imani ya kinamama vs registered board of trustees of chama cha mapinduzi and 2 others 2023 tzhc 17955 13 june 2023

IN THE HIGH COURT OF TANZANIA (SONG EA DISTRICT REGISTRY)

AT SONGEA LAND CASE APPEAL NO. 8 OF 2023 (Originating from Land Case No. 45/2018, Mbinga District Land and Housing Tribunal) IMANI YA KINAMAMA ..................... .......................... .............. .APPELLANT

VERSUS

REGISTERED BOARD OF TRUSTEES OF CHAMA CHA MAPINDUZI .......... 1st RESPONDENT REGISTERED TRUSTEES OF UWT .......... 2nd RESPONDENT VIETEL (T) LIMITED.................... 3rd RESPONDENT

JUDGMENT 28/03/2023 & 13/06/2023 E. B. LU VAN DA, J. In a bid to challenge the decision of the trial Tribunal which dismissed a claim of ownership of the suit property, the Appellant above raised five grounds of appeal: 1. That the trial District Land and Housing Tribunal of Mbinga erred in law and facts for failure to declare the Appellant as lawful owner of the disputed land, while the Appellant had proved the case on balance of probability. i 2. That the District Land and Housing Tribunal of Mbinga erred in law and facts to dismiss the application for the ground that the Appellant was not registered at the time she acquired suit property. 3, That, the trial Tribunal erred in law and fact to enter judgment contrary to the evidence adduced by the parties.

4. That the trial District Land and Housing Tribunal of Mbinga erred in law and facts to disregard land allocation form and land rents receipts of the Appellant as a proof ownership.

5. That the trial District Land and Housing Tribunal of Mbinga erred in law and facts to enter judgment contrary to the law. Ms. Naomi John Ngoga learned Counsel for Appellant submitted that the Appellant (Applicant at the trial) adduced her evidence and managed to prove the case on the balance of probabilities as per the requirement of section 3(2) of the Evidence Act, Cap 6 R.E. 2019 (sic, 2022), also cited the case of Hemed Said vs Mohamed Mbilu [1994] Sisya, J. She submitted that the evidence of the Appellant was heavier than that of the Respondent which warranted the trial Tribunal to decide in favour of the Appellant, instead decided on the contrary. 2 For ground number two and four, the learned Counsel for Appellant submitted that the Second Respondent failed to prove her title of ownership over the disputed land. She submitted that the Respondent was required to prove her ownership over the disputed land by adducing a document whether a title deed or right of occupancy or any document to show her ownership over the disputed land which was not done by the Second Respondent. She cited section 100 (1) Cap 6 (supra). She submitted that the Respondents are not the lawful owner of the disputed land, they does not have any document of ownership over a disputed land and therefore lacks capacity to lease to the Third Respondent. She cited the case of Farah Mohamed vs

Fatma Abdallah [1999] TLR 205. She submitted that the Appellant adduced documentary evidence including receipts for payment of land rent, land allocation form and oral evidence to prove ownership over the disputed land. She submitted that a fact that the Appellant acquired land before registration cannot solely be based to deny her right to own property. Ground number five, the learned Counsel for Appellant submitted that a lease agreement was not an issue on dispute, because parties needed not to prove whether there was a tenancy agreement. She submitted that the trial Tribunal was wrong to deny the allocation form, which the 3 Respondents conceded to be in the name of the Appellant and Respondent had no document to prove ownership. In reply, Mr. Eliseus Ndunguru learned Counsel for First and Second Respondents submitted that it was the duty of the Appellant to prove that she was in existence when she was allocated land. He submitted that herein, the Appellant was not in existent at the time when she purport to have been allocated the suit premise. He cited the case of Solomon vs Solomon (1897) AC 22; MACAURA vs Northern Assurance Company Ltd (1925) AC 619. He submitted that the Appellant instead of tendering a title deed, they tendered an allocation form which does not prove ownership. He submitted that the burden of proof lied to the Appellant and not the First and Second

Respondents, citing section 110 (1) Cap 6 (supra). Mr. Vicent Kassale learned Counsel for Third Respondent submitted in reply, that exhibits Pl, P2 and P3 being allocation form, land payment receipts and Appellant registration certificate, consecutively (sic, respectively), does not support the Appellant ownership over a suit land. He submitted that the Appellant registered in 2015 had no capacity to own land purported allocated to them in 1992. He cited the case of The Registered Trustees Islamic Propagation Centre (IPC) vs The 4 Registered Trustees of Thaaquib Islamic Centre (TIC), Civil Appeal No. 2/2020, CAT at Mwanza; Anna Haule & 6 Others vs Umoja wa Wanawake Tanzania, Land Appeal No. 68/2014 HCT at Songea; Port Hall Bakery Supply Co. vs Fedric Mungal Wange (1959) EA 474 at page 475. For the second and fourth ground, the learned Counsel for the Third Respondent submitted that the Appellant must prove ownership of the alleged trespassed land and the burden of proof never shifted to the Respondents to prove the same, as claimed by the Appellant in her submission in chief. He submitted that the Appellant is misleading for improper quoting the provision of section 100 Cap 6 (supra). He submitted that the cited case of Farah Mohamed {supra) is distinguishable, since it was on a vendor and sale agreement. Frankly speaking, the Appellant failed misrebly to prove her

