GUSSA JUDGMENT

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY)

AT MWANZA LAND CASE NO. 14 OF 2021 RICHARD GUSSA……………………………………………………………PLAINTIFF

VERSUS CHARLES MELICK SAMBO (The Administrator of the Estate of the Late Melick Sambo)………………………..1ST DEFENDANT MKONO NTULYA SAMBO……………………………………………2ND DEFENDANT MAGU DISTRICT COUNCIL…………………………………………3RD DEFENDANT THE ATTORNEY GENERAL…………………………………………..4TH DEFENDANT

JUDGMENT 17th October & 29th November, 2024 KAMANA, J. In this suit, I am invited to determine the following issues: 1. Who is the rightful owner of the disputed land.

2. Whether the third defendant was justified in allocating the disputed land to the first defendant.

3. Whether the plaintiff is entitled to compensation for any improvement done in the disputed land.

4. Reliefs the parties are entitled to. Briefly, according to the plaint, on 20th August, 1984, Richard Gussa, the plaintiff purchased the disputed land from Amina 1 Abdulrahman for TZS 45,000/-. The disputed land is located in Ndagalu within the Magu District in the Mwanza Region. At the time of the purchase, the disputed land had the house on it. In 2017, he found the house in his plot demolished and upon inquiry, he found the disputed land to have been allocated by the Magu District Council, 3rd defendant, to Melick Sambo in 1983. Given that the plaintiff filed this suit claiming the following reliefs: 1. Declaration that he owned a parcel of land within Plot No. 10 Block “B” Magu Town and which was unlawfully been given to the 1st defendant.

2. Declaration that the allocation of the suit premises to the 1st defendant was null and void for want of his consent.

3. He should be compensated for the exhausted improvements found on the disputed plot before his plot being allocated to the 1st defendant.

4. In alternative to prayer 3, a survey be reconducted with a view to dividing the disputed land between him and the 1st defendant.

5. Costs of the suit.

6. Any other order as the court may deem just. 2 In proving his case, the plaintiff testified as PW1. Led by Mr. Duttu Chebwa, learned Counsel. PW1 testified that he purchased the land in dispute on 20th August, 1984 from Amina Abdulrahman who was the legal owner of the plot since 1972. He asserted that when he purchased the land there was a house with two bedrooms and a sitting room. He tendered the sale agreement which was admitted as Exh.P1. He evidenced that after the said purchase, he initiated the process of surveying the plot by writing two letters to the third defendant, which were not responded to. He testified to having followed up with the third defendant, where he was told that the requested survey could not be conducted as there was a plan to construct a road on the disputed land and that he should wait for compensation. PW1 went on to testify that due to his businesses, he relocated to Dar es Salaam and left the disputed land under the caretaker of Yassin Mashilingi. The witness testified that in September, 2017 when traveling to Tarime, he noticed that his house on the disputed land was demolished. On his way back, he stopped over at the disputed land to ascertain what happened to his house and plot. His efforts to find the caretaker proved futile. Given that, he raised a complaint to Ally Kisasi, the Street Chairman. 3 PW1 testified that the Street Chairman

called neighbours and other local leaders who went with him to the disputed land. He evidenced that upon their arrival at the disputed land, they found that his house was demolished and there were rubbles. Having found that, the Street Chairman convened a meeting in which it was unanimously agreed that PW1’s house was demolished. He evidenced that he was informed by neighbours that his house was demolished by the 1st defendant. The minutes of the said meeting were tendered by PW1 and admitted as Exh.P2. PW1 testified that after the said meeting, he started to pursue his rights and in the said course, the Assistant Commissioner for Lands for Mwanza Region instructed the Magu District Council to investigate the matter. He evidenced that the Magu District Council wrote a letter to the Assistant Commissioner informing him that there was an indication that his house was on the disputed land. The said letter was admitted as Exh.P3. Testifying on the contents of the letter, PW3 evidenced that in the said letter the Council informed the Assistant Commissioner that it would halt the process of issuing the 1st defendant with a certificate of occupancy. Further, the 1st plaintiff was advised to compensate the plaintiff. 4 Ally Kisasi, the Street Chairman, testified as PW2. In his evidence, the witness confirmed to have received the complaint from PW1. Further, the witness testified to

