kassimu ally abdallah shomari vs marry bonaventure mramba 2021 tzhclandd 830 17 november 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO 8 OF 2019 KASSIMU ALLY ABDALLAH SHOMARI ............ PLAINTIFF (Administrator of the Estates of the Late Ally Abdallah Shomari) VERSUS MARY BONAVENTURE MRAMBA.................. DEFENDNAT JUDGEMENT Date of judgement- 17™ /November/2021 The plaintiff is suing as the administrator of the estate of his late father, the Late Ally Abdallah Shomari. The plaintiff claims in the suit that his late father was the owner of the suit land located at Stakishari Area in Ilala Municipality, measuring approximately 3A acres. He says his father passed away in 1992, when the plaintiff was still an infant. 1 I Page The plaintiff alleges that after the demise of his father, the disputed land was in the care of his uncle one Omari Hussein Mkongo @ Dotto, and when the plaintiff attained the age of majority i.e., in 2000, Dotto had shown the plaintiff the farm that was left by his late father. After 2000, the plaintiff alleges that he took over the care of the farm and used to visit the farm frequently. He says there were coconut trees and orange trees on the farm, and he used to harvest the coconuts and the oranges since 2000. The plaintiff avers in the plaint that in 2017, he saw a building being erected on the land, and upon enquiring he discovered that the defendant herein had started building the church. He reported the matter to the Local Government and then the matter was referred to the Ward Tribunal. The plaintiff then filed Land Case No. 330/2017 at Kipawa Ward Tribunal. The plaintiff lost the case, and he appealed to the District Land and Housing Tribunal for Ilala, and the proceedings and Judgment of Kipawa Ward Tribunal were nullified as the Ward Tribunal lacked pecuniary jurisdiction to entertain the dispute. Then the matter was again filed afresh at the District Land and Housing Tribunal, but again, the matter was 2 | Page struck out as the District and Housing Tribunal had no pecuniary Jurisdiction. The plaintiff alleges that in the defense filed by the defendant at the District Land and Housing Tribunal, the defendant said her late husband had purchased the land from Yahaya Omari Katoto. The plaintiff states that Yahaya Omari Katoto was never the owner of the disputed land and had no good title to pass it over to the defendant. He, thus filed this suit claiming for the following reliefs: 1. A declaration that the suit land belongs to the Late Ally Abdallah Shomari. 2. An order of permanent injunction restraining the defendants and/or her agents from entering and /or doing any developments on the suit premises. 3. An order of demolition of any structure, temporary/permanent erected onto the suit premises. 4. Costs and any other relief this court might deem fit and just to grant. 3 | Page The defendant resisted the claims and filed her defense in which she states that she has built the church on the disputed premises since 2008 and has never seen the plaintiff visiting or occupying or even farming on the disputed premises. The defendant's states that her late husband one Bonaventura A Mramba had purchased the land from Yahaya Omari Katoto since 1994. She says she is the administrator of the estate of her late husband, and prayed for the dismissal of the suit, and costs. Upon completion of the pleadings, the Court recorded the following issues: 1. Who is the lawful owner of the disputed premises 2. To what relief are the parties entitled to. During the hearing of the suit, the plaintiff brought Shaabani Rajabu Buto, an old man of 71 years old. He testified as PW1. This witness says he lived in that land since 1966, and that the land was the property of Kassimu Ally Abdallah. That Kassimu Ally Abdallah is the son of his friend the Late Ally Abdallah Shomari. Ally Abdallah Shomari is dead. This witness said he knows the history of 4 | Page ownership of the land since he was there for a long time. He said originally one Abdallah Shomari who is the grandfather of the plaintiff acquired the land in 1980s. That Abdallah Shomari was given the land by PWl's father. Abdallah Shomari was using the land for farming, and he had his house there. Then, two sisters of Abdallah Shomari moved there, and they lived with their brother, these two sisters were known as "Biti Shomaris". Then, the daughter of Biti Shomari went to live there as well. He said he knows Yahaya Katoto, and he is the grandson of one of the Biti Shomaris, and that Yahaya Katoto was living at the disputed premises with his mother and grandmother. He also said, Ally Abdallah Shomari, the father of the plaintiff was not living there as he lived in Bagamoyo, but Yahaya Katoto and his grandmother were residing at the disputed premises. This witness did not know if Yahaya Katoto got ownership of the land, but he knows that originally the land belonged to the plaintiff's grandfather one Abdallah Shomari. PW2, was the plaintiff himself. His testimony is the repetition of what was stated in the plaint. 