20190628 TZHC Dar es Salaam

Af DAR Es· SALAAM -. CIVIL CASE NO. 103 OF 2015 ASHA JUMA ZAKUMBA .................................. 1sr PLAINTIFF DAVID BARABARA ......................................... 2ND PLAINTIFF JUMA BARABARA ........................................... 3RD PLAINTIFF ABRAHAM BARABARA t/a RL TRAD~RS ..............• 4TH PLAINTIFF YUSUF BARABARA .......................................... 5TH PLAINTIFF "',· Versus MOHAMED ALI NOORAN ............................. 1ST .DEFENDANT ATHUMAN JUMA KIDAKO ..............................2ND DEFENDANT RIMINA AUCTION MA-RT & COMPANY LIMITED ...................................... 3RD DEFENDANT ROSE JOSEPH MASU KA ....................... ~ ....... ... 4TH DEF EN DANT , ' ABDALLAH NABAHANI BAKARI. .... ............. ..... 5TH DEFENDANT RICHARD AG REY .......................................... 6TH DEFENDANT EX PARTE JUDGMENT B.R. MUTUNGI, J: . The above-mentioned plaintiffs are claiming against the defendants, severally and jointly for a sum of Tanzania Shillings Seven Hundred Eighteen Million (TZS 718,000,000/=) together with interest and other damages. The plaintiffs' 1 cause of action arises from an illegal eviction done by the defendants in House No. 2 along Bahati Street in Temeke -- . Municipality. In view thereof, the plaintiffs pray for judgment and decree against the defendants, jointly and severally as follows; 1. A declaration that the eviction conducted on 2 nd day of April 2015 on the house 1:10. 2 _s~tuated alon_g_ B_abati Street in Temeke Municipality was wrongful and illegal; 2. An order for payment of specific damages amounting to Tanzania Shillings Four Hundred Million {TZS 400,000,000/=) being damages resulting from loss of the house, plot of land and unexhausted improvements made by the first plaintiff. 3. An order for payment of specific damages amounting to more than Tanzania Shillings Twenty-Three Million (TZS 23, 000,000/=) being loss of properties and other belongings of the first plaintiff and second plaintiff caused by the defendants during the illegal eviction process. 4. An order for payment of specific damages amounting to more that Tanzania Shillings Forty-Five Million {TZS 2 45,000,000/=) being loss of properties and belongings of the fourth plaintiff. 5. An order or payment of specific damages amounting to more than Tanzania Shillings Twenty-Five Million {TZS 25,000,000/=) being loss of the properties and belongings of the third plaintiff. 6. An order or payment of specific damages amounting to more than Tanzania Shillings Twenty-Five Million {TZS 25,000,000/=) being loss of the properties and belongings of the fifth pla-intiff caused by the defendants during the illegal eviction process. 7. An order for payment of specific damages amounting more than Tanzania Shillings Two Hundred Million {TZS 200,000,000/=) per month being loss of business revenues by the illegal eviction conducted by the defendants. 8. An order for payment of general damages of not less · than Tanzania Shillings One Billion {TZS 1,000,000,000/=) due to pains, torture, embarrassment and hardships suffered by the plaintiffs on an account of illegal eviction process conducted by the defendants. 9. Interest on the above amount at court rate of 7% per annum from the date of illegal eviction till judgment. 3 10. Interest on the above amount at court rate of 7% per annum from the date of the decree till the full payment; 11. Costs of this suit; 12. Any other reliefs this Honourable Court deems just to grant. On 31/10/2018 when the case was scheduled for hearing, the defendants did not appear in court. Consequently, the court ordered the same to proceed ex parte. In view thereof, the following witnesses were called in evidence. ASHA JUMA (PWl), DAVID BARABARA (PW2), ABRAHAM BARABARA (PW3), JUMA BARABARA (PW4), YUSUF BARABARA (PW5) and AYUB YAHAYA ABDALLAH (PW6) These witnesses were led by Mr. Simon Mrutu learned Counsel representing the plaintiffs. In her testimony (PWl) alleged that, she started living at Mbezi Kwa Msuguri from 2015. Before then was living at Temeke, Bahati Street, Plot No. 2 