Land Case Case No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND APPEAL CASE NO. 12479 OF 2024 (Arising front the Judgment and Decree of the District Land and Housing Tribunal for Ubungo District at Luguruni in Land Application No 144 of 2020) ROMAN SWAI ............ APPELLANT VERSUS WIMANA DEOGRATIUS.......................................... RESPONDENT JUDGMENT Date of last Order: 30/09/2024 Date of Judgment: 21/10/2024 LALTAIKA J. The Appellant herein ROMAN SWAI is dissatisfied with the decision of the District Land and Housing Tribunal for Ubungo at Luguruni (the DLHT) in Land Application No. 144 of 2020. He has appealed to this Court by way of a Memorandum of Appeal containing the following grounds: Page 1 of 21 When the appeal was called on for mention on the 9th day of September 2024, the Appellant appeared through Mr. Selemani Matauka, learned Advocate. The Respondent, on the other hand, enjoyed the legal services of appeared through Ms. Modesta Menard, learned Advocate, whose brief of the day she entrusted to her learned brother Mr. Matuka. Parties opted for hearing by way of written submissions. With a nod of approval from this Court the following schedule was ordered: Appellant's written submissions to be filed on or before 23/09/2024, Respondent's reply to be filed on or before 07/10/2024, Rejoinder if any 15/10/2024, Mention for necessary orders to ascertain compliance of the schedule and schedule for Judgment 15/10/2024 at 10:00 I take this opportunity to register my commendations to the learned Advocates for their commitment and spotless compliance to the scheduled order. The next part of this judgment is a summary of rival submissions, my analysis and the verdict. Mr. Mtaki, Counsel for the Appellant, submitted that dispute is cantered around the ownership of land identified as Title No. 35856, Farm No. 2026, located in Mbezi Temboni, Saranga Ward, Kimara "B" area, Ubungo Municipality, Dar Es Salaam. According to Mr. Mtaki, the Page 2 of 21 Respondent, in paragraphs 3 and 5 of the Application, claimed ownership of the land, stating that it had been in the custody of his guardian, Julie Haliye, and alleged that the Appellant had trespassed on the land in 2019, causing damage to cultivated crops. In response, Mr. Mtaki continued, the Appellant filed a written statement of defence along with a counterclaim, where he denied the allegations of trespass and asserted that he was the rightful owner of the land. The Appellant claimed that he had lawfully purchased the land on November 18, 2019, for Tshs 4 million from Arcado Dennis Ntagazwa through a written sale agreement. He noted that the land was unsurveyed at the time of purchase and had no crops on it. Furthermore, Mr. Mtaki averred, the Appellant disputed the existence of Farm No. 2026 with Title No. 35856 as claimed by the Respondent. In. his counterclaim, Counsel narrated, the Appellant reiterated his ownership of the land and expressed his intention to use it for business activities under his company, ROMALU Microfinance Company Limited. He also emphasized that the land was purchased from Arcado Denis Ntagazwa, the Respondent's father, and argued that the Respondent, if truly the rightful owner, could have intervened to stop the sale. As a result, the Page 3 of 21 Appellant sought a declaration of ownership, general damages of Tshs 70,000,000, and legal costs, among other remedies. Significantly, Mr. Mtaki pointed out, the Respondent did not file a written statement of defence to challenge the Appellants counter-claim. Despite this, the trial judgment was rendered in favor of the Respondent, prompting the Appellant to lodge this appeal, which was based on the grounds set out in the Memorandum of Appeal. Mr. Mtaki indicated that the Memorandum of Appeal contained 15 grounds. However, he proposed to abandon ground 14 and sought to consolidate several other grounds for the purpose of argument: ground 1 was to be argued together with grounds 10 and 15; ground 2 would be argued alongside grounds 3 and 5; ground 4 would be combined with ground 6; and grounds 8 and 9 would be addressed together. The remaining grounds were to be argued individually. Addressing grounds 1, 10, and 15, Mr. Mtaki argued that the Respondent's failure to file a written statement of defence to the Appellant's counterclaim amounted to an admission of the counter-claim's contents. He cited the record, noting that on page 2 of the impugned judgment, the trial tribunal had acknowledged the Appellant's filing of a written statement of defence with a counterclaim. He also pointed to page Page 4 of 21 16 of the judgment, where the tribunal chairperson explicitly stated that the Respondent had not responded to the counterclaim, which legally constituted an admission. Based on this, Mr. Mtaki contended that the trial tribunal should have entered a default judgment in favour of the Appellant pursuant to Order VIII Rule 9(2) of the Civil Procedure Code, Cap 33 R.E. 2019. He further referenced decisions from the Court of Appeal of Tanzania, including Anna Aiphonce Kasembe