BAKARI HASSANI SADICK VS BRAC T FINANCE LIMITED DRAFT JUDGMENT

IN THE HIGH COURT OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA CIVIL CASE NO 9732 OF 2024

BETWEEN BAKARI HASSAN SADICK………………….PLAINTIFF

VERSUS BRAC (T) FINANCE LIMITED………….…..DEFENDANT

JUDGMENT Date of last order: 20/03/2025 Date of the Judgment: 27/03/2025 LONGOPA, J.: The Plaintiff instituted a civil case against the Defendant for declaratory orders that resistance by the Defendant from releasing of the Plaintiff’s Customary Right of Occupancy is illegal, null and void; direct immediate release of the Plaintiff Customary Right of Occupancy; order of payments of Tanzanian Shillings three hundred fifty million (TZS 350,000,000/=) as general damages for inconveniences/ disturbance 1|Page caused by the Defendant on loss of three Plots of land at Nzuguni Ward in Dodoma City Council. Facts of the case can be summed up as follows: That the Defendant has been advancing loans to the Plaintiff several times for boosting working capital in the Plaintiff’s business. At all times, the Plaintiff has managed to repay the loan timely without any difficulties. Sometimes in November 2021, the Plaintiff requested for a loan of Tanzanian Shillings twelve million (TZS 12,000,000/=) allegedly secured by Certificate of Customary Right of Occupancy for three plots of land located at Nzuguni Ward; and personal guarantorship from two guarantors among others. The loan repayment came to an end in November 2022 whereby the Plaintiff managed to repay the loan in full. It was not until March 2024 when the Plaintiff approached the Defendant on claim that Certificate of Customary Right of Occupancy belonging to the Plaintiff was not returned on discharge of loan obligations. 2|Page To determine the dispute between the parties this Court in agreement with the parties framed the following issues for determination, namely: 1. Whether the Defendant is unlawfully withholding the certificate of customary right of occupancy placed by the Plaintiff as collateral documents.

2. To What reliefs parties are entitled to? The Plaintiff rallied three witnesses while the Defendant called a single witness in order to prove their respective cases. The Plaintiff enjoyed the legal services of Mr. Chacha Mwita, learned advocate and later on Mr. Kones Ben learned advocate while the Defendant had legal services of Mr. Simon Ng’wigulu, learned advocate. Summary of the evidence on record is as follows: PW 1: Bakari Hassan Sadick stated on affirmation that he has been in relationship with BRAC Tanzania Limited for about 10 years whereas the Defendant had advanced loans to the Plaintiff for almost five times. The last loan was in 2022, with loan amount being twelve million shillings (TZS 12,000,000/=). The terms and conditions of the agreement were that the borrower must 3|Page have a security that could secure the loan, guarantors and a personal (self) guarantee. According to PW 1, there were two guarantors who signed the loan agreement application form from BRAC TANZANIA Finance Limited and that the same was reduced in writing and security was offered as required. It was PW 1’s testimony that he had failed to bring a copy of the loan agreement to substantiate terms and conditions because he was confused upon being informed of loss of securities offered to secure the loan. PW 1 stated that the loan was secured through customary right of occupancy for two plots of

land and a house. The two guarantors were Mr. Kilamiti, the Plaintiff’s uncle and Shida Selemani who is Plaintiff’s sister. As per PW 1, he obtained the loan of TZS 12 million from BRAC Tanzania Finance Limited after compliance with the conditions and terms of the agreement. The loan was repaid within the period of one year on a date which he could not remember. It was PW 1’s evidence that though three security documents were required to be returned the Defendant failed to do so and later informed the Plaintiff that such documents had been lost. 4|Page The Plaintiff reiterated that he has lost ownership of the landed properties whose Customary Certificate of Occupancy were lost by the Defendant. PW 1 stated further that efforts to follow up the land ownership from the local authorities prove futile as the Plaintiff got no copy of any of the document whose original copies were handed over to the Defendant. The local government authorities do not have record that Plaintiff had ownership of land because of the Defendant’s negligent act that led to loss of the documents. Thus, the Plaintiff is not recognised anywhere on ownership of that land as a result. PW 1 emphasized that he has lost the ownership of said land as the place has been occupied by other persons who have invested and developed the land while on his side, he has nothing to show that such land belongs to him. It was

