judgment makarambaf...munzerere, chairman on the 26th day of may, 2015, lodged the instant appeal...

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA

AT MBEYA

LAND APPEAL NO.61 OF 2018(Originating from District Land and Housing Tribunal of Mbeya in Land Application

No. 121 of 2013

ABDUL IBRAHIM.....................................................APPELLANT

VERSUS

1. AYUBU MWALEMBA.. RESPONDENTS

2. THE REGISTERED TRUSTEES OF BAKWATA

Last Order: 27/09/2018

Final Written Submissions: 02/11/2018

Judgment: 13/12/2018

JUDGMENT

MAKARAMBAf

On the 29th day of August, 2018, the Appellant, ABDUL

IBRAHIM, being dissatisfied with the Judgment and orders of the

District Land and Housing Tribunal of Mbeya delivered by Hon. T.

Munzerere, Chairman on the 26th day of May, 2015, lodged the

instant appeal before this Court on the following grounds;

1. That the District Land and Housing Tribunal erred in law and facts in declaring that the Respondent is (sic!) the owners (sic!) of the disputed land while the one who give (sic!) them have (sic!) no legal title to the disputed land.

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2. That the District Land and Housing Tribunal erred in law and facts for failure to consider the documents tendered by appellant's witness.

3. That the District Land and Housing Tribunal erred in law and facts in conducting un-maintainable procedure.

4. That the District Land and Housing Tribunal erred in law and facts in not considering the issue of two Title Deeds in one disputed house.

5. That the District Land and Housing Tribunal erred in law and facts when relied on hearsay evidence of respondent witness.

6. That the District Land and Housing Tribunal erred in law and facts when relied on documentary evidence tendered by the witness who had no legal capacity to tender the same.

7. That the District Land and Housing Tribunal erred in law and facts in giving ownership of the disputed land to the respondent without bearing on (sic!) mind the continuous occupation of the disputed land for 24 years from 6.2.1987 to 2011.

The Appellant prayed that the appeal be allowed with costs and

the whole decision of the Trial Tribunal be quashed.

At the hearing of the appeal, M/s Joyce M. Kasebwa, learned

Counsel appeared for the Appellant. The Respondents did not have legal

representation. They fended for themselves. The appeal with the

consent of the parties was disposed of by way of written submissions. In

the course of her submissions, M/s Joyce Kasebwa abandoned the

sixth (6th) ground of appeal. She submitted on the other six grounds of

appeal and hence this Judgment. In determining the appeal, I have

framed issues on the basis of the six grounds of appeal which I shall

traverse in the course of this Judgment.

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The first issue arising from the first ground of appeal is whether

the person who gave the disputed land to the Respondents had

lawful ownership.

The Appellant's Counsel submitted that the Respondents were

given the disputed land by a person who had no legal title to it. On the

27th day of August, 1986, Saada binti Mdenya, the original owner

and occupier of the disputed land gave it to her nephew, ABDUL

IBRAHIM, the Appellant herein. The Respondents claim that Saada

binti Mdenya gave them the disputed land in 1987 and it was

transferred to them on the 6th day of February, 1987. According to

the Appellant's Counsel, no one can give a better title than he himself

possesses, and that the person who takes in good faith and for value

without notice should get a good title, citing the statement by Denning

L7 in the persuasive authority in Bishopsgate Motor Finance

Corporation Ltd Vs. Transport Brakes Ltd [1902] AC 325 at 326.

The Appellant's Counsel further submitted that, at the time of the

alleged disposition between Saada binti Mdenya and the

Respondents, the former had no better title in the disputed land, since it

was already in the hands of ABDUL IBRAHIM, the Appellant herein.

The disposition between Saada binti Mdenya and the 2nd Respondent,

THE REGISTERED TRUSTEES OF BAKWATA, was therefore illegal,

the Appellant's Counsel surmised. Likewise, the Appellant's Counsel

further submitted, the decision of the Trial Tribunal is an illegality as it

defeats the Appellant's rights as the owner of the disputed land.

In reply to the submissions of the Appellant's Counsel on the first

issue, the Respondents submitted that on the 28th February, 1991,

the disputed land reverted to Saada binti Mdenya having requested it

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from Abdul Ibrahim and on the 16th day of September 1991, she

transferred it to the 2 nd Respondent.

