IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM

LAND APPEAL NO. 06 OF 2017

GEORGE WILLIAM GILLI……………………………………APPELLANT

VERSUS

BASLEY HATIBU MREMA……………………………… RESPONDENT

(From the Judgement of Kinondoni District Land and Housing Tribunal)

(Lung’wecha- Esq, Chairman.)

dated 10th April 2017
in
Land Application No. 343 of 2013

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JUDGEMENT
10th December 2020 & 9th February 2021

A.K Rwizile. J

Background facts leading to this appeal are that, appellant herein was the
owner of a suit land and he sold the same to the respondent. The parties
entered into two sale agreement in November, 2009. One of the
agreements shows that, the appellant had sold 2500sqm of land for the
sum of 15,000,000/= and another agreement shows another 2500sqm
sold for sum of 1,000,000/=. Appellant alleged that he only sold 2500 sqm
to respondent for 16,000,000/= he claimed that having two sale
agreements was designed to evade tax at ward executive office.

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These facts differ from those of the respondent who claimed to purchase
whole of the suit land measuring 5000 sqm.

It was also alleged that, in 2013 the appellant obtained a right of

occupancy on the suit land in his name despite the fact that the same
land was sold to the respondent. This is when the dispute between the
parties arose. When, they did not reach a consensus on the matter, the
appellant decided to file Land Application No. 343 of 2013 before the
tribunal seeking a recovery of a part of land which he claimed was not
part of the sold land. The case was heard and dismissed for lack of merit.
Appellant was aggrieved by the decision; he is now before this court to
appeal on the following grounds;

1. The honourable court erred in law and fact in holding that, the
applicant failed to prove his case without due regard to the evidence
on record and appellant’s final submission
2. The honourable court erred in law and facts in holding that, the
appellant sold his whole piece of land which measures 6772 sqm
without due regard to the evidence on record.
3. The honourable court erred in law and in facts in holding that the
respondent has proved his counter claim
4. The honourable tribunal erred in law and in fact when it enforced a
contract which is marred by uncertainty and illegality for the benefit
of the respondent

He therefore asked this court to set aside the judgement of the tribunal
and that the sale agreements be declared illegal and unenforceable. The
respondent be ordered to surrender the tenancy to the appellant and cost
of this appeal be awarded in favour of the appellant.

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At the hearing the appellant was represented by Mr Mfalla learned
advocate while the respondent enjoyed the services of Mr Masumbuko
learned advocate. In support of the appeal Mr Mfalla submitted on ground
one to three together that, the tribunal did not take into consideration the
evidence and submission of the appellant brought before it. He said, the
record shows the suit land has a total of 5000sqm, he added that the
dispute arose when the appellant claimed to have sold 2500 sqm to the
respondent and not 5000 sqm. He asserted that, parties used two
different contracts in respect of the same area of 2500 sqm, which the
appellant wanted payment of 15,000,000/= while all taxes to be borne by
the respondent.

It was his submission further that, it was the contract of 1,000,000/=

which was presented at the local government. But to his surprise, he said,
the respondent presented the contract of 15,000,000/= when they had
agreed not to do so. According to him, that was the intention of the
respondent to show that he had bought two pieces of land measuring
2500 sqm each. The learned advocate argued that, the same defeats logic
to think that a plot of 2500 sqm could be worth 1,000,000/=. He said, the
same could not be true that is why he claimed that, neighbours were the
same.

His further submission was that, the decision of the tribunal mentioned
that, respondent got 6772 sqm which he said, they did not know where
are the same coming from. He said, the agreement between the parties
were for 2500 sqm, so he claimed, the decision was erroneous. When
submitting on ground four, Mr. Mfalla argued that, there is no dispute that
the two contracts measuring the same are illegal and unjust. He said, the
same cannot be tendered in court.

