mwansada athumani vs mwinchande mohamed kalua 2020 tzhc 1047 21 may 2020

THE HIGH COURT OF TANZANI (LAND DIVISION)

AT TANGA LAND APPEAL NO. 32 OF 2017 (From the Decision of the District Land and Housing Tribunal of Tanga District at Tanga in Land Case No. 62 ofF 2012) MWANSADA ATHUMANI.......................................... APPELLANT

VERSUS MWINCHANDE MOHAMED KALUA......................RESPONDENT

JUDGEMENT MKASIMONGWA, J. This Appeal is against the decision of Tanga District Land and Housing Tribunal (DHLT) in Land Case No. 62 of 2012 in which Mwinchande Mohamed Kalua (Now Respondent) sued the Tanga City Council and Mwansada Athumani (The Appellant) claiming for land comprised Plot No. 63 Block “B” Mnyanjani Area in Tanga City, and prayed for the following reliefs: 1. “A declaratory Decree that the suit plot is a legal registered property of the Applicant.

2. The 1st Respondent’s revocation of ownership of the suit plot to the Applicant be declared null and void.

3. The re-assignment, re-allocation and re-registration of the suit plot by the 1st Respondent to be revoked and nullified. l 4. The 2nd Respondent and or her agents be permanently restrained from the suit plot.

5. Costs of the suit be provided.

6. Any other relief the Tribunal may deem fit and just to grant. The suit was determined in favour of the Applicant and that the trial District Land and Housing Tribunal granted the following relief: - 1. The Applicant was declared the lawful owner of the suit plot.

2. The 1st Respondent’s letter revolving the Applicant’s Right of Occupancy over the suit plot was declared of no legal effect and that it is null and void.

3. The Re-allocation of the suit plot to the 2nd Respondent was declared null and void.

4. A permanent injunction restraining the Respondents from interfering with the Applicant’s possession of the suit plot.

5. Costs of the suit. The 2nd Respondent (Appellant) is aggrieved with that decision hence this appeal a memorandum of which, lists two grounds of appeal as follows 1. That the Tribunal erred in law and in fact by deciding that the Respondent is the rightful owner of the suit land.

2. That the Tribunal erred in law and in fact by ignoring the evidence adduced by the Appellant. The Memorandum of Appeal was drawn gratis by the Tanzania Women Lawyers Association (TAWLA) and the association duly 2 certified to the effect that Mwansada Athumani has been granted legal assistance by TAWLA. Before stating the submissions by the parties, I find it pertinent to show though briefly the facts of the case one may comprehend from the evidence adduced by the parties. They are as that: Mwansada (Appellant) had a piece of land situated along Mnyanjani area within Tanga City. She owned it as shamba area under the customary right of occupancy. The area eventually was declared a planned one and Tanga City Council acquired it. The land was therefore surveyed and then demarcated into plots along with those lands owned by other persons. On the land owned by the Appellant there were made seven plots out of which, the Appellant was allocated with three and other four plots were retained by the City Council for them to be allocated to other persons. Among the three plots there was that now in dispute. Sometime on 19/04/2007 Mwinchande Mohamed Kalua was granted by the City Council with a Letter of Offer in respect of the plot. The offer was however revoked later on 22/06/2010 on ground that the plot was promised to be allocated to Mwansada Athumani and a new Letter of Offer was

therefore issued to Mwansada Athumani. This brought the parties into a dispute which landed in the DLHT for it to be determined. It is the decision of the DLHT in the dispute that forms the basis of this appeal. When the Appeal was mature for hearing it was agreed that hearing of the same proceeds by written submissions. A schedule for filing submissions was set and the parties duly complied with it. Arguing the Appeal in respect of the first ground of Appeal the 3 appellant stated that she was the initial owner of the land on which the disputed plot lies and that the Respondent never owned the land at any time before it was surveyed. Following the survey the Appellant was allocated with three plots including that in dispute. The Appellant was therefore the rightful owner of the plots before and even after the survey. In that premise, any person other than the land owner could not pass tittle over the land to the Respondent. As such, the trial Tribunal erred when it declared the Respondent to be the rightful owner of the land. As for the second ground of appeal the Appellant submitted to the effect that the evidence on record clearly shows that, the Respondent was served with a notice not to further develop the suit land and that he was summoned to Tanga City Council for details. He was again served with a letter so that he surrenders the letter of offer he was issued in