The property at the center of the dispute between the disputants

in this appeal is a house on Plot No. 15 Block 30 in Mbeya City. The

Appellant, Abdul Ibrahim claim that it is in his ownership having been

gifted it by Saada binti Mdenya on the 27" day of August, 1986.

The 2nd Respondent also maintain very strongly that, the disputed house

reverted to Saada binti Mdenya on the 28th February, 1991 after

requesting it back from the Appellant and on the on 16th September

1991, Saada binti Mdenya transferred it to the 2 nd Respondent, THE

REGISTERED TRUSTEES OF BAKWATA.

On the respective submissions by the disputants on the first issue,

it is not in dispute that before the alleged transfer of the disputed land

by Saada binti Mdenya to the 2nd Respondent, the disputed land was

in the hands of the Appellant.

Before the Trial Tribunal, the Appellant tendered a Transfer

Deed, Exhibit PI for the transfer of the disputed house from Saada

binti Mdenya to the Appellant.

Mr. Mtawa Ka pa lata (Dw2) stated before the Trial Tribunal

that, the disputed house belongs to the 2 nd Respondent, BAKWATA —

Mbeya and that it was given to BAKWATA Mbeya by Saada binti

Mdenya as a wakfu. Dw2 tendered a Transfer Deed, Exhibit Dl.

Ayasi Njala (Dw3) stated that, in 1991 he was Chairman of

BAKWATA Mbeya when Saada binti Mdenya, the original owner gave

the disputed house to BAKWATA. Dw3 also stated that the original

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owner of the disputed house, Saada binti Mdenya gave it to

BAKWATA Mbeya "to be used by mosque attendants."

Daniel Mpomwa, a Land Officer (DW4) stated that, the disputed

plot was first allocated to Saada binti Mdenya on a short term right of

occupancy on a yearly basis from 29/11/1965. DW4 stated also that,

Saada binti Mdenya gave th e d isp u ted house to th e

Applicant/Appellant, Abdul Ibrahim who however did not turn up to

keep and maintain the disputed house. The Applicant did not renew the

ownership. Consequently, on 26/02/1991, Saada binti Mdenya

requested it back from Abdul Ibrahim and it was relocated to Saada

bint Mdenya on condition of paying the necessary fees and taxes,

which she paid. DW4 also stated that on 16/09/1991, Saada binti

Mdenya transferred the disputed plot to the 2 ' Respondent as

evidenced in the Transfer Deed, Exhibit Dl.

On the evidence on record, and as the Trial Tribunal rightly found,

the disputed plot formerly belonged to Saada binti Mdenya. On

27/08/1986 she transferred it to Abdul Ibrahim "out of love and

affection." There is no evidence on record however of the alleged

request by the former owner of the disputed house, Saada binti

Mdenya back from Abdul Ibrahim on 26/02/1991 as alleged by the

Respondents. The Trial Tribunal however, noted that there was a letter

dated 25/02/1991 from the Land Office explaining that the Applicant

had failed to maintain the disputed house, which was not tendered in

evidence before the Trial Tribunal. The trial Tribunal also observed that

the Applicant was served with a notice for termination and relocation of

the plot back to the former owner but the Applicant did no respondent.

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However, the said notice was not tendered in evidence and thus its

existence is highly doubtful.

The circumstances surrounding the allegations by the Respondents

that the disputed house reverted to its former owner who later

transferred it to the 2nd Respondent are shrouded in mystery as there is

no evidence on record which prove the reversion or the transfer.

Curiously, while it is being alleged that the Appellant failed to abide by

the terms and conditions of occupation of the disputed plot, and that the

former owner who had given it to the Appellant for love and affection,

requested it back and strangely, the disputed house was relocated to

her on condition that she abides by the terms of its relocation, which

she did.

Emanating from the alleged transfer of the disputed plot, two

questions arise. One, whether the process in the alleged first transfer by

way of gift of the disputed plot from Saada binti Mdenya to Abdul

Ibrahim "out of love and affectionwas completed by officers in the

Land Office Registry considering that the disputed plot is on registered

land.

The second question is whether the alleged second transfer from

Saada binti Mdenya to the 2 nd Respondent of the disputed plot as

wakfu, was equally so entered on the Land Registry and the relevant

law governing registration of wakfu properties in this country, namely,

the Probate and Administration o f Estates Act, the Trustees'

Incorporation Act and the Public Trustees Act. The evidence on record is

so scanty as to the manner in which the alleged wakfu in the disputed

house was created.

