zainabu k mdachi vs michael biseko nyagabona and another 2021 tzhclandd 764 29 october 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 03 OF 2018 (Originating from Kinondoni District Land and Housing Tribunal in Land Application No.424 of 2009 (Hon. R.L. Chenya, Chairmain) ZAINABU K. MDACHI............................................... APPELLANT VERSUS MICHAEL BISEKO NYAGABONA.................. st RESPONDENT 1 APOLO FESTO KASENENE.............. nd RESPONDENT 2 Date of Last Order- G4.10.2021 Date of Judgement: 29.10.2021 JUDGMENT V.L. MAKAN1, J This is an appeal by ZAIBABU K. MDACHI. She is appealing against the decision of the Kinondoni District Land and Housing Tribunal at Itala (the Tribunal) in Land Application No, 418 of 2009 (Hon. R.L Chenya, Chairman). At the Tribunal the appellant claimed against the respondents among other things the ownership of Plot No, 2088 and 2089, Block "B" Boko Kinondoni Dar es Salaam (the suit plots). The application was dismissed for want of merit. Being dissatisfied with the decision of the Tribunal, the appellant nas preferred this appeal with three grounds of appeal reproduced herein below: 1. That, the Honourable District Land and Hosing Tribunal erred in law and in fact in not properly evaluating the evidence and testimony of witnesses tendered thus arriving at wrong conclusion. 2. That the honourable District Land and Housing Tribunal erred in law and in fact by basing its decision on the doubt rose by Chairman on the modality in which the appellant had acquired the land in dispute. The matter that had never been disputed. 3. That the Honourable District Land and housing Tribunal erred in law and in fact in concluding and later holding that the land in dispute belongs to the respondent simply because the allocating authority was not joined on the main suit. With leave of the court the appeal was argued by way of written submissions. Appellant's submissions were drawn and filed by Mr. Vedastus Majura, Advocate while Dr. C.K.K. Morris, Advocate drew and filed a reply to the main submission on behalf of respondents. Mr. Majura said that the appellant had purchased the suit plots way back in the year 1996 and it was not disputed. That later in 2006, Kinondoni Municipal Council surveyed the said land and it was allocated to the respondents. He submitted that PW1 testified at the Tribunal that in 1996 he bought pieces of land from different persons. That the copies of the sale agreement were tendered and admitted as Exhibit Pl collectively. He added that even PW2 Emmanuel 2 Segeja, a Land Officer from Kinonaom Municipal Council testified that the land belongs to the applicant and it was illegally allocated to the respondents. That the Council having realized this mistake convened several meetings as per the letter dated 20.02.2007 (Exhibit P2). The letter was addressed to several people including parties to thrs suit. He said PW2 testified to the effect that survey procedures were not followed. In that regard all the persons allocated land were required to surrender their letters of offer as per the letter dated 06.08.2007. He added that the Municipal Council started processing revocation of ownership by recommending to the Commissioner for Lands. He insisted that, following the position of PW2 it was not correct for the Tribunal to claim that there was no instrument authorizing the sale of the suit plots to the appellant, that it creates doubt to declare the respondents the lawful owners of the suit plots. He said that if it is true that the instrument was not tendered in court authorizing the sale, that alone does not suffice to declare the respondents the lawful owners of the suit plots. He submitted further that among the functions of a Land Officer is to allocate the land, prepare documents relating to the right of occupancy, land dispute settlement and overseeing all issues relating to land administration. He said surprisingly the Tribunal after acknowledging the false 3 procedures of surveying the suit plots, ignored the same and proceeded to declare respondents lawful owners of the suit plots. He insisted that the Chairman having noted that the Municipal Council had nullified the allocation it was enough for the Tribunal to disqualify the respondents' title. He insisted that there was no need to join the allocating authority. He asked whether the joining of the allocating authority would have been changing the testimony of PW2. That if the answer is "NO" then why did the Tribunal decide in favour of respondents for mere facts of nonjoinder of the Land Officer who had already given his testimony. He prayed for this appeal to be allowed with costs. In reply, Dr. Morris said that the grounds of appeal have been structured into a single ground regarding evaluation of evidence He said that at the Tribunal parties were not in dispute that the property was surveyed and registered by the relevant land authority. That the dispute was on the granted Right of Occupancy. That it was also undisputed that whoever was the owner must have had the formal registration credentials to such regard. He said that it was not in issue that the said plot was surveyed from the strip of land which had previously been reserved and registered as a street road. That up to 4 the time of survey, the land was not the property of the appellant. He added that none of the parties were involved in commissioning