LAND CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 196 OF 2023 EQBAL EBRAHIM..................................................... PLAINTIFF

VERSUS COMMISSIONER FOR LANDS.................................. 1st DEFENDANT ATTORNEY GENERAL.............................................. 2nd DEFENDANT

JUDGMENT 07/08/2024&30/8/2024 GWAE, J The plaintiff, Eqbal Ebrahim has filed this lawsuit against the defendants namely; the Commissioner for Lands and Attorney General praying for judgment and decree as follows;- 1. A declaration that the 1st defendant process and issue a Certificate of Title to the Plaintiff for his property at Plot No. 961 Block "H" Mbezi Beach.

2. That, this honourable Court nullify the purported "Lost" Letter of offer depicted in the Daily Newspapers dated 14th November 2022 i 3. That, the defendants bed ordered to pay the plaintiff the costs of this suit and 4. Any other reliefs this honourable Court will deem fit and just to grant. According to the plaintiff's plaint, in 1989 the plaintiff herein was issued a letter of offer bearing reference No. D/KN/ A/29208/ 3/DDM for Plot No. 961, which was subsequently charged to Plot No. 2004 Block "H" Mbezi Beach (hereinafter Suit Plot). That in 1999 the plaintiff found one Arnold Mbuya trespassing the suit plot. Upon request by the plaintiff to give vacant possession in the plaintiff's favour, the said Arnold abundantly refused. Following refusal by the said Arnold to give vacant possession, the plaintiff instituted a civil case in the District Court of Kinondoni via Civil Case No. 164 of 2000 whose judgment was delivered on 17th February 2003. The said Arnold desired to appeal against the decision of the District Court declaring the plaintiff the lawful owner of the suit plot but found him preclusion by the law of limitation. He thus unsuccessfully filed an application for extension of time in order to appeal to this Curt. However, this Court (Juma, J as he then was, and now CJ) dismissed it for want of sufficient cause on 18th Dec 2012. On the 14th October 2022, the

1st defendant advertised the loss of the letter of offer relating to the suit plot 2 and purportedly owned by one Felister Wilson Buzuka, the wife of the Said Arnold Mbuya. On the other hand, it is the version of the defendants through their written statement of defence that, one Rosta Mulima with letter with Ref. No.D/KN/A/29208/l/GSH of 1988 formerly owned the disputed plot. The defendants also stated that, the plaintiff wrongful sued Mr. Arnold Mbuya who was not the rightful owner of the disputed plot in the Plaintiff's Civil Case filed in Kinondoni District Court. The defendants further stated that, the letter of offer purporting to recognise the plaintiff as the lawful owner of the suit plot is not recognised by the Government Authority. Hence, it is not the document to rely upon. Before the trial could start, the Court framed two (2) issues for proof and disproof by the parties and the court's determination. These are:- one, whether the plaintiff is the rightful owner of the suit premises and two, to what reliefs the parties are entitled. During hearing of the case, Captain Ibrahim Mbiu Bendera and Ms. Jesca Shengana represented the plaintiff and defendants respectively. More so, both parties summoned one witness for purpose of proving or disproving the case. The plaintiff appeared in his person as PW1 and the defendants summoned one Kajesa Minga, a senior land officer

from the 1st defendant's office (DW1). 3 In essence, the plaintiff repeated what is pleaded in his plaint. He however added that, he made follow-ups seeking registration and issuance of certificate of title the suit plot. However, according to him, the 1st defendant did not heed to the request on the grounds that, the records available in her office do not recognise the plaintiff to be the owner. He further testified that in 1999, he became aware that, his plot was trespassed by the said Arnold and his wife one Felister Wilson Buzuka, the act, which led him to institute the case in the District Court. To substantiate his testimony, the plaintiff produced the letter of offer (PEI) and judgment of the District Court of Kinondoni at Kinondoni (PE2) as well as the ruling of this Court (Juma, J) as earlier explained herein above (PE3). PW1 went on testifying that, there was eviction order (PE4) that, was issued against Mr. and Mrs Arnold and that, he wrote the letter (PE5) to the 1st defendant applying for issuance of Certificate of Title and the 1st defendants' reply (PE6). The plaintiff also produced, advertisement of loss of letter of offer the suit plot purporting to be owned by Felister (PE7) two government fees receipts (PE8) and a 90 days' statutory Notice served to the 1st and 2nd defendant (P9). In their defence, the defendant through their witness, DW1 stated that, the

