consolata daudi mallya vs mathew silayo 2023 tzhc 22618 15 november 2023

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF DODOMA AT DODOMA LAND APPEAL NO. 16 OF 2022 {Originating from the decision of the District Land and Housing Tribunal, Dodoma Hon dated 9* February 2022 in Land Application No. 127 of 2019) CONSOLATA DAUD MALLYA................................... APPELLANT VERSUS MATHEW SILAYO................................................... RESPONDENT JUDGMENT Date of last order. 26/10/ 2023 Date ofJudgment. 15/11/2023 LONGOPA, J.: This is an appeal arising from the judgment and decree of the District Land and Housing Tribunal for Dodoma at Dodoma. The disputed land is a registered land with Title No. 16949-DLR described as Plot 139 Block "C" Ilazo North within Dodoma Municipality. The Appellant instituted an application before the District Land and Housing Tribunal seeking reliefs against the Respondent namely: declaration that applicant the lawful owner of the suit plot; order of immediate eviction against the respondent or anybody under his instructions; an order declaring the respondent as 1 | Pa ge trespasser to the suit; and an order requiring the respondent to demolish the developments made by him on suit land. Upon hearing both the applicant and respondent the trial District Land and Housing Tribunal entered judgment and decree in favour of the respondent. That decision of the trial tribunal prompted the Appellant herein to challenge it on eight grounds of appeal, namely: 1. That, the trial tribunal erred in fact and in law in not reading the opinion of the assessors before the parties herein and incorporating the same in the proceeding contrary to the law as such rendering the entire proceedings and decision a nullity; 2. That, trial tribunal erred in fact and in law, by holding that the Appellant herein never appeared to court to defend his case, the issue which is untrue; 3. That, trial tribunal erred in fact and law in finding as a fact that the title of land in dispute legally passed from the appellant to the respondent herein whereas the finding was against the weight of evidence adduced before it; 4. That, trial tribunal erred in fact and law in holding as it that the respondent legally obtained good title to the land in dispute whereas the Respondent's evidence adduced in the 2 | Pa g e tribunal and the exhibits tendered fell short of establishing transfer and ownership of the same; 5. That, the trial tribunal erred in fact and law by failure to make critical analysis of the evidence before it, to arrive at a justice (sic) decision; 6. That, the trial court erred in law and fact to order vacant possession to the side of the appellant herein, an order which was not pleaded but also not prayed for in the evidence; 7. That, the trial tribunal erred in law and fact by ignoring the issue of calling and attending to court advocate who witnessed the sale transaction between appellant and ALLEN ALVIN URONU, the evidence which was very important to the determination of the case; and 8. That, the trial court erred in law by incorporating criminal case standard ofproving case, while the decision at hand is a civil case. At the hearing of this appeal, the parties enjoyed excellent service of learned counsel, Mr. Joseph Matimbwi, Advocate for appellant and Mr. Elias Machibya and Ms. Lilian Kimaro, Advocates for the respondent. The first ground centred on the opinion of assessors. Appellant argued that both sections 23 and 24 the Land Courts Disputes Act, Cap 216 3 | Pa ge R.E 2019 and regulation 19(1) of the Land Disputes (the District Land, and Housing Tribunal) Regulations, GN 174 of 2003 require mandatorily that Chairman must sit with assessors. Also, assessors must provide their opinion which must be read before the parties. It was submitted that until 9/2/2022 when trial Chairman issued order to compose judgment the opinion of assessors was not on record. Appellant further argued that prior to 26/1/2022 record does not indicate that assessors had been availed opportunity to express their respective opinion before parties. It was further stated that assessors did not sign original record that opinion contained therein belongs to each of them. Moreover, it was argued that assessors who provided opinion did not participate in hearing of the matter and those who heard the application were not afforded opportunity to express their opinions. Appellant invited this Court to be guided by a decision in Edna Adam Kibona v. Absolom Swebe, Civil Appeal No. 286 of 2017 which emphasizes that trial chairman must avail opportunity to assessors to opine and the same should be recorded prior to composing judgment. The arguments on opinion of assessors were countered by the Respondent. It was submitted that there were no irregularities on record of trial tribunal regarding assessors. Accordingly, records of the trial tribunal must be regarded as serious document and authentic thus should not be lightly impeached as per decision of Halfani Sudi v. Abiezer [1998] TLR 502. 4 | P a ge It was respondent further submission that record indicates that on 9/2/2022, the trial tribunal retired in the morning to afternoon for consideration of opinion of assessors by trial Chairman. Respondent distinguished that decision in Edina Adam Kibona case does not apply as in that case the record did not show that the assessors were accorded opportunity to state their opinion while in instant case the counsel for appellant was present when the assessors opined. It was submitted that in case this Court finds any minor mistakes on assessors' role, it should be guided by overriding objective principle articulated in section 3A of the Civil Procedure Code, Cap 33 R.E. 2019 as that issue does not vitiate the proceedings. That is also the spirit of section 45 of the Land Disputes Courts Act, Cap 216 R.E. 2019 where the courts are enjoined to dwell on substantive justice. On the second ground, Appellant argued that observation by trial Chairman on non-appearance of the Appellant to prosecute the case is untrue. If the Appellant failed to appear, the Application before trial tribunal would have been dismissed for want of prosecution. He referred to Section 30 of the Land Disputes Courts Act, Cap 216 RE 2019 that appearance may in person or advocate or through a member of household. It was argued that PW 1 appeared and prosecuted the Appellant's case on behalf of his sick mother. 