9283 of 2024 scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL N. 9283 OF 2024 (Originating from the decision of District Land and Housing Tribunal for Kinondoni at Mwananyamaia in Land Application No.357of2020.) JOHN EUGEN MMASI...................................................... APPELLANT

VERSUS CONSOLATA PETER KASUVA administratrix of the estate ofthelatelWUrk MHENZO/CHEZALINA MHEZA.1STRESPONDENT RASHID MUSSA.............................................................................. 2ndRESPONDENT RASHID MASHAKA.......................................................................... 3rdRESPONDENT JOSEPH ALOIS MAUNDA................................................................ 4thRESPONDENT

JUDGEMENT Last order: 21/11/2024 Date ofJudgment: 13/11/2024 A. MSAFIRI, J. The brief background of this appeal is that; the appellant, then as the applicant instituted Application No. 357 of 2020 at the District Land and Housing Tribunal for Kinondoni at Mwananyamaia in Land Application No.357 of 2024 (herein as the DLHT)Z claiming to be the lawful owner of a landed property registered under the Certificate of Title No. 172143 Plot No. 2104 Block F, which is located at Mbezi Msakuzi at Ubungo Municipality at Dar es Salaam Region (herein the suit property) and that i the respondents have unlawfully invaded and trespassed into the suit property. The respondents filed their written statement of defence where they denied the claim and stated that they have never trespassed into the appellant's land. After hearing of both parties, the DLHT dismissed the main application and order the appellant to surrender the certificate of title of the suit property to the relevant authority. The appellant was dissatisfied with that decision and has lodged this appeal on four (4) grounds of appeal as follows; 1. That, The Honourable Chairperson erred in law and fact for failure to evaluate testimonies of the parties and evidences tendered before arriving into holding of the Tribunal.

2. That, The Honourable Chairperson erred in law and in fact for failure to determine the framed issues.

3. That, The Honourable Chairperson erred in law and in fact for determining extraneous issues.

4. That, The Honourable Chairperson erred in law and fact for granting unfounded relief and/or relief not sought by the parties. The appellant prayed that this Court quash and set aside the decision of the DLHT and to allow the appeal with costs. The appeal was heard by way of written submissions and the submissions in chief in support of the appeal was drawn and filed by Mr Shundi S. 2 Mrutu, learned Advocate while the reply submission by the respondents were drawn and filed by Mr. Rajabu Mrindoko, learned Advocate. In the course of submitting in supporting of the grounds of appeal, the counsel for the appellant abandoned the third ground of appeal. In regard to the first ground of appeal, the counsel submitted that the DLHT erred for failure to evaluate the testimonies of the parties and the documentary evidence adduced. He said that the appellant tendered Exhibit Pl which is a proof that he had a granted right of occupancy but the same is not featured anywhere in the analysis and judgment of the DLHT. The counsel for the appellant argued further that the document tendered as Exhibit DE3 does not show boundaries of the land which is alleged to be owned by the respondents. That even exhibits D3 and D4 does not hold water as they did not describe the issue of ownership of the land in dispute. He was of view that the respondents did not produce in court any reliable documents.

He stated that the court had a duty to analyse the evidence adduced in court. To support his argument the counsel referred the case of Joseph F. Mbwiliza vs Kobwa Mohamed Lyeselo Msukuma (Legal Representative/ admistratrix of the estate of the late Rashid Mohamed Lyeselo) and two others. Civil Appeal No. 227 of 2019. He 3 concluded that the DLHT failed to evaluate the documentary evidence tendered. In the second ground of appeal, the trial court is faulted for failure to determine the framed issues. The counsel for the appellant submitted that the issue of ownership was not well determined as to who is the lawful owner of disputed land considering the fact that the appellant held the certificate of title over the land in dispute. He insisted that where the issues have been framed, must be determined and the omission to determine the framed issues occasioned the miscarriage of justice. He relied on the decision of Victor Raphael Luvena vs Magreth Epharim Kawa and two others, Civil Appeal No. 25A of 2023, CAT at DSM (Unreported). In the fourth grounds of appeal, the counsel for the appellants faulted the DLHT for granting the relief not prayed by the parties. The counsel submitted that the issue of returning the Certificate of Title to the relevant authorities was not among the reliefs sought by the parties. He argued that it is a well-settled principle that the court cannot

grant reliefs that have not been specifically prayed and or sought by the parties. To bolster the argument, the counsel cited the case of Hamis Bushiri Pazi and 4 Others vs Saul Henry Amon and 30 Others and the Attorney 4 General, Civil Appeal No. 166 of 2019, CAT at DSM (Unreported). He concluded by praying for the court to evaluate the evidence and set aside the judgment and decree of the trial court. On the other hand, Mr Mrindoko, the respondents counsel in regarding to the first ground of appeal, he submitted that the judgment was just and well-founded based on the evidence presented including testimonies of the parties. He stated that the trial Chairman’s judgment indicates a comprehensive consideration of the evidence, particularly the testimonies of the respondents that is DW2 Rashid Mussa who testified to have witnessed the sale agreement of the Appellant as a neighbour in 1993 when purchasing the land of 1 Vi acres from Hassan Ramadhani and evidence of PW5, the Land Officer who provided crucial information regarding the survey and ownership. The counsel for the respondents contended that the trial Chairman explicitly noted the discrepancies in the appellants claim including the absence of supporting documents for the alleged purchase in 1993 and the issues raised concerning the survey by the respondents and their witnesses. He was of view that the appellant's argument