House No. 75 a property co- 4 owned with one Hawd Juma· Zakumba by virtue of Case No. 4 of 2005 which was admitted as Exhibit P.1 and proceedings and drawn order together with Misc. Civil Application No. fl 4 of 2008 admitted as Exhibit P.2 Collectively. PWl explained further that, she was evicted therein after the allegation that the said house had been sold to the 1st . . . defendant. She further narrated on 2/4/2015 around 10:00 am a mob ambushed the area and subsequently demolished the said house. The 5th plaintiff notified PWl who quickly got out and found neighbors struggling with the strangers who were throwing out things from the 4th plaintiff's shop. PW 1 decided to get out her grandchild and ran fast to Chang'ombe Police Station. It was found there was a pending case in the Land Tribunal, hence was advised to report the incident to the land tribunal. She elaborated the pending application in the land tribunal was between the 1st defendant and herself {Application No. 13 of 2009) which 5 was admitted as Exhibit P.3 Collectively. The 2nd defendant in the said matter had a power of attorney to represent the 1st defendant as per Exhibit P. 4, hence the 2nd defendant was the one prosecuting the case. PWl alleged she owned several properties including a bed, two cupboards, a dressing table, botch fridge, TV 21 inch, a dining table, clothes, and other utensils. After the said demolition, all these items were taken away by the second defendant representing the 1st defendant and 3rd defendant's employees who were the 4th, 5th and 6th defendants commissioned to carry out the eviction. Thereafter, PW 1 decided to consult her lawyer who prepared and filed the demand notice which was dully served on the defendants (Exhibit P.5) against the said eviction. PWl further explained she is now staying in the rented house. She narrated that, (Exhibit P.3) the pending application was withdrawn by the 1st defendant on 6 19/1/2009. The said withdrawer order was admitted as Exhibit P.6. As to PW2 who is now living at Mbezi kwa Msuguri from 15/4/2015 was before then living at Temeke Bahati Street with his wife (PWl) for the past 40 years in the demolished house. The said house was demolished as alleged by PWl after they were evicted and there were a number of items as listed in Exhibit P.6 taken away and prayed the court to grant the reliefs claimed. PW2 was very bitter since he lost his precious working tools in the process. PW3 alleged that, before 2017 he was living in Brazil and South Africa. He further alleged to have lived with his wife, three children and his siblings (the 3 rd and 5th plaintiffs respectively) in House No. 2 Bahati Street. He had a whole sale business of buying soft drinks and cigarettes. He used part of the said house to store all the items. He tendered the trading license No. Bl 788570 dated 2/10/2014 as Exhibit P.7. 7 He was trading dS ah agent of pepsi, cocacola and Azam. The trading name was R.L Traders. PW3 further alleged his business had a capital of not less than Tshs. 35,000,000/= since he had two canters and Suzuki vehicle for distribution of goods to various shops. PW3 further tendered a copy of bank statement from Access Bank showing his business turnover (Exhibit P.8). At the moment PW3's business has stopped operation due to the alleged eviction done on 2/4/2015. He tendered the photographs showing the damage which was admitted as Exhibit P.9 Collectively. He further tendered in court a list of the items taken away by the 3rd defendant (Exhibit P. 9) which included among others a laptop, EFD Machine, Music System, gas cooker, show case, cigarettes, Azam Soda and water cartons, peps1 and Kiliminajaro water, Tshs. 18,700,000/=. These items were listed in a document dated 3/4/2015 which was admitted as Exhibit P.10 _) 8 All in all, PW3 alleged the defendants had no authority to evict them from the said premises, since there was a pending case before the Temeke District Land and Housing Tribunal. PW4 had the same story that he had been living at Bahati Street, House No. 2, Temeke with his wife, a child and his parents (PW 1 and PW2) before the eviction. As a result of the said eviction, he lost a number of items as listed in Exhibit P.11. He further alleged that, the said eviction and demolition had caused him loss of accommodation, his University project was spoilt and lost, his installation equipments used in his project taken away. He thus prayed the court to declare the said eviction unlawful and inhuman. PWS who was one of the family members alleged to have witnessed the said eviction and demolition since at the time he was still in the said house. The same was done by about 80-100 people (bouncers). He alleged to possess a flat 9 screen SAMSUNG, fridge, dressing table, silver chair, shoes, clothes and carpet. The list of these items prepared on 3/4/2015 was admitted as Exhibit P.12. He thus prayed the court to grant reliefs claimed since the people who evicted them and demolished the said house had no authority to do so. He had to relocate to Tabata unceremoniously. Lastly, PW6 who alleged to be PWl and PW2's neighbour and knew PW3, PW4 and PWS as their children and PW3's business. He further explained to have witnessed the said eviction. He saw a big mob which surrounded the said house. These introduced themselves as auctioneers and alleged they had a court order. They had come with five vehicles (Canter make). They cut off the electricity and started getting out various items which included those from PW3's shop. Thereafter the said house was completely pulled down. What PW6 did was to assist PWS and take him to his house. He further explained the plaintiffs were all in shock and totally 10 confused. The people around had to go an extra mile to calm them down. At the close of the plaintiffs' case, Mr. Mrutu was ordered to file final written submissions. He dully filed the same as ordered. Basically Mr. Mrutu insisted the case on their side was properly proved on a balance of probabilities. He was of the view the said eviction was unlawful and the plaintiffs have suffered losses as alleged. He thus prayed the court to grant the reliefs claimed. In view of the evidence tendered the following are the issues to be determined: - 1. Whether the alleged eviction on the house No. 2 Bahati Street, Temeke Municipality done by the defendants was lawful. 2. If the first issue is answered negatively, whether the plaintiffs have suffered the losses claimed. 3. To what reliefs are the parties entitled to. 11 Starting with the first issue, after going through the adduced evidence specifically as per the testimonies of PW 1, PW2, PW3, PW 4, PW 5 and PW 6 together with Exhibit P.6, 9, 10, 11 and 12, I find the issue is answered negatively. In its totality, PW 1-PW5 are the victims of the said eviction which occurred on 4/2/2015 around 10:00 am. The plaintiffs specifically PW 1 managed to prove they had been living in the said house as per Exhibit P.1 and P. 2 Collectively. The evidence on record indicate further the 2nd defendant possessing a power of attorney on behalf to the 1st defendant (Exhibit P. 4) had commissioned the 3rd defendant to perform the task of evicting the plaintiffs from the said house. The 4th , 5th and 6th defendants being the employees of the 3rd defendant performed the said task accordingly. Further, PW 1, PW3, PW 4 and PW 5 together with PW 6 (t_heir neighbour) witnessed the said incident. These confirmed to the court that the defendants did not produce 12 any order from any court of law to support their move. Neither were the plaintiffs who had lived therein for many years issued with any notice. PWl had proved to the court that by then there was a pending matter at the Temeke District Land and Housing Tribunal for Temeke No. 13 of 2009 which was withdrawn by the first defendant without going into merits after the eviction (Exhibit P.6). It is thus obvious that the eviction was unlawful. As for the second issue, from the outset I find the same has not been proved on the balance of probabilities as required in civil jurisprudence. Exhibit P.6, 10, 11 and 12 indicate the items which vanished in the process of eviction. However, the