NHELEKWA

IN THE HIGH COURT OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA LAND APPEAL NO. 208020 OF 2023 (Originating from the decision of District Land and Housing Tribunal for Dodoma at Dodoma in Land Application No. 70 of 2017 dated 02/11/2023) FRANCIS MASELE NHELEKWA.............................. APPELLANT

VERSUS EMMANUEL PAULO CHIHUTU.......................... 1st RESPONDENT VALERIAN JUMA MPINGAMA.......................... 2nd RESPONDENT

JUDGMENT Date of the last order. 25/03/2024 Date ofJudgment. 15/04/2024 LONGOPA, J.: This is an appeal against the judgment and decree of the District Land and Housing Tribunal for Dodoma at Dodoma dated 2nd November 2023. The appellant did institute this appeal on 16th December 2023 on the grounds that: 1. That the Trial Tribunal Chairman erred In law and in facts by holding that the Certificate of Title in respect of 1 | Page P/ot No. 8 Block "K" Miyuji North expired In 1986 for failure to renew It.

2. That the Trial Tribunal Chairman erred in law and facts by holding that failure to pay /and rents by the Appellant made the suit property herein Plot No. 8 Block "K" Miyuji North, nobody's land and therefore it free for respondents to enter the same.

3. That the Trial Tribunal Chairman erred in law and in fact by holding that Plot No. 8 Block "K" Miyuji North belongs to the Dodoma City Council, without any evidence before him on that fact.

4. That the Trial Tribunal Chairman erred in law and in facts by failing to analyze evidence before him The brief background to this matter is that: the appellant was granted a land through a certificate of title on 1st December 1984 having applied for the grant of land vide a formal letter which was positively responded to by the Central Development Authority who had the mandate over the land in question. The land was allotted for agricultural and livestock keeping activities. Sometimes, in 2016 the respondents herein allegedly trespassed to the land. The first respondent claims that he got the land through gift of transfer inter vivos from his parents when he got married in 2002. The second respondent claims ownership through customary right of occupancy having cleared the virgin forest land in 1982. 2 | Page At the same time, both respondent claim that alternatively their ownership over land may be traced through adverse possession given that they have been in occupation and use of that land since 1980s without interference from anyone. On 25th March 2023, the parties appeared before me for viva voce submission on the grounds of appeal. The appellant enjoyed the legal services of Mr. Amon Rwiza, learned advocate while both the first and second respondents enjoyed the legal service of Ms. Maria Ntui, learned advocate. The Counsel for appellant when availed audience informed

this Court that the appeal originates from a decision of District Land and Housing Tribunal for Dodoma dated 02/11/ 2023. That decision of the Tribunal was legally and factually incorrect and against the law thus the appellant preferred an appeal under total of four grounds. On the first ground of appeal, it is appellant's submission that the Tribunal erred in law to hold that Certificate of Title of the Appellant expired in 1986 for failure to renew. This was an error. The Certificate of Title was tendered and admitted as Exhibit KM- 4. One of the conditions in that Certificate of Title is the payment of annual land rent. The appellant is the one who pays the annual land rent in his own name signifying that he is the owner of the land in dispute. There is no evidence whatsoever from 3 | Page Dodoma City Council that indicates that the said certificate of title has expired or been revoked. Also, in Exhibit KM- 4 there is another condition on paragraph 6 that states that the Certificate of Title can be revoked by President after the notice is issued to the owner of that title. There was no evidence on the DLHT that the Certificate of Title has been revoked nor any notice of revocation has been issued to the appellant. Also, the reasoning of the Chairman was the fact that land rent was not paid. There was no evidence before the Tribunal that the appellant was owing any annual

land rent to the Government. Section 51(2) of the Land Act, Cap 113 R.E. 2018 provides for conditions that abandonment of land, the Commissioner for Lands must gazette the same in the Government Gazette indicating the location and description of the land abandoned. There was no evidence before the Tribunal that the Commissioner had advertised in the Government Gazette that such land has been abandoned for non- payment of annual land rent. It was the appellant's submission that the Tribunal misdirected itself to hold that certificate of title had expired without having evidence to that effect. In respect of the second ground, it is submitted that the Tribunal erred to hold that the land does not belong to the anyone as the same was not being serviced through payment of annual rent. The arguments in the first ground also apply to this ground. 4 | Page On the third ground, it is submitted that it was wrong to hold that disputed land belonged to Dodoma City Council. There was no evidence that the title expired. Dodoma City Council was not party to the case. Neither they were called as witnesses before the Tribunal. Dodoma City Council never complained nor had any issue regarding the ownership of that land. On fourth ground of appeal, it is submitted that the Tribunal erred in analysis and evaluation of evidence by failure to do so properly. The evidence of the appellant is found on

pages 37 to 44 of the typed proceedings reveals that the appellant tendered severally documentary evidence. Exhibit KM-1 was a letter to the Dodoma Municipal Council/ Central Development Authority applying for allocation of land. This letter was responded to through Exhibit KM-2 that is from Dodoma Municipal Council/ Central Development Authority to allocate land to the appellant following the application he made. There was Exhibit KM-3 which is the receipts on annual land rent payments up to 1987 and Exhibit KM-4 was the certificate f title over the disputed land. According to the appellant, this evidence was sufficient to establish that the appellant was the rightful owner of the land in question. The evidence indicates that there was a lawful application for the grant of land in question. There was no evidence to the contrary that such acquisition of land was done fraudulently by the appellant. 5 | Page Also, the proceedings dated 11/10/2018 at page 18 of the typed proceedings indicates that the Tribunal wrote a letter to Dodoma City Council on the Status of Plot No 6 and No 8 Block K Miyuji North. The letter was responded to that the owner of Plot No. 8 Block K Miyuji North was Mr. Francis Masele Mhelekwa as the owner while Plot No. 6 was owned by one E. Kitutu. This letter is dated 14/09/2018 found in the proceedings as well. The Land Registry reflects that appellant is