respect of the disputed plot. He, but, did not adhere to the call to surrender the offer. It was eventually revoked and new one was issued to the Respondent. She submitted that the trial Tribunal erred when disregarded this evidence adduced in favour of the Appellant. She prayed the court it finds merit in the appeal and the same should therefore be allowed with costs. On the other hand, the respondent stated that, it is the Appellant’s evidence that she was entitled to four plots from her surveyed land out of seven plots and that the other three plots were left to the City Council of Tanga. The Respondent submitted that as the Appellant needed another plot and since the land had already 4 been acquired, she had to apply for grant of the same as he (Respondent) did. He added that as the Respondent was granted a right of occupancy over the disputed land by the City Council; where there is no evidence showing if the Appellant had applied to be granted right of occupancy over the land, it remains that the disputed land is lawfully owned by the Respondent and the trial Tribunal was correct when it held as such. As for the second ground of appeal, the Respondent submitted that nothing has been submitted by the Appellant in support of the second ground of appeal. The Appellant, instead, submitted on the revocation of the Letter of Offer issued to the Respondent which is not the gist

of the second ground of appeal. As to the revocation of the letter of offer, the Respondent submitted that the same was not done by the President of the United Republic of Tanzania; the only authority possessed with such powers and that there were no reasons for revocation assigned which premises render correct the decision given by the Tribunal in the suit. The Respondent prayed the Court that it dismisses the appeal with costs. I have considered the submissions. It is clear from the submissions and the record as a whole that initially the Appellant owned a piece of land and she so owned it under customary right of occupancy. The land eventually fell within a planned area and the City Council acquired and surveyed it for residential purposes. Upon survey there were occasioned seven plots on the Appellants’ land. The evidence is silent as to whether upon acquisition of the 5 land the Appellant was compensated or not. The evidence as given by Joyce Jospeh Ibunga (DW1), the Assistant Land Officer working with the Tanga City Council (1st Respondent in the trial Tribunal) is as that: “I know Block B Mnyanjani as area o f farms owners which were surveyed and plots produced were allocated to people. Before survey the area belonged to farms owners. Survey was conducted and priority was given to farms owners. In evidence, the Appellant was recorded saying: “At this time the same farm

has been demarcated into surveyed plots. Seven plots were produced therefore. I was given three plots and others were allocated by Government to other people ... The plots given to me were number, 62, 63 and 64”. It is not disputed that the Appellant did not have a letter of offer issued to her in respect of the plot in dispute until later on 12/02/2012. There is ample evidence showing that, the Plot was first offered to the Respondent by the letter of offer dated 19/04/2007. This is confirmed by DW1 who stated in evidence that: “Plot 63 Block B Mnyanjani was originally granted to Mwinchande Mohamed Kalua” 6 It is in common that when the City Council surveyed the land, the Council did not find it un-owned. It was under the ownership of individuals who owned the same under the customary rights occupancy. Suffice it to say that, the land was acquired by the City Council from its initial owners. In acquiring land by the Government there are processes and procedures to be followed. Among the procedures is a discussion to be held between the land owners and the acquiring authority. It seems there was such a discussion held and that is why DW1 is recorded saying. “Before survey the area belonged to farm owners. Survey was conducted and priority was given to farm owners. ” The second in the procedure is payment of compensation to those from whom the land is acquired. The compensation

is payable in monetary or by providing an alternative plot, if the land is surveyed. No compensation in terms of money was paid and what is clear from the record is that the Appellant was given three plots out of seven demarcated within her acquired land. According to DW2 those were Plot No. 62, 63 and 64. In her evidence, DW1 admitted that the offer issued to the Respondent in respect of Plot No. 63 Block “B” Mnyanjani was wrongfully issued as it was stated by DW1 in evidence that: *Plot 63 Block B Mnyanjani was originally granted to Mwinchande Mohamed Kalua. It is wrongful allocation. After we observed that allocation he had to return his documents so that the same could be allocated to Mwansada who is a farm owner o f that area” 7 The evidence above leads the Court to a finding that the Appellant’s entitlement to the land is not from a by the government which, necessitated for an application for grant as suggested by the Respondent, but it is from the fact that she was entitled to compensation and that the right of occupancy over the land was the actual compensation for the her acquired land. Indeed the City Council did not timely issue a letter of offer to the Appellant in respect of the plots which fact le the Council to a blindly insurance of the letter of offer over the land to the Respondent. DW1 admitted that issuance of the offer to the Respondent was an error

whose correction required the Respondent to surrender it to the City Council. The Respondent did not surrender the offer a result of which it was revoked. The Respondent challenges the revocation by showing that the same was done by an incompetent authority and that no reasons for revocation were assigned. It is evident that the Respondents’ interest in the land was not registered. He had no, as such a Certificate of Right of occupancy. He had only a letter of offer which in my view, necessitated not the order for revocation be given by the President of the United Republic of Tanzania. As to the reason, the evidence shows that the letter of offer was revoked for it was wrongfully issued as the land the subject of the letter of offer was already an entitlement of another person that is the Appellant. From what I have discussed here above, I find merit in this appeal and the same is allowed with costs. The judgment of the trial 8 Tribunal and the Decree thereof are quashed and orders subsequently made are set aside. Dated at Tanga, this 21st of May, 2020. 9