YOLANDA S RUGUNA

IN THE HIGH COURT OF TANZANIA (MOROGORO SUB - REGISTRY)

AT IJC MOROGORO LAND CASE NO. 27 OF 2022 YOLANDA S. RUGUNA ……………........................PLAINTIFF

VERSUS RAJABU KINYAKALI……………………………1ST DEFENDANT MOROGORO MUNICIPAL COUNCIL………..2ND DEFENDANT ATTORNEY GENERAL………………….……….3RD DEFENDANT

JUDGEMENT DATE OF JUDGEMENT- 24TH JUNE 2024 MANSOOR, J. The plaintiff filed a suit against the defendants over ownership of the Plot No. 211 Block R Kihonda Area, within Morogoro Municipality, herein referred to as “the disputed property, or suit property”. According to the evidence on record; Yolanda S. Ruguna, the plaintiff herein purchased the disputed property from Salehe Mpoto on 13th July 2013, but 1|Page she says that she had entered into an Agreement for Purchase of this Plot from one Salum H. Mhanga as the disputed land belonged to Salum H. Mhanga and not Salehe Mpoto. It was the plaintiff’s averment that, she paid the purchase price to Salehe Mpoto for a different plot but when they found that the plot she bought from Salehe Mpoto was already allocated to someone else, the said Salehe Mpoto decided to purchase the disputed land from Salum H. Mhanga so as to compensate the plaintiff for the earlier plot, and this is why the Agreement was between Salum Mhanga as the Vendor and Yolanda Ruguna as the Purchaser. After signing this Agreement before the Advocate, the Agreement was submitted to Morogoro Municipal Council for effecting the transfer of ownership from Salum Mhanga to Yolanda Ruguna, the plaintiff herein. She then applied for a Letter of Offer for the disputed property and on 12th August 2014, the Morogoro Municipal Council gave her the Receipt of payments

on Plot No. 211 Block R, Kihonda, acknowledging receipt of various fees effected pertaining to the disputed property. The plaintiff was informed through this Receipt that the Commissioner for Lands shall prepare and issue her a Certificate of Occupancy according to section 29 of the Land Act, [Cap 113 R: E 2002] (as amended). This Receipt which had Ref No. MMC/LD/4665 2|Page dated 12th August 2014 was received as evidence for the plaintiff and marked as Exhibit P1.The plaintiff was also asked by the Morogoro Municipal Council to clear the rent arrears for the years 2006/2007 to 2016/2017 amounting to THz 165,629.12/=. She was given the Land Assessment Form dated 24th May 2017, and this Land Assessment Form was admitted as Exhibit P2. She was also issued with the building permit to construct a single storey residential building on the disputed plot by the Morogoro Municipal Council. The Building Permit No. 06145 issued by Morogoro Municipal Council dated 25th January 2016 was received as evidence and marked as Exhibit P3. After the pleadings were completed, on 07/05/2024 when the matter was set for the final pre-trial conference under Order VIII Rule 40 (1) of the Civil Procedure Code [Cap.33 R.E 2019], two issues were framed for determination namely; 1. Whether he plaintiff is the rightful owner of the suit property?

2. To what reliefs are the parties entitled? During the hearing of this suit, the plaintiff was represented by Advocate Ignas Punge whereas the 1st defendant had the services of Mr. Jovin Manyama along with Ms. Caroline Sarakikya all learned advocates and Ms. 3|Page Emma Ambonisye the State Attorney appeared for the 2nd and 3rd defendants. The plaintiff in proving her case she fronted before the court three witnesses; Yolanda S. Ruguna (PW1), Christopher David Matalwane (PW2) and Bariki Abdallah Maharagande (PW3). On their part, the 1st defendant had three witnesses Rajabu Mussa Kinyakaya (DW1), Experius Mchonde (DW2) and Juma Omary Abdallah (DW3) whereas the 3rd and 4th Defendants fronted only one witness Herman Paul Ambara (DW4).To support her case, the plaintiff gave testimony as PW1, and her evidence was supported by the evidence of her husband one Christopher David Matalwane (PW2) who said that the disputed plot was given to his wife by Salehe Mpoto, as she bought Plot No. 220 Block R, Kihonda Morogoro from Salum Mpoto, but there was another person who claimed ownership of the same plot, then Salehe Mpoto decided to compensate the plaintiff with Plot No. 211 Block R, Kihonda Morogoro. That Salehe Mpoto bought Plot No. 211 Block R from Salim Mhanga in 2012. PW2 said him and his wife went to see the disputed property and were satisfied to be given this plot as it was near

