agathe deusdedit gilli vs kemilembe tibaijuka 3 others 2023 tzhclandd 16874 13 september 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 238 OF 2022 AGATHA DEUSDEDIT GILLI (Administratix of the Estate of the Late ANASTAZIA KIGENDI) PLAINTIFF VERSUS KEMILEMBE TIBAIJUKA 1®^ DEFENDANT COMMISSIONER FOR LANDS 2"° DEFENDANT REGISTRAR OF TITLES MINISTRY OF LANDS, HOUSING AND HUMAN SETTLEMENTS 3"° DEFENDANT ATTORNEY GENERAL 4^" DEFENDANT JUDGMENT 23/08/2023 to 13/09/2023 E.B. LUVANDA,J Agatha Deusdedit Gilli, the Plaintiff herein, is suing through ietters of administration (exhibit PI) as an administratix of the estate of the iate Anastazia Kigendi who was aiiocated Piot No. 429 Biock "A" Mikocheni 17 Area, Dar es Saiaam on 11/01/1976 for a tenure of thirty three years via a granted right of occupancy Titie No. 20941, exhibit P2, herein after to be referred to as a suit piot. It was the Piaintiff case (PWl)that the iate Anastazia Kigendi buiit a two room house and iived on the suit piot from 1981 to 2007 when she reiocated to PWl at Kigamboni, following her deteriorating heaith. PWl stated that after the demise of the iate Anastazia Kigendi in 2013, and after being granted with letters of administration she visited at Kinondoni Municipai for paying iand rent, she ? was advised to liaise with the Ministty of Land. That at the Ministry of Land, she conducted official search it was on 31/03/2016 and revealed the suit plot was under the ownership of his Excellency the President. That she revisited at the Ministry of Land in 2019 where official search revealed the suit plot was no longer under the President rather Kemiiembe Tibaijuka (First Defendant), hence sued the later along with the Second, Third and Fourth Defendants as their respective names appearing on the title herein above. In defence, Johason Chimoyo Chibanda(DWl)explained that the granted right of occupancy exhibit P2 was revoked for failure to comply with the terms and conditions to erect building on permanent material, submit building plan by 13/07/1976, commence building within six months and complete building by 13/12/1978. DWl bragged that the revocation abided to procedures, where the deceased was given a notice for breach of condition exhibit Dl, but there was no response. DWl stated that they issued a second letter dated 06/12/1988 exhibit D2 in forming the deceased that they are in a process of revocation which could be effected after twenty eight days, which did not respond. DWl explained that thereafter the Minister signed the revocation instrument dated 21/11/1989 exhibit D3, which was followed by the application for recording of revocation of a right of occupancy signed by the Commissioner for Lands on 03/12/1989 exhibit D4. According to DWl,the late Anastazia Kigendi did not challenge the revocation which according to DWl it meant she was not aggrieved with revocation. DWl stated that it was until in 2019 when the administratlx of the estate of Anastazia Kigendi resurfaced. Issues agreed at the final pretrial conference are: One, who is the lawful owner of the suit land; Two, whether revocation of the right of occupancy in respect of Plot No. 429 Block "A" located at Mikocheni within Dar es Salaam and allocation of the same Plot to the First Defendant was unlawful; finally, to what reliefs are parties entitled. I will rather start with the issue number two in view of the preface and recap above. It was the evidence of the plaintiff(PWl)and William George Humba (PW2)that the late Anastazia Kigendi had constructed a two bed room house on the suit land, alleged erected in 1981 and lived therein till some times in 2007, however neither of them could tell if the two bed room house was on permanent building material or not, nor tendered even a picture of photographic print to emulate the positive image and appearance of the alleged two bed room house. On cross examination by the learned State Attorney, PWl conceded a fact that they did not submit drawings or plans for building, neither procured approval or building permit for developing that plot. PWl conceded generally to have breached conditions for a grant of right of occupancy stipulated in exhibit P2. According to section 10(1)(a) and (d) of the Land Ordinance, provide, I quote "(1)Itshall not be lawfulfor the Governor to revoke a right of occupancy granted as aforesaid save for good cause. Good cause shallindude;- a)non paymentofrent, taxes, or other due Imposed upon the land, b)...NA... c)...NA... d)Breach ofany term or condition contained or to be Implied in the certificate of occupancy or in any contract made in accordance with section seven". Clause seven of the special conditions for the grant of a certificate of occupancy exhibit P2, provide, I quote, "The President may revoke the Right for good cause and in public interest". Therefore the Plaintiff who slept from 1976 when a right of occupancy was granted and awake to make a followup in 2016 after expiry of forty years beyond her tenor of thirty three years, indeed without complying even to a single condition including non payment of land rent, to my view the Plaintiffs breach was fundamental. The Learned Counsel for Plaintiff faulted a notice for notification of breach exhibit D1 that it was posted to an erroneous address care of A.N. Mkome instead of Agatha Magema. Assuming exhibit D1 is treated to be defective and in valid notice for that regard still it cannot assist the Plaintiff. This is because a second notice (reminder) exhibit D2 which indicate was send by registered post, was in order and valid. Therefore I pick it from there when exhibit D2 was issued on 06/12/1988 and rule that the subsequent process of revocation abided to the law and was complete when the Minister issued the revocation instrument exhibit D3 and a subsequent application for rectification of revocation of a right of occupancy exhibit"D4". The learned counsel for the plaintiff, also faulted exhibit Dl, D2, D3, D4, D5 on account that does not reflect Area 17. To my opinion as much the alleged exhibits in particular Dl, D2, D3, D4 capture other crucial Information for description including Title Number, Plot number, it cannot render them invalid or defective for a mere fact that Area 17 is missing. In fact, even in IDl produced by the Plaintiff(PWl) the alleged Area 17 is missing. To crown it all, the revocation of the right of occupancy in respect of certificate of title No. 20941 Plot No. 429 Block "A" Mikocheni Area 17, Dar es Salaam City, granted to the Plaintiff and subsequent allocation of the same plot to the First Defendant was proper, lawful and well grounded. This findings take into board issue number one as well. Therefore it is decreed that the Plaintiff is not the lawful owner of the suit plot. Finally, as to the reliefs parties are entitled to. Having ruled that the Plaintiff's revocation was complete and lawful, there is no remedy which is available to the Plaintiff in the circumstances. A sujj^^^ipissed. Each party tj^houlder its costs. e.b.Luvawda >GE y/09/2023 Judgmenr^BiNvered through/virtual court attended by Mr. Alphonce Kubaja learnd Counsel for Plaintiff and Mr. Frida Mollel learned State Attorney for 2""^ and 3^^ Defendants and in the absence of the Defendant. 4 E.B. VAN 13Z09/2O23 0/\nS\9