BITALIHO RUHERE Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY)

AT DODOMA LAND CASE NO. 22 OF 2022 BITALIHO RUHERE…….…………………..……………………………………PLAINTIFF Versus LAZARO CHIBAGO LECHIPYA.………..…….…………………………..1ST DEFENDANT DAVID C. MAZUKI………..……………….……….……….……………..2ND DEFENDANT

THE REGISTERED TRUSTEES OF AFRICAN BENEDICTINE SISTERS OF ST. AGNES CHIPOLA.……..………….3RD DEFENDANT

THE REGISTERED TRUSTEES OF CHRIST TO ALL PEOPLE CHURCH…………….…….…………………..……….4TH DEFENDANT USUPH H. ABUU……..………….……….………………………..………5TH DEFENDANT DICKSON EVALIST…….……….……….………………………..………6TH DEFENDANT NICKSON JACKSON MDOL…...……….………………………..………7 TH DEFENDANT DEODAS PIUS……..…………….……….………………………..………8TH DEFENDANT EMMANUEL JACKSON...……….……….………………………..………9 TH DEFENDANT MOSES RUBEN…..…………….……….………………………..………10TH DEFENDANT 1 FREDY OSWADY..…………….……….………………………..………11TH DEFENDANT MATHAYO BWELI….………….……….………………………..………12TH DEFENDANT ARON EXAUDY…..…………….……….………………………..………13TH DEFENDANT EMMANUEL………….…………….……….………………………..……14TH DEFENDANT PATRICE WAMILY KUGULULYE...….………………………..………15 TH DEFENDANT JAMES RAPHAEL KALALU……..…….………………………..………16 TH DEFENDANT IMAN ONESMO MAHELELA………….………………………..………17 TH DEFENDANT MAGOMBA………..…………….……….………………………..………18TH DEFENDANT PLOTUS………………………….……….………………………..………19TH DEFENDANT NEEMA JEREMIA……..……….……….………………………..………20 TH DEFENDANT OMARY…………….…………….……….………………………..………21ST DEFENDANT

JUDGEMENT Date of last order: 09th October, 2024. Date of Judgment: 08th November, 2024. E.E. KAKOLAKI, J. The plaintiff herein sued the above-mentioned defendants for the declarations that, they have trespassed into his land/farm registered as farm No. 53 located at Miyuji East area within Dodoma City hence an order for them to vacate and demolish any structure built by them therein. He is also 2 seeking for an order for permanent injunction restraining either the defendants themselves or their representatives, assignees and/or any person claiming title in their names from entering the disputed premises and further, orders for payment of specific damages to the tune of Tanzanian Shillings One Billion Tshs. 1,000,000,000/-, general damages, costs of the suit and any other relief as this court sees just to grant. Briefly as gathered from the pleadings both Plaintiff and defendants are natural persons save for the 3rd and 4th defendants who are legal persons. The plaintiff who claims to be a lawful owner of the surveyed and registered land/farm No. 53 measuring 2.620 hectors located at Miyuji East area within Dodoma City with certificate of title No. 17224 DLR duly issued on 18th September, 2009, with tenure of 66 years is prosecuting the defendants for trespassing into his land unlawfully and erect therein permanent structures without his consent. The alleged trespass according

to him was discovered sometimes early 2011 when the 1st Defendant herein encroached and trespassed into part of the said farm and erected a house therein without his consent, before he decided to illegally dispose of some parts of the remaining disputed land to the 2nd up to the 21st Defendants who also effected some developments despite of repeated warning by the plaintiff to stop such illegal 3 acts, which they opted to ignore. Plaintiff’s tireless demands to them it is claimed forced him to write them a demand Notice dated 1 st November, 2021 which they denied service of, instead continued denying the plaintiff of his rights of enjoyment of the disputed land as a lawful owner hence the present suit. When the plaintiff was ordered to effect service of summons to all defendants only the 3rd defendant accepted service and filed her written statement of defence as the rest of the defendants were served by way of substituted service when their summons was published in the Nipashe newspaper of 19/11/2023 and an order of proceedings ex-parte issued against them as they could not be easily reached. It is also worth noting that, before hearing could take off the 3rd Defendant unsuccessfully raised preliminary objections when claimed that, the suit had been instituted against non-existing person (3rd Defendant) and that the plaint is vague, vexatious and misconceived, since both

objections were overruled and the case ordered to proceed to full hearing. It is at this stage when she decided to abandon the case for reasons best known to herself despite of being served several times hence an order for ex-pate hearing against her too. 4 In order to properly determine parties dispute and in the present of the 3 rd defendant on 31/05/2024 the Court framed the following issues: 1. Whether the Plaintiff is the lawful owner of the farm No. 53 located at Miyuji East within Dodoma City.