PW 1’s evidence that upon visiting such land, the current occupiers demanded documentation to indicate the ownership of the land but he failed as all the documents were lost in hands of the Defendant. 5|Page According to PW 1, there is no possibility for the Plaintiff to recover the land as there are substantial development on land including existing Petrol station, a storey building and other building within that land in question and that all those buildings are not his. They belong to other persons. He blames BRAC Tanzania Finance Limited that might have allowed the current occupiers on the land as the latter had the documents belonging to the Plaintiff. According to the Plaintiff, there are substantial development in the area is estimated at around eight Hundred million to one billion Tanzanian Shillings (TZS 800,000,000 to 1,000,000,000/=). It was testified that the plots were the source of capital that Plaintiff used to get income vide obtaining loans by applying the land title documents as security. PW 1 also alleged that his business collapsed as he has lost source of capital. He stated also to have suffered psychologically as he lost land which was a major source of income by offering it as security for loans. When cross-examined by Simon Ng’wigulu, learned advocate for the Defendant, PW 1 reiterated to have borrowed five times from the 6|Page Defendant of up to

Tanzanian Shillings eighty million and secured the same twice with Granted Right of Occupancy of a house which he later sold. In the last borrowing, PW 1 stated to have used the documentation of ownership of customary title that were lost in hands of BRAC Tanzania Finance Limited three times to secure the loans. On the timing of repayment of the last loan, PW 1 stated that he does not remember dates and months when he finalised repayment. PW 1 stated to have gone to BRAC Tanzania Finance Limited on February 2023 to demand for his documentation regarding security documentation and refuted that it was not in March 2024. PW 1 was of the view that he demanded the documents immediately after completion of repayment but produced nothing of documentary nature to support the assertion as he admitted to have not tendered any documentation. PW 1 averred that the defendant stated categorically that it was making follow ups on the ownership documentation and willing to cooperate and bear the costs of alternative documentation from relevant authorities. PW 1 denied to have been informed of the Defendant to have 7|Page reported the matter to Police Station as the Plaintiff was not given any certificate on loss of ownership. PW 1 stated that it is BRAC Tanzania Finance Limited is the one who invaded the Plaintiff’s land. PW 1 added that the land in question is not surveyed, he failed to the

size of the land, boundaries/ neighbours to the land and description of the land. PW 1 stated that land is located at Nzuguni Street a place known as Nzuguni Boda, but PW 1 does not know the name of Mtaa/ Street Chairman current or former. PW 1 stated that Plaintiff cannot file a case on ownership against anyone else as the Plaintiff had no documentation to substantiate the claim. The documentations were necessary for filing a case. PW 1 restated that he has no record regarding dates when he bought the land as he owns it for a very long time. It is only the documentations that Plaintiff handed over to the Defendant that could have established the ownership. PW 1 noted that he tendered any documentary evidence to show that he used three customary titles over land to secure the loan. Also, PW 1 admitted that he never produced any supporting documents that such 8|Page area/land has such value or that relating to proof of existence of ownership of the house and two plots of land. PW 1 testified that he kept no any copies of the customary title over the land in question. PW 1 noted that in the demand letter, Plaintiff demanded to be paid a total of TZS 350 million and that he has not stated the manner he was impacted to deserved compensation of TZS 350 million. He noted that the defendant was always ready to get alternative customary title over the land and did request the Plaintiff

to cooperate. In re-examination by Chacha Mwita, learned advocate, PW 1 stated that loan was for one year and it was repaid within that time. PW 1 reiterated that security was two plots and one house documentation of ownership to secure the loan for plots of land located at Nzuguni in an area called Nzuguni Boda within the Dodoma City in Dodoma Region. The house was not occupied and the two plots were plain at that time in 2022. PW 1 stated that the Plaintiff followed up with Dodoma City Council and the Village Council at Nzuguni who required him to submit evidence of ownership to allow the authorities to work on the matter. 9|Page According to PW 1, compensation of TZS 350 million is the value of the land now with its current development has such estimated value. Time has passed as the value of land has appreciated/ increased with time. Another evidence was that of the PW 2, one Shida Selemani who on affirmation stated that she was aware of the loan agreement between Sadick Hassan Sadick and BRAC Tanzania Finance Limited entered in 2022 where TZS 12 Million was borrowed.PW 2 acted as one of the guarantors. It was PW 2 that conditions required security were titles over the land including two plots and one house. The plots were at Nzuguni corner in Dodoma City within Dodoma region. PW 2 narrated that the Plaintiff was given the loan and the same was repaid within 12 months, the

