IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM

fCORAM: KOROSSQ. J.A.. KITUSI. J.A. And FIKIRINI. J J U

CIVIL APPEAL NO. 311 OF 2020

JACQUELINE JONATHAN MKONYI........................................1st APPELLANT
ABDALLAH MAKATTA t/a SENSITIVE ACTION MART ...... 2nd APPELLANT

VERSUS
GAUSAL PROPERTIES LIMITED............................................RESPONDENT

(Appeal from the Judgment and Decree of the High Court of Tanzania at
Dar es Salaam)

fMlvambina. J.1
)

dated the 23rd day of August, 2019

in
Land Case No. 85 of 2016

JUDGMENT OF THE COURT

29th May & 12th June, 2023

KITUSI. J.A.:

This appeal originates from Land Case No. 85 of 2016 in which the

High Court (Mlyambina, J.) declared the plaintiff, the present

respondent, the rightful owner of the disputed piece of land measuring

about five and a half acres, located at Kunduchi Mtongani area in the

City of Dar es Salaam. Incidentally, although the disputed piece of land

is physically the same, the respondent sought to establish title to it

through documentary exhibits of survey and certificate of title, just as

did the first appellant in claiming title to the very piece of land. Each had

a survey plan and certificates of title bearing numbers distinct from the

other's, as the relevant paragraphs in their pleadings demonstrate. The

respondent alleged that she purchased the suit land on 15th March, 2011

and she pleaded as follows and we deliberately reverse the order of

numbering

"8. That when the plaintiff was purchasing the suit

premises; the same was unsurveyed piece o f
land measuring five and half acres whereas upon
purchasing the same; the plaintiff duly surveyed
the same vie survey plan No. E'355/1171 o f
09/02/2012 where the whole suit premises was
categorized as Plot No. 1, 2 and 3 "F" Kunduchi
Mtongani, Dar es Salaam. Copy o f the Survey
Plan No. E'355/1171 o f 09/02/2012 is attached
marked ”F"

5. That the plaintiff is the lawful owner o f the

premises described as Plot No. 1, Block "F"
Kunduchi Mtongani, Dar es Salaam comprised
under the Certificate o f Title No. 120618, Plot No.
2, Block "F", Kunduchi Mtongani, Dar es Salaam
comprised under Certificate o f Title No. 120617;
and Plot No. 3, Block "F", Kunduchi Mtongani,
Dar es Salaam comprised under the Certificate of
 Title No. 120616 herein referred to as the suit
premises. Copies o f the Certificate o f Titles No.
120618, No. 120617 and No. 120616 are
attached marked "A" "B"and "C"respectively."

On the other hand the appellant's claim rested on the following

pleadings:-

"3. That the contents o f paragraph 5 o f the plaint

are totally disputed, the Defendants aver that the
First Defendant is the lawful owner o f the suit
premises located at Dar es Salaam Bahari beach
Area Block "A", described as Plot No. 2371/1;
238 and 239 which are held under certificate o f
occupancy Number 58133 and 54134 and further
denies the fact that the suit premises described
as plot no. 1, with certificate o f title No. 120618,
Plot No. 2 with certificate o f title No. 120617 and
plot No. 3 with certificate o f title No. 120616 as
described by the Plaintiff.

Copies o f certificate o f Title which prove the

ownership over the plots are hereby attached
and marked as J-Mkonyi-2 Leave o f the court is
craved to form part o f this defence.

5. That, the contents o f paragraph 9 o f the plaint

are strictly denied, the Defendants avers that the
First Defendant is the lawful owner o f the suit

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 premises and the purported Plaintiff's titles over
the suit premises are cancelled and do not exist"

On those pleadings the High Court drew one main issue namely:

"1. Who is the rightful owner o f the suit premises

described as Plots No. 1, 2 and 3 Block F.
Kunduchi, Mtongani Dar es Salaam, also known
as Plots No. 237/238/1 and 239 Block "A " Bahari
Beach, Dar es Salaam."

After receiving evidence from both parties, the trial court resolved

the above issue in favour of the respondent and, as already intimated,

declared her the rightful owner of the suit plots. There lies the first

appellant's grievance, hence this appeal. The background of this case

consists of two versions each representing the rival claims over the suit

land which we shall interchangeably be also referring to as the disputed

land or land in dispute.

The first appellant alleged and testified that her father Jonathan

Philemon Mkonyi and her uncle Adrian Shayo purchased the suit land

from one Mathias Mchaka in 1983 by paying for the same in two

instalments. Subsequently Jonathan Philemon Mkonyi and Adrian Shayo

transferred the disputed land to the first appellant by way of a gift.

