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IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA LAND CASE NO. 36 OF 2022 GRACE F. MROSSO (Administrator Of the Estate of the late Felix Tesha/Fidelis Mrosso)....... ...... .....PLAINTIFF VERSUS GRACE FELIX TEMU (The Administrator Of The Estate of the Late Of Felix Jonathan Temu),......... ..... ........ .........DEFENDANT JUDGMENT 10.12.2024 HASSAN, J.: In this case the Plaintiff prays the court to make orders against the Defendant, thus:- (a) A declaration that the Plaintiff is the lawful owner of Plot No. 54, Block 25, Majengo within Dodoma Municipaligty comprised in Certificate of Title No. 383-DLR. (b) A declaration that the defendant's occupation of the property is continuing trespass and the defendant be ordered to pay special damages of Tshs 2,700,000/= and below is the chart showing the description the special damages by the Plaintiff; i. The property has 25 rooms which costs Tshs 30,000/= per each room amounting to Tshs 750,000/= per day. ii. Tshs 750,000/= multiplied by 30 days equals to Tshs 22,500,000/= per month. iii. Tshs 22,500,000/= multiplied by 12 months equals to Tshs 270,000,000/= per year. Tshs 270,000,000/= multiplied by 10 years (from the year the Ruling of the Assistant Registrar was issued to struck off the name of the defendant) equals to Tshs 2,700,000,000/= (c) An order that the defendant pay general damages at an amount of Tshs 1,000,000,000/=. (d) An order that the plaintiff be granted vacant possession of the disputed property and the defendant be evicted from the disputed property. (e) That the defendant be ordered to pay the costs of this suit. (f) Any other relief(s) this Honourable Court deem fit and just to grant. The matter was heard ex parte against the defendant who failed to file her Written Statement of Defence thus, the suit was ordered to be heard exparte against her. When the matter was set for hearing, the plaintiff appeared unrepresented. PW1, Grace Felix Mrosso was sworn and testified that she is the administratrix of estate of the late Felix Tesha or Fedelis Mrosso. She tendered a form of appointment to be an administratrix of estate of the late Felix Tesha which was admitted in evidence and marked as exhibit PI. She went on testifying that she remembers in the year 1986 her late husband Fedelis Mrosso or Felix Tesha bought a land plot from one Hassan Salumu Mtua. He completed registration of that land plot, then in 1987 he started construction of commercial house as a lodge and glossary. PW1 tendered a site plan No. Plot 54 Block 25 Majengo area which was admitted in evidence as exhibit P2. She went on submitting that, in the year 1999, the plaintiff's brother in-law, one Laurence Mrosso took a loan at CRDB jointly with LART and he was supposed to execute mortgage. Thus, he requested his brother the late Felix Tesha to guarantee. Tesha agreed the request and thus, he deposited his lodge as a security by leaving his title to the bank. PW1 went on testifying that, later on, Laurence defaulted to pay the loan. Seeing that, CRDB and LART decided to sell the house which was deposited as a security for the loan through Kondoa Auction Mart. The auction was conducted on 26/05/2001. After an announcement for auction was made, PWl's husband had requested his other brother Valerian Mrosso to buy the house, and in the end, he would refund him his money because at that time, the late Felix Tesha was sick and he was out of money to be able to rescue his house by himself. PW1 added that, Valerian attended the auction, and he bought the said house for TZS. 6,360,000/-. In the buying receipt he wrote his son's name known as Frank Valerian who was during that time, aged one and half (1.5) years. After the sale was completed, Valerian and Tesha agreed not to change the title while Tesha was looking for money to pay him back. During that time, Tesha was suffering from high blood pressure and diabetes (sugar diseases), though he was collecting money slowly in order to pay Valerian back. Tesha's sickness became serious and Valerian persistently demanded refund of his money. And since time had passed before Tesha paid back the money, then Valerian demanded repayment with interest. Seeing that, Tesha followed his friend, one Felix Jonathan Temu (Temu), the defendant for the purpose of borrowing the sum of 4 T7S. 9,000,000/- which Valerian had demanded. Therefore, Felix Jonathan Temu handled such amount of money to Tesha. Felix Tesha went to Valerian's house and paid back the money and Valerian returned back his land title which was still in the name of Felix Tesha since it has not been changed. The plaintiff testified further that, later on, Felix Jonathan Temu demanded to hold the Lodge Title upon the agreement with Tesha that he would collect money from the lodge until he refunded back his TZS. 9,000,000/- which he handled to Tesha, for duration of two years. After two years had lapsed, the debt was cleared. But surprisingly, Temu changed his mind and started to avoid Tesha. Thus, their friendship started