evidence did not go further to state if at all these alleged items were indeed therein. To add salt to the wound, despite the fact that the plaintiffs tendered in court a business license (Exhibit P.7), but the same did not establish if at all the alleged goods were in the alleged shop at the 13 time of the said eviction. More so, Exhibit P 8 (the bank ') document) was a photocopy hence the court is hesitant to rely on secondary evidence which also does not speak much. In the case of ATHUMAN AMIRI AND ANOTHER VERSUS ALLY FAKI, CIVIL APPEAL NO. 101 OF 2016 (CAT-AR) (UNREPORTED) at page 16 the Court of Appeal of Tanzania held-;- ' ... the law is that, special damages can only be granted upon being sufficiently established.' See also; Zuberi Augustino Versus Anicet Mugabe [1992] T.L.R 137 The lists of items tendered as exhibits P.10, P11 and P.12 ore merely pieces of papers which have no legal effect. These were not prepared by experts. Having in mind the above legal position, I find the claimed special damages claimed by the plaintiffs have not been sufficiently proved on the balance of probabilities as required by law. 14 were called they would have given evidence contrary to the party's interests.' [Emphasis is mine] Having in mind the above analysis and reasoning, I find the second issue is answered negatively. In regards to the third issue, as to what reliefs the parties are entitled to. In totality, with the outcome of the first and second issues, the plaintiffs are only entitled to general damages and not otherwise. In my settled view the plaintiffs have failed to prove strictly the specific damages as I have stated earlier. In view thereof, the pleaded and prayed general damages against the defendant as quoted earlier was Tanzania Shillings One Billion (TZS 1,000,000,000/=). The law relating to general damages is well settled. In the case of SAVINGS AND FINANCE COMMERCIAL BANK LTD VERSUS BALBIR SINGH SAIN AND 2 OTHERS, CIVIL APPEAL NO. 32 OF 2009 (CAT-DSM) (UNREPORTED) at page 14 the Court of 16 Appeal of Tanzania did quote the Black's Law Dictionary (8 th Edition) whereby general damages have been defined as follows; 'Damages that the law presumes follow from the type of wrong complained of .. .General damages do not need to be specifically claimed.' In a similar vein, in the case of DR. ALLY SHABHA Y VERSUS TANGA BOHARA JAMAT, CIVIL APPEAL NO. 40 OF 1997 (CAT) (UNREPORTED) the Court of Appeal further stated; 'these damages arising naturally, that is, in the normal course of things. They are such damages as the law will presume to be the direct or probable consequence of the action complained of.' [Emphasis is mine] Further, the law is well settled on how the court can grant the general damages. In the case of ANTHONY NGOO & DAVIS ANTHONY NGOO vs. KITINDA KIMARO, CIVIL APPEAL 17 ·• NO. 25 OF 2014 (CAT-AR) (UNREPORTED) the Court of Appeal of Tanzania observed that: - " ... the law is settled that general damages are awarded by the trial judge after consideration and deliberation on the evidence on record able to justify the award. The judge has discretion in the award of general damages ... " Bearing in mind the above legal positions and the prevailing circumstances of the matter at hand, I find the 1st , 2nd, 3rd 4th and 5th plaintiffs are each entitled to be awarded Tshs. 10,000,000/= as general damages. In this case the presumed probable consequence of the defendant's action of unlawfully evicting the plaintiffs is the psychological, mental torture and humiliation that were subjected to on the fateful day. 18 It In the event, the suit succeeds to the extent stated above. The defendants to pay the costs of the suit. It is so ordered. ;:) ,,J;;;,' ,.:::· · -..... , \f' B.R. MUTUNGI ~b,) JUDGE ,' 28/6/2019 ':-.,... t', . _,.. Read this day~or·28/6/2019 in presence of 1st, 2nd, 3rd and 4th plaintiffs and Blandino Gowile for the plaintiffs. 'y 0 B.R. MUTUNGI ~- 1fT- ·<., ......"'..,\ JUDGE \ ' \ ! 28/6/2019 . .I / ,, Right ol'7(ppeal Explained. '¥ ;;J. B.R. MUTUNGI JUDGE 28/6/2019 19 ... ., ,, t ' 1. ff' ., ,.;-.. .,} .' ... 'l' /'·'