the owner of Plot No. 8 Block K Miyuji North. The evidence of the respondent's witness SU 1 Emmanuel Chihutu who is the first respondent at pages 58-63 of the proceedings reveals that he stated to have been given land by his parents inter vivos in 2002 after getting married. There is no other evidence tendered by this person to validate that assertion of gift deed, nor any witness was produced to support that there was transfer of land through gift deed inter vivos. SU 3 Valerian Juma Mkingamo, who is the second respondent, argued to have acquired the land by clearing the virgin forest land since 1982. The certificate of title of the appellant was granted in 1984. Adverse possession cannot be claimed in that way. The case of Joseph Alphonce and Another versus Mariam Masanja, Mise Land Appeal No. 21 of 2021, HCT Shinyanga at page 10, the Court held that long usage alone does not entitle someone to be adverse possessor. The conditions for adverse possessions are set out in page 11 of the decision. It was submitted that adverse possession cannot be claimed by the second 6 | Page respondent as the areas has a certificate of title. Thus, adverse possession cannot stand. It was reiterated that in Kellu Kamo Lucas v. Dr. Louis Shija, Civil Appeal No 63/2022, CAT at pages 16-20, stated that once there is certificate of title the owner of certificate of title is the rightful owner of

the land under whose the certificate was issued/granted unless otherwise proved that there existed fraud in the acquisition of the same. Furthermore, in Ramadhani Kambi v. Commissioner for Lands and Others, Civil Appeal No 14/2020 CAT at page 23 stated that revocation of certificate of title must be preceded by the written notice which is proved that the owner of the land in question was dully served with the notice of revocation. Another case of Rajul Shah v Jonas Potea and Other, Land Case No. 8 of 2020, the High Court of Tanzania at Arusha at page 19 stated that for claim of being given land inter vivos there must be proof of existence of deed of gift indicating that there was transfer of the land inter vivos. Title deed owner as reflected in the registry is evidence that person in question is the owner of the land described in that title against any other person. As the Tribunal ordered that the land belongs to Dodoma City Council that is a failure to analyse the available evidence as there was no evidence whatsoever to support such findings. The issues raised before the Tribunal 7 | Page are found on page 37 of the typed proceedings. The Tribunal was required to address the issues raised before it alone and if any new issues emerged the Tribunal ought to have invited the parties to make submissions by affording them opportunity to address the Tribunal before the decision

is made. In Said Mohamed Said v. Muhsin Amir and another at page 6, the Court of Appeal stated that the parties and the court are duty bound to adhere to pleadings and issues raised in the Court. The Tribunal went astray by determining issues that were not before it. It was argued that this Court being the first appellate Court, has all the powers to step into the shoes of the trial Tribunal to evaluate the evidence on record from the Tribunal and come up with a decision on issues of concern to the parties in this appeal. The appellant prays that this Court be pleased to quash the decision of the Tribunal and set it aside the decree thereof with costs. On the other hand, the respondents have argued differently. They traversed each of the grounds with view to establish that all the four grounds lack merits. On the first ground, it was submitted that this ground is not true and it has no merits. The Tribunal was correct to find out that the certificate of title had expired. At page 38 of the typed proceedings, the appellant stated that the certificate of title was granted on 01/12/1984 for 8 I Page agricultural and livestock keeping purposes. At page 41, the certificate of title was supposed to be corrected/ re-issued in 1986 but it was not. It has been used from 1985 to 2021 without being changed/ corrected/reissued in period of 36 years. The term of that certificate is 33 years

thus it has exceeded the years stated in the term of certificate of title. The respondent submitted further that the conditions of certificate of title for agricultural purposes are covered in that certificate of title to include no right of renewal (non-renewability) of the certificate upon expiration of time as well as no need of compensation for the same. The notice to the appellant was given through the Mtaa Meeting that SU 4 one Francis Tarisa Yanga who was the Mtaa Chairman stated that there were resurveying of land to upgrade the same from agricultural purposes to the residential purposes since 2018 at all that area except the disputed land as there was a dispute as to who was the owner. There was no written notice to the appellant that land in question has been revoked except that meeting of the Mtaa residents/ citizens was the one which gave notice to the appellant. SU 5 gave evidence before the District Land and Housing Tribunal to the effect that he is a neighbour to that land in question. At page 72 of the typed proceedings, this witness stated that the respondents are the owners of the land through customary rights of land ownership. 9 | Page 1 According to the respondents, evidence at page 59 reveals that resurveying and upgrading of the land in dispute did not happen from agricultural land to residential as the parties herein were litigating in the Tribunal. It

was argued further that there was no certificate of title over the land that was valid at the time of intended resurveying and upgrading of land titles from agricultural to residential land use. As such, the Tribunal was quite correct to so hold that there was no valid title as the same had expired. On the second ground of appeal, it is the respondents' submission that there were no errors on the decision of the Tribunal. At page 8 of the judgment, it is revealed that the land was vacant thus it is the vacant possession that gave rise to the ownership of land by the respondents. The Tribunal was correct and right to find that the land in question has not been used for agricultural and livestock keeping activities after it had made a visit of locus in quo. At pages 9 to 10 of the judgment, it is revealed that the Tribunal based its decision on expire of the term of the certificate of title. The Tribunal gave rights to the respondents for their long-term use of land as they have been there for long time. SU 4 stated that Central Development Authority (CDA) did not involve the original holders of the land under customary land rights when it granted the same to the appellant. That non-involvement of the original owners of land is the main cause of this dispute. The respondents' validity 10 | P a g e to own that land under adverse possession for the long usage without interference is founded on Item 22 of the 3rd Schedule of the Law of Limitation Act, Cap 89 R.E.