records in their office reveal that, one Felister Buzuka is the 4 rightful owner of the suit plot and that, the judgment of Kinondoni District Court did not involve the said Felister save the plaintiff and Mr. Arnold Mbuya. When cross-examined by Captain Bendera, if the said Felister tendered the letter of offer that, was tendered by the plaintiff, her reply was to the effect that, it is the same as PEI and that, the plot under consideration is the same as the one that was determined by the District Court of Kinondoni. Having summarized the parties' pleadings and evidence, I am now supposed to determine the issues framed herein. As to the first issue on whether the plaintiff is the rightful owner of the suit plot. It is trite law that, one who alleges existence of certain facts must ensure that, those facts are proven to have existed as alleged at the required standards under section 110 of the Evidence Act, Cap 6, Revised Edition, 2019. Therefore, the plaintiff owed the burden of proof that, he is the lawful owner of the suit property in exclusion of any other person (s) and therefore he is entitled to registration and issuance of certificate of Title thereof. In Miller vs. Monister of Pensions (1937) ALL ER 372 at page 374 where it was stated; 5 "If evidence evenly balanced, that the tribunal is unable to come to a determination conclusion one way or the other, then the man

must be given the benefit of the doubt. This means that the case must be decided in favour of the man unless the case against him reaches decree of cogency as is required to discharge the burden in a civil case. That decree is settled. It must carry a reasonable decree of probability but not so high as required in a criminal case, if the tribunal can say that it is more probable than not', the burden of proof is discharged. If the probabilities are equal, it is not..... ". See also Barelia Karangirangi vs. Asteri, Civil Appeal No. 237 of 2017 2019] TZCA 51 (1 April 2019) and The Manager, NBC, Tarime vs. Enock M. Chacha (1993) TLR 228. Presently, the plaintiff has testified that, he was issued with the letter of offer (PEI) On 4th January 1989 whilst the 1st defendant merely stated that, the owner of suit plot is not the plaintiff but one Felister Buzuka. I have examined both oral and documentary evidence tendered during trial, and found that, the plaintiff's evidence heavily depends on the letter of offer and the judgment of Kinondoni District Court. It is plainly clear that, the judgment of District Court vide Civil Case No. 164 of 2000 instituted by the plaintiff against one Arnold Mbuya has not been reversed 6 or vacated to date. Therefore, it is still valid judgment to date subject for enforcement as per law. Similarly, though it might be seen as if the plaintiff did sue

one Arnold Mbuya in exclusion of his wife, Felister Wilson Buzuka. However, if one is diligent enough cannot be found saying that, the said Felister Wilson Buzuka was not a party to the former proceedings before District Court of Kinondoni as her name conspicuously appears in the judgment at page 2 and impliedly at 4 of the judgment. For clarity, I wish to quote parts of judgment of the District Court delivered on 17th February 2003 as herein under; "In defence, the DEFENDANT WITNESS 1 FELISTER WILSON KUZUKA, a RESIDENT of Mbezi Beach testified, he (sic) resides at Mbezi Beach on the Plot No. 2004 Block "H". This house belongs to her. PW1 is Anotd Mbuya who testified DW1 is his wife. That they reside at the house located on plot No. 2004 (c) The defendants are hereby ordered to demolish and remove all improvements carried out by them on the Plot No. 2004 (or Plot No. 961 No.

