ttelesphory ancelmi mtui vs elifadhili lema 3 others 2023 tzhclandd 16876 14 september 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND CASE NO. 255 OF 2022

TELESPHORY ANCELMI MTUI PLAINTIFF

VERSUS

ELIFADHILILEMA ASHA SALUM POTO 2 DEFENDANT KIBAHA TOWN COUNCIL 3 DEFENDANT ATTORNEY GENERAL OF ncKNnANT UNITED REPUBLIC OF TANZANIA 4 DEFENDANT

JUDGMENT 07/09/2023 to 14/09/2023 E.B. LUVANDA,3 Parties herein are lingering over a suit plot over offer for granted right of occupancy and customarily or deemed right of occupancy vis-a-vis payment of compensation. The Plaintiff above named on 21/05/200J applied for allocation of land via a letter or form for application of right of occupancy (exhibit PI) and payment for a form exhibit P2 although a form (exhibit PI) is vague, does not depict as to whom or which entity or institution it was addressed and the one who acknowledged it did not indicate his name and office. Be as it may, thereafter on 29/08/2003 Kibaha District Council approved the allocated of Plot No. 192 Medium Density Block "E" Mwanalugali Kibaha District to the Plaintiff via a letter of offer of right of occupancy exhibit P3 1 and the Plaintiff on the same date of approval of offer, complied to the requirement of paying initial payments signifying acceptance of the offer as per exchequer receipt attached to and forming part of exhibit P3. Thereafter the Plaintiff remained mute \«ithout doing anything or taking any essential steps to validate his approval and allocation as per the terms and conditions in exhibit P3. On 30/03/2011 being after elapse of eight years from the date of offer in 2003,the Plaintiff resurfaced and effected payment of land rent including accumulated arrears thereof, as per exchequer

receipt part of exhibit P4. The Plaintiff went missing at large for another aggregate period of eight years till on 26/07/2019 when he resurfaced again to pay land rent including accumulated arrears and penalty thereof, as per electronic government exchequre receipt part of exhibit P4. On the other hand, Asha Salum Poto (DW2) also Second defendant claimed to be the owner of the suit plot under deemed right of occupancy or customary descending the way back in 1984 when she alleged purchased it from the late Halima Kinyogoll for two equal instalments of 3,000 a total of 6000/=. According to DW2, in 1999 the Government via Kibaha District Council acquired her land then surveyed, allocated to the plaintiff and no compensation was paid to her. DW2 alleged that after a prolonged disputed between original owners (under customary) and the Kibaha Town Council formely KIbaha District Council in court and later settlement out of court, it was resolved for the Kibaha Town Council (Third Defendant) to hand over back to the original proprietors the suit land which was surveyed without effecting compensation where the Second Defendant was officially handed over and reinstated to her land on 23/10/2018 as per a letter exhibit Dl. Thereafter the Second Defendant disposed the suit plot to Eiifadhili Medard Lema First Defendant) via a sale agreement dated 27/11/2018. The First Defendant

constructed a two room house. On 05/06/2019, the Plaintiff visited at the suit land only to see the two rooms have been erected on his plot. Hence sued the First Defendant for trespassing his plot. Issues framed and agreed; One, who is the lawful owner of a disputed Riot No. 192 Block "E" Mwanalugali Area Kibaha Township; Two whether the entry and stay by the (First Defendant into the disputed land without authorization of the Plaintiff amounts to land trespass; Three, whether acquisition of a disputed land by the Third Defendant was complete in accordance with the law; Four, whether the Plaintiff complied with the terms and conditions prescribed in the letter of offer; Five, on what relief are the parties entitled. I will start tackling issue number four then I will go in descending order. Issue number four. As prefaced above, the Plaintiff was aiiocated a suit piot on 29/08/2003. In court he exhibited to had oniy paid iand rent. When he was cross examined by Ms. Kause Kiionzo iearned State Attorney for Third and Fourth Defendants, PWl,stated that he compiied with some terms and some did not comply. PWl conceded to had not procured a certificate of occupancy. According to Upendo Kiweiu (DW4) who is the Land Officer at Kibaha Town Councii, stated that an offer is oniy introducing the person named therein as the iawful owner who paid and agreed with terms and conditions.

According to DW4 non compiiance to the terms and conditions of offer, entail revocation, but conceded that no revocation was done to the Piaintiff. In view of that, I ruie that the Piaintiff was in cumuiative breach of aii the terms and conditions of the offer or right of occupancy exhibit P3, in particuiar item l(iv), (a),(b)(c) and (d) which the Plaintiff had accepted by appending a signature therein, as such binding upon him. The said conditions obiiged the Plaintiff to submit buiiding pians to the Kibaha District Councii within six months counting from the date of offer, building to be compieted within thirty six from the commencement of the Right. Section 45(1),(2) and (2A)(e) of the Land Act, Cap 113 R.E. 2018, provide, I quote "(1) Upon any breach arising from any condition subject to which any right of occupancy has been granted, the right of occupancyshaii become iiabie to be revoked by the President (2) The Presidentshallnotrevoke a rightofoccupancysave for the good cause. (2A)In subsection(2)"good cause"shallInclude the following (a)...NA... (b)...NA... (C)...NA... (d)...NA... (e)there has been a breach ofa condition contained orImplied In a certificate ofoccupancy" Therefore following the Plaintiff breach, it was upon the Third Defendant to initiate a process for revocation. Suffices to say the Piaintiff breached express conditions contained in the offer for a right

