EMMANUEL BIYENGO VS TABORA MUNICIPAL MUNICIPAL COUNCIL AND OTHERS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (TABORA SUB-REGISTRY) AT TABORA LAND CASE NO. 06 OF 2023 EMMANUEL BIYENGO ...................... ....... PLAINTIFF VERSUS 1. TABORA MUNICIPAL COUNCIL 2. COMMISSIONER FOR LANDS 3. ATTORNEY GENERAL .............. DEFENDANTS 4. DAMIANO MANUS MAKUNGA 5. SEIF RAJABU KADUGUDA JUDGMENT Date ofLast Order: 04.12.2024 Date ofJudgment: 05.02.2025 KADILU, J, The plaintiff is claiming jointly and severally against the defendants the general damages for disturbances caused to him-, loss of accommodation, reputation, and mental anguish. He prayed for the court to declare him the owner of the disputed land, order the defendants to give vacant possession of the suit land, return his lost five trips of building materials on the land in dispute, and pay him the costs of the suit. He alleges that he is the owner of Plot No. 289 Block B situated in Malolo area within Tabora Municipality after having purchased it from the 5th defendant in October 2021. The plaintiff avers more that the 1st defendant allocated the same plot to the 4th defendant. On his part, the 4th defendant contends in his written statement of defence that he purchased the disputed land from one Ramadhani Shabani Lutaha in January 2018, and in 2022 he obtained a certificate of occupancy i from the 1st defendant. Therefore, the court determined two issues namely, whether the plaintiff is the lawful owner of the suit land, and to what reliefs are the parties entitled? During the hearing, the plaintiff appeared in person without legal representation, the 1st, 2nd' and 3rd defendants were represented by Mr. Samwel Mahuma, the learned State Attorney whereas Mr. Ally Maganga, also the learned Counsel, represented the 4th and 5th defendants. The 5th defendant testified as PW1 and informed the court that he sold the disputed land to the plaintiff for TZS. 1,500,000/= but he does not remember the day, month, and year of the transaction. According to him, a year after the sale, the 4th defendant started construction on the disputed land alleging that he purchased it from a person known as Mpoki. Mr. Mpoki asserted that he was compensated the suit land by the 1st defendant after his original plot was allocated to someone else. PW1 stated that he owned seven (7) acres of family land in Malolo which belonged to his deceased father, Nassoro Ham is. He added that he was appointed the administrator of the deceased's estate but he had no proof for it. He also said he surveyed the disputed land but he had no letter of offer. The plaintiff (PW2) testified that he purchased the suit land from the 5th defendant on 26/10/2021. He tendered a sale agreement, Exhibit "Pl." He elaborated that after the purchase, he took five (5) lories of building materials to the plot in dispute. In April 2022, he realized that the 4th defendant had started construction on the disputed land so, he referred the dispute to the ward tribunal for conciliation, which failed. PW2 did not conduct an official search from the 1st defendant before the purchase. He 2 told the court that he saw the 5th defendant's document of ownership and believed that the land was his although he was not given such document In his testimony, the 4th defendant (DWl) told the court that he was given the disputed land freely by Ramadhani Shabani Lutaha in 2013. In 2016, the Ist defendant allocated the suit land to Ramadhani who later wrote a letter requesting the 1st defendant to transfer the plot to DWl. Thereafter, DWl paid the required expenses and in 2022, he was issued with a Certificate of title. In the same year, the 5th defendant alleged that the plot belonged to him and, he had already sold it to the plaintiff hence, the dispute arose. According to DWl, on the disputed land there is his residential house which he constructed from 2022 to 2023. On cross-examination, DWl stated that Ramadhani had passed away and he could not get the administrator of his estate. He does not also remember when Ramadhani died and no member of Ramadhani's family witnessed when he was giving DWl a piece of land. When the court sought clarification from him as to whether he purchased the plot or it was allocated to him, he replied that he was allocated the disputed land. He explained that he did not purchase it as indicated in his written statement of defence. DW2 who was the Land Officer at Tabora Municipal Council testified that Plot No. 289 was initially owned by Ramadhani Lutaha under customary right of occupancy. He sold it to the 4th defendant in 2018 who is the current owner according to records. After the sale, the 4th defendant paid the required fee hence, the plot was transferred to him. DW2 prepared a certificate of occupancy for the 4th defendant and sent it to the Land 3 Commissioner on 10/6/2022 for approval. On cross-examination, DW2 stated that she did not know how the 4th defendant got the disputed land. Gila la Robert Luhoda (DW3) narrated that in 2010 he was the Chairman of the land allocation committee in Korn bo ma sal Street. The 1st defendant surveyed the plots in that area whereby Plot No. 289 was allocated to Mr. Ramadhani Lutaha because he was the farmland owner before the survey. After the survey, Ramadhani informed the committee that Plot No. 289 belonged to the 4th defendant. He requested the committee to write a letter to the 1st defendant introducing the 4th defendant as the owner of that plot. Having set out the facts of the case, issues, and the evidence presented, the task before me is to resolve the contention between the parties. I will start with the first issue which needs me to determine whether the plaintiff is the lawful owner of the land in dispute. It is common knowledge that in Tanzania one may acquire land in various ways including by allocation by the Government authority, purchase, inheritance, gift, and through adverse possession. In the case at hand, the plaintiff tendered a sale agreement, Exhibit Pl which shows that he purchased the land from the 5th defendant. The 5th defendant claims that the disputed plot is part of 7 acres of his family land owned by him and which belonged to their deceased father. He, did not, however, present any proof that he was an administrator of the estate of their late father. It is an elementary rule of law that the only person who can deal with the estate of the deceased is a