CIVIL 80 OF 2022 A

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM CIVIL CASE NO. 80 OF 2022 ABDALLAH MWANJIA KAIMA ………...............................................PLAINTIFF

VERSUS MINISTER OF STATE, THE PRESIDENT’S OFFICE (REGIONAL ADMINISTRATION AND LOCAL GOVERNMENT) …. 1ST DEFENDANT

DISTRICT EXECUTIVE DIRECTOR FOR KINONDONI MUNICIPAL COUNCIL …………………………. 2ND DEFENDANT HON. ATTORNEY GENERAL …………………………………………….3RD DEFENDANT

JUDGMENT 19th November, 2024 & 31st January, 2025 BWEGOGE, J. The plaintiff herein commenced civil proceedings against the defendants jointly and severally for payment of TZS 38,519.731 /= among others, being the outstanding amount of entitled compensation subsequent to the 2nd 1 defendant’s acquisition of his property for public purpose. In tandem with filing defence, the defendants advanced a counterclaim against the plaintiff herein for a refund of TZS. 48,000,000.56/= being part of the compensation amount paid undeservingly to the plaintiff herein subsequent to the acquisition of his purported plot of land for the public good. It is the plaintiff's case, as depicted by the pleadings and evidence adduced in this court, that on 18th August, 2015 the 1st and 2nd defendants’ officers approached the plaintiff for the acquisition of his property (plot of land and residence) lawfully owned for extension of public school. Eventually, the 2nd defendant notified the plaintiff of her commitment to compensate him for his property acquired for a sum of TZS 76,519,731.56 based on a valuation conducted by a certified valuer. The plaintiff consented to the proposed valuation amount and handed vacant possession of his property to the 2nd defendant. Consequently, the 2nd defendant paid the plaintiff part of the compensation amount to the tune of TZS 38,000,000/= with a promise to pay the

outstanding amount of TZS 38, 519, 731.00/. However, despite his constant follow-up and reminders, the 2nd defendant failed to honour her promise to pay the amount due. Hence, the plaintiff, having served the 3rd defendant 90 days’ statutory notice of intention to sue, instituted the 2 proceedings herein for recovery of arrears of his entitled unpaid compensation amount. In tandem with the above, the plaintiff averred that while this suit was pending before this court, the defendant made payment to the tune of TZS 10, 000, 000/= into his bank account. Hence, the outstanding balance is TZS 28,519, 731/= which he now seeks to recover. Based on the above, the plaintiff prayed for judgment and decree against the defendants for the following reliefs: 1. The 1st and 2nd defendants to pay the plaintiff the outstanding balance of TZS 28,519, 731/.

2. The 1st and 2nd defendants to re-value the property within the period of one month from the date of delivery of the judgment of this court to establish the actual current market value and assess the due additional compensation the plaintiff is entitled to be paid. Alternatively, upon expiry of one month from the date of the order for revaluation, this court be pleased to order the 1st and 2nd defendants to pay TZS 20,000,000/= as an approximate additional value of the property.

3. General damages as assessed by this court.

4. Punitive damages against the 1st and 2nd defendants to the tune of TZS 20,000,000/.

5. Costs of the suit. 3 Contrariwise, while admitting being indebted to the plaintiff as aforementioned, it is the defence case that having paid the plaintiff TZS 48,000,000.56/= as part payment of the valuation amount, it came to the knowledge of the 2nd defendant that the property forming the basis of the claim herein is owned by the Dar es salaam Development Corporation. Hence, the plaintiff was not entitled to compensation paid, let alone the outstanding balance. And, by way of counterclaim, the defendants (plaintiffs in a counterclaim) alleged that they paid the plaintiff TZS 48,000,000.56/= as part payment of the valuation amount based on an erroneous belief that the same was the lawful owner of the property acquired by the government for the public good. And, the plaintiff (defendant in the counterclaim) being aware that he was not the lawful owner of the suit property, had received the fund paid as compensation undeservingly, to the financial detriment of the 1st and 2nd defendants. Further, it is averred in the counterclaim that the entity namely, Dar es Salaam Development Corporation has claimed to be the lawful owner of the property for which the plaintiff undeservingly received compensation and exhibited the certificate of occupancy to that effect. Likewise, the said entity 4 has demanded payment of compensation entitled for the acquisition of her land by the 2nd

