NA TZHC Dar es Salaam19

p t I 1 IN THE HIGH COURT OF TANZANIA , , ,, , ~-, I ·•'Jr.,,'·, ,,r .. , 1 tl" I ' ' ' AT DAR .ES' SALAAM. , , • ., ~ '"· I ,,. J ; <( t\ •f> ;·: _r t I., • ', ' l (~.t.l. • .,., r v .• r, f lo, 'l . -• I I,•. ..., • -., .. ~ ' • ! .., 'f(" L: .. , • . • .. i r, • \ ~ • : ,l'\ ( r.1' ~~ ,. · , ) ., \ ,· 11• •► ~ ~I f r ) , • , , ,, ~ - • '1 • •, • ' ' ' t I• •'I• • ·,;"'!f':l( r c:,Ii'l' .t','1lCIVIL APPEAL: ·t . 1 ·r ,, .,, J· I ·Id r; (' t, I'• I{ .I ., •• ~ <. .. - ' - •. ,. ~65 i0F>~1995 >'.'.",' 1 '•·' t ' '· ..., .., ~ • .NO. I . I ... , I ➔ ,. / ' • · ·' • • · · .~ - •. • . 1• · ,.. .. ,. .. -i·.,.r-,f nt n,1try~c, ,f·, ,fl-.LJ - Ld .•,.h.c • n.: f:t... w1qfH . ,,. •. 1 ". 11·-•1"'' ·! , , '!i ·;, .• u., · . , r 1 , • . • . ~.. 1 , n ' 1 · ' GWAKISA 1 MWAMBALASWA . ............................ ) CECILIA MWASOMBI MWAMBALASWA.) APPELLANTS Versus RUKWEMBE RAJAB NJUWILA .......................... ) CITY COUNCIL OF DSM ....... ) RESPONDENTS " JO D GE M_E NT ) The appellants Gwakisa Mwambalaswa and Cecilia Mwasumbi Mwambalaswa unsuccessfully sued Rukwembe Rajabu Njumila and the Dar es Salaam City Council over certain property in Plot No. 524 Block Din Sinza area within the city of Dar es Salaam. ~his is one of many cases of confusion and double allocation of plots of land that this country has suffered for some time now. There was evidence in the lower court which showed that the pJot of Ir.ind in qtiestion was the property of one Hadija Mtembe. She had been owner since 1976 but she failed to develop it. The fact that the plot had remained undeveloped for a long time came to the attention of the 1st appellant after a plot originally given·to him had been taken away from him. He was apparently looking for an. undeveloped plot so that it could be issued to him in place of the one that had been taken from him. When he spotted the plot he reported to the Commissioner of Lands. He was issued with an offer by the Ministry of Lands in November 1991 following revocation of right of occu2?ncy held by Hadija Mtembe. The appellants however met with hurdles when they sought for a building permit so that they could proceed with development. The city Council declined to issue them with a building permit even though they were in possession of a right of occupancy granted them by the Ministry of Lands. The City Council apparently had favoured the 1st respondent with an offer purportedly on 26/5/91. When the appellants saw that the City Council was not favouring them with a building permit, while at the same time there were signs of activity by someone else on the plot, the appellants put up a foundation on the plot which was, 3 by law. Dr. Tenga was of the opinion that this ground was devoid of merit. He thought that it was the appellant's own;fault to have failed to· call their. w:i.tnesses. '\ '·'' ; ,~:' .I : 'f ,t' I~·,. ; / ;, '.. ~ ~ • f t •"'. .•t The record of the court -shows thatt.atd.the.~ close !Of'.t. the, case ·for the plaintiff the court on its own motion made an order for the commissioner to produce President's,command,empowering the Minister for Lands to revoke the right of occupancy for plot No. 524 Block D Sinza from the 1st Defendant. I have failed to understand why he made this order, because nobody had claimed that the 1st defendant's title had been revoked. Revocation was against Hadija Mtimbe. Could this probably be another slip of the pen? Whatever it was I wogder why the learned magistrate didn't follow up on his own order? Now let us ttilrn to justice and rj ghteo11sness. It is clear from the evidence that is available that the 1st respondent so far is only in possession of an offer to the disputed plot while on the other hand the appellants are in possession of a right of occupancy which is a better title than an offer. It is also an established fact that the 1st Respondent was issued with an offer of the plot by the City Council at a date when thP. title held by Hadija Mtimbe had not been revoked. The offer issued by the City Council could not therefore, in the cir~umstances have been valid. It is common ground that a lot of injustice has been committed by some unfaithful employees in our land offices. I would not be surprised if the offer to the 1st respondent was back dated so as to show that he received it earli.er than the appellants for otherwise how can one explain an offer being issued when a title over the same plot is held by someone else. Ccinsidering the undisputed evidence of the appellapts and that of his witness from the land office and considering that the respondents were unable to call any witnesses from either the Ministry of Lands or the City Council. I find myself at a loss as to how the l.earned trial magistrate could have entered judgement for the respondents. In my considered opinion the circumstances of the case were such that a just decision could only be one in which the appellants would have been declared owners of the disputed plot. I therefore in the light of the above allow the appeal by Gwakisa Mwambalaswa and Cecilia Mwambalaswa with costs. They are declared to be owners of the disputed plot i.e. Plot No. 524 Block D Sinza area.