alfred fvs lawa vs mohamed enterprises ltd 2018 tzhclandd 361 1 june 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 195 OF 2013 ALFRED F. V. LAWA..........................................PLAINTIFF VERSUS MOHAMED ENTERPRISES LTD..........................DEFENDANT JUDGMENT Date o f last order: 25/5/2018 Date o f Judgment: 1/6/2018 MGONYA, 3. The Plaintiff who is represented by Mr. Msemwa, Learned Advocate, Claim against the Defendant represented by Dr. Lamwai Learned Advocate what is briefly captured in paragraph 4 of the amended plaint as follows:- "that, the Plaintiff's claim against the Defendant jointly and severally is for a declaration order that the Plaintiff is the rightful owner and occupier of three hundred acres of situated at Boko Mnemela within Kibaha District Coast Region registered granted vide a letter of Offer with Reference No. KIC/128/1 of 2nd November, 1998." Detailing the claim, the Plaintiff pray for Judgment and Decree against the Defendant as follows:- "a) A declaration order that the Plaintiff is the rightful owner and occupier of three hundred acres of land situated at Boko Mnemela within Kibaha District Coast Region Registered granted vide a letter of Offer with Reference No. KIB/128/1 of 2nd November, 1998; b) Payment of general damages to be assessed by the court, in excess of Tshs. 220,000,000/= for preventing development of the suit Farm; c) Interest on (b) above at courts rate of 12% from the date of Judgment until full payment; d) Costs; and e) Any other and further relief(s) as the Honourable Court may deem fit and just to grant. The Plaintiff called two witnesses and tendered three documentary Exhibits (Exhibit Pl-3) while Defendant called two witnesses and tendered three documentary Exhibit D3. Issues framed are as follows:- 1. Whether the Plaintiff is the lawful owner o f the land the subject matter of this case and on what basis; 2. Whether the documents o f title annexure DJ-1 and DJ- 2 are valid documents; 3. Whether the Plaintiff has been in actual possession of the land since 1988 and if yes, whether he has a right o f occupancy over the land; 4. Whether the village council has power to grant the land to the Plaintiff; 5. Whether the purported survey at the instance o f the Plaintiff was legal; and 6. To what relief(s) are the parties entitled. PW1 Alfred F. V. Lawa deposed that he is the administrator of Estate of Late Francis Lawa as per Exhibit PI. It is alleged that, the Late Francis Lawa possessed a letter of Offer issued in 1988 via Exhibit P2 over 300 acres at Boko Mnemela Kibaha District. The witness successfully tendered the land rent payment receipts which was admitted as Exhibit P3. As to how the controversy at hand set in, he has the following to say:- "The disturbances I was getting was from the estate Manager of Allave State. He said my Farm was theirs, Allave Estate is neighboring Company which deals with Sisal growing. Allave Estates is under Mohamed Enterprises." PW1 deposed further that the disturbance commenced in 2013. The witness went on to insist and prayed for an order that court to declare him as the rightful administrator of the Estate who owned 300 acres Farm at Boko Mnemela. He also prayed for the costs from 2013 to the date of Judgment and costs for the suit. Being cross examined by Dr. Lamwai PW1 testified that in 1988 the land in dispute was surveyed. He conferred that in the absence of the Farm number and registered Deed Plan no offer could be given. As regard to the letter of Offer, PW1 testified that he was not informed by his Advocate that the said letter of offer is forged. On the issues of payment of land rent, PW1 confessed that he does not have the receipts to prove for the said payment since he said was stolen in 2012 and he has not paid a rent. PW1 further testified that the Farm in dispute has been there since 1936. The witness further admitted that Allave Estates was once owned by Karimjee Sisal Estates. He also confessed that the land in dispute was once part of Allave States and is still owned by Allave estate. Further admitted that after liquidation of Karimjee Jivanjee Estate Limited, the Estate of Allave was sold to Mohamed Enterprises. He further confessed that he had not apply for an 4 injunction order to restrain the Registrar of Title from registering the disputed land. PW2 Majaliwa Japhari Mwamba, as Land Officer employed by Kibaha District Counsel testified that as per Exhibit P2, the Farm was allocated to Francis V. Lawa on 2/11/1988 covering 300 acres. He visited the suit Plot after he received the summons only to found the forest. Being cross examined by Dr. Lamwai, PW2 went on to state that way back in 2000, one could be given a letter of offer in unsurveyed land but after 2000, the same was not possible. He further confessed that if a person is given a Certificate of Title in unsurveyed land, then it is difficult to identify the land. The witness further admitted that Allave Estate have been there in the 50 years. The witness further testified that Karimjee Jivanjee Estate Limited was the original owner of Allave Estates from the 50's. PW1 admitted he has not heard that the Title Deed of Karimjee Jivanjee Estate Limited have been revoked. PW2 further confessed that a Village cannot allocated land in a surveyed land. The witness again testified that a land officer cannot give offer over an offer of a surveyed land. PW2 further admitted that it is not correct for a Plaintiff to claim land which is with Allave Estate. 