5 | P a ge It was Respondent's argument that though one Kelvin appeared as PW 1, there is no record indicating that he appeared in a representative capacity. It was thus proper for the Chairman to hold that Appellant did not appear, according to the Respondent. In respect of 3rd and 4th ground were argued together. Appellant argued that: first, the Appellant was the real owner of the disputed land as until todate the Register of the Registrar of Titles recognises the Appellant as the registered owner as the duplicate title was issued on 23/7/2018 after the previous title was lost/stolen. Second, acquisition of duplicate title was upon Appellant having undergone all legal processes on the lost title by reporting to the police, publication of the same in government gazette and applying for issuance of new title. It was argued that Respondent's claim of title by virtue of sale alleged to have been concluded between Respondent and Juma Rashid Idd is ineffectual. The reasons for such argument are clear, that is: one, on date of alleged sale the Appellant had taken all necessary steps to report and publish about the loss of previous certificate of title. Two, this being a registered land the rules are very clear on let buyer beware (Caveat emptor). If the buyer would have taken necessary steps to verify with Registrar of Titles, he would have simply discovered that he was being cheated as title used to execute the sale was a dead title rendering the whole transaction void. Three, the alleged sale and transfer of the between the buyer and Juma Rashid Idd was void as the Vendor had no title to pass 6 | P a ge to the Respondent. It was submitted that the decision in Frank Mohamed v. Fatuma Abdizack [1992] TLR 205, is illustrative as the Court noted that "it is trite law that no body can give what he does not possess (Nemo dat quod non habet)." Further, Section 38(2) of the Land Registration Act provides to the effect that on issuance of the new title, the old title ceases to have effect. Four, existence of name of Appellant in title was conclusive evidence that disputed land belonged to the Applicant. This is supported by the decision in Athuman Amiri v Hamza Amiri and Aida Amiri, Civil Appeal No. 8 of 2020 at pages 15-16, where the CAT clearly stated that existence of registered title is a conclusive proof of ownership of land. It emphasizes that records of the Registrar of Titles are conclusive evidence of ownership. Appellant argued that despite existence of all this material evidence on part of the Appellant herein the trial tribunal ignored completely existence of that new title. Appellant argued further that in fact, it was clear from any ambiguities that the Appellant is rightful owner of the suit land as indicated in most of the documents that admitted by the trial tribunal. The Respondent argued that it is true that the crucial issue before the trial tribunal was who was is rightful owner of dispute property. Respondent referred to Paragraphs 6 (a) (iii) to (v) of the Application where the Applicant noted that there is claim from Respondent to be the owner of the disputed land. It was submitted further despite testimonies of 7 | Pa g e PW 1 and PW 2 that one Allen Alvin llronu had admitted having stolen the title, there was no evidence whatsoever from police to corroborate that admission. Also, there was no criminal case instituted against Allen Alvin Uronu. Furthermore, it was evidence DW 2 Allen Alvin Uronu that he obtained title from the Appellant. That is why throughout the testimonies there is no record at all that Appellant had complained about forgery of her signature regarding transaction between the Appellant and Allen Alvin Uronu. The Respondent reiterated that Exhibit D 1 collectively encompasses sale agreements validating the whole chain of events. First, there is an sale agreement between Consolata Daud Mallya and Allen Alvin Uronu dated 19/1/2018 -comprising of a transfer deed, notification and application for approval by commissioner. That sale agreement was signed by the Appellant. Second, an agreement between Allen Alvin Uronu and Juma Rashid Idd dated 1/9/2018 comprising transfer deed, notification and application for approval by commissioner. Third, an agreement between Juma Rashid Idd and Mathew Abrogast Silayo dated 8/12/2018 which comprised sale agreement, transfer of right of occupancy, notification of disposition and Application for approval. It was the Respondent's position that these documents were not challenged by anyone before trial thus admission to represent true state of affairs on ownership being vested on the Respondent. 8 | P a g e Further expounded by Respondent was the fact that DW 2 Allen Alvin Uronu testified to have obtained title from the Appellant through a purchase at consideration of TZS 7.5 million. It DW 2 who sold the land to one Juma Rashid Idd. There was no forgery of the Appellant's signature. That is why the Appellant failed to cross-examine the witness (DW 2) implying that Appellant admitted that there was transfer from Appellant to DW 2. A case of Bomu Rahamad v. Hamis Amiri, Civil Appeal No 99 of 2018 articulates about this aspect in last but one page. The 5th ground is one failure to analyse evidence or record. It was Appellant's case that trial chairman ought to have analysed and considered all the documents admitted as exhibits by trial tribunal prior to issuance of judgment. Ignoring analysis of the exhibits on record resulted into miscarriage of justice by trial court. It was Respondent's submission that trial tribunal's judgment adhered to all the requirements and procedure of judgment writing. Trial tribunal analysed the available evidence with focus on issues for determination before the court. Respondent argues that testimonies of DW 1 was corroborated by evidence of DW 2 and DW 3. Also, exhibits were analysed especially Exhibit D4 and D. 5, It was submitted that trial chairman did analyse the 9 | P a ge record comprehensively and appropriately arrived at a decision in favour of the Respondent as rightful owner of disputed land. On vacant possession order is the 6th ground parties submitted to support their respective views. Appellant reiterated that there no such prayers in the pleadings of the Respondent nor did the Respondent pray for same during the hearing proceedings. Appellant urged this Court to find out that parties were bound to adhere to their respective pleadings as per Order VI rule 7 of the CPC and the court would not be justifiable to order on a prayer that was not requested by that respective party. The Respondent submitted that order of vacant possession was justifiable as the Appellant had prayed for the Court to grant the same in their favour at paragraph 7(h) as part of any other relief that the Honourable tribunal deems fit and just to grant. Also, among the issues for determination by the tribunal included issue number three- To what reliefs are the parties entitled to? Given the circumstances, it was necessary for the tribunal to grant as Appellant had stated in the Application that the Respondent dwells in disputed land. According to the Respondent, order of vacant possession had not prejudiced the Appellant. Further, Respondent argued that there was no departure nor amendment to pleadings thus Order VI rule 7 CPC is irrelevant. It cannot be argued that such application of the legal principle contravened any prevailing laws as it was within mandate of the trial tribunal to grant. 