civil decision 2024 12 25 20 54 14

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND CASE NO. 43 OF 2023 BERNARD ROBERT MARWA .............................. COMPLAINANT / APPELLANT / APPLICANT /

PLAINTIFF

VERSUS 1. SHAKIRA NKANGA KATABANYAO 2. COMMISSIONER FOR LAND 3. ATTORNEY GENERAL .............................. RESPONDENT / DEFENDANT

JUDGMENT RWIZILE, J, The plaintiff and the 1st defendant have been locked in this litigation since 2023. They are claiming ownership of land registered as plot number 140 Block “C” Mwasenga Kigoma Ujiji Municipality. The plaintiff who holds the certificate of occupancy with title number 1334 LR Tabora claims was allocated the same through due process on 10th February 2016. It is the same land that 1st defendant also alleges acquired, through due process in 2006 and erected a residential house and therefore currently in use of the same premises. The plaintiff who upon allocation left the country, he found his land in possession of the 1st defendant. Efforts to sort it out were not successful. The plaintiff therefore filed this case praying for the following reliefs; 1. That, this honourable court be pleased to declare that the plaintiff is the lawful owner of the suit plot, and the 1st defendant is a trespasser therein 2. That, the 1st defendant be ordered to vacate immediately from the suit plot 3. That, the 1st defendant to pay general damages at the tune of 10,000,000/= or any other amount that this honourable court may deem fit.

4. That, costs of the case be provided for.

5. That, this honourable court be pleased to give any other order it deems fit. The case was heard by witness statements in terms of order XVIII Rule 2 of the Civil Procedure Code on the plaintiff’s and the 1st defendant's case. That is evidence by Pw1, Dw1 and Dw3. For the 2nd, 3rd and 4th defendants’ case, it was heard orally, that is the evidence of Dw2. The plaintiff was represented by Mr. Daniel Rumenyela learned advocate. The 1st defendant was under the services of Mr. Eliutha Kivyiro learned advocate, while the 2nd, 3rd and 4th defendants were represented by Mr. George Kalenda learned senior state attorney and Mr. Celestine Ngailo state attorney. Page. 1 Issues 1. Whether the plaintiff is the lawful owner of the dispute premises.

2. To what Reliefs are the parties entitled to. The plaintiff’s case was mannered by one witness, Neema Mkwaya Makongo (Pw1). The 1st defendant Shakira Nkanga Katabanya (Dw1), testified and called one witness Raymund Elias Kifizi (Dw3). For the 2nd, 3rd and 4th defendants came Joseph Makilemo Francis (Dw2) My determination of the first issue is, I think simple and straight forward. The 2nd, and 4th defendants are responsible for not only issuing land ownership certificates but also registering the same. In their amended written statement of defence, there is no dispute that the same title was issued by the same. To support their pleadings, Dw2, the assistant land officer since 2021 working with Kigoma Ujiji Municipality, came to testify. He testified that the disputed plot, according to the records was allocated to the plaintiff, Bernard Marwa in 2016. He was given a titled deed which was registered by the registrar of titles and Commissioner for lands. It is Exhibit P1. According to this witness who holds a diploma in land Management, valuation and registration, exhibit P1 is signed by the commissioner and has three stamps of the registrar of titles. It has Plot Number 140, Block C Mwasenga and Title deed number 1334LRT and therefore in the name of the plaintiff. It is therefore clear that despite the two competing parties claiming ownership in the same land, when the

plaintiff owns a titled deed, and the 1st defendant has a house therein, it goes without saying that the plaintiff holds a better title. I believe so, because, the 1st defendant does not hold any legal document signifying ownership, but has a receipt, exhibit D1. This receipt shows, payment was made in 2023 but the same was issued in 2024. Apart from that, she did not tender any evidence showing how that land was acquired. It is her evidence that she acquired it in 2006 upon application, and that upon allocation, she erected a house in 2007. Her evidence was supported by Dw3 who said, in 2007, he worked with a company from Mwanza, which he does not remember its name. It was surveying land at Buhanda Mwasenga, where he also lives. The 1st defendant as her neighbour, was living in a mud house, roofed by grasses. The plaintiff who testified through his wife Pw1 holding powers of attorney said, the land was applied for in 2015, allocation was done, and a titled issued in 2016. According to her, the land at that time was vacant and no construction activities that were there. It was therefore testified that the 1st defendant trespassed. The 1st defendant’s case therefore is very weak. For her to succeed, she was at least to prove to this court, that the plaintiff obtained his title to land by fraud or deceit. But the only evidence that may show perhaps there was a problem with land

officers is that shown in exhibit D1. The receipt shows, she paid TZS 91,600.00 for land registration, stamp duty, certificate of occupancy, premium and deed plan fee. The money was paid on 22nd June 2023, but the receipt was issued on 5th February 2024, nearly one year later. The reason for delaying this is not apparent. It may have been actuated by ineptness of the land offices or for any other unlawful purpose. Page. 2 But still, this is an assumption, and it is not sufficient to prove that the plaintiff obtained the title through unlawful means. In the case of Amina Maulid Ambali & 2 others vs Ramadhani Juma, (CAT). Civil Appeal No. 35 of 2019 on pages 6-7, it was held that; “...when two persons have competing interests in a landed property, the person with a certificate thereof will always be taken to be a lawful owner unless it is proved that the certificate was not lawfully obtained”. In the absence of evidence that the title deed the plaintiff holds was obtained unlawfully, the duty that is cast on the defendants, I have no doubt, the plaintiff is a rightful owner of the suit land. Therefore, the first issue is determined in favour of the plaintiff. As to reliefs, now that the judgement has been entered in the favour of the plaintiff, he is entitled to the following reliefs; 1. That, the plaintiff is declared a lawful owner of the suit plot, 2. That, the 1st defendant is ordered to vacate the suit plot, and, 3. That costs to follow the event. Dated at KIGOMA this 16th of December 2024 . A. K RWIZILE

JUDGE OF THE HIGH COURT Page. 3