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In his Judgment, the Trial Tribunal Chairman seems to have been

convinced that, the transfer of the disputed plot from Saada binti

Mdenya to the Appellant was terminated due to the alleged failure by

the Appellant to renovate and pay land taxes, The Trial Tribunal seems

also to have been convinced that the former owner of the disputed

house, Saada binti Mdenya transferred it to the 2nd Respondent, and

according to the Trial Tribunal this transfer was proper for the reason

that the Appellant who had a short term lease ceased to own the

disputed house after failing to pay the relevant taxes and properly

maintain the property. The Trial Tribunal therefore concluded that the

Appellant had failed to renew his ownership over the disputed house

because he did not pay the necessary land taxes. All these conclusions

with due respect are not based on any evidence on record.

I have very carefully examined the evidence on record. There is a

letter dated 27/08/1986 by Sada Mdenya addressed to the Land

Officer Mbeya concerning Plot 15 Block 30 Mbeya town. In the

unsigned letter, its author, Sada Mdenya, expressed her reasons for

giving the disputed house to her son, Abdul Ibrahim, in the following

words:

"Sababuya kutaka kumuachia ni kama ifuatavya- Mimi kwa

wakati huu ni mzee ambapo naona siwezi kumudu kushughulikia

nyumba hiyo. Tena kila mara naumwa ambapo naona kuwa

sijiwezi. Kwa kuona matatizo hayo, nimeona afadhali nknwachie

mtoto wangu Abdu Ibrahim. Naomba jin a langu lifutwe na

kuandikwa jina la mtoto wangu ABDU IBRAHIM."

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It is worth noting that while testifying before the trial Tribunal,

Ibrahimu Amiri (Pwl) (68 years old) who represented the

Applicant/Appellant, Abdul Ibrahim, tendered in evidence a transfer

document dated 06th day of February 1987, the original of which was

examined by the Trial Tribunal, and was admitted in evidence without

objection as Exhibit PI. Furthermore, Pwl stated that the

Respondents had trespassed onto the disputed land in 2012, and that

Pwl had been paying rent until 2012. Pwl also tendered in evidence

land rent payment receipts, which were admitted without objection as

Exhibit P2. The rent assessment advice and land rent payment receipts

all appear in the name of Saada binti Mdenya but not Abdul

Ibrahim.

Furthermore, while testifying before the Trial Tribunal as Dwl,

one Ayoub Seleman Mwalemba, who claims to be a neighbour to the

disputed house, stated that the Chairman of BAKWATA Mbeya, one

Abdallah handed to him the disputed house to be its supervisor.

Further, that he (Abdallah) also gave him (Dwl) documents concerning

ownership of the disputed house, which he said that through those

documents Saada Mdenya gave the disputed land to BAKWATA in

1991 and Dwl tendered in evidence the transfer forms, which were

admitted in evidence without objection as Exhibit Dl.

Dw2, Mtawa Kapalata for his part stated before the Trial

Tribunal that, in 2002 he was called by a Land Officer, Kastor who told

him (Dw2) that there were two title deeds in the file of the

disputed house, and that the disputed house was given to Bakwata in

1991 by Saada Mdenya as wakfu as per Exhibit Dl. The testimony

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of Dw2, finds support in the statement of another witness, DW3, one

Ayasi Njala.

Dw3 stated that in 1991 he was the Chairman of Bakwata

Mbeya Region. During cross-examination Dw3 stated that he did not

know if the house had been given to any other person and that, the

house was given to BAKWATA before an Advocate, but there is no

writing and that, the house had been used since 1987 but nobody has

ever claimed it and that, Saada Mdenya passed away in 1999.

A Land Officer, one Daniel Mpomwa (Dw4) stated before the

trial Tribunal that, the disputed Plot No. 15 Block 30 Sokomatola,

was first allocated to Saada on a short term Right of Occupancy from

29/11/1965 on a yearly basis and that, the owner paid all necessary

fees and taxes. Dw4 referred to the letter dated 27/08/1986, alleged

written by Saada Mdenya and addressed to the Regional Land Officer

Mbeya expressing her intention to give the disputed land to Abdul

Ibrahim because she was too old and sick and that she transferred the

ownership on 06/02/1987, which transfer was effected by a Land

Officer by the name of J.A. Mwabakuje. Dw4 also stated that, on

25/02/1991, Saada Mdenya wrote another letter to the Land Officer,

Mbeya Region asking the Land Officer to change the ownership in the

disputed land from her child, Abdul Ibrahim to herself, which letter

was admitted in the Land Office on 26/02/1991, and it was acted

upon on 28/02/1991 by the Land Officer through a letter with

reference number MRL/3329/18/SKM. Dw4 further stated that the

disputed plot was relocated to Saada Mdenya, who paid all the

necessary fees and taxes for the newly relocated plot of land. Dw4

testified further that, on 16/09/1991, Saada Mdenya transferred the

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disputed plot to the 2nd Respondent, the Registered Trustees of