same was repaid and documents were to be returned to the borrower though they were not. It was also PW 2 testimony that currently she cannot recognise the land in question as it is well developed with a Petrol station, a storey buildings and housing and she is not aware of the owner/ occupier. 10 | P a g e In cross-examination, PW 2 stated that she does not remember when the Plaintiff went to Defendant to demand for the documents for the first time. PW 2 testified that she never visited the area whose customary certificate of occupancy is lost and that there were other villagers sorrounding that area. PW 2 stated that she does not know the name of Street/ Mtaa where the plots are located except that it was around Nzuguni corner when the plaintiff purchased that land. PW 2 noted that in 2023, the area was well developed as there are a lot of houses. The last Plaintiff’s witness was Kilamiti Salum who testified as PW 3. Kilamiti stated that Mr. Bakari Hassan Sadick borrowed a loan amounting to TZS 12million and that PW 3 was the guarantor of the borrower who placed documents on plots of land as security for the loan. The Plaintiff handed over the land plots to the defendant. The plots are located at Nzuguni corner in Dodoma City. 11 | P a g e PW 3 stated that Plaintiff managed to repay the loans but the documents were not returned to the Plaintiff. It was PW 3 that he only passed

at that area in year 2000 but now the areas are well developed. In cross-examination, PW 3 testified that he visited the area in year 2000 while the same was not developed located at Nzuguni Corner. PW 3 stated to have seen the house of three rooms in 2021. In fact, PW 3 stated to have only been informed by the Plaintiff on existence of building. He further reiterated that he cannot confirm to have seen a house in the alleged plots of land nor existence of any house worth TZS 50 million on that land. PW 3 reiterated that he cannot establish the development of the land in that area in terms of buildings and that he cannot confirm/ establish that there is trespass in that area nor that the Plaintiff has lost ownership of the land in question. PW 3 noted the defendant never informed him that that they own that land. It is the one that Mr. Bakari Hassan Sadick who is owner entrusted his documentation over the land. 12 | P a g e In re-examination, PW 3 revealed that he visited the land in year 2000 and he only knows that the Plaintiff offered the documentation for ownership of the land owned by the Plaintiff. On the other hand, defence called a single witness. DW 1 was one Ismail Salehe Mataula testified he knew about the fact that the Plaintiff has sued the Defendant BRAC (T) Finance Limited on the loss of the land purchase agreement document allegedly to have been handed over to

the company to secure a loan by one of our former client/customers, Mr. Bakari Hassan Sadick. DW 1 stated that the document allegedly to have been lost is the Sale Agreement of the land and it was an agreement between the Plaintiff one Bakari Hassan Sadick and another person. DW 1 noted that the Plaintiff one Bakari Hassan Sadick was a customer/ client of the Defendant who borrowed several times around four times na the last loan was worth Tanzanian shillings twelve million (TZS 12,000,000/=) only which was taken in November 2021 and repaid fully by November 2022 but it took or 15 to 16 months thereafter for demand of documentation. 13 | P a g e It was DW 1 evidence that sometimes in March 2024, the Plaintiff one Bakari Hassan Sadick visited the Defendant to collect the documents offered as security whereas he was that Defendant was tracing the same and would inform the Plaintiff to collect it. According to DW 1, while the Defendant was continuing to trace the whereabout of the document allegedly used as security to the repaid loan, the Plaintiff served the Defendant with a demand notice demanding to be paid compensation to the tune of Tanzanian Shillings three hundred fifty million (TZS 350,000,000/=). According to DW 1’s evidence that it was within the shortest time while the tracing of the document was still ongoing, having received the demand notice the Defendant were

served with summons informing us to appear before this court. It was DW 1 evidence that upon tracing and search for documents proved futile, the Defendant dully informed the Plaintiff, asked him to produced the photograph and National Identity Card to report the matter to police in order to be able to process new documentation. 14 | P a g e It was on record of DW 1 evidence that the Plaintiff refused to totally cooperated with the Defendant in anything intended to revert the documents on the land in question. The Defendant refused to report the matter to Police station, nor to take the Defendant’s officers to the land in question, nor to go with Defendant at local government authority to follow up on the alternative documentations allegedly submitted to the Defendant. It was DW 1 testimony that Defendant had to use the copy of the National Identity Card found in the Plaintiff’s loan application form in order to report about loss at the police station. The Plaintiff completely refused to cooperate even with the local government authority. The Defendant tendered the Police Loss Report which was admitted and Marked as Exhibit DE.

