IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(LAND DIVISION)

AT DAR ES SALAAM

LAND CASE NO 208 OF 2020

STEPHEN AUGUSTINE MINJA ……………………...

…………………….PLAINTIFF

VERSUS

THE COMMISSIONER FOR LAND ………………..…………...… 1ST

DEFENDANT

THE ATTONERY GENERAL ……………….…………………….…..2ND

DEFENDANT

THE REGISTRAR OF TITLES …………………………..…………..3RD

DEFENDANT

KINONDONI MUNICIPALITY ………………………..………….4TH

DEFENDANT

WINFRIDA MSHINDO …………………………….……………….. 5TH

DEFENDANT

JUDGMENT

12th July & 31st August 2022

F. H. MAHIMBALI, J.

The plaintiff Mr. Stephen Augustine Minja, was in 2015

granted a right of occupancy by CT NO 140253 (PE2 Exhibit) for

plot No 2077, Block C- Boko Area, Kinondoni Municipality by the

1st defendant and was dully registered by the Registrar of

Tittles.

1
 On claims of fraudulent means of obtaining the said plot

No 2077 Block C – Boko Area in Kinondoni Municipality, his

registered right of occupancy was rectified by the Registrar of

Titles, thus making him landless. Surprisingly to Mr. Stephen

Augustine Minja, the same land was allocated to Mr. Pereus

Mutahungurwa Rwezaura as administrator of estate of the late

Winfrida Mshindo (5th defendant).

The rectification/revocation of the plaintiff’s land plot,

aggrieved him. He tried his best to make a follow-up of his right

to Kinondoni Municipal Council but ended up to be detained by

police on claims of fraudulent means of obtaining the said land

plot. Unfortunately, the said criminal claims could not lead to

any criminal case or prosecution against the plaintiff todate.

As per contesting facts of the case, four issues were

preferred as road map for the determination of this suit:

1. Whether the process of revocation of the title of the

plaintiff by the 1st and 3rd defendants was proper and

justifiable in law.

2. Whether plot no 92, Block C Boko area Kinondoni

Municipality issued by Dar es Salaam City council is the

2
 same as plot NO 2077 Block C Boko area Kinondoni

Municipality.

3. Who is the rightful owner of the suit property in plot no

2077 Block C, Boko area Kinondoni Municipality Dar es

Salaam through survey plan no 68653.

4. To what reliefs are the parties entitled to.

Whereas Mr. Stephen Augustine Minja claims to have

obtained the said land from Mr. Charles Mikela (PW2) in 2013

(PE1) following their business relationship, Mr. Charles Mikela

testified that he had bought the said land in 1993 at a price of

150,000/= from one indigenous by name of Mr. Shabani

Mgomba (PE10).

On the other hand, Mr, Perreus Mutahungurwa Rwezaura

claims that Winifrida Mshindo (his wife) had obtained the suit

land in 1996 following the proclamation of sale of land plots by

the then Dar es Salaam City Council. She applied for two plots

and himself two. They paid for the purchase plots and that the

Suitland which was given to Winfrida Mshindo was

named/referred as plot NO 92, Block C – Boko (DE6 dated

21/6/1996).
3
 That his wife Winifrida died on 30 th April 2020 while she

had already applied for right of Occupancy of the said plot

which was then issued on 17th November, 2020 by the

Commissioner for Lands (DE4 exhibit). However, in the process

of getting the said certificate of right of occupancy, he noted

change of plot number from 92, Block C – Boko to plot 2077,

Block C – Boko (DE9). It is his testimony that from when they

were allocated this land, they have been paying necessary land

rents to date (as per exhibit DE7).

As between him and the plaintiff (PW1) or PW2 (Mr.

Mikela) he stated that as they followed the due process in

applying the said plot, he is confident that the plot is his.

Since the said plot No 2077 Block C, Boko now seems to

be contested by two different people (PW1 and DW1), now the

first issue comes into play, “Whether the process of revocation

of the title of the plaintiff by the 1 st and 3rd defendants was

proper and justifiable in law”.

As to why the plaintiff’s right of occupancy was revoked/

rectified, the testimony of DW3 with exhibit DE12 tell all the

reasons. That these PW1 and PW2 had no good title over the

4
claim of the said suit plot No 2077 Block C- Boko. The

contention that Mr. Charles Mikera (PW2) had not established

his ownership over the said suit land for him to pass it to the

plaintiff can be a relevant discussion. In explaining how he

passed the suit land to the plaintiff, Mr. Mikela (PW2) relied on

PE2. However, the Commissioner for Lands challenges the

possession of the said land by PW2 to PW1.

The argument by DW3 is this, the Commissioner for Lands

faulted the ownership of the plaintiff of the said land relying on

DE12 exhibit.

