elizabeth w munuo vs leograce victor msoma 2020 tzhclandd 2272 25 september 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DARES SALAAM LAND CASE NO. 194 OF 2016 ELIZABETH W. MUNUO................................................. PLAINTIFF

VERSUS LEOGRACE VICTOR MSOMA......................................... DEFENDANT

JUDGMENT S.M. MAGHIMBI, J: In this suit, the plaintiff's claim against the defendant is for declaratory orders that the plaintiff is the lawful owner of premises described as plot No. 90 Block "C" at Tegeta Kinondoni Dar es Salaam ("the suit property), the ownership which is allegedly granted to the defendant. In her plaint, the plaintiff claims to be the lawful owner of suit property having purchased the same from one Mariam Mohamed in 1985. It was also alleged that on the 19th October, 2011 the plaintiff received a letter from the Commissioner for lands requiring the plaintiff to vacate and demolish all the houses the plaintiff had erected on the suit property on the ground that the property belonged to the defendant. On the 24th day of June 2016, following failed attempts to resolve the matter amicably, the plaintiff filed this suit against the defendant claiming for Judgment and decree against her as follows:- i a) Declaratory order that the plaintiff is lawful and rightful owner of the piece of land comprising of Plot No. 90 Bloc 'C' Tegeta, Kinondoni Municipality Dar es Salaam. b) A declaration that the purported allocation of plot No. 90 Block 'C' Tegeta Kinondoni is unlawful null and void. c) Perpetual injection restraining the defendant from interfering with a peaceful ownership of the plaintiff. d) Payment of general damages. e) Interest at Court from the date of

Judgemtn file payment of the decretal sum. f) Costs of the suits g) Any other remedy the honourable Court with deem fit to grant. The defendant filed her Written Statement of Defence along with a counterclaim. However, on the 24/08/2020 when this matter came for hearing, when plaintiff who was testifying as PW1 concluded her testimony, before I let the defendant's counsel cross examine the witness, I noticed that the defendant's written statement of defence had some serious and material irregularity. The irregularity was on both the Written Statement of Defence and the Counterclaim filed. The signatures on records show that the person who signed and verified the WSD, is the same person who signed and verified the Counterclaim. Although in the WSD the name of the person who verified it is not disclosed but was just signed, the same signature appears on the counterclaim where the verification clause shows that the person who verified it is the defendant Leograce Victor Msoma, in person. Further on 2 the last page where the name of the person who drew and filed the counterclaim and the WSD is shown, the same signature appears by the side of the name "Benjamin Abdallah" which indicates that it is Benjamin Abdallah, not the defendant, who drew and filed the WSD. However, the three signatures as I have stated above are identical. I asked the defendant's Counsel Mr. Haji Litete to

address me on the issue and no plausible explanation was advanced, neither was there any evidence that the said Benjamin Abdallah was at the time duly authorized to sign the pleadings of the defendant. Owing to that, since the WSD was in contravention of Order VI Rule 14 of the Civil Procedure Code, Cap 33 R.E 2019 ("The CPC"), I struck out the said WSD and its counterclaim. Hence the hearing of this case proceeded without involving the defendant since they did not have a WSD on record. Pursuant to Order XIV Rule 1(5) of the CPC, upon conclusion of the pleadings and mediation having failed, the following issues were framed for determination on the 26th August, 2019: 1. Who is the lawful owner of the suit premises 2. Looking at the facts of the case, whether the counterclaim of the defendants is filed within time.

3. To what reliefs are the parties entitled to. As stated earlier, the defendant's pleadings were struck out from the records which made the second issue redundant, hence we remained with only two issues of ownership of the property and the entitlement of parties to the relief sought. 3 In order to prove her case, the plaintiff called 3 witnesses, herself as PW1, PW2 the son of the person who sold the land to the plaintiff and also a witness to EXP1 and PW3, a resident of the area where the suit property is and also a witness to EXP1. The first issue is on the ownership of the suit property. In her testimony, the plaintiff established that she is a retired civil servant as Assistant Regional Administrative Secretary for Dar-es-salaam region and that she is currently living in the suit premises which she bought the land in 1985 from one Mariam Mohamed who is also PW2's mother. Further that at the time she bought the land it had three banana plants, three coconut trees and six cashewnut trees. The sale agreement was received in court as EXP1 and the plaintiff elaborated that as per the exhibit, the area was then called Tandale Mikoroshini and it is now known as Tegeta Masaiti.. The plaintiff also testified that after buying the land she developed and built a mud house in it and in 1993 she built a permanent house, it was a small 3 bedroom house which is still there to date and