Thereafter the first appellant had the land surveyed and registered in
her name. We shall refer to the details of the survey and registration

later.

Additionally, the first appellant alluded to two disputes over the

land, one involving somebody Amaniel Mrutu who was in the habit of

uprooting the beacons installed by her. It appears that this Amaniel

Mrutu was doing so on the ground that he had a registered title to the

same land too. When the first appellant complained to the Ministry of

Lands, Mrutu's title was revoked.

The second dispute involved a person known as Edgar Mkwaya,

against whom the first appellant instituted Land Case No. 132 of 2012.

That case ended in the first appellant's favour because Mr. Mukwaya

admitted, during preliminary stages, that he had no interest in the

disputed land. Judgment on admission was therefore entered in favour

of the first appellant. It was the appellant's intention to execute the said

judgment on admission which brought the respondent into the arena. It

happened that the respondent was in occupation of the land and her

security guards would not let the first appellant in. She had to refer the

matter to the Chairman of Kondo hamlet one Khamis Nonga Haule

(PW3) seeking his intervention. PW3's testimony is that he knew the suit

land to belong to the respondent so he called her director known as

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Salutary John Meja (PW1) and he went to PW3's office only to learn of

the first appellant being a decree holder in Land Case No. 132 of 2012

which declared her rightful owner of the suit land.

Since the respondent was not a party to the proceedings that led

to the judgment on admission, she instituted objection proceedings but

did not succeed. She then filed the suit that has given rise to this

appeal.

The respondent's claim is that the original customary owner of the

disputed land was one Mathias Msaka who sold it to Maturo Paulo

Sebarua (PW2) on 28/4/1975 for shs 18,000/=. On 15/3/2011 PW2 sold

that land to the respondent for Shillings 450,000,000/=. Three sale

agreements were collectively exhibited as P2 to substantiate the

respondent's claim. These are; the sale agreement dated 28/4/1975

between Mathias Msaka and Matulo Paulo Sebarua, the sale agreement

between Matulo Paulo Sebarua and the respondent witnessed by the ten

cell leader and the hamlet Chairman and another sale agreement

between the same parties before an advocate Notary Public and

Commissioner for Oaths known as Margareth Ringo. According to PW1,

supported by Christina Yohana Warioba (PW4), at the time of the sale of

the land by PW2 to the respondent, PW2 was still occupying the land,

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and after the sale in 2011, the respondent took possession of the land

and became PW4's neighbour. The respondent surveyed the same land

too and got it registered in her name. We shall also refer to the details

of the second survey a little while later.

Back to the details of the survey by the first appellant. She stated

that she initiated the process by a letter to the Ministry of Land attached

with a copy of the sale agreement in favour of her father and uncle as

buyers. Eventually the disputed land was surveyed and registered in her

name as Plots No. 237/1, 238/1 and 239 Bahari Beach.

Adelfrida Camilius Lekule (DW4) an officer in the office of Assistant

Commissioner for Lands in Dar es Salaam testified in support of the first

appellant being the registered owner of plots No. 237/1, 238/1 and 239

Bahari Beach as the survey No. E. 252/71 that led to the registration of

those plots was the approved one. Those other surveys initiated by

Aminiel Mrutu and that by the respondent were nullified by the Director

of Survey and Mapping on the ground that they were surveys over an

existing survey. DW4 stated in addition that the decree in Land Case No.

132 of 2012 in favour of the first appellant was another basis for the

decision of the Director of Survey and Mapping nullifying the other

surveys.
 According to DW4, the survey of the Plots in favour of the first

appellant was prompted by her letter dated 29/12/1999 and another

letter dated 31/12/1999 by the Ward Executive Officer of the area

introducing her as the owner of the land. DW4 said there was no copy of

the sale agreement but the survey proceeded on the strength of the

introduction letter by the W.E.O.

On the other hand, the respondent testified that she wrote a letter

dated 1/12/2011 through the W.E.O which had the approval of the

Municipal Director requesting for survey of the disputed land. The

respondent's request was granted and the disputed land was surveyed

vide survey Plan No. E. 355/1171 registering it as Plots No. 1, 2 and 3

Block "F" Kunduchi Mtongani. The letter of request dated 1/12/2011 and

the survey Plan No. E 355/1171 were collectively tendered and admitted

as Exhibit P3.

In resolving the dispute of ownership, the learned trial judge

applied the principle of tracing of ownership from the original owner.

In Ombeni Kimaro v. Joseph Mishili c/a Catholic

Charismatic Renewal, Civil Appeal No. 33 of 2017 (unreported), we

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applied the priority principle and relevant to our instant case is the

following excerpt.

