LAND APPEAL NO 15 of 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB - REGISTRY) AT ARUSHA LAND APPEAL NO.15 OF 2023 (C/FApplication No 278of2016, District Land and Housing Tribunal for Arusha at Arusha) RICHARD GERALD RAMBO........................................ APPELLANT VERSUS ATIBA AMALILE (Legal representative of ROSE TINDII AMALILE)....................................... RESPONDENT JUDGMENT 13th May & 18th June 2024 KIWONDE, J. The appellant, one Richard Gerald Rambo, being dissatisfied with the decision of the District Land and Housing Tribunal for Arusha in Application No.278 of 2016, has appealed to this court basing on four (4) grounds namely: - 1) That the trial tribunal grossly erred in law and fact to hold that the property in dispute belongs to the respondent while there is no enough evidence on record to support that finding. Page 1 of 7 2) That the trial court erred in law and in fact to deny the appellant's application for amendment of the written statement of defence. 3) That the trial court grossly erred in law and fact for its deliberate illegal decision to ignore the appellant's title deed over the disputed property, hence, failed to answer the first issue properly and justiciable (sic). 4) In the alternative to the above grounds, the purported compensation awarded by the trial court is extremely low and was issued without justification. On 7th March 2024, it was agreed by the counsels and ordered by the court that the appeal be argued by way of filling of written submissions. Both parties filed them. From the pleadings, written submissions and the records of the trial tribunal, the main issue for determination by this court is whether the appeal finds merits or otherwise. I have thoroughly gone through the written submissions and the trial tribunal proceedings and judgment. The parties cited several case laws for reference which I appreciate but I will not repeat them here. I now turn to consider them in response to the issue raised above. Page 2 of 7 In my discussion, I will determine the first and third grounds of appeal together for the appellant submitted on them jointly. The appellant's counsel argued that there was no sufficient evidence to prove that the suit property belongs to the respondent. He said there were bare words of mouth. Also, the counsel submitted that it is not proved if the purchase price by Wolfgang Flemming was refunded after the deceased Rose Tindii Amalile sold the suit property. He said the deceased had no more interest in the sold property. The counsel for the appellant argued that in law, he who alleges must prove. He was of the view that the trial tribunal wrongly held that the suit property belongs to the respondent. Apart from that, the counsel for the appellant argued that the appellant was in occupation of the suit property for over 22 years and processed the application to the relevant authorities and became the lawful owner of Plot No. 474 Block 'GG'. As per exhibit D5. Yet, the trial tribunal deliberately ignored the title deed of the appellant over the suit property. The counsel cited the case of Amina Maiilid Ambali and 3 others Versus Ramadhani Juma, Civil Appeal No. 35 of 2019, the decision of the Court of Appeal of Tanzania in which it was held that where there are two persons with competing interests in the landed property, the one Page 3 of 7 with certificate of title will be taken as lawful owner unless it is proved that the document was not lawfully obtained. However, the evidence on record indicates clearly that the appellant was just an invitee to stay in the suit property. So, even if he has stayed for over 22 years, this does not justify his adverse possession of the suit property. He was there to safeguard the house which Wolfgang Flemming left with him. In Maigu E. M. Magenda versus Arbogast Maugo Magenda, Civil Appeal No. 218 of 2017 [2018] TZCA 214 (5th October 2018) TanzLii, the Court of Appeal of Tanzania categorically stated that an invitee to the land does not acquire it by adverse possession for continued use or stay on the land. The application of the doctrine of adverse possession of land is recognized where the person uses or stays or occupies land in dispute for 12 or more years without notice that it belongs to another person and that there is an acquiescence by the owner. The appellant, while the case was pending before the trial tribunal, managed to obtain the certificate of occupancy issued to him in 2017. This is because Land Application No. 278 of 2016 was not yet determined. This proves that the appellant fraudulently and knowingly, processed and obtained the said certificate of title over the suit property. Page 4 of 7 record shows that the chairperson ordered compensation to the appellant at the tune of TZS 30, 000, 000/= for keeping the house. But there was no such agreement with the respondent. The appellant was employed by Wolfgang for the purpose of keeping the house and he said he claimed from his employer TZS 38, 000, 000/=. In my view, this cannot be paid by the respondent. The appellant has to claim it from his employer. Therefore, it is rightly argued that the order of compensation was given without justification, the relief was not sought for nor pleaded. The order of compensation is thus, revised and set aside. Consequently, the appeal is found without merits. It is hereby dismissed with cost. Order accordingly. 18/06/2024 Page 7 of 7