call local leaders and neighbours and visit the disputed land. PW2 testified that he did not know that PW1 owned the house on the disputed land but the local leaders confirmed that PW1 had the house on the disputed land. Fabian Mnabwa was PW3. In his evidence, he testified that he was the one who demolished the house on the disputed land after being hired by the 1st defendant. He evidenced that the demolition took place on 10th January, 2015 and the 1st defendant told him that he purchased the house from PW1. The witness testified to know PW1 since 2015. PW4 was Fatuma Abdallah. In her evidence, she testified that she was living with her parents in the demolished house since 1970. According to her, in 1984, the landlady Amina Abdallah introduced them to PW1 as their landlord after she sold the house to him. She evidenced that soon thereafter, PW1 asked them to relocate as he wanted to use his house. In defence, the 1st defendant Charles Melick Sambo (DW1) testified that he was the son of the late Melick Sambo whose land was surveyed in 1978 and allocated to him in 1983. The witness tendered a 5 copy of the offer letter issued by the Land Division on 10th January, 1983 which was admitted as Exh.P1. He testified that he is the administrator of the estate of the late Melick Sambo. He evidenced that he was born in 1953 and found his father living on the disputed land and with no

dispute. DW1 evidenced that his late father left a house with two rooms. He averred that after his death the house was dilapidated and they built another house that had quarters for rent. He categorically denied demolishing the house that PW1 alleged to be his. DW1 evidenced that due to family disputes, in 2016 they decided to sell the land in dispute which is Plot No. 10 Block “B” Magu Town to Mkono Ntulya Sambo, the second defendant. Mohamed Juma (DW2) testified that the disputed land was owned by Melick Sambo who he knew since his childhood. He testified that on the disputed land there was a house and behind it a quarter. Kidega Ntulya Sambo (DW3) testified that the late Melick Sambo was his paternal uncle and he used to visit the disputed land which was owned by his uncle. He evidenced that the late Melick Sambo acquired the disputed area in 1967. At that time, the area was about two acres. He averred in 1978, the residents of the said area were asked to register for the survey of their pieces of land. He testified that following the call, his father advised his uncle to sell part of his land and he sold 6 part of his. He evidenced that the survey was conducted in 1978 and the land was formally allocated to his uncle in 1983. Mkono Ntulya Sambo, the 2nd defendant, testified as DW4. In his evidence, the witness testified that he purchased the disputed land from the 1st

defendant who was authorized by his family members. He evidenced that on the disputed land, there was one house and three mud huts. The witness tendered a copy of an application form for the right of occupancy filled out by PW1 and the sale agreement of the disputed land which were admitted as Exh.DE 2(1) and 2(2) respectively. DW4 went on to testify that he rehabilitated the house by roofing it with new iron sheets. Concerning the mud huts, he evidenced that he demolished them and erected a house. The witness testified that PW1 approached him and alleged that he had demolished the house he purchased in 1984 and hence demanded compensation. He averred that when he refused, PW1 complained to various authorities which concluded that he had never owned the house on the disputed land. DW5 was Ngeleja Nicodemo. In his evidence in support of the 2nd defendant, he testified that the land in dispute was owned by the late Melick Sambo. He evidenced that the 2nd defendant bought the land from the first defendant and he witnessed the selling. 7 Led by Mr. John Ngalula, learned State Attorney for the 3rd and 4th defendants, Priscus Moshi (DW5), the Land Officer in the 3rd defendant, testified that after receiving PW1’s complaint, he and the Land Surveyor visited the disputed land. He evidenced that he found one house. Upon inquiring the neighbours, he was told that the house was built by

the 1st defendant and completed by the 2nd defendant. He testified that after further investigation, he found that PW1 had no house on the said land. The witness evidenced that he went to the disputed land for the second time in the company of local leaders and elders to ascertain whether PW1 had the house on the land. He evidenced that those local leaders told him that the house that was on the plot was built by the 1 st defendant. He asserted that one of the elders told him that in the past there was a mud house that was ruined by floods. Concerning ownership of the disputed property, DW6 testified that the late Melick Sambo after filing his application for the right of occupancy of the disputed land was issued with an invoice dated 10th January, 1982. He further testified that the late Melick Sambo was issued with an offer letter for Plot No. 10 Block “B” Magu Town on 10th January, 1983. The said invoice and offer letter were admitted as Exh.D3. 8 On how PW1’s complaints were handled, DW6 testified that on 6th February, 2018 he wrote a letter informing PW1 that the land in question was allocated to Melick Sambo on 10th January, 1983. He evidenced that through the said letter, PW1 was informed that since the survey and allocation were conducted and done respectively in 1978 and 1983, he could not claim to be the owner of the disputed land considering that he purchased the