2019. The respondents were using the land since then. On the 3rd ground of appeal, it is submitted that the ground lacks merits. Dodoma City Council who has mandate to grant land titles since 2018 intended to recognise and grant title to the respondent who are the original owners of that land in question and residents in that area. Partly, the respondents concede that the land does not belong to Dodoma City Council. It belongs to the respondents as the customary owners of the land as per evidence adduced before the Tribunal. The respondents were on that land since 1982. The adverse possession can also apply as the appellant never visited the land nor used that land in question. On the 4th ground of appeal, it is submitted that the land in disputed belongs to the respondents as per evidence on record. The land given through deed/transfer inter vivos6q not require any writing as the customs and traditions of the society do not compel such a thing. It was the respondents' opinion that all the cases cited by the appellant do not apply to the circumstances in question regarding the case at hand. The certificate of title was wrongly issued to the appellant. However, the appellant also admitted the same to have been expired. The question of revocation does not arise. The continued existence of the 11 | P a g e respondents in that land for more than twelve years made them

owners through adverse possession. It was a prayer by the respondents that this Court find that this appeal has no merits thus the same should be dismissed with costs for being devoid of merits. In a short rejoinder, the appellant's side reiterated that there is nowhere in the proceedings indicating that certificate of title had expired nor there is evidence indicating that certificate of title was revoked by competent authority. It is appellant's submission that the certificate of title is valid todate. It was reiterated that under the certificate of title there is a mandatory requirement for notice of three months in the certificate of title before the same is revoked. There is no evidence that the annual land rent was in arrears. Further, there is no evidence that the certificate of title has been revoked for failure to adhere to the conditions of the title. The appellant argues that it is true that there was resurveying of the land and upgrade the same from agricultural to residential thus the appellant herein being the owner with certificate of title was supposed to get plots from his agricultural activities land to residential plots. Also, it was submitted that the appellant cannot claim adverse possession as they claim to be the rightful owner through customary land ownership. The duo cannot co-exist. Indeed, the respondents were 12 | P a g e supposed to claim against

the Government as it is the one which granted that land to the appellant vide certificate of title. It was the appellant's prayers that this Court evaluate the evidence available on record and reach to a fair conclusion that the appellant is the rightful owner of the land in question. That was all the submissions by the parties in respect of the grounds of appeal. Having heard the submissions by the parties, judgment and decree and proceedings of the District Land and Housing Tribunal for Dodoma it is upon this Court to determine on the validity or otherwise of the grounds of appeal. Upon considering the available evidence on record, I must state at the outset that this is a fit case to allow the appeal for being meritorious as it shall be demonstrated in the analysis of the grounds of appeal hereinafter. The evidence is so conspicuous to find otherwise. The first issue is whether the Chairman of the District Land and Housing Tribunal was right or otherwise to hold that Certificate of Occupancy for Plot 8 Block K Miyuji North had expired. I have keenly perused available evidence tendered before the District Land and Housing Tribunal in respect of Plot No. 8 Block K Miyuji North. It is lucid from the available evidence on record that trial Tribunal erred to so find. The reasons are simple and straightforward. First, the appellant did apply for the grant of right of occupancy for

the said farm sometimes early 1980s. 13 | P a g e Second, Exhibit KM-1 a letter with Reference No. CDA/ED/LA/15/12208 dated 15/10/1984 which is a response to the application to be granted land and it was copied to the Land Officer at Dodoma Municipality. It is categorically clear that the appellant was offered that Plot 8 Block K Miyuji North within Dodoma Municipality for agricultural purposes. The letter apart from communicating the offer, it directed the land officer to finalise processes of grant of the said land. Third, Exhibit KM 2 is a letter referenced DO/9594/2/HAS dated 23/11/1984 from Dodoma Municipal Council to the appellant on the grant of the Right of Occupancy Plot No. 8 Block K Miyuji North. It is a letter of offer. This letter contained prerequisite conditions for the appellant to fulfill in respect of such grant including payment of requisite fees and costs of preparation of the Certificate of Occupancy. Fourth, Exhibit KM -3 collectively is containing receipts. These are annual land rents payment for a period of 1st July 1985 to 30th June 1986; 1st July 1986 to 30th June 1987; 1st July 1987 to 30th June 1988; and that of 1st July 1988 to 30th June 1993. All these payments relate to Plot No. 8 Block K Miyuji North. Fifth, Exhibit KM 4 is the Certificate of the Right of Occupancy for Plot No. 8 Block K Miyuji North with Dodoma Municipality with Land Office No.

S 254205 dated 01/12/1984. This was culmination of all the processes as it provides for evidence of title that all processes relating to such grant of the Right of Occupancy have been completed. I should state at the outset that Certificate of Title is issued in the name of appellant. 14 | P a g e Did the certificate of title on Plot No. 8 Block K Miyuji North expire in 1986 as the trial Tribunal found? The answer is in the negative. Exhibit KM 2 is illustrative to begin with on this aspect. The conditions of the grant are clearly stipulated, and I shall quote them partly in verbatim.

1. Muda: Kuanzia tarehe 01-10-84 had/ tarehe 30-06-86 na baadaye mwaka hata utakapokatishwa kwa taarifa maalum ya maandishi kuishia mwaka wa fedha.

2. Kodi: Shs 2/= kwa mwaka iki/ipwa kabla ya ki/a tarehe mosi, Ju/ai ya ki/a Mwaka.

3. Ujenzi: KukamiHsha majengo katika muda wa miaka miwiii tangu tarehe ya toleo hili.

4. Matumizi: Majengo katika kiwanja hiki yatatumika kwa Kilimo na Ufugaji (Bold is mine for emphasis). It is my understanding that Certificate of Title for the land in question was for a period exceeding two years i.e. beyond 1986 as per paragraph one of the conditions of the grant. The certificate had an initial period of two years where the holder of such certificate of title was required to construct the buildings for purpose of facilitating the undertaking of the purpose/use of land. It was lucid that on expire of the first two years of the initial period the certificate of title was indefinite. It was only subjected to payment of annual land rent and a condition that any revocation/termination of the duration of certificate of title should be by 15 | P a g e 4 way of prior written notice of three months before end of the financial year upon which such revocation would end. KM -4 is illustrative as well on this aspect. Paragraph 1 is clear from ambiguities. It states that: 1. Muda: - Toka 1 Oktoba 1984 mpaka tarehe 30 Juni 1985 na baadaye toka mwaka mpaka mwaka bad/ utakapokatishwa na upande wowote kutoa taarifa ya miezi mitatu i/iyoandikwa kuishia kwenye mwaka wa kodi. My perusal of the evidence has not revealed existence of any notice of revocation that was directed to the appellant as holder of certificate of title. I concur with the appellant's submission that there is