to diminish. Only for Tesha to realize that, Temu had changed the title from Felix Tesha to Felix Jonathan Temu and he also undertook some renovation in the impugned house without notice and consent of the Felix Tesha, the owner who was seriously sick during all that time. Pwl testified further that, the late Felix Tesha regained his health condition a little bit, and he one day went to visit the house. And that was the time he noticed some changes in the house. Seeing that, he started to look for Temu but he was unsuccessful. After that observation, Tesha approached the Land Registrar's office and found out that Temu had changed the Title to his name. Temu informed the registrar that he bought that house from the auction. Thus, Tesha filed an injunction and started to look for Valerian Mrosso who bought the impugned house from the action directly and who possessed the auction's receipt. Together, they approached the registrar's office and submitted the receipt and Mr. Tesha filed an injunction. Pwl alleged that, the Registrar entertained the matter, and he finally realized that, it was correct that Felix Jonathan Temu had forged an auction, bought a receipt and he then used the forged receipt to change the title. The registrar ordered him to return the title but he refused. PW1 tendered the registrar's decision and the same was admitted as exhibit P3. The plaintiff went on testifying that since there was forgery, a criminal case was also instituted against Felix Jonathan Temu. However, before adducing his evidence, Tesha passed away in 2015. Later on in 2016, Felix Jonathan Temu also passed away and his Criminal Case was abated. A wife of Felix Jonathan Temu (the defendant) who was the administratrix of the estate of her late husband continued to hold the house until now. Pwl added that, after Tesha passed away, Valerian Mrosso filed a Civil Case No. 13 of 2015 against Felix Jonathan Temu, Kondoa Auction Mart and Court Broker, the Land Registrar and the Attorney General of which in 2019 he (Valerian Mrosso) decided to 6 withdraw the same. PW1 tendered a copy of the proceedings for Civil Case No. 13 of 2015 which was admitted in evidence and marked as exhibit P4. PW1 testified further that, on the same year 2019, Frank Valerian (a son of Valerian Mrosso) filed a Civil Case No. 11 of 2019 against Grace Felix Temu, who was an administratrix of the late Felix Jonathan Temu and Kondoa Auction Mart, of which, PW1 requested to be joined as a party of the claimants and the application was granted. Later on, Frank Valerian decided to withdraw the case on 01/09/2022. PW1 tendered a withdrawal notice for Civil Case No. 11 of 2019 and a copy of the Civil Case No. 14 of 2020 which were admitted in evidence and collectively marked as exhibit P5. She went of testifying that, Seeing that, she decided to institute this Land Case No. 36 of 2022 against Grace Felix Temu. That, she decided to take that step after conducting an official search and had observed that the impugned land title had expired since 2011. She tendered a copy of an official search which was admitted in evidence and marked as exhibit P6. She added that in the meantime, the impugned title is under the ownership of the President of United Republic of Tanzania. And the official search is still valid for the injunction which was made by the late Felix Tesha. That, as an administratrix of estate of the late Felix Tesha, PW1 decided to put caveat in order to stop transfer of ownership pending 7 determination of this suit. PW1 finally prayed the court to decide this case in her favour, most specifically, based on the relief which appears in the plaint. PW2, Amos Wilson John was sworn and testified that he was an assistant court broker of Kondoa Auction Mart and Court Broker in Dodoma Region. In the year 2001, the Kondoa Auction Mart and Court Broker entered in a contract with the Loans and Advanced Realization Trust (LART) for purpose of selling defaulters of CRDB Dodoma. In their letter, they mentioned the houses of three defaulters. They were able to sell by auction a house of Felix Tesha. Auction was conducted in the premises of the said house on 26/05/2001 at lOOOhrs. The buyer was Frank Valerian. He bought for TZS. 6,360,000/-. He was able to pay 25% of total selling price on sport and the remaining 75% was paid within 14 days from auction date. PW2 went on testifying that on 18/06/2001 we wrote to LART head quarter about selling of the Plot No. 54 Block 25 located at Majengo within Dodoma Town District and for introduction of Frank Valerian to be the buyer after he had completed the payment of the full amount. They gave the buyer a receipt for the purchasing of the said house. After that, they paid the money to LART and were given a receipt. He added that they paid by cheque No. 029706 for the amount of TZS. 5,742,000/-. That on 20/08/2001 LART wrote to them through EMS to receive a land title No. 383 - DRL for the purpose of handing it over to the plot buyer, one Frank Valerian. On 23/08/2001. That, they handed over the said title to Frank Valerian who was the only buyer. The plaintiff closed her case. Having heard the plaintiff's ex parte evidence and critically analysed the documentary exhibits admitted, however, I am inclined to point out the following issues which will guide me in determination of this suit, thus: 1. Whether the plaintiff is the lawful owner of the suit land. 2. Whether the defendant has trespassed into the disputed land. 3. What reliefs are the parties entitled to. The first issue to be analysed is whether the plaintiff is the lawful owner of the suit land. Starting my determination of the case at hand. This being a civil case, the onus of proof lies on the balance of probability. Reference should be made to Paulina Samson Ndawanya v. Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 (unreported), where the Court stated that; "It is equally elementary that since the dispute was in civil case, the standard o f proof was on a balance o f probabilities 9 which simply means that the Court will sustain such evidence which is more credible than the other on a particular fact to be proved." Despite this being a case heard exparte against the defendant, the plaintiff is duty bound to prove her case. It is an elementary principle of evidence that, whoever alleges must prove as provided by section 110 and 112 of The Evidence Act, [Cap 6 R.E 2022]. It is trite law under Section 110(1) and (2) of the Evidence Act. [Cap 6 R.E. 2022] who wants the court to give judgment in his favour on existence of any fact must prove it. Indeed Section 110 (1) and (2) of the Evidence Act, [Cap 6 R.E. 2022] provides that; "(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence o f facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence o f any fact, it is said that the burden o fprooflies on thatperson." In Abdul Karim Haji vs. Raymond Nchimbi Alois & Another, Civil Appeal No. 99 of 2004 Court of Appeal held that: "... it is an elementary principle that he who alleges is the one responsible to prove his allegations. " 10 See also the case of Anthony M. Masanga vs. Penina (Mama Mgesi) & Lucia (Mama Anna), Civil Appeal No. 118 of 2014 (CAT) (unreported). In the present case therefore, the burden of proof at the required standard of balance of probabilities is left to the plaintiff that his late husband was the owner of the disputed plot of land and that the defendant has trespassed unto the impugned land. Thus, what this court is to decide upon is whether the burden of proof has been sufficiently discharged. In her plaint, the plaintiff alleged that she is the administratrix of the estate of the late Felix C. Mrosso also known as Felix Tesha. She also alleged that, the defendant trespassed into the plaintiff's property, thus, Plot No. 54 Block 25, located at Majengo within Dodoma municipality and unlawfully acquired possession of the property. In her evidence, PW1 alleged that, in the year 1999 her late husband helped his brother one, Laurence Mrence to secure a loan from CRDB Bank by placing the disputed property as a security/collateral for the said brother loan facility. That, later on Laurence Failed to furnish his loan thus, CRDB Bank and LART auctioned the property through Kondoa Auction Mart and the same was sold at TZS 6,360,000/=. That, the plaintiff had requested his brother, Frank Valerian to purchase the same with an agreement that the plaintiff would refund him the said amount, thus they agreed the title deed to not be changed. PW1 went on testifying that, during that time, the plaintiff was sick thus he was not making any enough money to pay back Valerian. That, Valerian was persistently demanding for refund of his money. And since time has passed before Tesha paid back the money, then Valerian demanded repayment with interest. The plaintiff's late husband then decided to approach the defendant for the purpose of securing him an amount to repay his brother where he succeeded and thus, his brother handed him the title deed and afterwards the plaintiff handed the said title deed to the defendant. Thereafter, the defendant demanded to hold the Lodge Title upon the agreement with plaintiff that he would be collecting money from the lodge until he refunds his loan TZS. 9,000,000/- for duration of two (2) years. After 2 years had lapsed, the defendant started avoiding the plaintiff. That is when the plaintiff gained a little bit of energy and visited the lodge only for him to find out that the defendant had made some renovations on the disputed property without him being informed. PW1 alleged further that his late husband approached the office of the registrar and found out that the defendant had forged auction documents and had thus transferred the impugned property to his name. That is when the plaintiff filed an injunction and called Valerian Mrosso 12 who bought the impugned house from the action directly and they together approached the office of the land registrar. The Registrar entertained the matter and finally he realized that, it was correct that Felix Jonathan Temu had forged an auction buying