defendant. Hence, the plaintiffs in the counterclaim pray to this court for judgment and decree against the defendant for the following reliefs. i. The defendant be ordered to refund TZS 48,000,000/= received as part payment of compensation for the acquisition of the disputed plot of land. ii. The defendant in the counterclaim to pay the 2nd defendant interest on the commercial bank rate of the decretal amount from the date of judgment to the date of payment in full; and iii. Costs of this suit. The plaintiff herein (defendant in the counterclaim) was represented by Messrs Mashaka Ngole and Masuna Gabriel Kunju, learned advocates; and Ms. Jenifer Msanga and Mr. Jeremiah Odinga, learned state attorneys, entered an appearance for the defendants herein (plaintiffs in the counterclaim). During the hearing of this case, the following issues were raised by parties hereto and certified by this court as appropriate for the conclusive determination of this suit: 5 1. Whether the plaintiff herein is entitled to payment of TZS 28, 519, 732/.

2. Whether the 2nd plaintiff in the counterclaim is entitled to the refund of TZS 48, 000, 000.56/= by the defendant in the counterclaim.

3. Relief to which the parties hereto are entitled to. I proceed to delve into the above-raised issues sequentially commencing with the 1st and pertinent issue in this matter. The provision of section 3 of the Land Acquisition Act [Cap. 118 R.E. 2019] enjoins the government with power to acquire land owned by the individual for any public purpose. It is likewise, the law, in terms of section 11 of the same Act, that the government is obliged to pay appropriate compensation for the acquired land. In the same vein section 17 of the Act clarifies that a party in possession of the land as owner thereof is the one entitled to payment of compensation for the acquired land. Moreso, the term “owner” respecting the land ownership is appositely assigned meaning under the provision of section 2 of the Land Registration Act [Cap. 334 of 2019] to mean: “…. in relation to any estate or interest, the person for the time being in whose name that estate or interest is registered.” 6 The above-revisited provision is amplified in the case of Leopold Mutembei vs. Principle Assistant Registrar of Titles,ministry of Lands Housing and Urban Development & Another (Civil Appeal No. 57 of 2017) [2018] TZCA 213 wherein it was aptly opined: "…….. the registration under a land titles system is more than the mere entry in a public register; it is authentication of the ownership o for a legal interest in a

parcel of land. The act of registration confirms transactions that confer, affect, or terminate that ownership or interest. Once the registration process is completed, no search behind the register is needed to establish a chain of titles to the property, for the register itself is conclusive proof of the title". See also in this respect the case of Salum Mateyo vs. Mohamed Mateyo (1987) TLR 111. It is an uncontroverted fact that the plaintiff (PW1) herein was found in possession of the respective land portion and perceived to be the owner thereof. The plaintiff enlightened this court that he purchased the respective land (1/2 acre) from one Andrea Theodore Mushi in 2010 and built a house thereat. This testimony was corroborated by the testimony of one Theodore Endrew Mushi (PW2), the son of the actual seller; Said Abbas Faraji (PW3) who actually purchased the respective land on behalf of the plaintiff; and one Abdulrahman Mohamed Abdallah (PW4), the previous Street Chairman of Mpopo- Mabwe/Pande who purported to witness the sale agreement of the respective plot of land. In fact, the plaintiff candidly considered himself 7 the lawful owner having purchased the land from the previous possessor who likewise, considered himself the lawful owner/possessor of the land. Thus, by virtue of being a person in possession of the respective plot of land and deemed owner of the land

thereof, the plaintiff was entitled to payment of TZS 76,519, 731/= according to the evaluation conducted by the valuer of the 2nd defendant herein. As aforementioned, the plaintiff herein has acknowledged receipt of a total of TZS 48,000,000/= as compensation for the land acquired by the 2nd defendant for the public purpose whereas the outstanding balance of the assessed compensation amount payable is to the tune of TZS 28, 519, 731.56/. Conversely, it is the defence case that while contemplating to pay the plaintiff the due compensation amount, the third party, the Dar es Salaam Development Corporation, surfaced claiming to be the actual owner of the respective land which was under the possession of the plaintiff. It was deponed by Bahati Mabula (DW2), the legal officer, and Francis Hiza (DW2) the Project and Investment Manager of the respective Corporation (DDC) that the whole land described as Mabwe/Pande Malolo area, in Dar es Salaam city which comprises the land found under the possession of the plaintiff whom they consider a trespasser, was granted to the Corporation 8 vide Certificate of Occupancy Title No. 30163, Land Office Number 76891 for a term of 99 years. The respective title deed (exhibit D1) tendered by DW2 speaks volumes of the fact that the plot of land in the above-mentioned area has been under the ownership of the Dar es Salaam Development Corporation for

