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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LAND CASE NO. 9 OF 2022 BETWEEN SHIRIKA LA UTANGAZAJI TANZANIA (TBC)........................... 1st PLAINTIFF ATTORNEY GENERAL............................................................... 2nd PLAINTIFF VERSUS ZIADA BAKARI....................................................................... 1st DEFENDANT FIGHTNESS ABDUL................................................................. 2nd DEFENDANT JUDGMENT 31/7/2024 & 19/8/2024 ROBERT, J This is a judgment in respect of a land dispute between the Plaintiff, Shirika la Utangazaji Tanzania (TBC), and the Defendants, Ziada Bakari and Fightness Abdul, over a piece of land known as Plot No. 237, Block 'X', Capripoint, Mwanza. The Plaintiff claims ownership of the disputed land and seeks a declaration to that effect, as well as a permanent injunction against the Defendants, restraining them from further trespassing on the land. The Defendants, on the other hand, claim that they are the rightful owners of the disputed land, having purchased it from customary owners. i They assert that they have been in lawful occupation of the land for several years and that the Plaintiff's title to the land was obtained unlawfully. The court framed three main issues for determination of this dispute: One, whether the 1st Plaintiff is the lawful owner of the disputed land. Two, whether the Defendants have trespassed onto the disputed land. Three, what are the reliefs the parties are entitled to. The Plaintiffs' case was supported by two witnesses: Zabron Mafuru (PW1) and Hermes Tegambwa (PW2). The Plaintiffs also tendered five documentary exhibits (Exhibits Pl - P5). PW1 testified that the disputed land was surveyed in 1975 and allocated to the Radio Tanzania Dar es Salaam (RTD), now known as Tanzania Broadcasting Corporation (TBC), for the installation of a Radio Transmission Receiver (RTR). The land was allegedly vacant until the Defendants invaded it in 2011 and began constructing houses. PW1 presented a certificate of title issued in 2015 (Exhibit Pl) to support the Plaintiffs' ownership claim. He also produced correspondence with the Mwanza City Council regarding the invasion (Exhibit P2). 2 PW2, a retired land surveyor, corroborated PWl's testimony, confirming that the disputed land was surveyed and allocated to RTD in 1975. PW2 also stated that the survey plan (Exhibit P4) was registered and approved by the Ministry of Lands. He further testified that in 1997, during another survey for MWAUWASA water tanks, no encroachment was observed on the disputed land. The Defendants, in their joint defense, denied the Plaintiffs7 claims, arguing that they legally purchased the land in dispute from customary owners and had been in possession of the land for several years before the Plaintiffs' claim was brought to court. DW2, Fightness Abdul, testified that she purchased a "shamba" in 2007 from Zawadi Marwa, who was allegedly selling it on behalf of her husband. DW2 presented a sale agreement (Exhibit DI) and a property rate demand note (Exhibit D2) to support her ownership claim. However, she admitted that the sale agreement did not specify the size or location of the land and that she did not obtain a building permit. DW1, Ziada Bakari, testified that she inherited part of the disputed land from her late husband, Sudi Shaban, who allegedly purchased it from Juma 3 Lugela and Elias Masangula. She tendered sale agreements (Exhibits D3A, B, C) and a property rate demand note (Exhibit D4) but also acknowledged that the agreements did not describe the size or location of the land. Starting with the first issue, whether the 1st plaintiff is the lawful owner of the disputed land. The Plaintiffs relied on the certificate of title (Exhibit Pl) as proof of ownership. According to Section 2 of the Land Registration Act, Cap 334 [R.E 2019], registration of land provides conclusive proof of ownership unless evidence to the contrary is presented. In the case of Amina Maulid Ambali & 2 Others v. Ramadhan Juma, Civil Appeal No. 35 of 2019 (unreported), the court held that a person holding a certificate of title is presumed to be the lawful owner unless the certificate was unlawfully obtained. In this case, the Defendants did not challenge the authenticity or legality of the 1st Plaintiff's certificate of title. The court finds that the 1st Plaintiffs certificate of title (Exhibit Pl) is valid and was lawfully obtained, thereby establishing the 1st Plaintiff as the lawful owner of the disputed land. The Defendants' reliance on sale agreements that lacked specific descriptions of the land's size, location, or boundaries further weakens their 4 claim. The court agrees with the Plaintiffs' submission that the sale agreements (Exhibits DI, D3A, B, C) do not constitute proof of ownership, as they fail to adequately describe the land in question. Furthermore, the court finds that property tax payment, as evidenced by Exhibits D2 and D4, does not establish ownership. In Salim Said Mtokela v. Mohamed Abdallah Mohamed, Land Case No. 78 of 2015 the court ruled that property tax receipts alone do not prove ownership of land. This Court is aware of the Court of Appeal decision in the case of Jacqueline Jonathan Mkonyi & Another v. Gausal Properties Limited (Civil Appeal No. 311 of 2020), that a survey of land does not automatically turn a customary owner into a squatter. However, this principle does not apply where the customary ownership has not been established or where the land has been lawfully surveyed and registered, as is the case here. Therefore, this Court finds that the 1st Plaintiff has established its ownership of the disputed land through lawful means, and the Defendants' claims of customary ownership are unsubstantiated. The second issue seeks to establish whether the defendants have trespassed onto the disputed land. Having established that the 1st Plaintiff is the lawful owner of the disputed land, the court must now determine whether the Defendants have trespassed onto the said land. The Court is aware that trespass happens where there is unlawful entry onto land in the possession of another. The evidence presented by PW1 and PW2 demonstrates that the disputed land was vacant and belonged to TBC until the Defendants began constructing houses on it in 2011. The Defendants' failure to produce evidence proving their lawful ownership of the land further supports the Plaintiffs' claim of trespass. The Defendants argued that they had been in occupation of the land for more than six years before the Plaintiffs initiated this suit and that the claim was time-barred under the Law of Limitation. However, the court finds that the doctrine of adverse possession does not apply in this case, as the Defendants' occupation was neither continuous nor peaceful, given the Plaintiffs' consistent objections and attempts to resolve the matter with the Mwanza City Council. 6 The court, therefore, finds that the Defendants have trespassed onto the disputed land. The third issue is predicated on the determination of the two issues above. Given the findings above, the Plaintiffs have successfully proven their case on a balance of probabilities. The Court, therefore, grants the following reliefs: (i) The court declares that the 1st plaintiff is the rightful owner of Plot No. 237, Block 'X', Capripoint Mnarani, Mwanza, as evidenced by Certificate of Title No. 55757; (ii) A permanent injunction is granted against the defendants, restraining them, their agents, or any other persons acting on their behalf from entering, occupying, or dealing with the disputed land in any manner; (iii) The defendants are hereby ordered to vacate the disputed land within 90 days from the date of this judgment; (iv) The court orders that all structures constructed by the defendants on the disputed land be demolished at their own cost within the same 90-day period; (iii) The defendants shall bear the costs of this suit. 7