5 As for the Defendant, DW1 Mr. Ndekirwa Lewaro Nyari disputed the claim in total maintaining that Mohamed Enterprises have not trespassed to the Plaintiff's Farm but instead the Plaintiff has trespassed to the disputed Farm. DW1 told the court when the land has an offer, the Village cannot have any power over the same. DW1 went on saying that Mohamed Enterprises bought the said land as evidenced by Deed of Conveyance admitted as Exhibit Dl. The disposition was between the Receiver Manager and Karimjee Agriculture Ltd and Mohamed Enterprises. DW1 elaborated further that the Farm has 5 Titles Deeds. The Defendant bought the same for the tune of USD 150,000,000/=. He further tendered a map in favour of Allave Sisal Estate which was admitted as Exhibit D2. The said map is about Title Deed No. 139922 which shows the part which the Plaintiff trespassed. DW1 told the court that the village do not have mandate to dispose that land. The Plaintiff went to the village to ask for the land in 2010. The firm was originally surveyed in 1953. DW1 successfully submitted Certificate of Occupancy dated 22nd July 2015 in favour of Defendant which was marked ID DI. As per Exhibit P2, DW1 testified that the same has not been defined by any site plan or any map which has been surveyed. The land is not identified due to the fact that there is no any site plan nor map in its favour. 6 Being cross examined by Mr. Msemwa, DW1 testified that he does not agree that Exhibit PI as a true offer. He confessed that one cannot identify the land in the offer since it has no any map to support. DW2 Mr. Sylverius Peter Qorro Legal Officer at the Registrar of Titles' Office testified that as per the office of the Registrar of Titles' record the owner of the disputed plot is one Mohamed Enterprises. DW2 successfully tendered a copy of Title Deed No. 139922 which was admitted as Exhibit D3 in favour of the Defendant. DW2 testified that as per office record the name of Alfred Lawa is not in their record but rather the name of the Defendant who is the one registered. Being cross examined by Mr. Msemwa, DW2 admitted that if one has an offer and has paid for the same, he becomes an owner. He further clarified that the Title Deed is signed by Registrar of Title while the offer is signed by Commissioner for Land. DW2 concluded by stating that, in the office of the Registrar of Title, there is no any registration in the name of Francis Lawa neither Alfred Lawa. 7 With the above, let me now turn to the issues. I will start with the second issues, whether the documents of title Annexure DJ-1 and DJ-2 are valid. From the record, indeed DJ-1 and DJ-2 were marked and admitted as Exhibit PI and P2. To be precise Exhibit PI it a letter of Administrator of Estate granted to Alfred F.V. Lawa of the Estate of Francis Lawa. However, DJ-2 which was admitted as Exhibit P2, it is a letter of offer issued by Kihaba District Council to Francis V. Lawa. On 17th November, 2016 was the date where the Plaintiff prayed to the Court to tender the letter of Administrator as an Exhibit. Dr. Lamwai leaned Counsel assisted by Ms. Zakia Ally for the Defendant raised no objection hence the same was admitted in court and marked as Exhibit PI. On the same the Plaintiff prayed to tender the letter of offer as an Exhibit. In the same series, Dr. Lamwai raised no objection, hence the letter of offer was admitted and marked as Exhibit P2. In view of the above sequence, this takes me to order XII Rule 7 (1) and (2) of the Civil Procedure Code which provides the following wording 8 "7(1) every document which has been admitted in evidence.........shall form part of the record of the suit. (2) Documents not admitted in evidence shall not form part o f the record and shall be turned to the persons respectively producing them." Now, it is evident indeed from Rule 7 (1) that a document which has been admitted in evidence shall form part of the record of the suit. The record shows as stated above, that Exhibit PI and P2 were admitted in evidence. Despite of being admitted as evidence, the pertinent question is whether or not they are valid document. To start with Exhibit PI, since the said document admitted in evidence is a court document, indeed it has to be respected and cannot be impeached. For this single reason, I find that Exhibit PI is a valid document. Turn to Exhibit P2 which is a letter of offer issued by Kibaha District Council to Francis V. Lawa in 1988, the Defendant's