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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO 9410 OF 2024 (Arising from Land Application No. 157 of 2016) DANIEL SUNDAY MWAGISA……….…………..……..….………….………APPELLANT VERSUS GAMALIELI MGOGO MWAKANGALE..……….……….…………………RESPONDENT JUDGMENT Date: 15 January 2025 & 25 March 2025 SINDA, J.: The appellant is aggrieved and wishes to challenge the decision of the District Land and Housing Tribunal of Mbeya at Mbeya (the DLHT). The brief facts of the case are that the respondent claims ownership of the land located at Plot No. 59 Block D within Mbeya Region (the Disputed Property). He alleged that the Disputed Land was allocated to him by the Mbeya Municipal Council in 1996 and was issued an offer of Right of Occupancy by the Ministry of Lands and Human Settlement Development. Therefore, the appellant is trespassing. The appellant claimed he was given 1 the Disputed Land by his father in 1995. The respondent brought the matter before the DLHT and successfully sued the appellant. Now, aggrieved with the decision of the DLHT, the appellant brought this appeal on the following grounds: 1. That, Trial chairman erred in law by refused to join Mbeya District Council to be a party to the case being the interested party who allocated the appellant’s land to the respondent. 2. That the trial chairman failure to recognize that the allocation of the disputed land to the respondent by the Mbeya City Counsel did not follow proper procedures and principles of the land laws of the nation. 3. That, Trial chairman erred in law and in fact to hold that the disputed land is the property of the respondent despite the naked evidence on record that respondent did not pay compensation to the appellant who is an indigenous of the disputed land. 4. That, Trial chairman erred in law and in fact by failure to consider the appellant is living with his family in the disputed land uninterruptedly since his birth and his father as well lived in the disputed land and made exhaustive improvement therein. 2 5. The Trial chairman misdirect himself to hold that the Appellant has never challenged the said title deed while the respondent testified that himself together with the respondent went to the land Register office and they were told that the respondent will be given another piece of land and the same has never been challenged by the respondent; 6. That, Trial chairman erred in fact to hold that the appellant has no any documents evidencing his ownership while the appellant tendered deed of gift which was admitted to form part of his evidence. 7. That, the trial tribunal erred in law and fact for not realized that after the alleged allocation in 1994, the respondent abandoned the disputed land for more than 24 years, never made any development, only emerged in 2016 paid the accumulated land rent, complained to land officer and instituted this matter in trial tribunal hence question even time limitation for recovery possession of the disputed land. 8. That, Trial chairman erred in law and in fact by failure to consider, evaluate and analyses the evidence before it hence reaching into a wrong decision. 3 Hearing of appeal was by way of written submission. The appellant was represented by Mr. Isaya Mwanri, learned counsel. The respondent was represented by Ms. Ezelina Mahenge, learned counsel. Before he commenced his argument on the grounds of appeal, Mr. Mwanri posed two questions before this court first, on whether it is just and fair to chase a person from his home where he living and where will the person go. He added that, the respondent was allocated the Disputed Land with granted right of occupancy, without extinction of the customary right of occupancy owned by the appellant. Submitting for the first ground of appeal, Mr. Mwanri referred to paragraph 6(a)(iii) of the respondent, amended application where the respondent stated that he was allocated the Disputed Property by Mbeya Municipal Council in 1996. The counsel submitted that such facts were contested by the appellant, that the Mbeya Municipal Council didn’t consult or sought the consent of the appellant in allocating the Disputed Property to the respondent. Mr. Mwanri submitted further that the appellant raised a point of law at the DLHT but the DLHT chairman refused to join Mbeya Municipal Council as a 4 part to the case on reason that not in every case about a title deed the respective authorities are supposed to be joined. The counsel added that the evidence of the respondent before the DLHT referred to the Mbeya Municipal Council. Thus, it was imperative for Mbeya Municipal Council to be joined