Jdg Land case No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI LAND CASE NO. 14957 OF 2024 REGISTERED TRUSTEE OF MASJID AL-AZHAL AND MADRASAT AL-HAYATIL ISLAMIA ……………………………………PLAINTIFF VERSUS THE COMMISSIONER FOR LAND ………….................................. 1ST DEFENDANT THE REGISTRAR OF TITLES ……….………….............................. 2ND DEFENDANT BABATI TOWN COUNCIL ………………………............................. 3RD DEFENDANT ATTORNEY GENERAL …………………………..…............................4TH DEFENDANT THE REGISTERED TRUSTEED OF BARAZA KUU LA WAISLAMU WA TANZANIA (BAKWATA) …........................... 5TH DEFENDANT JUDGMENT 07th March & 08th April 2025 Kahyoza, J.: The registered Trustees of Masjid Al-Azhal and Madrasat Al-Hayatil Islamia (Masjid Al-Azhal) (the plaintiff) sued the Commissioner for lands (the Commissioner) (1st Defendant), the Registrar of Tittles (the Registrar) (2nd Defendant), Babati Town Council (the Council) (3rd Defendant), the Attorney General (4th Defendant) and the Registered Trustees of Baraza Kuu la Waislam Tanzania (BAKWATA) consent from Administrator General; Later in 1 1993 she got issued with a letter offer and applied to be registered. She was duly registered and issued with the certificates of title No. 9718 L.O 132492. She contended that 1st Defendant in collusion with 5th Defendant, without any colour of right, without observing the law (without any Legal Justification) and with intent to permanently dispossess the plaintiff land, receive from the 5th Defendant Tzs. 11,805.00 as payment for rent, stamp duty, fees for deed plan, registration, entered and took charge of activities of Mosque and Madrasa infrastructure located on the suit land. The plaintiff pleaded that prior to 1991, the suit land was owned and managed by Mosque Committee of Masjid Al-Azhal and Madrasat Al-Hayatil Islamia of Babati Town Muslim Community. She added that after the plaintiff was incorporated in 1991, she was entitled to acquire estate or interest in land, and therefore she applied to be registered as lawful owners and occupies of the suit land. She obtained peaceful enjoyment of Plots No. 25 and 26 Block “C” Babati Urban Area registered under certificate of title No. 9718. The plaintiff alleged that she is a registered religious institution and lawful owner of the suit land. She alleged further that the 1st, 2nd and 3rd defendants did unlawfully allocate the suit land to the 5th Defendant. Following the unlawfully allocation of the suit land, the 5th Defendant using 2 law enforcement agencies, forcibly entered and took charge of the Mosque and Madrasat infrastructure located on the disputed plots. The plaintiff prayed among other prayers, for a declaration that, the plaintiff is the lawful owner of the land located on Plots No. 25 and 26 Block “C” Babati Urban Area registered under certificate of title No. 9718. The plaintiff claims also for a declaration that 1st and 3rd Defendants unlawfully allocated Plots No. 25 and 26 Block “C” Babati Urban Area registered under certificate of title No. 9718 to 5th Defendant, an order to the 5th Defendant to give vacant possession, permanent injunction order to restrain the 1st, 2nd, 3rd and 5th Defendants from interfering the certificate of occupancy. She added that 3rd and 5th Defendants colluded to charge ownership information in the Management of Land Information System (MOLIS) in respect of the suit land). The defendants vehemently opposed the plaintiff’s claims. The 1st, 2nd, 3rd and 4th defendants, the contended that there have never been allocated the suit land to the 5th defendants but initial steps seeking to rectify the land register had commenced. They asserted that the 2nd defendant wrongly issued certificate of title No. 9718 on Plot No. 25 and 26 Block “C” Land Office No. 132492 to the plaintiff. 