HAWA KAZIMOTO vs ISSA ABDALLAH KAMBONDOMA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA LAND APPEAL NO. 4420 OF 2024 {Arising from the District Land and Housing Tribunal for Tabora in Land Application No. 66 of 2019) HAWA KAZIMOTO ........ ............ .......... ................... 1st APPELLANT MOSSI KAZIMOTO ............. 2ND APPELLANT VERSUS ISSA ABDALLAH KAMBONDOMA ............. 1st RESPONDENT HELIOS TOWERS TANZANIA LIMITED............ .................. ... 2nd RESPONDENT JUDGMENT Date ofLast Order09/10/2024 Date ofDelivery: 13/11/2024 KADILU, J, The appellants were the complainants in Land Application No. 66 of 2019 before the District Land and Housing Tribunal (DLHT) for Tabora claiming to be lawful owners of Plot No. 1 Block "DD" at Usagara Street within Tabora Municipality. They alleged that they are legal representatives of their deceased father who passed away in 1990:. They were appointed as the administratrix of the deceased's estate in October 2018 by Nyalikungu Primary Court at Shinyanga. According to them, when discharging their administration role, they realized that their late father left the suit land in Tabora but its certificate of title was lost. They elaborated that the lost certificate was issued in the name of their late father, Yusuph Kazimoto for a term of 99 years from 1st July 1963. After realizing that the certificate was lost, in 2019 they applied to the Land Registry of Tabora where they were issued with a certificate of title No. 118046/1 in their names. They further contended that on the disputed land, they found a communication tower belonging to the 2nd respondent who informed them that she leased the land from the 1st respondent in 2005 who represented to them as the lawful owner. The 2nd respondent used to pay rent to the 1st respondent from 2005 to 2019 when the dispute arose. On his part, the 1st respondent asserted that he is the lawful owner of the land in dispute with a certificate of title No. 118046/38 issued tp his late father in 1985 for a term of 33 years. His father passed away in 2000 and the 1st respondent was appointed the administrator of the estate. He tendered land rent payment receipts to support his assertion. He also elaborated that in 2018 when he was in the process of renewing the certificate of title, the dispute arose and prevented him from further steps. After the trial, the DLHT decided the dispute in favour of the respondents. The appellants were dissatisfied with the decision of the DLHT. They filed the instant appeal armed with the following grounds: 1. That, the trial tribunal erred in law and facts by relying on a Certificate of Title issued in 1985 and the same expired in 2018 while ignoring the Certificate of Title issued in 1961 to date being operative. 2. That, the trial tribunal erred in la w and facts for failure to consider Exhibits P2, P3, and D2 which show the appellants are the lawful owners. 3. That, the trial tribunal erred in law and facts by relying on the land rent receipts paid by the 1st respondent in declaring him the lawful owner of the suit land while in law land rent payment receipts are not conclusive proof of land ownership. 2 4. That, the trial tribunal erred in law and facts for failure to evaluate the evidence on recordproperly hence, arrived at a wrong decision. 5. That, the trial tribunal erred in law and facts for failure to consider the testimony by the Assistant Registrar of Titles that a Certificate of Title held by the appellants is still in existence in the Land Register. On the strengths of the above grounds, the appellants prayed for the appeal to be allowed with costs, the decision of the trial tribunal together with its subsequent orders to be quashed and set aside, and to be declared as lawful owners of the suit land. They also urged the court to order the respondents to compensate them in the form of mesne profit. The respondents filed a reply to the memorandum of appeal and argued that the decision of the trial tribunal is right in law and facts based on law and evidence presented during the trial. They opined that the trial tribunal considered all the evidence presented before it during the trial hence, the decision was reached based on the weight of evidence as a whole. They prayed for the appeal to be dismissed with costs. When the appeal was called on for hearing, the appellants were represented by Mr. In ha rd Mushongi, the 1st respondent was represented by Mr. Kelvin Kayaga, and the 2nd respondent was represented by Mr. Leonard Masatu, all the learned Advocates. Mr. In hard prayed to abandon the 5th ground of appeal. Submitting on the 1st ground, he stated that the DLHT erred in relying on an expired certificate of title and declared the 1st