justin mallya vs kinondoni municipal council another 2021 tzhclandd 6989 22 july 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 159 OF 2021 JUSTIN MALLYA......................................................PLAINTIFF VERSUS KINONDONI MUNICIPAL COUNCIL............... 1st DEFENDANT ATTORNEY GENERAL................................. 2nd DEFENDANT JUDGMENT Date of Final Submissions: 22/06/2021 Date of Delivery: 22/07/2022 AMOUR S. KHAMIS, J:. Justin M. Mallya instituted the present suit against the Kinondoni Municipal Council and the Attorney General for declaration that he is the lawful owner of all that land constituted under letter of offer no. KMC/LD/46192/3JML dated 1 Ob- September 2008, also known as Plot No. 29 Nyakasanga, Madale area covering 8.55 hectares. He also prayed for declaration that Kinondoni Municipal Council trespassed and continue to trespass onto the disputed land, an order for demolition of the buildings and other structures erected on the suit land, eviction of the Kinondoni Municipal 1 Council, its workmen, agents and invitees from the suit land, payment of Tshs. 500,000,000/= as general damages, punitive damages and costs. The Plaint show that on 17th November 2003, Justin M. Mallya bought the disputed land by then unsurveyed from one Mathias Paul at a consideration of Tshs. 14,000,000/=, Subsequent to the purchase, Justin Mallya surveyed the disputed land and obtained Survey Plan No. E’ 353/157 of 2005 and ultimately Registered Plan No. 4/406 was issued. Sometimes on 16 December 2012, Justin Mallya found cut that the Kinondom Municipal Council trespassed onto his land and erected various buildings and structures. The Plaint further show that Kinondoni Municipal Council continued to develop the disputed land and completed construction of Rafiki Day Care Centre As a result of the alleged trespass, Justin M. Mallya instructed a private surveyor to review the survey conducted and establish actual location of the disputed land It was alleged that the first defendant’s acts was 'without legal justification hence institution of the suit The Kinondoni Municipal Council and the Attorney General filed a Joint Written Statement of Defence in whicn they generally disputed the plaintiffs allegations. Specifically, the defendants denied any acts of trespass by the Kinondoni Municipal Council as alleged or at all and averred that the parcel of land referred to by the plaintiff was completely 2 different from the one owned and occupied by the Kinondoni Municipal Council. In a further reply, the defendants averred that the plaintiffs land was surveyed measuring about 8.5 hectares whereas the land owned by the Kinondoni Municipal Council on which Rafiki Day Care Centre and Maendeleo Secondary School were built, is unsurveyed and comprises 13.5 hectares. Upon completion of pleadings, the first and final pre - trial conference were conducted as well as an attempted mediation. Three (3) issues were recorded by the Court for determination, namely: 1. Who between the plaintiff and the first defendant is the lawful owner of the suit property. 2. If the answer in the issue no. 1 above is answered in favour of the plaintiff, whether the first defendant has trespassed to the plaintiffs suit property by development of the suit property including building houses, day care centre and other buildings. 3. To what reliefs if any are the parties entitled to. Hearing of this suit commenced on 13 June 2022 and came to an end on 24 June 2022. Evidence in chief was given through witness statements in line with Rule 2 of Order XVIII of THE CIVIL PROCEDURE CODE, CAP 33, R.E 2019 as amended by THE CIVIL PROCEDURE CODE (AMENDMENT OF THE FIRST SCHEDULE) RULES, 2021 (GN No. 760/2021). 3 Throughout trial, Justin M. Mallya enjoyed legal expertise of Mr. Deogratias J. Lyimo Kiritta, learned advocate, while Ms. Leonia Maneno and Ms. Tausi Kheri, learned State Attorneys, acted for the defendants. The plaintiff lined up two witnesses: PW 1 Justine Millyoon Mallya and PW 2 Mathias Paulo Katoto. For the defendants, three (3) witnesses testified, namely: DW 1 Ally Maulid Mgomi, DW 2 Peter Mhusini Bilebela and DW 3 William Wambwe Manyama. Five documentary exhibits were admitted in support of the plaintiffs case and two documentary exhibits were tendered to support the defendants’ case. At the conclusion of trial, parties opted for final written submissions which were duly filed in accordance to the order of the Court. I have carefully read and considered the rival submissions presented by Mr. Deogratias J. Lyimo Kiritta and Ms. Leonia B. Maneno, learned advocate and state attorney respectively, in support of their respective cases. Where relevant, the same will be referred to in the course of addressing the issues on record. The first issue is who between the plaintiff and the first defendant is a lawful owner of the disputed parcel of land. In tackling this issue, I will revisit the evidence on record as presented by both sides. 