1. DW 1 reiterated that when visited the Executive Officer of Nzuguni Street the Defendant was informed that a copy of the documentation and details of the land were required, the Plaintiff was called but refused to cooperate thus made all follow ups fail. 15 | P a g e It was DW 1 testimony that failure and blantant refusal of the Plaintiff to avail a copy of the documents made it difficult for the Defendant to make further follow ups. There was nothing on part of the Defendant to assist in ensuring that the documentations are restored as the Plaintiff failed to visit the locus in quo to identify the plot nor availed any copy of sale agreement. DW 1 stated that action of the Plaintiff to BRAC(T) Finance Limited is considered as dishonesty on party of the Plaintiff as he prevented all the efforts for new documentations being secured save for the compensation stated in the demand notice. Thus, DW 1 stated that parties visited the locus in quo only by order of the Judge Mediator where it was found that currently the alleged land developed with petrol station and two storey building and a car wash. The area was developed since 2019 prior to the Plaintiff’s taking a loan from BRAC(T) Finance Limited. DW 1 reiterated that having thoroughly perused the records and made follow ups, the Defendant discovered that this loan was characterised by dishonesty and fraudulent actions as the

area was 16 | P a g e developed in 2019 while the Plaintiff presented documents in 2021 to secure the loan stating that such land was plain land without any development in that area. DW 1 stated that it was his prayer to this Court that the suit should be dismissed and order costs of the case against the Plaintiff for preferring a case without merits. When cross-examined by Kones Ben, learned advocate the DW 1 stated that it is not true that the Plaintiff had two certificates of titles deposited as security. There is no evidence that such documents were offered to the company, the Defendant. According to DW 1 that there is no Loan Agreement indicating that two documents were offered and that it is not certainly sure that there was any security offered by the Plaintiff in Form of documentation. It was evidence of DW 1 that Defendant is not aware of the location of the land in question. It appears that this is an incident of fraud as the plain land alleged to be offered in 2021 as a security, it was developed through erecting a petrol station, a storey building and a car wash way back in 2019. 17 | P a g e DW 1 reiterated that Plaintiff did not cooperate to report the matter to police station or any government offices/ institutions regarding the loss of the documentations. It is not true that the Plaintiff got all the loans using the same plot of land several times when he

secured loans from the Defendant. It was firm evidence of DW 1 that when there is loss of the documentation used as security, the matter is always reported to police and the owner is enjoined to cooperate in order to process a new document evidencing ownership. The office of the Defendant’s company takes responsibilities on costs for issuance of new documents. Reporting to police station would have been done by the Defendant’s company or the Plaintiff but costs were the BRAC (T) Finance Limited responsibilities. The available evidence on record reveals that: First, neither of the three witnesses of the Plaintiff managed to describe the land whose certificate of title are demanded by the Plaintiff. There is neither description of size, neighbouring owners, as well as location. Second, no loan agreement was tendered by the prosecution to substantiate terms and conditions of the loan whether the same included demand for security in 18 | P a g e form of Customary Certificate of Occupancy or otherwise. Third, the ownership of land was vide customary certificate of title but existence, modality and dates of handing over to the Defendant were not disclosed. Fourth, no person was called to testify on witnessing the purchase of the land from the original owner to the plaintiff. Fifth, no documentary evidence indicating that when the repayment of loan was finalised sometimes in 2022, the