no evidence of revocation that would have affected the rights of the holder of granted right of occupancy. Further, Exhibit KM 3 cements the cause for the appellant. This exhibit reveals that from 1984 when the disputed plot was granted to the appellant all through 1993 the annual land rent was paid. The land rent payment receipts are lucid that they relate to Plot No. 8 Block K Miyuji North which belong to the appellant. The Government Exchequer receipts indicates acknowledgement by the Government to have received the annual land rent from the appellant for all that period. In my view such receipts have two main roles to play in a matter in dispute. First, it is evidence of compliance by the appellant with one 16 | P a g e important condition for continuing holding of certificate of title on that land as per Paragraph 2 of the Exhibit KM 2 that required the owner to pay annual land rent. Second, it means nothing more than the fact that receipt of the payment from the appellant is an acknowledgement that appellant continued to own that land. I am aware that payment receipts are not per se establishing the ownership of the land in Tanzania. I am bound by 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) (TANZLII) 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 lega/iy he considered conclusive documentary proof vesting title or conferring ownership of the disputed property to the respondent. In the instant appeal, it is not the receipts alone that establishes the ownership of the property to the appellant. It is coupled by other documentary evidence as well. I have pointed out that Exhibit KM-2 above state about duration extending beyond 1986. Thus, I am certain that 17 | P a g e these receipts are corroborating the fact that certificate of title was issued for period exceeding two initial years of 1984 to 1986. It is my settled view that Exhibit KM 3 is illustration of the appellant's compliance not only with the conditions of the certificate of title but also the Land Act. It is provided for in sections 22(1) (g) and 33(1) of the Land Act, Cap 113 R.E. 2019 that holder of certificate of title over land should pay annual rent as may be revised from time to time. This was the requirement also of Section 6 (b) and (c) of the Land Ordinance that entitled the President (who replaced the Governor) to fix rent and occupier was bound by section 13(c) of the Ordinance to pay such rent as a condition for continued ownership

of the certificate of title. Thus, all the receipts in Exhibit KM 3 reflect strict adherence to this legal requirement on land ownership. Furthermore, there is conspicuous record that trial Tribunal made a serious error. This relates to two letters which are correspondences between the Tribunal and Dodoma City Council, the latter being planning authority for the areas within which land is situate. On 13/11/2017 the Chairman of the District Land and Housing Tribunal for Dodoma vide a letter referenced DLHT/DOM/GC/10H/ officially requested for status of ownership of land about two Plots namely Plot 6 Block K Miyuji North and Plot No. 8 Block K Miyuji North within Dodoma City. This letter was copied to the appellant herein. In response thereto, on 14/09/2018 Dodoma City 18 | P a g e Council informed the Tribunal that Plot No. 8 Block K Miyuji North is owned by Francis Nhelekwa, the appellant herein. In my humble view, the planning authority did confirm that appellant is the rightful owner of the disputed land as per records of the planning authority. The trial Tribunal was under duty to take judicial notice of that letter from the planning authority (Dodoma City Council) was falling within the purview of section 83 and 87(a) (ii) of the Evidence Act, Cap 6 R.E. 2019 as public document. The said document was a corroborating the fact contained in Exhibits KM-1, KM -2, KM-3 and

KM-4. At this juncture, I have no reason to hold otherwise than that trial Tribunal seriously erred to hold that certificate of title for Plot No. 8 Block K Miyuji North had expired in 1986. The findings of the trial Chairman that certificate of ownership already expired in 1986 since it was never renewed contrary to paragraph 1 of the licence as found on page 9 of the judgment is misplaced and it is not supported by evidence on record. Indeed, the first ground of appeal has merits, and I shall proceed to uphold it forthwith. On the second ground relates to the holding that failure to pay land rents by the Appellant made the suit property herein Plot No. 8 Block "K" Miyuji North, nobody's land and therefore it free for respondents to enter the same. On this ground, my perusal reveals that there are three faults in this finding by trial Tribunal. First, that there is no evidence of payment for 19 | P a g e year 1986, 1987, 1988, 1989, 1990 and no reasons are canvassed. Second, that the applicant tendered no receipts for 1993 up to 2013 for almost twenty years. Both are covered in page 8 of the judgment. Third, that it was right to the respondents to enter that land as nobody's land as stated in page 10. I have demonstrated in the foregoing part of the decision that payment of annual land rent is a mandatory legal requirement imposed on the holder of certificate of title over a

piece of land. It is my finding that the decision that annual land rent was not paid for 1986,1987, 1988, 1989 and 1990 is misplaced and reveals serious failure on the part of the trial Tribunal' Chairman to appreciate and analyse the evidence tendered. My review of Exhibit KM 3 indicates that it is conspicuously stated in the tendered evidence that for all the period from 1984 to 1993 annual land rent was paid. On page one of Exhibit KM -3, there are four sets of receipts. The first one covers payment of rent from 1st July 1985 to 30th June 1986. This was paid sometimes on 15/08/1985. The second receipt from the top caters for payment of annual rent for period of 1st July 1986 to 30th June 1987. It was paid on 31/07/1986. Third receipt from the top reveals payment for 1st July 1987 to 30th June 1988 and it was paid on 11/09/1987. The last receipt in that first page relates to payment of annual land rent from period of 1st July 1988 to 30th June 1993. It was paid on 29/04/1992. The amount paid in this receipt is Tshs 14/= reflecting that it covered 20 | P a g e seven years as the annual rent was Tshs 2/= per year as reflected in the first three receipts covering financial years 1985/1986; year 1986/1987 and that of 1987/1988 which were all paid in the first quarter of the financial year as per requirements of Exhibit KM-2. Additionally, there are evidence on record there are