10 | P a g e I The 7th ground centred on the failure by the tribunal to call crucial witness. It was the submission of the Appellant that a counsel who witnessed a sale transaction of disputed property between Consolata Daudi Nailya and Allen Alvin Uronu was critical in the circumstances. Trial tribunal failed to call this witness. It was the duty of trial tribunal to adjudicate the matter conclusively and in finality by having an opportunity to hear from a person who is allegedly to have witnessed transaction that transferred land in a chain of events. The Respondent argued that it is distortion of the truth alleging that trial tribunal failed to call a witness. The proceedings are not indicating that at any material time the trial tribunal issued an order that there was an important witness required. It was Appellant Counsel who informed the tribunal that there existed such order. Until the end that witness had not been called nor appeared to testify. As such, this ground lacks merits thus it should be dismissed. In brief rejoinder, the Appellant argued that DW 2 one Allen Alvin Uronu was cross examined on pleadings and issues before trial tribunal. The main issue was ownership of land in question, and it is one of the areas that DW 2 was cross examined by the Counsel for Applicant. Further on title and ownership, it was reiterated by the Appellant that Appellant's title had been lost and a new one was obtained before all the 11 | P a ge subsequent transactions the counsel for Respondent tries much to impress the Court. The main issue in this appeal is whether the trial tribunal was justified to declare the Respondent a lawful owner of the disputed land? I will commence by pointing out some relevant facts as can be simply gathered from the record. First, land in dispute is a registered land with a Title Deed. Second, during the hearing of the matter, the disputed property was/is registered in the name of the Appellant. Third, save for Exhibits D 1, D5 and D 6, majority documentary evidence tendered by parties on ownership, land use plan, development plan and permits bear the name of the Appellant. Fourth, all annual land rent payment receipts are in the name of the Appellant. Fifth, the foundation of the respondent's case is the Sale Agreement dated 19/1/2018 between the Appellant and Allen Alvin Uronu. In resolving substantial issues regarding this appeal, only two aspects are fundamental. First, the existence of certificate of title and its effects. Second, validity of sale agreement between the Appellant and one Allen Alvin Uronu. Resolutions in these matters cater for all grounds of appeal except the issue of assessors that will be analysed separately at the end. To underscore the nitty-gritty of law governing land matters is pertinent to highlight some critical aspects. The Land Act, Cap 113 R.E. 12 | Page 2018 contains salient features pertaining to Granted Right of Occupancy. For purposes of the matter at hand, the following are the relevant incidents of the Granted Right of Occupancy namely: required to be registered under the Land Registration Act, to be valid and, subject to the provisions of that law and this Act, indefeasible; for an annual rent which may be revised from time to time; subject to any prescribed conditions; and capable of being the subject to the subject of dispositions. See Section 22(1) (d), (g), (h) and (i) of the Land Act, Cap 113 R.E. 2018. The validity and indefeasibility of the Right of Occupancy emanates from land registration with the Registrar of Titles. It goes without saying that whoever has complied with registration process of the Right of Occupancy is regarded to have a superior title over a person who has not taken any step to register such land. The rights of holder of title over land cannot be extinguished without adhering to all due process regarding either disposition or revocation of such Right of Occupancy. The importance of registration of the title is articulated in Andrew J. M Kitenge vs Maua Hamis Rai & Another (Land Appeal No. 255 of 2022) [2023] TZHCLandD 16501 (23 May 2023). Hemed, J.: at page 8 of the judgment observed that: It should be noted that the suit landed property is a surveyed and has been registered. In surveyed land like the one at hand, the person granted the right of occupancy is given by 13 | P a g e the Commissioner for Lands a "certificate of occupancy" to signify that, such person, is the rightful occupier of the piece of land described in the certificate. It is clear, therefore, that ownership in registered land is established by production of certificate of title before a Court or Tribunal in a dispute. It is a registered owner who is regarded to have a valid and unimpeached title unless the contrary is proved. I am aware that provision of section 33 of the Land Registration Act, Cap 334 R.E. 2019 is clear on the effects of registration of a surveyed land. It provides for superior title and paramountcy to owner of the registered estate over all other interests whatsoever on the same piece of land. Only few exceptions exist to this paramountcy of the estate of registered owner, including where fraud is established; encumbrances registered or entered in the land register; or interest of person whose rights are not registrable. I shall analyse the Exhibits from both parties to this appeal to shed some light in establishing ownership of the disputed land. It is on record that Appellant herein tendered and the tribunal admitted Exhibit Pl which is a certified copy of Certificate of Right of Occupancy i.e. a duplicate. For