Land Appeal No

THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND APPEAL NO. 7713 OF 2024 (Originating from the District Land and Housing Tribunal for Kinondoni at Mwananyamaia in Land Application No. 222 of 2019) HILARY FESTO NGOWI............................................. 1STAPPELLANT EDITH HILARY NGOWI..................................... .....2NDAPPEALLANT VERSUS SANA EXPRESS SUPPLY LIMITED.......................... 1STRESPONDENT ELLY NGOE KITOMARI..................... 2ndRESPONDENT FARB ASSOCIATES................................................ 3rd RESPONDENT JUDGMENT Date of last Order: 17/09/2024 Date ofJudgment: 30/09/2024 LALTAIKA, J, The Appellants herein, HILARY FESTO NGOWI AND EDITH HILARY NGOWI, are dissatisfied with the decision of the District Land and Housing Tribunal for Kinondoni at Mwananyamaia (the DLHT) in Land Application No. 222 of 2019. He has appealed to this Court by way of petition of appeal containing the following grounds: Page 1 of 12 1. THA 7J the Tribunal erred in law and in fact by dismissing the Appellants' Land Application with costs without determining the issues which were framed and recorded before the Tribunal. 2. THA T, the trial Tribunal grossly erred in law and fact by dismissing the Appellant Land Application without according any weight on the cogent evidence given by PW-1 and PW2. 3. THA T, the trial Tribunal erred in law and fact by adjudging the matter before it by basing on extraneous matters and facts which were not pleaded proved by the 2nd Respondent This appeal was argued by way of written submissions. The next part of the Judgment is a summary of submissions by Counsel for both parties. Before addressing the core issues of the appeal, Mr. Emanuel Ndanu, Counsel for the Appellant, gave a brief background, explaining that the Appellants had filed a land application before the tribunal against the Respondents. They had sought orders declaring the 1st and 2nd Respondents as trespassers, their eviction from the disputed land, a permanent injunction against further interference, general damages, and costs. Mr. Ndanu further stated that prior to the hearing, the tribunal framed and recorded two issues: the lawful ownership of the disputed plots and the reliefs to which the parties were entitled. After hearing the evidence from Page 2 of 12 both the Appellants and the 2nd Respondent—since the matter proceeded ex parte against the 1st and 3rd Respondents—the tribunal dismissed the Appellants' application with costs, a decision that aggrieved them, prompting the appeal. The Appellants raised three grounds of appeal, including that the tribunal had failed to determine the framed issues, did not properly consider the evidence presented by PW-1 and PW-2, and based its decision on extraneous matters not pleaded or proven by the 2nd Respondent. He argued that the tribunal's judgment did not comply with the requirements of Regulation 20(l)(a)-(d) of the Land Disputed Courts (District Land and Housing Tribunal) Regulations, 2002, which mandates judgments to be written in simple language, address the framed issues, and provide a decision with reasons. He contended that the trial chairman failed to analyze the evidence in relation to the framed issues, which amounted to a serious irregularity. Mr. Ndanu cited case law, including Kumbwandumi Ndemfoo Ndossi vs Mtei Bus Services Ltd (Civil Appeal No. 257 of 2018) F20211 TZCA 23 (19 February 2021) emphasizing that cases must be decided based on the issues raised on record and that new issues, Page 3 of 12 if arising, should be recorded and parties should be given the opportunity to respond. On the second ground, Mr. Ndanu highlighted that the Appellants had presented strong evidence, including two certificates of title and testimony from a land officer, which demonstrated their ownership of the disputed plots. He referenced case law, such as Amina Maulid Ambali & Others vs Ramadhani Juma (Civil Appeal No. 35 of 2019) [2020] TZCA 19 (25 February 2020) to argue that certificate of title is conclusive proof of ownership, unless proven otherwise. He criticized the tribunal for not giving due weight to this evidence and for failing to address the 2nd Respondent's claims of fraud, which were neither particularized nor substantiated. Regarding the third ground, Mr. Ndanu argued that the tribunal's decision was based on matters not pleaded by the 2nd Respondent, such as issues of compensation and land acquisition procedures, which were raised during testimony but not in the pleadings. He cited legal principles that parties and courts are bound by their pleadings, referring to the case of Mary Peter Otaru and Another vs African Banking Corporation (Tanzania) Ltd, and Another (Civil Appeal No. 395 of 2020) [2024] TZCA 511 (2 July 2024). He Page 4 of 12 submitted that the tribunal had erred by considering