robert sibora mwita vs said abdallah abdi and others 2020 tzhclandd 38 6 march 2020

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 146 OF 2018 (From the Decision of the District Land and Housing Tribunal of Temeke District at Temeke) ROBERT SIBORA MWITA (Administrator of the Estate of the Late A M IN A ALLY MTILWA............................................. APPELLANT VERSUS SAID ABDALLAH ABDI........................................................... 1st RESPONDENT SALUM A. A B D I.....................................................................2 nd RESPONDENT YAHAYA R A M A D H A N I........................................................3 rd RESPONDENT JUDGMENT K.N. ROBERT, J This appeal has its origin from the decision of the District Land and Housing Tribunal for Temeke in Land Application No. 205 of 2015 where the Appellant, ROBERT SIBORA MWITA, in his capacity as the Administrator of the Estate of the late AMINA ALLY MTILWA, sued the Respondents SAID ABDALLAH ABDI, SALUM A. ABDI and YAHAYA RAMADHANI unsuccessfully on a claim of ownership of a piece of land described as Plot. No. 186 Block 'A1 located at Yombo Vituka area. i Aggrieved by the final decision of the Tribunal the Appellant filed an appeal to this court. A brief background of this matter reveals that Amina Ally Mtilwa who died on 23rd March, 2013 was allocated the suit land by the Government in 1994. The Appellant, the only child of the late Amina Ally Mtilwa was appointed the administrator of the estate of the deceased. The Appellant alleges that in December, 2014 the three Respondents herein unlawfully and without any justifiable cause trespassed in the suit land and decided to reside therein. He made efforts to remove the Respondents from the suit land but they neglected to vacate the suit land. As a result, he filed a case in the District Land and Housing Tribunal for Temeke praying for the following reliefs: A declaration that the disputed land belongs to the Applicant; permanent injunction restraining the Respondents, their agents, heirs, and anyone claiming interest connected to the Respondents from trespassing in the disputed land; vacant possession of the disputed property; eviction order; and costs of the suit. The Respondents on the other hand maintains that they are residing in the suit land legally as it was bought by their brother, Said Abdallah Abdi, from the family of Amina Urembo and Juma Hemed Ndago on 16th of January, 2010. After the alleged purchase, Said Abdallah Abdi constructed a house 2 in the suit land and lived in it. The Respondents maintains further that when Amina Urembo was in ownership of the suit land she constructed a small house therein and lived in it until 1994 when Temeke Municipal Council wrongly granted right of occupancy of the suit land to Amina Aily Mtilwa. Respondents maintain that after a wrongful grant of the suit land to Amina Ally Mtiiwa, Amina Urembo made a follow up to Temeke Municipality and Ministry of Land on the status of the suit land. On 17th August, 2006 Temeke Municipality addressed the Ministry of Land through a letter with Reference No. TMC/MY/6/109 declaring that some plots including the suit land were wrongly granted to other people including Amina Mtilwa and requested the Ministry to follow the prescribed procedures to revoke and to grant the right of occupancy to the mentioned persons in that letter. The Respondents wrote a letter to the Commissioner of Lands on 21 September, 2015 requesting for the status of the suit land, the said letter had not been replied to by the time of filing of this suit. The Respondents prayed that the suit against them be dismissed with costs. The District Land and Housing Tribunal framed one major issue for the trial, that is, who is the lawful owner of the suit premise/property and further that, what reliefs are the parties entitled. 3 The Tribunal found that the evidence adduced by both parties indicated that the suit land was granted by the City Council to the Applicant’s mother since 1994 but the suit land was owned customarily or under deemed right of occupancy by the late Amina Urembo who had her mud house thereat but after the survey process the suit [and was allocated to the late Amina Mtilwa and not to her. Since there was no evidence to indicate that Amina Urembo received compensation over the suit land to terminate her ownership, the Tribunal held that it was not lawful for the City Council to allocate the suit land to Amina Mtilwa hence the Tribunal dismissed the Applicants application with costs. The Appellant now challenges the Tribunal’s decision on three grounds as follows: 1. That the learned trial chairman erred in law and fact to hold that the Appellant is not the lawful owner of the disputed land. 2. That the learned trial Chairman erred in law and fact for failure to analyse the evidence adduced during the hearing. 3. That the learned trail chairman erred in law and fact to hold that the late Amina Mtilwa was wrongly allocated the disputed land by the city council 4 At the hearing of the appeal before this court, the Appellant appeared in person unrepresented while the Respondents were represented by Mr. Mkama, learned counsel. Parties agreed to dispose of the appeal byway of written submissions. Both parties lodged their submissions as scheduled. In his submissions, the Appellant prayed for leave to consolidate the 1st 2nd and 3rd grounds of appeal and argue them together. Arguing on the consolidated grounds of appeal, the Appellant submitted that the trial chairman erred in law and fact for failure to declare that the deceased Amina Mtilwa was the lawful owner of the disputed land, while there was a clear evidence testified by PW1 and documents tendered to prove the ownership of the disputed land i.e exhibit P1 (Letter