easy of reference this is referred to as a new title. The Certificate of Occupancy is in the name of Consolata Daud Mallya. It has been certified by the Assistant Registrar of Titles on 23rd July 2018. This documentary 14 | P a g e evidence tallies squarely with two other documents admitted collectively as Exhibit P3. Perusal of the record indicates Exhibit P3 collectively entails a Loss Report dated 20th November 2017 together with ERV 18433011- Government Exchequer Receipt; a Letter dated 28th January 2018 to Registrar of Titles informing the Registrar about the loss of Title Deed No. 16949 DLR from Consolata Daud Mallya; a declaration form under section 38 of the Land Act for a new certificate dated 29th January 2018; and the Land Registration Form No. 66 which is the Application of New Title with attendant Control Number to effect the Application fee dated 2nd February 2018. The Loss Report with Reference No. "DOM/RB/12792/2017 KUPOTELEWA/KUIBIWA NA HATI YA KIWANJA NDUGU CONSOLATA DAUD MALLYA" describes that title No. 16949, Land Office No. 96253/12328 for Plot No. 139 Block C Ilazo North within Dodoma Municipality has been lost/stolen. The contents of all other documents forming Exhibit P3 collectively reflect the same version of a story regarding series of events that happened thereafter reporting of loss of Certificate of Title. These events include informing the Registrar of Titles on the loss of the Certificate, applying for issuance of a new certificate and payment of prescribed application/processing fee. 15 | P a g e J According to the record, result of all these efforts by the Appellant herein is the issuance of a duplicate certificate as Certified by the Assistant Registrar of Titles date 23rd July 2018. The issuance of this New Title restored the ownership of the land in question to the Appellant. This trail of events is in accordance with the provisions of section 38(1) of the Land Registration Act, Cap 334 R.E. 2019. The law provides that: Where it is proved to the satisfaction of the Registrar that a certificate of title has been lost or destroyed or that there is other sufficient cause therefore, he may, after taking such indemnities as he may consider necessary, and giving, at the expense of the applicant, such public notice in the Gazette and in such local or other newspapers and in such other manner as shall appear to him sufficient in each case, issue a new certificate of title. Indeed, this position of the law seems to tally with arguments by the Counsel for Appellant that: first, Registrar of Titles recognises the Appellant as a rightful and real owner of the suit plot by virtue of issuance of a New Title on 23/7/2018. Second, the acquisition of such duplicate Certificate of Title was a culmination of compliance to all legal processes regarding restoration of title once the same is lost or stolen. 16 | P a g e A However, it is noted that DW 1 tendered several exhibits about the ownership of disputed property. Exhibit D 2 collectively contains application for Building permit S/No 3834 dated 12th March 2019 from Dodoma City Council; Application for Approval of Plan dated 25th February 2019; Building Inspection Record with S/No 2713 approved by City Engineer on 13th March 2019; and Building Inspection Report -I with S/No. 2399. These documents were tendered to contradict the Appellant version of evidence on ownership of the suit plot. Perusal of Exhibit D 2 collectively have three main aspects in common. First, all these Applications or permits are in the name of Consolata Daud Mallya. Second, all these documents relate to Plot 139 Block C Ilazo North. This Exhibit D2 collectively indicates that the applicant for the same is one Consolata Daud Mallya. Third, they were made after the New Title has been issued to the Appellant in 23/7/2018. The second set on the Respondent's case to address this aspect of ownership is Exhibit D3 which is a Letter of Offer for disputed plot and the Title Deed for the suit plot. A letter with Reference No. CDA/ED/LA- 15/36172/4 dated 1st June 2006 from the Directorate of Estate Development of the Capital Development Authority (CDA) indicates that one Consolata Daud Mallya was offered a land at Plot 139 Block C Ilazo North for a term of 33 years from 1st October 2006 for residential purposes only. This offer contains conditions for grant of the land in an agreement known as Ground Lease. This offer was preceded by:(l) an application for 17 | P a g e grant of the Right of Occupancy with Reference No. CDA/ED/LA- 15/36172/2 dated 4th March 2005 and approved on 27th May 2005; and (2) letter with Reference No. CDA/ED/LA-15/36172/1 dated 27th May 2006 informing one Consolata Daud Mallya that she has been issued with Plot No. 139 Block C Ilazo North for residential purposes only and required her to finalise payments for the Plot. Further, Ground Lease Agreement No. 12328, bearing CDA/LO No. 96253/12328 for 33 years in Plot No. 139 Block C Ilazo North Dodoma Municipality (Title No. 16949-DLR) issued vide a Letter dated 7th October 2009 with Reference No. LR/DOM/T/16949-DLR/3 was Exhibit D 4. This Exhibit D 4 for easy of reference is referred to as an Old Title. This provides for terms and conditions regarding ownership of the suit plot. It was entered into between Capital Development Authority on one hand and Consolata Daud Mallya of P.O. Box 1864 Dodoma. It is not in dispute that Exhibits D. 3 and D. 4 refer to the disputed land in question. Also, parties are not disputing that these two Exhibits bear the name of the Appellant herein. Furthermore, parties are not at issue regarding this historical chain of events on how the original owner acquired the land in dispute. The only point of departure is that each party claim ownership is proved by these documents in his favour. The Appellant is of the view that these exhibits establish ownership as it was before reporting of loss of the Old Title. It is Appellant further view that issuance 18 | P a g e of the New Title had effect of terminating any interest over the suit plot held by anyone else as the ownership was revived to the original owner. On the part of the Respondent arguments are different. First, these documents were in possession of the Respondent to signify that he is owner of the disputed plot by virtue of series of sale agreement between Appellant and Allen Alvin Uronu dated 28th January 2018(lst Sale Agreement). This agreement triggered other transaction of sale and disposition of the title