Plaintiff demanded return/ handing over of the documents allegedly used as security. The first issue for determination is whether the Defendant is unlawfully withholding the certificate of customary right of occupancy placed by the Plaintiff as collateral documents. Determination of this issues calls for the application of several pertinent legal principles. The first one is on standard and burden of proof. The Plaintiff alleges to be owner of the land with customary certificate of occupancy whose documents of titles was availed to the Defendant as security but the Defendant refused to return back to the owner. 19 | P a g e It is the provisions of section 2 of the Land Act and the Village Land Act that define two important aspects relating to certificate of customary right of occupancy. These terms are “customary right of occupancy” includes deemed right of occupancy; and the ''deemed right of occupancy'' means a right to title of a Tanzania citizen of African descent or a community of Tanzania citizens of African descent using or occupying land under and in accordance with customary law. Under the law, customary right of occupancy can be obtained in two ways. First, allocation of the village land by the Village Council in accordance with section 25 of the Village Land Act and granted a certificate of title over that land in a village. Second, is ownership of land

through deemed right of occupancy which may be acquired by clearance of virgin land, inheritance, or purchase of land. Ordinarily, the customary right of occupancy applies to village land. There is no evidence on record that Plaintiff was granted land by the Village Council. The available evidence in totality is that Plaintiff did purchase that land from someone else and has been allegedly owning it 20 | P a g e from unknown time. The date of acquisition, neighbours to the land in question, names of the Vendor as well as witnesses of the purchase agreement were not disclosed to the court. The main issue is whether the Plaintiff managed to prove that he actually owned land and had a customary title over such land. It is settled law in this jurisdiction that a person who alleges must prove and that standard of proof is on balance of probability. The guiding principle can be found in Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) (TANZLII), at pages 14-15, the Court of Appeal stated that: It is trite law and indeed elementary that he who alleges has a burden of proof as per section 110 of the Evidence Act, Cap. 6 [R.E 2002]. It is equally elementary that since the dispute was in civil case, the standard of proof was on a balance of probabilities which simply means that the Court will sustain such evidence which

is more credible than the other on a particular fact to be proved. It is again 21 | P a g e 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 the Plaintiff is the one who claimed to have handed over the customary certificate of title to the Defendant in law he is bound to prove. Two aspects ought to be proved. One, that he is the owner of such plots of land and had valid titles over the same. Two, that actually there was a requirement to provide security in form of customary certificate of title to secure the loan. In the case of Hamza Byarushengo vs Fulgencia Manya & Others (Civil Appeal No. 246 of 2018) [2022] TZCA 207 (14 April 2022) (TANZLII), at pages 14-15, the Court of Appeal stated that: ...we begin by restating that, it is a cherished principle of law that, generally, in civil cases, the burden of proof lies on a party who alleges anything in his favour. The principle is embraced in section 110 of the Evidence Act [CAP 6 R.E.2002]. It is also common knowledge that in civil 22 | P a g e proceedings, a party with legal burden also bears the evidential burden and the standard of proof is on the balance of probabilities. In a nutshell, the standard of proof is on balance of probabilities simply means that

the Court will sustain such evidence which is more credible than the other on a particular fact to be proved. Also, the principle was followed in the FB General Contractors and Another vs Bank of Baroda Tanzania Limited (Civil Appeal No. 202 of 2022) [2025] TZCA 61 (24 February 2025) (TANZLII), at page 13, where the Court of Appeal of Tanzania lucidly reiterated that: The Court has consistently emphasized that in civil cases, proof is on balance of probability and that a party who asserts the existence of a fact and desires a judgment of a court in his favour must discharge a burden of proving the respective fact. This is also the spirit and context of sections 110 and 111 of the Evidence Act, Cap 6. 23 | P a g e Having reviewed all the evidence on record, there is no iota of proof on either of the two aspects. There is nothing on recording to prove that the Plaintiff owned land in question. In PW 1’s evidence it was testified that the Plaintiff does not know when was the land purchased. PW 1 never stated the purchase price nor details of the person who sold the land to him. The witnesses also were neither mention nor called to testify on witnessing the Plaintiff purchasing the land thus customary ownership of land vide purchase as part of the deemed right of occupancy. Both PW 2 and PW 3 categorically stated to have not visited the plots of land whose customary certificate of