Counsel contends that the same evidence is not valid since there cannot be a grant of land which has not been surveyed. In support of his 9 submission, the provision of Section 22(c) of the Land Act has been cited. Now as regard to the question as to whether the land measuring 300 acres at Boko Mnemela Kibaha District was surveyed or not, PW1 during cross examination testified that the same was surveyed. He has also confessed that in absence of Farm number and registered Plan, no offer could be given. PW2 a Land Officer testified that way back in 2000 one could be given a letter of offer in unsurveyed land. On my part, the question whether Exhibit P2 is a valid document, can be well answered if one ask whether prior to said grant there was already grant to another person. It is a trite law that land authority cannot give offer over an offer of a surveyed land. What does the evidence tell me PW 1 on his own words, testified that the Farm in dispute has been there since 1936, and Allave Estates was once owned by Karimjee Sisal Estates. He further confessed that the land in dispute was once part of Allave Estate. PW1 further admitted that after liquidation of Karimjee Estate the Estate of Allave was sold to Mohamed Enterprises. PW2, on his part testified that Allave Estate have been there in 50 years. He 10 also admitted that Karimjee Jivanjee Estate Limited was the original owner of Allave Estates. PW2 further testified that he had not heard that the Title Deed of Karimjee Jivanjee Estate Limited have been revoked. Since there is no dispute that Ms. Karimjee Jivanjee Estate Ltd owned the disputed Plot since 1936 and the Defendant purchased the said land known as Allave Sisal Estate as per Exhibit Dl, I find that the subsequent grant in 1988 was not proper. Since the Defendant acquired the land in dispute from the original owners who existed before the grant to the Plaintiffs. I am satisfied that, subsequent grant in 1988 while there is no any revocation of the prior grant, renders Exhibit P2 as invalid document. Coming to the second issue i.e as to whether the Plaintiff is the lawful owner of the land the subject matter of this suit. Having carefully considered the findings on the first issue, reading together with the content of Exhibit. Dl, the deed of conveyance between Leonard Clement Musa as Receiver and Manager and Agent of Karimjee Agriculture Ltd and Mohamed Enterprises, as well as the contents of Exhibit D2 and D 3,1 am convinced that the Plaintiff is not a lawful owner of the land the subject matter of the suit. li Now, what do, Dl, D2 and D3 documents admitted in evidence reflect view and findings, on what I have already discussed, in this Judgment, apparently those documents reflect cogent and credible evidence that the Defendant is the lawful owner of the land subject matter of the present suit. As regard to the issue whether the Plaintiff has been in actual possession of the land since 1988 and if yes whether he has a right of occupancy on the land; In view of the findings of the two issues discussed above, this issues cannot detain much time and energy since the allocation to Plaintiff in 1988 was made while there was already existed a grant of Right of Occupancy which was yet to be revoked. The purported subsequent grant of the Plaintiff was not in law proper. On such basis, the argument that Plaintiff has been in actual possession of the land since 1988 has no any legal weight due to the findings stated earlier. On 4th and 5th whether the village Council has power to grant the land to the Plaintiffs and whether the purported survey at the instance of the Plaintiff was legal; It is unfortunate during the hearing the Plaintiff has neither attempted nor established that the land in question was village Land under jurisdiction of the Village Council. Now since the land in dispute was already surveyed and registered, which was also granted to the Defendant's predecessor 12 these issues are answered negative on the part of the Plaintiff. To top it all, I am more than fortified in my finding by the contents of Exhibit D2 a Registered Plan No. E. 270/6725, with registration No. 8307, even the purported survey was indeed illegal at the instant of the Plaintiff. Finally but not least, to what relief(s) are the parties entitled. The content of this Judgment are sufficient testimony to that the Plaintiff deserves nothing among the entire reliefs sought from this court from amended Plaint. Plaintiff has miserably failed to prove this case to the standard required in Civil Litigations, that's on the balance of probabilities. But, in all fours, the Defendant deserves costs in this matter. Consequently, this suit is hereby dismissed in its entirety with costs. It is so ordered. Right of Appeal Explained. L. E. MGONYA JUDGE 1/6/2018 13 COURT: Judgment delivered in the presence of Ms. Catherine Solomon, Advocate for both parties and Ms. Emmy B/C in my chamber today 1stJune, 2018. ) ^ L. E. MGONYA JUDGE 1/ 6/2018 14