ALLY RASHID MBONDE SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 298 OF 2022 ALLY RASHID MBONDE @ ALLY MBONDE.............................................. PLAINTIFF VERSUS SAMUEL ZABDIEL TARIMO................................ 1st DEFENDANT JUED HOMES LTD............. ............................................................... 2ND DEFENDANT THE COMMISSIONER FOR LANDS.................................................. 3rd DEFENDANT THE REGISTRAR OF TITLES........................................................... 4th DEFENDANT KINONDONI MUNICIPAL COUNCIL............................................... 5th DEFENDANT ATTORNEY GENERAL (As Necessary Party)..........................................6th DEFENDANT BY WAY OF COUNTER CLAIM JUED HOMES LTD................................................................. PLAINTIFF VERSUS ALLY RASHID MBONDE @ ALLY MBONDE....................................... 1st DEFENDANT SAMUEL ZABDIEL TARIMO............................................................ 2nd DEFENDANT THE COMMISSIONER FOR LANDS.................................................. 3rd DEFENDANT THE REGISTRAR OF TITLES................................. 4th DEFENDANT KINONDONI MUNICIPAL COUNCIL....................... 5th DEFENDANT ATTORNEY GENERAL (As Necessary Party)..........................................6th DEFENDANT JUDGMENT 13th to 20th September, 2024 E.B. LUVANDA, J This dispute lingers over ownership of Plot No. 787 Msasani Beach, Dar es Salaam City between the Plaintiff, First and Second Defendant to the main suit i above named. The trio are scrambling over to take actual possession of the suit plot, each one having insatiable and unquenchable thirsty. The Plaintiff to the main suit is claiming ownership by virtue of having a letter of right of occupancy Ref. No. LD/165622/1/PJC issued on 11/09/1989, exhibit Pl. The First Defendant to the main suit is having a certificate of title No. 42208 exhibit DI which was registered on 9/07/1993 in the name of Clement Nkungu and transferred to the First Defendant on 3/03/2011, as per certificate of approval of a disposition Land Form No. 33, exhibit D2. The Second Defendant to the main suit her title is derived from letter of offer Ref. No. DCC/LD/57375/3/TMM issued on 23/09/1997 to Ndugu Abraham Nathaniel Shoo (DW2), who later disposed to the First Defendant on 10/12/2013 vide a sale agreement, exhibit D7. The Plaintiff to the main suit who testified as PW1 alleged to had constructed a house in between 1989 and 1990, which were demolished by the First Defendant to the main suit on 7/04/2022, as supported by Policap Shabani Mugabe (PW3, who is the caretaker of the Plaintiff). The First Defendant to the main suit who testified as DW1 alleged to have demolished after obtaining a demolition permit from Kinondoni Municipality exhibit D4. According to DW1 he obtained a building permit No. 00023285 from Kinondoni Municipality issued on 29/07/2021, exhibit D3, where he constructed a fence and the following year when he started construction of a hut, he saw a hut of iron sheet constructed 2 there along official watchman on uniform who were assigned by the Second Defendant, whereby the construction plan by the First Defendant was frustrated. The Second Defendant to the main suit led by Paul Alendwasen Meenda (DW3) on the other hand, accused the First Defendant to had demolished her structure thereat by force through bouncers, along chasing away assignee of the Second Defendant to the main suit. The Third Defendant to the main suit (who is the allocating authority), Fourth Defendant to the main suit (who registered certificate of occupancy), Fifth Defendant to the main suit (also allocating authority) along the Sixth Defendant to the main suit led by Jane Paulo Mwaipyana (DW4, Land Officer Kinondoni Municipality) and Kajesa A. Minga (DW5, Senior Land Officer, at the office of the Third Defendant to the main suit), supported a case for the First Defendant to the main suit, based on the priority rule or an earlier occurrence, take precedent. According to DW4 and DW5 the allocation to the Plaintiff to the main suit had a status of double allocation and DW2 her documentation are not recognized as far as ownership of Plot No. 787 Msasani is concerned, rather DW2 where the title of the Second Respondent is derived from, is having issues with a separate Plot No. 785. It is to be noted that the said Plot No. 785 Msasani Beach, is a very one which DW2 applied to be allocated vide his letter of application dated 14/04/1997 3 exhibit D5, in lieu thereof, DW2 was allocated Plot No. 787 Block AT, as per exhibit D6. The explanation by DW2 is that he was told by the officers of City Commission that Plot No. 785 was changed to Plot No. 787. In view of the foregoing preface, issues framed for determination are: One, who is