MOHAMED ABDULLAH V AQUILINE DIAH

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA LAND CASE NO. 17 OF 2021 MOHAMED ABDULLAH..................................................................... PLAINTIFF

VERSUS AQUILINE SAMUEL DIAH (as a personal legal representative of the late BARNABAS MANYIKA KUSEKWA...... 1ST DEFENDANT REGISTRAR OF TITLES.............................................................................. 2NDDEFENDANT MWANZA CITY COUNCIL............................................................................ 3RDDEFENDANT THE ATTORNEY GENERAL...........................................................................4THDEFENDANT

JUDGMENT 19/6/2024 & 19/8/2024 ROBERT, J This case involves a dispute over the ownership of Plot No. 131, Block F, Nyakato Service Industry, Mwanza. The Plaintiff, Mohamed Abdullah, asserts his ownership of the plot, which he claims originated from Plot No. 105, Block F, Nyakato Service Industry, Mwanza. The 1st Defendant, Aquiline Samwel Diah (as personal Legal Representative of the late Barnabas Manyika Kusekwa), disputes this claim, asserting that the plot emanates from Plot No. 110, Block F, Nyakato Service Industry, Mwanza, and that he is the lawful i owner. The 2nd, 3rd, and 4th Defendants are involved due to their roles in the registration and allocation of the plot. The Court framed three issues for the determination of this matter. First, whether Plot No. 131, Block F, Nyakato Service Industry originates from Plot No. 105 or Plot No. 110, Block F, Nyakato Service Industry. Second, whether the Plaintiff is the lawful owner of Plot No. 131, Block F, Nyakato Service Industry. Third, what reliefs the parties are entitled to. Starting with the first issue, the crux of the dispute lies in determining the origin of Plot No. 131, Block F, Nyakato Service Industry, Mwanza. The Plaintiff claims that Plot No. 131 originated from Plot No. 105 Block F, Nyakato Service Industry, while the 1st Defendant asserts that it emanated from Plot No. 110 Block F, Nyakato Service Industry. The

plaintiff testified as PW2 asserting that Plot No. 131 originated from Plot No. 105, which he lawfully acquired from one Surrinder Singh Jhajji. He presented Exhibit Pl, the Transfer of Right of Occupancy of Plot No. 105 Block F Nyakato Service Industry from Surrinder Singh Jhajji to substiante his claim. 2 The Plaintiff also produced Exhibits P7(a), P7(b), and P7(c), which are correspondences between him and government authorities, including the Mwanza City Council to establish the transformation of Plot No. 105 into Plot No. 131 as Mwanza City Council started to refer to the disputed as Plot No. 131 Block F Nyakato Industry instead of Plot No. 105 Block F Nyakato. This was further corroborated by Exhibit P4, the title deed for the suit land, granted to the plaintiff as Plot No.

131. The Plaintiff further relied on the testimony of key witnesses, DW6 (Juma Hamisi Hassan) and DW7 (Joyce Elias Shomari), who are officials from the 3rd Defendant, Mwanza City Council. Both witnesses confirmed that Plot No. 105 was subdivided, and Plot No. 131 was one of the resultant plots. They testified that the subdivision process was carried out in accordance with the relevant laws and regulations, and that the Plaintiffs title to Plot No. 131 was lawfully issued. On his part, the 1st Defendant, Aquiline Samwel Diah (as personal Legal Representative of Barnabas Manyika Kusekwa), contends that Plot No. 131 originated from Plot No. 110, which he claims to have owned under customary rights. He presented Exhibit D3, a judgment from the District Land and Housing Tribunal, which recognized his ownership of Plot No.

110. The 3 1st Defendant also produced Exhibit D7, an Offer Letter for Plot No. 110, which he received after the plot was surveyed. The 1st Defendant's claim is that the government authorities erroneously allocated Plot No. 131, which he believes is a continuation of his former Plot No. 110, to the Plaintiff. He argues that his customary ownership rights should have been recognized and that the subdivision process was flawed, resulting in the unlawful creation of Plot No.