5 | Page Mary Bonaventure Mramba gave her own defense. She is the wife of the late Bonaventure Mramba, and the administrator of his estates. She said her late husband bought this land from Yahaya Omari Katoto since 1994, that her husband used to buy pieces of farms, and so he had three agreements. The agreements dated 30th September 1994, 16th December 1994 and 9th January 1999 were admitted as Exhibits DI, collective. These agreements were signed by Yahaya Omari Katoto and they were witnessed by FF Mkwavi, P Kimicho, Elisia Yahaya Katoto, these were neighbors and a wife of Yahaya Omari Katoto, The Agreements were made in the Local Government offices and witnessed by the Ten Cell Leaders of that Area. The defendants also brought in Court the Receipts for payment of Land Rents, and these were received as evidence and marked as Exhibit D2, collective. The defendant says she has been paying land rents for the plot since the day they purchased it from Yahaya Omari Katoto. She says they have been living next to the disputed land, and they have known Yahaya Omari Katoto for a long time. Her and Yahaya 6 | Page Omari Katoto were colleagues as they used to work together at Kiltex Company Limited. That in total, they bought 4 plots from Yahaya Omari Katoto, and he had given them the Letter of Offer and the Certificate of Title. The Letter of Offer for Plot No. 836 Block C Stakishari Ukonga in the name of Yahaya Omari Katoto and the Certificate of Title No. 44559 for Plot no. 836 Block C Sitakishari Ukonga, Dar es Salaam in the names of Yahaya Omari Katoto, the Letter of Offer for Plots No. 832/1 and 835 Block C Sitakishari Ukonga Dar es Salaam, in the names of Bonaventura Mramba were admitted in Court as evidence and marked as Exhibit D5, collective. DW2 was Pantaleo Kimicho, an Oldman of 73 years old. He confirmed before the Court that he witnessed the sale between the defendant's husband, and the late Yahaya Omari Katoto on 30th September 1994. The sale price was TZS 2,200,000.00. That he was the one that had drafted the Sale Agreements, and the sale was done in the presence of several witnesses. This witness deposes that he knows Yahaya Omari Katoto since 1985. This witness moved to Sitakishari Area and found Yahaya 7 | Page Omari Katoto living in that land with his family, That Yahaya Omari Katoto had a house in the disputed premises. For the defense, the son of Yahaya Omari Katoto testified as DW3. His names are Omari Yahaya Katoto. He said he was born in Sitakishari Ukonga, Dar es Salaam since 1982. He was raised at Sitakishari and went to school there. He confirmed that his late father, the late Yahaya Omari Katoto was the owner of the land and had sold the land to the defendant in 1994, and they moved to Buza in 1998. His brother who was born in 1979, was also born in Sitakishari. He said he knows Mzee Ally Abdallah Shomari, but he never lived in the disputed land and never related to his father. He was simply a fundi, and they used to call him babu since he was an Oldman. He also said, he knows Mzee Buto (PW1) who was their neighbor but says Mzee Buto moved to Sitakishari and found them living there. That was the evidence for the plaintiff and the defendant, and to answer the first issue as to who is the lawful owner of the disputed premises, the court have appreciated and evaluated the evidence it received. 8 | Page As stated in section 110 of the Law of Evidence Act Cap 6 R:E 2002, that whoever desires the Court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts, he must prove that those facts exists, thus in this case, the plaintiff is bound to prove the fact that the land in dispute was owned by his late father one Ally Abdallah Shomari, thus the burden of proof lies on him. The only proof of the existence of the facts alleged in the plaint was the evidence of PW1 who said the land belonged to the grandfather of the plaintiff one Abdallah Shomari, and that Abdallah Shomari was living with his sisters, the Biti Shomaris, and even Yahaya Omari Katoto who was the grandson of the Biti Shomari's were living there since childhood. The Late Abdallah Shomari and his two siters were living as a family in one household. This witness knows this fact only, but he does not know whether Abdallah Shomari gave the land to Yahaya Omari Katoto or had