through one Juma Rashid Idd (2nd Sale Agreement) who later disposed the same to the Respondent herein (3rd Sale Agreement). These agreements in their collectivity from Exhibit DI. Second, there is no any claims from the Appellant that her signature in the First Sale Agreement was forged. Third, evidence regarding these sale agreements was not challenged by Appellant thus it is an admission that there was transfer of the title from the Appellant to the Respondent via the other two sales of the same plot in question. Thus, it was right that the Respondent is the rightful new owner of the suit property. A close examination of all these exhibits namely Exhibits P 1 and P2 on one hand, and Exhibits D.2, D. 3 and D 4, on the other hand, in totality points to the same conclusion that rightful owner of the suit plot is the Appellant. The reasons are simple and straight forward. First, all five Exhibits reflect that the registered owner of the land is one Consolata Daud Mallya. Second, a trail of events leading to original acquisition of the landed 19 | P a g e property in question is not in issue. It is one Consolata Daud Mallya who applied by the Capital Development Authority for grant of the title in 2005 and consequently granted an offer in 2006 and issued with a title deed in 2009. Third, issuance of New Title to the Appellant one Consolata Daud Mallya on 23rd July 2018 had two implications legally cementing the ownership of the disputed land to the Appellant. The first limb of the legal implication is that Consolata Daud Mallya regained all the interests and rights over the disputed land as a registered owner of the title. The second limb is that New Title extinguished all rights and interests in the Old Title. This is not only a statutory legal position in Tanzania but also the position under judicial pronouncements from the Court of Appeal of Tanzania. Sections 33 and 38(1) of the Land Registration Act, Cap 334 R.E. 2019 recognise that the registered owner has a paramount and superior title over land. It is the position of the law that issuance of New Title recognises that holder/owner of that title as the rightful owner of that land. Indeed, registration of the title over disputed land through issuance a New Title fortified a cause for the Appellant. It entrenched the validity and indefeasibility of ownership by the Appellant against any other person. See section 22(1) (d) of the Land Act, Cap 113 R.E. 2019. The Court of Appeal has had an opportunity to address a question of ownership in circumstances of this nature. In the case Melchiades John Mwenda vs Gizelle Mbaga & Others (Civil Appeal No. 57 of 2018) 20 | Page [2020] TZCA 1856 (13 November 2020), the Court of Appeal held instructively at page 22 that: Thus in 2009 when the said John Japhet Mbaga purported to sell the disputed land to the second respondent, he had no good title to pass to him. We are of the view that the fact that the second respondent is in possession of the original Certificate of Title which allegedly disappeared from the office of the appellant, is not ipso facto proof that he is the lawful owner of the disputed land. We are asking ourselves, what was the status of the original Certificate of Title after the certified Certificate of Title was issued. We think the original one became invalid and could not be used in any transaction thereafter. We say so because two documents cannot legally co-exist in respect of the same plot. The fact that Respondent was in possession of all the documents indicating the chain of events on acquisition and issuance of certificate of title in 2009 to the Appellant does not make him rightful owner of the landed property in question. I have not forsaken the nexus of 1st Sale Agreement and its subsequent transactions that gave rise to claim of ownership by the Respondent. I shall revert to discuss them shortly in this decision. 21 | Page I have stated in passing that issuance of New Title did extinguish any claims, rights and interests over the disputed plot in favour of anyone who might be in possession of the Old Title. The legal position is lucidly provided for under section 38(2) of the Land Registration Act, Cap 334 R.E. 2019. The Act states that: "A new certificate of title issued under the provisions of subsection (1) shall be deemed to replace for all purposes the certificate of title previously issued, and any person discovering the certificate previously issued shall surrender it to the Registrar for cancellation by him." It is on this legal position that the Court of Appeal in Melchiades John Mwenda vs Gizelle Mbaga & Others (Civil Appeal No. 57 of 2018) [2020] TZCA 1856 (13 November 2020), stated that: In view of the provisions of section 38 reproduced above, we think, when the Registrar of Titles issued a certified Certificate of Title the old original Certificate of Title was no longer valid and, in terms of subsection (2) of the Land Registration Act reproduced above, the second respondent ought to have produced it before the Registrar of Titles for cancellation. Therefore, from a legal point of view demonstrated above, validity of Exhibit D4 which is the Old Title ceased to have effect on 23rd July 2018 22 | P a g e immediately on issuance of the New Title. It could not confer any rights or otherwise as legally it does not exist. Also, there is one more observation before we conclude this aspect. I have noted that there are receipts regarding the disputed land. There were three receipts of a significant importance in at least pointing out the ownership question. Exchequer Receipt No. 27629963 dated 27th February 2007 on Ground Lease fee for Plot No. 139 Block C Ilazo North. Also, there in on record, Land rent assessment dated 20th February 2019 and Receipt No. 99013022513 dated 21st February 2019 acknowledgement payment of annual land rent of TZS 284,950.00. These receipts indicate that the person who paid the same is Consolata Daud Mallya and it is indicated as the owner of Plot 139 Block C Ilazo North. It was the decision of the Court of Appeal in the Registered Trustees of Joy in The Harvest vs Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139 (28 April 2021) that receipts are not conclusive evidence of ownership. The Court, at page 12 and 13 stated that: We must pose here and clarify one point, that is receipts that were tendered to show that the respondent was paying land rent in respect of the disputed property, cannot legally be considered conclusive documentary proof vesting title or 23 | P a g e conferring ownership of the disputed property to the respondent. I am of settled view that though receipts per se do not establish ownership, yet these ones had a significant value in terms of compliance with law governing land matters in Tanzania. Section 33 of the Land Act, Cap 113 R.E 2019 is instructive regarding the payment of annual rent. It states that: 33.