the lawful owner of Plot No. 787, Msasani Beach, Dar es Salaam; Two, to what reliefs are parties entitled. For issue number one. The Plaintiff's title is vested on letter of offer exhibit Pl. However, when PW1 was cross-examined by Mr. Peter Swai learned Counsel for the First Defendant to the main suit, as to how he acquired it, PW1 asserted that he acquired by virtue of a memo from the Director of the Board of Internal Trade (BIT) which was addressed to the Ministry for Lands. But when PW1 was cornered at cross-examination, as to whether these facts were asserted in his testimony in chief, he readily concede that they are missing. In fact, even in the plaint, facts of how the Plaintiff applied for allocation were not stated or pleaded. In other words, there was no any application which was made by the Plaintiff requesting for the allocation of land. Therefore, the wording in exhibit Pl, at the opening paragraph to the effects that, I quote, 'Your application for a long term Right of Occupancy (later in this letter called "the Right") over this plot has been approved by the plots allocation committee meeting held on 15/08/89 vide Agenda No. 3../ 4 Were concocted, because there was nothing from the Plaintiff upon the named plots allocation committee could convene, deliberate and resolve upon. To my view, there is no procedure for applying for allocation of a land by way of memo and indeed by a third party. In exhibit Pl the alleged memo by third party was not indicated as being part for consideration. That is why I am saying there was none from PW1 for the plots allocation committee to approve allocation to the Plaintiff. Above all, when PW1 was cross-examined by Mr. Aricus Kyara and Mr. Edwin Urassa learned Advocates for the Second Defendant/Plaintiff to the counter claim, PW1 stated that the letter of offer exhibit Pl was issued on 11/09/1989 and payment of fees for acceptance of the offer were effected on 3/01/1990, being after expiry of three months after issuance of a letter of offer. PW1 also conceded to have not complied with the terms of letter offer. At clause three of exhibit Pl there is the following term, I quote, 'UNLESS: the offer is accepted and all fees paid within thirty days from the date of this offer the offer will lapse. After this period the plot will be disposed of as the committee deems fit without any further reference to you7 underlined is on the original document. Exhibit Pl was issued on 11/09/1989, a letter Ref. LD/165622/2/PJC dated 22/1/1990 forming part and parcel of letter offer in exhibit Pl, indicate payment of fees were effected between 3-1-90 to 5-1-90, being after expiry of almost six months counting from 11/09/1989 when the offer was issued. Meaning that at 5 the time the Plaintiff completed payment of fees on 5/01/1990, already his offer had lapsed due to affluxion of time. Importantly, at the extreme bottom of the letter offer (exhibit Pl) there was another directive issued by the Director of Land Development Service to the Internal Revenue Officer that payment should not be accepted after 34 without his authority. There is no explanation if the said Director of Land Development Service authorized acceptance of fees after expiry of deadline stipulated therein. These two reasons stated above, suffices to render exhibit Pl invalid. In that regard, when the office of the Third Defendant crafted a letter Ref. No. LD/165622/21 dated 18/06/2003 exhibit P2, addressed and directing the Kinondoni Municipal Director to issue new title deeds over Plot No. 787 Msasani Beach, was already overtaken by event. Above all, exhibit P2 was vague, in a sense that was not conclusive, as did not state categorically as to whom the alleged new title ought to be issued, given a fact that at paragraph two of exhibit P2, the author stated that the suit plot was wrongly allocated to two people who are C. Nkungu and Ally Rashid Mbonde. Therefore, crafting a blanket letter was to my view geared to create more confusion. Again, the office of the Second Defendant was silent as to what was the fate of the right of occupancy granted to the other among the duo. Therefore, exhibit P2 is of no legal effect. 