BAKWATA and on 17/09/1991 through a letter with reference

Number MBR/3329/22 SKM, the Land Officer as requested agreed to

transfer the disputed land from Saada binti Mdenya to the 2 d

Respondent, the Registered Trustees of BAKWATA. Dw4 also

stated that, on 20/06/2012, they received a letter from the VEO of

Mtaa w a K a t i , M b e y a with r e fe r e n c e n u m b e r

MCC/KT/MAC/MT/KT/91 dated 20/06/2012 where the VEO was

introducing the Applicant, Abdul Ibrahim who was informed by the 2nd

Respondent, the Registered Trustees of BAKWATA that, the

disputed house belongs to the 2nd Respondent. Dw4 however did not

elaborate on the existence of the alleged two title deeds over the

disputed plot. There is however no evidence on record of the existence

of the alleged two Title Deeds over the disputed plot.

When he was cross-examined, Dw4 stated that the fact that the

Applicant failed to pay taxes and to maintain the house, led to his

ownership over the disputed plot to automatically terminate. The

nagging question is whether ownership of the Appellant over the

disputed land automatically terminated because of his failure to pay land

taxes and to maintain the house or because of the alleged letter Saada

binti Mdenya wrote to the Land Office requesting back her disputed

house from the Appellant. There is no evidence on record however, to

establish if indeed the Appellant had failed to pay taxes and fees and to

maintain the house. It is worth noting here that the Appellant tendered

in evidence before the Trial Tribunal receipts showing that he had been

paying land rent over the disputed plot up and until 2010 albeit the

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name which appears on the said receipts is that of Saada binti Mdenya

who as we are told passes away in 1999.

Curiously, Saada binti Mdenya, who does not appear to be literate,

and who is alleged to have written an unsigned letter on 27/08/1986

to the Land Office expressing her intention to give the disputed and to

Abdul Ibrahim for the reason that she was too old and sick to take

care of the house, and that ownership over the disputed plot of land

was transferred on 06/02/1987, it seems that she had a change of

mind and wrote another letter to the Land Office on 25/02/1991,

requesting the Land Office to change the ownership over the disputed

land from her child, Abdul Ibrahim to herself! It is perplexing that the

reasons of old age and sickness seem to have improved with the age of

the donner of the disputed property. This Court is therefore left

wondering as to who was paying taxes and fees in respect of the

disputed plot as from 1987 to 1991 and who was taking care of the

house in that period. According to Dw4, Saada binti Mdenya was

paying all the necessary fees and taxes as from 29/11/1965 when she

was first allocated the disputed plot. Dw4 however did not inform the

Trial Tribunal as to who was paying such taxes and fees after the

demise of Saada binti Mdenya in 1999. When cross-examined, Dw4

stated that, the Appellant did not renew his ownership over the disputed

land from 1987 to 1990, which was a pre-condition for a plot of land

allocated on a yearly basis as was the case with the disputed land, and

that the Appellant was served with a Notice to show cause, which notice

however, Dw4 did not produce in evidence before the trial Tribunal. As

it would appear, Dw4 did not bother to tender in evidence some of the

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documents he had mentioned in his testimony as proof of the truth of

what he stated before the Trial Tribunal.

I have examined the Transfer Deed over the disputed Plot No.

15 Block 30, which does not mention Land Office Number, from Saada

binti Mdenya. The address of the donner and that of the Donnee, the

Registered Trustees of Masjid Al Junnaa is similar, P.O. Box 212 Mbeya.

Apparently the gift is "in consideration of natural love and affection." In

the section where it is written "signed and delivered by the said Saada

bind Mdenya", it is dated 31st day of May, 1991, but it is not signed

by the donner, Saada binti Mdenya. This is not surprising given that

the donner does not appear to be literate.

