Liberatus Libereza

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO SUB REGISTRY AT MOROGORO LAND APPEAL NO.6480 OF 2024 (Appeal from the decision of the District Land and Housing Tribunai for Morogoro District in Land Application No. 88 of 2022) BETWEEN LIBERATUS ZIBILEZA AND ANOTHER APPELLANT VERSUS SWALEHE JUMA MWAKAMBAYA RESPONDENT JUDGMENT MRUMA,J In the District Land and Housing Tribunal for Morogoro at Morogoro, the Respondent Salehe Juma Mwakambaya instituted Land Application No 88 of 2019, against the Appellants in which he prayed for an order that he is the lawful owner of a piece of land measuring one acre located at Kingolowira Legeza Mwndo area within Morogoro Municipality, for an order restraining the Appellants herein from interfering in any way with the suit land and for the costs of the suit. The basis of these claims, the Respondent alleged is that he was the rightful owner of the suit land having legally bought it from one Athman Abdallah Tumbo who was the original owner thereof. That in violation of that right the Appellants unlawfully entered the suit land and the 1^ Appellant pretending to be the rightfully owner thereof and without the consent of the Respondent sold it to the second Appellant. In answer to these claims, the Appellants stated that the suit land belongs to the first Appellant having purchased it from one Mustafa Ally Samata in 2002 and occupied and used it peacefully till 2019 when some unscrupulous trespassers emerged and started to trespass onto the land. In support of his case the Respondent told the trial tribunal that he acquired the suit land by purchasing it from one Athman Abdallah Tumbo. As it was a bush land he engaged one Mzee Matata (now deceased) who cleared it. In June 2019 he discovered that the Appellant who pretended to be the owner of the said land has sold it to the 2"^ Appellant without his knowledge and/or consent. In their Joint Written Statement of Defence, the Appellants had disputed the Respondent's claims and stated that after purchasing the land the first appellant caused it to be surveyed and divided into plots. He sold to the 2"^ Appellant one of the plots namely Plot No 38 Block H measuring 730 square metres. The District Land and Housing Tribunal after hearing the parties entered judgment in favour of the Respondent (Applicant therein). The trial tribunal found that while the Respondent's evidence on how he acquired the land was straight forward, that of the Appellants were marred with contradictions and inconsistencies. It therefore declared the Respondent herein the lawful owner of a piece of land measuring one acre which is now is in dispute. The Appellants were aggrieved by that decision and have appealed to this court on the following grounds: 1. That, the trial tribunal erred in law and fact by determining the Application which does not properly describe the suit land as required by law. 2. That, the trial tribunal erred both in law and facts by deciding on registered land without involving the Registrar of title. Commissioner for Land and Morogoro Municipal Council. 3. That, the trial tribunal erred both in law and facts by pronouncing judgment against the appellant who have good title over the suit land than the Respondent. 3 4. That, the trial court erred both in law and facts by declaring the Respondent the owner of the suit land beside the contradiction found in his application and his testimony. 5. That the trial tribunal erred in law and facts by granting the Respondent one acre of Land in Plot No 38, Block H of which does not fit the measurement of acre. 6. That the trial tribunal grossly erred in law and in fact by awarding victory to the Respondent beside the fact that the Respondent failed to prove the use of land under the legal prescribed time. At the hearing of this appeal the Appellant was represented by Mr Ignas Punge learned advocate while the Respondent was represented by Mr Kay Makame Zumo also learned advocate. The appeal was argued by way of written submissions. Arguing the and 5^^ grounds of appeal, counsel for the Appellant contended that the sale agreement (exhibit Al) which was relied by the trial tribunal in declaring the Respondent rightful owner of the suit land doesn't show the location and boundaries of the land the Respondent claim to have purchased and that he failed to describe the disputed land as required by the law because the application filed in court described the suit land as one acre located at Kingolwira Legeza Mwendo area and no more particulars were disclosed. It is the counsel's submission that by failing to give description of the suit land, the Respondent acted contrary to requirement of Regulation 3(2)(b) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 GN No 174 of 2003 and Order VII Rule 3 of the Civil Procedure Code. To bolster his position the learned counsel cited the case of Prof. George Gregory Celestine Rwegelera vs. Prof Gadi Paul Kilonzo and Three Others, Land Case No 226 of 2022, Martin Frederick Rajab vs. Ilemela Municipal Council & Another, Civil Appeal No 197 of 2019 and Olorubale Nginyu vs. Kilempu Kinoka Laizer, Civil Appeal No 416 of 2021. On the 2"^ ground it is the counsel for Appellant's submission that the suit land being a surveyed land with a valid Certificate of Occupancy it was incumbent for the Applicant to join the Registrar of Titles, Commissioner for Land, and Morogoro Municipal Council as necessary parties in these proceedings. On this point he cited the case of Abdulatif Mohamed Hamis vs. Mehboob Yusuf Othman & Another Civil Revision No 6 of 2017 and Salum Mateyo vs. Mohamed Mateyo (1987)TLR 111 which defined who the owner of the land is and the case of Amina Maulid Ambali & Others vs. Ramadhani Juma Civil Appeal No 35 of 2019. Submitting on the third ground, the learned counsel contended that according