Astrida Pacific Kalinda v Isack Benjamini Isack 6 Others Land Case No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND CASE NO. 20 OF 2023 ASTRIDA PACIFIC KALINDA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS ISACK BENJAMINI ISACK AND 6 OTHERS .............................. RESPONDENT / DEFENDANT JUDGMENT J. NKWABI, J, 26/11 & 05/12/2024 The plaintiff namely, Astrida Pacific Kalinda, also known as Pacific Kalinda came up with a business idea. She wanted to conduct hotel business. To further her desire, she made an application (exhibit P. 1) to the 4th defendant to be availed with plots on which she would build hotel buildings. The 4th defendant informed her vide exhibit P.2 of availability of a hotel site at Bangwe. On 31/03/2005 she was informed of availability of hotel site at Burega instead of Bangwe vide exhibit P.4. Finally, on 14/3/2006, the 4th defendant notified the plaintiff to have given her four plots at Burega area and demanded payments. She paid through exhibit P.7. Then a letter of offer of certificate of occupancy (exhibit P.8) was issued to the plaintiff on 26/6/2007. The Commissioner for Lands allocated to her plots numbers 3016, 3017, 3018 and 3019 at Burega area. She paid what was required of her to pay. Therefrom, she continued to pay land rent. Her business plans have not materialized owing to the actions of the defendants. She is suing them in this Court to get redress. The defendants disputed the suit and the 1st and 3rd defendants claimed to have bought the respective plots. Mediation failed and on the final pretrial and scheduling conference two issues were framed by the Court which are: 1. Whether the plaintiff is the lawful owner of the disputed piece of land. 2. What reliefs are parties entitled to. It was closing submissions from the counsel for the plaintiff contended that the 1st defendant trespassed on her plot No. 3019 and 3rd defendant trespassed on her plot number 3017 and unlawfully uprooted and started erecting Page. 1 buildings. The 1st defendant alleged to purchase the plot from the 2nd defendant. I will start to adder the 1st issue which is whether the plaintiff is the lawful owner of the disputed piece of land. On the 1st issue, it was the contention of Mr. Aliki that the plots are owned by the plaintiff vide a letter of offer, so exhibit D.1 the certificate of right of occupancy over the same plot has no legal validity. He cited Frank Safari Mchuma v. Shaibu Ally Shemdolwa [1998] T.L.R. 278 HC in which it was held that, although the appellant had in his possession a certificate of occupancy, the document was not superior to the letter of offer issued to the respondent prior to the date on which the certificate of occupancy was issued. Mr. Aliki also maintained that the issue of compensation raised by the 1st and 3rd defendants during hearing should not be considered as it was not pleaded while parties and the Court are bound by pleadings. He cited Hotel Travertine Limited & 2 Others v. National Bank of Commerce Ltd [2006] T.L.R. 133 and James Funke Gwagilo v. The Attorney General [2004] T.L.R. 161. He alleged that even if claims of customary owners were there, they would be afterthought and time barred as compensation ought to be claimed within 12 months as per Kigoma Ujiji Municipal Council v. Ulimwengu Rahid t/a Ujiji Mark Foundation, Civil Appeal No. 222 of 2020 CAT. They sold the pieces of land without good title to pass to the 1st and 3rd defendants. In the closing submission, duly drawn and filed by Mr. Kabuguzi, learned counsel for the 1st defendant it is stated that the 1st defendant is sued by the plaintiff over plot No. 3019. He claimed that the land was customarily owned by Maliki Omari Rumula and DW.3 Asna Hamisi Selemani Kasabe, but was surveyed and demarcated by 4th defendant. He argued, the deemed right of occupancy was not extinguished for the plaintiff to be lawfully granted right of occupancy. He cited Section 1(1) (b) of the Land Act, Cap 113 R.E. 2019. He maintained that the plot was re-allocated to the plaintiff by 4th defendant having legal encumbrances, thus the ownership by the plaintiff is unfounded. Mr. Kabuguzi too stressed that plot No. 3019 does not exist anymore rather plot No 171 Block B Burega and legally owned by the 1st defendant under a certificate of right of occupancy (exhibit D.1) issued by 5th defendant. He also pressed that as there is no relief claimed against exhibit D.1, it cannot be altered or affected by any lawful order of this Court. He too relied on Amina Maulid Ambali & 2 Others v. Ramadhani Juma, Civil Appeal No. 35 of 2019 where it was held that: “In our considered view, when two persons have competing interests in a landed property, the person with a certificate thereof will always be taken to be lawful owner unless it is proved that the certificate was not lawfully obtained.” Mr. Kabuguzi also challenged the testimony of DW.1 