20150317 TZHC Iringa

.• JC \, .. ; '>(/1 v- / fr ·{ ~ J,,0J IN THE HIGH cquRT OF TANZANIA (LAND DIVISION) AT IRINGA A ·.. I LAND CASE NO. 6 OF 2010 FRANK NYIKA (ADMINISTRATOR OF THE ESTATE OF THE PLAINTIFF LATE ASHER! NYIKA) VERSUS LINUS CHENG ULA ............................. RESPONDENT 13/10/2014 & 05/12/2014 JUDGMENT P. F. KIHWELO, J. The Plaintiff has filed a land case before this court against the defendant essentially for trespass ·in the suit premises to wit Plot No. 347 Block "E" Makambako Area. Initially the suit was filed by the Plaintiff in person but on 25/6/2013 the Plaintiff passed hence on 20/03/2014 a prayer to amend the Plaint in order to join the Administrator of the Estate of the deceased was made and the court granted the prayer hence Frank Nyika was included as the 1 Administrator of the Estate of the late Asheri Nyika, ·the Plaintiff. • · The Plaintiff prays, against the defendant for judgment and decree for the following reliefs:- (a) A declaration order that the defendant has trespassed into the Plaintiffs land. (b) Orders requiring the defendant to demolish the houses constructed and provide vacant possession. (c) General damages 1n the aggregate sum of TShs: 60,000,000.00 (say Tanzanian shillings Sixty Million) only as compensation for trespassing into the Plaintiffs land . . (d) Cost of this suit; and (e) Any other order(s) and/or relief(s) this Hdnourable Court may deem just and equitable to grant. When this matter came for the first day of the trial the court framed and recorded five issues for determination namely; (1) Whether the Plaintiff is the lawful owner of Plot No. 347 Block "E" Makambako Area. (2) Whether the defendant trespassed into the Plaintiffs suit land to wit Plot No. 347 Block "E" Makambako Area. (3) Whether the dispµted plot was surveyed or not .. (4) Whether Plot No. 347 Block "E" Makambako Area is part of unsurveyed Plot No.MWT / 137 Makambako Area and; 2 (5) To what .reliefs are the parties entitled to. rhe Plaintiff was represented by Ms. Caroline Kivuyo, learned Advocate while the defendant was represented by Mr. Edw~d _Ke_nyunko, lear~ed (Advocate. When the trial began the Plaintiff marshalled two witnesses while the defendant lined up two witnesses as well. PW 1 (Frank Asheri Nyika) testified that he is the sort of the late Asheri Nyika (the Plaintiff) and therefore the Administrator of the Estate of his late father. PWl testified further that the Plaintiff acquired the suit premise froni the local land authorities way back in 1981 and prior to that the Plaintiff was living in the same plot of land. PW 1 stated that his late father was allocated that plot by the local land authorities since 20 th January, 1981 and as a testimony he tendered before this court a letter of allocation Exhibit "P 1". According to PWl the land authorities allocated the said piece of land arid directed the Plaintiff to. pay the necessary fees. PWl went on to testify that as _the Plaintiff and the defendant were neighbors and were occupying the same plot of land when the , land authorities were doing the survey in 1980 they adviced that 3 the two should sit t~gether and agree as a result, the two sat and after agreement they wrote letters to the District Land Allocation Committee expressing their consensus to have the said plot surveyed •and allocated to the Plain tiff. PW 1 sought ·to tender the said letter as Exhibits unfortu~ately the same were secondary evidence hence in admissible hut upon a prayer being made th~y were only accepted for mere identification purposes as "ID l."_ PW 1 further stated that the said plot after survey became Plot No. 347 Block "E" and was· allocated to the Plaintiff as clearly demonstrated by Exhibit "Pl" but· the Plaintiff and the defendant agreed that the defendant could stay in the said plot as long as the Plaintiff is not yet in need of the entire plot and that the defendant should not build a permanent/new house except for the muddy house in which the defendant was living in by then. PWl went further to testify that in 2010 to the surprise of the Plaintiff the defendant started constructing a permanent house in the suit premise besides the muddy house theqdefendant was prior living in. PW 1 went on to narrate that the new house has been built at the middle of the suit premise whereas the old muddy house is still located at the right hand side of the suit premise while on the left hand side there is one neighbor's house by the name of Michael 4 Mginiba. PW 1 finally prayed to the court for the reliefs as stated .·•. Upon cross examination by the counsel for the defendant Mr. Edward Kenyunko PWl stated that he was appearing in the case as the Administrator of the Estate of the late Asheri Nyika the Plaintiff and that the Plaintiff and the defendant had reached at an understanding in relation to the use and allocation of the disputed .... . plot ~ and that . the letters in "ID . ., . . - . ,.,. . ,. ·- l". were not formal agreement. ·· ·.