to law when customary law and granted right of occupancy in area declared township, or minor settlement conflict, granted right of occupancy prevails. On this he cited the case of Mwalimu Omary and Another vs. Omari A. Bilali (1990)TLR 9. Submitting in support of the the sixth ground counsel for Appellant contended that during the trial Respondent failed to prove possession and continuous use of the land in dispute while Appellants tendered evidence which were admitted without objection to confirm that they lawful owner of the suit land. The counsel contended that Appellant's uninterrupted ownership, occupation and the use of disputed land operate in his favour, as per Item 22, Part I to the Schedule of the Law of Limitation Act which prescribes the time limitation for redeeming landed property as 12 years as it was held in the case of Nassoro Uhaidi vs. Mussa Karunge [1982]TLR 302. Replying to the ground counsel for Respondent submitted that in his application the Respondent gave all particulars of the suit land as required by Regulation 3 (2) (b) of the Land Disputes Courts (The Districts Land and Housing Tribunal) Regulations 2003 and stated that under the Regulations there is no provision which require names of the neighbours surrounding the disputed land to be stated in the application. Responding to the 2"^ ground, the counsel for Respondent submited that the trial tribunal correctly adjudicated the suit without joining the Registrar of Title, Commissioner for Land and the Morogoro Municipal Council because in the said adjudication the tribunal did not declare the said Certificate of Occupancy void the parties which were no joined were prejudiced by its decision. He said that appellant failed to show how it was necessary to join Registrar of Title, Commissioner for Land and Morogoro Municipal Council while the reliefs claimed by the Respondent shows that there was no relief claimable against the alleged necessary parties. With respect to 3'"^ ground counsel for Respondent argued this court to find that the trial tribunal correctly determined the case based on the standard of proof in civil cases which showed that the Respondent's evidence was heavier compared to that of the Appellant. He made reference to the decision of the Court of Appeal in the case of Paulina Samson Ndawavya vs. Theresia Thomas Madaha Civil Application No 46 of 2017 and also the case of Crescent Impex (T) Limited vs. Mtibwa Sugar Estates Limited Civil Appeal No 455 of 2020. Responding to the the 4'^'^ ground, the learned advocate's contended that the tribunal was correct to decide in favour of the Respondent and particularly so because he based his argument under section 18 of the Land Act, and the case of Suzana Kakubuku & 2 others vs. Walwa Joseph Kasubi & Another, Andrea Duda & Others vs. Martine Dotto Nyenge & Other Land Appeal No 55 of 2019. Submitting with respect to the 5^ ground the Respondent's counsel the Respondent successful showed how he acquired the land and tendered in evidence a sale agreement and explained how he used the land for agriculture until 2016. He said that the claim of ownership based on adverse possession was not proved because no evidence was adduced to establish adverse possession. The learned counsel cited the case of Registered Trustees of Holy Spirit Sisters Tanzania vs. January Kamili Shayo & 136 Others Civil Appeal No. 193 of 2016. He contended that Appellants failed to prove crucial criterion to show that he was an adverse possessor. As I indicated in the course of this judgment, both parties claim to the suit land were grounded on the purchase from original owners. The first Appellant led evidence to the effect that he purchased seven acres of land (suit land inclusive) from one Mustafa Ally Samata @ Makata in July 2002. The Sale agreement was witnessed by one Mrisho who was the Village Chairman at the time and seven (7) other persons, however his witness Oscar Joshua Mayani (DW2), gave a different version as regards who was the original owner and vendor of the suit land. In his evidence he stated thus:- "Mdaiwa Namfahamu kwa sababu tuHnunua ardhi Kwa Mtu Mmoja ...... TuHnunua kwa Shukuru Matata. Mzee Shukuru Matata kwa sasa ni marehemu. Ardhi tuiiyouziwa na ardhi ya mdaiwa wa Kwanza zote ziko Tambukareii, zimepakana. Mimi Niko kusini na Mwenzangu yuko Magharibi.....tunatenganishwa na mti na mikonje iiiyopandwa na Mzee Zibiiiza Katika Mpaka. " I have started with the question of how the parties acquired the suit land because all other claims over land rights are subsequent to its acquisition. There are four ways through which rights over land can be acquired namely:- i. Purchase ii. Occupation ill. Inheritance and; iv. Grant from the government or authority. Acquiring land rights through purchase simply means buying the land from someone. In the instant case each party claim to have acquired the right by purchasing that land. It is common ground that before surveying a land and applying for a title over it, one must first legally acquire the right to that land either through purchase, inherent, occupation or grant by the government and/or authority, thus, survey and acquisition of a title over a piece of land on its own cannot justify the right over that land. They are subsequent stages aiming at cementing one's right over the land which he acquired by either inheritance, purchase, allocation or occupation. I have purposefully discussed at length steps through which one to acquire the right to own land. I have explained that right to claim land ownership of land can be grounded on the purchase, inheritance, grant by the Government or authority and occupation. Having a Certificate of Title alone is not necessarily proof of owning the land legally. One can 10 have a Certificate of Title which was obtained fraudulently for instance by surveying the land