titles relate. Further, the whole Plaintiff’s case never tendered any documentary evidence let alone the loan agreement that would have proved existence of a term regarding requirement on part of the Plaintiff as a borrower to offer security namely the customary certificate of occupancy and handing the same to the Defendant. None of the three witnesses for Plaintiff has stated anything of that nature that such certificates where handed. As such, it is 24 | P a g e obvious that the Plaintiff has not managed to prove the case against the Defendant to the required standard. There are different limbs validating that the burden and standard of proof was not discharged by the Plaintiff. The first limb which is the most important aspect is variance between pleadings and evidence. Where there is variation between pleadings and evidence, the courts have considered that such variance is a failure to prove the case. For instance, in the case of Barclays Bank T. Ltd vs Jacob Muro (Civil Appeal 357 of 2019) [2020] TZCA 1875 (26 November 2020) (TANZLII), at page 11, the Court of Appeal reiterated that: We feel compelled, at this point, to restate the time- honoured principle of law that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not support the pleaded facts or is at variance with the pleaded facts must be ignored - see James

Funke Ngwagilo v. Attorney General [2004] TLR 161. See 25 | P a g e also Lawrence Surumbu Tara v. The Hon. Attorney General and 2 Others, Civil Appeal No. 56 of 2012; and Charles Richard Kombe t/a Building v. Evarani Mtungi and 3 Others, Civil Appeal No. 38 of 2012 (both unreported). Indeed, the principle was followed up in Maria Amandus Kavishe vs Norah Waziri Mzeru (Civil Application No. 123/01 of 2023) [2024] TZCA 607 (23 July 2024) (TANZLII), at pages 13-14, where the Court noted that: This decision was partly because the evidence presented by the applicant at the trial was materially different from her pleaded case, which was in violation of the principles of pleadings. Furthermore, the Court decided that she was not a reliable and credible witness due to her inconsistent assertions regarding the size of the property she claimed to own. Additionally, this Court, like the trial court, accepted the 26 | P a g e first respondent's testimony regarding her deceased husband's gradual acquisition of the property from 2000 and its transformation into a housing estate with a storage facility by 2009. Based on this, we are unable to ascertain any error in this determination, let alone one that would result in a miscarriage of justice. Pleadings stated that the Plaintiff offered three certificates of customary right of occupancy. The mode of acquisition of the certificates

of customary right of occupancy is not disclosed in the pleadings. As this court has pointed out that there are two modalities of acquisition either by grant by Village Council in accordance with section 25 of the Village Land Act, Cap 114 R.E. 2019 or by deemed customary right of occupancy. Failure to demonstrate the mode of acquisition makes the whole evidence in support of the pleadings to be in variance with such pleadings as the acquisition by either mode is not supporting what the pleadings state. Another important limb which is a third limb relate to failure to call material witnesses. Given that totality of evidence of Plaintiff reveals that 27 | P a g e acquisition was through purchase of the land in question, it is humble opinion of this court that the seller of the land to the Plaintiff was an important witness to testify in this matter. In the case of Maria Amandus Kavishe vs Nora Waziri Mzeru and Another (Civil Appeal 365 of 2019 [2023] TZCA 31 (20 February 2023) (TANZLII), at pages 20-21, the Court of Appeal held that: It is also apparent at pages 173 to 174 of the record of appeal that, when the appellant tendered exhibit P1, she testified that it was issued by CW1 and witnessed by Said Mohamed @ Mtimkavu and Said Yusufu Johora but she did not summon the said people to testify at the trial to prove that fact and no reasons were explained for that failure. Such

failure, in our view, entitles the trial court to draw an adverse inference against the appellant. This principle was illustratively determined in the case of Simon Mugejwa & Another vs Ibrahim s. Magembe (Civil Appeal No.123 of 28 | P a g e 2020) [2023] TZCA 17440 (20 July 2023) (TANZLII), at pages 20-21, the Court of Appeal stated that: We are, therefore of the decided view that, save for misapplication of the word adverse inference, the learned trial judge was right to consider the testimony of Magala Mugejwa to be crucial and cannot be left out of the picture. The appellants' failure to call him as their witness and without assigning acceptable reasons adversely affected their case, that is to say, casted doubt on the truthfulness of their claim over the disputed farm. That omission, we hold, like the learned trial judge impliedly held, weakened the appellants' case. The Seller of the land or witnesses of the sale of the land whose certificates of customary right of occupancy are demanded would have laid solid foundation on the ownership of the Plaintiff on the land thus cementing the claim. Absence of the seller of the land to the Plaintiff or 29 | P a g e witnesses of such sale agreement leaves this court with no option than to disbelieve that Plaintiff had at any time owned any land at the alleged location thus the customary certificates of right of occupancy is a

fictitious matter. It can be noted that there is shortage of description of the land for which the Plaintiff claims that customary certificates of right of occupancy disappeared in hands of the Defendant. The description of land whose Customary Certificate of Right of Occupancy were lost is one of the important aspects to prove that actually the Plaintiff had ownership of the alleged land. Such description must be fully disclosed in the pleadings as well as in the evidence. This is in parlance with the provisions of Order VII Rule 3 of the Civil Procedure Code, Cap 33 R.E.