-. ~ ·On· flirther· cross examination PWl stated that the defendant \~as.. btiilt ~ the new house within the Plaintiffs suit premise and he . . denied the allegations that the Plaintiff's house is within the road . re~erve nor was he aware of any notice from Tanroads to demolish the Plaintiff's house. PW 1 also stated that they did not make any mistake by allowing the defendant to keep on staying in, the suit plot from 1980 to 2010 as the defendant was well aware that at some point he will be required to vacate the suit premise when the plans to develop materializes and that it was·high time the Plaintiff • ,in develops the plot. On the other hand PW2 (Gerald D.oglas Komba) a land · surveyor from Makambako local government authorities testified that he knows Plot NO. 347 Block "E" as one of the 51 ·Plots of 5 surveyed land located at Block "E" Makambako. He testified that ' · these 51 plots were surveyed way back in 20 years. According to ·, .. , ··rec~·rds (Exhibit Pl) the said plot belongs to the Plaintiff. PW2 stated that the said plot measures 40. m,eters long and 18 n:i-e~t::rs wide. PW2 testified further that he knows the disputed plot as he visited shortly before coming to testify and gave an account of the description by explaining that in the front part there are shops, on the right there is carpentry wori<:shop, in the middle there is a house and on the left between Piot No. 346 and 347 Block "E" there is a muddy house. He went on to state that part of the muddy house is in Plot 346 while part of it is in Plot 34 7. The new house ; has been built in the middle of the ~isputed plot . According to PW2 if a person ·has a residential lic~nce ·over a surveyed area that is not recognized by the local land authoritie.s in the first place· because the residential licence· applies to squatter .a_r-ea and are issued for purpos·es of identifying the house ntunber ··" (" t -..~ . . ' . ,• and the owner for property tax purposes and also to assist the owner in securing loan. Initially ·they ,vere granted for three years only but since January 2013 they are granted for five years. 6 : . ·'. · :·while · further testifying on allocation procedures PW2 ' ' ' • ., ~-·. • l • t •~• t~J · expHtlned that in the event ·two individuals own a single plot of land · the l~d · surveyor will establi~h who among the two has a lions · share of the plot·. -but at the end of the day it is upon the two individu.als to agree on who among them should be allocated. It is upon such agreement that the land authorities will move : , . "on with:the· allocation arrangements. ' . ·~:): · '. According to PW2 there is no such plot in Makambako as Plot ;"' · .No. 'M\,VT/ 137; but that refers to a house number for unsurveyed · house at Mwembetogwa for property tax purposes. That number does not indicate the actual place but rather the general area which is Mwembetogwa and he has not seen that number before coming to testify but Plot No. 347 Block "E" is found in a surveyed area. ·. • Upon cross examination by Mr. Edward Kenyunko,, learned • ... . ~ .' I ,... (::. cotin'sel ·for the defendant, PW2 stated that the suit premise was surveyed way ·back. when Makarnbako was still under Njombe ' . District Council which is over 20 years now. That the two can not be issued simultenous because one is superior over the other. VJhereas the residential licence relates to unsurveyed plot the plot number is · issued to a surveyed area. On his own account PW2 stated that he has not seen the residential licence for the defendant 7 and he is not aware whether there were people )iving the~~ qefore : the survey. PW2 further went on to respond to Mr. Kenyunko's questions ,i • • • • that residential licence to own an unserveyed area is recognized .by ~ .· law and is renewable after the initial term of five years. That. the , agreement on what should be allocated has to be in \VTiting and in ' , the respective file. In case the survey is done by the municipal in order to allocate someone then compensation must be given. However, the situation is not the same where two individuals agree to survey an area for allocation purposes. On the part of the defence ·witnesses DWl (Linus Chengu.Ja). had the following to, say. He is the resident of Makambako since 1965 and that he has three houses and his immediate. neigltbours are Asheri Nyika in the East, John l\1hanzi in the \Vest,· Boa~ Kyando-in the North and Michael Nyimba in the South and that in 2010 a dispute arose about owne_rship of the srtit premise betweeri , .DWl and the Plaintiff. DWl stated that the Plaintiff sue DWl for trespass to· the suit premises. According · to DWl the suit· premise··· and•-· ail the surrounding area are unsurveyed to date· _and that he was issued