purported title over a landed property situated on Plot No. 121 Block G Mbinga Urban Area. According to the terms of the allocation form (exhibit Pl), acceptance ought to have been acknowledged after payment of fees that is land rent from 1/7/1992 - 30/6/1993 a sum of TZs. 900.00; fee on offer a sum of TZs. 100.00 and stamp duty on certificate and duplicate-.a sum of TZs. 66.00, making a grand total TZs. 1,066.00. The 5 said offer was valid for thirty (30) days counting from the date of issuance of allocation form On 29/7/1992. However, exchequer receipts part of bundle in exhibit Pl, indicate that the fees prerequisite for acceptance of offer were paid on 3/9/1992, beyond a grace period of thirty (30) days, which was available to furnish acceptance of offer. It is the law that for an acceptance to be valid, need to accept exactly as it is to all terms of the offer accurately and absolutely without any modification or changes that is mirror-image of the offer (rule). According to the provision of section 7(a) of the Law of Contract Act, Cap 345 R.E. 2019, with margin notes, acceptance must be absolute, provide; I quote, In order to convert a proposal into promise, the acceptance must (a) be absolute and unqualified' [bold added] Herein, the acceptance by the Appellant to the proposal for allocation of the impugned plot, was not accepted in the exactly terms, rather was done

with modification, to wit it was done after expiry of a grace period of thirty days. In other words, the Appellant declined an acceptance of offer. PW4 (Editha Hyera) on cross examination by the learned Counsel for Respondent, conceded a fact that they paid the fees beyond a period of 30 days, but with a penalty. But PW4 did not tender an addendum 6 allowing them to pay outside or beyond the prescribed time in the allocation form, nor exhibited a penalty paid. Indeed, exchequer receipts in a bundle of exhibit Pl, indicate that the amount paid was an exactly amount prescribed in the invoice (exhibit Pl), there was no additional amount paid. In exhibit Pl, there was a clause inserted at the extreme bottom, with the following wording, I quote, 'NB:- Ada hizo ziUpwe ndani ya siku thelathini (3) kuanzia tarehe ya barua hii. Usipofanya hivyo kiwanja hicho hakitahesabika kuwa ni mailyako' [bold added] It therefore goes Without gain saying that non compliance to the above, might be a reasons as to why the Appellant succumbed to obtain an offer and certificate of right of occupancy, as indicated in exhibit Pl. This is because payment of fees prescribed in exhibit Pl, was a condition precedent for issuance of an offer and title deed. My undertaking gain momentum from the wording in exhibit in Pl, goes thus, I quote, 'Please accept the above amount as fees In preparation an offer of Right

of Occupancy over the above mentioned Plot' Importantly, the allocation form exhibit Pl, indicate that It is terms of tenure were annually. There is no evidence if exhibit Pl was ever 7 renewed after 30/6/1993. In other words the validity of the purported allocation form exhibit Pl, is highly at stake. In view of above, the alleged land rent alleged paid by the Appellant from 1992 to 2016, were a nullity, because there was no valid title conferred or vested to the Appellant over the suit property. Therefore, the learned trial chairman is faulted for nothing in this respect. The learned Counsel for the Appellant argued that a fact that the Appellant acquired the land before registration cannot solely be based to deny her right to own property, for reasons that the existence of the Appellant dates back in the year as a group of people who worked for gain. It is true that all Appellant's witnesses to wit PW1 (Notburga Norn bo Ibrahim) aged 78 a nos, PW2 (Viligilai Nyoni) aged 86 years, PW3 (Irene Thobias Kapinga) aged 61 years and PW4 who was the youngest aged 60 years, consistently asserted that their society or group Imahi ya Akinamama was founded back in 1974 prior existence of UWT, the later alleged come in existence in 1978, as put by DW1 (Martina Vitalis Katyali) who worked as a Secretary of UWT at Mbinga from 2012 to 2022. But legally speaking^ the Appellant is a creature

of a certificate of registration exhibit P3, which depict the Appellant was registered effectively from 15/4/2015. Therefore, in law, its mandate are derived 8 from the date of registration which is an official date when the Appellant come into existence. This by implication negate a presumption that the Appellant was capable of owning properties prior official validation. The argument that the Appellant acquired land retrospectively in 1992, is therefore legally unsound. The learned Counsel for Appellant shifted burden of proof to the First and Second Respondents, arguing that they ought to prove their ownership by production of title deed or a certificate of right of occupancy. But the learned Counsel did not say if there was a counter claim by the First and Second Respondents, nor stated If there was any relief granted by the trial Tribunal to the First and Second Respondents. Actually, the argument of the learned Counsel for Third Respondent, is a correct stance of the law, that who alleges must prove. Herein, the Appellant bragged to be the lawful owner of a suit property and pleaded that the Respondents are trespassers over her land in dispute. Therefore, in law, the onus of proof lies with the Appellant, see section 110 Cap 6 (supra). Therefore, the appeal is devoid of merit. The decision of the trial Tribunal is upheld. 9 The appeal is dismissed. I make no order for costs, because DW1 asserted the Appellant are members of the Second Respondent, likewise 10