4 PW 1 JUSTIN M. MALLYA, a retired employee of the University of Dar es Salaam, testified alongside contents of the Plaint. He said that immediately upon purchase of the land, he engaged a private surveyor, Nyolu Land Consult, to undertake survey of the suit land and the process was completed. Thereafter, he applied for a letter of offer and issued with the same referenced KMC/LD/46192/3/JML dated 10/09/2008. Upon visiting the disputed land on 16 December 2012, he noticed trespass by the Kinondoni Municipal Council. Subsequently, Rafiki Day Care Centre owned by the Kinondoni Municipal Council was erected. On further examination, PW 1 said his efforts to engage the first defendant did not bear fruits. Recalling, the first defendant’s response, PW 1 stated that: “....The first defendant refused to accept my ownership of the suit property on the grounds that part of the suit property which has been trespassed to by the first defendant belonged to the first defendant. The first defendant insisted that the said part of the suit property does not belong to the plaintiff and that the drawing emanating from the surveying of the suit property indicates that the plaintiffs property is located about 2.5 kilometres from the property which is being disputed. On further examination by Mr. Kiritta, PW 1 said that: 5 “4.5 Due to the first defendant's insistence that the suit property does not belong to me, I requested Nyolu Land Consult who surveyed the land to help me solve the problem. Nyolu Land Consult accepted my request and upon investigation of the problem of my ownership they wrote a letter to the first defendant... 4.6 According to the letter from Nyolu Land Consult the suit property which they had surveyed is the same as the one in dispute and that if there is any problem on the identification of the surveyed land and location, which is technical problem, the same can be corrected without affecting ownership thereof. ” On cross examination by Ms. Leonia Maneno, PW 1 stated that Nyolu Land Consult, the surveyor who purportedly surveyed the disputed land and authored Exhibit P 3, was summoned but refused to testify in Court. On re - examination by Mr. Deogratias Lyimo Kiritta, PW 1 stated that: “Nyolu Land Consult wrote that reply after the Government Surveyor said that the land he had surveyed (Nyolu) on my behalf was located about 2.5 kilometeres away from the land he surveyed on my behalf.” PW 2 MATHIAS PAULO KATOTO, a resident of Nyakasangwe Street, Wazo Ward, Kinondoni Municipality, Dar es Salaam said that in November 2003, he sold part of his land measuring 20 acres 6 situated at Nyakasangwe Madale area to Justine Mallya for Tshs. 14, 000,000/ = He said the sale agreement was reduced to writing and witnessed by one Ricky Shechambo (Member of the Street Council). The witness named bordering areas as parcels of land owned by: Mrs Mushi (Southern Part), Mathias Paulo Katoto (North and Western parts), CCM Wazazi (East) and Mr. Chacha (East). The witness said after sale of the land to the plaintiff, he did not follow up on what was follow up on what happened on it. On cross examination by Ms. Leonia Maneno, PW 2 disclosed measurements of his entire land and size of the land sold to the plaintiff, thus: “Before I sold a part of my land I had One hundred acres. I applied for 120 acres of land to the Village Council but on personal measurements, I found it was 100 acres.” On further cross examination, the witness said at the time of selling the land to the plaintiff, he only involved the ten cell leader and not the Street Council Chairman. On further questioning by Ms. Leonia Maneno, PW 2 said: “Maendeleo Secondary School is located in Nyakasanga Street and about 400 to 500 metres from the disputed land. ” On re - examination by Mr. Deogratias Kiritta, PW 2 said Maendeleo Secondary School was built outside of the land he sold to the plaintiff. 