FAUZIA MALIK SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 71 OF 2023 FAUZIA ABDALLAH MOHSEIN MALIK................... ........................... 1ST PLAINTIFF MALIK ABDALLAH MOHSEIN MALIK................................................ 2nd PLAINTIFF TARIQ ABDALLAH MOHSEIN MALIK................................................ 3rd PLAINTIFF (As Joint Administrator of the Estate of the Late Abdallah Mohsein Malik) VERSUS KIGAMBONI MUNICIPAL COUNCIL................................................1st DEFENDANT THE ATTORNEY GENERAL............................................................... 2nd DEFENDANT AND THE COMMISSIONER FOR LAND.......................................... 1st NECESSARY PARTY REGISTRAR OF TITLES........................................................ 2nd NECESSARY PARTY JUDGMENT 26/11/2024 to 6/12/2024 E.B. LUVANDA, J The First, Second and Third Plaintiffs named above, are suing under the capacity of joint administrators of the estate of the late Abdallah Mohsein Malik, as per letters of administration Form No. 68, exhibit P13. In the amended plaint, the Plaintiffs are claiming against the First and Second Defendants above named along the First and Second Necessary Party named above, for a declaration that the property and land on Plots No. 7 and 8 Ras Koronjo, Gezaulole, Kigamboni Municipal under certificate of title No. 43939 is lawfully owned by the Plaintiffs i as joint administrators of the estate of the late Abdallah Mohsein Malik. They are also claiming for payment of general damages subject for assessment by this Court and costs of the suit. Briefly, the Plaintiffs pleaded that the suit plots were originally part of what was Gezaulole Ujamaa Village having been created out of the land that formed Kigamboni Poultry Farm formerly owned by a German Settler one Kuczyskis. The Plaintiffs pleaded that in the late 1980's and early 1990's this land was redesigned under survey plan number TP1/676/791, created plots and allocated them to the occupiers of the land under what was Kigamboni Poultry Farm Ltd was reduced area, leaving a part which constituted as a poultry farm. It was contended by the Plaintiffs that, their father the late Abdallah Mohsein Malik was allocated the two plots No. 7 and 8 at Ras Karonjo located at the beach, for tourist purpose and that area no longer fell under the farming category and thereupon started construction. The Third Plaintiff who testified as PW1 tendered a letter of offer for Plots No. 7 and 8 Gezaulole (Ras Koronjo Temeke) issued on 25/03/1994 exhibit Pl, along a certificate of title No. 43939 registered on 1/12/1994 exhibit P14, to vindicate the said allocation and ownership by the late Abdallah Mohesin Malik in respect of Plots No. 7 and 8 comprising four point two hecters (4.2 ha). 2 The Defendants faulted exhibit Pl and P14 as having been wrongly issued, which Kajesa Minja (DW1) termed it as amounting to double allocation and that later were revoked, citing revocation dated 12/06/2017 which had the effect of revoking certificate of title No. 28830 Farm Kigamboni Poultry Mbwamaji Area Kigamboni District, where exhibit Pl and P14 were derived from. Gilly Simiyu (DW2) asserted that the Plaintiffs are trespassers. In effect, DW1 and DW2 maintained a historical chronological of events for ownership of the suit plots tracing back from the previous owner German citizen namely Kuczyskis owning an area consisting 723.5 acres whereas 8.5 acres were road reserve, with first registration in 1961. It was alleged that in 1967 the said farm was acquired by the Government and was given to National Agricultural Corporation (NAFCO) @ Kigamboni Poultry Farm Limited for a tenure of ninety nine years effective from 1/1/1983, with certificate of title No. 28830 which was registered on 13/1/1983 for purpose of poultry farming, as per a certificate of occupancy title No. 28830, exhibit D5. That, the said property with CT 28830 was later on sold to Quality Group (1990) Limited by auction, where on 17/02/2004 Quality Group (1990) Limited transferred the said property to International Village Limited, which transfer was registered on 12/03/2004, as per notification of a disposition dated 17/02/2004, exhibit D2 and application for approval