same in 1984. The letter was admitted as Exh.DE4. Charles Malumbo, Assistant Land Surveyor in the third defendant, testified as DW7. He testified that Plot No. 10 Block “B” Magu Town was surveyed in 1978 and empty with no structure. Having heard the evidence adduced by the parties, this being a civil case, a party that alleged the existence of a certain fact must prove the same on the balance of probability. This principle has been enunciated in numerous decisions including the case of Barelia Karangirangi v. Asteria Nyalwamba, Civil Appeal No. 237 2017, CAT (Unreported) where it was held thus: ‘At this juncture, we think it is pertinent to state the principle governing proof of case in civil suits. The general rule is that he who alleges must prove.’ In highlighting the source of the said principle, the Court went on to state that: 9 ‘…the rule finds a backing from sections 110 and 111 of the law of Evidence Act, [Cap 6 RE. 2002] which among other things state: 110. Whoever desires any court to give judgment as to any legal right or liability depends on existence of facts which he asserts must prove that those facts exist.

111. The burden of proof in suits lies on that person who would fail if no evidence at all were given on either side.’ It was further held in the same decision that: ‘It is similarly, that in civil proceedings, the party with legal burden bears the evidential burden, and the standard in each case is on the balance of probabilities.’ Having equipped myself with the guiding principle, I now proceed to determine the controversy through the issues raised by this court. Starting with the first issue as to who is the rightful owner of the disputed property, PW1 in his evidence testified that he bought the disputed land with a house in 1984 from Amina Abdulrahman. His evidence was supported by Fatuma Abdallah (PW4) who testified that PW1 bought the disputed plot with a house in 1984 in which she and his parents were living. 10 On his part, DW1 evidenced that the disputed land was owned by his father. He evidenced that the same was surveyed and allocated to his father in 1978 and 1983 respectively. His evidence was supported by DW6. Having considered the evidence, I am of the view that the plaintiff (PW1) has failed to prove on the balance of probability that he is a lawful owner of the disputed property. This is because, as per his testimony which was supported by PW4’s evidence and Exh.P1, he purchased the disputed land in 1984. This means by the time he was purchasing the disputed

land, the same had been already surveyed in 1978 and allocated to Melick Charles in 1983. This fact is proved not only by DW1 but also by DW6 through Exh.D3. According to Exh.D3 which was admitted without objection, on 10th January, 1982, the late Melick Sambo was issued with an invoice for payments of fees required for the allocation of land. Further, Exh.D3 shows that on 10th January, 1983, the late Melick Sambo was issued with an offer letter for Plot No. 10 Block “B” Magu Town by the Ministry responsible for lands. It is an established principle that nemo dat quod non habet. This entails that a person with no title to pass cannot pass the same to another person. Amina Abdulrahman when selling the disputed property 11 to the plaintiff had no title to pass to him as she had no title over the land in dispute. Given that, the rightful owner of the disputed land is Melick Sambo who was allocated the land in 1983. Coming to the second issue as to whether the 3rd defendant was justified in allocating the disputed land to the 1st defendant, it is my considered opinion that since the late Melick Sambo owned the land before the survey that was conducted in 1978, the 3rd defendant was justified to allocate the same to the late Melick Sambo who is now represented by the 1st defendant. In his evidence, the plaintiff did not dispute the survey that was conducted in 1978 and the