7 DW 1 ALLY MAULID MGOMI, Senior Land Surveyor working with the Kinondoni Municipal Council since the year 2008, said he visited the disputed land with the Global Positioning System (GPS) machine and ascertained that the area owned by Kinondoni Municipal Council was not surveyed while the area allegedly owned by the plaintiff was surveyed and described as Plot No. 29, Nyakasangwe - Madale, Kinondoni Municipality and registered with Plan Number E’ 353/153. On further examination by Ms. Leonia Maneno, DW 1 stated that: “6 (c) The distance between surveyed area (which is alleged to be owned by the Justin Mallya) and the unsurveyed area (which is owned by the Kinondoni Municipal Council) is more than three kilometres (3KMS). ” Regarding size of the disputed land, DW 1 stated that: “6 (d)Further, the area owned by the Kinondoni Municipal Council is about 13.5 hectares and the area alleged to be owned by Justin Mallya is about 8 85 hectares. ” On cross examination by Mr. Deogratias Kiritta, DW 1 said the plaintiffs surveyed land was occupied by several people who built houses thereon. DW 2 PETER MHUSINI BILEBELA, a pastor with Free Pentecostal Church of Tanzania, and resident of Nyakasangwe Street, Wazo Ward, Kinondoni Municipality since 2006, said the disputed land was well known to him. According to him, the land is owned by the Kinondoni Municipal Council since 2011 and previously, was owned by the 8 Parents’ Wing of the Chama Cha Mapinduzi (Jumuiya ya Wazazi - CCM). Testifying on how the Kinonduni Municipal Council acquired ownership thereof, DW 2 stated that: "6. That in 2011 the Jumuiya Ya Wazazi of Chama Cha Mapinduzi (CCM) handled over the suit land to the Kinondoni Municipal Council in exchange of a piece of land located at Mabwepande area, Kinondoni Municipality, Dar es Salaam. ” Questioned on how he became aware of the transmission, DW 2 stated that in 2014, he was elected as Mtaa Chairman for Nyakasangwe Street, and upon assuming office, he read tnrough the records and established history of the disputed land. On cross examination by Mr. Deograuas Kiritta, DW 2 maintained his stance and added that as Street Chairman, he worked closely with the Kinondoni Municipal Council. DW 3 WILLIAM WAMBWE MANYAMA, Secretary' for Jumuiya ya Wazazi - CCM since 2010, testified that: a3. That in 2011 Jumuiya ya Wazazi of Chama Cha Mapinduzi (CCM) handed over its land measured 13.5 hectares located at Nyakasangwe Street, Wazo ward. Kinondoni Municipality, Dar es salaam to Kinondoni Municipal Council in exchange of a piece of land located at Mabwepande, Kinondoni Municipality, Dar es Salaam for the purpose of allowing the Kinondoni Municipality to build a school thereon. ” 9 Regarding originality of the land ownership, DW 3 said “Jumuiya ya Wazazi ya Chama Cha Mapinduzi” was allocated the disputed land as a farm in 1991 by the Tegeta Village Council. On further examination in chief, the witness said he personally witnessed handing over of the disputed parcel of land by Jumuiya ya Wazazi - CCM to the Kinondoni Municipal Council. On cross examination by Mr. Deogratias Kiritta, the witness insisted that he was present when Jumuiya ya Wazazi - CCM transmitted the disputed land to the first defendant. On further cross examination, DW 3 stated that: “I also visited Mabwepande area where Jumuiya Ya Wazazi was given a parcel of land...,” From these testimonies, the main question is identification of the disputed parcel of land. Through Exhibit P 3 and testimonies of PW 1 and PW 2, the plaintiff advanced that the disputed property belonged to him and that the same was proved by his private surveyor. However, Exhibit P 3, a letter purportedly authored by Nyolu Land Consult, Land Surveyors and GIS Consultants, insisted that the survey beacons were planted on the disputed land but were buried under the ground. The letter further challenged GPS as a means of establishing identity of a surveyed land and proposed for boundaries identification. No doubt, these comments are technical and required necessary surveyors’ expertise to explain them. io Who was the best person to explain these issues and answer parties’ questions on examination, cross examination and re - examination other than Nyolu Land Consult who allegedly surveyed the disputed land? However, this surveyor neither filed a witness statement nor showed up for further examination in Court. According to PW 1, these surveyors refused to testify in Court No explanation for such refusal