Land Appeal No 3487 of 2024 scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 3487 OF 2024 (Arising from the Judgment and Decree of I/a/a District Land and Housing Tribunal in Land Application No. 127 of2021). OBEID MUYABI SOTI.......................................................... APPELLANT

VERSUS ADAM MAILA MTAKI.......................................................... RESPONDENT

JUDGMENT Date of last Order: 16/5/2024 Date ofJudgment: 23/5/2024 A, MSAFIRI, J, Before the District Land and Housing Tribunal for Ilala, (the Tribunal), the applicant Adam Maila Mtaki (now the respondent) instituted Application No. 127 of 2021 against Obeid Muyabi Soti (now the appellant). He claimed that he is a lawful owner of a landed property described as unsurveyed plot measured 20 by 20 feet located at Kitinye Street, Kipunguni Ward within Ilala District. The applicant claimed further that the respondent has trespassed into his land (herein as suit property) and despite the applicants various attempts to have vacant possession of the suit property, the respondent has refused. He prayed for declaration that the respondent is a trespasser and the order of his eviction from the suit i property should be issued by the Tribunal. After hearing, the Tribunal decided in favor of the applicant, the act which aggrieved the respondent and he lodged instant appeal in this court basing on two grounds as follows; 1. That, the trial Tribunal erred in law and fact for deciding in favour of the respondent without considering that there was an oral agreement that the respondent had agreed to hand o ver part of the disputed property.

2. That, the trial Tribunal erred in law and fact for deciding in favour of the respondent without considering Exhibit KU3 in which the Respondent agreed to compensate the Appellant for taking care of the disputed property. The appeal was heard by way of written submissions and the appellant's submissions were drawn gratis by Legal and Human Rights Centre (LHRC) and filed by the appellant. The reply submission by the respondent was drawn and filed by Mr. Ferdinand Makore, learned advocate. In his submission in chief, the appellant gave a brief background of the dispute. He said that in 1999, the respondent invited his nephew who is the appellant to guard the said suit property against the trespassers and in return, the appellant will be paid TZS 40,000/= per month, however up to date, the appellant has not been paid a single cent. That the appellant ■ 2 has made some developments in the suit property with the knowledge of the respondent. That in 2007, the respondent has shown his intention to reclaim his piece of land and the appellant claimed for compensation of the developments and the wages which he was never paid. That the respondent agreed to leave the piece of developed land to the appellant and that agreement was made in front of family members but it was not honoured. Submitting to the first ground of appeal, the appellant stated that the trial Tribunal disregarded the

fact that the respondent has agreed to compensate the appellant by way of leaving the developed piece of land to the appellant and it was before family members. He submitted further that the trial Tribunal erred in relying on Section 64 of the Land Act, Cap 113 R.E 2019 which prescribe the requirement of written agreements on the registered land while the suit property is unregistered. He averred that the suit property being unregistered, an oral agreement made between the parties and witnessed by family members in a meeting is valid and it is supported by Section 78 of the Law of Contacts Act Cap 345 R.E 2019 which requires contracts to be either written or oral. 3 In response to the first ground of appeal, Mr Makore, counsel for the respondent contended that the appellant did not provide any evidence or call any witness at the trial to support his claim of an oral agreement regarding the disputed property. That the respondent together with Mr. John Muyabi Soti, who gave evidence as SM2 said that the suit property was never given to the appellant, and the respondent has never agreed to offer the suit property to the appellant as part of compensation. Mr Makore argued that the trial Tribunal was correct in its findings by invoking Section 64 of the Land Act and that this provision does not deal with the registered land only. In this first ground the appellant claim that the

respondent agreed to leave the piece of developed land to the appellant and that agreement was made in front of family members but it was not honoured. I have gone through the proceedings of the Tribunal during the trial. The evidence shows that the respondent stated to own the suit property having purchased the same from one Mzee Baridi Fundi in 1991. He produced the sale agreement which was admitted as exhibit KM1. He said that he invited the appellant to live temporarily on the suit property until he was able to get his own place. That it was in 2001. That the appellant is his nephew. That in 2007 he wrote to the appellant asking him to 4 vacate. He tendered the said letter as exhibit KM2. That the appellant refused to vacate the suit property. That in 2018 there was a family meeting asking the appellant to vacate the property. The meeting of the family minute was admitted as exhibit KM3. Then after that the appellant attempted to file a suit against him but it was dismissed for lack of merit. On his side the appellant testifying as Sill said that the respondent asked him to go and live in the suit property as a care taker. That they agreed that the respondent will pay him TZS. 40,000/=. That in 1999 they collaborated with the respondent and John Soti his brother, and built a two roomed house on the suit property. After that the appellant moved in with his family and started