allocation that was done in 1983. In that case, it is very unreasonable to question the allocation of the disputed land in 1983 when he had yet to purchase the same. Common sense dictates that Amina Abdulrahman was better placed to challenge the survey and the allocation if she were the owner of the disputed land. The plaintiff did not provide any evidence to show that Amina Abdulrahman before the survey and allocation challenged the ownership of the disputed land by Melick Sambo. In my view, there are two issues here. Either, the plaintiff did not purchase the land from Amina Abdulrahman in 1984 and his case is a fabricated one or he was conned by Amina Abdulrahman. 12 Further, the plaintiff did not field any of the witnesses to the sale agreement to testify on the existence of the sale agreement. He did not explain with cogent reasons his failure to field them. That being the case, I hold that the 3rd defendant was justified to allocate the disputed land to Melick Charles who is now represented by the 1st defendant. Regarding the third issue as to whether the plaintiff is entitled to compensation for any improvement done in the disputed land, it is my considered view that the plaintiff is not entitled to any compensation for improvements done in the disputed land. This is because when I determined the first issue, it was my view that the late Melick Sambo was the lawful owner

of the disputed land. That being the case, there was no improvement on the disputed land which relates to Amina Abdulrahman. If there were such improvements, the one capable of claiming the same was Amina Abdulrahman. She could claim the same during the survey in 1978 or in 1983 during the allocation to Melick Sambo. Since there is no evidence that there was a land dispute between the late Melick Sambo and Amina Abdulrahman, it is very unreasonable for the plaintiff to claim compensation for improvements done on the disputed land. 13 Further, in his evidence, the plaintiff testified that the Street Chairman and local leaders concluded that in the disputed land there was a house owned by him. To support his evidence, he tendered the minutes of the meeting (Exh.P2). Concerning Exh.P2, in my view, none of the persons who resolved that the plaintiff had the house on the disputed plot, other than himself and PW2, testified in support of his case. PW2 testified categorically to have no knowledge that PW1 had the house on the disputed property. Since none of them appeared to testify, I find Exh.P2 insufficient to establish that PW1 had the house on the disputed property. As regards Exh.P3 which is a letter written by DW6 on behalf of the 3rd defendant, the assertion that there was a house on the said disputed land owned by the plaintiff has no merit. This is because the author of the

letter testified under oath as DW6 in support of the 3rd defendant’s case which in effect supports the 1st defendant’s case that the plaintiff did not own the house on the disputed land. In his evidence, he testified that after his investigation, he found that PW1 had never owned the house on the disputed land. In my view, primary evidence supersedes secondary evidence when it comes to reliability. This is because secondary evidence is prone to interpretations and is influenced by individual or organizational perspectives. That being 14 the case, in the conflicting evidence between DW6 and Exh.P3 he wrote, I give no weight to the evidence contained in Exh.P3. Concerning the evidence adduced by PW4 that in 1984 the plaintiff purchased the disputed land and the house she was living with her parents, I find the evidence so wanting. One, apart from claiming to have been told by Amina Abdulrahman that their new landlord is the plaintiff, PW4 was not part of the witnesses who witnessed the sale agreement. Two, since it is on record that the land in dispute was surveyed in 1978 when owned by Melick Charles and allocated to him in 1983, her evidence holds no water as at that time the land in question was in the ownership of Melick Sambo. Assuming that the house on the disputed land was owned by Amina Abdulrahman, she was the one to claim compensation for improvements done on the land.

If she decided to sell her house on the disputed land, she was expected to inform the plaintiff that there was a dispute over the ownership of the land so that the plaintiff could handle the same. In his evidence, the plaintiff evidenced that he was not told that there was a dispute. Presumably, if the plaintiff really purchased the disputed land with a house and was not informed of the dispute as to ownership of the land, Amina Abdulrahman knew in the first place that she had no title to 15 the land. Otherwise, it does not occur in my mind for a lawful owner of the land in dispute to sell the same without disclosing the dispute. Concerning the evidence of Fabian Mnambwa (PW3) that he was engaged by DW1 to demolish the house owned by the plaintiff, for the reasons I have already alluded to, I find the same so wanting. Briefly, the plaintiff has failed to establish that he is a lawful owner of the disputed property. Likewise, he has failed to prove that he had a house on the disputed land. Given that, PW3’s evidence that he demolished the house belonged to the plaintiff after being instructed by the 1st defendant is wanting for the reasons I have stated. Based on the reasons I have alluded to, the plaintiff is not entitled to compensation for improvements made on the disputed land. In the event, I dismiss the suit with costs. Order accordingly. Right to Appeal Explained DATED at MWANZA this 29th November, 2024.

KS KAMANA

JUDGE 16