-(l) The holder of a right of occupancy shall, subject to the provisions of this section pay an annual rent for that right of occupancy in the manner provided for under the provisions of the Public Finance Act. Simply, this section requires mandatorily that the owner of the certificate of occupancy should pay rent on annual basis for that land he is owns. This is one of the mandatory duties imposed on owners of registered land in Mainland Tanzania where disputed land is situated. These are vital only as corroborating evidence on ownership as the ownership of land is proved by presence of certificate of title. As I have pointed out above, the receipts admitted as part of the evidence regarding payment of annual land rent would in effect cement the conclusion that ownership of land in dispute belonged to the Appellant as 24 | P a g e whoever paid had knowledge that land is under the registered owner named Consolata Daud Mallya. In concluding this aspect, I am guided by the decision of the Court of Appeal in the case of Athuman Amiri v Hamza Amiri and Aida Amiri, Civil Appeal No. 8 of 2020, where it stated that: It is settled that the certificate of title is conclusive evidence to prove ownership over the land unless proved otherwise. It is the Appellant, one Consolata Daud Mallya who is the rightful owner of the land in dispute as she possesses a conclusive, valid and indefeasible title over the land. The New Title (Exhibit P.l) which reflects that a registered owner of Plot No 139 Block C Ilazo North is Consolata Daud Mallya is the conclusive evidence that is being referred to. Throughout, since 2009 when the Appellant obtained ownership through Old Title, she has remained the rightful owner todate as evidenced conclusively by issuance of New Title on 23/7/2018. I will turn to address the nexus that made the Respondent believe that he is rightful owner of the disputed land. Though there are three sale agreements tendered collectively as Exhibit D 1, I am of a settled view that is only a single agreement between Appellant and one Allen Alvin Uronu that is fundamentally the basis that purports to transfer ownership 25 | P a g e from the Appellant to third parties. The rest sale agreements depend on validity and enforceability of the 1st Agreement as I have termed it. Record indicates that Exhibit DI collectively comprises of a document termed by Counsel for Respondent as a sale agreement between one Consolata Daud Malya and Allen Alvin Uronu. Cover page of the document is entitled "Transfer of An Offer of Right of Occupancy (under Section 62)" and its gives description of as follows: Title Number: 16949-DLR, LO NO: 9623/12328 Plot No. 139 Block C ILAZO NORTH, DODOMA MUNICIPALITY. It comprises Land Form 35 which indicates that in consideration of sum of Shillings seven million five hundred thousand (TZS 7,500,000/=) one Consolata Daud Mallya of P.O. Box 1864 Dodoma transfers to Allen Alvin Uronu of P.O. Box 285, Dodoma Tanzania Ground Lease registered under the above reference. This document indicates that it is signed by Transferor and Transferee. Similarly, the Land Form No. 29 which is Notification to the Commissioner for Lands on Disposition between the same parties indicating that it is a disposition of a sale nature. The same features appear in Land Form No. 30 which is an Application for Approval of Disposition. All three documents purporting to transfer the Right of Occupancy (though it is termed as "Transfer of an Offer of Right of Occupancy") are dated 29th January 2018. 26 | P a g e A simple question that trial Chairman ought to have asked and resolved regarding these documents is whether the same constitute a valid transfer of the Right of Occupancy in the eyes of law. It is only an affirmative answer to this question would have guided trial Chairman to reach to a legally acceptable conclusion. In addressing this question, I thought it is important to state at the outset that transfer of right of occupancy is permitted by law as one of the forms of disposition. The law allows registered land to pass hands. It is one of the major characteristics of registered land under section 22(1) (i) of the Land Act, Cap 113 R.E. 2019 as we have pointed earlier. Section 36 of the Land Act, Cap 113 R.E. 2019 requires mandatorily that any disposition of right of occupancy should comply with the requirement of the law. One of such basic requirements is the approval of the Commissioner to any disposition of the right of occupancy. Further, the law under sub section (2) states that failure to comply with requirements including that of Commissioner's approval renders the disposition void. Furthermore, provisions of section 37(1) and (5) is categorical that Commissioner for Lands have powers to consider and approve disposition and if there is any disposition that fails to meet this criterion then it should not be operative to dispose that land. It is on record that conspicuously 1st Sale Agreement indicates absence of approval of the Commissioner for Lands to that alleged transfer 27 | P a g e of the right of occupancy of the disputed land. The three documents do not show that the same were approved by the Commissioner. Also, there are no indications that any mandatory application fees were paid. On this first limb of the relevant approval by Commissioner, it is evident that the 1st Sale Agreement is ineffectual and inoperative under the law. Indeed, all the remaining 2nd and 3rd Agreements share this fundamental anomaly. The second limb, relate to failure to register the disposition in question. The land in question being surveyed land would entail that every disposition of right of occupancy including sale such disposition must be registered. Registration of disposition is mandatory under section 61 and 62 of the Land Act, Cap 113 R.E. 2019. To cement this point, let me quote section 62(2) of the Land Act for easy of reference. (2) No instrument effecting any disposition under this Act shall operate to sell or assign a right of occupancy or create, transfer or otherwise affect any right of occupancy, lease or mortgage until it