vs Dora. Kawawa Fusi 8? Others (Civil Appeal No. 56 of 2021) [20231 TZCA 17783 (31 October 2023) which confirmed that failure to file a written statement of defence to a counter­ claim results in the counter-claim being uncontested. Additionally, Mr. Mtaki cited the case of Aitel Tanzania Limited vs Ose Power Solutions P ., ......................................... ViDll where the Court of Appeal held that failure to oppose a counter-claim within the prescribed time warranted a default judgment. Mr. Mtaki emphasized that, although the Appellant had proven his claims in the counterclaim, as evidenced by various exhibits admitted during the trial, the trial tribunal chairperson had failed to fully appreciate and weigh the evidence supporting the counterclaim. He argued that the tribunal's conclusion, which dismissed the Appellant's counterclaim Page 5 of 21 despite acknowledging the Respondents failure to respond, was contradictory and unjust. He urged the court to overturn the trial tribunal's findings and grant the appeal on grounds 1, 10, and 15. Turning to grounds 2r 3f and 5, Mr. Mtaki argued that the trial tribunal had erred in both fact and law by questioning the revocation process carried out by the President without giving the Government an opportunity to be heard, thereby violating the fundamental right to a fair hearing. He asserted that the tribunal's actions exceeded its jurisdiction by raising and relying on the issue of the revocation of the land title during the composition of the judgment without involving the Government, thus prejudicing the Appellant's case. Mr. Mtaki submitted further that the Chairperson had pointed out that under section 45(2), there was no "good cause" to justify why the time of the right of occupancy had lapsed, leading to the title reverting to the President. Furthermore, Counsel averred, the Chairperson believed that the Registrar of Titles had not properly satisfied himself before returning the title to the President. Mr. Mtaki went on to submit that two critical issues that arose from the judgment are: firstly, the Tribunal had raised the issue of the revocation process suo motuduring the judgment's composition, without giving the Page 6 of 21 parties the opportunity to address it. Secondly, neither the Presidents Office nor the Commissioner for Land had been granted the right to be heard, despite the direct involvement of those offices. He reminded the court that it is a well-established principle of law that when a court raises an additional issue during judgment composition, it is obligated to allow the parties to address that issue. Failure to do so, he submitted, rendered the decision a nullity due to the violation of the constitutional right to be heard, as enshrined in Article 13(6)(a) of the Tanzanian Constitution of 1977. He cited the case of Devotha Mathew Minja vs Tito Salmon Haule & Others (Civil Appeal No. 336 of 2022) [2024] TZCA 418 (7 June 2024) where the Court of Appeal reiterated that while courts may frame additional issues under Order XIV Rule 5(1) of the Civil Procedure Code (CPC), they must provide an opportunity for the parties to be heard before making any orders based on those issues. Mr. Mtaki emphasized that since the revocation process was introduced without the parties being heard, justice required that the appellate court nullify the judgment. He further contended that the principles outlined also applied to the second ground of appeal, which involved the Tribunal's failure to include the Office of the Commissioner for Land as a necessary party. This omission, Counsel argued, denied the Commissioner the right Page 7 of 21 to be heard on a matter directly concerning the legality of the revocation process. Mr. Mtaki went on to argue the third ground of appeal, asserting that the Tribunal lacked jurisdiction to entertain the matter because, under sections 6(3) and 7 of the Government Proceedings Act, ail proceedings against the Government must be initiated in the High Court. He cited the Stanslaus Lawrence Kalokola vs Tanzania Building Agency and 2 Others (Land Case 12 of 2020) [2022] TZHC 10825 (22 July 2022) where the Court of Appeal affirmed that the District Land and Housing Tribunal (DLHT) had no jurisdiction over suits involving the Government. Moreover, he added that the respondent's claims involved registered land, and under Tanzanian law, the Registrar of Titles must be joined as a necessary party in such cases. Mr. Mtaki submitted further that, based on the facts presented, since the Appellant held Title Deeds D4 and D5 for the disputed land and it was shown that the Respondent had either an expired or non-existent title deed, the trial tribunal should have declared the Appellant the rightful owner of the land. He prayed for the Honourable Court to allow the appeal on grounds 8 and 9. Page 8 of 21 Regarding ground 11, he contended that the trial tribunal chairperson had erroneously declared the Respondent the rightful owner of the suit land, even though the available evidence on record, namely Exhibits D2 and D3, indicated