the previous plot they had earlier purchased from Salum Mpoto. He said, the Municipal Council officers directed 4|Page that there should be an agreement for sale from Salum Mhanga, the owner of the plot directly to Yolanda Ruguna. PW2 said, there was delays in handing over this plot to the plaintiff, then the Municipal Council advised them to go to court. Following the advice given by the Municipal Council, the plaintiff filed a case at the District Land and Housing Tribunal and as soon as the case was filed Salehe Mpoto gave to the plaintiff the documentations for the disputed property and handed over the plot to the plaintiff. Then, after the case, they went to the disputed land but found the plot was trespassed, there was a house erected in the plot, the house belongs to Kinyakali, the 1st defendant herein. The case for the plaintiff was also supported by the evidence of PW3-Ibariki Abdallah Maharagande, who said he witnessed the sale agreement between Salum Mhanga and Yolanda Ruguna in 2013 as Salum Mhanga’s witness. He said he knew Salum Mhanga’s as he was their neighbour as his father had a farm near the farm of Salum Mhanga. The Agreement were taken to Municipality. He said him and Salum Mhanga went to the lawyer Dominic Kashumbugu, who is now dead. Salum Mhanga was present before the lawyer, and he signed the Agreement before the lawyer. He said he went to the lawyers’

office with Salum Mhanga but Yolanda was not present. He said 5|Page when Salum Mhanga went to sign the Agreement at the lawyer’s office Salehe Mpoto and Yolanda Ruguna were not present, He also said Salum Mhanga told him that Salehe Mpoto paid him money for purchase of the disputed property, and that Salehe Mpoto bought the plot for compensation of Plot No. 220 which was found to be in dispute. He said, the lawyer told them that all the Agreements will be taken to Municipality for transfer of title from Salum Mhanga to Yolanda Ruguna. The defendants filed their defence in which Rajabu Kinyakali, the 1st defendant said he purchased the disputed property P in 2002 from Salum Mhanga. At that time the land was not yet surveyed. That he purchased the land measuring 34X20 meters. The land is located at Kihonda Majengo Mapya. It was a farm of about 35 meters long and 20 meters wide for THz 200,000/=. During the Agreement there was Juma Omari and Asha Ismail, and the Chairperson of Majengo Mapya Kihonda Street, Morogoro. Juma Omari is the parent of Salum Mhanga, and Asha Ismail is the mother of Salum Mhanga. He denied to have trespassed but said he bought the disputed propertyt since 2002. That he never knew if the land was surveyed, and he came to know that the land was surveyed when he was summoned to appear for a case filed by the plaintiff herein in 2018. He said he

started 6|Page building the house in 2007, and finished in 2010. He built one bedroom and a veranda. His brother Tebe Juma Mwangalamka was supervising the construction. He said his neighbours are Baba Kevi, Baba Damas and Mama Fatuma. He found these neighbours, they were there before him. To support his case, the 1st defendants called Experius Mchonde, who said he lives in Kihonda Majengo Mapya, he is also known as Baba Kevi. He said he knows Salum Hossein Mhanga, he had a big farm, it was a rice paddy; he sold plots to him and to Kinyakali, the 1st defendant. The 1st defendant and him are neighbours. In between him and Rajabu Kinyakali, there is the house of Mama Fatuma, DW2 plot is now known as Plot No. 215, after it was surveyed. He said he was involved during the survey of the land, and after the survey his land became Plot No 215, and he was given documentation for ownership of this plot. He said Kinyakali built the house since 2007, and the house has been occupied by a tenant. The case of the 1st defendants was also supported by the testimony of Juma Omari Abdallah, who gave his evidence as DW3. He said he knows Salum Hussein Muhanga, as he is his step son, he married Salum Mhanga’s mother. He said also that he knows Rajabu Kinyakali as he is his grandson, the son of his nephew. He also said he witnessed the sale of an area sold by Salum 7|Page Mhanga to Rajabu Kinyakali,