of occupancy. Therefore issue number four is answered in affirmative. Issue number three, on whether the acquisition of a disputed land by the Third Defendant was complete in accordance with the iaw. This issue cannot detain me much. It was the evidence of DW2 that after her iand was acquired by the Third Defendant and surveyed in 1999, she was not paid any compensation. This fact was supported by Shomari Salum Gwaja (DW3)who was a Secretary of Dispute Committee for amicable settlement of this dispute, that DW2 was among citizens or occupiers under customary who were not compensated after acquisition of their iand. DW4 aiso conceded that the Third Defendant acquired the area of the Second ' Defendant for a project at Mwanalugali Area, without paying compensation. According to DW4,if the land is acquired without payment of compensation, the whole process is nullity. DW4 stated that currently status of ownership of a plot revert back to the original proprietor, because was not paid compensation. DW4 went further to bless the handing over back dated 23/10/2018 in respect of Plot No. 192 Block "E" Mwanaiugaii Area to the original proprietor who is the Second Defendant, insisting she is the lawful owner for no compensation was paid to her. It is a fundamental principle of National Land Policy and object of the Land law, to promote payment of full, fair and prompt compensation to

any person whose land is acquired. For appreciation, I quote the provision of section 3(l)(g) of Cap 113(supra), "(1) The fundamental principles of the National Land Policy which is the objective ofthis Act to promote and to which aii persons exercising powers under, applying or interpreting this Act are to have regard to, are:- (a)...NA.. (b)...NA... (C)...NA.. (d)...NA.. (e)...NA... (f)...NA.. (g) to pay full, fair and prompt compensation to any person whose right of occupancy or recognized iong standing occupation or customary use ofiand is revoked or otherwise interfered with to their detriment by the State under this Act or is acquired under the Land Acquisition Act" In view of the above, no wonder why DW4 Land Officer and Specialist in land management made a comment that a land acquired without payment of compensation, render the whole process a nullity. I applaud this statement, and rule that acquisition of the suit plot was incomplete in the eyes of the law. Therefore Issue number three is answered in affirmative. Issues number one, who is the lawful owner of the Plot No. 192 Block E Mwanalugali Area Kibaha Township. This issue was partly taken care by adumbration In issue number four above, where I decreed that the offer for a right of occupancy approved and issued to the Plaintiff borders revocation for breach of the express terms embedded therein, also the Plaintiff

did not take essential steps for obtaining a certificate of occupancy to its completeness for over sixteen years, without sufficient cause. In fact the Plaintiff was not honest to say he was not aware of a prolonged dispute over a suit plot which alleged lasted for fifteen years between 2003 to 2018, which invariably hampered a process of granting him a right of occupancy over a suit land. As said by DW4 that a drat title is still hanging in the office file, not signed. Also on the other hand, this issue is partly taken care by the adumbration in issue number three, where I have ruled that the process of acquiring the suit land was incomplete for non payment of compensation to the Second Defendant who was affected by the acquisition in question. Now having ruled that exhibit P3 Is at stake, and so far exhibit P3 was a product of acquisition which have been declared to be unlawful. It goes without much gain saying that the Plaintiff have no good title over a suitiand. In the premises, the invitation by the Plaintiff who seek this Court to adjudge the First Defendant as a trespasser to the suit land, cannot be entertained where there is no title legally vested unto him (Plaintiff). Therefore the Plaintiff I is not the lawful owner of the suit land. To be precise, the First Defendant entry and stay into the suit land could not require authorization by the Plaintiff, hence is not a

trespasser. Issue number two is answered in the negative. As to what relief parties are entitled to. Conventionally having declared the Plaintiff to have no good title over the suit land, could automatically mean that there is no any relief which the court could grant him. However, In the circumstances of this case where the allocation of the suit land to the Plaintiff was in accordance with the procedure only that the Third Defendant failed to validate the allocation by effecting prompt compensation to the Second Defendant, who waited from 1999 to 2018. And inview of the advise given by DW4 that doors are open for the Piaintiff to seek allocation of an alternative plot, as also put by DW3.1 rule that the Plaintiff is entitled to the allocation of the alternative plot of land by the Third Defendant of the same size. The suit/iS®l^rtlv aTteW^ I make np order for costs. o 2 k 5 > E.B. LIMNDA O ^=3 JJ&DGE 1^09/2023 Judgment delivered through virtual court attended by the Plaintiff in person and Ms. Kause Kaionzo learned State Attorney for the Third and Fourth Defendants, also holding brief for Mr. Melkior Sanga Advocate for the First and Second Defendants. ^kt Op o E-B./LUVANDA s: JUDGE 1^9/2023 I/VT)