Kibaha Housing Cooperative Society Limited vs Judith Yoas & Others (Civil Appeal No. 372 of 2022) [2025] TZCA 1006 (30 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWANDAMBO, J.A., KHAMIS, J.A., And MLACHA, J.A.1 ) CIVIL APPEAL NO. 372 OF 2022 KIBAHA HOUSING COOPERATIVE SOCIETY LIMITED (KIHOCOSO) ......................... . ......................APPELLANT VERSUS JUDITH YOAS . .......................................................... . ......... 1 st RESPONDENT YUSUFU SHAMTE . .................................................................. 2 nd RESPONDENT DAUDI LUKWALO................................... . ................... . ....... 3R DRESPONDENT SCOLA FR ED ....................................... . ................................. 4™ RESPONDENT FRED MKENDA........................................... . ........... . .............. 5™ RESPONDENT ABDALLAH RASHID ...... . ................ . ............ . ........................ 6 th RESPONDENT SARA MKENDA .................... . ........................................ . ..... 7™ RESPONDENT GODWIN ELIAKUNDI .............................. . ............................8™ RESPONDENT EMMANUEL YO A S ............... . ................................................. 9™ RESPONDENT PROSPER CHOKALA............................................................ 10™ RESPONDENT JOHN LUGOMELA................................................................ 11™ RESPONDENT SAID MNUNDUMA............................................................... 12™ RESPONDENT BEATRICE MWAKALONGE.................................................. 13™ RESPONDENT SAULI OMARY CHIWANGA................................................. 14™ RESPONDENT KHATIBU RAMADHANI .......................... . ............................ 15™ RESPONDENT BETTY EDW ARD .......................... . ................... . .................. 16™ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania (Land Division) at Dar es Salaam) (Matuma, J.) dated the 20thday of May, 2019 in Land Appeal No. 129 of 2017 This appeal originates from the decision of High Court of Tanzania, Land Division, at Dar es Salaam (the High Court) in Land Appeal No. 129 of 2017 which arose from the decision of the District Land and Housing JUDGMENT OF THE COURT 20th June & 30th September, 2025 MLACHA. J.A.: 1

Tribunal for Cost Region at Kibaha (the DLHT) in Land Application No. 71 of 2014. The High Court quashed and set aside the decision of the DLHT hence the appeal before the Court. Briefly stated, the background of this appeal can be presented as follows: Sometimes in 1985 about fifty (50) people were in need of land for building houses in Kibaha township. They organized themselves and formed a co-operative society, namely; Kibaha Housing Co - Operative Society (hereinafter referred to as KIHOCOSO or the appellant). KIHOCOSO wrote a letter, dated 20/12/1985, to the Regional Land Officer for Coast Region requesting to be given plots to build houses for its members. The Regional Land Officer acted in collaboration with Kibaha District Council and set aside a piece of land at Sofu area, Kibaha town for that purpose. The land was surveyed to create 50 plots which were given to KIHOCOSO. A Certificate of title No. 36556, over Plots Nos. 138

• 149 and 154 - 191, Block H, Sofu Kibaha Township, was issued to KIHOCOSO on 26/3/1990. KIHOCOSO attempted to take the land but the move was resisted by the original owners who were apparently not engaged in the exercise. Among them were Ester Andrew Mazinge and Asia Simba, both deceased, who owned the land, now under the occupation of the respondents,