of disposition dated 17/02/2004, exhibit D3. DW1 3 contended that the land consisting 715 acres with CT 28830 has never been partly divided or partly acquired. DW1 asserted that following failure by International Village to implement the property's conditions for development by 19/04/2017, the President of the United Republic of Tanzania, revoked the CT 28830 in respect of the property above said (as per exhibit D4), with eventuality of handing over it to the First Defendant vide a memorandum of understanding dated 17/02/2020, exhibit DI. Following the above development, the First Defendant served a notice to the Plaintiff for vacant possession, demolition, surrender of certificate of titles, as per a letter dated 21/09/2020 exhibit P9; 9/10/2022 exhibit P10; 24/04/2024 exhibit P12 along a correspondence of response from the learned Counsel for Plaintiff vide a letter dated 10/7/2020 exhibit P8 and a letter dated 14/11/2022 exhibit Pll. In view of the above, issues framed for determination are: One, whether the late Abdallah Mohsein Malik was lawfully allocated by the Commissioner for Lands, Plot No. 7 and 8 in 1994 located at Ras Koronjo Gezaulole Kigamboni Municipal under certificate of title No. 43939 covered also the area occupied by Plaintiffs through late Abdallah Mohsein Malik; Two, whether the allocation of the area comprised under certificate of title No. 28830 to the First Defendant 4 was lawfully done and whether it covered the area occupied by the Plaintiffs under certificate of title No. 43939; Three, reliefs the parties are entitled to. For issue number one, whether the late Abdallah Mohsein Malik was lawfully allocated by the Commissioner for Lands, Plot No. 7 and 8 in 1994 located at Ras Koronjo Gezaulole Kigamboni Municipal under certificate of title No. 43939 covered also the area occupied by Plaintiffs through late Abdallah Mohesin Malik. Arguably a letter of offer exhibit Pl depict Plots No. 7 and 8 Gezaulole (Ras Koronjo) were allocated to the late Abdallah M. Malik by the Commissioner for Lands on 25/03/1994. The wording of exhibit Pl at the preface, read, I quote, 'Your application for a long term Right of Occupancy (latter in this letter called "the Right') over this plot has been approved. On receipt of the fees and information requested below I will send a Certificate for you to to (sic) sign containing the following conditions' The above wordings are at variance with the contents in a letter dated 15/08/1991exhibit P2, crafted by A.P. Gonzaga, Katibu Tarafa-Kigamboni addressed to Afisa Mipango MijiJijiVffl es Salaam, in favour of the late Abdallah M. Malik, is titled, I quote along a first paragraph, 'YAH: KUOMBA KUPIMIWA NDUGU ABDALLAH M. MALKI MAENEO YA MAGOGONI 5 Mwenyejina tajwa hapo juu, ndiye aliyenunua eneo la Nyumba na mazao sehemu ya Magogoni chini ya Mjumbe wa Shina No. 56, mwaka huu 1991' K fact that the late Abdallah Mohsein Malik purchased the suit plots from villagers, was also stated in exhibit P3 (at item b). However, both exhibit P2 and P3 are silent as who were the vendors. But in testimony, PW1 stated that the area under the two plots measuring about 4.2 hectres was a farm owned by several villagers who sold the same to the late Abdallah Mohsein Malik in the year 1991. Raphael Nditu Mayalla (PW2) asserted that he knows Abdallah Mohsein Malik, who purchased parcels of land from the local owners and villagers of Gezaulole Ujamaa Vilage and surveyed the land into two plots No. 7 and 8 Ras Koronjo adjacent to the beach. Now, if the late Abdallah Mohsein Malik purchased the suit plots from local or indigenous villagers in 1991, why and how the Commissioner for Lands re­ allocated the same plots to the late Abdallah Mohsein Malik later in 1994. It sound very awkward for someone who have been the owner since 1991, to purport being re-allocated his own land four years later. Importantly, wording of exhibit Pl above quoted, depict it is the late Abdallah Mohsein Malik who initiated an application requesting to be allocated the suit land. 6 Indeed, if the late Abdallah Mohsein Malik was allocated by the Commissioner for Lands vide exhibit Pl, certainly the land was surveyed, now why he was seeking for re-survey vide exhibit P2? When PW1 was