buying it. 'l'he transaction was therefoe, argued by the learn'2d Mro Hbiso, Advocate a null and void and that the respondent is enbtled to his refund of Tshso 1,8oO,OOO./=• there was further arguments of the learned Mr~ Mbise (Adv) that there was· no consesus of mind for the purchese price was not agreed upon and being a over man"l'Js one evidccice on.each size the burden of proof had not been proved by the respondent for hu.ving bourht the house at Shs.1,8oo,OOO/= rather than at Shso 3,00,000/==. For the respondent to prove his story he sl'Iould h;Jve called the other 2 ey6 witnesses Nyerere Shigela and Elias Mpemba who were pr-eaent at_ the time of the sale. The respondent's stance was that he bought it for Shs.1,8o0,000/= and the title deed was handed over .to him as proof of the completed saleo The learned Hr o Mu.shokorwa, Adrnca.te for the respondent has cited Sections 112 and 119 of the Evidence Act, 1967 which he said supported the respondent to the effect that it W8s upon ti'le appellant to prove that there was still Shs.1,200,000/= unpaid to hiin by the respondent as 1·emainder purchase price ( • 0 0 • /2

and that the possessor of the title deeds is the one who is deemed· to be the one owning the house. The learned Mr. Mbise counter £,rgu2d thnt th8 handing over of the title deed merely showed that he w1.s giv"'.-e it away as a secur·ity for the contract of sale and was as a proof of ◊W!.1ership.o Of course the one to give any f,:ecurity if there was any reminder purchase price unpaid .should h,we :::i:)en thG respondent who is alleg:ed by the appell,mt to have still owed him St.s.1,200,000/= as a reminder purchase price of the house. The Chunya District trial.court as presided over by the learned Mro N. M. Kaserero C3DM) believed the sworn testimony of th, respondent for him having bought the house for only Shs.1800 1 000/= rather than the sworn testimony of the appellant that he sold it for Shs .3 ,000 1 000/:. This verdict was quite correct because there was additional and corroborative teetimony ehowing thnt the c1ppellant h:mded over the title deed. Moreover, the mortgagor •f the house who were the source of the sale of the house by their dQeumentary evidence of Annexture P1 to the plaint confirmed that there was a sale of the house from the .1ppella.nt to the respondent . ~ warranting change of title from the original owner Leonard Kanna.a. to•· Godi Simbi through the appellant :.:: r;;puya. There is the further physical ... :! . dissappearance of the .,;ppellant-: from Mkwajuni for ov2r 6 · months· hich . corroborates by hi conduct that he was satisfied with his completiorl of the contract. Ii at on there was any remGinder purchase price bi- • Shs.1,200,00O/= unpaid @nd which ought to r_ave been p,lid ·by 23/12'3~~ · (within one months from 22/12/94) tb.0 appellant. would· not· h.Stve asc;nded t Dar es Salaam during that vi,ta'.l period of being paid the phs.1\200000/=. oe He should have been more keen to /p:;.csent in Mkwajuni to receive. the final ip,talment of the llcged rcm::dnde"r .Shs.1 j200,000/=. '.•· ' Whether that was a consent for the sa.le of the house by the President was not in issue in this trial and it is bound to be given after.all if this court decides that there was ;;:1 genuine sale and that the house lawfully belongs to the respondent., Af'ter all, the respcndent hinself·

. ha.d first bought the house inn. public auction just in July 21st, 1994.- Before the house was· changed into his nome it was sold to the respondent 4 months later on 22/1 'l/94.. The house therefore, if no presidential consent · fo'r the .first sale would not revert to the appellant for- he tot- had no such presidential consent for its. transfer from Ka.undo to hims.elf. It would revert to its titled name of Leow,rd K::m.anda., Tnis is the logical presumption of the nrg1.Iment of the bP.tter of the presider.tial consent to the transfer of title deed. ·· It ir.:I a mere exercise now for the t imc of changing the tit~e from Leon:;1rd Kin1:mda to the appellrmt or the respondent has not 6ome., •J .

3 There was no need for the respondent to tel1 the other persons Nyerere Shigeln tmd :8li3s Mpemb.::i w':l.n just went WG,,.t there to try to buy the house themselves and not -ss witnesses for· the tran.sBction. If the appellant thought they would h-we . adv:,ncec-' nis cau.se for h-:rvinr; heard him after a the house for Shs .3 ,OOO,OOO/= to the r3,spondent he was the one to call them. The house Wa.J lmrfully bought for '3hs.1,8o0,000/= which wss full :paid instantly. This a,:-.ipe.::11 is umeritous. It is dismissed with costs. JUDGE 30/8/98 I CERTIFY that this is a true- copy of the rigina:i. judgement . i ·, ,,, J. ) .... /\j,' DISTRIC REGISTRAR MBEYA