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He added that the parties avoided tax with these contracts. According to
him, the respondent refused to survey his plot for a right of occupancy
since, the land was already surveyed. He said further that, the respondent
obtained services of Mr Lamwai to confuse and defeat justice by writing
a letter that the respondent bought 5000sqm. He cited the case of
Zakaria Barie Bura vs Theresia Marie John Muberu [1995] TLR 211
that contract which are illegal are unenforceable in law. He therefore
prayed for parties to return to their original position.

Disputing the appeal Mr. Masumbuko learned advocate argued on ground

one to three that, advocate for appellant did not show any error in the
judgement and proceedings of the tribunal. He argued that since the same
was not present at the trial he therefore tries to create a new case. It was
his submission further that, the evidence was clear that the sale
agreements were not tendered by the appellant. He added that, the same
were tendered by the respondent and they matched the evidence of the
appellant. He submitted further that; the judgement shows that the
appellant did not call any witness, as per page 4 of the judgement.

Moreover, his argument was that, the appellant prepared the contracts,
under contra proferentem rule, where in case of doubt, it has to be
construed against the maker. He asserted that, the tribunal went to the
locus in quo, so he said the evidence in exhibit D1 was corroborated and
which means land was sold as per agreements.

Mr Masumbuko argued that, the tribunal was clear that the appellant did
not speak the truth. There was nothing illegal, according to him, in respect
of paying taxes. He cited the cases of Salma Mohamed Adballah vs
Joyce Hume, Civil Appeal No. 149 of 2015 at page 18 and Pauline

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Samson Ndawavya vs Theresia Thomasi Madaha, Civil Appeal No.
45/2017 at page 15-16. It was held in the case that; it is the duty of the
parties to make good evidence in court by calling witnesses.

As for ground four, the learned counsel submitted that, the amount of
16,000,000/= was paid and there was no proof that the local government
taxes were not paid. He said that, the case of Zakaria Bura (supra) is
distinguishable since, there is nothing illegal in this case at hand. He
therefore prayed for this appeal to be dismissed with costs.

When re-joining, Mr Mfalla asserted that, it was not true that appellant
prepared the agreements, he said, the same were drawn by the
respondent’s son. He asserted more that, the 6772 sqm were not part of
the contract, since they were awarded by the tribunal. Further, the case
of Salma Mohamed Abdallah (supra) is distinguishable, because it
dealt with search, which is not the case here and the same applies to the
case Pauline Samson Ndawavya (supra). He argued further that, the
contracts were in possession of the respondent when the case was
brought to the tribunal.

Having considered the rival submission of the parties and the records of
the tribunal, I will also determine the grounds of appeal in the same
manner as submitted by the parties, starting with ground one to three
together, then ground four will be treated separately. It has to be clear
that, it is indeed not in dispute that parties entered into sale agreements
on the suit land. It is also not in dispute that there are two sale
agreements. It was submitted for the appellant that, the tribunal did not
consider the evidence of the appellant brought before it.

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It was also submitted further that the respondent had bought 2500 sqm
for 15,000,000/= and not 5000sqm.

It would appear that the appellant was a sole witness. He tendered no

evidence in connection with sale of the suit land. It is trite, he who alleges
must prove. He claimed to have sold 2500sqm of the suit land to the
respondent but failed to prove the same since it appeared that there are
two sale agreements measuring 2500sqm each with a different amount
of consideration. The law of Evidence is so clear that, a person who wants
the court to decide in his favour has to prove each fact stated by him in
court. The same is provided for under Section 110(1)(2) of [Cap 6 RE
2019] which states as hereunder;

110.-(1) Whoever desires any court to give judgement as to

any legal right or liability dependent on the existence of facts
which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any

fact, it is said that the burden of proof lies on that person.

It was the appellant’s duty to lead evidence that would prove that he sold
2500sqm to the respondent despite the presence of two agreements
denoting a total of 5000sqm. Despite the analysis above, what I consider
to be the issue here is whether the appellant sold 2500sqm or 5000sqm
to the respondent as per sale agreements.

To begin with, in law, an agreement refers to every promise and every

set of promises forming the consideration for each other, as per section
2(1)(e) of the Law of Contract Act [Cap 345 R.E 2019]. The same become
contracts if they are made by the free consent of parties competent to
contract, for a lawful consideration and with a lawful object.