cross-examined by Ms. Caroline Lyimo learned State Attorney for the Defendants, stated that he has no recollection if the late Abdallah Mohsein Malik purchased it from various people or one person. Later PW1 stated that the late Abdallah Mohsein Malik purchased it from various people. In further cross-examination, PW1 stated that he did not mention names of the vendors neither tendered documents for sale between the late Abdallah Malik and various villagers. Another thing, while in testimony PW1 asserted that the late Abdallah Mohsein Malik acquired the suit plots by way of purchasing from villagers, in the pleadings specifically in the amended plaint paragraph eight and nine, the Plaintiffs pleaded that the Kigamboni Poultry Farm formerly owned by German Settler was redesigned under survey plan No. TP1/676/791 creating plots, whereby Plots No. 7 and 8 were allocated to the late Abdallah Mohsein Malik. Therefore, a testimony by PW1 and PW2 that the suit plots were acquired through purchase from villagers, formed a total departure to the facts pleaded in the amended plaint where it suggest creation of plots from Kigamboni Poultry 7 Farm, then allocation to the late Abdallah Mohsein Malik. Of course, in the plaint the Plaintiffs avoided to mention a specific allocating authority. Therefore, it can be said that the Court is in limbo as to how the late Abdallah Mohsein Malik acquired the two plots No. 7 and 8 Ras Koronjo, whether by way of purchase from indigenous villagers or allocation from the Commissioner for Lands. Either way pose a serious challenge, in that, if it was by way of purchase, the sale agreements are missing, vendors are anonymous. If was a direct allocation from the Commissioner for Lands as it portrays in exhibit Pl, PW1 did not explain as to when the application for allocation was made and in which form. Neither stated as to when an application for allocation was made by the late Abdallah Mohsein Malik. In view of the above serious contradictions, validity of exhibit Pl and P14 is at stake. Regard being, DW1 asserted that a land consisting 715 acres with CT 28830 located at Gezaulole in Kigamboni has never been partly divided nor partly acquired. Again, DW1 termed exhibit Pl and P14 as amounting to double allocation. I am seeing merit on this fact. This is because, in their case, the Plaintiffs concede to a fact that Plots No. 7 and 8 emanate from Kigamboni Poultry Farm alleged was redesigned under survey plan TP1/676/791 where the Plots No. 7 and 8 were among plots deduced from Kigamboni Poultry Farm. But in testimony, neither PW1 nor PW2 proved this fact of subdivision of Kigamboni 8 Poultry Farms into plots. In fact, this line of argument, was abandoned by the Plaintiffs. Therefore, the Plaintiffs failed to prove a fact that the late Abdallah Mohsein Malik was lawfully allocated by the Commissioner for Lands, Plot No. 7 and 8 in 1994 located at Ras Koronjo Gezaulole Kigamboni Municipal under certificate of title No. 43939. In that regard, issue number one is answered in the negative. Issue number two: whether the allocation of the area comprised under certificate of title No. 28830 to the First Defendant was lawfully done and whether it covered the area occupied by the Plaintiffs under certificate of title No. 43939. As stated in issue number one above, the Plaintiffs pleaded specifically that the late Abdallah Mohsein Malik acquired the two Plots No. 7 and 8 following the disputed redesigning and re-division of Kigamboni Poultry Farm, alleged reduced in area leaving a portion of land which continued to be as a poultry farm. PW2 in his testimony in chief asserted that Kigamboni Poultry Farm which was a subsidiary company of NAFCO was occupying an area measuring 715 acres formerly owned by the white settler Kuczyskis, where in 1967 was registered under Kigamboni Poultry Farm Ltd with certificate of title number 28830. PW2 contended that in 1977 part of Kigamboni Poultry Farm was divided and allocated to the Gezaulole Ujamaa Village where parcel of land 9 was allocated to various villagers. According to PW2 Abdallah Mohsein Malik purchased parcels of land from the local owners and villagers of Gezaulole Ujamaa Village and surveyed the land into two Plots No. 7 and 