that the Certificate of occupancy was wrongly issued over Plot No. 171 Block B as legally flimsy because it did not come from the Commissioner for Lands and Registrar of Titles who have powers to allocate land and register the same respectively. Page. 2 Indeed, in evidence, the 1st defendant said he bought the plot on 15/05/2020 from Shida Said Mohamed, the deceased who was sued through Shida Hussein Katembo, who however, the case proceeded in absentia. From the evidence, that allegation of buying the plot, was not proved by the 1st defendant. He merely tendered the certificate of occupancy, which however, the registrar of titles/land officer distanced to it and said it was issued wrongly. It is clear as day light that the purported sale of the disputed plots to the 1st and 3rd defendants were irregular just as was stated in Mchuma’s case (supra). The ownership of the plaintiff, vide the letter of offer has never been annulled. It follows therefore that even the certificate of occupancy granted to the 1st defendant was irregular. The irregularity of the certificate of occupancy issued to the 1st defendant was confirmed by the Land Officer (DW.4) The purported seller had no title in which she could transfer. In short, the transaction was fraudulent one. Further it is clear that plot No. 3017 is the same as plot No. 171. The plot was allocated to the plaintiff who paid the necessary fee which confirmed her acceptance of the offer. The decision in the case of Mchuma (supra) cited by Mr. Aliki, counsel for the plaintiff is applicable in this case. The decision in Ambali (supra) can assist neither the 1st defendant nor the 3rd defendant. After the acquisition by the government, the original owners ought to have claimed for compensation. The 1st and 3rd defendants cannot allege any encumbrances and be heard. The 3rd defendant cannot claim he bought the disputed plot from customary owner while the same had been surveyed and plot number assigned to and indeed allocated to the plaintiff. He did not also prove that he bought the plot because he did not tender any sale agreement. But even assuming that he indeed but the plot, then he merely bought the plot from a swindler, he ought to have known it as he ought to have demanded for the letter of offer or certificate of occupancy from the seller. In fact, he bought nothing. In any way, the exhibit D.2 the purported sale agreement for the 3rd Defendant, Sendwe, has very little evidential value, because at the time of sale the so called Asina had no title which she could validly transfer. The 3rd defendant appears to me to have been not serious about his defence that is why he did not utilize the authority of Claude Roman Shikonyi v. Estomy A. Baraka & 4 Others, Civil Revision No. 4 of 2012 CAT (unreported) to the effect that: “For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions involved in the suit, one of the two things has to be shown. Either he has to be shown that orders which the plaintiff seeks in the suit would legally affect the interest of that persons, and it is desirable, for avoidance of multiplicity of suits, to have such person joined so that he is bound by the decision of the court in that suit. Alternatively, a person qualifies (on application of the defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set up a defence he desires to set up unless that person is joined in it, or unless the order to be made to bind that person.” Page. 3 It should also be noted here that after the plaintiff had discharged her burden of proof, it was upon the defendants especially the 1st and 3rd defendants to discharge their onus of proof, which they did not discharge, as required of them in Sarkar on Evidence in India, Pakistan, Bangladesh, Burma & Ceylon, 14th Edition 1993 at P. 1338 where it was explained thus: “An essential distinction between the burden of proof and onus of proof is that the burden of proof never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.” See also Paulina Samson Ndawavya v. Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017, CAT where it was stated that: “Be it as it may, we think the success of the appellant’s case did not depend on the respondent’s credibility. It depended on the appellant discharging her burden of proof on the required standard in civil cases relative to the issue to be proved. … It is again trite that the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his and that the burden of proof is not diluted on account of the weakness of the opposite party’s case.” As far as this Court is concerned, I did not see the need to use my power to order that the swindler be joined to the suit as a defendant, after all, there is a principle of law that goes, “buyer beware.” Having stated as above, I hold that the plaintiff proved that she is legal owner of the disputed plots No. 3017 and 3019 Burega area. I thus answer the 1st issue in the affirmative