3 They added that prior 1991 the suit land had a Mosque and Muslim School which were under ownership of East African Muslim Welfare Society and there is no record that Mosque Committee owned mosque and Madrasa farther that the Mosque Committee never had capacity to own any property. Later on, those properties were vested to BAKWATA through an order under Government Notice No. 169/1969. They concluded that plaintiff acquired certificate of title to the suit land unlawfully. The fifth defendant, like the other defendants, refuted the claims and contended that following her registration and incorporation through GN. No. 169/1969, all property of the East Africa Muslim Welfare Society was vested to her. She contended the suit land was owned by Muslim Society under BAKWATA, where the Mosque and Muslim School were constructed. As to the allegation in paragraphs 18 and 19 of the Plaint that the plaintiff obtained consent from the Administrator General and applied to Babati District Council as lawful owner of the suit land, the 5th defendant asserted that on 11/8/1994 she wrote a letter to the Minister for Lands and objected to the registration of the plaintiff as the lawful owner of the suit land. She added that in 1985-1990 the leaders and founders of the plaintiff used to be the leaders of BAKWATA and were fired due to misuse of institution’s property. 4 The 5th defendant refuted allegation of colluding with the 3rd defendant to deprive the plaintiff’s right to own the suit land. The court framed and the parties agreed to the following issues- 1. Whether the plaintiff is the rightful owner of the suit land; 2. Whether the suit is time barred; and 3. To what reliefs are parties entitled to. All the parties were represented. The plaintiff was ably represented by Mr. Hamisi Mkindi advocate and Mr. Nicodemus Advocate. The plaintiff summoned one witness Mr. Mussa Rehani, the plaintiff’s secretary (PW1) to establish her claims. The 1st, 2nd, 3rd and 4th defendants were represented by Mr. Tenges - SA and Mr. Buntuntu SSA who were assisted by Mr. Bukambu SA. They summoned one witness Elia Anathory Kamihanda. Whereas the 5th Defendant who was represented by Mr. Rashid Shaban advocate, summoned Omary Mnenura (DW2) and Issa Juma (DW3). At the conclusion of the hearing, the plaintiff’s advocate and 5th Defendant’s advocate filed final submissions. I am very grateful to them, and I will refer to the submissions while determining the issues. Given the nature of the issues, I decided to commence with the second issue whether the suit was time barred. Is the suit time barred? 5 The plaintiff submitted that the suit is not time barred. She claimed that cause of action arose on the date of dispossession. She contended that since 1993 when she was allocated the suit land, she has never been dispossessed. She contended that the certificate of occupancy or title has never been revoked. He contended that PW1 and DW1 deposed that in 2024 the plaintiff was issued with notice from the Registrar which aimed at rectifying the land register in respect of land located on Plots No. 25 and 26 Block “C” Babati Urban Area. The plaintiff’s advocate emphasized that plaintiff has never been dispossessed or discontinued his possession of the disputed property as provided under section 9(2) the Law of Limitation Act, [Cap 89 R.E 2019] (the LLA). The 5th defendant‘s advocate submitted that the suit was time barred as twelve years have elapsed from when the cause of action arose. He submitted further that, according to Section 9(2) of the LLA, the cause of action is deemed to have accrued on the date of dispossession or discontinuance. There is no dispute that the limitation period for claim of land is 12 years and that such a cause of action arises on the date of dispossession or when possession has been discontinued. This is what is provided by section 9(2) of the LLA. In the present case, the plaintiff alleged that the suit land 6 was owned by the Mosque Committee of Masjid Al-Azhal and Madrasa Al- Hayatil Islamia and after the incorporation of the plaintiff in 1991, the plaintiff became the owner. The plaintiff pleaded that after the 1st, 2nd and 3rd defendant unlawfully allocated the suit land to the 5th defendant using law enforcement agencies forcibly entered and took charge of activities of the Mosque and Madrasa infrastructure located in Plots No. 25 and 26 Block “C” Babati Urban Area. The plaintiff disclosed neither the date when the 5th defendant forcibly entered and took charge of the Mosque and Madrasa infrastructure nor the date when 1st, 2nd and 3rd defendants unlawfully allocated the suit land to the 5th Defendant. The 5th Defendant’s position was that the suit property is her property from 