Tilu Nyoka

The Judiciary of Tanzania IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA CASE REFERENCE NO. 20241018000026197 TILU NYOKA ……………………………………........................................ APPELLANT Versus NIGO HIMBAYA …………………………………………………………….…RESPONDENT (Originating from the Decision of the District Land and Housing Tribunal of Maswa at Maswa) (Hon. J.T. Kaare - Chairperson) Dated the 26th June 2024 in Land Application No. 03 of 2024 ----------------------------- JUDGMENT 28th January & 28th February 2025. F.H. MAHIMBALI, J The appellant in this case is aggrieved by the decision of Maswa District Land and Housing Tribunal which determined the land dispute between her and the respondent. In that dispute, the appellant claims the respondent’s unlawful invasion in her land as she claims that the purported purchase of the said land by the respondent from her late husband is unlawful and unestablished. 1 As the trial tribunal had ruled in her disfavor, the appellant has preferred this appeal with a total of six grounds of appeal, which all boil into one main ground that there was no credible evidence adduced before the trial tribunal to confirm ownership of the said land by purchase by the respondent without her knowledge. Digesting the appellant’s grounds of appeal, her main contest is the lawfulness of the purported purchase of the disputed land by the respondent via exhibit P1 for lack of supporting/corroborating evidence from all those who witnessed the said sale and that herself being the spouse of the late Kisoli Limbu, she never knew about and also never participated in the said sale, thus it was a nullity as per law. From the evidence in record, it is undisputed that the respondent did purchase land in exhibit P3 (one acre) from the appellant’s husband at an exchange of four cows. However, as regards to the purchase of land (exhibit P1 and P2), it is the appellant’s assertion that the said purported sale is unestablished as none of the witnesses had come to the trial tribunal to confirm the said sale transaction. As she was alive, and spouse to the late Kisoli Limbu, the sale of the said land could not be complete unless her consent was first sought and obtained. Thus, it is her firm conclusion that there was 2 no such purported sale done and if so, is incomplete for lack of spouse consent. I have keenly digested the appellant’s grounds of appeal, her submission and the reply by the respondent. It is true that those who witnessed sale of the suit land (exhibit P1) in 2007, none had come to court to confirm the said sale transaction. Secondly, it is undisputed that the appellant was the spouse to the late Kisoli Limbu. The completeness of the said sale of land if so done, is questionable in the absence of the spouse consent previously sought and obtained. What is the legal status of this? Now, in the case at hand the suit property is customarily owned under a certificate of Customary Right of occupancy in the name of the respondent thus, registered pursuant to the provisions of the Land Registration Act [Cap.334 RE 2019]. The question now as who is the owner of a registered piece of land can easily be answered by the definition of the word "owner" as provided under section 2 of the Land Registration Act. The word "owner" has been defined thus: 3 - "...in relation to any estate or interest, the person for the time being in whose name that estate or interest is registered.” (Emphasis added) Upon registration, the person whose name has been entered into the register is issued with the certificate of title pursuant to section 35 of the Land Registration Act, as evidence of ownership. It provides thus: "The owner of an estate in any parcel shall be entitled to receive a certificate of title under the seal of the certificate land registry in respect thereof, showing the subsisting memorials in the land register relating thereto... " From the above quoted provisions, registration is of no doubt a prima facie proof that the one whose name is in the village land register and who is in a possession of a customary certificate of title is the owner of the piece of land to which such person is registered. This position can be aligned with the decision taken by this Court in Salum Mateyo v. Mohamed Mateyo, [1987] T.L.R 111, where Mroso, J stated thus; proof of ownership is by one whose name is registered. 