mercy said mwilima vs safimba enterprises ltd and others 2020 tzhclandd 73 24 april 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 360 OF 2016 MERCY SAID MWILIMA (As a Legal representative of ANGELA ELIFADHILI MDUMA)............................................... ...PLAINTIFF VERSUS SAFI MBA ENTERPRISES LIMITED .1st DEFENDANT TERESIA JOHN TINDWA.............. 2nd DEFENDANT UBUNGO MUNICIPAL COUNCIL... 3rd DEFENDANT JUDGMENT I. MAIGE, J The plaintiff is the successor administratrix of the estate of her late mother Angela Elifadhili Mduma who demised on 22nd August 2015 (exhibit PI). She is succeeding the previous administrator one Praygod Elifadhili Mduma. It is he who initiated the proceeding. For the reason which may not be relevant in this matter, his grant was revoked on 13th August 2018. As a result, this Court directed, on 2nd day of October 2018, that the suit proceeds at the instance of his successor in the administration, the plaintiff herein i The substantive question that I am called upon to determine is whether the plaintiff is the lawful owner of a landed property at Plot No. 7770 Block "A" Sinza Area within the Ubungo District in Dar Es Salaam Region ("the suit property"). As a successor administrator of the estate of her late mother, the plaintiff claims to be the owner of the suit property by virtue of the letter of offer granted to her late mother. She is also claiming ownership for the reason of long possession of the same. Just as the plaintiff, the second defendant is asserting ownership interest on the suit property tracing title from her late husband one John Hassan Twindwa. The plaintiff claims both in pleadings and evidence as PW1 that, the suit property was allocated to her late mother way back in 1983. She produced, which was admitted as exhibit P3, the relevant letter of offer. She claims further that, soon upon the allocation, her mother constructed a residential house wherein she had stayed from 1985 to 1999 when she shifted to Mbagala without any interruption. After shifting to Mbagala, her late mother rented the suit property to various tenants who stayed therein without any disturbance. Her testimony in this respect, is corroborated by the oral testimonies of Said Seleman Mamoja (PW2) and Sbedora Damian Chizuri (PW3). The former who is an aduit of 80 years old, claims to be the owner of a house at Plot No. 759 in Sinza which is adjacent to the suit property. The latter who is a lady aged 60 years old, testifies that she had since her birth, been residing in the house at plot number 776 Block A which is five houses from the suit property. The plaintiff also relies on invoices and receipts for land rents, property taxes and water services (exhibits D5, D6 and 07, respectively), to establish long occupation of the suit property. The dispute, the plaintiff further avers, commenced in 2016 when the second defendant attempted, through the first defendant, to evict the tenants from suit property. On her part, the second defendant who also testified as DW1 denies that the suit property had ever been allocated to the plaintiff's mother. She doubts the validity of the grant in exhibit P3. In her understanding, the suit property was allocated to her late husband way back in 1978. Upon the death of her husband in 2000, she was constituted administratrix of his estate. In the course of administration, and while she was tracking the suit property, the plaintiff's mother came out claiming ownership thereon. On further follow up to the relevant authorities, it was confirmed that, her late husband was the lawful owner of the suit property. In 2007, she attests further, the title on the suit property was transmitted into her name as a personal legal representative and in 2016, she procured a new certificate of title after the previous one had expired (exhibit D9). Contrary to the proposition by the plaintiff and her witnesses, the second defendant claims that the house at the suit property was constructed by her late husband. She has produced, which were admitted as D3 collectively, a proposal of mortgage loan and acceptance from THB Bank dated 1982. The third defendant has been sued because the allocation of the suit property to the plaintiff's mother was done by her predecessor, Kinondoni Municipal Council. As against it, the plaintiff prays in the alternative that, if her allocation is found invalid, the third defendant should compensate her either in cash or by way of an alternative plot within the same area. In her written statement defense as well as testimony through her senior land officer Palmon Martin Rwegoshora (DW3), the third defendant agrees with the second defendant that the allocation in exhibit P3 is invalid. He nevertheless recognizes exhibit CE2 as a correct part of the record. It was a certificate of title issued in the name of John Hassan Tindwa for a period of 33 years. He says, after expiry of the tenure therein, the second defendant applied for new certificate. By that time, she had been registered as the administratrix of the estate of her late husband. He recognizes exhibit D9 as a valid new certificate in the name of the second defendant. He clarifies that, under the new sytem, she was to be granted with a new allocation. He says, there was no record of building permit by the plaintiff. In accordance with his record, there was a time when his office was requested by the commissioner to avail him with the history of the suit property. He does not recognize exhibit P13 as a valid part of the record. In his testimony in examination by the Court under section 176 of the Evidence Act, Cap. 6, R.E, 2002, DW3 produced among others, a letter of offer in the name of the late husband of the second defendant dated 1975(CE-1), a copy of the original certificate of title in the same name and which was subsequently transmitted to the second defendant (exhibit CE-2) and minutes dated 2016 purporting to be the history of the suit property (exhibit CE-4). The latter suggests that the suit property