2022. The provision states that: 3. Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and, in case such property can be identified by a title number under the Land Registration Act, the plaint shall specify such title number. 30 | P a g e Perusal of the Plaint in this matter at hand reveals that the only description provided is that the Plaintiff had three certificates of customary right of occupancy in respect of three (3) Plots of Plaintiff’s land located at Nzuguni ward within Dodoma City near Dar es Salaam Road. That is the conspicuous identification and description of land in Paragraphs 3, 4, and 5 of the Plaint. The law is well settled in this jurisdiction on the need to provide a thorough description of the land in the Plaint. For instance, in the case of Kessy Mkaramba and 6 Others vs Hassan Mkamila and 31 Others (Civil Appeal No. 471 of 2021) [2024] TZCA 1101 (14 November 2024) (TANZLII), at pages 10-11, the Court of Appeal of Tanzania stated that: …a plaint that founds a claim on an immovable property must be descriptive enough to sufficiently identify the property in dispute in a manner that will allay any possibility of mistaken identity. This would include a statement of the landmarks in the boundaries and 31 | P a g e neighbouring features, if any, or names of the holders

of the pieces of land that surround the disputed land. In a fitting case, especially where the dispute is on a registered land, specification of the title number of the land in dispute is of invaluable importance. Also, this Court in the case of Said H. Lipite and 4 Others vs The Ministry of Defence and Another (Land Case 85 of 2016) [2021] TZHCLandD 418 (20 August 2021) (TANZLII), at page 32, the Court noted that: Another thing is the description of the land by the plaintiffs. The land was not properly described. The description in paragraph 5 and 6 of the plaint is not sufficient. And equally in the testimony by the plaintiffs they only mentioned the neighbours to the East West, South and North. Others mentioned the boundaries of the village instead of their pieces of land especially during cross-examination. Proper description of the suit land enables proper award of rights to a party and also easy 32 | P a g e execution. It is common knowledge that the rationale behind proper description of land in dispute is to inform the court of the identity of the suit land as against all the other pieces of land surrounding it. Guided by the principle in these two cases, it is pertinent that instant Plaint does not describe fully the land in question to establish that such land existed and that Plaintiff had a title over such land. The size, location, boundaries and neighbourhood of

the land in question are conspicuously missing. In the case of Martin Fredrick Rajab vs Ilemela Municipal Council & Another (Civil Appeal 197 of 2019) [2022] TZCA 434 (18 July 2022) (TANZLII), at page 13, the Court observed that: From what was pleaded by the appellant, it is glaring that the description of the suit property was not given because neither the size nor neighbouring owners of pieces of land among others, were stated in the plaint. This was not 33 | P a g e proper and we agree with the learned trial Judge and Mr. Mrisha that, it was incumbent on the appellant to state in the plaint the description of the suit property which is in terms of the dictates of Order 7 rule 3 of the Civil Procedure Code [CAP 33 R.E 2019] The evidence of PW 1, PW 2 and PW 3 is inadequately to reveal any proper description of land whose certificate of customary occupancy are said to have been lost. Such failure to describe the land is either deliberately done to conceal the truth or inadvertently done. Further, the evidence on record is also scanty and too skeletal to point to anything meaningful in describing the land. Neither of the three Plaintiff’s witnesses managed to describe the land in terms of boundaries, size as well as neighbour owners of the adjoining lands. As such there is no evidence at all to prove that actually the Plaintiff had possessed any customary certificates of