1969, when the same was vested to her by the Government Notice No. 169/1969. It was pleaded in the Written Statement of Defence and stated in the evidence of “Pw2 Mnenura” that the 5th Defendant has been in occupation of the suit land since 1969 to date and that the founders of the plaintiff were leaders of the 5th Defendant. They were fired for misuse of 5th Defendant’s property. It is clear that if the plaintiff’s possessed the suit land and the 5th defendant discontinued her possession then the cause of action arose at time when possession was discontinued. The plaintiff was bound to sue within 12 years from the time her possession was discontinued. It is 7 fortunate on the part of the plaintiff and unfortunate on the 5th defendant’s part, that the time when the plaintiff’s possession was discontinued was not disclosed. In the absence of such evidence, it is difficult to determine substantially when time started running against the plaintiff. In end, I find and agree with plaintiff’s advocate that time stated ticking in 2024, when the Commissioner issued a notice seeking to rectify the Register. Consequently, I find that the suit is not time barred. Is the plaintiff the lawful owner? Having determined that the suit is not time barred, I now proceed to determine the first issue, that is whether the plaintiff is the lawful owner of the suit property. I wish to commence with the undisputed facts; one, it is not disputed that the suit land, which is Plots No. 25&26 Block “C” Babati Urban, Certificate of occupancy No.9718, LO No. 132492 is registered in the plaintiff’s name. It was so registered on 7th day of March 1993. As submitted by the plaintiff’s advocate, the owner in relation to any estate or interest, is the person for the time being in whose name that estate or interest is registered. (See section 2 of the Land Registration Act, [Cap 334 R.E 2019] It is trite law therefore, that when two persons have competing interests in 8 the landed property, the person with a certificate thereof will always be taken to be a lawful owner unless it is proved that the certificate was not lawfully obtained. See the case of Amina Maulid Ambali and others Vs. Ramadhani Juma Civil Appeal No. 35 of 2019[2020] TZCA 19 and Leopold Mtembei Vs. Principal Assistant Registrar of Titles, Ministry of Land, Housing and Urban Development and the Attorney General, Civil Appeal No. 57/2017; Two, it is not disputed that the 5th defendant is occupying the suit land. According to Omary Mnenura (Dw2) the 5th defendant has occupied the suit land from 1969 when it was vested to her by the Government Notice No. 169/1969 to date; And three, it is also not disputed that the Commission commenced procedures to rectify the register to remove the plaintiff name because the 2nd defendant had wrongly issued. The certificate of title to the plaintiff. The plaintiff disputes the defendants’ allegation that the suit land was vested to 5th defendant, contending that before 1991 the suit land was owned and managed by her predecessor, that is Mosque Committee of Masjid Al-Azhal and Madrasat Al-Hayatil Islamia. Parties lock horn on the allegation that the 5th defendant owns and had occupied the suit land from 1969 to date. 9 It is from the undisputed and the disputed facts above, this Court is destined to determine who is the lawful owner. It is trite law that in civil litigation, he who alleges or sues or claims anything in his or her favour must prove the existence of the alleged fact and do on the balance of probabilities. See. Section 110 and 111 of the Evidence Act [Cap 6 R.E 2022] and a litany of cases, one of them being Barelia Karangirangi vs Asteria Nyalambwa (Civil Appeal No. 237 of 2015) [2019] TZCA 51 (1 April 2019). It is also settled that the burden of proof in a civil litigation it is not static, it shifts after the plaintiff adduces evidence, to the defendant. The Court of Appeal in Yusufu Seleniani Kimaro vs Administrative General & Others (Civil Appeal 266 of 2020) |2022| TZCA 306 (24 May 2022) took a position that once the plaintiff gave evidence, the defendant bears a burden to controvert the plaintiff’s evidence and establish his allegation. It stated- "..., in civil cases, the onus of proof does not stand still, rather it keeps on oscillating depending on the evidence led by the parties and a party who wants to win the case is saddled with the duty to ensure that the burden of proof remains within the yard of his adversary. This is so because as per the case of Raghramma v. Chenchamnia. A 1964 SC 136, such a shifting of onus is a continuous process in the evaluation of evidence.” 