99 years since 1984. It has not been brought to the attention of this court that the respective certificate of occupancy/title deed has now been invalidated. Hence, based on the evidence adduced by defence witnesses (DW1 and DW2), the Dar es Salaam Development Corporation, a party in whose interest the respective land is validly registered by the Registrar of Land, has a better title on the land thereof than the plaintiff in terms of the provision of section 2 of the Land Registration Act. Therefore, based on the evidence adduced by the defence, the plaintiff is no longer entitled to the payment of the outstanding compensation amount to the tune of TZS 28, 519, 731.56/= as he is no longer considered the owner of the plot of land acquired by the 1st and 2nd defendant for public good in terms of the provision of section 2 of the Land Registration Act read together with sections 11 and 17 of the Land Acquisition Act. That said, the 1st issue is hereby answered in the negative. 9 I proceed to canvass the 2nd issue on whether the 2nd plaintiff in the counterclaim is entitled to the refund of TZS 48, 000, 000.56/= by the defendant in the counterclaim (plaintiff in the main suit). It is an uncontroverted fact that the defendant in the counterclaim, honestly, considered himself the owner of the respective plot of land which has been acquired by the 2nd plaintiff in the counterclaim. As

aforesaid, PW2, PW3) and PW4, deponed credible evidence establishing that they considered the plaintiff as the owner of the respective land. Moreso, one Aweda Macha (DW3), the valuer and 2nd defendant’s employee honestly enlightened this court that compensation paid for the land acquired for building the public school was paid to several land owners, plaintiff inclusive. And, before compensation was paid, a thorough validation process was carried out by his office to ascertain the ownership of the respective plot of land acquired from the previous owners whereas each property owner had to present an identity card and introduction letter from the local government authority. Likewise, DW3 enlightened this court that the plaintiff herein was among the property owners whose properties were valued for payment of compensation and they recognised the plaintiff as the actual owner of the respective land he was 10 compensated for until later on when the third party appeared as the actual owner of the land for which compensation was paid. Suffice it to say that the plaintiff, having purchased the respective plot of land from the purported previous owner, honestly considered himself the lawful owner of the property. No evidence was brought suggesting that the plaintiff acted in deceit in asserting his right over the respective land. It was not until the third party (The Dar es Salaam

Development Corporation) rose from its deep slumber and asserted her right over the respective land, that it has now been brought to light that the defendant’s title over the land is questionable and, or invalid. Based on the foregoing, I am of the considered view that the defendant in the counterclaim (plaintiff in the main suit) received compensation for improvement he made on the land acquired by the 1st and 2nd defendants for the public good in bonafide belief that he was the rightful owner thereof. Unarguably, the same has been deeply aggrieved by the unfolding events in which his entitlement to the respective plot of land has now been rendered invalid. Hence, requiring the same to refund the 2nd plaintiff in the counterclaim for funds received as compensation, in my view, would be 11 repugnant even to the rudimentary sense of justice. I answer the 2nd issue in negative as well. Now, respecting the 3rd issue, as I have answered the 1st issue in the negative; it follows that the reliefs prayed for by the plaintiff in the main suit namely, re-evaluation of the land upon which unpaid compensation was claimed, general and punitive damages and costs of this suit lack ground to stand; hence, collapse. Likewise, as I have answered the 2nd issue in the negative, consequently, the reliefs prayed for namely, refund of compensation previously paid to the plaintiff and costs of

litigation lack ground to stand and eventually collapse. In summary therefore, respecting the main suit, I find that the plaintiff hereto is not entitled to payment of the outstanding compensation amount to the tune of TZS 28, 519, 731.56/= as previously evaluated by the 2nd defendant for want of title over the land. Therefore, I hereby dismiss the suit in its entirety. 12 In the same vein, respecting the counterclaim, I find that the 1st and 2nd plaintiffs thereof, having paid compensation to the defendant after a thorough validation process; and having found that the defendant acted in bonafide belief that he was the lawful owner of the premise acquired for public good, the claim for refund to the tune of TZS 48, 000, 000.56/= is hereby found untenable. I would likewise, dismiss the counterclaim. And, given the above findings and the circumstances of both suits, I enter no order for costs. I so order. DATED at DAR ES SALAAM this 31st January, 2025. O. F. BWEGOGE

JUDGE 13