"The priority principle is to the effect that where

there are two or more parties competing over the
same interest especially in land, each claiming to
have title over it, a party who acquired it earlier
in point o f time will be deemed to have a better
or superior interest over the other."

We shall subject the competing claims of the parties in this case to this

test. We think the principle of tracing applied by the learned trial judge

and the priority principle referred to in the above case are one and the

same.

To begin with, the respondent presented oral evidence of PW1,

PW2 and PW4. As the director of the respondent company, PW1 signed

an agreement in which PW2 was selling the disputed land to her. At the

time of the sale, PW2 surrendered to PW1 a previous sale agreement

between him and the original owner Mathias Msaka. PW4's testimony

supports PW2's that at the time of the sale of the land by PW2 to the

respondent, PW2 was occupying the disputed land which was near

PW4's residence.
 There is also documentary evidence tendered by the respondent.

One, the sale agreement between Mathias Msaka and PW2. Two, the

sale agreement between PW2 and the respondent witnessed by the

WEO and the ten-cell leader. Three, the sale agreement between PW2

and the respondent signed before advocate Ringo. These documents

were collectively admitted as exhibit P2. There are also documents

detailing the process of surveying the area, tendered as exhibit P3.

As for the appellant's case she also adduced oral evidence to

support it. She testified as DW2 that her father and her uncle gave her

the disputed piece of land out of love and affection. One Said Ally

Nakwala (DW1) testified that in 1983 he was the Secretary of the village

at Kunduchi Mtongani and also CCM branch secretary. In those

capacities, he witnessed sale of the disputed land by Mathias Mchaka to

Jonathan Mkonyi and Mr. Shayo, presumably the first appellant's father

and uncle respectively.

In terms of documentary exhibits, the first appellant had none to

prove how her father and uncle acquired the suit land before giving it to

her. This is because DWl's prayer to tender the sale agreement did not

succeed. The first appellant's chief basis for asserting interest over the

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disputed land was the survey and certificate of title issued in her favour

by the Director of Mapping and Survey and the Land Office.

The learned trial judge accepted the respondent's version and

rejected the first appellant's. The ground for accepting the respondent's

version was that she proved ownership by establishing how the land

changed hands from Mathias Msaka to PW2 who in turn sold it to her. In

rejecting the first appellant's case the learned Judge cited the case of

Rashid Baranyisa v. Hussein Ally [2001] TLR 470, holding that mere

survey and registration of land does not turn the original customary

owner into a squatter. The learned judge attached no evidential value to

the survey of the land and registration thereof in favour of the first

appellant because, he observed in part:-

"The right o f occupancy o f the defendant stems

from the air. There is no any foundation stone
(document) giving right to the defendant that
prompted the Ministry o f Land to survey the suit
land for the benefit o f the defendant"

According to DW4 the survey and registration of the disputed land in

favour of the first appellant proceeded on mere trust of introductory

letters by the leaders of the local government.

 The learned Judge proceeded to declare the respondent the

rightful owner of the disputed land and nullified the survey plan as well

as certificates of title that had been issued to the first appellant.

That finding has attracted three grounds of appeal reproduced

below:-

1. That the Honourable Judge erred in law and fact by

declaring the Respondent as the lawful owner o f the
disputed land while there is existence o f another Judgment
o f the same Court declaring the 1st Appellant as the lawful
owner o f Plot No. 237/1, 238/1 and 239 Block "A" Bahari
Beach Area Dar es Salaam; Land Case No. 132 o f 2012.

2. That the Honourable Judge erred in law and fact by

nullifying the title deed for Plot No. 237/1, 238/1 and 239
Block "A" Bahari Beach Area Dar es Salaam issued earlier
and maintaining the Title deed for Plots No. 1, 2 and 3 Block
"F" Kunduchi Mtongani issued and registered later over the
same piece o f land.

3. That the Honourable Judge erred in law and in fact by

declaring the Respondent as the lawful owner o f Plots No. 1,
2 and 3 Blocks "F" Kunduchi Mtongani while the said Title
deeds were revoked by the Commissioner for Lands on the
reasons that they were fraudulently.

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 The appeal was prosecuted by Mr. Imam Daffa, learned advocate

for the appellant and Messrs. Leonard Manyama and Sylvanus Mayenga

learned advocates for the respondent. The stakes are, without doubt,

enormously high on both sides.