living there. The appellant said that later he went to his home in Majita, Musoma and while there, the respondent came and told him (the appellant) that he has given him a piece of land. That the appellants father who is also the brother of the respondent, thanked the respondent for giving the appellant a place to live with his children. The appellant said further that however in 2018, the respondent took back the area he has given to the appellant. He produced the Minutes of family meeting which was admitted as exhibit KU3. Ml* 5 During cross examination, the respondent claimed that he was given a small piece of land of size 32x25 feet. In re-examination, the appellant said further that the respondent gave him the said piece of land by words (orally). SLI2 was one Irene Peter Wagumbe, the wife of the appellant. She said that in 1999 the respondent asked them to go and live in his piece of land as caretakers and they lived there with the appellant until 2005. That in 2005 the respondent visited at the suit land for purposes of measuring the land and told the appellant to continue to live there. That in 2018, John Muyabi told them (appellant and her), that the respondent have given/gifted them a piece of land but later when the respondent himself came he told them that his family have refused so the disputed land does not belong to the appellant. Having gone through the evidence

on record, it is not disputed that the respondent is the lawful owner of the suit property which he got by purchasing it in 1991 from one Baridi Fundi as per exhibit KM1. It is also not in dispute that in 1999 the respondent asked the appellant and his wife to move and live in the suit property as care takers. What is in dispute is the appellants claim that he was given/granted a piece of land in that suit property by the respondent. The respondent 6 vehemently denied that claim. The appellant avers that the respondent has given him that suit property orally. In his evidence, the appellant said he was told by his brother John Muyabi Soti that the respondent Mr. Mtaki has agreed to give him a piece of land. By this evidence, it shows that the respondent has never in person told the appellant that he has given him a disputed land. Even the wife of the appellant who testified as SU1, said that they were told by John Muyabi that the respondent has given them the disputed land. However, it is clear that when Mtaki (respondent) himself came, he denied that. In such circumstances I would have expected the appellant to summon that John Muyabi Soti to come and give evidence on that piece of vital information. However, surprisingly, the said John Muyabi Soti came to testify as the witness of the respondent. He told the Tribunal that the owner of the disputed property is the respondent

and he has invited the appellant to live there as a caretaker while looking for a place of his own. He said that there has been several family meetings on which the appellant was asked to vacate the respondents land but he keep refusing. The oral agreement which is claimed by the appellant was supposed to be between the appellant and the respondent. Between the two parties 7 who enters the said agreement, not between the two parties through a third party or a middle man as it seems to be in this dispute. I find that the appellant has failed to prove that there is/was oral agreement between him and the respondent as it was not the respondent Adam Maila Mtaki who told the appellant that he has granted/given him a piece of land but the appellant claim that he was told by John Muyabi Soti that Adam Mtaki has given him, the appellant, a piece of land. This oral agreement if there was any, was void ab initio and the trial Tribunal was right to disregard it. The first ground hence has no merit and it fails. On the second ground of appeal, the appellant submitted that it was undisputed that the appellant has made permanent developments within the disputed land when it was under his care and the respondent has never stopped the appellant and have acknowledged those developments. He said further that it is unlawful for the appellant to be left empty handed. The appellant argued that the

trial Tribunal erred in law by directing the appellant to refer his monetary claim to other courts while the subject matter falls within the ambit of its jurisdiction. That the act of the trial Tribunal of disregarding the fact that the appellant is entitled to compensation for the developments made within the disputed land was 8 denial of justice. He call for this court to re-evaluate the evidence adduced during the trial so justice can be done. He referred the case of Future Century Ltd vs. TANESCO [2016] TLR (CA) which set that the appellant is entitled to have the evidence re- evaluated by the first appellate court and give its own findings. He urged this court to re-evaluate the adduce evidence for interest of justice. Mr Makore responded on the second ground and briefly submitted that the appellant should seek the appropriate legal remedy through the proper legal mechanism to get his rights which he believes he deserves. He pointed that mere action of improving the land and staying on it for a long period of time does not automatically grant the appellant ownership on the disputed property. I have revisited the evidence which was adduced before the trial Tribunal as per the above analysis. I have read Exhibit KU3 in which the appellant claims that the respondent agreed to compensate the appellant for taking care of the disputed property. Exhibit KU3 is minutes of a family

meeting which was attended by the appellant, respondent and other family members as the appellant and respondent are relatives. It was agreed that the appellant should vacate the suit property by 30/4/2019 and he will be paid the stated amount of money which was to be paid by 9 instalments. It is not clear on whether the amount was paid or not but by the time the respondent has instituted the Application No. 127 of 2021 before the Tribunal, the appellant has not yet vacated the suit property. During the trial, the issue before the trial Tribunal was whether the applicant was a lawful owner of the suit property. The appellant never raised a counter claim before the Tribunal claiming for compensation or for payment for rendered services. Therefore since the suit was filed by the applicant who was claiming ownership of suit property and praying for orders of vacant possession, the trial Tribunal could not have determined the issue of compensation which was not before it. If the appellant had any claim against the respondent, he had an opportunity to file a counter claim along the main suit. As of now, the appellant cannot raise the issue of compensation and it cannot be determined by this appellate court as it was not among issues for determination before the trial Tribunal. In addition, I agree with the submission by the counsel foi the respondent that the appellant was not the

owner of the disputed property, but an invitee who has no claim of ownership simply because he has stayed for long time on the disputed property and has made improvements on the 10 same. I also find the second ground of appeal to have no merit and I dismiss it. By the above analysis and reasons, I find the entire appeal to have no merit and I hereby dismiss it with no order as to the costs since the appellant is under legal aid. It is so ordered. A.MSAFIRI

JUDGE 23/5/2024 11