Government Exchequer receipts evidencing payment of the annual rent for period of 1993 to 30th June 2015 (Exchequer Receipt No. 361054) dated 28/11/2014, and Exchequer Receipt No. 3610555 dated 03/12/2014; while Exchequer Receipt No. 66101919 dated 12/10/2015 for the annual land rent for 01/07/2015 to 30/06/2016; Exchequer Receipt No. 6631191 dated 21/10/2025 and Exchequer Receipt No. 13507422. It is evident that all these annual land rent receipts are evidencing payment prior to the dispute. These are part and parcel on Exhibit KM -3. In my humble view, the trial Tribunal's Chairman failure to appreciate and analyse the contents of the documents admitted as part of the exhibits is the cause of serious error in the finding of the Tribunal. Essentially, contents are Exhibit KM-3 reveal that there is nothing of failure to pay annual land rent from 1984 when the right of occupancy was granted to 30th June 2016 before the alleged trespass was discovered by the appellant. From this analysis of the evidence, trial Tribunal's Chairman erred to hold that annual land rent for those years was not paid. There was failure to analyse the details of the evidence tendered. There is an old adage that 21 | P a g e "the truth lies in the details " If the Chairman would have put just little effort to consider the contents of each receipt forming part of Exhibit KM 3, he would have found that his

holding on the question of payment of annual land rent as evidenced by the receipts would be quite different and opposite to what he found. It is important to analyse effect of failure to pay annual rent on the certificate of title to address the rest two limbs of this ground. The decision of the Tribunal is faulty that the land belonged to nobody after failure to renew and pay annual land rent. This is because in law there is no automatic dispossession of certificate of title where annual land rent is not paid. There are only two impacts to the holder. First, he may be subjected to payment of penalties in form of interest for failure to pay annual land rent timely. I am fortified by the provisions of section 33 (11) of the Land Act, Cap 113 R.E 2019. It provides that: Where any rent or installment of rent payable in respect of a right of occupancy or any part of such rent or installment remains unpaid for a period of six months after the date on which the same is required to be paid, interest at the rate of one per centum per month shall be payable on the unpaid amount until payment of the amount is madef and such interest shall be collected and recoverable in the same manner as rent. 22 | P a g e Second, failure to pay annual land rent may be a good reason for revocation of the right of occupancy i.e. the certificate of title. This would in in line with the provisions of

section 44 and 45(1), (2) and 2A(b) and (e) which relate to breach of conditions of the Granted Right of Occupancy and powers to revoke the certificate on a good cause. However, revocation is not automatic. It requires notices to ameliorate the breach to be issued and if the breach is not addressed then there should be issued a notice of intention to revoke the certificate of title as per requirements of section 45(4) of the Land Act, Cap 113 R.E 2019. In the case of Tanzania Milling Company Limited vs The Attorney General & Another (Civil Appeal No. 98 of 2020.) [2023] TZCA 17908 (7 December 2023) (TANZLII), at pages 19-20, the Court of Appeal reiterated that: What is dear from the provisions which have been reproduced above is that, where a condition of a right of occupancy has been breached, the Commissioner has discretion to issue a notice to the occupier and it is that notice, issued in the prescribed form, that initiates the revocation process. In our view therefore, the requirement of issuing a notice is mandatory. In this case, the notice which is issuabie under s. 46 (1) of the Act ought to have been served on 23 | P a g e the appellant before the process of revocation of his right of occupancy was resorted to. That was not done. With regard to the purported notice published in the Majira Newspaper (exhibit PI}, we agree with Mr. Vedasto that, such was not a sufficient

notice because, first, the same was not issued in accordance with the requirements of s. 46 (1) of the Act and secondly, as submitted by Mr Chang'a, it did not convey the proper purpose for which the right of occupancy was intended to be revoked. As shown above, the cause for the intended revocation was the alleged breaches by the appellant, of the terms and conditions of ownership of the suit land. However, in the publication, it was shown that the revocation was intended to be made under inter alia, s. 45 (3) of the Act which provides that revocation on public interest (Emphasis is mine). Similarly, there is insinuation that land was abandoned by the appellant thus it became nobody's land. This Court being one of the Courts of Record in this country, it is duty bound to state the legal position straight. That view by the trial Tribunal's Chairman is not the legal position of this country. The same procedure stated above in respect of breach of the duty to pay rent applies in abandonment of land. 24 | P a g e The importance of issuing notice applies to all lands whether in general land or village land. This was demonstrated by the Court of Appeal in the case of Abdi M. Kipoto vs Chief Arthur Mtoi (Civil Appeal 75 of 2017) [2020] TZCA 26 (28 February 2020) (TANZLII), at pages 19-20, where Court of Appeal stated that: Land is abandoned if it is not used for five years

since allocation, or rent, tax or dues have not been paid. If a village council considers land to have been abandoned, it publishes notice stating that adjudication regarding that land will be done by the Village Council and inviting persons interested to show cause why the land should not be declared as abandoned. If no person shows cause, the Village Council will make a provisional order of abandonment which will become final order on expiry of ninety (90) days if no person challenges it in Court. The effect is to render the Right of Occupancy over the land revoked after which it reverts to the village and becomes available for allocation to another person ordinarily resident in the village. What can be discerned from this decision is that once all legal processes of notifying the holder of the land on abandonment and intended actions, failure to ameliorate results abandoned land to revert to the village 25 | P a g e for the village land and to the President for the general land for which the plot in dispute in this appeal falls. I cannot find any solace on the respondent's submission that disputed land was vacant, and the respondent occupied it legally for long time thus the adverse possession applies on that land. I am certain that is not the legal position. I will disregard the same. Tanzania is a democratic state adhering to rule of law. The rule of law requires that when

rights and obligations of any person are determined by any competent organ such person must be afforded opportunity of fair hearing. Ownership of land being one of those rights protected under the law cannot be violated without undue process. The findings of the trial Tribunal's Chairman that once land is abandoned or there is failure to pay annual rent automatically becomes nobody's land amenable to occupation by anyone without following any due process of grant is to invite anarchy and clear violation of the laws of Tanzania. I am not ready to countenance illegalities committed by quasi-judicial body by irrational decisions that are not backed up by law. It is the law that occupier of the land unlawfully cannot be justified to be the owner if that person possesses no title over that land. In the case of Maigu E.M. Magenda vs Arbogast Maugo Magenda (Civil Appeal 218 of 2017) [2018] TZCA 214 (4 October 2018) (TANZLII), page 13, the Court of Appeal of Tanzania noted that: 26 | P a g e In this appeal, although the appellant has argued that he had exclusive ownership for over eighteen years before the respondent staked his claim of ownership in 2012, we do not think continuous use of /and as an invitee, or by building a permanent house on another person's land or even paying land rent to the City Council of Mwanza in his own name would amount to assumption of ownership of the