without involving your neighbours and consequently encroaching onto their lands and getting Certificate of Title over them. Thus in my view in order to establish ownership of a land and in this context a surveyed land one must give evidence to establish how he/she acquired it first. The reason for doing this is not farfetched. For instance if a person claims right over a piece of land on the ground that he acquired it through purchase then he must, in the first place prove that sale agreement between him (i.e. the buyer) and the original owner (i.e. the vendor) is valid and legal. If it is established that the sale is valid then all other procedures that follows a valid sale agreement for instance survey of the land, an acquisition of a Letter of Offer and acquisition of a Certificate of Title will be legal and valid. If there is no valid sale agreement or valid grant by the government (including grant by the Village government), or legal occupation or inheritance then all the procedures that would follow (i.e. surveying, obtaining an offer and certificate of title) will be void ab initio. In this case, the first Appellant says that he acquired the disputed land by buying it from one Mustafa Ally Samata but as said hereinabove, his witness (DW2) told the trial tribunal that the Appellant bought the suit 11 land from one Shukuru Mashaka. These contradictions were never reconciled, therefore left the Appellant's story on how he acquired the dispute land tainted with doubt. On the other hand there was an attempt by Shaibu Omar Jumbo (DW5) to controvert the Respondent's story (which was otherwise straight forward), that he bought the disputed piece of land from Athumani Abdallah Jumbo, who was his grandfather by saying that his said grandfather did not know how to read and write therefore he couldn't sign the sale agreement (Exhibit Al)by a pen as he was using a thumb signature. The witness however, did not produce any document bearing a thumb signature of his said grandfather which would controvert his alieged signature in exhibit Al. As it can be noted Exhibit A1 was signed way back in 1998 when DW2 was 22 years old but was not among the persons who was present during the transaction, therefore in the circumstances he cannot be heard the signature in Exhibit Al is not the signature of his grandfather. On the other hand Shaib Omar Jumbo (DW5) was not among the persons who witnessed the sale agreement (Exhibit Dl), between the Appellant and one Mustafa Ally Samata, he can therefore not be a credible witness on how the Appellant acquired the suit land. He cannot 12 even say anything about the location of seven acres of land sold by the said Mustafa Ally Samata to the Appellant because he was not present. On his part in support of his claims before the trial tribunal the Respondent, in addition to himself called three witnesses on his side. These were Athmani Bwegere (PW2), Mashaka Omari Segumba (PW3) and Joseph Makala (PW4). These and the Respondent swore that the Respondent bought the disputed land from one Athumani Abdallah Tumbo (deceased) in 1998. If you compare this evidence of the Respondent and that of the Appellant you will find that the evidence of the Respondent is much heavier and credible than that of the Appellant. In the case of Said Hemed versus Mohammed Mbilu (1984) TLR 114, this Court (Sisya J as he then was), held that according to the law evidence of parties cannot tie; the person whose evidence is heavier than that of the other is the one who must win. Comparing the evidence of these two sides regarding how they claim to have acquired the suit land, one can clearly see that the evidence of the Respondent was much heavier and probable than that of the Appellant. Having found that according to the available evidence, the Respondent had established that he bought one acre of land from one Athuman Tumbo, and in view of the Appellant's claim that he bought seven acres 13 which were measured in footsteps it is most probable that in measuring foot steps they encroached into Respondent's land. I say so because an acre of land is technically a unit of land measurement in British Imperial and United State customary systems equal to 43,560 square feet or 4,840 square yards or 4,046.85 square metres. According to the Editors of Encyclopaedia Britannica last updated in October 2024, an acre which is akin to Latin ager (field) had one origin in the typical are that could be plowed in one day with a yoke of oxen. There is no evidence that an acre of land measured by footsteps fits in the definition of the term acre as explained above and particularly so because footsteps may differ in accordance with height of a person measuring. Having found that the Respondent has established his claim of a piece of land a land measuring one acre (i.e. Square metres) within the land which the Appellant claims to have seven acres measured by footsteps, I find no reason to discuss the validity and legality of the survey and subsequent acquisition of Certificate of Title by the Respondent which were done without involving the Respondent because it will not change my finding that the alleged seven acres measured by footsteps have not been proved seven acres according to what constitutes an acre of land and that it is most probable that in measuring by footsteps the Appellant 14 and whoever person sold it to him encroached into the Respondent's one acre. As I have found as a matter of fact that the disputed land doesn't form part of the land which the Appellant bought from Samatta, its survey and process of acquisition of Certificate of Title .was void ab initio. In the circumstance the joining of Registrar of Title was not necessary as there could be no issue touching her. That said the Appellant's app^iLjs disTr^issed with costs. C:; — o A'.R. MRUMA <</ T :z: ■z- JUDGE > 6/11/2024 15