respondent the lawful owner of the suit land. The case involved double allocation and the principle is that the first allocated person becomes the owner. He supported his argument with the case of Patricia Mpangaia & 3 Another v, Vicent K D, Lying, XJn\\ Appeal No, 149 of 2020, Court of Appeal at Dar es Salaam, Concerning the 2nd ground, the learned Advocate explained that the trial tribunal failed to consider the evidence presented before it through exhibits P2, P3, and D2. He urged the court to step into the shoes of the DLHT in re-evaluating the evidence on record and come up with its own conclusion. Regarding the 3rd ground of appeal, Mr. In ha rd submitted that the tribunal erred in relying oh land rent payment receipts and declared the 1st respondent the owner of the disputed land while in jaw, land rent payment receipts are not conclusive proof of land ownership. He cited the case of The Registered Trustees of Joy in the Harvest v. Hamza K. Sungura, Civil Appeal No. 149 of 2017, Court of Appeal at Tabora and Kerukama Lucas V. Dr Luis S, Shija, Civil Appeal No. 63 of 2022, Court of Appeal at Shinyanga. On the 4th ground, Advocate for the appellants argued that the tribunal failed to analyze the evidence presented before It. It held that since the 1st respondent occupied the land in dispute for 34 years without interruption, he was the owner thereof. According to Mr. Inhard, the tribunal wrongly applied adverse possession principle because it was not pleaded and proved. The Law of Limitation Act under Section 37 (1) (2). and (3) requires that if a party wishes to rely on adverse possession, he may apply to the High Court to be declared as such before being registered as the owner. The learned Counsel supported his contention with the case of Emmanuel Ekoki v. Henry Bundala, Land Appeal No. 261 of 2022, the High Court at Dar es Salaam. 4 Opposing the appeal, Mr. Kelvin submitted that the tribunal considered the evidence presented before it as a whole and accorded it the deserving weight. He added that the cases cited by the Advocate for the appellants are inapplicable in this case because the presentation of a certificate of title alone is not sufficient to prove ownership without tracing the root title. On the 2nd ground of appeal, Mr. Kelvin refuted the allegation that the DLHT did not consider the exhibits tendered. Regarding the 3rd ground, he stated that in the judgment of the trial tribunal, nowhere it is shown that the tribunal relied on land rent payment receipts in reaching its decision. About the 4th ground, he submitted that the tribunal analyzed the evidence properly. It did not rely on the principle of adverse possession alone. He. cited the case of Stanley Kalama Masiki v. Chihiyo Kuisia, [1991] TLR 143, and Suzana S. Warioba k Shija Dalawa, Civil Appeal No. 44 of 2017, Court of Appeal at Mwanza. The learned Counsel elaborated that Section 37 of the Law of Limitation Act is about the registration of easement on the grounds of adverse possession. It is not applicable in the circumstances of this case. He said he could not comment on whether or not adverse possession was pleaded, but the tribunal was at liberty to decide the case considering all the facts. Mr. Leonard joined hands with the submissions by Mr. Kelvin and added that the appellant's evidence was found to be shaky as shown in the judgment of the tribunal. The tribunal analyzed the whole evidence and found the respondents' evidence heavier compared to that of the appellants. Concerning the 2nd ground, he submitted that all the exhibits were considered and the tribunal reached a fair conclusion. 5 Rejoining, Mr. Inhard submitted that a Certificate of Title, Exhibit P2, search report, and exhibit D2 are the main exhibits that proved that the appellants are the lawful owners of the land in dispute. Land rent receipts are analyzed on page 9 of the judgment. Ownership of the disputed land was by way of allocation, double allocation to be specific. It is not true that the entire Section 37 of the Law of Limitation Act is about easement. The provision is also concerned with the registration of land on the grounds of adverse possession. Advocates for the respondents conceded that adverse possession was not pleaded so if the Honourable Chairman wished to deal with it, he could have invited the parties to address him on it. Concerning mesne profit, it was pleaded and proved in the trial tribunal. In determining the appeal, I will resolve the 2nd and 4th grounds jointly since they both fault the way the trial tribunal evaluated the evidence presented before it. The appellants believe that they proved that they are the lawful owners of the disputed land by using exhibits P2, and P3. Exhibit P2 is a