10 I totally agree with the plaintiff’s advocate that parties are bound by their pleadings. See Makori Wassaga Vs. Joshua Mwaikambo and Another [1987] TLR 88 cited by the plaintiff’s advocate where it was held that a party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence; hence he is not allowed to set up a new case. As shown above there is no dispute that the suit land is registered in the plaintiff’s name. She is therefore deemed to be the owner unless it proved that she did not lawfully acquire the title. The plaintiff’s advocate submitted, and I agree with him, that registration of land is not ipso facto proof of the title. The leaned advocate referred this court to the case of Jacqueline Jonathan Mkonyi and Another Vs. Ganisal Properties Limited (Civil Appeal No. 311/2020 where the Court of Appeal had the following to say “… we wish to observe that this is not the case of end justifies the means, so we agree that the registration of Land would not ipso facto prove the title in the absence of evidence establishing how own got the title.” It is, therefore, incumbent upon the plaintiff to prove how she lawfully obtained title. To discharge that duty, the plaintiff summoned Mussa Rehani 11 (Pw1), who is the Plaintiff’s secretary from 2002 to date to testify. He alluded that, the plaintiff is the owner of the suit land because she is the registered owner and she complied with all legal requirements for land registration. He narrated the procedures, which I will not list down as there is no dispute that the plaintiff is the registered owner of the suit premises. He deposed that after the plaintiff obtained the certificate of right of occupancy the proceeded to build the mosque or the prayer house. He contended that the crux of the plaintiff’s claim is that the first, second and third defendants commenced the process of giving ownership of the suit land to the 5th Defendant in total disregard of the fact that the plaintiff was the legal owner. He testified that in 2021 the District Commissioner of Babati wrote to Manyara Region Commissioner that the suit land belonged to the Plaintiff and tendered the letter as exhibit P.9. The above notwithstanding, Mussa Rehani (Pw1) did not testify how the plaintiff obtained the suit land. However, during cross examination Mussa Rehani (Pw1) deposed that before the plaintiff acquired title, the disputed land was owned and managed by the Mosque Committee and that the member of the Mosque Committee were the first members of the Board of Trustees of the Plaintiff. He added that they built the buildings which are currently existing. He admitted the East African Muslim Welfare Society had 12 interest in the suit land but did not own the mosque. He testified that the plaintiff acquired interest in the suit land in 1991 and that the mosque was owned by the Committee of Al-Azhal Mosque. On being cross examined by the 5th defendant’s advocate, Mussa Rehani (Pw1) deposed that he came to Babati in 1989 and that he was not present when the mosque was built in 1952. He got information from people who were present. He deposed that Ayub and Abdallah donated their land in 1938 and 1952 where the first and second mosque were built respectively. He deposed that he saw people who donated their land to build the mosque. He added that he became the plaintiff’s secretary in 2002. Mussa Rehani (Pw1) admitted that there was a case instituted by the Registered Trustees of Masjid Al-Azhal and Madrasat Al-Hayati Islamic against BAKWATA leaders at the district level before the High Court of Tanzania at Arusha. I wish to point out that Mussa Rehani (Pw1), the only plaintiff’s witness, did not explain how the plaintiff’s obtained title. He explained how she registered the land into her own name. The plaintiff’s witness was expected to depose how the plaintiff obtained title. Mussa Rehani (Pw1) testified that before the plaintiff acquired title, the Mosque