has been registered in accordance with the laws relating to the registration of instruments affecting the land in respect of which the disposition has been made. It can be gathered from the above provision of the law that absence of registration of disposition invalidates any attempt to sell, transfer or 28 | P a g e assignment of the Right of Occupancy. Such incompleteness and ineffectual process does not change the status regarding ownership of land. In addition, registration requirement for disposition, sale of right of occupancy inclusive, is covered in the Land Registration Act, Cap 334 R.E 2019. Section 41 of the Act provides as follows: 41. (1) The disposition of land shall be registered by the Registrar. (2) An applicant for disposition of land shall submit to the Registrar all relevant documents accompanied by a prescribed fee. (3) When so registered, a disposition shall be effectual to create, transfer, vary or extinguish any estate or interest in any registered land. (4) Upon registration, the Registrar shall submit a notice accompanied by the relevant document to the Commissioner for Lands who shall enter in the register particulars relating to such change of ownership. A disposition becomes valid and have a legal effect only when it has been registered with the Registrar of Titles. As we have demonstrated, registration process entails payment of relevant prescribed fees payable to the Government as per law. Without completion of registration of 29 | P a g e disposition, it is evident that under the law title remains with the transferor as nothing passes on non-compliance with the law. I will hasten to observe that 1st Sale Agreement does not pass this test of validity too. It is alleged that disposition was done on 29th January 2018. Until determination of the impugned judgment by trial tribunal in February 2022, neither of the purported three dispositions (1st, 2nd and 3rd Sale Agreements) had been registered under the Land Registration Act as required by the law. The law uses terms "inoperative", "void" and "shall not effect sell or assign or transfer..." implying that non-compliance with legal requirements on disposition renders a disposition unenforceable under the law. I am quite aware of the existence of provision of section 10 of the Law of Contract Act, Cap 345 R.E. 2019 that provides that for an agreement to be valid the same should not have been outlawed. It states that: 10. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void: As observed in the preceding paragraphs, the Land Act explicitly declares that non-compliance to disposition procedures makes the 30 | P a g e transaction inoperative or void. In simple terms, an agreement purporting to dispose land through sale without complying with approval of the Commissioner and registration to the Registrar of Titles is not valid in eyes of the law. Such disposition is neither recognised under the Land Act, Cap 113 and Land Registration Act, Cap 334 R.E. 2019 nor under the Law of Contract Act, Cap 345 R.E 2019. Though ordinarily one would have thought having reduced the disposition in writing and witnessed by Commissioner for Oaths/Advocate makes such disposition recognised by the law, in actual sense legally that is not correct position. A mere fact that the same has not complied to the fundamental laws governing such transactions makes the disposition void as the Law of Contract exclude all agreements that are explicitly are declared to be void by any written law. In the circumstances, I am inclined to find that in eyes of the law there was no valid sale agreement between the Appellant and one Allen Alvin Uronu. It is my firm view that there was no sale agreement of the right of occupancy regarding Plot No. 139 Block C Ilazo North within Dodoma Municipality that would have transferred ownership of that piece of land in the prevailing circumstances. Any attempt to validate a purported disposition agreement that does not adhere to the requirements set forth in the law is illegal and of no effect. 31 | Page That being the case, Mr. Allen Alvin Uronu did not obtain any valid title from the purported sale agreement dated 29th January 2018. It flows naturally that the 2nd and 3rd Sale Agreements would fall in the same line of lacking the feet to standi as they are based on inexistent title over the land. As Counsel for Appellant submitted, circumstances of this matter fall within ambits of a principle of caveat emptor. The land in question being a registered land implicitly the law imposes a fundamental duty on part of the purchaser i.e. the Respondent to enquire from the Registrar of Titles as to the ownership of the suit plot. The judicial pronouncements in Tanzania are not short of the analysis on the matter. I will just refer to only two of them to illustrate this point. In Abdallah Irunde vs Msunga Mtunda and Another (Misc. Land Appeal 38 of 2019) [2021] TZHC 2488 (5 March 2021), at pages 5-6, Siyani, J.:- (as then he was) succinctly held that: In this case, it is undisputed that the original owner of the land is Msunga Ntunda who never transferred its ownership to seller. Therefore, even though the land was sold in the presence of the village leaders that alone does not make Abeid Msunga the owner of the suit land. Abeid Msunga did not have a good title to pass it over to the appellant. The Appellant took the risk of buying the land from a person who 32 | P a g e does not own it. This is where the doctrine of caveat emptor applies. Caveat Emptor means "buyer beware." It basically conveys the message that the buyer must protect his or her own interests when making a purchase or transaction. The appellant ought to have obtained all available information before he finalizes the purchases. Failure to do so presupposes that purchased the land from a person who did not own it at his own risk, and he cannot demand for ownership of the land from the real owner. It was his responsibility as the buyer to investigate about the title of the land before he purchased the land. Therefore, the buyer purchased the land at his own risk. Ultimately, he bought the land from a person who did not own it, he must take the risks and thus there is nobody else to blame. The buyer must deal with the consequences of his selection. As I have pointed out that the allegedly first purchaser did not obtain any valid title over the land in question. It arises thereat that the second and third purchasers were duty bound to establish validity of the ownership of the title over land each of them was purchasing. They have failed to act diligently at their own detriment. 