disputed plot of land by the appellant. In fact, a trespasser cannot have a valid title over land that is held under the right of occupancy. The rights of the holder of certificate of title always are paramount. It was wrong for the Tribunal to find out that the certificate of title expired for failure to pay annual rent and that occupation by the respondent was correct as it was nobody's land. At this stage, I am of the view that the second ground of appeal is valid, and I proceed to uphold it. The third ground is on holding that Plot No. 8 Block "K" Miyuji North belongs to the Dodoma City Council, without any evidence before him on that fact. It must be stated at the outset that Dodoma City Council was not a party to the Land Application No 70 of 2017 between the appellant and the respondents. Also, neither of the parties called the officers of the Dodoma City Council to testify on his behalf regarding ownership of land in Plot No 27 I P a g e 8 Block K Miyuji North within Dodoma City Council. Further, at no point in time throughout the proceedings in the Land Application No 70 of 2017 before the District Land and Housing Tribunal for Dodoma, Dodoma City Council claimed to own that land in dispute. It is evident that appellant is the one with certificate of title namely Exhibit KM-4 as the rightful and lawful owner of the land. This is cemented by several other corroborating

evidence. First, that appellant did apply for grant of that land and was granted the same as per Exhibits KM-1 and Exhibit KM-2 on record. Second, throughout the appellant is the one who has been paying the annual land rent as exhibited by Exhibit KM-3. Third, the certificate of title is in the name of the appellant as evidenced by Exhibit KM-4 and the latter from Dodoma City Council dated 14/09/2018 from Dodoma City Council that stated categorically that planning authority for the area recognises one Francis Masele Nhelekwa as the rightful owner of Plot No 8 Block K Miyuji North within Dodoma City Council. It is trite law in Tanzania about ownership of land that certificate of occupancy is conclusive evidence that the person named therein is the rightful owner unless the contrary is proved. This is demonstrated in the exiting statutory laws of the land namely the Land Act, Cap 113 R.E. 2019 and the Land Registration Act, Cap 334 R.E 2019. Indeed, section 29(1) of the Land Act provides for issuance of certificate of title called Granted Right of Occupancy as validation and 28 | P a g e evidence that the grant of that piece of land stated in the certificate to be owned by that person. Similarly, section 33 of the Land Registration recognises that estate of the registered owner is paramount. It means that a registered owner of land has a superior title over any other person

except if it is proved to the contrary. Furthermore, section 40 of the Land Registration is lucid that on the nature of the certificate of title. It states that: "a certificate of title shall be admissible as evidence of the several matters therein contained." It means that certificate of title is the proof of the ownership of the land mentioned and described in that certificate of title. The Court of Appeal being the superior court in this jurisdiction has categorically held in several cases the conclusive nature of the certificate of title. In the case of Nicholaus Mwaipyana vs The Registered Trustees of Little Sisters of Jesus Tanzania (Civil Appeal No.276 of 2020) [2023] TZCA 17578 (30 August 2023), at page 13 the Court of Appeal of Tanzania stated that: In the judgment, the trial court observed that, a certificate of title was conclusive evidence of the ownership of the suit property. In our view, that is the correct position of law according to section 40 of the Land Registration Act. There are many decisions 29 | P a g e which support the position. See for instance, the case of Amina Mau!id & Two Others v. Ramadhani Juma [2020] TZCA 19 (25 February 2020, TANZLII) where it was stated: "In our considered view, when two persons have competing interests in a landed property, the person with a certificate of title is always to be taken the lawful owner unless it is proved

that the certificate was not lawfully obtained. ” Also, in the case of Sprendors T. Ltd vs David Raymond D'souza & Another (Civil Appeal No. 7 of 2020) [2023] TZCA 23 (17 February 2023) (TANZLII), at page 12, the Court of Appeal noted that: In our considered view, if at all the appellants had any issue with the land office that issued the certificate to the second respondent, she ought to have sued it and produced proof that the said certificate was erroneously or illegally issued, but he did not. In Amina Mauiid Ambaii & 2 Others v. Ramadhani Juma, Civil Appeal No 35 of 2019 (unreported), the Court stated as follows: "... when two persons have competing interests in a landed property, the person with a certificate thereof will always be taken to be a lawful owner unless it is proved that the certificate was not lawfully obtained. 30 | P a g e There is nothing on record indicating that Dodoma City Council is the lawful owner nor that appellants are owners of the plot of land in dispute. However, there is ample evidence that appellant is the rightful owner of the disputed land. Oral evidence of SM 1 testified that he was granted the right of occupancy upon completion of requisite procedures. It was his evidence that such grant was from 1984 and in 2016 he found the respondents trespassed in his land. He tendered all documentary evidence supporting that he acquired the said land

lawfully. These are Exhibit KM-1 which is the letter from Central Development Authority (CDA) informing him that appellant's application has been considered positively. Exhibit KM 2 is the Letter of Offer from the Dodoma Municipal Council implementing the decision of CDA to grant the land. This contained prerequisite conditions that appellant was required to fulfil. It is on record that he fulfilled hem. Also, Exhibit KM-3 which are receipts evidencing payments to fulfill prerequisite conditions. Further, Exhibit KM-4 is the Certificate of Title (Hati ya Umiliki wa Ardhi) culminates the whole process as it recognises the appellant as the only lawful and rightful owner of Plot No. 8 Block K Miyuji North. Is there evidence that the Dodoma City Council is the owner of the land in question? The answer is in the negative. None of the appellant's nor respondents' witnesses testified to the effect that land in question belonged to the planning authority i.e. Dodoma City Council. The findings by the trial Tribunal departed so much from the issues that were before it. The issues on page two of the judgment were only three, namely: first, 31 | P a g e whether the applicant is the lawfully owner of the disputed land. Second, whether the respondent, they have trespassed to the disputed land. Third, to what relief(s) parties are entitled. I shall revert back on these issues upon analysis of