lacks merits as the Chairman assessment aligns with legal standards for evaluating evidence. He insisted it is trite law that when two persons have competing 5 interests in a landed property, the person with a certificate of title thereof will always be taken to be a lawful owner unless it is proved that the certificate was not lawful obtained. He refers the Court of Appeal decision in the case of Amina Maulid & two others vs Ramadhani Juma (2020) TZCA 19 (25 February 2020), TANZLI. He added that since the appellant have not been allocated the suit property by the Government, it was incumbent upon him to prove on how he got the land before survey and registration. He argued that the registration of land is not ipso facto proof of title in absence of evidence establishing on how one got the title. To cement this point, the counsel cited the case of Jacqueline Jonathan Mkonyi and Another vs Gausal Properties Limited, Civil Appeal No. 31 of 2020. He insisted the appellant obtained the land unlawfully and that this ground lacks merits. In the second ground, Mr Mrindoko submitted that the judgement clearly addressed the core issue of ownership and the entitlement to relief. He contended that the trial Chairman's decision to dismiss the Appellant's suit was based on the determination that the Appellant did not establish lawful ownership of the suit premises and that the Respondents

had a valid claim to the land based on their documented purchases. 6 On the fourth ground of appeal, Mr Mrindoko stated that the appellant claims that the trial Chairman erred in grating reliefs not sought by the parties. The counsel for respondent contends that the order for dismissal of the appellant's case with costs as appears on page 5 of the typed judgment was among the reliefs sought by the Respondents in the pleadings. He further stated that the order to surrender the title deed by the Appellant to the relevant authority which was made after the order for dismissal of the suit with costs, was a necessary and appropriate remedy given the evidence of the fraudulent inclusion of the respondent's land in the appellant’s survey. He stated that the remedy for un-pleaded issues is well addressed in the decision of the Court of Appeal in the case of Wellworth Hotels & Lodges Limited and another vs Enterprises Tanzania Limited, Civil Appeal No. 73 of 2020 (unreported). He prayed the court to dismiss the appeal in its entirely with costs. Having carefully considered the three grounds of appeal and the written submissions from the parties and records of the DLHT, the point for determination is whether this appeal has merits. jGi L . 7 it is a settled principle of law that, the first appellate court, which is the position in the instant appeal, may re-evaluate the evidence and come

up with its own conclusion as held in some cases including the case of Peters vs. Sunday Post Ltd. (1958) E.A. 424 and Domina Kagaruki v. Farida F. Mbarak and 5 Others, Civil Appeal No. 60 of 2016. In the first ground of appeal, the appellant stated the court failed to evaluate the evidence tendered. During the trial, the appellant testifying as PW1 stated that he bought the disputed land on 04/8/1993 from Ramadhan Hassan. That later he began the process of registering the disputed land. He produced the certificate of Title as exhibit Pl. He said that when he was buying the disputed land, the size was 1 V2 acres while when the land was surveyed, the size was 9901 square meters. PW1 said that the respondents have trespassed into his land and prayed for the eviction order. On the evidence of the respondents, the 1st respondent testified as DW1 and claimed that she is not a trespasser as she purchased the claimed area from one Hamis Issa Likongwa on 21/01/2004. She produced a sale agreement which was admitted as exhibit DEI. That the dispute arose in 2018 and the dispute was before Kimara Primary Court which visited the disputed area and found that there is no trespass as each party was on 8 his/her own property. She produced the decision of the said Primary Court which was admitted as exhibit DE2. DW1 testified that the dispute was reported to Ubungo Municipal Council whereby the

surveyor visited the disputed land and discovered that the respondents have not trespassed into the appellant's land as he claims. DW2 was Rashid Mussa,(now the 2nd respondent). He testified that he once owned a piece of land in the disputed area which was purchased by his mother one Asha Ally Mzuzuri. He has sold that piece of land to Joseph Aloyce (the 4th respondent). He produced the sale agreement which was admitted as exhibit DE3. DW2 said that on 04/8/1993 the appellant came looking for a land to buy. That the appellant got the land near his area and one Hassan Ramadhan was the one who sold the area to the appellant. DW2 said that he was the witness in the sale. He produced the sale agreement between Hassan Ramadhan and John Eugen Mmasi (the appellant) which was admitted as exhibit DE4. That the area had a size of 1 Vi acres. He said further that when the appellant surveyed his area, he wrongly included the area which belongs to the respondents and he has been claiming that the area belongs to him which is not true. 9 DW2 testified further that due to the dispute, the surveyor from Ubungo Municipal came and surveyed the area in dispute and found that the appellant has included the areas of the respondents into his land while surveying it. DW5 was one Hans Shayo, the Land Officer from Ubungo Municipal Council. He testified that the disputed land was allocated to the