33 | P a g e In a recent decision in Crescent Impex (T) Limited vs Mtibwa Sugar Estates Limited (Civil Appeal No.455 of 2020) [2023] TZCA 17501 (16 August 2023), the Court of Appeal at page 17 stated that:- We are well aware of a Latin phrase "Caveat Emptor" means buyer beware. It basically conveys the message that the buyer must protect his or her interest when making a purchase or transaction. The buyer ought to have obtained all available information before she finalizes the purchase. Under this doctrine, it is the buyer's responsibility to examine the risks of the contract. I fully subscribe to jurisprudence enshrined in these two decisions regarding the duty of the purchaser to ensure that he exercises some level of diligence to establish basic information regarding a property he/she is buying before finalizing the transaction. Failure to adhere to this principle means he has taken all the risks relating to that transaction. It is my humble observation that given circumstances surrounding legality of the Sale Agreements, bringing to Court a person who witnessed the 1st Sale Agreement does not rescue demise of the ship. Non­ compliance touched to mandatory requirements thus his testimony to have witnessed sale of landed property was of no value whatsoever. Existence of New Title over that piece of land could not be impeached with any oral 34 | P a g e testimony. I thus, do not see any importance of the witness referred to as crucial witness for disposition of the Right of Occupancy. It appears that trial Chairman did not take trouble to analyse details of admitted Exhibits during hearing of the matter. Analysis of such exhibits would have assisted the trial tribunal to reach into a sound conclusion which is based on the law. It would be countenance of illegality to find out that there was a disposition of land through sale from the Appellant to Allen Alvin Uronu. Without mincing words, the trial Chairman grossly erred to dismiss the evidence contained in Exhibit P2 (New Title) by not according to it evidential weight in preference of the sale agreement (Exhibit D 1) that was incomplete disposition and completely is non-compliant to the law governing disposition in Tanzania. There was no justification whatsoever to make a decision that contravenes the explicit provisions of the Land Act, the Land Registration Act, and the Law of Contract Act, as well as numerous decisions of the highest court of the land, the Court of Appeal. Based on the foregoing analysis, it is my firm view that trial Chairman erred to enter judgment and decree in favour of the Respondent herein given the available evidence on record. There was no iota of evidence to substantiate dispossession of the rightful owner, who is the Appellant, her entitlements protected by law. 35 | P a g e It is my conviction that the analysis so far disposes grounds 3, 4, 5, 6, 7 and 8 of the grounds of appeal by finding them meritorious to warrant upholding the appeal. Regarding the 1st ground on opinion of the assessors should not detain the Court. It was submission of Counsel for Appellant that the same were not read in presence of the parties. However, Counsel for Respondent argued uncontroverted that Counsel for both Appellant and Respondent appeared before trial tribunal on that material date. It was further submitted that opinion of the assessors was read in presence of the parties in the morning hours of that date prior to trial tribunal retiring to consider the same so that it would deliver its decision in the afternoon. At this point, I concur with the Counsel for Respondent that settled matters should not be disturbed unnecessarily. As such, the records of the trial tribunal will not be impeached at this juncture for unwarranted reasons. I therefore find no merit on this ground of appeal thus I dismiss it for being devoid of merits. On inference by trial tribunal that Appellant did appear in Court to defend her/his case is also relatively not crucial at this point having regard to the foregoing analysis. I should hasten to say that what the law demands is that each party should establish its case to the required standard. For civil matters like this one, the standard is on preponderance of probability. It does not demand as a mandatory rule that the 36 | P a g e Plaintiff/Applicant or Defendant/Respondent must appear in person as a witness. However, either party is just bound to establish its own case by bringing evidence in form of witnesses and documents. Having analysed the crucial issues in the foregoing part of the decision, I am of a settled view to find that the trial Chairman erred in law and in fact to enter judgment and decree in favour of the Respondent. The evidence on record is lucid and clear that the owner of the suit land is the Appellant one Consolata Daud Mallya, who has a conclusive title issued on 23rd July 2018 (New Title) even prior to the 2nd and 3rd Sale Agreements. The Respondent purchased land from a person who had no valid title at all in eyes of law. It is evident therefore that the Respondent did not acquire any title over the disputed land as all the three transactions relating to purchase of the respective suit land were not in compliance to the legal requirements. Non-adherence to the mandatory requirements of approval by Commissioner for Lands and registration by the Registrar of Titles have effect of precluding disposition from being legally made disposition. It results into illegality of the disposition transaction. As such, except for few grounds I have explicitly stated otherwise in this decision, it is my considered view that Respondent does not possess any legal title over the land in question. No title could have passed from a person without valid title. 37 | P a ge In totality of events, I quash and set aside both Judgment and decree of the trial tribunal dated 9th February 2022 in Land Application No. 17 of 2019 to the extent elaborated herein. I hereby substitute the same with judgment in favour of the Appellant. Consequently, I hereby declare Appellant one Consolata Daud Mallya as the rightful owner of the disputed land and that Respondent one Mathew Silayo is a trespasser to that plot of land and should give vacant possession forthwith. In the upshot, appeal is allowed with costs. It is so ordered. DATED and DELIVERED at Dodoma this 15th day of November 2023 JUDGE 15/11/2023. 38 | P a g e