namely; Yudith Yoas, Yusufu Shamte, Daud Lukwalo, Scola Fred, Fred Mkenda, Abdalah Rashid, Sarah Mkanda, Godwin Eliakundi, Emanuel Yoas, Prosper Chakala, John Lugomela, Saidi Mnunduma, Beatrice Mwakalonge, Sauli Omari Chiwanga, Khatibu Ramadhani and Betty Edward (hereinafter referred to as the 1st to 16th respondents, respectively). A dispute arose between them. The appellant filed Land Application No. 71 of 2014 seeking a declaration that the respondents are trespassers in the land and orders for vacant possession. In defence, the respondents denied to be trespassers but lawful owners of the land under customary law. All the respondents except the 8th, 10th, 11th, 12th and 15th claim their rights from the 5th respondent, the administrator of the estate of the late Ester Andrew Mazinge who died on 24/05/2004 because their plots fell on the land which was originally owned by the late Ester. The 5th respondent is the administrator of the estate of the late Ester, who is also her grandmother. His case was that, the land was surveyed and given to KIHOCOSO in 1989 without prior consultation and compensation to the late Ester who made a follow up to the District Council from 1997 up to 2004 without any success. When he was appointed to administer the estate, he made a follow up to the Regional Land Officer and Kibaha District Council but his efforts could not bear any

fruits. He thus, acting as an administrator of the estate, decided to divide the land to the 1st, 4th, 5th, 6th, 7th and 9th respondents who are heirs of the late Ester. The 2nd, 3rd, 14th and 16th respondents claimed rights from heirs of the late Ester by way of sale evidenced by sale agreements which were also tendered in evidence. The 11th respondent bought his land from the late Ester in 2001, long before she died. The 10th respondent bought his plots from Mzee China Abaned who was not a party to the application before the DLHT. He has a tittle deed, exhibits D14, over the land described as plots Nos. 148 and 156 in his name. The 15th respondent inherited his land from his mother, the late Asia Simba, who died in August, 2006. The 8th and 12th respondents denied to occupy or own any piece of land in the area. The issues before the DLHT were two; one, who is the lawful owner of the land and two, to what reliefs are the parties entitled to. Believing that the title deed was issued legally and compensation dully paid to original owners of the land, the DLHT found merit in the application and declared the respondents as trespassers on the land. They were ordered to vacate. This decision was reversed by the High Court which found the respondent to have valid titles under customary law which could not be

extinguished by a mere survey and the issue of a title deed to the appellant. The learned Judge found that the land was acquired without following the procedure laid under the law which included involvement of the original owners of the land and full compensation. He could not find evidence of compensation. Further, he could not find any public interest in taking the land. The title deed of the appellant was found to be having no legal effect. The respondents were declared lawful owners of the land under customary law with payment of TZS. 1,000,000/= to each of them as damages for hardship suffered and costs of the case. Not amused by the decision, the appellant has come before the Court armed with four grounds of appeal which can be paraphrased to read as follows: one, that, the claim for compensation by the respondents was time barred; two, that, there was double allocation in the issue of the title deeds which if considered by the High Court could have led to a different decision; three, that, the appellate Judge used a document which was not exhibited in evidence to decide the case and; four, that, the appellate Judge failed to evaluate the evidence leading to an erroneous decision.

At the hearing of the appeal, the appellant was represented by Mr. Jimmy Mroso, learned advocate, whereas the respondents had the services of Mr. Desdery Ndibalema, also learned advocate. Mr. Mroso adopted the contents of the written submissions, earlier on filed, in terms of rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), and had a short oral submission to make. Mr. Ndibalema did not file any written submissions. He addressed the Court in terms of rule 106 (10) (b) and (11) of the Rules. We shall discuss their submissions in the course of deliberations of the grounds of appeal. The gist of the complaint in ground one is that, the learned Judge erred in law and fact in failing to hold that the claim for compensation by the respondents was time barred. It was contended by Mr. Mroso that, the claim for compensation by the respondents was time barred because compensation was supposed to be lodged In court within one year from the date it arose, as provided under item one of Part I of the schedule to the Law of Limitation Act which provides "Forcom pensation fordoin g or for om itting to do an act aiieged to be an act pursuance to any written iaw, period o f lim itation is one (1) ye a f. The argument is that, section 11 of the Land Acquisition Act, Cap 118 R.E. 2019 gives a right for compensation to original owners of land but compensation has to be

