LAND CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA LAND CASE NO. 9 OF 2022 YAHYA ABDALAH MARANDU..................................................... PLAINTIFF VERSUS MOHAMED ABDULAHMAN MARANDU....................................1st DEFENDANT HUSSEIN ABDULAHMAN MARANDU..................................... 2nd DEFENDANT SAMWEL BARANI HAILORI (GAREE).................................... 3rd DEFENDANT PETRO YAHE TSII................................................................. 4™ DEFENDANT IDDY HINDO LABOW...........................................................5™ DEFENDANT* SELEMANI MAULIDI HAIMA................................................. 6™ DEFENDANT OLAYSI JOHN SILASI............................................................7™ DEFENDANT BAKARI MAULIDI BAKARI.................................................... 8™ DEFENDANT JOSEPH SAGDAY...................................................................9™ DEFENDANT JUDGMENT 17/05/2024 & 24/06/2024 NDUMBARO, J The plaintiff herein has filed a case against the defendants for the following orders; 1. An order to declare that the plaintiff is the lawfully owner of the land in dispute. 2. The defendants ordered to be evicted from the land in dispute. i 3. The order of demolition of all erected buildings. 4. Costs of the suit to be borne by the defendants. Essentially, the plaintiff has filed this suit against the defendants on the claim that he is the lawful owner of the surveyed land in dispute with the letter of offer of certificate of right of occupancy registered with number 5168, PLOT No. 2249, located at Dhaghailoy area within Babati Council. The plaintiff went further to allege that on 31/08/2007 he was issued with the said letter of offer of certificate of right of occupancy which was to be used for educational purpose. The plaintiff went on to state that while in the process of obtaining the granted right of occupancy, his elder brother who is the 1st defendant in this suit disposed part of the disputed land measuring 8.13 acres in favor of one Ally Songoro Ally. It was his contention that the 3rd, 4th, 5th, 6th, 7th, 8th and 9th defendants without reasonable justification trespassed in the disputed land claiming to have purchased the same from the 1st and 2nd defendants. The plaintiff also claimed to have incurred various costs including payment of land rent arrears to the Ministry of Land, the sum of Tshs. 535,324,200/=. The plaintiff thus prayed for judgment and decree against the defendants. The defendants on the other hand strongly opposed the plaintiffs allegations through their written statement of defence as follows; the 3rd, 4th, 5th, 6th, 7th, 8th & 9th defendants purported that they are the lawful owners of the land in dispute which they purchased the same at different times from the plaintiff 'relatives. The defendants further stated that, the plaintiffs relatives obtained the said properties through inheritance of the properties of the late ABDALRAHMAN MOKITI MARANDU vide Probate Cause No. 55 of 1982 at Babati Primary Court. More over the defendants through paragraph 5 of their joint written statement of defence stated that in the year 2006 the village council permitted the plaintiff to apply for Certificate of Right of Occupancy to the extent of his 8 acres of land and all the land. Further to that, the 5th defendant herein contended that the plaintiff is not the owner of the land in dispute due to the fact that he failed to repay the loan owed by the 5th defendant. In concluding, the 3rd, 4th, 5th, 6th, 7th, 8th & 9th defendants maintained that they are the lawful owners of the land in dispute and thus prayed for this court to dismiss the suit with costs. On the other hand, the 1st and 2nd defendants also contested the plaintiff claims through their joint written statement of defence where 3 they stated; the land in dispute was the property of the late Abdulrahman Mokiti Marandu which was bequeathed to his 9 children including the plaintiff herein. The defendants went on to state that, prior to the plaintiff instituting this suit he sold his share of land measuring 8 acres to the 5th defendant and a due diligence search was conducted to verify ownership where it was revealed that the previous owner was the late Abdulrahman Mokiti Marandu and that he did not pass title to the plaintiff. Above all, the defendants also faulted the whole processes conducted by the plaintiff in respect of the suit land stating that since no good title was passed to the plaintiff by the late Abdulrahman Mokiti Marandu therefore he had no locus to transfer the same to him and thus all transactions conducted by him are void abinitio except to his portion of land which was bequeathed to him. The 1st defendant contended that he had a right to sale his land measuring 8 acres which were bequeathed to him by the administrator to any customer of his choice. As to the allegations of the plaintiff that he incurred costs in paying rent, the defendants stated that the plaintiff is the only person to settle his bills which originates from his personal transactions. The defendants thus prayed for the dismissal of the entire suit with costs. Throughout the hearing of this suit both the plaintiff and defendants appeared in person unrepresented. Equally, Order VIII D Rule 40 (1) of the Civil Procedure Code, Cap 33 Revised Edition, 2019 (CPC) was complied with and the following issues were framed immediately before commencement of trial; 1. Whether the land measuring 79.55 acres is part of the estate of the late Abdulrahaman Mokiti Marandu located at Dhaghailoy village within Babati District in Manyara Region. 