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In the wording of section 10 of the Law of Contract Act, it is clearly stated
thus;

All agreement are contracts if they are made by the free

consent of parties competent to contracts, for a lawful
consideration and with a lawful object.

As for the issue at hand, those two agreements qualify to be contracts

since there were no allegations from both parties that there was no
free consent when making the same. It is so clear on the face of those
contracts that, they were made freely by the parties competent to
contracts, and there are lawful considerations on two of them, since
one of the contracts is for 15,000,000/= and another one is for
1,000,000/=.

based on the foregoing it is my considered view that, the appellant

sold 5000sqm for 16,000,000/=. The allegation by the appellant that
he sold 2500sqm only and that other agreement was made just to
avoid paying taxes to the local government authority are subject to
proof as per Section 110 of [Cap 6 RE 2019]. The Court of Appeal in
the case of Paulina Samson Ndawavya (supra), held that;

It is a trite law and elementary that he who alleges has a

burden of proof as per section 110 of Evidence Act, [Cap 6
R.E 2002]. It is equally elementary that since the dispute
was in civil case, the standard of proof was on a balance of
probabilities which simply means that the court will sustain
such evidence which is more credible than the other on a
particular fact to be proved.

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I therefore hold that, the tribunal was right when dismissing the
appellant’s case since the same was not proved, and I do not see anything
to fault the findings of the learned Chairman on this aspect. Based on the
evidence and submissions, the respondent is entitled to 5000sqm only
proved in the two agreements, which is plot No. 1384 Block Q4 Kibamba
Dar es Salaam. It is therefore of value to conclude that the 1st to 3rd
grounds of appeal are merited and allowed partly to the extent explained.

As for ground four which states that; The honourable tribunal erred in law
and in fact when it enforced a contract which is marred by uncertainty
and illegality for the benefit of the respondent.

As argued by the appellant, there are two contracts with 2500sqm each.
I have held so shortly when dealing with the first three grounds. It was
submitted that land was not sold to him as per agreements, because one
agreement was designed to evade taxes and so the same should be held
to be illegal and unenforceable in law. It was unfortunate that this
allegation was not proved, mere words do not support the case unless the
court has reason to believe they are a true reflection of things.

But the question to be answered is which contracts are unenforceable in

law or what amounts to unenforceable contract. The Law of Contract is
very clear that all void contracts are not enforceable by law, and what
amounts to void contracts are stated in Part III of the Law of Contract Act
to mention the few; when there were no free consent by the parties when
making the same, unlawful consideration, unlawful object, parties were
incompetent when making the contract and other factors considered by
this law. It is also clear that an agreement that breaks the law cannot be
enforceable basing on the doctrine of the sanctity of contracts. That, as I

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have said above is a serious issue to be proved by evidence, which has
not been proved. It is my view that appellant ought to have proved the
same against those two contracts to call them illegal and unenforceable,
failure to do so renders his argument unjustifiable.

However, advocate for the appellant cited the case of Zakaria Barie
Bura (supra) but his argument was not in connection with what was
decided in this case. In this case the Court of Appeal held that the
agreement bearing no indication of payment of stamp duty under Stamp
duty Act renders that agreement inadmissible as evidence in court. While
Mr Mfalla argued that the contracts were used by parties to evade tax at
the Local Government. Depending on this argument I agree with the
counsel for the respondent that this case is distinguished with the facts at
hand. There is no evidence showing that the Local Government taxes were
not paid. This ground lacks merit, it is dismissed.

For the foregoing reasons this appeal is partly allowed to the extent that
respondent is entitled to 5000sqm and not 6772sqm on Plot 1384 Block
Q4 Kibamba Dar es Salaam. I make no order as to costs.

A.K. Rwizile
JUDGE
9.02.2021
R e c o v e r a b l e S i g n a t u r e

S i g n e d b y : A .K .R W I Z I L E