the fourth ground before concluding the determination of this appeal. I am of the firm opinion that trial Tribunal failed to address the issues raised in accordance with the available evidence on record. This Court being the first appellant court has all powers to evaluate the evidence and determine the issues pertinent to addressing the dispute in question. It is the guidance of Court of Appeal that in cases of this nature on dispute of ownership, a party who adduces evidence on how he came into possession of the land and tenders relevant documentary evidence to support such assertion including certificate of title, it is that person who should be believed and findings should be in his favour. In the case of Oscar Karsan Kanji vs Abdallah Hassan (Civil Appeal No. 9 of 2020) [2024] TZCA 161 (6 March 2024), the Court of Appeal stated that: We have considered the rival arguments on this ground and are satisfied that the respondent discharged enough burden to show that he was the owner of the land in question. He testified how he came into possession of the disputed land after the death of his father, he called one witness who testified as PW2 to support him. That aside, 32 | P a g e 4 as if to ciinch the matter, he produced a Certificate of Title (Exh. P4) in his name which vindicated his testimony. The appellant on the other hand, did not bring stronger evidence; he was not even

an administrator of the estate of his mother. He so admitted in his testimony; that the administrator of the estate of his iate mother is his brother, a certain Seth Karsan. He also testified that a Certificate of Title was with Hassan Abdallah (the respondent's late father) and efforts to retrieve it from him did not bear any fruit. The evidence is, in our view, largely in favour of the respondent. Thus, the complaint seeking to fau/t the High Court for holding that the respondent was the owner of the farm in dispute whilst there was no evidence which established that ownership, is not backed by evidence. The scales ofjustice in this case, it seems to us, tilted against the appellant, l/l/e therefore dismiss this ground as well. Given that there is no evidence on record to warrant Dodoma City Council to be declared the owner of the land in dispute, Plot No. 8 Block K Miyuji North, I have no option than finding that the third ground of appeal is well founded. The Tribunal erred to find that Dodoma City Council is lawful owner of the disputed land, and anyone interested to apply for ownership should approach the City Council. I uphold the third ground for being meritorious. 33 | P a g e The fourth and last ground of appeal is on failure to analyse evidence by the trial Chairman. There are only two main limbs on this aspect. First, source of ownership of land by the parties.

Second, who between appellant and respondent is the rightful on balance of probabilities on the available evidence on record. This ground is not difficult to determine. DW 2 (on record appearing as SU 2) one Emmanuel Paulo Chihutu stated that he was born on 1983 at Mpamaa ni Miyuji. He claimed that he was given the land inter vivos by his parents since 2002. It was his evidence that his parents cleared a virgin land in 1972. He further stated that certificate of title of the appellant had expired on 30/06/1985. In cross examination DW 2 stated that the disputed land is surveyed, and he tendered nothing to prove that he was given a gift inter vivos by his parents. On the other hand, DW 3 (on record appears as SU 3) one Valerian Juma Mpingama testified that he cleared virgin land in person in 1982 and has been using it throughout. He stated that he is owning the land by virtue of customary right of occupancy and recognised by the village/mtaa authority. DW 3 tendered no document to prove ownership on account that he owns it through customary right of occupancy. He stated that he does not have the customary title. DW 4 (dubbed as SU 4 on record) was Mr. Francis Talii Sayanga who stated that between 1999 to 2004 he was hamlet chairman of Mpamaa. He 34 | P a g e stated that he knows the 1st and 2nd respondents herein as the residents of the area. He stated that 1st respondent was

given the land as gift inter vivos by his parents when he got married. For 2nd respondent, it was DW 4 testimony that he was present when the 2nd appellant cleared the virgin land. In cross-examination, DW 4 stated that he is aware that CDA had been surveying the land within the municipality. He stated that Exhibit KM- 3 (sic!) is the certificate of title given to the appellant. He recognised that KM -2 is a letter of offer directed to the appellant to ne granted right of occupancy. Stated in evidence further that CDA became operation in 1972/1973 and Miyuji Ward was within the mandate of CDA planning and that CDA surveyed the area without involving the residents/original owners. DW 5 (SU 5) Emmanuel Chimanha stated that he was born is 1982 and found parents of 1st respondent and 2nd respondent using the land. 1st respondent's father and the 2nd respondent are owners by clearing of the forest land. He found them using the land thus knows that they cleared virgin forest. That being the sum of available evidence, there are few things to note. DW 5 was not yet born when the 1st appellant's parents and 2nd appellant allegedly cleared the virgin land. Second, there is no evidence as to whether 1st appellant's father exists or otherwise. If the same is still alive, why did the 1st respondent failed to call either of them to testify in Court? If they are dead, there is no evidence to

that fact from all the respondents' witnesses. Further, there is no evidence from the Mtaa/village 35 | P a g e 1 authority to testify on the fact that they saw the 1st respondent's parents of 2nd Respondent clearing the virgin land. Evidence of DW 5 is based on hearsay evidence. There were no witnesses as to the exact date and month when was the 1st respondent given the land as a gift inter vivos. The evidence on part of the appellant as we have stated above is ample and straight forward, well documented and there is no doubt that Dodoma City Council recognises the appellant as the rightful and lawful owner of the suit premises. There is not evidence that 1st respondent was given the land as a gift inter vivos. No witness testified as to exactly when was the same done and who were the witnesses of such grant of land by way of gift inter vivos. It is a settled legal principle that claim on ownership of land via gift inter vivos must be supported by strong evidence that the land was given and accepted. In the case of Ernest Sebastian Mbele vs Sebastian Sebastian Mbele & Others (Civil Appeal 66 of 2019) [2021] TZCA 168 (4 May 2021) [TANZLII], at page 11 the Court of Appeal had this to say: ...it is obvious that PW2 gave a bare statement in ber examination in chief that the appellant was allocated the piece of land by his father with no more. She did not explain as to how she came