or causing the survey and mapping of the surrounding location. That in the case of Obeid Mtei vs. Rukia Omari [1989] TLR 111 it was stated that before making a survey it is the duty of the responsible officer to inter-alia make sure that; third party interests are not affected, and neighbours agree on the boundaries and consent to the exercise. That the records do not suggest that the appellant ever objected or withheld the consent to the survey. He therefore said that the re-survey is binding. Dr. Morris further said that none of the appellant's exhibits pointed out identification or proof of ownership. That the evidence of the appellant was in respect of un-surveyed land which did not indicate the exact boundaries of each plot. That in cross examination PW2 testified that the plots were jointly owned by Hamza Mangula and Zainab M. Kibodya. He said that the alleged joint owner (Mr. Hamza) was not party to the matter and was not called as a witness by the appellant and if a party fails to call a material witness the court is entitled to draw an inference that if the witness were called, he would have given evidence contrary to such party's evidence. He 5 relied on the case of Hemed Said vs. Mohamed Mbilu [1984] TLR 113. Counsel further said that respondent tendered and relied on Exhibits DI, D2, D3 and D4 which proved their ownership and reflected that measures would be taken by the Government against them if they did not comply with the terms of the granted Right of Occupancy particularly developing the land within statutory time frame. Dr. Morris added that it was confirmed by the appellant that she did not take any legal action against Kinondoni Municipal Council which she condemned to have wrongly re-surveyed the suit plots and re­ mapped her property. That the appellant even testified that her neighbouring plots are fully and squarely fenced. That the fact did not prove that the land authorities had cancelled the plots or have relocated them to her. He said PW2 confirmed on cross examination that the plots stand uncancelled and deregistered. That the two plots up to the moment belong to the respondents and are paid for by the respondents. That the suit plots were not obtained by fraud and that when allegations of criminal transactions are raised in civil cases the standard of proof raise to as close as that of criminal cases that is, beyond reasonable doubt. In support thereof he cited the case of 6 Omari Yusufu vs. Rahma Ahmed Abdulkadir [1987] TLR 169. Counsel insisted that the land allocating authority ought to be joined in the suit and that a mere parade of its officials to testify were insufficient to get an objective position of the matter. He prayed for the appeal to be dismissed with costs. There was no rejoinder submissions filed by the appellant. Having gone through the submissions by Counsel, the main issue for determination is whether this appeal has merit. As correctly stated by Dr. Morris, the grounds of appeal all revolve around the evaluation of evidence by the Tribunal. I shall therefore determine the appeal along the lines of the weight and evaluation of the evidence thereof. It is not in dispute by the parties that the suit plots were allocated to the respondents by Kinondoni Municipal Counsel after the survey of the said areas. However, the appellant claims that the suit plots were mistakenly allocated to the respondents since the survey procedures were not followed. PW2, a Land Officer from Kinondoni Municipal Council testified at the Tribunal that they discovered that survey procedures were not followed and therefore they required all 7 allocatees including the respondents to surrender their Letters of Offer. However, the respondents were issued with Letters of Offer from Kinondoni Municipal Council (Exhibit D2 and D4). These Letters of Offer were supposed to be surrendered to Kinondoni Municipal Council on the ground that they were mistakenly issued, but the process of revocation was not completed. In his testimony before the Tribunal PW2 said: 'We initiated revocation process by submitting to the Commissioner for Lands revocation recommendations. So up to now we have not received any information but we as Kinondoni Council played our part". It is obvious from the above testimony of PW2 that, the revocation process of the suit plots from respondents was not completed. That the allocation authority recommended revocation but no such revocation was done by Commissioner for Lands. In the circumstances I agree with the Chairman that the Letters of Offer stand valid and as there is no proof and/or any instrument of nullification or otherwise. It not in dispute that the area in which the suit plots are located was surveyed and it is the law according to section 2 of the Land Registration Act CAP 334 RE 2019 that the prima facie proof of ownership of land in a surveyed area is either 8 the Certificate of Title or Letter of Offer. In the said provision "owner" means: "/7? relation to any estate or interests the person for the time being in whose name that estate or interest is registered." In view of the above, the respondents stand as owners of the suit properties in terms of the Letters of the Offer granted until there is proof of revocation from the Commissioner for Lands. In the result the appeal lacks merit, and it is hereby dismissed with costs. It is so ordered. V.L. MAKANI JUDGE 29/10/2021 9