she further continued with the construction and in 1997 she started construction of a bigger house, a 12 bedroom house which is still there till today but it is not the house she lives in. That the house she lives in was built in the same suit property in 2010 and in 2011 one side of the house was finished. She tendered the photographs of the house which were received in court as exhibit P2. And that there were people who lived in that land for safekeeping including one man called Kazembe. 4 On the origin of the dispute, the plaintiff testified that 26 years after she bought the land in 1985, in the year 2011 she received a letter from the Ministry of Land to demolish all the three buildings (EXP3). The letter was addressed to "Kwa yeyote anayehusika"and a copy was sent to Municipal Director of Dar-es-salaam and the defendant along with Chairman of Street Authority, Tegeta-Kunduchi and Police Kawe. She also testified that she replied the letter to the Permanent Secretary Ministry of Land (EXP4) and the letter was never replied, and so are many other subsequent letters she wrote which she used to deliver in person. The plaintiff also explained how she made follow ups at the Kinondoni Municipal to ask if they knew anything about the land. They told her that it was the Ministry that allocated the land and on 27/04/2016 they wrote a letter to the Ministry to be furnished with any

records on the plot because they didn't have any (EXP5) and a copy was sent to the defendant. She also tendered a search report which was admitted as EXP6. This exhibit revealed that the search has been done and no report of the Plot is revealed in their land registry Further that she made several inquiries including the City Council, then City Commission because they were also involved in allocating the land. PW1 also testified that she wrote a letter to the City Commission and they replied. She also tendered a several letters including the one she applied to be supplied with the validity of the receipts from the City Commissioner, the one inquiring about the whole issue of the disputed land and if they were aware of it and the replies to the said letters (Collective EXP7). According to EXP7, the City Council replied that they have no any records of the disputed land and insisted that it was the Ministry that was 5 responsible for the allocation of the land. The plaintiff (PW1) prayed that the court declares her the lawful owner of the disputed premises and that her right to be at the suit premises should be undisturbed. She also prayed that the court restrain the defendant in interfering with my peaceful enjoyment therein and further prayed for general damages plus costs of this case and for any further relief as the court may deem fit to grant. At this point, I have taken

time to digest the plaintiff's evidence which I shall analyse, including that of PW2 and PW3 and the documents tendered. It has been well established through EXP1 that the plaintiff bought the suitland from the said Mariam Mohamed. PW2 testified to have lived in the suitland prior to the sale as he was the biological son of the vendor and was also a witness to EXP1 which he identified his signature. Also that the farm is located at Tandale Mikoroshini and that Tegeta had many hamlets, Tegeta kwa ndevu, "njia panda ya wazo", Tegeta Chanika and Tegeta Tandale Mikoroshini including Tegeta Idara ya Maji now called Dawasco. PW2 also explained how PW1 built a mud house and eventually the other houses and the neighbors were explained to include Mr. Kileo on the front of the house, Dr. Mwakyusa, separated by a road and Mzee Mdimwa whom they are also separated by a road. PW2 denied any knowledge of the defendant. The plaintiff also denied having any knowledge of Leograce Msoma, the defendant as she had never met her. In further analysis of evidence, I found that in one of the collective EXP7 there is a letter from Dar-es-salaam City Council which denied to have any records of the allocation of the suit property to the defendant. The Council 6 referred the plaintiff to the Ministry of Land which is alleged to have issued the title. There is also EXP6, is a letter from the Ministry of

Land addressed to the plaintiff replying her application for official search. In the said letter, the Ministry denied to have any records in their land registry on the said plot and further referred the plaintiff back to Kinondoni Municipal Council, this was in 2016. The evidence further revealed that on 27/04/2016, the Municipal Council had written a letter to the ministry of Land (EXP5) to inquire on any records of the suit property in their registry. This EXP5 is proof that the Municipal Council did not have any records of the said plot to have been registered or allocated to anyone while the defendant attempted to evict the plaintiff on the ground that she was allocated the land by the authority. Therefore in the absence of any official records of any survey or allocation of the suit property to any person, and on the result of the official search (EXP6) where the Ministry of Land denied to have any records in their land registry on the said plot; the plaintiff has successfully proved that she is the lawful owner of the suit premises as she has tendered EXP1, a sale agreement which show that she has been in occupation of the suitland 26 years before the eviction attempts by the defendant started in the year 2011. This evidence was corroborated by PW2 and PW3 who were both residents of the area where the suit property is located and also were witnesses to EXP1. That said,

the first issue is answered in favor of the plaintiff, she is the lawful owner of the suit premises. This takes me to the now second and last issue, the reliefs that the parties are entitled to. In her plaint the plaintiff prayed for declaration that she is 7 the lawful owner of the suit premises, nullification of the purported allocation of the suit property to the defendant, perpetual injunction against the defendant, general damages and costs. She has however failed to adduce any evidence to support her claim for general damages and owing to that, none are awarded. However, she has managed to prove her remaining claims hence this suit is allowed and the following orders are made: 1. The plaintiff is declared the lawful owner of the suit property described as Plot No. 90 Bloc 'C' Tegeta, Kinondoni Municipality Dar es Salaam 2. The purported allocation of the suit property to the defendant is hereby declared null and void 3. The defendant, her agent or any person claiming title under her are permanently refrained from interfering with the plaintiff's peaceful enjoyment of the suitland.

4. The plaintiff shall have her costs for this suit. Dated at Dar-es-salaam this 25th day of September, 2020. ............... S.M. MAGHIMBI

JUDGE 8