claimed within one year. He contended that, the land was acquired in 1989 and the certificate of title issued in 1990 but the respondents did not claim any compensation up to 2014 thus the claim was time barred. He cited the decision of the Court in Ali Shabani & 48 Others v. Tanzania National Roads Agency (TANROADS) and Another [2021] TZCA 243 where it was stated that, a suit for compensation is time barred if it is instituted beyond 12 months from the date on which compensation was to be made. For his part, Mr. Ndibalema contended that, the submission of Mr. Mroso is misconceived. Amplifying, he contended that the respondents did not file any suit for compensation. It came as a defence challenging the validity of the title deed so the question of time limitation cannot arise. He contended further that, the District Council took people's lands and surveyed it to create plots which were given to the appellant illegally leading to complaints which went up to the Prime Minister who formed a committee to prob the matter. The committee found that the land was taken away without compensation to original owners and recommended compensation before any further steps. The respondents were thus claiming no compensation from the appellant rather legality of the title deed issued to the appellant, He urged the Court to dismiss the ground.

We have examined the record of appeal and considered the submissions of the learned advocates. We agree with Mr. Ndibalema that, limitation of time does not arise in this case because the respondents did not file any suit for compensation at the DLHT. Neither was compensation an issue before the DLHT during trial. It was just raised as a defence, challenging the legality of the title deed, for rights of people holding land under customary law cannot be extinguished by a mere survey and issue of a title deed. Compensation is a precondition to the acquisition of land and issue of any title deed. Failure of which makes the acquisition of land and the title deed invalid. See section 25 (1) of the Urban and Country Planning Act where it is stated: " The m inister shaiif in preparation or adoption o f a scheme, furnish an estim ate fo r the c o s t o f m e e tin g c la im s fo r com pen sation to the area the planning com mittee concerned." [Emphasis added] See also section 11(1) of the Land Acquisition Act where it is stated, inter alia that: ”... where any iand is acquired by the president under section 3, the M inister shall, on behalf o f the 8

Government■ , pay in respect thereof, out o f money provided for the purpose by the Parliam ent ; su ch co m p en satio n a s m ay b e a g re e d upon o r d e te rm in e d in acco rd an ce w ith th is A ct". [Emphasis added] Similar provisions are in the fundamental principles of land policy provided under section 3 (g) the Land Act, Cap 113 R.E.2019 where it is stated; "to pay full, fa ir and prom pt com pensation to any person whose right o f occupancy or recognised longstanding occupation or custom ary use o f land is revoked or otherwise interfered with to their detrim ent by the State under this A ct or is acquired under the Land Acquisition A c t" and section 3 (h) of the Village Land Act, Cap 114 R.E.2019 where it is stated; " to pay full, fa ir and prom pt com pensation to any person whose right o f occupancy or recognised long-standing occupation or custom ary use o f land is revoked or otherwise interfered with to their detrim ent by the State under this A ct or is acquire under the Land Acquisition A c t " These laws put compensation at the center of everything failure of which makes the title deed invalid and inoperative. See our decisions in National Agricultural and Food Corporation v Mulbadaw Village Council and Others [1985] TLR 88, Attorney General v. Lohay Akonay and Joseph Lohay [1995] TLR 80,

Mwalimu Omari and Another v. Omary A. Bilali [1998] TZCA 65, Tenende Budotela and Another v. Attorney General [2012] TZCA 247 (19 May 2012) and Abel Dotto v. Modesta 3 Magonji [2018] TZCA 421 (12 October 2018). In the Attorney General v, Lohay Akonay and Joseph Lohay (supra) it was stated thus: "For a ll these reasons therefore, we have been led to the conclusion that custom ary or deem ed rights in land, though by their nature are nothing but rights to occupy and use the land, are nevertheless real property protected by the provisions o f art 24 o f the Constitution. It follow s therefore that deprivation o f a custom ary or deem ed rig h t o f occupancy w ithout fa ir com pensation is prohibited by the Constitution. The p ro h ib itio n o f co u rse e xte n d s to a g ra n te d rig h t o f occupancy . " [Em phasis added] See also the decision of the Court in Omari and Another v, Bilali (supra) where we stated: "Such a title can only be taken away from the holder by an act authorized by a relevant law i.e. the Land Acquisition A ct but certainly n o t b y a 10