occupancy that were handed over to the Defendant and the latter have withheld the same unlawfully. There is no such evidence. All these aspects taken in totality point to a single direction that the Plaintiff has failed miserably to prove the case to the required standard of 34 | P a g e balance of probabilities that he once owned the land in question and had customary certificates of the right of occupancy thereto. Thus, the first issue is answered in the negative. The second and last issue for determination is on what reliefs are the parties entitled thereto? It is on record that the Plaintiff prayed for order of immediate release of the three certificates of title, payment of TZS 350,000,000/= three hundred and fifty million Tanzanian shillings as compensation for disturbances and inconveniences caused by the Defendant withholding the customary certificate of occupancy belonging to the Plaintiff and costs of the case. That nature of the claim of the compensation is that of general damages in nature as there were no particularization of the claims for items that would form a total of TZS 350,000,000/=. Awarding general damages in Tanzania is governed by the settled legal principles. For instance, in the case of Tanzania Saruji Corporation vs African Mable Company Limited (Civil Appeal 5 of 35 | P a g e 1997) [2003] TZCA 18 (28 January 2003) (TANZLII), at page at page

3; [2004] T.L.R. 155 [CA], at pp. 158-159, the Court of Appeal stated lucidly that: The position is that general damages are such as the law will presume to be the direct, natural or probable consequence of the act complained of (see Stroms Brucks Aktie Bolag v. John and Peter A Hutchinson (1907) AC 515 the defendant’s wrongdoing must, therefore, have been a cause, if not the sole, or a particularly significant, cause of the damage. Also, in Anthony Ngoo & Another vs Kitinda Kimaro (Civil Appeal No. 25 of 2014) [2015] TZCA 269 (25 February 2015) (TANZLII), at pages 15-16, the Court of Appeal of Tanzania illustratively 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. However, 36 | P a g e the judge must assign a reason, which was not done in this case. However, the judge must assign a reason, which was not done in this case. Nevertheless, the trial judge awarded the plaintiff /respondent general damages of TZS One Hundred Million (100,000,0000) without assigning any reason for the same. According to Lord Macnaghten in Stroms v Hutchison 1905 A.C. 515, "general damages" are such as the law will presume to be the direct natural or probable consequence of the act complained of." Although the law

presumes general damages to flow from the wrong complained of, general damages are not damages at large. See Flint v Lowell (1935) KB 354. It is not clear what principle the High Court Judge used to reach the amount of Tshs. One Hundred Million as general damages. According to the principle laid down in the cited precedents, the awarding of general damages should arise out of the defendant’s wrong 37 | P a g e doing and there must be reasons for the amount of damages the court decides to award. In the case of SANLAM General Insurance Tanzania Ltd vs Dennis Charles & Another (Civil Appeal No. 51 of 2021) [2024] TZCA 105 (23 February 2024) (TANZLII) at pages 22-24, the Court of Appeal stated that: As regards general damages, in Stroms Bruks Aktie Bolag (supra), Lord McNaughten defined that term, at 525, thus: " General damages' as I understand the term are such as the law will presume to be the direct natural or probable consequence of the act complained of." It is trite that the assessment of general damages is at the discretion of the trial court and the appellate court will not be justified in substituting a figure of its own for that awarded by the trial court unless it is satisfied that the court below applied a wrong principle or that it misapprehended the evidence and, consequently, arrived 38 | P a g e at a figure so excessive or so inconsiderable - see, for instance, The

Cooper Motor Corporation Ltd (supra) and Stanbic Bank Tanzania Limited (supra). I have stated categorically that the first issue was answered in the negative that there was no proof at all that the Defendant willfully refused to hand over the customary certificate of occupancy as the Plaintiff’s failure to prove that handing over of the same was one of terms of agreement for loan. As a result, it is the decision of this Court that the Plaintiff has not managed to establish the basis for which an award of TZS 350,000,000/= (say three hundred fifty million Tanzanian Shillings) may be awarded. There is no justification whatsoever to award such heft amount for a case that was not proved. In totality of events, the suit in this civil case deserves a dismissal for failure to prove the case to the required standard. The Plaintiff has not managed to establish the case against the Defendant on balance of probabilities as required by the provisions of section 3(2) (b) of the 39 | P a g e Evidence Act, Cap 6 R.E.

2019. This suit stands dismissed for lack of merits. The suit is dismissed in its entirety with costs. It is so ordered. DATED at DODOMA this 27th day of March 2025. E.E. LONGOPA

JUDGE 27/03/2025. 40 | P a g e