6 Above all, PW1 asserted in his testimony in chief that in 2003 he received a letter from the Fourth Defendant regarding ownership of the suit plot, where he (PW1) was told that his plot was registered in the name of two different people, double allocation. In view of this development, I entertain a doubt as to whether this suit was preferred within time, regard being PW1 was made aware of the dispute (double allocation) since 2003. The First Defendant who was blessed for having a support and backup of allocating authorities as stated above, his title was derived from the alleged Clement Nkungu. According to DW5 the said Clement Nkungu was granted certificate of right of occupancy as from 1/04/1988 vide exhibit DI emanating from the letter of offer dated 23/03/1988 Ref. No. DSM/LD/32583/1/AGM. The said offer letter was not made available for court appraisal. Neither application letter by the so called Clement Nkungu applying to be allocated land was tendered to vindicate that indeed he sought and was approved to be allocated the suit plot. Through his testimony in chief, DW1 did not disclosed as to whereabout of the said Clement Nkungu apart from the fact that DW1 at a certain point or occasion alleged visited at the residence of the alleged Clement Nkungu at Chang'ombe. In his testimony in chief, DW1 asserted that he met Clement Nkungu in the year 2010 and that he submitted his documentation for transfer to the office of the Third Defendant on 5/08/2010 and transfer was 7 effected on 3/03/2011 at 11.42 hours. When DW1 was cross-examined by the learned Counsel for Second Defendant, DW1 stated that his ownership commenced in 2007. On further cross-examination, DW1 stated that he purchased on 5/03/2007. On further cross-examination, DW1 stated that he met Clement Nkungu early 2010 for finalizing transfer on the explanation that he met Clement Nkungu on 5/03/2007. The depicted discrepancies on the part of DW1 testimony, create serious doubt regarding how he acquired the suit plot. As stated above, the vendor Clement Nkungu his whereabout is unknown, as to when and where DW1 met the purported Clement Nkungu is doubtful. A sale agreement was not tendered. What assisted DW1 to effect transfer the ownership of the suit plot, is Land Form No. 33 exhibit D2. Exhibit D2 was not signed by the applicant. In fact, exhibit D2 is silent as to who was the applicant therein, nor stated it was being transferred from who, only reflect transferee DW1, the transferor was not named. Section 39(1) of the Land Act, Cap 113 R.E. 2019, under which exhibit D2 was made, provide, I bold a pertinent portion, '(1) An application for a grant of approval for a disposition shall be­ ta) made on a prescribed form; (b) signed by all the applicants; (c) accompanied by any other information which is prescribed or which may be required by the Commissioner; (d) accompanied by any fees which may be prescribed' 8 The consideration for purpose of transfer was not stated. In fact, nowhere DW1 stated as to what was the consideration for transfer or as to why it was transferred into his name. No wonder, the Fourth Defendant was contemplating revoking the First Defendant right of occupancy, see remarks in an official search exhibit P7. It is true that, as per the closing argument of the learned Counsel for First Defendant to the main suit, the general rule is that granted right of occupancy is indefeasible, see section 22(1) of the Land Act, Cap 113 R.E. 2019. However, for it to acquire that status it must comply to all requirements of the law. As demonstrated above, how and when the alleged Clement Nkungu applied for allocation, is unknown. How and when Clement Nkungu accepted the grant or allocation, was not disclosed. Meaning that exhibit DI which was registered on 9/07/1993 cannot be a proof that indeed Clement Nkungu was the first to be allocated the suit plot on the alleged 1/04/1988. In the case of Amina Maulid Ambali and Others vs Ramadhani Juma, Civil Appeal No. 35 of 2019, CAT (which was cited in the final submission by Mr. Jeremiah Odinga, learned State Attorney for Third, Fourth, Fifth and Sixth Defendant), the apex Court ruled, I bold a pertinent portion, 7/7 our considered view, when two persons have competing interests in a landed property, the person with a certificate 9 thereof will always be taken to be a lawful owner unless it is proved that the certificate was not lawfully obtained' As stated above, the procedure of transfer and registration of a certificate of title into the First Defendant's name, were flawed. The Allocating authority, to wit Third Defendant to the main suit, defended the title by the First Defendant to the main suit, based on the priority rule or an earlier occurrence. To my view, the allocating authority was under obligation to tender documents supporting that course, regarding being they were aware that the center of dispute was hinged on the fact that who was the first allocatee among the trio competing parties. For the Second Defendant/Plaintiff to the counter claim, DW2 asserted to had applied for Plot No. 785 Msasani Beach in exhibit D5, but was allocated Plot No. 787 Msasani Beach exhibit D6, for explanation that was due to changes from Plot No. 785 to 787. This fact was refuted by DW5 who asserted that the two plots are dissimilar. However, exhibit D6 is incomplete in essential parts, for instance there is no evidence if the allocation to DW2 was approved by any meeting. This is because at