elizabeth reuther vs shabani said segule the duly appointed administrator of the estate of the late ramadhani segule 2018 tzhclandd 61 23 march 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 42 OF 2016 ELIZABETH REUTHER......................................... APPELLANT Versus SHABANI SAID SEGULE (the duly appointed Administrator of the Estate of the late RAMADHANI SEGULE)......................................... RESPONDENT Date of Last Order: 28/02/2018 Date ofJudgment: 23/03/2018 JUDGMENT S.A.N. WAMBURA, J: Aggrieved by the decision of the District Land and Housing Tribunal of Kinondoni in Land Application No. 127 of 2008 the appellant Elizabeth Reuther appealed to this Court on the following grounds:- 1. The Tribunal erred in law and in fact in disregarding the direction o f the then Minister for Lands (Exhibit D2) that the Plots in Block "B"be left to the residents o f the area. 2. The Tribunal erred in law and in fact in failing to take into account the fact that the Commissioner for Lands had directed the Respondent by Exhibit D3 to surrender the Title Deed of the suit plot with a view to processing its revocation. 3. The Tribunal erred in not taking in consideration whether the Appellant had been paid fair and adequate compensation for her two houses on the suit plot. 4. The Tribunal erred in law and in fact in holding that the Appellant was a trespasser on the suit plot in total disregard of the evidence that the Appellant was the original owner o f the suit plot prior to its survey and allocation to the Respondent. 5. The Tribunal erred in law and in fact in granting the Respondent general damages amounting to Tshs. 15,000,000/= without making any assessment o f the same and in absence o f any proof that such damages were incurred by the Respondent. The respondent Shabani Said Segule (duly appointed Administrator of the Estate of the late Ramadhani Segule) bitterly challenged the appellant's grounds of appeal in his reply and prayed for the dismissal of the appeal with costs for want of merit. With the leave the Court this appeal was disposed of by way of written submissions. I thank both parties for adhering to the schedule and apologize for the delay in issuing this Judgment which has been occasioned by the delay in receiving the records from the District Land and Housing Tribunal for Kinondoni. The brief background of this appeal is that the respondent herein instituted a suit against the appellant for trespassing into his land. He claimed to be the registered owner of Plot No. 269 B Tegeta Kinondoni Municipality, Dar Es Salaam. He averred that the appellant unlawfully and without any justification trespassed into the disputed Plot took possession of the same and built a structure thereon. He therefore prayed for the following reliefs; (a) A declaration that he is the lawful owner o f the Plot No. 269 Block B Tegeta Kinondoni Dar es Salaam and that the respondent is and was at all material times a trespasser on the said plot. (b) An order that the respondent wholly pull down and remove the building, dear and level the side and excavations aforesaid. (c) An order that the respondent vacate the Plot and give vacant possession to the applicant. (d) General damages in the sum o f Tshs. 15,000,000/= be paid to the applicant by the respondent (e) Costs (f) Any other relief(s) as this tribunal may deem fit andjust to grant. In her written statement of defence, the appellant herein disputed the respondent's claims and stated that she had been the owner of the then un surveyed farm situated at Kondo Village, Tegeta. That she had developed it by building two modern houses. Having heard both parties the trial tribunal found in favour of the respondent and declared him as the lawful owner of the disputed land. The appellant was aggrieved by the said decision hence this appeal. The appellant was represented by Mr. F.S. Mbuya learned Counsel whereas the respondent had the legal services of Mr. Deogratius Lyimo learned counsel. Before writing this Judgment, there were two issues which this court raised suo motto and directed the learned counsels to address them being:- (i) The difference in the names of the parties in the Judgment and Decree. 00 The time taken by the applicant in filing the said application at the District Land and Housing Tribunal. Both Counsels filed their written submissions and addressed me on the same. I thank them for the said submissions. On the first issue which is in respect of the difference in the names of the parties in the Judgment and Decree, I have observed that although there is such a difference, the same is not fatal as it can be cured by correcting the name in the Judgment, and writing the name of the Administrator of the estate of the late Ramadhan Segule to reflect the amendment made as per the Decree of the Tribunal. This ought to be so amended immediately. The second issue is in respect of the time taken by the applicant in filing the said application at the District Land and Housing Tribunal, I am satisfied that the application was filed within time. This is because according to the facts