2. If the first issue is answered in affirmative, whether the defendants trespassed in the suit land.

3. If the second issue is answered in affirmative, whether the plaintiff suffered any damages.

4. To what reliefs are the parties entitled to? When the matter came for hearing before this court the Plaintiff prosecuted his case under legal services of Mr. Christopher Malinga, learned advocate as he was the sole witness (PW1) and relied on one exhibit only (exhibit PE1) to prove his case. In this judgment, I am not intending to reproduce the whole evidence as presented by PW1 but rather refer and apply it in the course of determining the issues raised above. To start with the first issue as to whether Plaintiff is the lawful owner of the farm No. 53 located at Miyuji East within Dodoma City, it is a cherished principle of law fortified in the provision of sections 110, 5 111 and 112 of the Evidence Act [Cap. 06 R.E 2022] that, generally, in civil cases, the one who alleges must prove and the burden of so proving lies on the party who alleges anything in his favor or who would want the court to believe that a particular fact exists. See the cases of Abdul Karim Haji Vs. Raymond Nchimbi Alois and Another, Civil Appeal No. 99 of 2004 and Godfrey Sayi vs Anna Siame as legal representative of late Mary Mndolwa, Civil Appeal no.114 of 2014 (Both CAT-unreported). It is equally elementary that, the standard of proof is on a balance of probabilities which simply means that the Court will sustain such evidence which is more credible than the other. See also section 3(2)(b) of the

Evidence Act and the case of Paulina Samson Ndawavya Vs. Theresia Thomasi Madaha, Civil Appeal No. 53 of 2017 (CAT-unreported) where the Court of Appeal had the following to say: “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…’’ 6 With the above principles in mind, in this case the onus of proving that the disputed land is lawfully owned by the plaintiff and whether the defendants trespassed on it as alleged, lies with the plaintiff himself. In a bid to discharge such duty as alluded to the plaintiff relied on evidence of a single witness and one documentary exhibit. Testifying as PW1 the plaintiff informed the Court that, as civil servant by then working with the Prime Minister’s office in 1986 acquired the disputed land as farm No. 53 measuring 2.620 hectors located at Miyuji East in Dodoma City after applying for the grant of a right of occupancy and issued with a letter of offer by the then Capital Development Authority (CDA). He said, in 2009 was issued with the certificate of title in respect of the said farm for 66 years tenure and religiously continued to pay

land rents as per the conditions attached to it till this year. He only came to note of the encroachment of part of the said farm by the 1st defendant in the year 2011 who had unlawfully erected a house therein and further illegally allocated some pieces of land from the said farm to the 2nd up to 21st defendants without his knowledge or consent as lawful owner. Despite of his attempt to plead him to stop his unlawful acts the plaintiff contended; the 1st defendant turned deaf ears the result of which other defendants continued to develop the said pieces of land allocated to 7 them by the 1st defendants. And that on being warned not to further execute their unlawful acts the other defendants ignored him too hence a decision to sue them through this suit. In exhibiting ownership PW1 tendered in Court a Certificate of Title No. 17224 DLR in respect of Farm No. 53 located at Miyuji East with Dodoma city issued on 18th September, 2009, for 66 years tenure which was admitted as exhibit PE1. From the above evidence there is no dispute that the plaintiff herein relies on the evidence of a single witness. The law is clear under section 143 of the Evidence Act, [Cap. 6 R.E 2022] that no prescribe number of witnesses is required for proving a certain fact as that depends on the circumstances of each case, credibility and reliability of the witness. In the case Rashid Issa Vs. R, Criminal

Appeal No. 210 of 2010 (CAT-unreported) when deliberating on the same question of the number of witnesses required to prove a certain fact in criminal matter which principle applies also to the civil matter, the Court of Appeal had this to say: ’’The law, however, does not prescribe the number of witnesses required to prove a particular fact. It is normally in the discretion of the prosecution to determine the number of 8 witnesses sufficient to prove a fact, depending on the circumstances of each case. This is the essence of section 143 of the Evidence Act, Cap 6 R.E 2002 (the Act) which provides: “Subject to the provisions of any other written law, no particular number of witnesses shall in any case be required for the proof of any fact.” (Emphasis supplied) What is the requirement of the law always as alluded to above is for the plaintiff to prove his case to the required standard which proof must be on the balance of probabilities even when the case is proved ex-parte as it was also held by this Court speaking through Masanche, J (as he then was) in the case of The Mananger, NBC, Tarime v Enock M. Chacha [1993] TZHC 8; (02 November 1993 TANZLII) when deliberation on standard of proof where the case is proved exparte and observed thus: “Assuming that the respondent was properly allowed to prove his case ex-parte, he did not prove his case on the balance of probability