that the land had been reverted to the President. As such, it was the Government, not the Respondent, that had the cause of action against the Appellant and was entitled to claim ownership. He further noted that the Government was not a party to the trial and therefore had no opportunity to address the issues of revocation and reversion of the land, leading to a lack of evidence to challenge the Appellant's claims. Consequently, due to the Respondent's lack of title, he lacked the locus standi to claim ownership of the land. Concerning ground 12, Mr. Mtaki addressed the trial tribunal chairperson's decision to adjudicate the land dispute without ordering a site visit (locus in quo), despite contradictory evidence about the location of the disputed land. He argued that the Respondent's failure to accurately identify the land location prejudiced the Appellant's case. Referring to the impugned judgment on page 1, he pointed out that the Respondent filed an application alleging that the Appellant had unlawfully trespassed on land given to him by his mother, Julie Haliye, and sought to be declared the rightful owner. Page 9 of 21 However, Counsel averred, based on the Respondent's application and court testimony, it was dear that the Respondent confused multiple pieces of land. In paragraph 5 of the application, the Respondent claimed ownership of the land at Mbezi Temboni without specifying details. Similarly, he asserted ownership of land under the custody of Julie Haliye Ntagazwa, the guardian, but again failed to specify its location. This confusion, Mr. Mtaki asserted, was evident during cross- examination when the Respondent stated that his land was situated between Kimara and Mbezi Temboni. Mr. Mtaki argued that the Respondent's lack of clarity about the land ownership demonstrated that Farm No. 2026, with Title No. 35856, which had reverted to the Government, was distinct from the Appellant's land and located elsewhere. Therefore, it could be inferred that the Respondent's land was separate from the Appellant's and located between Kimara and Mbezi Temboni. These contradictions regarding the land's location resulted in a failure to properly specify the land in question, as required by law. Mr. Mtaki argued further that, on page 17 of the impugned judgment, the trial tribunal chairperson erroneously dismissed the issue of the Respondent's lack of knowledge about the location of the suit land as Page 10 of 21 baseless, assuming that both parties knew they were referring to the same land without providing specific details. He contended that a careful review of the Respondent's testimony and application would have revealed that the Respondent failed to specify the land's location, while the Appellant, in his Written Statement of Defence and counterclaim, clearly identified the location and boundaries of his land, as shown in the purchase agreement. In his view, the evidence presented exceptional circumstances about the land claimed by the Respondent, and although a visit to the locus in quo is not mandatory, the circumstances in this case warranted it. The failure to conduct such a visit undermined the pursuit of justice. He called on this Court to be guided by the principle laid down in Prof. T.L. Maliyamkono v. Wilhelm Sirivester Erio, Civil Appeal No. 93 of 2021 (unreported), where the Court of Appeal of Tanzania emphasized that a visit to the locus in quo is only required in exceptional circumstances. In light of this, he submitted that the failure to visit the site and determine whether both parties were referring to the same land rendered the proceedings and judgment subject to nullification on ground 12 of the appeal. Page 11 of 21 Ms. Medard, Counsel for the Defendant, responded to the submission by Mr. Mtakiby summarizing the case background. She stated that the respondent, who was the applicant in Land Application No. 144/2020, had sued the appellant for trespassing on land titled No. 35856, Farm No. 2026. The appellant had contested this claim, asserting his own ownership. However, after considering the evidence and submissions from both parties, the Tribunal ruled in favour of the respondent, declaring him the rightful owner. Dissatisfied with the decision, the appellant lodged an appeal composed of 15 grounds, which she would proceed to address. On grounds 1, 10, and 15, Ms. Medard argued that the appellant misunderstood the concept of a counterclaim. She asserted that the allegations made in the counterclaim were insufficient, as there was no sale or contractual relationship between the parties to justify the appellant's claim against the respondent. She clarified that the issue at hand was trespass, not damage to the appellant's microfinance business, which the appellant intended to establish on the disputed land. Ms. Medard maintained that the appellant's case and supporting laws were irrelevant, as they did not align with the facts of this case. She further emphasized that the appellant's claim for general damages of TZS Page 12 of 21 70,000,000 was unfounded, as no agreement or business