receipt and he then he used the forged receipt to change the title. The registrar decided that Temu had to return the title but he refused the plaintiff tendered a copy of the Registrar's decision which was admitted in evidence and marked as exhibit P3. PW1 testified further that later a criminal fraud case was instituted against the defendant but the plaintiff died before adducing his evidence, and later the defendant passed away too thus, the criminal case was abated. She also tendered a copy of proceedings of Civil Case No. 13 of 2015 filed by Valerian Mrosso suing as a next friend of Frank Valerian who was a minor by then, which was admitted as exhibit P4. The suit was filed against Felix Jonason Temu, Kondoa Auction Mart and Court Broker, the Land Registrar and the Attorney General. However, in in 2019 he (Valerian Mrosso) decided to withdraw the same. She tendered withdrawal notice for Civil Case No. 11 of 2019 which was instituted by Frank Valerian (a son of Valerian Mrosso) against Grace Felix Temu, who was an administratrix of the late Felix Jonason Temu and Kondoa Auction Mart 13 and was later withdrawn after PW1 filed an application praying to be joined as the part of the claimants and the application was granted. The withdrawal notice for Civil Case No. 11 of 2019 along with Ruling of the Miscellaneous Land Application No. 14 of 2020 were collectively admitted in evidence as exhibit P5.g The plaintiff thus decided to conduct official search and it was found out the impugned land title expired in 2011 and is under ownership of her Excellency, the President of The United Republic of Tanzania, the copy of official search was tendered by PW1 and admitted in evidence as exhibit P6. The plaintiff called one witness, Amos Wilson John (PW2) an assistant court broker of Kondoa Auction Mart and Court Broker in the Dodoma Region who testified to be the one who was engaged by LART and CRDB to conduct an auction in which one amongst the houses sold was the disputed house in the instant case. In his evidence he supported PWl's claims that, the impugned house was thus sold to one, Frank Valerian who bought it for TZS. 6,360,000/- and was able to pay on sport 25% of total sale price. The rest 75% was paid within 14 days from auction date. Having gone through the exparte evidence I am of the view that, the plaintiff has proved her case to the balance of probability as a burden 14 of proof required in civil cases. I am saying so considering the facts that, firstly, PW1 has proved her locus standi as a legal representative of the late Felix Tesha also known as Fedelis Mrosso capacitated to sue on behalf of him as the alleged owner of the disputed land. This is cleared by exhibit PI, the Form of appointment of Grace Felix Mrosso (PW1) to be an administratrix of estate of the late Felix Tesha. Section 100 of the Probate and Administration of Estate Act, [cap 352 R. E 2019] gives power to the administratrix of the estate to sue on behalf of the deceased, thus:- "An executor or administrator has the same power to sue in respect o fa ll causes o f action that survive the deceased, and may exercise the same powers for the recovery o f debts due to him at the time o f his death, as the deceased had when living. " Secondly, in proving her case, the plaintiff has tendered a site plan of site plan of Plot 54 Block 25 Majengo area, the disputed property, exhibit P2 laying the foundation of the case on the construction of the disputed property and hence proving ownership of the said disputed property to some point. She also tendered, the decision of the Land Registrar, exhibit P3 declaring that the defendant fraudulently registered the disputed property in his name and thus, the same was substituted to the name of Frank Valerian who had bought the said property in public auction. There was also evidence that the defendant's fraud act was not left unattended as a criminal case was instituted against him, although it was abated due to his demise. Thus, this supports PWl's allegations that the defendant had unlawfully transferred the property in his name. PWl's story that Valerian Mrosso had instituted a Civil Case No. 13 of 2015 as a guardian of one Frank Valerian and later withdrew it, and later, his son Frank Valerian filed Land Case No. 11 of 2022 and later prayed to withdraw the same since the she was granted the application to be joined in the case is supported by exhibits P4 and P5 respectively. Thus, proving the fact that they were no longer interested in prosecuting the case as they were settled their purchase price by PWl's late husband as alleged. That said, the first issue is answered in affirmative that the plaintiff is the lawful owner of Plot No. 54, Block 25, Majengo within Dodoma Municipality. Coming to the second issue, whether the defendant has trespassed into the disputed land, this issue has been proved in a positive since the plaintiff has proved to be the lawful owner of the property. She has also proved that his late husband to have compensated the Felix Jonathan Temu by allowing his to run