It has been submitted for the first appellant in respect of the first

ground of appeal that since the High Court had in Land Case No. 132 of

2012 declared the appellant the rightful owner of the disputed land, the

same court could not later in Land Case No. 85 of 2016 declare the

respondent the lawful owner of the same piece of land. Addressing us

further the learned counsel submitted that the respondent ought to have

applied for revision of the decision in Land Case No. 132 of 2012 if she

wanted to assert her interest in that land. The letter of the Director of

Survey and Mapping invalidating the survey that was conducted in

favour of the respondent and endorsing as lawful the survey made in

favour of the appellant, has been relied upon to make a case for the

appeal to be allowed on the basis of ground one.

It has been argued in opposition to the above arguments that the

High Court found it odd that the appellant preferred Land Case No 132

of 2012 against a person who was not in occupation of the land and left

out the respondent who was in actual occupation of that land. It is

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further argued that the respondent followed the procedure under Order

XXI Rule 57 (1) of the Civil Procedure Code (CPC) by filing objection

proceedings and when she did not succeed, she instituted Land Case

No. 85 of 2016 to establish her interest, as per Order XXI Rule 62 of the

CPC. The respondent's counsel cited three decisions to support his

argument. These are; Bank of Tanzania v. Devram P. Valambhia,

Civil Reference No. 4 of 2002, Kezia Violet Mato v. National Bank of

Commerce 3 Others, Civil Application No. 127 of 2005 (both

unreported) and Katibu Mkuu Amani Fresh Sports Club v. Dodo

Umbwa Mamboya and Another [2004] TLR 326.

In addition, counsel has argued that Land case No. 132 of 2012

against Edgar Mukwaya could not be executed against the respondent

who was not a party to it. He cited the case of Mariam Ndunguru v.

Kamoga Bukoli and Others [2002] TLR 417.

We shall address the question regarding who was in actual

occupation of the suit land at the time of the settlement order in Land

Case No. 132 of 2012. There is evidence of PW3 who was the chairman

of the street within which the suit land is located. There is also the

evidence of PW4 a neighbour to the suit land. They testified that it is the

respondent who was in actual occupation of the land in dispute such

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that when the first appellant accompanied by the Court Broker,

presented to PW3 an order of eviction from the suit land, PW3 was

surprised and he called the respondent's director because he knew that

the land belonged to the respondent.

We accept the evidence of PW3 and PW4 as true and, like the

learned trial Judge, we wonder why the first appellant did not implead

the respondent in Land Case No. 132 of 2012. There is also one curious

aspect to this matter which suggests that the first appellant was aware

of the respondent's presence in the suit land. This is that, the said Land

Case No. 132 of 2012 was determined by a settlement signed on

17/2/2016. Why did it occur to the first appellant later that she should

employ a court broker to evict a person who had allegedly settled the

dispute amicably hardly a month earlier and even had to recruit services

of the local leaders (PW3)? In our consideration, the above conduct

offers a clue to the fact that the first appellant was aware that a person

other than the judgment debtor in Land Case No. 132 of 2012 was in

actual occupation of the suit land.

Whatever answer is given to the above question, we also ask

whether the decree in favour of the first appellant in Land Case No. 132

of 2012 conferred her title to the land as against the whole world. Way

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back in 1972, in Issack Nguvumali v. Petro Bikufake (substituted

by Mtalikwa Bikulake) (1972) H.C.D 139 the High Court held that in

land cases judgment in favour of a party is not always judgment against

the whole world so it does not bind those who were not parties, and res

judicata cannot apply. That decision is persuasive.

Certainly, the defendants in Land Case No. 85 of 2016 could not

and did not plead res judicata because for that doctrine under section 9

of the CPC to apply even where the subject matter in the previous case

is the same as in the subsequent, the parties must be the same or

litigating under the same titles, which was not the case here. So, Mr.

Mayenga learned advocate has a valid point, in our view, in suggesting

that the defendants should have raised that argument if they considered

the respondent bound by the decision in Land Case No. 132 of 2012. As

the Court held in the case of Mariam Ndunguru (supra) cited by the

respondent's counsel there is a difference between "a judgment in

personam, described more accurately as a judgment interpartes"and a

judgment "in rem" The High Court then posed a question and provided

answers as follows

"It was only in the judgment o f the court in

which the appellant was dedared '"the true

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 owner o f the suit land". Did this declaration
extend to third parties such as the respondents
herein o f the reliefs? I do not think so in view of
the reliefs sought in the plaint the decision o f the
trial court must be construed to have been that
the appellant was the true owner o f the land as
against the defendants in the suit only".