certificate of title No. 118046/1, exhibit P3 is an official search report. They complain that the DLHT failed to analyze the evidence properly. I have examined the tribunal's judgment carefully and noted that the learned Chairman evaluated the evidence from pages 10 - 12. The trial Chairman observed that the credibility of the appellants' evidence was questionable for the reasons he had indicated in the judgment. In that situation, the tribunal cannot be blamed for not evaluating the evidence effectively hence, the complaint lacks the legal base. About the 3rd ground of appeal, the appellants lament that the DLHT relied on land rent payment receipts as conclusive proof of the 1st 6 respondent's ownership of the disputed land. I am unable to find the basis of this complaint because, in the tribunal's decision, evidence was evaluated holistically. The learned Chairman was categorical that the land rent payment receipts supplemented a certificate of title No. 118046/38 in proving the 1st respondent's ownership of the suit land. As the appellants did not present any land rent payment receipts, it is baseless to discredit the tribunal's finding favouring the respondents after having found their evidence heavier and more credible. I dismiss this ground of appeal for want of merit. Lastly, the appellants alleged that the DLHT erred in relying on a certificate of title issued in 1985 while their 1961 certificate of title was still subsisting. I hinted earlier that the trial tribunal considered the evidence as a whole, not a single aspect as contended. In doing so, the tribunal identified numerous weaknesses in the appellants' certificate of title such as contradiction in the year of registration. It also noted that the 1961 and 2019 certificates appear to be signed by the same land officer which is impracticable. The tribunal observed further that the 1961 certificate had no title number, It is settled that for a claimant who alleges to have derived land ownership from someone else, he should establish that his transferor had a good root title. If he fails to do so, he cannot rely on a certificate of title issued to his transferor without having the origin. The Court of Appeal in Jacqueline Jonathan Mkonyi & Another k Gausa! Properties Ltd, Civil Appeal No. 311 of 2020, held: ”... we wish to observe that this is not a case of end justifying the means, so we agree that registration of land wouid not ipso facto prove title in the absence of evidence establishing how one got the title./z 7 In the instant appeal, the appellants only stated that their late father's certificate of title was lost. They did not elaborate on the circumstances in which it got lost. They did not es well explain how they knew the certificate was lost. The appellants were expected to provide details such as where, how, and when their deceased father got the suit land, and how it was used during the lifetime of the deceased. They neither in the pleadings nor on evidence stated the title number of the alleged lost certificate. They managed to get all the details about the said certificate except its title number. The title number of the said certificate was crucial as it is through the certificate of title number that one could identify the plot as distinct from all others in that area. In my view, the certificate of title issued to the appellants in 2019 has no foundation or root. While they were issued with such a certificate on the basis that there existed a valid certificate in the name of their deceased father, they failed to prove the existence of the alleged previous certificate. Dr. R.W. Tenga and Dr. SJ. Mramba in their book titled Conveyancing and Disposition ofLand in Tanzania: Law and Procedure, (2017) observe that the registration under a land titles system is more than the mere entry in a public register. It is authentication of the ownership of or a legal interest in a parcel of land. From the foregoing analysis and authorities, it is the finding of this court that the appellants had no good root title from which they could derive a certificate of title No. 118046/1 issued to them in 2019. Thus, the District Land and Housing Tribunal for Tabora was justified in finding that the appellants are not the lawful owners of the disputed land. Consequently, I 8 dismiss the appeal in its entirety for want of merit. Being in the nature of the administration of the estate, each party shall bear its costs. Order accordingly. JUDGE 13/11/2024 Judgment delivered in chamber on the 13th day of November, 2024 in the presence of Mr. Inhard Mushongi, Advocate for the appellants, and Mr. Kamaliza Kayaga, Advocate for the 1st respondent also holding brief for Mr. Leonard Masatu, Advocate for the 2nd respondent. 9