19900109 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT_DAR_ES SAM,.AM CIVIL CASE N0 ..•... 233/87 ARNOLD B. KILENO .•••• PLAINTIFF versus PETER WALCHER •......• DEFENDANT --·~ RUBAMA J .. , The plaintiff testified that sometime in 1983 after _complying· with the advice of Mr. Mayao of the City C_ouncil- (see exhibit PI), he bought a piece of land at Bahati Beach area. His intention was to build a hotel on the purchased land. This land was, howeyer later incorporated into the Dar·es Salaam Master Plan. It was surveyed in l!'ebruary 1986 and three plots ' established and , . numbered as plo·ts · -, , 45 and 46. The pla~ntiff, on application, was allocated,pl9: · number 42 for residential purposes. He was further allocated plot number 43 for hotel development. The piece of land on which is situated this plot according to the evidence of Tobald Michael Msafiri (PW2) a land officer with the cj_ty council and directly involved in ihe survey of the Bahari Beach area, was found to have been without an owner. It is, npnetheless, this piece of land that is subject matter of this case. According to the eyiden6e of the plaintiff and Tobafd Michael_ Msafiri (PW2), offers for plots Nos. 42 and 43 were giver to the ·. plaintiff by the city council oh 27th June, 1987. A photo-copy of• of the offer in respect of plot number 43 was produ.ced as an exhibit (ex-P2); Appropriate fees for the plot were paid on a4th Ju~y, .-I987 , . ae ex.P3). The plaintiff then fenced his land - i.e. plot No_.

43. The plaintiff further testified that on the' evening of 30th 8 eptember, 1987, on a visit to his plot (plot No. '43), he found ,the fence demolished and the ~encing m~terials taken awayJ~ per~on he later came to know as Peter Walcher (the defendant). The said Peter Walcher was !3,lso claiming ownership of the said plot N_o.' 43, ' In view of this development, the plaintiff instituted this case ' praying for the following relie£s~ (a) a Qeclaration that the defendant is not entitled to enter the property at plot 43 Bahari Beach, Dar es jjalaam. (b) An injunc~on to restrain the defendant, his servants or/and agents ·from entering the-said property. . -f - 2 - (c) Special damages as per paragraph seven of the plaint, (d) General damages (e) Costs of the suit ( f) _Any other relief or reliefs this court may deem fit. This case was heard ex parte because I had ruled on 30th Septembe~, 1989 that there was no ~rit~en ~iatem~nt of Defence on the record .,the defendant had filed his Written Statement of Defence months out of time without the leave.oftlais court. This document was improperly before the court. Fully-accepting that ru- les of procedures are to serve cause of justice and not defeat it, I_am of the opinion that these should not be relaxed or ignored to the extent of causing chaos. The defendant was given ·t'eat latitude in the conduct of this case ( se·e Kyando, J

order of 8th April, 1989). To immediately follow this order with acceptance of an improperly filed Written Statemen.t of Defence in a case where a l_earned advocate is appearing for: ·the: defendant is to put no regard at all to the set procedures. This would amount to allowing laxity le_ading to chaos· and consequent delays in the determination of conflicts. The testimony of the plaintiff is fully supported by oral' as well as documentary evidence. That he, the plaintiff, was offer_ed plot No. 43 Bahari Beach by the appropriate granting aut~ority, the Dar es Salaam City Council, is fully supported by Tobald Michael Msafiri (:i?w2)' and exhibit PI. Tobald Michael Msafiri .J.J . a , ares' Salaam City Council land Officer charged. with allocation _ plots testified on the survey and allocation of plots at the Bahari Beach area. He had participated in the survey exercise of the_ Bahari Beach·area by the officials of thi City Council~ He was later involved as a member of the team of officials supporting a Cammi ttee of the_· Dar es 8 alaam City c&.cillors charged with the verification of the findings of the City Council survey team noted above. This committee of councillors visited the Bahari Beach Area. This official (P~2) is thus very conversant with this case. His testimony was straight forward, clea~ and by itself fully support- ed by documentary evidence (see exhibit P4.). That

the.plaintiff had fully paid the required fees to the appropriate authorities is documented (see exhibit P3). Taking this evidence together with that of HASSAN MKOMO (PW3), a.Senior Land Officer who. has been with the Ministry of Lands since 1960 now seconded to the Capital Development Authority, Dodoma ·1 hold that the defendant did not hold title to plot No.43 Baha~i Beach. F~rt~~r ~~~~ -· 3 - (whether by vi~tu.e of ·a grant under s. 6 of cap. 113 or"deemed" right -0f occupancy) on the au.thori~y of Fatuma A~qd..l:1_§_ai,d E l ~ ,L_S~,1ima ~lJ,j_ Civ. ·Appeal No. 37 of I987 (unreported), (CA) are extinguished on·adoption_of a detailed sc~eme which makes provision for the redistribution of land in accordance with. the_ Third schedule to cap.

378. Further still, by virtue of s. 2 of the Land Oridinance as amended by the Land Law (Miscellaneous Amendment) Act, 1970 (Act No. 28/70), the defendant being of a European origin or descent could not have held this 11 deemed 11 · right. I accordingly find the plaintiff the lawful owner of Plot Nn- 43..Bah.ari Beach ..a.:id thus entitled to the possession of that land. _I further, declare that the .defendant is not entitled to enter the property at plot No. 43, Bahari Beach Dar es balaam. _this regard, an injunction to re.strain:· the ll-efendant, his servant.,;kr ..a.g.ent.s .:froni entering plot No. 43 Bahari Bea.ch is here- h7- .,h"T.a:crted. I accept the evidence of the plaintiff-that following his allO<lation of Plot No. 43 Bahari Beach by the var es Salaam City Council he had fenced his land at a cost of shs. 74,700/- and that the defendant had destroyed this fence and also carried away the feneing materials. In view of this unjustifie·d. act .by thi · '.· defendant, the plaintiff suffered special damage .in the tune of shs. 74 1 700/~ I grant the plaintiff's payer· ( c) in ·the plaint ·' , .. - and order the defendant to pay the plaintiff shs. 74,700/- as special damages. I further accept the plaintiff's evidence that he had suffered, general .damages. in the tune of shs. 750,000/~. .i.long delay forced on the p~aintiff by the defendant in implemsnting his long established intention to establish a hotel _p.oB't' 1987 when the Tanzania shilling has been devalued mor~ tha? once -warrants such ari award. The plaintiff's strain because of the lost·time and consequent costs is not difficult to appreciate. Lastl.y_ I -o.rd.e:r- th.at the defendant pay the co.sts of this suit. '~->,,,,,_\·,. •'"'-.!:. "~ ... ·.-_-._ ...... •, Y.AJIYA RUBAMA

JUDGE 9/1/1990 9/1/90 Coram: Rubama, J Mr. Kilowo - Plaintiff present in person Judgment delivered. YAHYA RUBAl'-iA

JUDGE T00'"'