131. The Court finds that, the documentary evidence provided by the Plaintiff, including a title deed (Exhibit P4) for Plot No. 131, which was issued following the lawful subdivision of Plot No. 105 serves as prima facie evidence of the Plaintiffs ownership of Plot No. 131, and the burden shifts to the 1st Defendant to prove that the subdivision was unlawful or that the plot originated from Plot No.

110. The evidence provided by the plaintiff, supported by testimonies from defense witnesses DW6 and DW7 (officers of the third defendant), confirmed that Plot No. 105 was indeed transformed into Plot No. 131 following a survey conducted by the relevant authorities. The first defendant failed to 4 provide conclusive evidence to support his claim that Plot No. 131 emanated from Plot No.

110. That said, the court finds that Plot No. 131, Block F, Nyakato Service Industry, originated from Plot No. 105, Block F, Nyakato Service Industry, and not from Plot No. 110 as claimed by the first defendant. The second issue examines who legally owns Plot No. 131, Block F, Nyakato Service Industry, Mwanza. The Plaintiff asserts ownership based on a title deed, while the 1st Defendant claims that the plot was wrongfully allocated to the Plaintiff, as it should belong to him due to prior customary ownership of an adjacent plot. The Plaintiff, Mohamed Abdullah, argues that he is the rightful owner of Plot No. 131 based on a valid title deed issued after the lawful subdivision of Plot No.

105. He presented Exhibit P4, the title deed, which this Court considers as prima facie evidence of his ownership. The Plaintiffs case is further supported by Exhibits P7(a), P7(b), and P7(c), which are communications with the Mwanza City Council confirming the approval of the subdivision of Plot No. 105, leading to the creation of Plot No. 131. 5 The Plaintiff contends that his title deed is conclusive evidence of his ownership under Tanzanian land laws. He further asserts that the subdivision process was transparent and lawful, and that he has fulfilled all the legal requirements for the registration and ownership of Plot No.

131. The 1st Defendant, challenges the Plaintiffs ownership of Plot No. 131, claiming that the plot was wrongfully allocated to the Plaintiff. He asserts that Plot No. 131 should have been allocated to him as it allegedly originated from Plot No. 110, which he owned under customary rights. The 1st Defendant relies on Exhibit D3, a judgment from the District Land and Housing Tribunal, which recognized his ownership of Plot No. 110, and Exhibit D7, an Offer Letter for Plot No. 110 issued after the plot was surveyed. The 1st Defendant argues that his customary rights over Plot No. 110 were not properly considered during the subdivision process, and that the allocation of Plot No. 131 to the Plaintiff was a result of an error by the Mwanza City Council. The key legal principles governing land ownership in Tanzania are found in the Land Act, No. 4 of 1999, and the Registration of Titles Act, Cap. 334. 6 Under these laws, a title deed issued after lawful registration is conclusive evidence of ownership, subject to any claims of fraud or illegality in the acquisition process. Additionally, once land is registered under statutory tenure, any prior customary rights are extinguished. In this case, the Plaintiff's title deed (Exhibit P4) is prima facie evidence of his ownership of Plot No.

131. The burden of proof shifts to the 1st Defendant to demonstrate that the title was acquired through fraud or other illegality, or that the subdivision process that created Plot No. 131 was flawed. The 1st Defendant's reliance on the District Land and Housing Tribunal's judgment (Exhibit D3) is insufficient to displace the Plaintiffs title. As previously noted, the tribunal's judgment was based on admission, without a substantive hearing of the competing claims. Moreover, the Plaintiff was not a party to the tribunal proceedings, and the judgment does not address the specific issue of ownership of Plot No.