a section for recording as to when the plots allocation committee meeting was convened or held, remained blank. Equally at a section of recording the agenda number subject for deliberation and approval of the DW2 request, remained blank. When DW2 was cross-examined by the learned Counsel for First Defendant as to why he applied for a specific io plot and where he procured information regarding availability of the same, DW2 responded that he was informed by his relative one Justine Shitaeli Shoo who was a staff at the City Commission (allocating authority for purpose of exhibit D6). Meaning that the allocation to DW2 did not follow procedures, was a matter of tipping based. Importantly exhibit D6 is having another distinct feature, in a sense that it read Plot No. 787 Block AT Msasani Beach, unlike offer letter exhibit Pl and certificate of right of occupancy exhibit DI, Block AT is completely missing. Meaning that a plot which was allocated to DW2 was distinct and completely different, as also asserted by DW5. Surprisingly, it is on the rear page of exhibit D6 where at the extreme bottom, it was forceful inserted wording "PLOT No. 787 MSASANI BEACH", but the author did not disclose his name, full title, date or office rubber stamp, neither stated as to why he was annotating letter offer exhibit D6 by way of additional information not subject for it is issuance. In exhibit D6 there is a letter Ref. No. DCC/LD/57375/4/TMM dated 26/9/1995 capturing Plot No. 787 Block AT Msasani Beach, making reference to letter Ref. No. DCC/LD/57375/3/TMM dated 23/09/1995. This letter Ref. No. DCC/LD/57375/4/TMM, create more confusion, first of all, it was backdated to read 26/09/1995. Secondly the offer Ref. No. DCC/LD/57375/3/TMM was also backdated to read it was issued on 23/09/1995. To my view, this is beyond topographical error, rather has issues ii with concocting information. This also can be seen on the three exchequer receipts (laminated together) all dated 25/9/1997 and the payer is the same Abraham Nathaniel Shoo, but the first receipt is having serial No. 05611144, next is having serial No. 05515596, last one serial No. 05600280 (referred in the order of lamination). But if the three exchequer receipts are arranged in ascending order from the smallest number will be as follows: the one at the middle will be the smallest followed by the last one and the first above will be the last. Now if you compute serially between the smallest and the second one there is difference or a gape of 84,684 receipts; between the second (at the middle) and the last one there is a difference or gape of 10,864 receipts. This is contrary to the expected normal course of business that is the three exchequer receipts were obtained by DW2 on the same date, from the same single source of issuing authority and same accountant, were to have sequence of serial number running from one receipt connecting to another receipt, instead of a remarkable difference of a gape as depicted above. The impression from these receipt is that after issuing the first receipt, the same accountant on the same day issued or attended 84,684 people or receipt, then attended DW2 thereafter attended or issued 10,864 receipts before issuing a third receipt to DW2, which is impracticable. Therefore, everything in the bundle of exhibit D6 is a concocted, does not present any genuine fact either. No wonder, even DW5 12 said his office (Third Defendant) do not recognize the letter of offer exhibit D6 along payment thereof attached, as forestated. On the generality above, I am of unfeigned opinion that neither of the three, either the Plaintiff to the main suit or the First Defendant to the main suit or Second Defendant/Plaintiff to the counter claim whose title is derived from DW2, proved to have a good and clean title over Plot No. 787 Msasani Beach, Dar es Salaam City. In that regard, DW2 had nothing to pass to the Second Defendant/Plaintiff to the counter claim. This is because in law he owned nothing. In that regard the issue number one which was framed in general terms as to who is the lawful owner of the suit plot, is answered in the terms that neither the Plaintiff to the main suit nor First Defendant to the main suit or Second Defendant/Plaintiff to the counter claim is a lawful owner of Plot No. 787 Msasani Beach, Dar es Salaam City. Having disowned all three, in law there is no relief which is available to any of them. Plot No. 787 Msasani Beach, Dar es Salaam City is reverted to the position as it was prior the allocation subject to this suit. 13 The suit main suit and counter claim is dismissed. No order for costs. learned Advocate for First Defendant; Mr. Edwin Urassa learned Advocates for the Second Defendant; Mr. Jeremiah Odinga learned State Attorney for the Third, Fourth, Fifth and Sixth Defendant. 14