Moreover, DW4 in his testimony stated how the office of

Registrar of Titles after being notified with the fraud report

(DE12 – exhibit) by the Commissioner for Lands notified the

plaintiff via official letter (DE13) – Notice of rectification of Land

Register under section 99 (1) of the Land Registration Act, Cap

334 in respect of plot 277, Block C.

On one hand, I have digested the testimony of PW1, PW2

and their exhibits (PE1 and PE 10) thoroughly. On the other

hand, I have digested the testimony of DW3 and his exhibit

DE12 and further the testimony of DW4 with his exhibit DE13. I

5
have the following questions; first, how did the Commissioner

for Lands get that land to allocate to the 5 th Defendant?

Second, what was the said Notice of revocation/rectification

(exhibit DE13) all about. I say so bearing in mind that

Tanzanian land is public land. Neither does it belong to the

Commissioner for Lands nor the President, but to the people of

the United Republic of Tanzania. The President is just the

Trustee. Therefore, it was not unlawful for Mr. Mikera (PW2) to

purchase land form the said Shaban Migomba Mtoro (PE2). As

Mr. Mikela purchased it in 1993, the said land (part of it) could

only pass to other citizens upon due process of law. By buying

that land, he had an interest in it, which interest (right) is

protected by law as it is valuable property (See section 3 (1)

b, f and g of the Land Act, Cap 113). Since there is no

evidence to the contrary that Mr. Shabani Migomba Mtoro had

not owned that land, the survey and allocation of it to Mr.

Stephen Augustine Minja was not unlawful. That land then,

could only be taken by the Commissioner for

Lands/Government upon due process of law (The land

Acquisition Act) as it was being lawfully owned by

indigenous/another person. Where someone is in lawful

6
occupation of land no valid right of occupancy can be offered to

anyone else over the same land unless the provisions of the

Land Acquisition Act (Cap 118) have been complied with. In the

case of Kimaro vs Joseph Mishili t/a Catholic Charismatic

Renewal, civil Appeal no 33 of 2017, the court of Appeal at

Dar es Salaam (unreported) at page 16 appreciated the

application of priority principle. It stated:

“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 titled over it, a party who acquired it earlier
in point of time will be deemed to have better or
superior interest over the other”

With this priority principle, the Court of Appeal made

reference to other cases with similar observation are Colonel

Kashimiri vs Naginder Singh Mathain (1988) TLR 162 and

Melchades Johan Mbaga, the deceased) and two others,

Civil Appeal No 57 of 2018 (unreported) amongst others.

In the current case, so long as there is no proof how the

Commissioner for Lands got the said land for him to advertise

for sale to the public, what he did to the land owned by PW2

(Charles Mikela), was unjustifiable and of no legal effect. One

7
could ask, was it a mere bush (virgin land) or it acquired from

the people. If he acquired it, there ought to be complete proof

of the said people from whom he acquired the said land. DE12

is in itself not a complete report to deny ownership of Mr.

Stephen Augustine Minja in favour of the fifth defendant in the

absence of evidence how the Commissioner for Lands got that

land for allocation to Ms. Winfrida Mshindo as preferred and

done.

Secondly, the Notice of Revocation of the Plaintiff’s Right

of Occupancy made reference to plot No 277 Block C while

the plaintiff's plot was No 2077 Block C. Further to this, there is

no proof of delivery of the notice to the plaintiff had it been

ceramic or trustworthy.

All this considered, it is my finding that in the

circumstances of this case, the process of revocation of the

Certificate to Title of the plaintiff by the 1 st and 3rd defendants

was not proper and justifiable in law for none compliance with

the provisions of the Land Acquisition Act, Cap 118 R.E 2019

and the Land Registration Act, Cap 334, R.E 2019.

8
 Whether plot No 92, Block C Boko is the same as plot No

2077 Block C, Boko, this is the second issue of the case. I have

examined the testimony of DW1, DW3 and DW4 and exhibits

DE12, DE13, DE14, I have not seen the relevant material

favouring the response of this issue in affirmative. It might be

true that where there are issues of re-demarcations and re

survey, then change of plot numbers and blocks can arise.

However, there must be due notice to those concerned. In the

current case, it is perplexing that upon PW1 having been

granted the said right of occupancy in 2015, the change of the

5th defendant’s plot number is commenced to suit the fifth

defendant’s interests but at the detriment of the plaintiff. The

whole process is circumvented by dubious transactions. With

this, I find that there is no valid nexus evidence provided to

suggest that plot No 92, Block C, Boko is similar to plot 2077

Block C. The baptism of plot No 92, lock C being plot 2077

Block C is unsupported by material evidence. There is no

material and believable evidence to support DW3 and DW4’s

assertion. It is thus answered in negative.