131. The 1st Defendant's claim that Plot No. 131 should belong to him due to his customary ownership of Plot No. 110 also lacks legal merit. The 1st Defendant's Offer Letter for Plot No. 110 (Exhibit D7) does not establish any 7 legal entitlement to Plot No. 131, which is a separate and distinct plot that was lawfully created through the subdivision of Plot No.

105. The testimonies of DW6 and DW7, officials from the Mwanza City Council, further strengthen the Plaintiff's case. They confirmed that the subdivision of Plot No. 105 was carried out in accordance with the relevant laws and regulations, and that the creation of Plot No. 131 was lawful. Their testimony also refutes the 1st Defendant's assertion that the subdivision process was flawed or that his customary rights over Plot No. 110 were improperly ignored. It is also important to note that the Plaintiff's title deed is protected under section 62 of the Land Act, which provides that a registered owner of land has absolute and indefeasible title, subject only to overriding interests, encumbrances, and registered leases or easements. The 1st Defendant has not presented any evidence of such overriding interests or encumbrances that would challenge the Plaintiffs ownership of Plot No.

131. After a careful examination of the evidence and the legal principles, the Court finds that the Plaintiff, Mohamed Abdullah, is the lawful owner of Plot No. 131, Block F, Nyakato Service Industry, Mwanza. The Plaintiff's title deed 8 is valid and conclusive evidence of his ownership, and there is no credible evidence to support the 1st Defendant's claims that the plot was wrongfully allocated or that his customary rights over Plot No. 110 were improperly disregarded. The Court, therefore, holds that the Plaintiff has proven his ownership of Plot No. 131, and the 1st Defendant's challenges to this ownership are without merit. Coming to the third issue, the plaintiff has sought various forms of relief, including a declaration of ownership, rectification of the land register, compensation for damages, and general damages. This issue revolves around whether there is sufficient evidence to justify the granting of these reliefs. On declaration of ownership, given the strong evidentiary basis and the finding that the first defendant's claim of ownership is unfounded, the Court is satisfied that the plaintiff is entitled to a declaration of ownership. The evidence sufficiently demonstrates that the plaintiffs right to the property was infringed upon by the wrongful actions of the defendants. Therefore, 9 the Court grants the declaration that the plaintiff, Mohamed Abdullah, is

the lawful owner of Plot No. 131, Block F, Nyakato Service Industry, Mwanza. On rectification of the Land Register, as established earlier in this Judgment, the process that led to the first defendant's registration as the owner of Plot No. 131 was procedurally flawed and did not take into account the plaintiffs rightful claim. The failure to involve the plaintiff in the proceedings before the District Land and Housing Tribunal, which resulted in the rectification of the land register in favor of the first defendant, was a violation of the principles of natural justice. The Court also notes that the Registrar of Titles (second defendant) and other relevant authorities (third and fourth defendants) failed to adequately verify the ownership claims before making the rectification. This negligence contributed to the wrongful deprivation of the plaintiffs property rights. Therefore, the Court orders the rectification of the land register to restore the plaintiffs rightful ownership of Plot No. 131, Block F, Nyakato Service Industry, Mwanza.. On compensation for specific damages, the plaintiff has claimed specific damages amounting to TZS 150,000,000 for the destruction of developments on the disputed land. The Court is mindful that specific damages must be proven with certainty. The plaintiffs evidence, leaves some room for doubt io as to the exact quantum of damages. Therefore, the

Court finds that the plaintiff has failed to provide sufficient evidence to justify this claim. The plaintiff also seeks general damages for the distress and inconvenience allegedly caused by the defendants' actions. General damages are awarded at the discretion of the Court to compensate for non- quantifiable losses, such as mental anguish and inconvenience. However, in this case, the plaintiff has not provided any substantial evidence or specific details to justify the award of general damages. As such, the Court finds no sufficient grounds to grant general damages and hereby denies the plaintiffs claim for general damages. The Court awards the costs of the suit to the plaintiff, to be borne by the first defendant. It is so ordered. 11 ■L