appellant after request from the appellant. That after the land was registered to the appellant, their office received complaint from several people that the appellant's survey has included their areas. That a team to investigate into complaints was formed and he was among the team members. That the team inspected the documents which were issued by the appellant during the request of ownership registration and asked the appellant to return the Certificate of ownership so that the disputed land could be resurveyed but the appellant refused. That after the appellant refusal to issue the Title on the disputed land, the Land Office wrote to the Commissioner for Lands requesting to revoke the certificate of Title of the appellant. He produced a letter which was admitted as exhibit 2. DW6 was Rashid Mashaka, the 3rd appellant. He said that he owns a piece of land in a disputed area which he inherited from his mother Fatuma 10 Musa who died in 2014. He produced letter which showed that he was given the said land by his family in a family meeting held on 27/5/2014. He produced the said letter as exhibit 3. He said further that the surveyor visited the disputed land and measured it where it was found that the appellant land has extended into their lands. I have gone through the documentary evidence which the parties produced to support their evidence. Exhibit Pl shows that John

Eugen Mmasi is the registered owner of Plot No. 2104 Block F,Msakuzi area with a size of 9901 square meters. However, according to the evidence of DW5, Land Officer, there was a dispute over the said land whereby it was found out that it was the appellant who has conducted survey and the survey has taken/extended into the respondents' lands. This was also proved by Exhibit 2 which is a letter from the Director, Ubungo Municipal Council to the Land Commissioner which address on the status of Plot No 2104 Plot F, allocated to the appellant. The said letter shows that the appellant encroached into the respondents' land while surveying his piece of land which he has purchased. The Municipal Director was requesting the Commissioner for Lands to revoke ii the appellant's Title from the Register so that the disputed land can be resurveyed. On the other hand, the respondents have proved the ownership of their pieces of land through both oral and documentary evidence and I refer exhibits DE1,DE3,DE4,3 and 7 which shows how the respondents got their pieces of land. In my analysis of evidence as the court of the first appeal, I find that the issue of ownership of the appellant was determined by the DLHT when he found that the appellant by wrong survey has encroached into the lands of the respondents the act which arose dispute hence the Title of ownership on the disputed land was acquired

by cheating/lying to the relevant authorities. The DLHT was correct to dismiss the application by the appellant where he was seeking to be declared the owner of the disputed land. I have no reason to depart from the analysis and findings of the DLHT, it is clear that the issue of ownership was clearly discussed by the trial Chairman when he found that the Title of ownership was acquired by unlawful means. It is true that the appellant was a registered owner of the disputed plot but since the DLHT found that the Title was acquired by unlawful means 12 as evidence by DW5 and Exhibit 2, the same could not have declared him the lawful owner of the disputed land. This court being the first appellate court and having analysed the evidence, it also finds that the appellant could not be the declared the lawful owner for the reason of the questionable circumstances of acquisition of the Title exhibit Pl. The first ground lacks merit as I have found that the DLHT made analysis of evidence and made findings which I see no reason to depart from. On the second ground that the tribunal failed to determine the issue of ownership, it is on record that the DLHT framed two points for a determination as evident on page 2 of the typed judgment. The framed issues are; - "Je mdai nimmUikihalali wa eneo lenye mgogoro?" and "Je ni nini nafuu kwa wadaawa?" As per my findings above based on the analysis

of evidence, the issue of ownership was clearly determined whereby the trial Chairman found that the acquisition of the Title by the appellant was through unlawful means. Therefore, the second ground again lacks merits. The appellant abandoned the third ground hence I shall not determine it. 13 Regarding the fourth ground that the court granted the reliefs that the parties did not seek, I took time to revisit the record of Land Application No. 257 of 2020 the reliefs sought by the appellant were (i) declaratory order that the applicant is the lawful owner of suit land (ii) Declaratory order that respondent trespassed in said suit land, (iii) General damages, (iv) Permanent injunction (v) cost of the suit. The respondents in their written statement of defence also prayed for the court to dismiss the application with costs. An order to surrender the certificate of title by the appellant to the relevant authority was not pleaded by any parties. It is the principle of law that parties are bound by their own pleadings as stated in the case of James Funke Gwagilo vs Attorney General [2004] T.L.R.

161. In this, it is my considered view that the DLHT went beyond the order pleaded by the parties. Thus, this ground has merit. As a result, grounds number one and two lack merits, and are hereby dismissed. The decision of the DLHT remains intact to that extent. The third ground has merits, and is allowed to the extent that, the order to surrender the certificate of title No.172143 Plot No. 2104 Block F, which is located at Mbezi Msakuzi at Ubungo Municipality at Dar es Sallam Region to the relevant authority is hereby quashed and set aside. - 14 The procedure for the registered person to surrender the Title of ownership to land authorities is clearly laid down under the provisions of the Land Registration Act, Cap 331, R.E 2019. Having said so, I hereby partly allow the appeal. Each party to bear its own costs of the suit. 13/11/2024 15