and evidence adduced before the trial Tribunal, the cause of action arose on 1997 at the time when the respondent took building materials to the disputed Plot. It was when he found the appellant had trespassed into his Plot claiming ownership of the same. Thus from 1997 to 2008 when the suit was filed, it was almost eleven (11) years which is within time as per Item 22 of the First Schedule of the Law of Limitation Act Cap. 89 R.E 2002. As for the merit of the appeal, I have observed that the main issue to be determined by this Court is whether the trial tribunal correctly evaluated the evidence on record in determining the suit before arriving at its decision. According to the evidence on record, the appellant alleged that she had been in occupation of the unsurveyed farm since 1982. She stated that she was allocated the said farm by the Ujamaa Village Council for Kunduchi whereby she erected two buildings. It was contended that during the survey by the Town Planning in 1986, she applied to be granted the right of occupancy. She was granted part of the farm. The other part was allocated to the respondent who was given a Certificate of Occupancy. Dissatisfied by the allocation, the appellant and other villagers submitted their grivarences to the Minister for Lands. The Minister gave directives to the Town Planning Division that residents of Zone 10 Kondo Village who had not vacated their premises in response to the allocation exercise be allowed to remain at their plots provided that they agreed to refund the amount of compensation paid to them. The appellant's testimony was collaborated by the evidence adduced by Dw 2 Honestus Michael Kulaga, Legal Officer in the Ministry of Lands who tendered two letters from the Minister in respect of Plots in Block B Tegeta which was admitted as Exhibit D2 and another letter from the Commissioner for Lands which was admitted as Exhibit D3. On the other hand Pw 1 Shaban Said Segule the Legal Probate Administrator of the deceased Estate tendered a letter of offer of the disputed Plot (Exhibit P 2) in the name of the defendant, the receipts for payment of fees (Exhibit P3) Certificate of Occupancy for disputed Plot (Exhibit P4) and a building permit which was admitted as Exhibit P5. Thus it is from the above evidence that this Court finds that what was in dispute was the issue of ownership as to who is the legal owner of the suit premises. According to the evidence on record there is no dispute that the appellant was the original owner of the suit premises. However, after the survey the suit premises was allocated to the respondent. Was the appellant adequately compensated by the Government before the allocation? Section 11 (1) of the Land Acquisition Act provides for the mandatory requirement for Government to pay compensation. For clarity, the Section reads as herein quoted "Section 11(1) subject to the provisions o f this Act, where any land is acquired by the President under Section 3, the Minister shall on behalf o f the Government pay in respect thereof, out of moneys provided for the purpose by Parliament, such compensation as may be agreed upon or determined in accordance with the provisions o f this Act". The appellant admitted in her testimony that she was adequately compensated by the Government for developments and improvements of the land. This fact was also collaborated by the testimony of Dw 2 Land Officer from the Commissioner for Lands who contended that the appellant was compensated before the survey exercise. Thus since the appellant was compensated then the allocation of land to the respondent was lawfully done in the eyes of the law. 8 Dw2 admitted that up to the time when he was testifying (1/8/2015) the lawful owner who was recognized by the Commissioner for Lands was the respondent Ramadhani Segule as he was issued with a letter of offer on 26/11/1986 and after he had accepted the offer, he was issued with a Title Deed in 1994. Dw 2 further stated that the appellant's complaint that the respondent trespassed into her land, was responded by the office of the Commissioner for Land on 19/5/1997 through a letter tendered as Exhibit D4 where it stated that the appellant Elizabeth Reuther was compensated hence she had no right to claim the suit Plot. She was further told not to disturb the respondent. The appellant has alleged that they were told by the Minister for Lands to remain in the said plots if they were willing to refund the compensation paid to them as evidenced by a letter tendered as Exhibit D2. However there is no proof that she has made the said refund. Thus since there is enough evidence which establishes that the appellant was compensated by the Government before the survey and there is no evidence to prove that she refunded the same then I see no fault on the allocation of the suit land to the respondent. In the premises, I find no reason to disturb the findings of the trial Tribunal. I accordingly uphold the decision of the District Land and Housing Tribunal in Land Application No. 127 of 2008 and dismiss the appeal. Costs follow the event. JUDGE 23/03/2018 10