relationship existed between the parties. In response to the appellant's assertion that the respondent had not been given an opportunity to frame issues arising from the counterclaim, Ms. Medard countered that all issues were framed before the Tribunal. She emphasized that one of the issues explicitly addressed whether the respondent suffered loss due to the appellant's claims, which had been answered in the negative. Turning to grounds 2, 3, and 5, Ms. Medard explained that the respondent's land title was still valid when the matter was first instituted in 2020. The appellant, in his defense, had claimed to have purchased unsurveyed land and presented a copy of the sale agreement as evidence. During the hearing, the respondent submitted documentation showing how he acquired the land, including a copy of the original title deed for Farm No. 2026. The appellant had not contested this. However, after the respondent closed his case, the appellant introduced new documents, including an official search and certificates of occupancy, which Ms. Medard dismissed as an afterthought, pointing out that the documents were filed after the respondent had concluded his case. Page 13 of 21 Ms. Medard further argued that the appellant's title deeds, obtained in November 2023, were irrelevant, as they did not correspond to the land in dispute. She criticized the appellant's claim that the land had reverted to government ownership, noting that the official search conducted by the appellant in December 2023 did not even recognize him as the owner of the land. She concluded that involving the government in this matter was unnecessary, as the respondent was still recognized as the former owner of the land according to the official search. Regarding grounds 4 and 6r Ms. Medard rejected the appellant's argument that the Tribunal lacked jurisdiction, stating that jurisdiction had never been challenged by the appellant, whose only defense had been the sale agreement. She reiterated that the title deeds submitted by the appellant were unrelated to the disputed land, as confirmed by an official search showing that the title deed had expired but still listed the respondent as the owner. Ms. Medard contended that the appellant had failed to conduct proper due diligence before purchasing the land and could not now claim a defect in the process. On ground 7, Ms. Medard clarified that the respondent was the rightful owner of the disputed land, with Julie Haliye Ntagazwa merely acting as his guardian, a point the appellant had misunderstood. Page 14 of 21 Regarding grounds 8 and 9, she stated that the title deed was still valid when the matter was instituted, and the expiration did not automatically terminate ownership, as there were legal procedures to be followed. On grounds 11 and 12, Ms. Medard dismissed the appellant's submissions as baseless and afterthoughts, arguing that the status of the title had been expired but valid at the time of the initial suit. She also refuted the appellant's claim about the location of the land, asserting that both parties were familiar with the disputed land, and the appellant could not now contest its identification. Finally, Ms. Medard reiterated that the appellant's reliance on the sale agreement to obtain new titles was misplaced, as the seller lacked the authority to transfer ownership. She concluded by emphasizing that the respondent's title deed had not been nullified, making him the legal owner of the land. She prayed for the dismissal of the appeal with costs, as it lacked merit. Mr. Mtaki, in his rejoinder submission argued that, regarding Grounds 1, 10, and 15, the Respondent had not contested the existence of the counterclaim, having failed to file a Written Statement of Defence (WSD) challenging the counterclaim. Therefore, Mr. Mtaki contended that Page 15 of 21 the Respondent could not now dispute the counterclaim through submissions, as submissions could not substitute a WSD. Reiterating the rest of his submission in Chief, Mr. Mtaki emphasized that the trial tribunal's judgment was flawed for failing to include the government in the hearing. This omission, he argued, infringed the government's right to a fair hearing. He reiterated the importance of including the Registrar of Titles in all suits involving registered land. I have dispassionately considered the rival submissions in the light of the grounds of appeal. I have also thoroughly examined the tribunal's records and the applicable law. I will start with the issue of a counterclaim which appears to have occupied the Appellant's submission substantially. The main contention by Mr. Mtaki is that the Respondent's failure to file a written statement of defence in response to the Appellant's counterclaim amounted to an admission of the allegations therein. Mr. Mtaki urged the Court to find that the trial tribunal erred in failing to enter a default judgment in favour of the Appellant under Order VIII Rule 9(2) of the Civil Procedure Code, Cap 33 R.E. 2019. In response, Ms. Medard argued that the Appellant's counterclaim was