961) Block "H" Mbezi Medium Density. "(Emphasis supplied) Considering the above quoted parts of the judgment, it cannot be prudently and safely stated that, the said Felister Buzuka was not party 7 to the former suit filed by the plaintiff, Civil Case No. 164 of 2000. Equally, it is improper to hold that the parties in former case were disputing on a different Plot of the land since the 1st defendant's reply letter (PE6) reveals the suit plot is the same but purports to show that, the said Felister acquired it from one Roska Mlima in 1990. The reason given by the District Court was that, the plaintiff was one who was given the letter of offer before Felister. If I would pretentiously consider, the reason given by the learned Resident Magistrate (Kalombola, PRM as she then was incorrect) in the judgment, yet the proper forum is not to refusal its enforcement through another government office not vested with adjudicative function. The error if any would be rectified through an appeal or revision by a higher court and not otherwise. Worse still, the defendants' witness when cross-examined admitted that, the former dispute was over the same plot like in the present case. That being the case. I therefore pause a question, if the 1st defendant was justified to refuse registering the plaintiff as the lawful owner of the suit plot? It is my considered view that, the answer is to

negative. I am holding that view since the judiciary and any other body established by the law is constitutionally mandated with the solemn role of dispensation 8 of justice in the country. According to the evidence adduced and a need to have the mandate of the judiciary understood, it is perhaps apposite to have Article 107A (1) of the Constitution reproduced herein under; "107A.-(lj The Judiciary shall be the authority with final decision in dispensation ofjustice in the United Republic of Tanzania." I also endorse to the decision of the Supreme Court of Uganda in the case of Masalu and others v Attorney-General [2005] 2 EA 165 where it was stated "Whether the dispute involves the interests of the Judiciary or individualjudicial officers or not, it is only the Judiciary which is vested with judicial power to resolve it. However, the Judiciary must resolve the dispute "in the name of the people and in conformity with law and with the values, norms and aspirations of the people." In our instant dispute, the parties were heard and eventually the District Court gave its verdict in favour of the plaintiff, the said Arnold made some necessary efforts to have it reversed but all were futile. Since there is no evidence that, the same was overturned by an appellate court. As such, that decision is still valid and enforceable. Therefore, the said Arnold or his wife, Felister Buzuka

cannot use a government institution to interfere or obstruct the decision of the court, which has never been 9 reversed notwithstanding of its status in terms of hierarchy. It follows therefore, any decision of the court be it the court of the lowest grade or higher one, which is final, binds the parties and their privies like in the present case. Thus, the 1st defendant through DW1 or any other person is not entitled or justified to claim the right of the said Arnold Mbuya or Felister Kuzuka or both who were parties to the former suit but lost the case over the same disputed plot. It is thus, my firm view, that, in order to maintain peace and tranquillity in our country, rule of law should be observed by each citizen. Assuming the said Felister was not a party, which is not the case, yet she could be precluded from claiming any right over the suit plot, which was finally determined. She is barred by the doctrine of res-judicata in terms of section 9 of the Civil Procedure Code, Cap 33, Revised Edition, 2019 as she was aware of the case since she even entered appearance before the District Court for testimonial purposes. I also hold the view that, the mere omission to indicate the name of Felister Wilson Kazuka in the title of the judgment of the District Court, does not go to the root of the judgment. It is so observed because if the same is read as a whole the said Felister

was the party/defendant in the said Civil Case together with her husband. io That said and done, the plaintiff's suit succeeds. The plaintiff is thus the lawful owner of the disputed plot as per the judgment and decree of Kinondoni District Court delivered on 17th February 2003. I therefore proceed making the following orders;- 1. That, the 1st defendant is ordered to process and issue a Certificate of Title in favour of the Plaintiff for his property described as Plot No. 961 Block "H" Mbezi Beach, formerly known as Plot No. 961 No.

961) Block "H" Mbezi Medium Density" 2. That, the purported "Lost" Letter of offer depicted in the Daily Newspapers dated 14th November 2022 is nullified 3. Given the nature of the parties, I shall not make orders as to costs. It is so ordered. dated and DELlVERED at dar ES salaam this 30th August 2024 11