and he was the one who received the money for purchase of the disputed property from Rajabu and gave it to Salum Mhanga. He said he received THZ 200,000/= on 1st February, 2002. The land is situating in Kihonda. He said during the Sale he was present, also his wife Asha Ismail Mohamed who is the mother of Salum Mhanga was present. He said Salum Mhanga was the owner of the farm land and Salum Mhanga is now sick, he was very sick, he has mental issues. Then Morogoro Municipal Council, the 2nd defendant filed a defence and to support the case of the 1st defendant they summoned Herman Paul Ambara, (DW4). He is the authorised Land Officer Morogoro Municipality. DW4 said this plot was surveyed in 2003, the survey map was registered as Registered Survey Plan No. 38004/2003. The Municipality conducted the survey exercise but recognised the owners who were owning farms and lands. Regarding this plot in dispute, the Municipality gave this plot to Kelvin Tembo and his wife Elisaria. They were given Letter of Offer in 2006, they went to see the plot and found that the land is already occupied and developed, there was a house foundation already built. They then went back to the Municipality, they surrendered the offer. The office carried out an investigation, and were satisfied that it is true that there was a person 8|Page occupying the land, and that he has already developed it, and so

Kelvin Tembo was given another plot. During the exercise of survey Salum Hossein Mhanga was involved as the owner of that land. Salum Mhanga went to Municipal office and asked to be allocated this land, he was given Receipt for payments of fees. In 2012, 2nd June, Salum Mhanga wrote a letter to the Municipality informing the Municipality that the land is not his land as there was somebody else who owns it, and had already developed it. Then Rajabu Kinyakali appeared, and brought documents showing that he bought that land from Salum Hussein Mhanga on 1st February 2002, one document was handwritten, and another was a Form of Sale prepared by the Street Leaders of Kihonda. Rajabu Kinyakali said he bought the land but left it under the care of Salum Husein Mhanga. DW4 testified further that the same Salum Mhanga who informed the Municipality that the land in dispute is not his land, in July 2013, he entered into an agreement with Yolanda Ruguna for sale of this same property/plot. The Agreement was given to the Municipality, the person/officer who received the Sale Agreement proceeded to process the ownership of the plot to Yolanda Ruguna, but after this Officer realised that this same land was already allocated to Rajabu Kinyakali, he stopped the process, and did not 9|Page issue the Letter of Offer to Yolanda. The office realised that Salum Mhanga had conned Yolanda Ruguna, and

so the process was halted, and since already Yolanda had filed a case at the DLHT, The Municipality could not proceed with anything as they were waiting for the case to finalise. DW4 said Yolanda Ruguna is an innocent purchaser, she believed that the plot belonged to Salum Mhanga, but Salum Mhanga conned her. DW4 confirmed that the records at the Municipality recognises Rajabu Kinyakali as the rightful owner of the land in dispute, he was there even before the survey, and his ownership has been regularised after the survey. Having heard both parties, I now turn to consider and determine the framed Issues in light of the pleadings and evidence adduced at the trial. As to whether the plaintiff is the rightful owner of the suit property.The plaintiff Yolanda Ruguna said she purchased the disputed property from Salehe Mpoto, she, however, never produced any proof that Salehe Mpoto owned this plot, she also did not produce any proof that there was a Sale of this disputed Plot from Salehe Mpoto to her or from Salum Mhanga to Salehe Mpoto. It is trite law that one cannot sell what he does not own. Such sale 10 | P a g e has no value under the law, since, Salehe Mpoto was not having an authority to transfer the suit property in favour of the plaintiff, as he never owned the suit property. Salehe Mpoto was not having transferable title over the suit property. Thus, the plaintiff gets no