sim p le a c t o f d e cla rin g an a re a a p la n n in g a re a ," [Em phasis added] It follows that, compensation is a condition precedent to the acquisition of land and the subsequent issue of any title deed. It is also obvious that, a customary right of occupancy has an equal status with the granted right of occupancy and cannot be extinguished by the mere issue of a title deed. The compensation element in this case was raised in this context. That makes the complaint on ground one misconceived as rightly submitted by Mr. Ndibalema. It is dismissed accordingly. The complaint on ground two is that the Judge failed to analyse the evidence on double allocation of title deeds thereby leading to a miscarriage of justice. It was submitted by Mr. Mroso that, the 10th respondent obtained his title deed in 2003 while there was already a title deed over the land issued in 1990 as intimated above. He contended that the title for the 10th respondent was issued over an area which had another title deed, hence double allocation. He argued that, the Judge erred in failing to find that the title deed issued to the 10th respondent was invalid in law under the principle of double allocation which gives effect to the title which was issued at an early stage.

In response, it was contended by Mr. Ndibalema that, the submission of Mr. Mroso is misconceived because the Court cannot consider that question in the absence of the Commissioner for Lands because he is not a party in the case. He urged the Court to find the complaint as an afterthought and dismiss it. On our part, having gone through the record and considered the submissions made carefully, we share the views of Mr. Ndibalema that a meaningful discussion on double allocation should involve the Commissioner for Lands. Both titles were issued by the Commissioner for Lands who is not a party in this case. It was important, therefore, to raise the issue at an early stage during trial so that necessary amendments could be made in the pleadings to join him as a party to defend the course. Raising the issue at this stage in nothing but an afterthought. Further, double allocation is a new ground which was not raised and decided by the High Court. It cannot be entertained by the Court. See Godfrey Wilson v. Republic [2019] TZCA 109 and Simon Godson Macha (Administrator of The Estate of the Late Godson Macha) v. Mary Kimambo (Administratrix of the Estate of the Late Kesia Zebedayo Tenga) [2020] TZCA 36 where it was stressed that, the Court does not consider new grounds raised in a second appeal which were not 12

raised and decided by the lower courts. It follows that ground two is baseless and dismissed. Next is ground three. It was contended by Mr. Mroso that, the document referred by the Judge to rule out on whether the 5th respondent was compensated or not was not tendered as an exhibit and thus had no evidential value. He cited our decision in M/S SDV Transami (Tanzania) Limited Vs. Ms. Ste Datco, [2019] TZCA 180 to support the contention that the decision of the trial court must be grounded on the evidence properly adduced, tendered and admitted. He did not point out the document under reference but urged the Court to sustain the ground. In response, it was submitted by Mr. Ndibalema that, the decision of the High Court is based on exhibits D2, D3 and P4 as appearing from pages 464 to 467 of the record of appeal. It was not based on a document not exhibited. He contended that, all these documents were tendered and admitted in evidence. He urged the court to dismiss the ground. On our part, we had time to examine the judgment of the High Court and consider the submission of the learned advocates. Reading through, we have found that, the judgment of the High Court is based on the report of the committee of the Prime Minister entitled "MAAMUZI YA KAMAT7 13