was under the ownership of the late husband of the second defendant before being transmitted to the second defendant in 2016. At the hearing, the plaintiff was represented by advocate Rajab Mrindoko. The first and second defendants were represented by advocate Stock Joachim while Kissa, learned solicitor, represented the third defendant. After the closure of the cases of each side, the counsel addressed me by way of written submissions. I sincerely recommend the counsel for their very useful submissions. They have been given due consideration in this my ruling. With the above account of the nature of the contention, it may be appropriate to address the issues involved. As I said, the main issue is whether the plaintiff is the lawful owner of the suit property. There were two other dependent issues namely; whether the defendant allocated the suit property as alleged and whether the plaintiff is entitled alternative accommodation or compensation by the third defendant. While the second issue depended upon the first issue being answered negatively, the third one depended upon the second issue being answered affirmatively. The fourth issue was the usual consequential issue as to relief. For obvious reason, I will tackle the first two issues simultaneously. The claim of the plaintiff is based on two propositions namely; allocation vide the letter of offer in exhibit P3 and acquisition by long occupation of the suit property. I will address the issues first in connection with the first proposition. From the evidence adduced, I entertain no doubt that both the letter of offer in exhibit P3 and the certificates of title in exhibit D9 and CE2 as well as the offer in exhibit CE1 are part of the record of the third defendant. Whether it was rightly done or not, it is apparent that both the two allocations were made by the third defendant. In his submissions, Mr. Mrindoko in the first place urges the Court not to accept the offer in exhibit CE-1 because there is no evidence of acceptance by the late husband of the second defendant. With respect, I cannot agree with him. The reason being that, the title of the late husband of the second defendant was not only evidenced by the said letter of offer. More importantly, it was evidenced by the certificate of title in exhibit CE-2 which was issued way back in 1978. As a matter of law, once a certificate of title was issued, it superseded the letter of offer. That being the case therefore, by 1983 when the letter of offer in exhibit P3 was being issued in the name of the plaintiff's predecessor in title, there 6 was a prior registered allocation in the name of the late husband of the second defendant. On this, Mr. Stocks submits that, for the reason of being issued seven years after the issuance of the grant in exhibit CE2, the offer in exhibit P3 was illegal and ineffectual. He places reliance on the authority of my learned sister Judge Opiyo in Francis Lukwaro vs, Joyce Ndashau, Land Appeal No. 180 of 2016 where she held that "Between the equal equities, the first in order o f tim e sh all p revail" I am in agreement with this settled principle of law. Without hesitation, I will hold that since the letter of offer in exhibit P3 was issued while the certificate of title in exhibit CE2 was in force, it was illegal and ineffectual. In relation to the first proposition therefore, I will answer both the two questions against the plaintiff and dismiss the proposition that, the plaintiff is lawful owner of the suit property by virtue of the grant in exhibit P3. Mr. Mrindoko submits further that, there being evidence of long use and occupation of the suit property by the plaintiff's predecessor in title without disturbance, the plaintiff has acquired title on the suit property and it is unequitable if she is denied the same without compensation. He submits further that, at all material time, the plaintiff has been in use and occupation of the suit property believing that there was no prior grant. She is the one who developed the suit property, he further submits. Mr. Stock does not agree with that submissions. In his view, in the absence of building permit, it cannot be said that it is the plaintiff's mother who developed the suit property. He is supported by her learned friend Miss Kissa for the third defendant. He invites the Court to infer from the loan agreement in exhibit D3 that it was the second defendant' husband who constructed the house at the suit property. Admittedly, long use of a landed property or technically referred to as adverse possession, is one of the legal ways of acquisition of interest on land. The acquisition of such interest in a registered land like the instant one is however not automatic. It is subject to certain legal formalities. As I understand the law, there are two ways through which such acquisition can be effected. One such way is covered under section 72 of the Land Registration Act, Cap. 334, R.E. 2002, according to which the claimant must apply to the Registrar of Titles to be registered as an adverse possessor. For clarity, I will reproduce here below the relevant provisions; 7 2 -(l) Any person who claim s that he has acquired any estate in any registered land by adverse possession or by reason o f any iaw o f prescription m ay apply to the Registrar in the prescribed manner for the registration o f his estate o r interest. (2) Any such application sh all be advertised by the Registrar a t the expense o f the applicant in Gazette and in such one or more newspapers, if any, as the Registrar may decide. (3) The Registrar sh all give notice o f the application to the owner o f the estate thereby affected and m ay give notice to any other persons who may, in his opinion, be affected thereby. (4) The Registrar sh all not allow any application under the provisions o f this section u n til after expiration o f six m onths from the date o f publication o f the advertisem ent in the relating thereto. 