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IN THE HIGH COURT OF TANZANIA
(LAND DIVISION)
AT PAR ES SALAAM
LAND CASE N0.104 OF 2011

PETER SWAI........................................................................ PLAINTIFF
VERSUS
HILDER EMMANUEL MAKELEMO (As Administratrix

of Estate of the late
EMMANUEL LAZARO MAKELEMO)................................ 1st DEFENDANT
GABRIEL MPAKATAMWIU MIKWAMBA......................... 2nd DEFENDANT
Date of Last Order: 11/05/2018

Date of Judgment: 18/06/2018
EXPARTE JUDGMENT
S.A.N. WAMBURA, J:
This is an exparte judgment where by the plaintiff Peter Swai
counter claimed on the defendants’ claims and prays for
Judgment and Decree against the defendants for the following
orders;
a) For declaration order that the plaintiff is a legal owner of the suit
property situated at Plot No. 8, Block C, Ununio Area, Kinondoni
Municipality within the city of Dar Es Salaam.
b) For declaration that the Certificate of Title issued to the 1st

defendant in respect of Plaintiff's Plot No. 8 Block C, Ununio was
issued contrary to the law thus null and void.
i
c) For declaration that the I st defendant has trespassed on the
Plaintiff’s Plot No. 8 Block C, Ununio Area.
d) For an order of permanent injunction against the I st defendant

to restrain him, his agents, workmen, allocating authorities or any
other person from entering and interfering with the Plaintiff's
ownership and development of the suit property known as Plot
No. 8, Block C, Ununio Area in Kinondoni Municipality within the
city of Dar Es Salaam.
e) That the 1st defendant be ordered to pay general damages to
be assessed by the court at the tune of Tshs. 50,000,000/=.
f) That defendants be ordered to pay costs of this counter claim.

g) Any other relief the honourable court will deem fit to grant.
On 09/06/2015 this court ordered the suit to proceed exparte
against the 1st defendant.
The plaintiff was represented by Mr. Mayenje Learned Counsel
whereas the 2nd defendant Gabriel Mpakatamwiu Mikwamba
enjoyed the legal services of Mr. Kimaro Advocate.
The plaintiff's side called one witness namely Gabriel
Mpakasemwi Mwikwambo (Pw 2) to prove its case.
2
According to the court record Pw 1 Peter Joseph Swai bought
the disputed land on 03/12/2010 at the sum of Tshs.30,000,000/=
from Gabriel Mwikwambo (PW 2), through a sale agreement
tendered in Court as Exhibit P 4. Thereafter the 2nd defendant (Pw
2) handed over to him a letter of offer and payment receipts as
evidenced by Exhibit P 2. It is also on record that after the
execution of that agreement and handling over of the
documents, he went to the Ministry of Lands to make a search
and he was told that the documents were valid ones.
He also found out that the 2nd defendant was in land rent arrears
as of 1997 to 2001 which was Tshs. 1,399,666.40. He paid the rent
arrears and was given a receipt which was tendered in Court as
Exhibit P 3.
The plaintiff averred that when he bought the disputed land there
was nothing on it hence he processed for a building permit. After
he was given the permit he built a fence and servants quarter
which has three rooms. He also installed water and electricity
thereon. Sometime later the 1st defendant invaded into the suit
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land and claimed to have interest in it though the 1st defendant
did not have any document to prove his ownership.
He contended that he is still in possession of the suit premises but
he could not develop it due to this dispute. That the Municipality
tried to resolve the matter but failed as it was already in court. He
therefore prayed to be declared the owner of the suit plot.
The plaintiff’s evidence was collaborated by the testimony of Pw
2 who confirmed that he sold the disputed land to the plaintiff.
He contended that he acquired the disputed land by purchasing
it from one Hussein Abdul in 1985 as evidenced by a sale
agreement (Exhibit P I ) .
Section 2 of the Land Registration Act R.E 2002 defines owner as

follows;
“Means, in relation to any estate or interests the person for

the time being in whose name that estate or interest is
registered"
[Emphasis is mine].
In the case of Sarjit Singh V. Sebastian Christom [1988] TLR 24 (HC)
Kyando, J, (as he then was) held that:-
“It is clear that land becomes legally owned or a right of
occupancy is established, once an offer for it is made
and the offeree pays the fees. The question of a
certificate does not arise in order for a right of
occupancy to be created.”
It is a cardinal principal of law under the Law of Evidence Act
Cap.6 R.E. 2002 that whoever desires a court to give judgment in
his his/her favour; he/she must prove that those facts exist.
Section 110 (1) (2) of the Law of Evidence Act Cap. 16 R.E.2002 reads
as follows, I quote;
“Section 110 (I) Whoever desires any court to give judgment as to

any legal right or liability dependent on the existence of facts which
he asserts must prove that those facts exist.
Section 110 (2) When a person is bound to prove the existence of