to know about such donation. 36 | P a g e 4 The mere assertion without further elaboration was not enough. But that statement also leaves a lot to be desired. If it is true that she witnessed the gift inter vivos, why did she not mention it in the first place when she was called to establish its existence. Worst still, she did not give any detailed account, be it in her examination-in chief or cross examination, as to the number of witnesses who were present, the names of the witnesses and/or the place where the gift was made taking into account that the 1st respondent disputed the presence of the children at home in 1988. We think it would be wrong to place any reliance on evidence of a witness who allegedly saw the donation but failed to disclose such an important materia/ fact in her examination in chief. With such improbable evidence of PW2, the /earned tria/Judge was correct in not putting any reliance on her evidence. In that regard, we find no reason to fault her. There are only mere words from the 1st respondent that he was given that land by his parents in 2002. There are no better particulars on exactly month and date. Also, there is no list of witnesses who did witness the transfer of land by way of gift inter vivos. Elements that must be proved to rely on transfer of land by way of gift inter vivos were demonstrated in the case of Hamis Sultan 37 | P a g

e Mwinyigoha vs Zainabu Sultan Mwinyigoha (Civil Appeal No. 447 of 2020) [2024] TZCA 150 (29 February 2024) (TANZLII). At pp. 5-6, the Court stated that: We have therefore underscored in the context of this case that, validity of a gift essentially Ues on the intention to give and acts incidental to that intention which may include the physical handing over of the gift. See Micky Woodley Osborn's concise Law Dictionary (supra) at Page 200-201. It is also essential and paramount for the gift to be voluntary on the part of the donor and without any element of consideration on the part of the donee. As per the commentaries contained in Justice Y.V. Chandrachud, P Ramanatha Aiya Concise Law Dictionary 3rd Edition, Lexis Nexis Butterworths Wadhwa, page 493; love, affection, spiritual benefit and many others may enter into the intention of the donor to give or make a gift. In the law of property therefore, three elements must exist for a gift to be legally valid. One is, as alluded to above, intent to give by the donor, two, delivery of the gift to the recipient, the donee and three, is the acceptance of that gift by the donee. These three elements, by any standard, are exhibited by way of evidence, no more no less. It is to say, in the instant appeal, there must be evidence proven on 38 | P a g e balance of probabilities that the /ate Sultan Mwinyigoha granted the suit property to

the appellant by way of a gift. I am certainly aware that evidence on record does not reveal proof of all these elements before the Tribunal. The respondents have not adduced any cogent evidence to substantiate that 1st respondent's parents were alive in 2002 and whether they are still alive or not is not disclosed. It cannot therefore be said the 1st respondent manage to convince this court to find out that he was given the land as gift inter vivos. There is none. Similarly, there is disjointed and weak evidence regarding the customary ownership of land by the 2nd respondent. There is no evidence as to when he started to live independently to be able to clear the virgin land. There are no details as to whether his parents were from within the vicinities of the place where the disputed land is situated. On the other hand, there is lucid evidence of application, acceptance of the request, issuance of Letter of Offer, payment of the requisite fees and other payments to relevant authority and finally grant of certificate of title. Disputed land is a registered land thus the holder of certificate of title holds conclusive evidence that he is the rightful owner of the land in question. Section 22(1) (d) of the Act is lucid that a granted right of occupancy should be registered under the Land Registration Act, to be valid and, subject to the provisions of that law and this Act,

indefeasible. It means that once registration process is completed the registered owner is the only rightful and lawful owner of the land in question and his ownership cannot be questionable. The registered owner is unimpeachable. To cement this position, the case of Leopold Mutembei vs Principal Assistant Registrar of Titles, Ministry of Lands Housing and Urban Development & Another (Civil Appeal 57 of 2017) [2018] TZCA 213 (11 October 2018) (TANZLII), may be illustrative at pages 16-17, the Court of Appeal observed that: The above apart, we find it apt to emphasize the essence of any iand tities system by referring to the observation made by Dr. R. W. Tenga and Dr. S.J. Mramba in their book bearing the title Conveyancing and Disposition of Land in Tanzania: Law and Procedure, LawAfrica, Dar es Salaam, 2017, at page 330: "... the registration under a land titles system is more than the mere entry in a public register; it is authentication of the ownership of or a legal interest in, a parcel of /and. The act of registration confirms transactions that confer, affect or terminate that ownership or interest. Once the registration process is completed, no search behind the register is needed to establish a chain of titles to the property, for the register itself is conclusive proof of the tide. ” [Emphasis added] 40 | P a g e We wholly subscribe to the above view. On this basis,

we hind Exhibit D.2 is not just proof of the state of ownership over the property in dispute by the persons named therein, but also evidence confirming the underlying transactions that conferred or terminated the respective titles to the persons named therein. By dint of logic, therefore, the appellants contention that Mr. Afro's registration was secured without the consent of the Commissioner for Lands or that it was secured on the strength of a bogus certificate is hollow. We reject it. The appellant has a superior title over any other person in respect of the matter compared to any other person save for the radical and superior landlord. The government through planning authority, Dodoma City Council has no demand against the appellant in respect of that land. In fact, the Dodoma City Council confirmed that appellant is the owner of the land described as Plot No. 8 Block K Miyuji North. No one else is the owner recognised by the planning authority in respect of land in dispute. It is my findings that all the four grounds of appeal have merits. I shall proceed to uphold them. Consequently, the judgment and decree of the District Land and Housing Tribunal for Dodoma are hereby quashed and set aside and substituted thereof with this decision. 41 | P a g e In totality of the evidence available on record it is hereby declared that the appellant is the only rightful and lawful

owner of the land in Plot No. 08 Block K Miyuji as he is the holder of certificate of title. There is no evidence to point out to a different direction as the appellant had neither abandoned nor disposed it in any manner. Consequently, the respondents have no cause of action against the appellant. There is no iota of evidence on record to support customary ownership of the land in question by clearing a virgin forest or being given land as a gift inter vivos. Thus, the respondents had trespassed to the appellant's land. The second issue is therefore in the affirmative that 1st and 2nd respondents trespassed the land belonging to the appellant without colour of right. The trespassers, namely the 1st and 2nd respondents are hereby ordered to give vacant possession of the land in dispute described as Plot No. 8 Block K Miyuji North in favour of the appellant with immediate effect. Therefore, this appeal is hereby allowed for being meritorious with costs. It is so ordered. DATED at DODOMA this 15th day of April 2024. 42 | P a g e