to give evidence m Court was given by the plaintiff. Apart from the surveyor, the plaintiff failed to cause appearance of other key witnesses to assist the Court on identification of the plot he allegedly bought. Exhibit P 1, the sale agreement between the plaintiff and Matnias Paulo Katoto, show the purported sale was witnessed by Ricky Shechambo (Mjumbe wa Shina Na. 8, Nakasangwe Kunduchi), Anna Donatio Kessy (witness for the buyer - Justin Mallya) and Mrs. Cesilia Mathias Katoto. All these witnesses are presumed to know the location, size and other key features of the land that Mathias Paulo Katoto allegedly sold to the plaintiff. No explanation whatsoever was given on their inability to give evidence in the case. In this scenario, I am properly guided by the persuasive decision in PETERSON GUTU ONDIEK V DANIEL NJIGUA GICHOHI, CIVIL CASE NO, 4018 OF 1990 (unreported), wherein the High Court of Kenya held that where evidence exists and the same is not adduced in Court, the Court may presume that it is unfavourable to the party withholding it. 11 □ Apart from that, the plaintiffs pleadings and the evidence on record sharply differed as regards to the size of the plaintiffs alleged land. In Paragraph 4 of the Plaint and Paragraph 2.1.1 of PW l’s Witness Statement, it was alleged that the plaintiffs land measured 8.55 hectares located at Nyakasangwe Madale Area, Kinondoni Municipality. This size of land was not supported by PW 2 evidence who allegedly sold the disputed land to the plaintiff. According to PW 2 Mathias Paulo Katoto, he sold twenty (20) acres of land to the plaintiff for Tshs. 14,000,000/=. The question is where did the plaintiff get the remaining area of land to make it 8.55 hectares? The pleadings and the entire evidence on record did not provide an answer to this important question bearing in mind that 8.55 hectares is not equivalent to 20 acres of land. Further to that, PW 2 stated that features described as evidence of trespass by the first defendant on the disputed land, including Maendeleo Secondary School were constructed out of the land sold to the plaintiff. According to him, those structures were erected about 400 to 500 meters out of the land sold by PW 2 to the plaintiff. Contrary to the plaintiffs contradictory case, the defendants’ case was supported by the evidence on record. The evidence of DW 2 and DW 3 regarding transfer of the land in dispute by Jumuiya ya Wazazi - CCM to the Kinondoni 12 Municipal Council was corroborated by the evidence of PW 2 Mathias Paulo Katoto, who said that previously, “CCM Wazazi” owned a parcel of land at the disputed area. This fact was also subsidized by Exhibit P 1, the sale agreement between Mathias Paulo Katoto and Justin Millyooni Kibona Mallya dated 17 November 2003. The agreement show that CCM (Wazazi) was one of the neighbours to the land occupied by Mathias Paulo Katoto. Upon examination of the entire evidence on record, I am satisfied that on a balance of probability, the defendants successfully established their claim against the plaintiff. The first issue is therefore answered in favour of the first defendant, the Kinondoni Municipal Council. On the second issue, this Court was tasked to decide whether the first defendant trespassed onto the plaintiffs property. Having answered the first issue in favour of the first defendant, it will be against logic to hold that there is trespass on the disputed land done by the Kinondoni Municipal Council. On the last issue, this Court has to determine reliefs that parties herein are entitled to. For the aforestated reasons, having been satisfied that the plaintiff failed to establish its case in accordance to Sections 110 (1), 111 and 112 of THE EVIDENCE ACT, CAP 6, R.E 2019, the proper remedy in the circumstances of the case is to dismiss the suit as I hereby do. 13 However, considering that prior to institution of the present suit parties were involved in Land Application No. 451 of 2012 m the District Land and Housing Tribunal for Kinondoni and subsequently in Land Case No. 152 of 2015 whose Judgment was delivered by this Court on 9*h November 2018, I found it just for each party to bear awn costs. / It is so ordered. An / / AMOUR S. KHAMIS JUDGE 22/07/2022 ORDER Judgment delivered in chambers in presence of Mr Levis Lyimo, advocate for the plaintiff and Ms. Tausi Kheri, State Attorney for thgjiefendants. Ri t of appeal fully explained. UR S. KHAMIS JUDGE 22/07/2022 14