I have also examined the Transfer Deed (Exhibit PI), over the

disputed Plot No. 15 Block 30. This one bears the Land Office No. S.

46516 and the value of the property being transferred for purposes of

stamp duty is indicated as being Tshs. 98,0001=. The name of the

Donnee is Abdul Ibrahim of P.O. Box 28 Rujewa and the donner is

Saada binti Mdenya, but her P.O Box Number is not indicated. The guft

is also "In consideration of natural love and affection. "In the part where

it is stated "signed and delivered by the said Sada binti Mdenya," it is

dated 6th February 1987 and a thumb print of Sada binti Mdenya is

affixed thereto. On the reverse of Exhibit PI there is evidence of

payment of stamp duty with ERV receipt numbers indicated an also it is

stamped by the Land Office with the name of the Land Officer shown as

being Senior Land Officer by the name of J.A. Mwabakuje and with

approval of the disposition dated 6 th February 1987 with his signature

affixed thereto. On the reverse of the Transfer Deed dated 31st day of

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May, 1991 these features are missing thus raising doubts on its

authenticity.

Further, there is evidence on record of land rent assessment with

respect to the disputed land for the year 2010 for the months of March

and October and also some exchequer receipts for payment of land rent

for the said period by Saada binti Mdenya. These receipts were

tendered in evidence before the trial Tribunal by the Appellant through

his representative and were admitted without objection as Exhibit P2.

Interestingly, if indeed Saada binti Mdenya passed away in 1999 how

could it have been humanly possible for the Land Office to still continue

demand land rent from her while allegedly there were two transfer one

from her to her son on the 6th day of February 1987 and another

from her to the 2 nd Respondent on the 31sl day of May, 1991.

The Land Office for reasons not entirely clear to this Court, seems

to have forgotten that there were some other persons who were

supposed to have been paying land rent, that is, Abdul Ibrahim from

1987 to 1991 and the Registered Trustees for BAKWATA Mbeya from

1991 onwards, if indeed as they claim that the disputed house had

been transferred to them. There is no evidence on record of payment of

land rent or taxes by Abdul Ibrahim or the Registered Trustees of

BAKWATA Mbeya Region. Furthermore, there is no evidence on

record showing that the disputed land had ever been registered in the

name of Abdul Ibrahim or the Registered Trustees of BAKWATA

Mbeya. In his testimony before the Trial Tribunal, the Land Officer,

Dw4 hinted about two Title Deeds over the disputed plot but as I have

stated above Dw4 did not exhibit in evidence the said two Title Deeds,

which goes to establish that there were no such title deeds.

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On the evidence on record and emanating from what I have stated

above, the first issue whether the person who gave the disputed

land to the Respondents had no lawful owners of the dispute

land is to be answered such that the title over the disputed house is still

in the name of its original owner, Saada binti Mdenya.

On the strength of the re-evaluation of the evidence on record as

indicated above with respect to the first issue, the second issue

whether the trial Tribunal failed to consider the documents

tendered by appellant's witnesses is to be an in the

affirmative.

Submitting on the second issue, which relates to the second

ground of appeal, the Appellant's Counsel submitted that, one Ibrahim

Amri holding Powers of Attorney for the sick Appellant, appeared

before the Trial Tribunal and submitted, but this is not so reflected on

the record of the proceedings of the Trial Tribunal. This submission with

due respect is not entirely true. The record for the proceedings of the

Trial Tribunal dated 26/02/2015 when Ibrahim Amiri testified, it is

recorded at page 16 of the typed proceedings thus: 'Am representing

the applicant because is sick and very old. "Similarly, at page 2 of

the typed Judgment of the Trial Tribunal it is stated as follows: "During

the hearing the appellant who was represented by Ibrahimu

Amiri testified.." In my considered opinion the rendering that

Ibrahimu Amiri was "representing the Appellant' sufficed even without

mentioning specifically that he was holding Powers of Attorney for the

Appellant. In any event, the very fact that the Trial Tribunal allowed

Ibrahimu Amiri to represent the Appellant, to testify before it, and to

tender documentary evidence, is conclusive of the fact that he was

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recognized by the Trial Tribunal as being the legal representative of the

Appellant and he has continued so to act even before this Court.