of offer), Exhibit P4 (letter of Estates administration and death certificates of the late Amina Mtilwa and Exhibit P5(official search report) which was still reading in the name of the late Amina Mtilwa. The Appellant cited section 110 (1) and (2) of the Evidence Act, Cap 6 R.E. 2002 and argued that the Appellant proved the facts pleaded in the application filed in the trial Tribunal to claim a lawful ownership of the suit land by his late mother, Amina Mtilwa who was allocated the suit land since 1994 without revocation by the president as testified by PW4. He submitted 5 the trial Tribunal also admitted in the judgment that the suit land was allocated to the late Amina Mtilwa. Further to that, the Appellant cited section 49(1), (2)(a)(b)(c) of the Land Act, Cap.113 R.E. 2002 and submitted that based on the cited sections, the law empowers the president to revoke the right and interest in land, once revoked all interest in the said land revert to the president. He argued that lack of revocation of the disputed land by the president means the land was still owned by the late Amina Urembo and further that the issue of payment or non-payment of compensation was not relevant in the determination of the Appellant’s rights in the suit land. Even if the deceased Amina Ulembo was not paid compensation the cause of action available for the beneficiaries of the late Amina Ulembo was to claim compensation from the land allocating authority and not to disposes the Appellant of the right of occupancy on the suit land. The Appellant submitted that the land allocating authority {Temeke Municipal Council) was not given the right to be heard as a necessary party by the Tribunal before making the decision of dismissing the application based, on the hearsay evidence from the Respondent’s witnesses. 6 He cited the case of SHAIBU SALIM HOZA VS. HELENA MCHACHA as a Legal representative of Amerina Mhacha (the deceased) Civil Appeal No. 7 of 2012, Court of Appeal of Tanzania at Dsm at page 6 and 7 where it was held that: 'Without the inclusion of Dar es salaam City Council as a party the suit is unmaintainable. That said therefore, we invoke the revisional powers conferred on us under section 4(2) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2002 for which we quash and nullify proceedings and judgments of the two courts below. Having done so, we order for fresh proceedings be initiated by the Respondent in a court/tribunal competent to determine the matter which will enjoin Dar es Salaam City Council as a necessary party/defendant. The Appellant submitted further that there was no evidence of the letter of administration of HEMED NDAGO as administrator of the late Amina Urembo tendered during the trial to prove the validity of the sale agreement of the suit land admitted as exhibit D1. He argued further that the sale agreement was void ab initio because the suit land was still owned by the late Amina Ally Mtilwa and was not revoked by the president. He then prayed for the court to allow the appeal and the decision of the Tribunal and decree be quashed and set aside with costs. 7 In response, the Respondent submitted based on the three grounds of appeal. On the first ground he submitted that, the Trial Chairman did not err in law or fact by holding that Appellant is not a lawful owner of the suit land. He made reference to page 7 and 8 of the impugned judgment of the Tribunal and quoted the following paragraphs from the said judgment: "According to the evidence adduced by both sides, there is no dispute that the suit property was granted by the city councii to the Applicants mother since 1994, but also it is undisputable fact that the suit plot was owned customarily or under deemed right of occupancy by the late AMINA UREMBO who had her mud house thereat but after the survey process, the suit plot was allocated to the late AMINA MTILWA" He further quoted the Trial Chairman as follows: “According to the evidence, the late Amina Mtilwa was allocated the suit plot in 1994, but the question is, does the granting of the letter of offer to late AMINAL MTILWA in 1994 terminated the customary ownership of the late AMINA UREMBO over the suit plot? It was held in the case of James Ibambasi vs Joseph Siriya Mosha (1999)TLR 364 that customary title to land can only be 8 extinguished by surrender, signified by offer of acceptance of compensation”. Referring to the quotations above, he argued that the finding of the trial Tribunal was based on the requirements of the law that, if the procedure of compensation is not followed then the title cannot pass from the one who owned it customarily to the other person. He argued that since AMINA UREMBO was not compensated a mere act of survey cannot extinguish her customary title over the suit land. The Respondent made reference to section 3(1 )(g) of the Land Act, Cap.113 R.E. 2018 and quoted a passage from the case of Rajabu Joka vs Emmanuel A. Kulola, Land Appeal No. 24/2015(High Court of Tanzania, Land Division at Dar es salaam, (unreported) which reads: “since there is no proof that Mr. Manji was adequately compensated then the title did not lawful (sic) pass over to the Respondent” Based on the cited law and quotation above, he submitted that the ownership of the disputed land by Amina UREMBO did not pass to AMINA MTILWA and therefore it is still owned by AMINA UREMBO. He argued that that reason gave power to JUMA HEMED NDAGO, the Administrator 9 of the estate of the late AMINA UREMBO to dispose the plot to the Respondents. On the second ground, the Respondent simply replied that the trial chairman analyzed well the whole evidence adduced by the Appellant and his witnesses. That the judgment recorded all that the Appellant testified. On the last ground, the Respondent submitted that the trial