2. If the answer in the 1st issue is in negative, whether the plaintiff is the lawful owner of the land measuring 79.55 acres located at Dhaghailoy Village within Babati District in Manyara Region. 3. Whether the 3rd to the 9th defendant have any right over the suit land. 4. To what reliefs are the parties entitled. In proving his claims against the defendants, the plaintiff testified on his behalf and through his sworn testimony he stated that, he was orally given the disputed land by his late father Abdulrahman Mokiti Marandu to take care of it and to build a mosque and madrasa. The plaintiff went on to testify that, his father died and after his death they convened a family meeting and appointed his brother Issa Marandu as an administrator of the estate of his late father. He added that among the properties to be administered was the suit land, although the same had already been given to him. In the year 2006, the plaintiff alleged that his brother Mohamed went into his land and took 8 acres and sold it. Thereafter, he went to the village council and after following proper procedures he was issued with the letter of offer which is the proof of his ownership. The letter of offer was tendered in court and admitted as exhibit PI. On cross examination by the 1st defendant, the plaintiff stated that he knew that the estate of his late father was under the administration at Babati Primary Court. The plaintiff also admitted that he knew that the property was in the list of the estate of their late father and it was in the administration by the administrator. Nevertheless, the plaintiff insisted that his late father gave him the whole of 79 acres and that his relatives were not given any plot of land. On further cross examination by the 3rd and 5th defendants, the plaintiff stated that he did not sell the 8 acres but instead he had it pledged to guarantee payment of the loan he took from the 5th defendant. On the other hand, the defendants entered their defence and they all testified on their behalf as follows; the 1st defendant testified as DW1 and stated that he is the son of the late Abdulrahman Mokiti Marandu. DW1 went on to state that before the death of their late father he used to take care of the suitland together with the plaintiff herein who is his young brother. According to him, at the that time their late father was at Moshi for treatment as he was very sick. He went on to state that, later on his father died and in the year 1982 they appointed an administrator who was confirmed by the Babati Primary Court vide Probate Cause No. 55 of 1982. He went further to say that, the administrator was a Government employee and he was very busy to an extent that some properties lacked administration and what remained was the suit land which measured 72 acres and a house at Babati and at Moshi. Following the non-performance of the administrator's duties, DW1 went to the Sheikh who helped them in the distribution of the suitland. The distribution was in accordance to Islamic law which was then taken to the Babati Primary Court and the magistrate told that anyone who was dissatisfied with distribution made under Islamic law may lodge a complaint to the Court. According to the distribution, DW1 received 8 acres, and the plaintiff herein also received his 8 acres which he placed as a security bond to one among the defendants in this case. DW1 went on to state that, the plaintiff also requested the Village Council for approval of the tittle in respect to 50 acres. After he was informed of the plaintiff's moves, DW1 had a meeting with the Village Council, in the said meeting, the village council cancelled the approval of the offer in the said 50 acres (suit land). Thereafter, the village council wrote a letter to Babati Township. The minutes of the meeting with the Village council was tendered and admitted as exhibit D2 and a letter from Babati Township Council to the plaintiff was also admitted as exhibit D3. On cross examination DW1 insisted that the village council cancelled the approval of the offer that was given to the plaintiff. As to the distribution of the deceased's estate, DW1 stated that, the distribution was done in accordance to the Quran Surat Bakara 4. He added that distribution was made as per the recommendations of the sheikh and the family members. DW1 also stated that as of now he has no any interest over the suit land as he had already sold it, and that he also helped his other relatives to sell their portions of land as they requested him to help them in selling their land. The second witness to testify on behalf of the defendants is the 5th defendant who stated that the plaintiff herein wanted to borrow from him Tshs. 3,000,000/= but at that moment he only had Tshs. 2,400,000/= which the plaintiff took and he secured the loan with his portion of land measuring 8 acres which is also among the land in the suit land. DW2 went on to state that according to the agreement, the plaintiff was to pay back the said amount on 30/08/2011, unfortunately, the plaintiff did not pay the loan as agreed and since the piece of land was secured for a loan of Tshs. 3,000,000/=, DW2 paid the plaintiff the remaining of Tshs. 600,000/= and thereafter took the land and he has no any claim against the plaintiff. DW2 tendered the loan agreement with the plaintiff and the same was tendered and admitted