I am at one with the submissions of the Appellant's Counsel that

Ibrahimu Amiri produced documentary evidence, namely; Letter of

Offer and Transfer Form from Land Registry, to establish the Appellant's

title under the disputed premises, but the Trial Tribunal totally

disregarded them without assigning any reasons. The Appellant's

Counsel further submitted that, in the Letter of Offer, the Appellant and

the late Saada were required to go and sign the Transfer Forms to

finalize the intention of Saada to give the Appellant the disputed land,

which they did not. This particular piece of statement however, does not

appear anywhere in the record of the proceedings.

Submitting on the second issue, the Respondents stated that the

representative of the Appellant, Ibrahim Amiri, tendered before the

Trial Tribunal transfer deed from Saada Mdenya to Abdul Ibrahim dated th

27 day of August 1986, which was admitted as Exhibit PI, and

which was considered by the Tribunal at page 3 of its Judgment.

As I have pointed out above, much as the Trial Tribunal indeed

admitted in evidence the Transfer Deed from Saada Mdenya to Abdul

Ibrahim dated 27th day of August 1986 as Exhibit PI, it only made

passing remarks on the evidence but did not analyze its contents and

compare it with the Transfer Deed dated 31sl May 1991 from Saada

binti Mdenya to the 2 nd Respondent, as I have amply reviewed and re

evaluated it herein above.

The third issue is whether the trial Tribunal conducted an

un-maintainable procedure. The Appellant's Counsel submitted that

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the Respondents had raised a preliminary objection, and the parties

mutually had agreed to dispose it by written submissions, to which the

Tribunal agreed, but the submissions were never made and Tribunal did

not make any ruling on the objection.

The Appellant's Counsel submitted further that, rules of procedure

are like handmaid of justice rather than mistress quoting Collins MR in

In the Matter of an arbitration between Coles and Ravenshear

[1907] 1 KB 1„ and further that rules of court and orders must be

respected, court is duty bound to aply the rules at all times stringently in

order to ensure the machinery of administering justice is nit hampered.

The Appellant's Counsel cited before this Court two unreported

cases; Harold Maleko vs. Harry Mwasanjala, DC Civil Appeal No.

16 of 2000 (unreported) and Olam Tanzana Limited vs. Halawa

Kwilabya DC Civil Appeal No. 17 of 1999 (unreported), all of which

emphasize that, "the order of the court for written submissions is

binding and must be obeyed and implementedand that "...it is part of

the hearing and ...so if a party fails to act within the prescribed time he

will be guilty of indulgence in like manner as if he defaulted to appear."

The Appellant's Counsel also cited the case of Chawe vs CHawa Misc.

Civil Application No. 22 of 1998 (unreported), on the legal position

that, "...failure to file written submissions on the part of Applicant's

Counsel is an omission which constitutes want o f prosecution -

application to be dismissed on that account" The trial Tribunal did not

give any ruling regarding default in filing written submissions, which is

the reason for maintaining that the trial Tribunal followed un

maintainable procedures as it departed from the procedures of the

Court, the Appellant's Counsel surmised. The Respondents replied very

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briefly that all the procedures were correctly adhered to by the trial

Tribunal.

Indeed from the record of the proceedings dated 08/06/2014,

the Chairman of the Tribunal issued orders for the disposal by way of

written submissions of a preliminary objection the Respondent thereat,

Ayub Mwalemba, the Is1 Respondent herein, had raised, but the

record does not show if the parties submitted on the said preliminary

objection. In paragraph 1 of the reply to the Land Application No.121

of 2013, the Respondent thereat, Ayub Mwalemba who is the Is1

Respondent in this appeal, had raised a preliminary objection on a point

of law that, the Applicant thereat, Abdul Ibrahim, the Appellant

hereat, has no cause of action against the Respondent. The

record shows that on the 9th day of June, 2014, the Advocate for the

Applicant lodged an application before the Trial Tribunal with a prayer

that, since it had been more than 17 days from the date the Tribunal

issued the order for submissions on the preliminary objection, and the

Respondent had yet to comply with that order, then the preliminary

objection be overruled, and the case to proceed to hearing. Apparently

as the record shows on 16/06/2014, the Respondent prayed before

the Tribunal to accept the amendment to the pleadings, which prayer

the Tribunal granted, and the 2nd Respondent was added. In my

considered view, the Respondent having raised a preliminary point of

objection and having failed to comply with the orders of the Trial

Tribunal for filing submissions in support of the preliminary objection,

the Trial Tribunal cannot be blamed on the apparent negligence and lack

of diligence by the Respondent. In any event, the Respondent having

prayed for amendment of his pleadings to implead the 2 nd Respondent,

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which prayer was duly granted by the Trial Tribunal, this prayer

technically had the effect of the preliminary objection he had raised

being deemed to have been abandoned as it had been overtaken by

events. There is nothing therefore unprocedural about the manner in

which the Trial Tribunal conducted itself in the circumstances.