as required by law. It does not follow that since a party has been allowed to prove his case ex-parte, he can just casually go 9 through his claims, in the hope that the Court will readily grant the prayer. A party who proceeds to prove his case exparte must prove his case on the required standard of the law. Where the proof falls short of the required standard, the court must dismiss the case…” [Emphasis added] In his evidence PW1 testified to be a lawful owner of the suit land. Under section 2 of the Land Registration Act, Cap 334 R.E 2019, the term “owner” is defined to mean, the person possessing any estate or interest over the land, for the time being in whose name the estate or interest is registered. It further defines the “Registered land” to mean land in respect of which an estate has been registered. From the above disposition of the law the person becomes owner of the land or estate if he owns or possesses any interest over the same which is registered under the law. It follows therefore that registration of land is ipso facto proof of ownership of land as the general rule is that, where two persons are claiming interest over the same piece of land, the one with the certificate of title will have better title than the other as in most cases registration is either by letter of offer or certificate of registration. See also the decision of this Court in the case of

Francis Yustin 10 Kambona (As the legal representative of the late Maria Yustin Kambona) Vs. Elizabeth Seme and Another, Land case no. 215 of 2020 (Tanzlii). On proof of ownership by registration of interest over land it was held in the case of Salum Mateyo Vs Mohamed Mateyo (1987) TLR 111, that: “…Proof of ownership is by one whose name is registered. Therefore, from the above discussion, the evidence on record on this matter leads me to hold that the holder of the certificate of title is the one who has proof that he is the owner of the suit land.” (Emphasis supplied) Similar position was taken by the Court of Appeal in the case of Leopold Mtembei Vs. Principle Assistant Registrar of Titles, Ministry of Lands, Housing and Urban Development and another, Civil Appeal No. 57 of 2017 (Tanzlii) where the Court had the following observation to make: “We find it apt to emphasize the essence of any land titles system by referring to the observation made by Dr. R.W Tenga and Dr. 11 S.J. Mramba in their book bearing the title Conveyancing and Disposition of Land in Tanzania: Law and Procedure, Law Africa, Dar es Salaam, 2017, at page 330: “… the registration under a land title system is more than the mere entry in a public register; it is authentication of the ownership of or a legal interest in a parcel of land. The act of registration confirms transactions that confer, affect, or

terminate that ownership or interest. Once the registration process is completed, no search behind the register is needed to establish a chain of titles to the property, for the register itself is conclusive proof of the title.” (Emphasis supplied) Applying the above principle to the facts of this case, as alluded to above the plaintiff relies on certificate of title exhibit PE1 to prove his ownership of the suit land for having his interest registered as required by the law. It is a settled principle of law in our jurisdiction now that documentary evidence is the best evidence and cannot be displaced by oral evidence unless contradicted by another documentary evidence. As there is no any other 12 evidence to displace the certificate of title in respect of farm No. 53 located at Miyuji East within Dodoma city and since the one with certificate of title has the better title, I am satisfied that the Plaintiff has managed to prove to the required standard that he has a better title over the disputed land hence a lawful owner of the suit land. In that respect, the first issue is answered in affirmative. Next for determination is the second issue as to whether the Defendants trespassed to the suit land which I think as per the adduced evidence need not detain this Court much. The term “trespass’’ was defined by this Court in the case of Frank Safari Mchuma Vs. Shaibu Ally Shemdolwa

[1998] TLR 280, (Lugakingira, J as he then was) in the following words: “By definition trespass to land is unjustifiable intrusion by one person upon the land in the possession of another. It has therefore been stated with the light touch that: “If the defendant places a part of his foot on the plaintiff’s land unlawfully, it is in law as much as a trespass as if he had walked half a mile on it (Ellis v. Loftus Iron Co. (2) per Coleridge C.J. at P.12) …” [emphasis added] 13 For the tort of trespass to stand therefore it must be proved that, one, the suit land alleged to be trespassed on is owned by the plaintiff or has an interest over the same. Secondly, the said land must be intruded by the other part without any justification. In the present matter the plaintiff has already proved the first element of ownership as found in the first issue above. As regard to the intrusion of his land PW1 testified to the effect that, it is the 1st defendant who encroached his land first and erected a house therein before he unlawfully and without his consent allocated some pieces of land to the 2nd up to 21st defendants who at different times also unlawfully developed the said land despite of unsuccessful several attempts and warnings to stop them from continued trespass in the said the land. As the defendants intruded the suit land without owner’s consent, I find on the balance of