extraneous evidence not connected to the pleadings. In conclusion, Mr. Ndanu submitted that all three grounds of appeal had merit and requested the court to allow the appeal, quash the judgment and decree of the tribunal, and declare the Appellants as the lawful owners of Plot No. 110 and 112 Block 23, Bunju Area, Kinondoni Municipality, with costs. Counsel for the 2nd Respondent, Mr. Hassan Fatiu, submitted that after a thorough review of the Appellants’ written submission, the 2nd Respondent adopted the background provided by the Appellants’ Counsel. He further alerted the Court to the fact that the trespassers were not the 1st or 2nd Respondents but rather the Appellants, as they were still in possession of the disputed plots. Responding to the first ground of appeal, Mr. Fatiu contended that the trial Tribunal had neither erred in law nor in fact in dismissing the Appellants' land application with costs after determining the issues that had been framed and recorded. He refuted the Appellants' Counsel's allegation that the trial Chairman had failed to analyze the evidence and testimonies from both Page 5 of 12 sides, directing the Court to pages 10 to 13 of the Tribunal's judgment, where he claimed a thorough analysis had been done. In summarizing, he pointed out that although PW1 had submitted Exhibit Pl/Certificates of Titles, neither PW1 nor PW2 had produced the legally required Application Letter/Form N.19, which would have moved the Commissioner for Lands to grant the land to the Appellants. Additionally, PW2 had acknowledged that the 2nd Respondent was one of the original owners of the plots in question, and there was uncertainty about whether the 2nd Respondent had been compensated. Mr. Fatiu cited the case of Leopold Mutembei vs Principle Assistant Registrar of Titles,ministry of Lands Housing and Urban Development & Another (Civil Appeal No. 57 of 2017) [2018] TZCA 213 (11 October 2018) but argued that it did not overrule the principles established in Amina Maulid Ambali & Others vs Ramadhani Juma (Civil Appeal No. 35 of 2019) [20201 TZCA 19 (25 February 2020) where it was determined that a certificate obtained unlawfully, as he asserted was the case for the Appellants, held no legal weight. He reminded the Court that the 2nd Respondent had been the original owner of the plots since the 1980s, and that issues surrounding acquisition and compensation were inadequately documented by the Page 6 of 12 Commissioner for Lands. Quoting the trial Chairman's findings at the last paragraph of page 12, he emphasized that the entire land allocation process had been marred by irregularities, as the 2nd Respondent had not been involved or compensated as required. Mr. Fatiu referenced the case of Ntiyahela Boneka vs Kii'iji Cha Ujamaa Mutala [1988] TZHC 27 (27 August 1988) to argue that, like the appellant in that case, the 2nd Respondent was entitled to the land, having been lawfully allocated and developed it to meet human needs. He concluded that the evidence and testimonies of PW1 and PW2 were less credible than those of the 2nd Respondent and requested that the appeal be dismissed with costs. Addressing the third ground of appeal, Mr. Fatiu reiterated his earlier submission, stating that the trial Chairman's findings were based on the pleadings and testimonies of both parties. He cited the case of Grace Olotu Martin vs Ami Ramadhani Mpunqwe (Civil Appeal 91 of 2020) [2023] TZCA 193 (20 April 2023), which held that neither honest belief nor innocent entry could serve as a defense in trespass actions. He concluded that the third ground also lacked merit and should be dismissed with costs. Page 7 of 12 He then addressed the case of Kumbwandumi Ndemfoo Ndossi vs Mtei Bus Services Ltd (Civil Appeal No, 257 of 2018) [2021] TZCA 23 (19 February 2021), asserting that it was irrelevant to the matter at hand, as there had been no new issues raised from the evidence or arguments during the trial. He denied the Appellants' claim that the 2nd Respondent had introduced new facts, referring to page 5 of her Written Statement of Defense, where she had pleaded ownership since the 1980s. This assertion, he noted, was consistent with PW2's testimony that the plots had originally been farms and that the 2nd Respondent was one of the original owners. In conclusion, Mr. Fatiu contended that the trial Tribunal had neither erred in law nor in fact in dismissing the Appellants' land application after considering the evidence from PW1 and PW2. He argued that PW2 had misrepresented herself as an officer from the Registrar of Titles, when she was actually a land officer from the Commissioner for Lands. He further claimed that neither PW1 nor PW2 had provided the necessary preliminary documents to show that the Appellants had lawfully initiated the process of acquiring the disputed plots. Based on these