The fourth issue is whether the trial Tribunal failed to

consider the two Titles on one disputed house. The Appellant's

Counsel submitted that, Dw2, Mtawa Kapalata testimony before the

Trial Tribunal that there were two title deeds over the disputed land was

incorrect. The Respondents called a Land Officer and in his evidence he

never mentioned anything about the alleged two titles. The Appellant's

Counsel submitted further that the Trial Tribunal did not direct itself on

the facts as to how all the parties came into possession of title over the

disputed land while the disputed premises has no title or never was it

given title besides the Letter of Offer, which the Appellant tendered

before the Trial Tribunal. If the Respondents were occupiers of the

disputed premises they would have known that the disputed land has

only a Letter of Offer and they could have been the ones paying land

rent to the Land Registry, the Appellant's Counsel further submitted.

In reply the Respondents simply stated that it has not been showed

that there were two Title Deeds and whether they were in existence.

The Appellant claim to have been gifted the disputed land by her

aunt Saada binti Mdenya, since deceased, on 27th day of August,

1986. The Appellant's Counsel submitted that the Respondents allege to

have also been given the disputed land by Saada binti Mdenya in

1987 and that the same was transferred to the 2 lld Respondent on 6th

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day of February, 1987. The Respondents maintain that Saada binti

Mdenya gifted the disputed land to Abdul Ibrahim, but she claimed it

back and in 1991 (28th February, 1991) thus ownership reverted to

her and in the same year she transferred it to the 2nd Respondent after

giving it as wakfu.

On what I have pointed out above when dealing with the first

issue on ownership of the disputed land i I am at one with the

submissions by the Appellant's Counsel that, there is no evidence on

record that there were two titles in respect of the disputed land,

otherwise the Land Office would have been in the know of the existence

of those two Title Deeds. As such there is only a Letter of Offer which

was issued to Saada binti Mdenya in 1965. There being only a Letter

of Offer and in the absence of the existence of any Title Deed with

respect of the disputed land, and there being no evidence of transfer of

ownership over the disputed land, ownership over the disputed property

is still in the name of Saada binti Mdenya. As the Appellant's Counsel

rightly submitted, if the Respondents were the lawful occupiers of the

disputed premises they would have known that the disputed land has

only a Letter of Offer and they could have been the ones paying land

rent to the Land Registry. As I have pointed out above, the name of

Saad binti Mdenya, who we are told that she passed away in 1999,

still appears in the land rent demand notice and even on exchequer

receipts for payment of land rent, but not the names of Abdul Ibrahim

or the Registered Trustees of BAKWATA Mbeya.

The fifth issue is whether the Trial Tribunal relied on

hearsay. The Appellant's Counsel submitted that none of the

Respondents' witnesses testified before the Trial Tribunal on seeing the

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alleged handling of the disputed land to the 2nd Respondent by Saada

binti Mdenya as a wakfu. In this regard the Trial Tribunal flouted the

best evidence rule by relying on hearsay evidence.

In reply the Respondents submitted that Dw3, Ayasi Njala,

testified before the trial Tribunal that, he was the Chairman of

BAKWATA in 1991 when Saada binti Mdenya gave the disputed

house to BAKWATA. The evidence of the Land Officer from the Land

Registry even if he was not present at the time of giving the disputed

land in wakfu, his testimony cannot be said to be hearsay, the

Respondents insisted.

As I have pointed above when determining the Is 1 issue on

ownership of the disputed land, I am at one with the Appellant's Counsel

that there is no any evidence of the gift of the disputed house by Saada

binti Mdenya to the Registered Trustees of BAKWATA Mbeya as

wakfu. Apparently apart from the testimony of the then Chairman of

BAKWATA Mbeya Region, there is no documentary evidence from

BAKWATA, a legally registered entity, with an office and staff, as to the

existence of any wakfu over the disputed house. Trial Tribunal as the

Appellant's Counsel rightly submitted therefore acted on hearsay as to

the existence of wakfu over the disputed house.