right or interest over the property under the sale which was not reduced in writing and which was not registered. The plaintiff claims that she entered into the Sale Agreement with Salum Mhanga, and said the Sale Agreement was signed by Salum Mhanga. The plaintiff and her husband both said that they have never met Salum Mhanga and they never knew him, and that they came to see him during the case at the District Land and Housing Tribunal. The only person who confirms to Court that he saw Salum Mhanga signing the Sale Agreement before a lawyer was DW3. Again, his words are mere words as the Agreement was never produced in court as evidence. To make matters worse for the plaintiff, DW4, the Land Officer came to court and confirmed before the Court that at first the suit property was indeed owned by Salum Mhanga, but then again, Salum Mhanga had written a letter to the Municipality to surrender the suit property to the 1st defendant Rajabu Kinyakali, and thus the records at the Municipality shows that the suit property is owned and possessed by Rajabu Kinyakali since 2002. DW4, the Authorised Land Officer confirms that it was 11 | P a g e a mistake to issue the receipt of payments of fees for the suit property to the plaintiff, and also to issue the building permit to the plaintiff as that land never belonged to Salum Mhanga or to the plaintiff, and that these documents were

cancelled after the Municipality realised that the land does not belong to Salum Mhanga and Salum Mhanga did not have the transferrable title of the land as he had already surrendered it, and informed the Municipality that he had already sold the land to Kinyakali since 2002, and that Kinyakali is in occupancy and has already developed the land since 2017. By virtue of Sale Agreement between Salum Mhanga and Rajabu Kinyakali executed since 2002, the said Salum Mhanga was dispossessed of title to the land and could not have sold it to someone else as the 1 st defendant became absolute owner of the suit property. Thus, the 1st defendant has proved that he is the absolute owner of the suit property by producing cogent documentary evidence as well as the evidence of the Authorised Land Officer (DW4) who confirmed that the title to the land passed over to Rajabu Kinyakali from Salum Mhanga way back in 2002, and Salum Mhanga did not have any title to this land to enable him pass it over to the plaintiff. Salum Mhanga was not having any right, title or authority over the suit property to transfer the property in favour of plaintiff, because 12 | P a g e he had already sold the suit property to the 1st defendant since 2002, and even after the land was surveyed, he wrote to the Municipality informing them that the suit land is not his land as he has already sold it to the 1

st defendant., Hence, when vendor has no right over the suit property to transfer the same in favour of plaintiff, the vendee gets no rights, interest over the suit property. Hence, the sale deed, if any, between Salum Mhanga and Yolanda Ruguna is not in existence under the law and it has no value under the law. Thus, the sale deed executed by Salum Mhanga (if any) in favour of the plaintiff is illegal, invalid, ineffective and unenforceable document and same is not binding on the Municipal Council to facilitate the issuance of the Certificate of Title to Yolanda Ruguna, the plaintiff, herein. With this observation I answer issue No.1 that the plaintiff is not the rightful owner of the suit property known as Plot No. 211 Block R, Kihonda, Morogoro. In view of the findings on issue No.1, I proceed to determine the second issue by passing the following reliefs/Orders: 13 | P a g e The suit filed by the plaintiff is hereby dismissed with costs. Consequently, the 1st defendant is hereby declared as absolute owner of the suit property known as Plot No. 211, Block R, Kihonda Area, within Morogoro Municipality. Further it is ordered and confirmed that the Receipts for payments of fees and land arrears issued to the plaintiff are all cancelled, and the 2nd defendant, the Morogoro Municipal Council is ordered to refund all the money paid by the plaintiff as fees, levy, land rent arrears or payments for obtaining the building permits pertaining to the suit. Suit dismissed with costs. DATED AND DELIVERED AT MOROGORO THIS 24th DAY OF JUNE 2024. L.MANSOOR

JUDGE 24/06/2024 14 | P a g e