STEPHEN MBIKILWA LAND APPEAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA LAND APPEAL REF NO. 202404161000008177 STEPHEN MBIKILWA…………….………………………..APPELLANT VERSUS ASANJA BAHARI LTD .....…………………………….…RESPONDENT [Appeal from the decision of the District Land and Housing Tribunal of Kahama.] (Hon. A. M. Kapinga, Chairman.) dated the 29th day of February, 2024 in Land Application No. 49 of 2023 ----------- JUDGMENT 30th July & 9th September, 2024. S.M. KULITA, J. This is an appeal from the District Land and Housing Tribunal (DLHT) of Kahama. The story behind this appeal in a nut shell is that, the appellant and respondent executed a sale agreement whereby the appellant sold and the respondent bought, in consideration of Tshs. 200 1 million, a land located on Plot No. 418 Block “B” Nyasubi in Kahama Municipality. When transfer of ownership process was mounted, the same got stuck for the reason that, the purchaser (respondent) was a non-Tanzania citizen registered company. The appellant, having noticed that he had entered into a contract with a non-citizen, he instituted a land application No. 49 of 2023 at the Kahama DLHT, seeking for nullification of the purported contract. He also sought for an order to revert back his ownership for the said land. On this, the appellant stated that, he would return back the purchase price to the respondent. The case was heard and finally determined in favor of the respondent. The DLHT’s finding was that, as the appellant had sold his ownership to the respondent over the said land, then, he does not have such right to claim it back, because his interest had already passed to respondent. The DLHT added further that, the issue of transfer of ownership on the said land, should be left between the respondent and the respective Land office. That was on 29th February, 2024. That decision aggrieved the appellant, hence appealed to this Court with four grounds which can be summarized into one that, the trial Chairman erred to hold that the appellant, as long as he had sold the land in question, then he had no right to claim it back. The Appellant alleged 2 that, under that circumstance the said sale contract was void ab initio for containing misrepresentation by the Respondent, on his legal capacity to enter into the said land sale contract. Following the non-appearance of the respondent at the trial tribunal, the application was entertained ex-parte. The same applied to this court whereby the Respondent never turned up inspite of being summoned to appear through substituted service, that is publication in the public newspaper with great circulation. It was done in Mwananchi newspaper dated 12th June, 2021. The appeal was thus ordered to be heard ex-parte as against the respondent. Before that, the court process server, swore an affidavit to the effect that, the respondent, who is a foreigner, is nowhere to be found. On the hearing date, that is, 30th July, 2024, Mr. Hassan Kilule, Learned Advocate, appeared for the appellant. Submitting in support of the appeal, Mr. Kilule stated that section 20 of the Land Act [Cap. 113 RE 2019] prohibits non-citizens to hold land in Tanzania, save for investment purposes. He argued that in this matter, therefore, there was no right of ownership that passed from the appellant to the respondent when they entered the purported sale of land contract. To bolster this position Mr. Kilule cited the cases of Seif Bakari 3 Mmonyoka vs. Somoe Abdalah Mayonjo PC. Civil Appeal No. 10 of 2022, Mtwara HC and Hope Stiftung (Hope Foundation) vs. Sisters of St. Joseph-Kilimanjaro Region and 3 Others, Land Case No. 3 of 2020, Moshi HC, in which it was held that, illegal contract is like no contract had been entered at all. Lastly, Mr. Kilule submitted to the effect that, as the said Plot of Land has not been revoked, following the Appellant herein not being notified of the same, he was of the opinion that, the said land, still remains under ownership of the appellant. To that effect, he cited the cases of Aidan George Nyongo vs. Magese Machenja and 3 Others, Civil Appeal No. 292 of 2017, CAT at DSM and Whitsun Moshi vs. Permanent Secretary Ministry for Land, Housing and Human Settlement and 4 Others, Civil Case No. 71 of 2003, HC DSM. Shortly, that was all submissions by the appellant. I have earnestly gone through the appellant’s submissions, authorities supplied and the available records as well. The issue is whether the appellant’s appeal is meritorious. From the record, it is not in dispute that, on 27th August, 2014 the appellant and the respondent entered into agreement for the sale of land located on plot No. 418 Block “B” Nyasubi within Kahama Municipality. 4 Further, it is not in dispute that, later on, it came into the knowledge of the appellant that, the respondent was a non-Tanzania citizen when they were entering the said agreement for sale of the suit land. Moreover, it is not disputed that, even transfer of ownership over the said plot of land to the respondent was not effected for the reason that, the said Respondent is not Tanzanian by citizenship. This is as per the testimony of PW2 (Yusuph Shaban Luhanga) during trial at the DLHT, who is the Land Officer for Kahama Municipality. Section 20(1) and (2) of the Land Act [Cap. 113 RE 2019] provides as I hereunder quote; “(1) For avoidance of doubt, a non-citizen shall not be allocated or granted land unless it is for investment purposes under the Tanzania Investment Act. (2) Land to be designated for investment purposes under subsection (1), shall be identified, gazetted and allocated to the Tanzania Investment Centre which shall create derivative rights to investors.” Basing on the above quoted excerpt, as there is no evidence that Plot No. 418 Block “B” at Nyasubi in Kahama Municipality was gazetted 5 and allocated to Tanzania Investment Centre (TIC) for creation of derivative rights to investors, then, the contract that was purportedly to have been entered between the appellant and respondent was illegal. According to the cited case of Seif Bakari Mmonyoka (supra), as the respondent was a non-Tanzania citizen when the purported contract was entered, then, no right of ownership had passed from the appellant to the respondent. On this, he court held as hereunder; “Where a contract is illegal when formed, neither party will acquire rights under that contract regardless of whether there was any intention to break the law. The contract will be void and treated as if it was never entered into” An akin situation like that happened in the case at hand present, ever happened in the cited case of Hope Stiftung (supra). In it, a contract for land sale purportedly to have been entered while one of the parties was not a Citizen of Tanzania, contrary to the cited section 20 of the Land Act, was declared a nullity. On account of the endeavored that I have discussed above, I am firm mind that the purported contract between the parties herein, for the sale of land located on Plot No. 418 Block “B” Nyasubi in Kahama 6 Municipality, that was entered on 27th August, 2014 was illegal, due to the openly seen illegality that has been shown herein above. However, this nullification due to the illegality on the purported contract is taken as if the parties had never entered into such a purported contract at all. For that matter and for the interest of justice, parties should revert back to their original positions. On that account, the appellant is still declared the rightful owner of the Plot in question, but he should return the purchase price to the respondent. As it is the misrepresentation done by the respondent which led to the said contractual illegality, then, the Respondent should bear costs of the case. In upshot, the Appeal is hereby declared meritorious, hence allowed. Respondent to bear the costs. S.M. Kulita JUDGE 09/09/2024 DATED at SHINYANGA this 9th day of September, 2024. 7 S.M. Kulita JUDGE 09/09/2024 8