was owned by the Mosque Committee of Masjid Al-Azhal. He did not tender evidence to 13 prove that the Mosque Committee of Masjid Al-Azhal did exist and did own the mosque as alleged. He did not summon any member of that committee to support his contention. As if that is not insufficient enough, the plaintiff did not explain how the Mosque Committee came into existence and acquired title and how it transferred her interest to the plaintiff. To make things worse, Mussa Rehani (Pw1) did not testify how he got that information of the existence of the Mosque Committee and that the Committee owned the suit land prior to 1991. He did not venture to tell the court whether his office has documentation to that effect. If Mussa Rehani (Pw1) was told by members of that Mosque Committee or his predecessor in office because at that time he was not the plaintiff’s secretary, then his evidence is hearsay, it cannot be relied upon to prove the case. Worse still, it is not disputed that the Mosque Committee had no legal personality as there is no evidence that it was a legal entity. Consequently, since the Mosque Committee was not a legal person, it was not capable of owning landed property. For the sake of argument, let us agree that before the plaintiff acquired interest in the suit land, which was the property of Mosque Committee as Mussa Rehani (Pw1) testified during Cross-examination. Does that establish the plaintiff’s title to the disputed land? The quick reply to the question is 14 negative. It should not escape our mind that the latin maxim that is “nemo dat quod non-habet” which implies that a transferee cannot have a better title than the transferor. Mussa Rehani (Pw1) did not establish how the Mosque Committee obtained title. Mussa Rehani (Pw1)’s evidence and the plaintiff’s pleadings do not depict how and when the Mosque Committee was established. It is also nowhere stated as to who appointed the Mosque Committee and how was its regime changed. It might have been a self- imposed committee fostering its agenda. Thus, since the Mosque Committee’s title to the disputed land is not established, the Committee would not have transferred a better title to the plaintiff. It is my considered view that the plaintiff did not establish how she acquired title on the disputed land and to do so on the balance of probability. It has been pointed out above that, the burden of prove is not static it shifts from the plaintiff to the defendant after the plaintiff has discharged his duty. Much as the plaintiff has not proved how she obtained title; I feel obliged to consider whether the defendants proved that the plaintiff had no legal title to the suit land. Elia Anathory Kamihanda, Senior land officer (Dw1), deposed that the second defendant did wrongly issue the certificate of title to the plaintiff. He contended that according to the survey conducted in 1955, Plot No. 25 had 15 a madrassa and Plot No. 26 had a mosque. Thus, the plaintiff who was registered in 1991 would not have been the owner of the Plots. He testified further in 1955 the Plots were owned by Muslim Society which was overseeing the Muslim property at that time. He added that survey plan was drawn and kept in the registry of land planning and survey. He tendered a certified copy of the survey plan as exhibit D1 and two extracts from exhibit D1, which were all marked collectively as exhibit D1. He contended that the survey conducted in 1955 was registered as 9181. He averred that the plots were under the Board of Registered trustees of E.A Muslim Society until 1969, when they were vested onto BAKWATA by the Government Notice. He contended that there was no record to show that Masjid Al-Azhal Mosque Committee owned the suit land. Elia Anthony Kamihanda (Dw1)’s evidence that, the disputed land was BAKWATA’S property was supported by the evidence of Omary Mnerura Mpime (Dw2) who is by all standards, a very credible witness. He was 90 years old still with a sharp memory. He witnessed and partook in number of activities involving the disputed plots of land. He deposed that first mosque was built in 1946 to 47. It was built of trees and thatched with grasses. He added that his father assisted by Abdallah Rashid Rweha and Ally Kasasa pulled down that mosque and built a new