unsubstantiated, as there was no contractual relationship between the Page 16 of 21 parties, and the allegations did not justify the reliefs sought by the Appellant. Upon reviewing the submissions, I find that the trial tribunal rightly refrained from entering a default judgment on the counterclaim. A failure to file a written statement of defence may constitute an admission, but this alone is not sufficient to warrant an automatic judgment. The tribunal was obligated to evaluate the counterclaim's merits, and the evidence adduced by both parties, which it did. The Appellants claim that he had proven his counterclaim is not supported by the tribunal's detailed assessment of the exhibits presented. In the language commonly used in contract law the counterclaim was "too remote" to the suit centred on trespass. Further, I concur with Ms. Medard's argument that there was no established contractual or legal basis between the parties to justify the Appellant's counterclaim for TZS 70,000,000 in damages. As such, the trial tribunal's dismissal of the counterclaim was neither contradictory nor unjust. Accordingly, grounds 1, 10, and 15 are dismissed for lack of merit. Moving on to grounds 2, 3, and 5, Mr. Mtaki contended that the trial tribunal erred by questioning the revocation of the Respondent's land title without giving the Government an opportunity to be heard, violating the Page 17 of 21 right to a fair hearing. He further argued that the tribunal exceeded its jurisdiction by introducing the revocation issue /770ft/during judgment composition. In rebuttal, Ms. Medard maintained that the Respondents title deed was valid when the suit was filed, and the appellant's new documents, filed after the closure of the Respondent's case, were irrelevant. I find that this procedural flaw does not vitiate the tribunal's judgment. The Appellant's counterclaim was based on his own title deeds, which were obtained after the commencement of the suit, and did not form part of the evidence during the substantive hearing. It should be emphasized that the tribunal had a duty to evaluate the claims based on the evidence presented during the trial, and it rightly concluded that the Respondent's title was valid at the time of the proceedings. Therefore, I see no reason to nullify the tribunal's judgment based on these grounds. Grounds 2, 3, and 5 are dismissed. On grounds 4 and 6, Mr. Mtaki argued that the trial tribunal lacked jurisdiction to entertain the matter, as the case involved land owned by the Government. He further submitted that necessary parties, such as the Commissioner for Lands, were not joined in the proceedings. In response, Ms. Medard countered that the jurisdiction issue was never raised during Page 18 of 21 the trial and that the Appellant's title deeds were irrelevant to the disputed land. This issue has exercised my mind quit a bit. Although it is elementary law that the issue of jurisdiction is so paramount that it can be raised at any stage even on appeal, that would be embracing unlimited generality. The correct position is that an issue of jurisdiction cannot be raised for the first time on appeal unless it is evident that the tribunal lacked jurisdiction from the outset. It was not always the case that all suits involving the government were out of bound in the DLHT's. I do not want to go to the details but one needs to go beyond the "face of records" to find out whether this was the position during incumbency of the suit at hand. It appears in the records that the Appellant actively participated in the proceedings without raising any jurisdictional objection. Moreover, the Respondent's title was valid at the commencement of the suit, and the Appellant's subsequent acquisition of title does not alter the tribunal's jurisdiction. Thus, grounds 4 and 6 are dismissed. Transitioning to grounds 8 and 9 Mr. Mtaki contended that the tribunal erred by not declaring the Appellant the rightful owner of the land based on his title deeds, which were acquired after the expiration of the Page 19 of 21 Respondent's title. Ms. Medard responded that the Respondent's title was valid at the commencement of the suit, and the Appellant's subsequent acquisition of title did not automatically make him the rightful owner. The Appellant's reliance on his newly acquired title deeds is misplaced. The tribunal was correct in declaring the Respondent the rightful owner based on the evidence available during the trial. The Appellant's title deeds, obtained after the conclusion of the trial, do not affect the tribunal's findings. Therefore, grounds 8 and 9 are dismissed. In the upshot, I find that the Appellant has failed to demonstrate any merit in the appeal. The appeal is hereby dismissed in its entirety, with costs awarded to the Respondent. It is so ordered. It is so ordered. Page 20 of 21 Court Judgement delivered this 21st day of October 2024 in the presence of Mr Edward George Mtaki, learned Advocate, Counsel for the Appellant and holding brief for Ms. Modesta Medard, learned Advocate, Counsel for the Respondent. Page 21 of 21