with a residential licence in relation to the suit premise and has 8 "· b~~n pEtying property ·tax and land' rent every year. The residential licence along with the relevant receipts for tax payments were tendered and. admitted as Exhibit "D 1" collectively. He reiterated that the residential licence was i&sued for the first time on 1 st . ' ' ,January, 201:1 and is due to expire on 1 st July, 2016, and that all : ' . the neighbours in .the surrounding . ~ . . area have residential licence and n9t title. deeds. The new ho:use he · started building in 1998 and finished in 2010. DWI further testified that · he never wrote any letter to surrender the suit property to the Plaintiff or anyone else. He went on to state that he has a kid by the name of Grace who was born in 1974 and by 1980 she was merely 6 years old. According to DWl ;.th~ ~~a: which he built the new house originally had an old h~u-~e ,~hich ·he dem:oli~hed a~ it ~as dilapilated. ~: . , .__·'1.Jpo~ cro~s examin·ation ·by the counsel for the Plaintiff Ms. ··caroline' Ki~y~; DWi stated that the· new house he built is the ~ne with number MWT / 137 and that he knew nothirtg about Exhibit "ID 1". ·ow2 (Daudi Mwinuka) testified that he lives at Mwernbetogwa ' - 1n Makarnbako since 1972 and he knows Linus Chengula as his . neighbor· out he also knew the deceased Asheri Nyika. DW2 went~on 9 . I to testify that he knows very well the area DWI lives. as it i~ hardly 20 steps from where he lives and that DW ~ has two hou_se~. and prior to building the new house he demolistied the old one in order to build a modern house. He stressed that the demarcation be.-nween. the plaintiff and DWI area is very close about 2 metres only. D\V2 stated that whereas the Plaintiff has been at M,·.v·embetogwa since 1980 DW 1 has been there since 1965 aI1d there has not been aJ.1y conflict until recently when the Plaintiffs house has been n1arked with an "X" by TANROADS. DW2 finalised his testimony by stating that the area where they live all the houses have been marked with numbers and that his is house No. 5 and that if the area is surveyed then there would be a survey map to indicate that but they only have numbers to indicate that they own the premises. Upon cross examination by Ms. Caroline Kivuyo the learned counsel for the Plaintiff, DW2 stated that he moved to Makarnbako- in 1972 artd found DWI living there but the Plaintiff moved to Makambako in 1980 and prior to that he was living in Saja. D\V2 .. . went on to testify that in 1965 he. was living in a:not~er street not Mwembetogwa and that he can't recall exactly ,"When was the nev'r . •. : - , ' house built. Following the closure of both the plaintiffs ~d the. defence case both counsels requested to· file their written. firial •st1brnissirjp_s 10 · the fequest_ ':'Vhi~h ·was gr_anted by the Honourable court and dully · complied by the _parties ... Briefly Ms. Kivuyo, the learned counsel for the Plaintiff in her spirited· argument i she stated in respect of the first issue that according .to records particularly the testimony of PW 1 sometimes ·.ih · 1980 · Makarhbako · - Mwembetogwa ·area was surveyed and :s~bsequently the. Plaintiff was allocated the disputed Plot of land <vide · Exhibit "Pl" and this fact is also confirmed by PW2 the land surveyor from Makambako .Urban Authority. According to. fhe testimony of D\Vl and DW2 they also confirmed that the Plaintiff owns the suit premise but the only thing which they disputed was the demarcation. · As regards· to the second. issue the learned counsel· for the •, , Plaintiff"submitted that parties agreed that the plot wiil be allocated · to ··the· ·Plaintiff and that the defendant would stay as long as the · Plaintiff does not wish to nse the entire premises and that the ·defendant will only demolish the house upon the Plaintiffs wish to use the piece of land but to the contrary the defendant built 'a permanent house in the Plaintiffs premises. She therefore.forcefully argued that the,defendant is a trespasser. 11 --------- Arguing for the ,third issue Ms. Kivuyo's contention was that according to the testimony of PW2. Makambako in particular Mwembetogwa area was surveyed way back i.n 1980. Based on Exhibit '~Pl" the counsel for the Plaintiff strongly submitted that the disputed land was surveyed. On the issue of whether Plot No. 347 Block "E" Maka:rnbako is part of the unserveyed Plot No.MWT / 137 Makambako Area, the counsel for the Plaintiff submitted that it is not a disputed fact that the defendant built a ne\v house No. MWT / 137 within the disputed · plot this was the evidence .of PW 1 who testified that he saw house No. MWT / 13 7 built in the middle of Plot. No. 34 7 Block "E" and . because the later plot is surveyed then the· counsel for .the Plaintiff. ·· was of the view that the defendant has trespassed the suit premise. Finally the