salum jumanne matimilo vs zakia seleman 2021 tzhclandd 723 22 january 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

LAND DIVISION

AT DAR ES SALAAM MISC. LAND CASE NO. 145 OF 2020 (Originating from Execution Appiication No. 14 of 2017 and Misc. Land Appeal No. 31 of 2010, High Court of Tanzania, Land Division, Hor^, F. NGWALA) SALUM JUMMANNE MATIMILO .^^^^...^^PUCANT VERSU^k % ZAKIA SELEMANI p^.^^...^P.....RESPONDENT MANGO,J ^ ^ The application metis ^feiect^ against eviction and demolition of the house believed to" be the property of Said! Jummanne Matimllo. The application is made by way of a chamber summons made under sections 48(l)(d)and (e), 68(e)aqd Order XXI Rules 57(1)&(2), 58 and 59 of the Civil Procedure Code Act,Xap.33 R.E 2002., supported by an affidavit sworn by the applicant Salum Jummanne Matimilo. The application is opposed by the respondent Zakia Selemani who filed a counter affidavit to that effect. Background facts of the appiication establishes that Saidi Jummanne Matimilo, the applicant's young brother instituted a case against the respondent before Tambani Ward tribunal claiming ownership of a piece of land belonging to the respondent as payment for the pit latrine he constructed for the respondent. The Ward Tribunal ruled in favour of Saidi Jummanne Matimilo. The respondent successfully appealed to District Land and Housing Tribunal for Kibaha. Saidi Jummanne Matimilo unsuccessfully appealed to the High Court of United Republic of Tanzania. In execution of the court decision,

the respondent filed Application No.14 of 2017 in which she was granted with eviction order to evict Said Jummanne Matimilo and demolish his house which was built in the suit land. In the course of execution of the court order, the applicant eiUerged alleging that the house which was identified to be s|bject of the dgilipiition order does not belong to Said Jummanne Matimilo, it is his^hpus^ According to the affidavit filed by ih^ appllcant,-it|ie housSbelongs to him and he produced as evidence of dWnershiij' of theH^d subjicted to the execution process a certificate from the village council,,He #gued also that the land that used to be occupied by Saidi Jummanne M^hilo is adjacent to his land and that Saidi Jummanne Matimilo vacated gfter he failed to prove ownership over the said land. The respondent argued that^ the document produced is nothing but an aftertl|gught bec^se it was produced in 2016 after the decision in Land Appeal !^. 31 of 2Q10 was delivered. She argued further that, the applicant intends to'restore ^He land in dispute to his young brother Said Jummanne Matimilo and that the applicant was merely an invitee to the suit land and not the owner of the suit land. I have considered submissions by both parties and court record. It is trite law that whoever allege must prove as provided under section 110 of the Evidence Act, [Cap 6 R.E 2019]. The applicant has

produced as proof of ownership, certification of ownership over the attached land from Mlamleni Village Council. According to the confirmation certificate issued by Mlamleni Village Council, the suit property belongs to the applicant and not Saidi Jumanne Matimilo. The Court order was to the effect that Saidi Jumanne Matimilo be evicted from the suit property in Msc. Land Appeal No. 31 of 2010. The order included his servants, agents, '^ivit^s and anybody who trace his title over the suit land from Said Jumanne %t:imilo. There is no evidence that Salum Jumanne Matimilo traces^&$<itjtle o^^jthe land he is occupying from Said Jumanne Matimilo. The confirrtiation of issued ' m by the village council indicates that the land was allocated to the applicant, Salum Jumanne Matimilo. In such circumstances, I am of the view that it cannot be easily ruled out that the applicant is a merp invitee to the land. The issue of ownership of the suit land between th^pplicant and the respondent need to be determined via e proper.trial. For that reason, I hereby grantthe appli(^tion and declare the land occupied by the applicant to be.not subject of the court's order in execution No. 14 of 2017. Given tlie circumstancesvjn this application, I award no costs. Each party should bear Its own costs. OV Z. D. MANG ■SJ o JUDGE e- 22/01/2021 z o V ^// •'\4'