MAALUM YA KUCHUNGUZA MIGOGORO YA VIWANJA / ARDHIMGOGORO NO. 4/2006" (appearing at page 100) exhibit D2; the Compensation Schedule entitled, "HA77 YA FIDIA KWA KUZINGAJJA RIBA" (appearing at page 85), exhibit P4; VALUATION REPORT FOR COMPENSATION PURPOSES O F THE PROPERTIES LOCATED ATSO FU IN KIBAHA TOWN (appearing at page 103), exhibit D4; a letter applying for Land allocation entitled " KUTAFUTIWA KIWANJA AU VIWANJA KWA A JILI YA UJENZI WA NYUMBA ZA WANACHAMA 50 WA CHAMA CHA USHIRIKA WA NYUMBA ENEO LA KIBAHA" (appearing at Page 76), exhibit P2 and the title deed of KIHOCOSO (appearing at page 12), exhibit P3. The learned Judge discussed these documents from pages 464 to 469 and concluded that the title deed issued to the appellant was issued without the involvement and compensation to the original owners of the land who owned the land under customary law, and thus invalid in taw. He recognized the respondents (except the 10th who has a title in his name) as having good title under customary law despite the existence of the title deed of the appellant. We could not find any document used by the learned Judge which was not exhibited save for the letter from Kibaha District Council addressed to KIHOCOSO, dated 12/11/2015, headed "NAKALA YA MALIPO YA FIDIA ", which is part of exhibit D4. If the counsel for the 14

appellant was referring to this document, then he should recall that exhibit D4 includes the letter and the compensation schedule. It follows that ground three is baseless and is dismissed. We will now move to ground four. It challenges the evaluation of evidence by the learned Judge. It is on a very narrow point; compensation to the 5th and 15th respondents. That the evidence in this area was not properly evaluated leading to a wrong decision. Amplifying, Mr. Mroso contended that, page 89 shows that Asia Simba received compensation but the first appellate Judge found that, the 15th respondent, who is son of Asia Simba, was not given any compensation. In the like manner, the record from page 86 to 93 show that the 5th respondent received compensation. He also admitted at page 224 of the record that he received TZS. 1,114,991.00. But that notwithstanding, the learned Judge said that he was not paid. In response, it was contended by Mr. Ndibalema that the evidence on compensation to the 5th and 15th respondents was properly evaluated by the learned Judge. He referred the Court to the relevant parts of exhibits P4 and D4. These were the documents used in arriving at the conclusion that no compensation was paid to the 5th and 15th respondents. He referred the Court to the relevant parts which did not carry the

signatures of the 5th and 15th respondents. He urged the Court to dismiss the ground. We have considered the submissions made before us. With respect to Mr. Mroso, we have the view that the evidence on compensation to the 5th and 15th respondents was properly evaluated. The learned Judge evaluated the evidence and concluded that the 5th and 15th respondents did not sign at exhibit P4 which is the basis upon which compensation is alleged to have been made. Further, the covering letter to exhibit D4 shows as said by the learned Judge that exhibit P4 was in respect of another piece of land not the suit land. It should be born in mind that there was another compensation made by the District Council in the area in respect of another piece of land. All this was analyzed by the learned Judge. The fourth ground is thus devoid of merits and dismissed. Before we pen off, we wish to correct an error in the judgment of the High Court which cannot be left to stand. The Judge ordered the appellant to pay TZS. 1,000,000.00 to each respondent as compensation for hardship suffered. This amount was not prayed anywhere in the pleadings. Neither was it raised and discussed as an issue before him. It was raised suo m ottu and decided without inviting the parties to give their views on it. That was contrary to laid down principles. See Margwe Ero and 2 Others v Moshi Bahalulu [2015] TZCA 282 and Ausdrill 16

Tanzania Limited v Mussa Joseph Kumili and Another, Civil Appeal No. 78 of 2014 (unreported). By way of revision under section 6 (2) of the Appellate Jurisdiction Act, we revise and vacate that part of the judgment. The rest remains intact. That said, save for what is stated above, the appeal is found to be devoid of merit and dismissed with costs. DATED at DODOMA this 22n d day of September, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Ruling delivered this 30th day of September, 2025 in the presence of Mr. Jimmy Mroso, learned advocate, for the Appellant, Mr. Desdery Ndibalema, learned advocate, for the Respondents via virtual Court and Soud, Court Clerk; is hereby certified as a true copy of the oriainal. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 17