8 (5) The Registrar, on being satisfied as to the title o f the applicant, may allow the application and register his estate, but such estate shall be subject to any estate or interests which have not been extinguished by such adverse possession For the applicant to be registered under the above provision, three conditions must be satisfied. First, the applicant must establish that he has acquired adverse possession of the property. Two, six months period must have expired since the publication of the advisement in the Government Gazette and such other as newspapers as the Registrar may decide. Three, the registered owner of the property must have been notified. Another procedure is found in section 37 of the Law of Limitation Act, Cap. 89, R.E, 2002 which provides as follows:- 37~(1) Where a person claim s that he has become entitled by adverse possession to any land held under a right o f occupancy o r o f any other estate o f interest, he m ay apply to the High Court fo r an order that he be registered under the relevant law as the holder o f the right o f occupancy or such other interest, as the case m ay be, in place o f the person then registered as such holder, and the High Court may, upon being satisfied that the applicant has become so entitled to such land, make an order that he be registered accordingly, or m ay make such other order as the High Court may deem fit. (2) Where an order has been made under subsection (1) the Registrar sh all take such steps as m ay become necessary to give effect to, the order. 9 Under the above provision, one can apply to the High Court to be registered as an adverse possessor. Under subsection (2) thereof read together with section 16 of the Land Registration Act, where such order is given, the Registrar is obliged to take such steps as may be necessary to give effect to the order. This, in my view, signifies that in such an application, the Registrar must be joined as a necessary part. The application under the above provision though in the nature of a suit, does not, in my view amount to a suit under the Civil Procedure Code which must be initiated by a plaint. It is a statutory suit, the form of procedure of which is, according to section 5 of the CPC, not affected by the procedure under the CPC. I understand however that, the Law of Limitation Act does not provide for any specific form of procedure which would render initiation of such an application by way of a plaint defective. In this matter, this Court has not been moved under the respective provision. The plaintiff has not expressly sought to be registered as adverse possessor. More to the point, the Registrar of Title though a necessary party, has not been impleaded. The Court of Appeal of Tanzania has held from time to time that, long possession of land does not automatically give title to the adverse possessor. For instance, in The Attorney General vs. Mahezi Mohamed (As administrator of the estate of the late Dollv Maria Eustace^ and others. Civil Appeal No. 311 of 2019, the Court of Appeal of Tanzania as Kerefu, JA held that "possession and occupation of land for a considerable 10 period do not automatically give rise to a claim for adverse possession". I am bound by the decision. For the foregoing reason therefore, I find that the claim as to adverse possession of the suit property is premature and it is accordingly struck out. There was yet another contention for the plaintiff that since the certificate of title in exhibit CE2 expired by 2009 when the second defendant was instituting the suit in exhibit D7, and, the title in exhibit D9 having been procured subsequent to the eruption of the instant dispute, the same was fraudulently obtained. For the defendants, it was submitted that, the grant was validly procured because before being issued, the name of the second defendant had been entered in the previous certificate of title as the legal personal representative of her late husband. Let me say right from the beginning that, the issue raised cannot be determined in this proceeding. Exhibit D9, the legality of which is in question has been authored by the Registrar of Titles. The plaintiff is alleging fraud which is one of the serious offence. The allegation though appears to be against the third defendant, cannot be determined without hearing from the Registrar of Titles. For the reason better known to themselves, each of the parties avoided to call any witness from the Registrar of Titles despite being duly represented. This Court therefore cannot assume the risk of linking the Registrar of Titles with this serious allegations without affording him a right to be heard. In my view therefore, a proper determination of the alleged illegality and fraud in the issuance of the certificate of title in exhibit D9 cannot be made without the Registrar of Titles being joined. In the circumstance therefore, the claim in so far as it relates to the validity and legality of the grant in exhibit D9 is incompetent and it is accordingly struck out. In the final result and to the extent as afore stated, the suit shall not succeed. The claim as to ownership of the suit property on the basis of the letter of offer in exhibit P3 is hereby dismissed and the offer invalidated. The claim as to ownership of the suit property by long possession and occupation as much as it is the claim as to the legality of the certificate of title in exhibit D9 are hereby struck out for being premature and incompetent. Consequently, the reliefs sought in the plaint shall not be granted. In the circumstance of this case, I will not give an order as to costs to either of the parties. It is so held and right to appeal is duly explained. JUDGE 24/04/2020 12 Date: 24/04/2020 Coram: Hon. D.P. Ngunyale - DR For the Plaintiff: Present For the 1st Defendant - Absent For the 2nd Defendant _ For the 3rd Defendant: Kissa Mbila for third respondent RMA: Bukuku ORDER: Judgment delivered this 24th day of April, 2020 in presence of the plaintiff in person and the 3rd defendant represent by Kissa Mbila learned Advocate, Cc. Me Ri iLri iL'i i 13