counsel for the Plaintiff prayed for the orders as previously explained at the beginning of this judgment. Mr. Edward Kenyunko, learned, Advocate for the defendant on his part submitting for the first issue entirely faulted the testimony of PW2 Q •• . on two main reasons namely PW2 did not have any identity to prove that he was actually who he claimed to be and represented Town Council and that PW2 lacked credibility. He further challenged Exhibit "Pl" for not being in compliance with Section 27(2) of the Land Act Cap 113 RE 2002 · or. even the repealed Land Ordinance 12 Cap" 113 Section 9(2) which stipulates that the Certificate of Right of Occupancy shall be ·deemed to be dully and validly executed if signed ·by the Commissioner for lands and sealed with his official s·eal. Mr. Kenyunko forcefully argued further. that PW 1 · did not manage to substantiate the ownership of the disputed plot by the . Plaintiff because PWl has failed to indicate what caused his delay · to acquire.·the- certificate of Right of Occupancy from 1981 the time ' . he. got the. _letter of allocation todate. Mr. Kenyunko further -challenged the. purported agreement between the Plaintiff -'.and_ the defendant ·to surrender the disputed land·- to the Piairttiff. ; .. He : . co~ tended further . that the purported ~ . - .,. .· .- •~•,v~ ""agte-etn.ertt was void for lack of consideration. In particular he categorically stated that the averment that the Plaintiff allow·ed the defendant to keep using the suit premises for . ·. 33 -years · does not make any sense · to any ,.reasonable person and wertt ahead to state that the Plaintiff has . · himself to blame for allowing someone' to use his land for more that 30 years. As regards the second_ issue Mr. Kenyunko hastily &tated ' ,. "'.... that ... as the .. . . Plaintiff. had failed to prove ownership of the suit land then the defendant cannot be said to have 13 trespassed into the Plaintiff land. Mr". Kertyunko also argued that the Plaintiff did not prove the issue of survey of the disputed plot as Exhibit "Pl" whose authenticity is. in . qu.estton, can not alone prove that the disputed land is surveyed. He the refore prayed that the third issue too should be determined in the negative. Finally Mr. ,Kenyunko 1n his spirited argument submitted that the Plaintiff has not proved in the. balance of probabilities that there is Plot No. · 347 Block "E" Makambako. He went on to submit that once an area 1s surveyed the boundaries of the plots allocated for every person must be certain and that the evidence of PW2 should not be acted upon . since he merely relied on assumptions and not measurement. Hence l\1r.. Ken:yunko submitted that the Plaintiff has not proved the case on the balance of probabilities ·and therefore the suit should be dismissed. Having summarized the evidence ·of the witnesses and the final submissions by both courtsels it is now my turn to determine the ·issues before me. 14 Starting with· the first issue on whether the Plaintiff is the · 1av.rfu} awrier· of- Plot No.· 34 7 Block "E" Makambako. The testimony . . of PW1 who tendered Exhibit "Pl" the allocation letter proves .J~at the Plai~tiff was allocated Plot No. 347 Block "E" on 20t~ January, 198 i. Exhibit "Pl" whi~h is a letter ·of allocation reference number NJF/1967/4/llJN the Land Department within Njombe District Cou1~~il -notified· the Plaintiff that his request for the allocation of the . Plot of land has been accepted by the Land Allocation . Committee and that he has been allocated the said Plot No. . 347 ... : . Block "E" Makambako. As rightly pointed out by Ms. Kivuyo this wa_s confirmed by DW2 the Land Surveyor and DWl and DW2. ,. . I. .did not. with due respect find Mr. Kenyunko's arguments meritorious and useful. I don't find logical to fault the test~mony of ) PW2 simply because he had no identity card or a letter showing • •·? ~· - ' .. . ; . •• •. t . . • - ' .• •· :., that he was in fact representing the Town Council. With due respect i fi~d this n~t to be practical and in the contrary I think that if the .defendant wished to -· prove the Plaintiff wrong would have summoned an officer from the. local land authorities to come and testify against Exhibit "Pl" which was filed and served upon the defendant since 2010 but the defendant did not opt to do so. Fu~ther Mr .. Ken:y--unko submitted that PW2 lacked credibility which a public officer deserves . ' to possess. However, Mr. Kenyunko did not further explain or elaborate those attributes of a credible public 15 •J officer which PW2 did not possess.as. such I think the impression by Mr. Kenyunko was erroneous from both scores. Similarly it was a misconception to say that the :letter of allocation was not. in line with Section 27(2) of Cap· 113 RE 2002. because .the letter of allocation was issued in 1981 while the cited law was enacted in 1999 or that it did not comply ' . with Section . 