disposed it to him. The plaintiff, through this witness could not prove ownership of this land by his father. He did not even say whether the plaintiff's father inherited the land from the plaintiff's 9 | Page grandfather as there were no letters of administration exhibited in court to show that the late Abdallah Shomari's estates were administered by the plaintiff's father one Ally Abdallah Shomari. On the other hand, the defendant through her own testimony, and the testimonies of DW2, and DW3 were able to prove that Yahaya Omari Katoto was the owner of the land in dispute. He owned the land since 1970s and was living there. He born his first child in 1979 in the same land. His children were born there and went to school in that area until 1998 when they moved to Buza, Temeke, Dar es Salaam. There is also proof that Yahaya Omari Katoto, having a good title to the land, sold the land to the defendant's husband since 1994. This was proved by documentary evidence, which is exhibit DI. The sale agreements were not only witnessed by the neighbors, but they were endorsed by the Local Government of Sitakishari, signifying that they recognized Yahaya Omari Katoto as the lawful owner of the disputed pieces of land and had a good title to pass it over to the defendant. 10 | P a g e Again, Yahaya Omari Katoto had surveyed the land, and had gotten a Title in his names since long ago. The plaintiff was not even aware that the land was already surveyed, and it is no longer a farm, as he was alleging. The Letters of Offers and the Certificate of Titles issued in the names of Yahaya Omari Katoto were exhibited in Court proving that the land was already surveyed, and the Commissioner for Land has conferred the Right of Occupancy to Yahaya Omari Katoto. The plaintiff, on the other,hand failed to proves his customary title to the land, if any. Perusal of the plaint filed by the plaintiff shows that he had no precise legal basis on which the right to own the land was claimed by him. All kinds of imaginable claims were put forward in the plaint that his father had customary title over the farm. He still imagines that there was a farm while already the land was surveyed, and plots were created and were given to the occupiers, including the late Yahaya Omari Katoto. This is not a case for ownership by customary title as the plaintiff could not prove whether his father was granted a certificate of customary ownership of the land by the 11 | P a g e village, he also could not prove dominant and servient heritage, or occupation. There were mere allegations. It must be noticed that the burden of establishing this customary right is upon the plaintiff as he claims that his father owned the land customarily. On a consideration of the evidence and in the light of the averments in the plaint, the evidence adduced by the plaintiff have totally failed to discharge the burden of establishing the customary right. The evidence adduced on the side of the plaintiff did not satisfy any of the conditions ancient, continuous, peaceable, reasonable, and certain, and that above all the essential test that the enjoyment during the period in question should be as of right had not been made out. The plaintiff did not adduce any evidence of customary ownership of the land by his father and PW1 who was the witness on the plaintiffs side have admitted that the parents of Yahaya Omari Katoto and Yahaya Omari Katoto had lived there and had their residence there for a long time. The plaintiff had not made out a case of customary title or by grant or of occupancy and usage, therefore that the plaintiff had not made out 12 | P a g e the right based upon custom and the plaintiff's suit should be dismissed. The plaintiff failed even to stablish a long and uninterrupted use for a long series of years. He himself said he had never lived in the land and was living somewhere else in Dar es Salaam. He cannot even be presumed by the law that he has gotten the right to own the land by his long occupation. In this case I have no doubt whatsoever that judged by any test the inference of law, namely, the customary right, cannot be drawn. The customary title if it had existed, would certainly have been mentioned by the village records and again it would have been mentioned when Yahaya Omari Katoto was selling pieces of land to the defendant in 1994. For all reasons I have no hesitation in accepting the evidence of the defendant, which was watertight, and since the plaintiff failed to discharge his burden of proof, the suit is dismissed with costs. 13 | P a g e The suit is dismissed with costs. DATED AND DELIVERED AT DAR ES SALAAM THIS 17th DAY OF NOVEMBER 2021 14 | P a g e