More recently in Masumbuko Kowolesya Mtabazi v. Dotto

Salum Chande Mbega, Civil Appeal No 44 of 2013 (unreported), we

cited the above decision of the High Court with approval so it is the

correct position of the law rendering the first appellant's arguments in

the first ground of appeal unmaintainable. The Masumbuko case

(supra) also rhymes with Issack Nguvumali (supra), also judgment of

the High Court, in its reference to the principles of res judicata, already

discussed above. For those reasons, we dismiss the first ground of

appeal for want of merit.

We turn to the second and third grounds of appeal. The second

ground of appeal relates to the status of the survey and registration of

the suit land as Plots 1, 2 and 3 done over the existing survey and

registration of the same piece of land as 237/1, 238/1 and 239. In

support of this ground of appeal, counsel for the first appellant

demonstrated that the certificates of title for that land were issued to

her in 2003 well before the respondent purportedly obtained hers in

2012. He also referred to letters from the Director of Survey and

Mapping nullifying the latter survey for being wrongly superimposed

over the existing one.

On the other hand, the respondent supports the trial court's

decision for being based on background tracing of ownership. Mr.

Manyama for the respondent submitted that none of the parties alleged

to have been allocated the suit land by the government, therefore it was

incumbent upon each to prove how she got it before the survey and

registration. He referred us to part of the testimony of PW1 where he

had stated

"The main proof o f ownership is legality of

ownership; how one gets the area from whomf
how, the procedure used to survey, apply for
ownership up to the title."

There is no contention by the first appellant that the above

excerpt though by a lay person, does not state the correct procedure.

Upon our consideration of the evidence and submissions made by

counsel for the parties, we have no hesitation in saying that the

respondent made a better case than the first appellant. We wish to

observe that this is not a case of the end justifying the means, so we

agree with the submissions made by Mr. Manyama and the finding of

the trial court that registration of land would not ipso facto prove title in

the absence of evidence establishing how one got the title. In this case

there is evidence of PW1, PW2 and PW4 showing how ownership of that

land changed hands from one person to the other till it was sold to the

respondent. There is also documentary evidence as earlier

demonstrated.

There is, we are afraid, no similar chronology narrated by the first

appellant as to how her father got the land before passing it over to her.

The local leader who wrote a letter to the Ministry of Land introducing

the first appellant as the owner of the suit land, had nothing to

substantiate his opinion. DW4 conceded that the survey and registration

in the first appellants favour proceeded on that letter alone written by

an official who had nothing to support his belief that the first appellant

was the owner of the land. She also conceded, during cross

examination, that she did not have in the office file, the settlement order

in Land Case No. 132 of 2012. No wonder the learned trial judge

observed that the first appellant's right to that land springs from the air,
and we agree with him. That finding is consistent with our decisions in

Ombeni Kimaro (supra), Rashid Baranyisa (supra), Meichiades

John Mwenda v. Gizelle Mbaga & Others, Civil Appeal No. 57 of

2018 and Patricia Mpangala and Another v. Vicent K. D. Lyimo

(as the guardian of Emmanuel Lyimo), Civil Appeal No. 149 of 2020

(both unreported). The second ground of appeal is, therefore devoid of

merit, we dismiss it.

The third ground of appeal challenges the finding of the trial court

in favour of the respondent while the certificates of title in her favour

were revoked by the Commissioner for Lands for having been

fraudulently procured. When dealing with the first two grounds of

appeal, we have sufficiently demonstrated that the judgment of the trial

court declaring the respondent the rightful owner of the suit land, was

based on the principle of tracing. The respondent led evidence, both oral

and documentary, proving the sequence of events before she purchased

the unsurveyed suit land and proceeded to survey it. Mr. Manyama

submitted, citing section 10 (2) of the Land Survey Act Cap 324, that

registration is not conclusive proof of ownership. With respect we agree

with the learned counsel considering that the disputed piece of land was

initially being held under customary title and going by our decision in
Rashid Buranyisa (supra) the survey did not reduce the customary

owner into a squatter. It is our conclusion that the third ground of

appeal lacks merit, and we dismiss it.

Consequently the whole appeal lacks merits and it is dismissed

with costs.

DATED at DAR ES SALAAM this 8th day of June, 2023.

W. B. KOROSSO
JUSTICE OF APPEAL

I. P. KITUSI
JUSTICE OF APPEAL

P. S. FIKIRINI
JUSTICE OF APPEAL

The Judgment delivered this 12th day of June, 2023 in the

presence of Mr. Frank Mwalongo, learned counsel for the Appellants and

Mr. Leonard Manyama, learned counsel for the Respondent is hereby

certified as a true copy of the original.

,/> J, S ' ,,, V

ij B J. E. FOVO
X ^DEPUTY REGISTRAR
COURT OF APPEAL

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