as exhibit D4. DW3, DW4, DW5, DW6, DW7 and DW8 testified that they bought the suit land from the 1st defendant and they all tendered in court the sale agreements which were all admitted as exhibits D5, D6, D7, D8 and D9 respectively. Having briefly summarized the parties' evidence, it is now the noble duty of the court to determine issues framed as herein under; 9 1. The 1st issue, Whether the land measuring 79.55 acres is part of the estate of the late Abdulrahaman Mokiti Marandu located at Dhaghailoy village within Babati District in Manyara Region. Considering the evidence of the plaintiff and the 1st defendant, it is the observation of this court that, the first issue is answered in affirmative for reasons to follow; the plaintiff in his testimony does not deny the fact that the land in dispute measuring 79.55 acres located at Dhaghailoy village within Babati District in Manyara Region is part of the estate of the late Abdulrahaman Mokiti Marandu. The plaintiff in his testimony stated that he was given the suit land by his late father, and that even after the death of his father, he left some properties including the suit land. This evidence sufficiently establishes that the suit land is part of the estate of the late Abdulrahman Mokiti Marandu. Moreover, on cross examination by the 1st defendant, the plaintiff admitted that the suit land belonged to his late father and for easy of reference I wish to quote here under; "The land is measured 79.55 acres according to the 2006 survey, my father gave me that land in the year 1979, the evidence as to the giving o f such land is in the black book." 10 Apart from the evidence of the plaintiff, this court also observed the testimony of the 1st defendant who is the brother of the plaintiff, in his testimony, the 1st defendant did not deny that the suit land belonged to their late father Abdulrahman Mokiti Marandu. At page 20 of the typed proceedings, the 1st defendant stated as follows; "What was left at that time was the suit land, the house at Babati and that o f Moshi. The suit land at that time was measured by steps 70X70 and it was 72 acres. " I have also considered the testimony of the plaintiff that he was given the suit land measuring 79 acres by his late father. While testifying, the plaintiff stated that his late father gave him the suit land in the year 1979 and the evidence was in the black book. It is a fundamental principal of law under the Law of Evidence Act CAP 6 R.E 2019 that whoever desires a court to give judgment in his/her favour he/she must prove that those facts exist. Section 110 (1) (2) of the Law of Evidence Act is hereby reproduced: "S.110 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence o f facts which he asserts must prove that those facts exist (2) When a person is bound to prove the existence o f any fact it is said that the burden o fproof lies on that person." In the case of Abdul Karim Hajji vs. Raymond Nchimbi Alois & Another, Civil Appeal No. 99 of 2004 (unreported) the Court of Appeal of Tanzania held that: " ....it is an elementary principle that he who alleges is the one responsible to prove his allegations. " In the case at hand, the burden of proof at the required standard of balance of probabilities is left to the plaintiff being the one who alleges to be given the suit land by either giving documentary evidence to that effect or by calling witnesses to justify his allegation. However, in the absence of such evidence, this court is left with no other option that to hold that the land measuring 79.55 acres is part of the estate of the late Abdulrahaman Mokiti Marandu located at Dhaghailoy village within Babati District in Manyara Region. That said, I now turn to the 2nd issue that, If the answer in the 1st issue is in negative, whether the plaintiff is the lawful owner of the land measuring 79.55 acres located at Dhaghailoy Village within Babati District in Manyara Region. 12 As the determination of this issued depended on the findings in the 1st issue, I find that since the 1st issue was determined in affirmative it is apparent that this issue is inevitably answered in negative. I am saying so on reasons that, since it was the finding of this court that the suit land measuring 79.55 acres is part of the estate of the late Abdulrahaman Mokiti Marandu located at Dhaghailoy village within Babati District in Manyara Region therefore the plaintiff is automatically excluded from ownership of the said land. That said, this court now determines the 3rd issue that, Whether the 3rd to the 9th defendant have any right over the suit land. Following the findings in the above two issues, I am of the view that since the 3rd to the 9th defendants alleged to have bought the land from the 1st defendant, equally, while testifying, the 1st defendant informed this court that with the permission from his relatives he helped them in selling their lands to the defendants I find that the 3rd to the 9th defendants have legal rights over the suit land. This finding is also supported by the sale agreements that were tendered in court by the 3rd to the 9th defendants (exhibits D5, D6, D7, D8 and D9 respectively). From the above analysis, this court is satisfied that the plaintiff herein has failed to prove his case to the standard require. The suit is 13 hereby dismissed in its entirety, however due to the nature of the relationship between the parties I refrain from giving orders for costs. It is so ordered. X . A V' * ( ' r I t), \ D. D. NDUMBARO \ * \ 14