any fact it is said that the burden of proof lies on that person”.
The above provision places the burden of proof on whoever
desires the court to give judgment as to any legal right or liability
5
dependent on existence of facts which he/she ascertains as it
was held in the case of ABDUL KARIM HAJI VS RAYMOND NCHIMBI
ALOIS AND ANOTHER Civil Appeal No. 99 of 2004 (unreported).
It is on record that the plaintiff legally bought the disputed land
on 03/12/2010 at the sum of Tshs.30,000,000/= from Gabriel
Mwikwambo (PW 2), through a sale agreement tendered in
Court as Exhibit P 4.
It is my belief therefore that the plaintiff is the lawful owner of the
disputed property having lawfully purchased it from the 2nd
defendant on 3rd December, 2010. This has been proved by
Exhibit P 4 the sale agreement between him and the 2nd
defendant, a letter of offer Exhibit P 2 and receipts of the
payments Exhibit P 3 as well as the sale agreement between the
2nd defendant and one Hussein Abdu.
It is trite law that once the right of occupancy is created by the
approval of the party’s application for the grant of the same, the
party’s rights over the plot continues to subsist so that the later
grant of a right over the same plot to the other party become null
6
and void unless the said offer of the right of occupancy created
was revoked.
This position of the law was also reiterated in the case of Prof.
Benard Kirei Vs Natalino Mwenda, Civil Appeal No. 70 of
2001 (unreported) where this court held and, I beg to quote;
“...... That a right of occupancy is created by the
approval of the appellant’s application for the grant of
the samefi.e a right of occupancy) and the acceptance
by the appellant of the granted right. Appellant’s rights
over the plot continued to subsist so that the later grant of
a right over the same plot to the respondent is null and
void. In other words nothing was granted at all after the
grant to the appellant as the Land Office could not have
granted another right over a plot it had already granted to
another person. No evidence has been led to suggest and
or show that the offer of the right of occupancy created
was revoked prior to the purported grant of the same right
to the respondent.................”
[Emphasis is mine].
Thus since there is no proof that the letter of offer granted to the
plaintiff was not revoked, then the latter is null and void.
Since the Plaintiff has proved his case on a balance of
probabilities, then this court orders as follows;-
a) The plaintiff is declared as the legal owner of the suit property

situated at Plot No. 8, Block C, Ununio Area, Kinondoni
b) The 1st defendant is declared a trespasser on the Plaintiff’s Plot

No. 8 Block C, Ununio Area.
c) The Certificate of Title issued to the 1st defendant in respect of
Plaintiff’s Plot No. 8 Block C, Ununio was issued contrary to the
law thus null and void.
d) The 1st defendant, his agents, workmen, allocating authorities or

any other person is restrained from entering and interfering with
the Plaintiff’s ownership and development of the suit property
known as Plot No. 8, Block C, Ununio Area in Kinondoni
e) The 1st defendant to pay general damages at the sum Tshs.

10,000,000/= to the plaintiff.
f) The defendants to pay costs of this counter claim.
18.06.2018
8

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IN THE HIGH COURT OF TANZANIA

LAND CASE N0.104 OF 2011

HILDER EMMANUEL MAKELEMO (As Administratrix

GABRIEL MPAKATAMWIU MIKWAMBA......................... 2nd DEFENDANT

Date of Last Order: 11/05/2018

b) For declaration that the Certificate of Title issued to the 1st

d) For an order of permanent injunction against the I st defendant

f) That defendants be ordered to pay costs of this counter claim.

On 09/06/2015 this court ordered the suit to proceed exparte

against the 1st defendant.

The plaintiff was represented by Mr. Mayenje Learned Counsel

whereas the 2nd defendant Gabriel Mpakatamwiu Mikwamba

enjoyed the legal services of Mr. Kimaro Advocate.

The plaintiff's side called one witness namely Gabriel

Mpakasemwi Mwikwambo (Pw 2) to prove its case.

the disputed land on 03/12/2010 at the sum of Tshs.30,000,000/=

from Gabriel Mwikwambo (PW 2), through a sale agreement

tendered in Court as Exhibit P 4. Thereafter the 2nd defendant (Pw

2) handed over to him a letter of offer and payment receipts as

evidenced by Exhibit P 2. It is also on record that after the

execution of that agreement and handling over of the

documents, he went to the Ministry of Lands to make a search

and he was told that the documents were valid ones.

as of 1997 to 2001 which was Tshs. 1,399,666.40. He paid the rent

arrears and was given a receipt which was tendered in Court as

was nothing on it hence he processed for a building permit. After

he was given the permit he built a fence and servants quarter

which has three rooms. He also installed water and electricity

did not have any document to prove his ownership.

He contended that he is still in possession of the suit premises but

he could not develop it due to this dispute. That the Municipality

tried to resolve the matter but failed as it was already in court. He

therefore prayed to be declared the owner of the suit plot.

The plaintiff’s evidence was collaborated by the testimony of Pw

2 who confirmed that he sold the disputed land to the plaintiff.

He contended that he acquired the disputed land by purchasing

it from one Hussein Abdul in 1985 as evidenced by a sale

Section 2 of the Land Registration Act R.E 2002 defines owner as

“Means, in relation to any estate or interests the person for

Kyando, J, (as he then was) held that:-

“It is clear that land becomes legally owned or a right of

occupancy is established, once an offer for it is made

and the offeree pays the fees. The question of a

certificate does not arise in order for a right of

It is a cardinal principal of law under the Law of Evidence Act

Cap.6 R.E. 2002 that whoever desires a court to give judgment in

“Section 110 (I) Whoever desires any court to give judgment as to

Section 110 (2) When a person is bound to prove the existence of

The above provision places the burden of proof on whoever

desires the court to give judgment as to any legal right or liability

was held in the case of ABDUL KARIM HAJI VS RAYMOND NCHIMBI

ALOIS AND ANOTHER Civil Appeal No. 99 of 2004 (unreported).

It is on record that the plaintiff legally bought the disputed land

on 03/12/2010 at the sum of Tshs.30,000,000/= from Gabriel

Mwikwambo (PW 2), through a sale agreement tendered in

It is my belief therefore that the plaintiff is the lawful owner of the

disputed property having lawfully purchased it from the 2nd

defendant on 3rd December, 2010. This has been proved by

Exhibit P 4 the sale agreement between him and the 2nd

defendant, a letter of offer Exhibit P 2 and receipts of the

payments Exhibit P 3 as well as the sale agreement between the

2nd defendant and one Hussein Abdu.

It is trite law that once the right of occupancy is created by the