arguments, he urged the Court to dismiss the appeal with costs and to invoke section 43(f)(2) of the Land Dispute Courts Act, Cap. 216. Page 8 of 12 Mr. Fatiu requested the Court to affirm the trial Tribunal's findings that the 2nd Respondent was the rightful owner of the disputed plots and to issue an eviction order against the Appellants. I have dispassionately considered the rival submissions considering the grounds of appeal. Counsel for the Appellants, Mr. Ndanu, argued that the tribunal did not comply with Regulation 20(l)(a) - (d) of the Land Disputed Courts (District Land and Housing Tribunal) Regulations, 2002, which requires judgments to address the issues framed and provide reasons for the decision. He contended that the tribunal failed to analyze the evidence, particularly the certificates of title submitted by the Appellants, which established their ownership of the disputed plots. He cited Amina Maulid Ambali & 2 Others v. Ramadhani Juma, (supra) arguing that the certificate of title is conclusive proof of ownership unless fraud is proven, which was not substantiated in this case. Mr. Ndanu also submitted that the tribunal improperly considered extraneous matters related to compensation and land acquisition procedures, which were not pleaded by the 2nd Respondent. Counsel for the 2nd Respondent, Mr. Fatiu, submitted that the tribunal had thoroughly analysed the evidence from both parties and Page 9 of 12 properly determined the issues. He directed the Court to pages 10-13 of the tribunal's judgment, arguing that the analysis was clear. He further contended that the Appellants had failed to provide the necessary documentation, such as Form N.19, to prove the legality of their land acquisition. Mr. Fatiu relied on the case of Amina Maulid Ambali & 2 Others v. Ramadhani Juma to assert that the Appellants' certificates of title were obtained unlawfully, and therefore, they held no legal weight. He also cited Ntiyahela Boneka v. Kijiji cha Ujamaa Mutula, arguing that the 2nd Respondent, like the appellant in that case, was entitled to the land as she was the original owner. On the third ground, Mr. Fatiu refuted the claim that the tribunal relied on extraneous matters, arguing that the 2nd Respondent had raised the issue of ownership since the 1980s in her Written Statement of Defense. He denied that new facts had been introduced during the trial and cited Grace Olotu Martin v. Ami Ramadhani Mpungwe, (supra) asserting that innocent entry is no defense to trespass. On the first ground of appeal, the Court is tasked with determining whether the tribunal failed to address the issues framed for determination. Upon review of the tribunal's judgment, it is evident that the trial Chairman Page 10 of 12 did address the issues of lawful ownership and reliefs. The analysis is found on pages 10 to 13, where the Chairman considered the evidence presented by both parties. Therefore, this ground lacks merit and is dismissed. On the second ground of appeal, the Appellants argue that the tribunal failed to give weight to their evidence, particularly the certificates of title. However, the tribunal found that the Appellants had failed to provide the legally required preliminary documents, such as Form N.19, to initiate the land acquisition process. This failure casts doubt on the legality of the Appellants' certificates of title. The case of Amina Maulid Ambali & 2 Others v. Ramadhani Juma (supra) reinforces the principle that certificates obtained unlawfully cannot confer legal ownership. Accordingly, the Court finds no reason to fault the tribunal's evaluation of the evidence, and this ground is dismissed. On the third ground of appeal, the Appellants claim that the tribunal based its decision on extraneous matters. However, the record shows that the 2nd Respondent raised the issue of being the original owner of the plots in dispute in her Written Statement of Defense, and this was corroborated by PW2's testimony. The tribunal's reliance on these facts was therefore justified. Furthermore, the principle that parties are bound by their Page 11 of 12 pleadings, as outlined in Mary Peter Otaru & Another v. African Banking Corporation (Tanzania) Ltd. & Another, was adhered to by the tribunal. This ground of appeal is also dismissed. In the upshot, the appeal lacks merit. The Appellants have failed to demonstrate that the tribunal erred in law or fact in dismissing their application. The decision of the District Land and Housing Tribunal for Kinondoni at Mwananyamala in Land Application No. 222 of 2019 is upheld. The appeal is dismissed with costs. It is so ordered. JUDGE Ruling delivered this 30th day of September 2024 in the presence of Mr. Ndanu Emanuel learned Counsel for the Appellants and Mr. Hassan Fatiu, learned Advocate for the Respondents. E.I. LALTAIKA □ JUDGE <30/09/2024 Page 12 of 12