The next issue for consideration is who between the

plaintiff and the 5th defendant a lawful owner of plot No 2077

9
Block C Boko. As per discussion above, it is vivid that the

plaintiff got the said land from PW2 in 2013. PW2 testified how

he got the suit land from one Shaban Magomba Mtoro in 1993

(DE10 exhibit). Since there is no contrary evidence that Mr.

Chalres Beatus Mikela (PW2) owned that land since 1993 (PE10

Exhibit) and that part of that land was surveyed by the

Commissioner for Lands and re allocated to the 5 th defendant,

there ought to be clear and believable evidence how the

Commissioner for Lands acquired/obtained that land from the

Public in 1996 while it was under the possession of PW2. In the

case of Kimaro vs Joseph Mishili t/a Catholic Charismatic

Renewal, civil Appeal no 33 of 2017, the court of Appeal at

Dar es Salaam (unreported) at page 16 appreciated the

application of priority principle. It stated

“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 titled over it, a party who acquired it earlier
in point of time will be deemed to have better or
superior interest over the other”

In this case, even if the Commissioner for Lands had

lawfully revoked/rectified the certificate of right of occupancy of

10
the plaintiff and re-allocated it to 5 th defendant, the

circumstances leading to the grant of the same plot 2077 Block

C earlier allocated to PW1 to the 5 th defendant are not

conspicuous, sound, convincing and believable. As the said land

was validly given to the Plaintiff by PW2 in 2013 who (the said

PW2) got it in 1993 and that PW1 applied for his right of

occupancy and obtained it in 2015, by priority principle, he had

a superior right over the 5 th Defendant. His land could only then

be validly taken by the Commissioner for Lands in due

compliance of the law to re allocate it to the 5 th defendant.

Otherwise, all this done by the land officers from Kinondoni

Municipal council and officers from the Commissioner for Lands

either misdirected their principal (Commissioner for Lands) or

misapprehended the law in advising the Commissioner for

Lands. As that land was never validly owned by the

Commissioner for Lands, he could not then easily revoke the

title of ownership of the PW1 in favour of the 5 th defendant.

Being Commissioner for Lands, does not make one the superior

land lord over all the public land in Tanzania. He can only be so

by acquiring all the land as per law, if need be and lawfully

accepted.

11
 The purported steps taken by the Commissioner for Lands

and Registrar of Titles to disentitle the plaintiff’s ownership of

his land in plot 2077 Block C are not ceramic, trustworthy and

decisive. I say so basing on the testimony of DW3 and DW4

who relied on exhibits DE12 and DE13.

Therefore, they only way to take that land from the

plaintiff was by acquiring it under section 3 and 11 of the Land

Acquisition Act, Cap 118 R. E. 2019, however subject to the

payment of full, fair and prompt compensation to the original

owner from whom the land is taken [see section 3(1) of the

Land Act, Cap 113 R. E. 2002 and Mulbadawo Village

Council and 67 Others V. National Agricultural and Food

Corporation (1984) TLR 15]. However, in the circumstances as

it was not for public use, the best alternative was to find

another land to the 5th defendant but not disowning someone

and giving it to someone else. Therefore, the third issue is

answered in favour of the plaintiff as rightful owner of the suit

land.

The last issue for consideration is, what reliefs are the

parties entitled to. Upon digest to the plaintiff’s case as well as

12
parties’ submissions; and considering the response to the first

three issues (above) and having declared the plaintiff as

rightful owner of the suit land, I make the following orders as

far as the reliefs sought are concerned.

i. It is hereby declared that the plaintiff is the rightful owner

of the land situated at plot No 2077 Block C, Boko Area

Konondoni.

ii. All the five defendants (1-5) are hereby restrained from

entering, using or dealing with that land in anyway.

iii. The revocation or rectification done by the 1st and 2nd

defendants in respect of right of occupancy No 140253

for plot No 2077 Block C Boko Area in Kinondoni against

the plaintiff is illegal and of no legal effect. The same

reverts back to the plaintiff with immediate effect by the

Registrar of Tittles.

As it is the suit involves Government, I make no order as

to costs. Parties shall bear their own costs.

That said the plaintiff’s case succeeds to the extent

explained above.

13
 DATED at DAR ES SALAAM and MUSOMA this 31 st August

2022

Court: Judgment delivered this 31st August 2022 by live

video link connected from Musoma High Court and High Court

Land division – Dar es Salaam in the presence of Mr. Augustine

Kusalika, Advocate for the plaintiff, Mr. Luoga, state attorney

for the defendant, Mr. Said Seif, advocate for the 5 th defendant

and Mr. Gidion Mugoa, RMA.

Right of appeal is explained.

14