as a party to the suit. That since the allocation authority is the government entity, the DLHT ceased to have jurisdiction because suits against the government authorities need to be instituted in the High Court as the Attorney General will be joined as a necessary party. Mr. Mwanri prayed to argue the remaining grounds of appeal together. He submitted that the granted right of occupancy cannot extinguish the deemed right of occupancy unless the indigenous owners have been compensated. He added that from the evidence adduced, the respondent did not succeed to prove that there was any compensation that was paid to the appellant or his father. He cited the cases of Ntiyahela Boneka vs Kijiji cha Ujamaa Mutala [1988] TLR 156, Attorney General vs Lohay Akonaay & Joseph Lohay [1995] TLR 80, James Ibambas vs Francis Sariya Mosha [1999] TLR 364. 5 The counsel insisted that the appellant is contesting on the procedure on how the Disputed Property was acquired and allocated to the respondent without the appellant’s consultation or compensation. He argued that the certificate of occupancy over the Disputed Property was unlawfully obtained by the respondent for failure to compensate the indigenous owner before it was issued. He cited the case of Rupiana Tangu & 3 Others vs Abdul Buddy & Halik Adbul, Civil Appeal No. 115 OF 2004 to support his argument. It was also submitted by Mr. Mwanri, the fact that the appellant knew the Disputed Property was surveyed since 1995 is an extraneous matter introduced by the chairman in his judgment. He added that from the DLHT proceedings (the Proceedings), the appellant testified that he became aware in 2016 when the respondent approached him before instituting a case at the DLHT. Hence, the counsel averred that the appellant’s evidence was heavier than that of the respondent. In her reply submission, Ms. Mahenge contended that the appellant was not thrown from his home, but he trespassed the Disputed Land which belongs to the respondent. She added that there was no evidence provided by the 6 appellant, that he was born at the Disputed Property and is still in occupation of the same. On the first ground, the counsel argued that the Disputed Land being allocated to the respondent by the Mbeya Municipal Council is not disputed as the right of occupancy speaks for itself. That, joining Mbeya Municipal Council was not mandatory as there were documentary proof of the right of occupancy granted. Also, one Beatrice Simon from the said authority adduced evidence that from their records, the respondent is the lawful owner of the Disputed Property having been granted the right of occupancy since 29 December 1992, before the Disputed Land was allegedly given to the appellant in 1995 by his father. Ms. Mahenge added, that the issue of compensation as contested by the appellant is very weak because there is nowhere the appellant claimed for compensation or made any claim as to wrong allocation concerning the Disputed Property. She continued that the respondent was not amongst the indigenous at the time, as the allocation was done in 1992 while the respondent obtained the land in 1995. As a result, the counsel insisted that joining of Mbeya Municipal Council is unreasonable. 7 Moving to the remaining grounds, Ms. Mahenge submitted that the cases of Ntiyahela Boneka vs Kijiji cha Ujamaa Mutala (Supra), Attorney General vs Lohay Akonaay and Joseph Lohay (Supra) and James Ibambas vs Francis Sariya Mosha (Supra) as cited the appellant’s counsel, are inapplicable in this case because the appellant was not the owner of the Disputed Property at the time of allocation in 1992. She continued that the appellant does not contest the allocation rather the procedure of the allocation and non-payment of compensation. The counsel was of the view that the allocation was as provided under the law. As the indigenous people were paid at the government office. She added, the DLHT was correct to rely on the principle that when two persons have competing interest in landed property, the one with certificate of title thereof will always be taken to be the lawful owner. She was of the opinion that the appellant and his witnesses never succeeded to prove that his father was using the Disputed Property and gave him as a gift. Further, Ms. Mahenge argued that the evidence on the part of the appellant is contradictory and untrue. Where she referred, among others, to the evidence by DW1 and DW2 at page 26 and 29 of the Proceedings in particular. The counsel insisted that the appellant lied at the DLHT, because 8 he initially stated to have no exhibit but after the order of retrial by the High