Land Case No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR-ES-SALAAM LAND CASE NO 131 of 2016 WILHELM SIRIVESTER ERIO................... PLAINTIFF VERSUS PROF. T. L. MALIYAMKONO............... RESPONDENT RULING Date of last order: 21/08/2024 Date of Ruling: 21/08/2024 LALTAIKA, J. The plaintiff herein WILHELM SIRIVESTER ERIO, way back in 2016, sued the Respondent (now deceased) PROF. T. L. MALIYAMKONO over ownership of a piece of land situated at Mapinga area within Bagamoyo District in Pwani Region. The duo would be engaged in a fierce legal battle that would involve knocking the courts of the highest Court in our jurisdiction twice with an order for retrial each time. This ruling which I believe will 1 dispose of the suit at last emanates from the second order for retrial dated the 18th of February 2022. When the suit was called for hearing on 19/08/2024 the Plaintiff was in court while enjoying the legal services of Mr. Living Richard, learned Advocate. On the other hand, Mr. Joseph Rugambwa learned Advocate appeared for Administrators of estate of the then Defendant Prof. Maliyamkono. Noteworthy, specific instructions from the apex Court were for the hearing by this Court to commence from the point of admission of exhibit Pl (sale agreement purportedly entered between the plaintiff and one Abdallah Mohamed Mwanga in 1983). An attempt by a third party to be joined as a defendant for purposes of "defending here interest in the land in dispute7' failed due to these specific instructions. Nevertheless, as will be clearer soon, such a failure would later turn the entire direction of the suit. The plaintiff, a jovial looking Mzee in his early 70's testified how, way back in 1983, when he was working with the Ministry of Defence, he bought a piece of land described earlier. He impressed the court with unmistakable memory and commendable attention to details despite his advanced age. 2 PWl's prayer for tendering of the sale agreement as part of the evidence for his case received a nod of approval of this Court, was admitted and was christened Exhibit Pl. Mr. Rugambwa, however, did not take the admission of Exhibit Pl unreservedly. He indicated that he thought the ink looked fresher than what would be expected of a document purportedly drafted in 1983. He reserved the right to summon an expert witness to untangle the controversy. During cross-examination, Mzee Erio revealed that he had sold the suit land to a third party. A series of questions fired by Mr. Rugambwa laid bare many gray areas of the suit that had been filing the limited space of this court since 2016. I will not go to the details of such shortcomings except where they are necessary for enhancing clarity of this ruling. Advocate Rugambwa, exhibiting deep knowledge of the intricacies of the dispute, prayed to tender, as an exhibit, Misc. Land Application No. 14459 of 2024 between LANDEV COMPANY LTD and Kerage Sylvia Kamuli (1st Administratix of the estate of the late Prof. T.L. Maliyamkono, Vedasto Mugyabuso Kujwalire (2nd Administrator of estate of the late Prof. T.L. Maliyamkono 1st Respondent and Wilhelm Sirivester Erio (the plaintiff herein) 3 as the 2nd Respondent. There being no objection by the plaintiff, the application was admitted and marked as exhibit DI. It became clear during the reading out loud of the said exhibit as required by law that the suit land is owned by LANDEV COMPANY LTD (not a party to this Ruling) under Certificate of Title No. 173194 and Letter of Offer No. 918639 having purchased the same from the previous owner. Surprisingly, the "previous owner" mentioned is the same individual that bought the suit land from the plaintiff. To cut the long story short, this discovery was nothing less than an Aha! moment to this Court. The plaintiff interjected that he had no interest with the suit and no matter what decision is arrived at, nothing is likely to change. He lamented that he was getting too old to be involved with court issues and he had better spend his time at home. After a brief discussion with Counsel for both parties, which discussion ranged from professional etiquette for Advocates to effects of technicalities in delaying justice, Mr. Richard prayed to withdraw the suit without cost. Mr. Rugambwa, on his part, unwaveringly okayed both prayers namely withdrawal and not ordering for costs. 4 I have dispassionately considered the concurrent prayers of counsel considering the uniqueness of this suit. Our procedural law is to the effect that a plaintiff can withdraw his/her suit at any stage before delivery of a decision. According to the Civil Procedure Code (Cap 33 RE 2022) See Order XXIII Rule 1(1): At any time after the institution of a suit the plaintiff may, as against ail or any of the defendants, withdraw his suit or abandon part of his claim. Without prejudice to the above, I am inclined to state albeit in passing that this withdrawal has come way too late. Much ink has been spilled over this suit with very little if any tangible results. Had this been discovered in 2018 at the latest, time and other resources would have been directed to other parts with more impact to social economic development of our country. I have taken liberty to examine exhibit DI more closely for purposes of enhancing clarity of this Ruling and I entertain no doubt that the delay occasioned by this suit with mere academic value has caused severe hardship to a third party. This is expressed in para 10 of the affidavit of one Noel Peter Mabuga Principal Officer of LANDEV COMPANY LTD thus: 5 "10. That the Applicant is bewildered with the fact that the 2nd Respondent who has already sold the land in dispute to one Abdallah Huwel since the year 2018 the title of which has passed to the Applicant by way of sale since 2020, still claims lawful ownership of the same land.77 I am equally bewildered if not immensely flabbergasted. Nevertheless, as the Kiswahili saying goes "Hakuna marefu yasiyokuwa na ncha"\ believe this matter has come to its finality today. Whether the entire suit was vexatious ab initio or a collusion between parties to cause inconvenience to the 3rd party it is beyond the purview of this ruling. It is probably high time the third party turns the bewilderment to renewing the strength akin to the verse: "But they that wait upon the LORD shall renew their strength; they shall mount up with wings as eagles; they shall run, and not be weary; and shall walk, and not faint77 (Is. 40:31) In the upshot, this suit is hereby marked withdrawn with no leave to refile. Each party to bear their own cost. It is so ordered. 6 21/08/2024 Court Ruling delivered under my hand and the seal of this Court this 21st day of August 2024 in the presence of Messrs. Living Richard and Joseph 21/08/2024 7