the disputed logde and glossary for two years but when the time had lapsed the later went on holding the disputed property until now and went further and unlawfully changed ownership of the property as it was evidenced by the decision of the land registrar, exhibit P3. Now coming to the third and last issue, the plaintiff prayed for various reliefs as they can be seen in the prayer clause of her plaint. Thus, plaintiff claimed for both special and general damages. To find as to whether the said claims have been strictly proved, I find it imperative to examine one after another. The plaintiff is claiming for special damages to the tune of TZS 2,700,000,000/= being the proceeds for 25 rooms of the impugned lodge for 10 years from the date of the decision of the Land Registrar, that one room costing TZS 30,000/= per day. In our jurisdiction, when it comes to special damages the position was discussed in the case of Reliance Insurance Company (T) LTD & Others v. Festo Mgomapayo, Civil Appeal No. 23 of 2019 TZCA (unreported) where the court held: 'The law in specific damages is settled, the said damages must be specifically pleaded and strictly proved..."(Emphasis supplied). See also Zuberi Augustino v. Anicet Mugabe [1992] TLR 137 and Strabag International (GMBH) vs. Adinani Sabuni, Civil Appeal No. 241 of 2018 (CAT-Tanga) (both unreported). 17 In the instant case the plaintiff has failed to prove the special damages she claimed in her plaint, hence her prayer for special damages becomes unfounded, and therefore is rejected. Coming to general damages. On the other hand, the plaintiff has claimed for TZS 1,000,000,000/= general damages in the plaint. The law is settled that general damages are awarded by the trial Judge after consideration and deliberation of the evidence on record has been able to justify the award. In Black's Law Dictionary, 8th Ed, (2004) at page 1174, the term general damages is defined as follows: "Damages that the law presumes follow from the type o f wrong complained o f compensatory damages for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or proved. General damages do not need to be specifically claimed." From the above meaning, it is well settled that the Judge has discretion in awarding general damages although, he has to dispense reasons in awarding it. This principle was surfaced by the Court of Appeal in the case of Peter Joseph Kibilika v. Patric Aloyce Mlingi, Civil Appeal No. 39 of 2009 (CAT-unreported) when quoting the case of 18 Admicibility Commissioners v. Ss Susqehanna [1950] 1 ALL ER 392, that: "If the damages be general, then it must be averred that such damage has been suffered, but the quantification o f such damage is a jury question." It was also stated in the case of Anthony Ngoo & Another v. Kitinda Maro, Civil Appeal No. 25/2014 (CAT - unreported) that: "Genera! damages are those presumed to be direct or probable consequences o f the act complained o f " At this point, to prove whether the plaintiff is entitled for general damages. I find that the Plaintiff is entitled to compensation for general damages. The reason for my judgment is that, if we can refer from the evidence of PW1, she testified that the disputed property is a commercial building, a lodge to be precise, which is still operating under the supervision of the defendant thus generates money to the defendant. That being the fact, the plaintiff is entitled to the general damages caused by the actions of the defendant in denying the plaintiff access to the disputed house despite being compensated the agreed amount he owed the plaintiff after the two years of receiving proceeds from the impugned property. The defendant has all along been in possession of the house which is a commercial building running a lodge as well as a grocery. 19 Now, after all facts have been considered and evidence analyzed, this court finds the award of TZS. 500,000,000/= (Tanzania Shillings five hundred million only) as general damages would meet the ends of Justice. In the making of these awards, I am alive that assessment of damages is not and never can be an exact science, it is clear that there can be too many imponderables. But looking on the factual circumstance of this case in totality, the amount awarded is justified in my view. All said and done, at the end the judgment is entered in favour of the plaintiff as hereunder: (a) The Plaintiff is hereby declared the lawful owner of Plot No. 54, Block 25, Majengo within Dodoma Municipality. (b) The defendant is declared a trespasser. (c) The defendant to pay general damages at the amount of TZS 500,000,000/= (Five hundred million shillings only). (d) The plaintiff is hereby granted vacant possession of the disputed property and defendant is hereby ordered to vacate the suit property forthwith. (e) Costs of this suit to follow the event. It is so ordered. DATED at DODOMA this 10th day of December, 2024. 20 Judgment delivered this 10th day of December, 2024 in the presence of the plaintiff and exparte against the defendant. S. H. HASSAN JUDGE 10/12/2024 21