one with bricks and thatched with 16 iron sheet. He deposed that the land was donated by Mohamed Machengura and Ibrahim Amran. Omary Mnerura Mpime (Dw2)’s evidence differed with that Mussa Rehani (Pw1) as to who donated land. Between the two, I find Omary Mnenura Mpima (Dw2) more credible than Mussa Rehani (Pw1). Omary Mnenura Mpima (Dw2) witnessed everything, but Mussa Rehani (Pw1)’s testimony was based on what he heard without disclosing where and how he acquired the information. Omary Mnenura Mpima (Dw2) deposed that at time, Iman was Mohamed Kibwa and he was among persons who headed the Madrasa. He deposed that the East African Muslim Society was the institute supervising Islam in the Region, that is Tanganyika, Kenya and Uganda. In those days there were three sects of Islam and most popular in Babati was Sunnah Wal Jamaa. The other sects were Shia and Islamia. He deposed Muslims in Babati were Sunnah Wal Jamaa as….. He testified that he was chairman of the committee which built the current Mosque and madrasa from 1978 to 1982. He added that he finished his role as a chairman in 1997. He was appointed BATWAKA district council to be chairman of the building Committee. As said at the beginning, Omary Mnenura Mpime (Dw2) was a credible witness. Thus, his evidence is more reliable than that Mussa Rehani (Pw1). He chaired the committee which built the mosque being appointed by the 5th 17 Defendant’s leaders at the district level. Thus, his evidence that the suit land was vested to BAKWATA from 1969 unimpeachable. Omary Mnenura Mpime (Dw2) also testified during cross-examination, that Masjid Al-Azhal and Madrasa filed a case against Habib Seleman (the secretary of BAKWATA), Said Mboto (the Chairperson of BAKWATA District Council) and him. Masjid Al-Azhal and Madrasa lost at the High Court level and before lost the appeal to the Court of Appeal. Much as the nature of dispute is not clear, I find it proved the plaintiff sued the fifth defendant’s district leaders and lost because the plaintiff’s witness admitted during the cross-examination that such a case existed. It was Omary Mnenura Mpime (Dw2)’s testimony, that the plaintiff sued him together with BAKWATA district secretary and chairman. The last witness was Issa Juma (Dw3) who cemented the defence case that, the suit land belonged to BAKWATA. I wish to emphasis that Omary Mnenura (Dw2) was a credible witness and his evidence established not only on the balance of preponderance but also beyond reasonable doubts that the suit land was the property of the Muslim society which was under the East African Muslim Society. He established that the properties of the defunct East African Muslim Society were vested to BAKWATA by Government Notice and that he was appointed by BAKWATA District leaders 18 to chair the committee that built the Morden Mosque and Madrasat. Omary Mnenura (Dw2)’s credible evidence rendered the plaintiff’s witness that it was plaintiff who built the Mosque negatory and valueless. Much as the burden to prove had not shifted from the plaintiff to the Defendants as the plaintiff had not led evidence to discharge her evidential duty, the defendants evidence proved that the 5th Defendant had a lawful title to the disputed land. The defendants’ evidence on how the 5th defendant acquired title is credible and liable. Consequently, I determine the first issue that the plaintiff did not prove that she lawful acquired the suit land. For that reason, the fact that she was the registration owner of the suit land, that was not ipso facto proof of her title. The plaintiff had no title to the suit land. To what reliefs are the parties entitled to? Having found that the plaintiff failed to prove how she acquired title, I hold that the plaintiff is not the lawful owner of the suit land. Consequently, I find that the suit land was wrongly registered in her name. I, therefore, dismiss the plaintiff’s claim with costs. It is ordered accordingly. Dated at Babati, this 8th day of April 2025 19 J. R. Kahyoza Judge Court: Judgment delivered in the presence of Mr. Mwinyi Masoud for the Plaintiff, Mr. Buntuntu SSA for the first, second and third defendants, and Mr. Abdi Ramadhani Isuja for the fifth defendant. Mr. Shedrack (RMA) present. John R. Kahyoza Judge 8.04.2025 20