The sixth issue is whether the trial Tribunal failed to

consider continuous occupation by the Appellant o f the

disputed land for 24 years from 06.02.1987 to 2011 when the

dispute arose.

The Appellant's Counsel submitted that Saada binti Mdenya

gifted the disputed house to the Appellant, who has been paying land

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rent and has been using the house until 2011 when the Respondents

started to invade into it. The Appellant's Counsel cited before this Court

the case of Balikulije Mpunagi vs Nzwili Mashengu [1966] HCD

pg. 20, where Cross J., found that the appellant in that case had been

in possession of the disputed land for a long period of about 27 years

cultivating and developing it, while the Respondent did nothing to stop

them. His Lordship continues to state that, "contrary to principles of

equity whatever the appellant's original claim over the land to deprive

the appellant of his rights over the land which he acquire over his long

period of occupation." The Appellant's Counsel also cited before this

Court the case of Nassoro Uhadi vs Musa Karunge [1982] TLR 302

where it was stated that application to recover land is twelve years and

in that case the Respondents claim's over the land was over 24 years

since the Appellant owned it legally in 1987.

The Respondents replied that they have been in possession of

disputed land since 1991. Further that, there is no evidence that the

Appellant was in use and possession of the disputed land from 1987 to

2011. The Respondents submitted further that the issue is not about

the Appellant paying rent from 1987 but ownership and use of the

disputed land by the Respondents for more than 12 years as per the

Law of Limitation Act.

The Respondents cited the case of The Registered Trustees of

the Holy Spirit Sisters Tanzania vs January Cam Hi Shayo & 136

Others Civil Appeal No. 193 of 2016 (unreported) where it was held

that, "...possession could not be adverse if it could be referred to lawful

title „permissive or consensual occupation is an adverse possession — it

is occupation inconsistent with the denial of the true owner of the

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premises. "The Respondents surmised that the Appellant has failed to

establish whether he was actually in possession of the disputed house,

and that the Respondents have been using the disputed house from

1991 thus proving their ownership over it.

On the evidence on record, the issue is whether the Appellant has

established use and occupation of the disputed house for 24 years

from 06.02.1987 to 2011. The Respondents have not managed

to establish ownership over the disputed land. As such the Appellant

established through Exhibit PI, the Transfer Deed, that the disputed plot

was transferred to him. The principle of adverse possession does not

therefore arise in the circumstances of this case. The Respondents who

claim to have come into possession of the disputed land in 1991, have

failed to prove even on a balance of probability as to who in their

estimation was in occupation and use of the disputed house as from

1991 to 2011 when the dispute over the ownership of the disputed

house arose. This is more than 20 years.

On the evidence on record, it appears that payment for land rent

over the disputed land since 1987 up and until 2010 was being

received in the name of Saada binti Mdenya. Much as it is

immaterial as to who was paying the land rent, but the Respondents did

not bring any evidence before the Trial Tribunal to prove that they were

the ones paying land rent.

It is for the above reasons that this Appeal is partly allowed to the

extent as it is shown herein above.

The decision and orders of the District Land and Housing Tribunal

for Mbeya at Mbeya in Land Application No.121 of 2013 dated

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26/05/2015 (T. Munzerere, Chairman) is hereby quashed and set

aside. The purported transfer of the disputed house on Plot No. 15

Block 30 in Mbeya City from Saada binti Mdenya to the 2nd

Respondent, The Registered Trustees of BAKWATA Mbeya vide the

Transfer of Right of Occupancy dated 31sl of May 1991 is void. It is

therefore of no effect.

The transfer of the disputed house on Plot No. 15 Block 30 in

Mbeya City from Saada binti Mdenya to the Appellant, Abdul

Ibrahim vide the Transfer of Right of Occupancy dated 6th o f

February 1987 is valid. It is hereby upheld. The disputed house on

Plot No. 15 Block 30 was legally transferred to the Appellant Abdul

Ibrahim by Saada binti Mdenya and that transfer has not been revoked.

The Appellant, Abdul Ibrahim is hereby declared to be the lawful owner

of Plot No. 15 Block 30, Mbeya City.

The nature of this matter is such that I shall not make any order

for costs. Each party shall bear its own costs in this appeal. It is so

ordered.

Dated at Mbeya, this 13th day of December, 2018.

Wi._______

R.V. MAKAR AM BA

JUDGE

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judgment makarambaf...munzerere, chairman on the 26th day of may, 2015, lodged the instant appeal...

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