probabilities the Plaintiff has proved them to be trespassers on the suit land hence the second issue is answered in affirmative as well. As to the third issue on whether the defendant suffered any damages it is pleaded in paragraph 14 of the plaint that, following defendants’ trespass over the suit land the plaintiff suffer specific damages to the tune of Tshs. 1,000,000,000/- (Tanzanian Shillings One Billion) as loss of income. It was in PW1’s evidence in proof of that claims that, defendants’ acts of trespassing 14 into the suit land denied him of the right to peaceful enjoyment of the land as he failed to execute some of the plans or projects which could have earned him some money close to the said Tanzanian Shillings One Billion. He mentioned the projects which could have been built on the said land to be twenty (20) frames of shops, twenty (20) apartments in which each apartment could host four (4) students and earn him Tshs. 360,000/- each per semester as well as cafeteria service for serving food to the said students as he had already secured approval of loan facility from CRDB Bank for funding the project. He however, tendered no any documentary exhibit such as project proposal or bank approval of the expected loan in support of the said claims. It is trite law that, specific damages must be specifically pleaded and strictly proved as it was held in the cases of Zuberi

Augustino vs Anicet Mugabe, [1992] TLR 137, Masolele General Agencies Vs. African Inland Church Tanzania [1994] TLR 192 and Reliance Insurance Company (T) Ltd and 2 Others Vs. Festo Mgomapayo, Civil Appeal No. 23 of 2019 (CAT-unreported). In this case as stated above no documentary exhibit was tendered before the Court in proving the said special damages in accordance with the law. Even if the same were tendered still I would maintain similar stance as according to the pleadings and exhibit 15 PE1 the land was meant for agricultural and husbandry purposes or use and there is no proof that its use was later changed to include the projects which the plaintiff claims to have intended to develop. It is therefore the findings of this court that the plaintiff has seriously failed to establish his claim of loss of Tshs. One Billion out of defendants’ wrongful possession of his land. Next in consideration is the claim for general damages in which the law defines in the case of Haji Associates Company (T) Ltd & Another v. John Mlundwa [1986] TLR 107(HC) in the following terms: “General damages are compensatory in nature, as they intend to take care of the plaintiff reputation as well as a solatium compensation for mental pain and suffering” From the above definition General damages are those damages that the law presumes to follow from the type of wrong doing complained of that

cannot be quantified and proved. In the present case there is no dispute defendants trespassed into plaintiff’s farm, hence denying him of his right to peaceful use and development of the said land. From such uncontroverted fact I am persuaded that the Plaintiff deserves some compensation for the inconveniences and loss he might have incurred for non-use of the disputed 16 land as a result of defendants’ unlawful act of trespassing into his land and erect therein some buildings. An award of general damages to the tune of Tshs. 50,000,000/- in my conviction will relieve the plaintiff from the damages suffered. The third issue is therefore partly established. As to the last issue on what reliefs are the parties entitled to it is obvious in an event the plaintiff is declared a lawful owner of the disputed land and the defendants declared trespassers thereon, the defendants are definitely expected to vacate the disputed land. All said and done, I find the plaintiff to a large extent has proved his claims and judgment is entered in his favour with the following orders: 1. The plaintiff is a lawful owner of the farm described as Farm No. 53 measuring 2.620 hectors located at Miyuji East area within Dodoma City with Certificate of Title No. 17224 DLR.

2. The defendants are declared trespassers to the disputed land and are ordered to yield up vacant possession of the disputed land to the plaintiff.

3. The defendants are ordered to demolish all the buildings, structures and remove all fittings affixed on the disputed land. 17 4. Permanent injunction is issued against the defendants, their representatives, assignee and/or any person claiming in their names restraining them from entering the disputed land.

5. Plaintiff is awarded General damages to the tune of Tshs. 50,000,000/- 6. Defendants are to bear cost of the suit. Ordered accordingly. Dated at Dodoma this 08th of November, 2024. E. E. KAKOLAKI

JUGDE 08/11/2024. Court: The Judgment has been delivered at Dodoma today on 08 th day of November, 2024, in the presence of the plaintiff in person and Ms. Veradina Matikila, Court clerk and in the absence of all defendants. 18 Right of appeal explained. E. E. KAKOLAKI

JUGDE 08/11/2024. 19