9(2). of the repealed Land Ordinance because Section 9(2) relat~s to right of occupancy and not letter of allocation. I am therefore satisfied· that from. the evidence on reGord and the testimony' presented before the court 9 there is no doubt that the Plaintiff is the lawful owner of the disputed plot of land. It is a long established principle of law _that squatters, in the eyes of the law~ can not equate themselves to any person holding a title - (Mwalimu Omari and Another V Omari A. Bilali [1990] TLR 9). The first issue then is answered· in the · affirmative. Coming to the second issue on whether the defendant . . ~ trespassed into the ,Plaintiff's suit land Plot. No. 34 7 Block "E" • •• N • • • Makambako Area. By definition trespass to land lik~ . the· one . in the ~ \, ' present suit is any unjustifiable intrusion by on~. person upon t..1-ie land in possession of anotheL It has ther~fore been stated with a light touch: · 16 «Jf the· defendant ·place a _part of his foot on the Plaintiff's land unlawfully, it is in la!» as much as trespass as lf he 'had walked half a mile on it". . ,, .· .... · This is as per Ellis V Loftus Iron & Company (1874) L.R 10 i.Cap ·10 cited with approval by Lugakingira J. (as he then was) 1n -Frank Mchuma V· Shaibu A. Shemndolwa [.1988] TLR 280 . . .. . . _., -· ..,The counsel for the Plaintiff in her submission argued that by _consent the parties!> agreed to have the plot allocated to the Plaintiff alone and after the allocation they agreed that the defendant should_ continue. living in the premises until when the Plaintiff want to use ,. his piece of land. I would like to make two quick observations. One it must be said that the only evidence to prove the agreement between the parties is "ID l" which were secondary as such could :.n,0t be -admitted as an Exhibit .iri the circumstances hence the Plaintiff• can not be heard to rely on it. Two assuming for argument that ·this agreement or arrangement was there then by any stretch . of imagination the defendant_ has for all intends and purposes remained in• the··suit premise lawfully the only issue is whether he was entitled to construct the new house or not and in any case the Plaintiff has not expressed the· wish to use- the premises but what prompted the Plaintiff is the conduct of the Plaintiff to construct the new house. 17 I am inclined to agree in part with Mr. Kanyunko learned . . . . . counsel for the defendant that the Plaintiff has to blame him.self for allowing someone to use his land for more than 30 years. In my view this issue is answered in the negative. Turning now to the third issue on whether the disputed plot was surveyed or not. It is on record that the Plaintiff was issued with the letter of allocation on 20 th January, 1981 and that the Plot which was allocated was Plot No. 347 Block "E" Makambako and that the allocation of the said plot preceded a survey exercise. This ·was confirmed by PW2 the land surveyor who testified that the disputed plot was among the 51 plots which were surveyed way }?rJfk i? ~ 980. Once again I did not, with due respect, find the submission by Mr. Kenyunko very useful as he reiterated. that the ~ . letter of offer can not prove that survey was conducted. In my view this issue is answered in the affirmative; On the issue of whether Plot No. 347 Block ".E" .Makainbako Area is part of the unsurveyed Plot No. MWT/137 ]\tlakainbako Area, it was proved by PWl and PW2 that the defendant has built in the ' middle of Plot No. 34 7 Block "E". D1..t!"ing his testimony PW2 stated that; 18 • · "I saw shops in the front of the plot while on the right there ·is carpentry workshop, in the middle of the plot there . . is a· house and on the left between Plot No. 346 and 34 7 Block "E" there is a muddy house. Pprt of that house is in Plot 1VO. 346 while part of it is in Plot No. 34 7. The new house has been built in the middle of Plot No. 34 7 Block "E" .which is the property of Asheri Nyika according to Exhibit P 1 "(emphasis supplied). -~ It is apparently clear from the evidence on record that the suit -house No .. MWT/ 137 is built within Plot -No. 137 J:3.lock E, .l'(Iakambak:9 hence iri my .. considered opinion this issue is also ansTvVered in the affirmative. In view of what I have demonstrate above I order as follows:- (a) The defendant 1s hereby required to demolish the house constructed in Plot No .. ·347 Block E, Mwembetogwa, ·· · • " Makarrtbako and provide vacant possession. (b) Costs· are to follow the event. P. F. KIHWELO JUDGE 17/03/2015 19 . . i •f l Right of appeal is fully explained. P. F. KIHWELO JUDGE 17/03/2015 Judgment pronounced in the presence of Ms. Caroline Kivuyoi learned Advocate for the Plaintiff· and Mr. Edward Kenyunko, learned Advocate for the Defendant: P.F. KIHWELO JUDGE 17/03/2015 20