Court he brought the tendered Exhibit D1. Conclusively, she submitted that the evidence of the respondent is heavier compared to that of the appellant because he proved to have the right of occupancy and his witness, the Land Officer, proved that the Disputed Property was allocated to him in 1992. No rejoinder submission was filed. Having gone through submissions by both sides and records of the DLHT. I will now embark on discussing whether I find the appeal with merit. To begin my deliberation, I will address the first ground of appeal that the trial chairman erred in law by not join Mbeya Municipal Council as a party to the case as an interested party who allocated the Disputed Land to the respondent. From the adduced evidence, as aforementioned, both parties claim ownership over the Disputed Property. Nonetheless, the appellant does not entirely deny that the Disputed Land was allocated to the respondent but alluded that he expected to be compensated after the Disputed Land was allocated to the respondent. At page 26 he stated: “Mimi sijawahi kupokea fidia yoyote kutoka Jiji au kutoka kwa mdai” 9 Throughout her submission, Ms. Mahenge insisted that the appellant is not entitled to any compensation because at the time, in 1992, the Disputed Property was not yet given to him but in 1995. As I gathered, the Disputed Land belonged to the appellant’s father who decided to partition the same to his children, the appellant herein included. This is evident from Exhibit D1, tendered at the DLHT. That being the case, I am of a belief that even if at the time the appellant was not in occupation then his father, who was the owner should have been compensated. Generally, the issue of compensation to the indigenous occupier is still a conundrum since the respondent did not provide any proof or clarity on the matter. In my understanding, the land allocation organ, Mbeya Municipal Council in this case, is to grant the right of occupation to a new occupier of land after all the necessary procedures have been adhered to including payment of compensation to the previous owners. According to the respondent’s witness, PW2, stated that the one to pay compensation is the new occupier of land. Further, she stated that the respondent did not bring any proof that he paid compensation to the previous occupiers. This can be seen at page 21 of the Proceedings where she was being cross examined by Mr. Mwanri. The short recap by PW2 goes 10 hand in hand with what was testified by the respondent herein at page 17 of the Proceedings. To wit: “Sina uthibitisho wa maandishi yoyote kuwa nililipa fidia hiyo kwa kuwa sikupewa risiti” “Sijui kama mimi nilitakiwa kumfidia mwenyeji” Sijui kama mmiliki wa awali alifidiwa na Halmashauri ya jiji” As a result, due to the lack of proof in compensation payment, the entire procedure of land allocation done by Mbeya Municipal Council to the respondent become questionable. With that, I agree with Mr. Mwanri that Mbeya Municipal Council was to be joined as a party to shed light on the matter and defend their case. I am afraid sending an envoy, PW2, was not enough. The rationale being, if the case is decided against the appellant, it would in one way or another bring consequence to Mbeya Municipal Council as the land allocation entity without affording them a right to be heard. This was well discussed in the case of Ngerengere Estate Company Limited vs Edna William Sitta, Civil Appeal No. 209 of 2019. The Court of Appeal explained: “In view of the settled law on the right to be heard, we are of a serious considered view that, it will be absurd for this Court to make any order against the Registrar of Titles as prayed by the appellant without availing her opportunity to be heard. In this regard, we agree with Mr. Lutema that, 11 the Registrar of Titles ought to have been joined as a party in the application before the High Court failure of which amounted to a fundamental procedural error and occasioned a miscarriage of justice which cannot be condoned by the Court by hearing the appeal.” From the foregoing, I find merit in the first ground of appeal and therefore will not proceed to discuss the remaining grounds. Consequently, the appeal is allowed for failure of the DLHT to join the necessary party the Mbeya Municipal Council which was important to the case. I therefore quash and nullify the judgement and Proceedings of the DLHT. The parties are at liberty to include the necessary party and institute the case at a court of competent jurisdiction. I make no order as to costs. It is so ordered. Right of appeal explained. DATED at MBEYA on this 25 March 2025. A. A. SINDA JUDGE 12