8. Therefore, it can be said with certainty that Plot No. 7 and 8 formed part and parcel of the area comprised under certificate of title No. 28830. On the first limb of issue number two as to whether the allocation of the area comprised under certificate of title No. 28830 to the First Defendant was lawfully done. It is common knowledge that allocation of land is an exclusive domain of the Commissioner for Lands, along the land allocation committee nominated by the Minister for Lands, as per testimony of DW1. Section 29(1) of the Land Act, Cap 113 R.E. 2019, with marginal notes, grant of right of occupancy, provide, 'Where the Commissioner determines to grant a right of occupancy to a person who- (a) has applied for grant of a right of occupancy; (b) is in occupation of land under a right of occupancy or under an acceptance of an offer of a right of occupancy; or (c) is otherwise entitled to a right of occupancy, he shall issue a certificate referred to as a ’certificate of occupancy' to that person' to that person' io Therefore, allocating land along granting right of occupancy is the exclusive domain for the Commissioner for Lands, as aforesaid. DWlmade an argument that, the land allocation committee which is nominated by the Minister for Lands, has a mandate to allocate lands. But technically the land allocation committees merely advise the Commissioner for Lands, when determining applications for rights of occupancy. Section 12(1) Capll3 (supra), provides, I bold a pertinent part, 'The Minister shall establish Committees at appropriate levels of Government to be called the Land Allocations Committees to advise the Commissioner on the exercise of his powers to determine applications for rights of occupancy' When was cross-examined by Mr. Joseph Rutabingwa learned Counsel for Plaintiffs, DW1 stated that exhibit DI does not explain if a meeting for allocation committee was convened and that there is no allocation committee meeting which was convened to deliberate on exhibit DI. It is common knowledge that allocation of land by the Commissioner for Lands is done by way of issuance of certificate of occupancy, see section 29(1) Cap 113 (supra). Herein, exhibit DI is titled memorandum of understanding between the Minister for Lands, Housing and Human Settlement Development; Permanent Secretary ii of Ministry of Lands Housing and Human Settlement Development; Dar es Salaam Regional Commissioner; and Kigamboni Municipal Council. At a preamble it reads, 'WHEREAS the purpose of this MOU is to establish the terms and conditions under which Kigamboni Poultry Farm land (hereinafter referred to as the Land) shall be used' And at clause or item 3, it read, 'That in terms of Land Use Planning the land is officially handed to Kigamboni Municipal Council' Therefore, three issues can be discerned from this document exhibit DI: One, it is not a certificate of occupancy for all purpose and intent; was not issued by the Commissioner for Lands; the terms therein were not made under Cap 113; it is meant to set terms and conditions under which the farm shall be used; it merely handed over the farm to the First Defendant. To my conviction, exhibit DI did not meant to allocate land to the First Defendant. Had it connoted or portrayed to allocate land to the First Defendant by unauthorized people or citing the provisions of Cap 113, it could had been faulted accordingly. However, exhibit DI on itself cannot be deemed to had the effect of allocating land to the First Defendant. As I have ruled above, allocation of land is an exclusive domain for the Commissioner for Lands. Even the so 12 called land allocation committees serves a purpose of advisory to the Commissioner for Lands on the terms above stated. Issue number three: reliefs the parties are entitled to. Having said as above, there is no relief which is available to the Plaintiff. I appreciate for the lucid submission for the learned Counsel for Plaintiffs. The suit is dismissed. Each party will defray its own costs. Judgment delivered in the pres^/ice of Mr. Erick Simon learned Advocate for First, Second and Third Plaintiffs/Mr. Hamis Mvugalo learned State Attorney for the First and Second Defendant along the First and Second Necessary Party. 13