because I reject the defences of the defendants especially the 1st and 3rd defendants. Concerning the 2nd issue which is what reliefs are parties entitled to. Mr. Aliki proposed that since the 1st, 3rd defendants are trespassers to the suit land and they erected structures contrary to the mandatory provisions of section 34(2) of the Land Act, Cap. 113 R.E. 2019 and regulations 4(1) (c) and 10 of the Urban Planning (Building) Regulations G.N. No. 80 of 2018 their structures are liable to be demolished and take away their building materials and they are not even entitled to compensation as it was decided in the case of Salum Juma Mzeru v. Omari Ubaya [1984] T.L.R. 31. In fact, in Mzeru’s case it was decided that: “Since the respondent had developed land and since there was no compensation, the respondent could demolish his building and carry away his building materials.” Mr. Aliki underscored that the plaintiff is entitled to reliefs as claimed in her plaint, thus judgment be entered in favour of the plaintiff. Regarding the 2nd issue, the 1st defendant said the suit is not proved against the 1st defendant so the suit be dismissed with costs. Too, the other defendants prayed the suit be dismissed with costs. Page. 4 I have already decided that the plaintiff is the lawful owner of the disputed plots thus the 1st and 3rd defendants are trespassers. So, the suit has been proved. The plaintiff is entitled to the reliefs she prayed in the plaint. Two defendants were responsible for the trespass, which is actionable perse. They are the Kigoma/Ujiji Municipal council, and the Commissioner for Lands, through their servants were negligent and their negligent actions caused the Registrar of Titles to register title in favour of the 1st defendant. The two negligent defendants are liable for their negligent actions. That is clear under the decided case of this Court of Bashiri Ally (a minor) suing by his next friend Fatuma Zabron v. Clemensia Falima & 2 Others, [1998] T.L.R. 215 HC where it was held inter- alia that: “The hospital, as a government institution, cannot escape from liability for the negligent actions of its servants.” In her amended plaint, the plaintiff seeks the below mentioned reliefs: 1. A declaratory order that the plaintiff is a lawful owner of the plots in dispute. 2. Declaration that the purported suit plots allocation to the 1st, 2nd, 3rd, 4th and 5th defendants are illegal and that their purported right of occupancy be declared nullity. 3. The 1st, 2nd and 3rd defendants be declared trespassers to the suit plots. 4. An order for the 1st and 3rd defendants to remove their structures built on the suit land or the structures be demolished by an order of this Court. 5. General damages to the tune of T.shs 100,000,000/= or any sum to be commensurably assessed by this Court. 6. An order for costs of this suit. It should be borne in mind that the plaintiff was allocated the plots 16 years ago. Because of the trespasses she has not been able to use the plots for hotel business she had applied for. Granting her general damages at T.shs 100,000,000/= in my view is reasonable. I am aware that the plaintiff, in her testimony confused the general damages claim with specific damages, but that is not fatal to her claim for general damages because, general damages need only be claimed, there is no need of proof. See Tanzania Saruji Corporation v. African Marble Co. Ltd [2002] 2 EA 613 where it was stated that: “General damages are such as the law will presume to direct, natural or probable consequence of the act complained of …” See also Beda Jonathan Amuli v. Kuboja Ngúngu & 2 Others, Civil Case No. 29 of 2008 (HC), Juma, J. as he then was, where it was stated that: “… the law is quite settled in Tanzania that the tort of libel is actionable per se, and the plaintiff only need to prove that defamatory words has infringed his legal right. … The law is settled that general damages are those which this court presumes to have arisen out of defendant’s wrongful act.” Page. 5 I grant the plaintiff all the reliefs she claimed in her plaint as follows: 1. I make a declaratory order that the plaintiff is a lawful owner of the plots in dispute that is plot Number 3017 and plot 3019 Burega area. 2. I declaration that the purported suit plots allocation to the 1st, and 3rd defendants is illegal and that the purported right of occupancy (exhibit D.1) nullity. 3. The 1st and 3rd defendants are declared trespassers to the suit plots. 4. I order the 1st and 3rd defendants to remove their structures built on the suit land, in default the structures be demolished. 5. I award general damages to the tune of T.shs 100,000,000/= which should be borne by the 1st, 3rd 4th and 5th defendants. 6. Costs of this suit the suit be borne by the defendants. It is so ordered. Dated at KIGOMA ZONE this 5th of December 2024. J. . NKWABI, J JUDGE OF THE HIGH COURT Page. 6