legal representative as an administrator/administratrix of the estate. The law is clear that by being duly 4 appointed administrator of the estate, a person becomes a legal representative of the deceased for all purposes and all the properties of the deceased person are vested on him as such. This is per Section 99 of the Probate and Administration of Estates Act and the case of Joseph Shumbusho v. Mary Grace Tigerwa & 2 Others, Civil Appeal No. 183 of 2016 in which the Court of Appeal stated that: "As legal representative of the deceased's estate, all the deceased's estate are vested to him, and has all the powers over the deceased assets as the deceased would have, save that he is acting in a representative capacity." In this regard, the 5th defendant has not established that he had a title over the disputed land that he purported to pass to the plaintiff. For him to be legally capable of transferring the disputed land to the plaintiff, he should have a good title himself. The 5th defendant averred that the land belonged to him and he has a site map in proof thereof. With due respect, the site map has never been a proof of land ownership in Tanzania. The 5th defendant's obligation in this case was twofold; to establish that their deceased father owned the disputed land legally, and to prove that in selling it to the plaintiff, the 5th defendant acted as an administrator of the estate. I am of a considered view that the 5th defendant failed to discharge any of the above duties. He has failed to show how his late father got the land in dispute. This would help the court appreciate that his transferor had a good root title to enable him to transfer it to other persons such as the plaintiff. The law is settled in our jurisdiction that one cannot give what he does not have. Thus, the 5th defendant purported to sell the land to the plaintiff while he was not its owner. As such, the purported sale was legally 5 ineffectual and Exhibit Pl does not serve any purpose in proving that the plaintiff is the lawful owner of the land in dispute. This court finds further that the plaintiff has not managed to discharge the burden of proof stipulated under Sections 3 (2) (b) and 110 (1) of the Evidence Act, [Cap. 6 R.E. 2022]. Specifically, the provisions provide that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist, and the standard of proof is in a balance of probabilities. As I have endeavoured to show, the plaintiff, in this case, has failed to discharge both factual and legal burdens of proof. On the other hand, the 4th defendant prays for this court to deciare him the lawful owner of the disputed land because he possesses a certificate of title over it. I should state at the outset that neither in the pleadings nor on evidence had the 4th defendant produced the alleged certificate of title. He kept on narrating that he had it without producing the same, making the assertation mere empty words. Moreover, he indicated in his written statement of defence that he purchased the disputed land in 2018. He did not as well present a sale agreement to prove his contention. During the hearing, the 4th defendant informed the court that he purchased the suit land. The 1st, 2nd, and 3rd defendants stated in their joint written statement of defence that the land in dispute was legally allocated to the 4th defendant. This is a serious contradiction concerning the 4th defendants ownership of the land in dispute. It is settled that parties are bound by their pleadings, and evidence produced by any of them that do not support the pleaded facts or are at variance with the pleaded facts must be 6 ignored. A party can only succeed according to what he has averred in his pleadings and proved in evidence. See, Martin Fredrick Rajab v. Hemeia Municipal Council & Another, Civil Appeal No. 197 of 20.19, the Court of Appeal at Mwanza. I have already indicated that the 4th defendant failed to prove that the land was allocated to him since he did not present any evidence to that effect. Even assuming for the sake of argument that he was allocated the suit land; the question of root title becomes imperative especially where the plaintiff is complaining that the 1st defendant allocated his land to the 4th defendant. On one hand, the 4th defendant alleges that he purchased the land in dispute from Ramadhani Shabani Lutaha. On the other, he contends that the land was allocated to him by the 1st defendant. In each claim, the 4th defendant was expected to produce evidence. If he was firm that the land was allocated to him, he ought to have presented a certificate of title. In case he maintains that he purchased the said land, he was supposed to produce a sale agreement. He did not produce any of these, instead, he kept on changing statements that he purchased the land and it was allocated to him by the 1st defendant. Dr. R.W. Tenga and Dr. SJ. M ram ba in their book titled Conveyancing and Disposition of Land in Tanzania: Law and Procedure, (2017) observe that the registration under a land titles system is more than the mere entry in a public register. It is an authentication of the ownership of or a legal interest in a parcel of land. For a claimant who alleges to have derived land ownership from someone else, he should establish that his transferor had a good root title. 7 The Court of Appeal in Jacqueline Jonathan Mkonyi & Another k Gausal Properties Ltd, Civil Appeal No. 311 of 2020, held: "... we wish to observe that this is not a case of end justifying the means, so we agree that registration of land would not ipso facto prove title in the absence of evidence establishing how one got the title." As for the reliefs to which the parties are entitled, it is the finding of this court that the available evidence is insufficient to declare the 4th defendant the lawful owner of the disputed land. Since the plaintiff has similarly failed to prove that he is the rightful owner of the land in dispute, he is not fit to be declared the owner but the status quo shall be maintained for the ends of justice. The plaintiff's case is thus, dismissed for lack of merit and each party shall bear its costs. Judgment delivered in chamber on the 5th day of February, 2025 in the presence of Mr. Haruna Saidi Abdallah, holding brief for Mr. Emmanuel Biyengo, the plaintiff, Mr. Gureni Mapande, State Attorney for the 1st, 2nd, and 3rd defendants, and Mr. Ally Maganga, Advocate for the 4th and 5th 8