4 Additionally, the Court of Appeal in Nack Esther Nyange vs Mihayo Marijani Wilmore and another, Civil Appeal No.1017 of 2019 held that; "...the certificate of Title is a conclusive proof of ownership of land.” The above notwithstanding, the appellant is challenging how possible was it she being the spouse of the late Kisoli Limbu their landed property (exhibit P.1) could be disposed without her knowledge. As she is not aware of the said sale by her husband, the respondent cannot claim a valid ownership over the said land as alleged and decided by the trial tribunal. In the absence of her consent being previously sought and obtained, the whole process of issuing of the customary right of occupancy to the respondent was not lawful and did not adhere to the legal procedure. I hold that view because, first, there was neither proof of the said sale by anyone amongst those alleged to have witnessed the said sale and secondly that the appellant being spouse, was not involved in any way in consenting of the said sale. Since laws are not enacted for decoration but compliance, the respondent being very aware that the seller is married to the appellant, was to make sure that her consent was first sought and obtained before he completed the said sale. 5 The requirement of spousal consent before a matrimonial property registered in the name of one of the spouses is disposed is provided for under s. 59(1) of the Law of Marriage Act. The provision states as follows: "59 - (1) where any estate or interest in the matrimonial home is owned by the husband or the wife, he or she shall not if while the marriage subsists and without the consent of the other spouse, alienate it by way of sale, gift, lease, mortgage or otherwise, and the other spouse shall be deemed to have an interest therein capable of being protected by caveat, caution or otherwise under any law for the time being in force relating to registration of title to land or of deeds." That requirement is also provided for under s. 161(3) of the Land Act which states that: 6 "161 (1)….. (2).... (3) where a spouse who holds land or dwelling house for a right of occupancy in his or her name alone undertakes a disposition of that land or dwelling house, then - (a) Where that disposition is a mortgage, the lender shall be under a duty to make inquiries if the borrower has or, as the case may be, have consented to that mortgage [in] accordance with the provisions of section 59 of the Law of Marriage Act. (b) Where that disposition assignment or a transfer of land, the assignee or transferee shall be under a duty to make inquiries of the assignor or transferor as to whether the spouse or spouses have consented to that assignment or 7 transfer in accordance with section 59 of the Law of marriage Act." From the arguments of the respondent, there is no dispute that the appellant did not consent to the sale of the suit house. It being a matrimonial or family property, the appellant had interest in it. The respondent’s argument that, the appellant’s consent was not required because the property was the clan land and thus belonged absolutely to him, is without merit. See also Asile Ally Said v. Irene Redentha Emmanuel Soka and Another, Civil Appeal No. 80 of 2020, CAT at DSM and National Bank of Commerce Limited v. Nurbano Abdallah Mulla, Civil Appeal No. 263 of 2017. I am aware that except in case of fraud, the vesting of title or ownership of the disputed property to a person, holds the same free from all estates and interests whatsoever (See section 33(1) (b) or (c) of the Land Registration Act [Cap 334 R.E. 2019]). Therefore, in the absence of such evidence that the respondent obtained the said land previously lawfully owned by the appellant’s husband , it would entail a conclusion that the respondent is not an authentic holder of the entire dispute property free from all estates and interests whatsoever. A proper authority to 8 justify that at the time the land was being granted to the respondent, did not have any subsisting third-party interests in terms of section 33(1) (b) or (c) of the Land Registration Act, above is the authority that granted it to the plaintiff (See Tanzania Railways Corporation (TRC) vs Gbp T. Ltd (Civil Appeal 218 of 2020) [2021] TZCA 198 (7 May 2021). Ownership of land is a question of fact. It must be strictly established. In the current facts of the case since it is undisputed that the said disputed land was actually once held by the late Kisoli Limbu as claimed, for the respondent to claim ownership over it since 2007 he had to establish how he lawfully acquired it. As it was not abandoned by the appellant and that all the time there has been quarrel over the possession of the said land, the law gives no further recognition to it than the appellant. It was expected the respondent to have strictly established how he lawfully acquired it. As there was no spouse consent sanctioning the said purported sale if any, neither any evidence from the witnesses of the said purported sale, I wonder how can he claim ownership over it. That by itself nullifies the whole purported sale if really done. The remaining two grounds of appeal are of no merit in the context of this appeal. They seem being misplaced. 9 As what is the best way forward after the said sale is declared unestablished and legally a nullity, this court has nothing substantial to hold otherwise than reverting the status quo to the situation it was before the purported sale. All this said and considered, I find this appeal being brought with a sufficient cause and it is hereby allowed with costs. Right to further appeal fully explained to any aggrieved party. DATED at SHINYANGA this 28th February, 2025. F.H. Mahimbali Judge 10