chairman did not err by holding that the city council wrongly allocated suit land to AMINA MTILWA. He argued that it was testified in the trial Tribunal by the Respondent that the City Council after discovering some mistakes in the allocation process of the suit land wrote a letter to the Land Commissioner requesting him to revoke the said letter of offer to AMINA MTILWA and allocate it to AMINA UREMBO as evidenced by exhibit D5 and D6 respectively. The process went on until 19th June, 2019 when the Commissioner of Lands wrote a letter to the Temeke Municipal confirming the revocation and the new allocation to JUMA HEMED NDAGO, the Administrator of estate of the late AMINA UREMBO. Arguing on the issue of failure to call Temeke Municipal Council as a necessary party, he submitted that it was the duty of the Appellant to call her and not the Tribunal. However, he noted that there was enough documentary evidence to the satisfaction of the Tribunal which made it unnecessary to call the Temeke Municipal. At the end, he submitted that this appeal has no merit and it should be dismissed accordingly. I have carefully considered submissions of the parties, I will now deliberate on the parties contending submissions on the grounds of appeal. The submissions were also stretched on issues not covered in the trial Tribunal. Such issues will not be addressed. Starting with the first and third grounds of appeal, the Appellant is faulting the trial Tribunal’s holding that the Appellant is not the lawful owner of the disputed land and that the late Amina Mtilwa was wrongly allocated the disputed land by the city council. As rightly submitted by the Respondent, the finding of the Tribunal on this issue was based on the requirement of the law that, if full compensation is not paid to the person who occupies land under customary law the title cannot pass from the one who owned the land customarily to the other person. The Tribunal found that there was no dispute that the suit property was granted by the city council to the Appellants mother since 1994, but also it was undisputable fact that the suit plot was owned customarily or under the deemed right of occupancy by the late AMINA UREMBO. However, the question raised by the court was whether the granting of the letter of offer to the Applicant’s late mother, AMINAL MTILWA, in 1994 terminated the customary ownership of the late AMINA UREMBO over the suit plot. Since there was no evidence indicating that Amina Urembo was compensated as required by the law, this court is of the firm view that the Tribunal was right to hold that the title to land did not pass from Amina Urembo to the Appellant’s mother and therefore it can be said lawfully that the Appellant had no right of occupancy over the suit. The cases cited by the Respondent provides more clarity to this. See James Ibambasi vs Joseph Siriya Mosha (1999) TLR 364 and Rajabu Joka vs Emmanuel A. Kulola, Land Appeal No. 24/2015 (High Court of Tanzania, Land Division at Dar es salaam, (unreported) The argument by the Appellant that even if the deceased Amina Urembo was not paid compensation the cause of action available for the beneficiaries of the late Amina Urembo was to claim compensation from the land allocating authority and not to dispossess the Appellant of the right of occupancy on the suit land does not speak to the requirement of the law. This court finds that since the customary right of occupancy on the suit land existed prior to the Respondent’s granted right of occupancy and since it is 12 the position of the law that the customary right of occupancy cannot be extinguished by the granted right of occupancy unless compensation is fully paid, Respondents’ right over the suit land is still in existence. In the case of Metthuselah Paul Nvagwaswa versus Christopher Mbote Nvirabu (1985) TLR 103 it was held by the Court of Appeal of Tanzania that: “A holder of o right of occupancy under native or custom does not automatically become a squatter when an area is declared planning area”. Similarly, in the case of Attorney General versus Lohav Akonaav and Joseph Lohav (1995)TLR 80 the Court of Appeal held that: “Customary or deemed right in land, though by their nature are nothing but rights to occupy and use the land, are nevertheless real property protected by the provisions of Article 24 of the Constitution of the United Republic of Tanzania and their deprivation of a customary or deemed right of occupancy without fair compensation is prohibited by the constitution As part of the conditions for granting a right of occupancy involving land which is occupied by persons under customary law, Section 34 (3)(b)(iv) of the Land Act, Cap.113 R.E. 2002 requires that those customary rights shall 13 be recognized and those persons so occupying the land shall be moved or relocated only in accordance with due process and principles of fair administration being given, among others, prompt payment of full compensation for loss of any interests in land and any other losses that are incurred due to any move or any other interference with their occupation or use of land. I thus find no merit in the first and third ground of appeal. On the second ground of appeal, the Appellant is faulting the Tribunal for failure to analyse the evidence adduced during the hearing. I will not be detained by this ground. In the absence of specific analytical failures by the Tribunal this Court agrees with the Respondent that the trial chairman analyzed well the whole evidence adduced by the Appellant and his witnesses and therefore we find no merit on this ground. In the light of the foregoing, I uphold the decision of the District Land and Housing Tribunal and dismiss the appeal with costs. Dated at Dar es Salaam this 06th day of March, 2020. /JUt)GE 6/03/2020 14