HAMISI SAIDI ALLY AND ANOTH Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB-REGISTRY) AT DODOMA CIVIL CASE NO. 13 OF 2022 HAMISI SAIDI ALLY (As Administrator of the Estate of the late SAIDI ALLY SUFIANI)….………………..…..………1ST PLAINTIFF ABDALLAH SAIDI ALLY (As Administrator of the Estate of the late SAIDI ALLY SUFIANI)….……………….…..………2ND PLAINTIFF Versus THE CITY COUNCIL OF DODOMA……….…………………….…………1ST DEFENDANT EDSON M. TIBAIJUKA……….………………………………….…………2ND DEFENDANT INNOCENT MALLYA……….…………………………………….…………3RD DEFENDANT MALCELINA ANTHONY MUNISH…………………………….…………4TH DEFENDANT RUTTA JAMES KAKOKI…….………………………………….…………5TH DEFENDANT ASIMWE LOVINCE RWIGUZA………………………………….…………6TH DEFENDANT ESTANSIA ASANTERABI SHOO……………………………….…………7TH DEFENDANT NELSON SYDNEY MAWALA………………………………….…………8TH DEFENDANT GODFREY RENATUS NYONI……………………………….…………9TH DEFENDANT PHILBERT PHILIMON LUTALA…………………………….………10TH DEFENDANT CHRISTINA MICHAEL MZUKA…………………………….………11TH DEFENDANT THE ATTORNEY GENERAL……….……….…………………….……….12TH DEFENDANT JUDGMENT Date of last order: 28th May, 2024. Date of Judgment: 28th June, 2024. E.E. KAKOLAKI, J. The plaintiffs herein who are administrators of the estate of the late Said Ally Sufiani (their father) who passed away intestate on 07/09/2018 at 1 Dodoma, are suing the 1st and 2nd defendants for their illegal act of surveying and producing twelve (12) plots No. 305 to 316 in Block ‘D’ from their late father’s farm measuring two and three quarter (2¾) acres located at Mlimwa North area within Dodoma City, which he owned since 1960 and continued to be in its possession until 2019. It is their claim in the plaint that, the said surveyed plots were allocated to the 3rd up to 11th defendants by the 1st defendant without them being informed or compensated as done to other land owners, whereby the plots surveyed in Block ‘D’ Mlimwa North with No. 305 and No. 314 were allocated to the 2nd and 3rd defendants respectively while plots No. 307 and No. 314 in the same Block retained by her. The other eight plots in Block ‘D’ Mlimwa North it is claimed were also allocated without their consent as Plot No. 308 was allocated to the 4th defendant, Plot No. 309 to 5th and 6th defendants, Plot No. 310 to the 7th defendant, Plot No. 312 to the 8th defendant, Plot No. 315 to the 9th defendant, Plot No. 316 to the 10th defendant while Plots No. 311 and 313 allocated to the 11th defendant. It is in their further claim that, despite of several efforts to require the 1st defendant to mend the situation through other land authorities, she adamantly shown no co-operation the result of which this suit was filed after issue of demand notice. The plaintiffs are therefore praying the court for the following reliefs: 2 1. A declaration that Plots No. 305, 306,307, 308, 309, 310, 311, 312, 313, 314, 315 and 316 Block ‘D’ located at Mlimwa North area within Dodoma City are among the properties of the late Said Ally Sufiani, 2. An order that the Defendants are trespassers to the above said plots. 3. An order for permanent injunction to the Defendants, their representatives, assignees and/or any person claiming in their names from entering the suit plots. 4. An order for payment of general damages to the plaintiffs as shall be assessed by this Honourable Court. 5. Costs of the suit and any other orders or reliefs this court may deem just and equitable to grant. On their side all defendants save for the 4th to 11th defendants denied the plaintiffs’ claims. It was the 1st and 12th defendants’ response that, the plaintiffs’ claims have no justification as the alleged late Said Ally Sufiani had never owned the disputed land as the same was since 1976 declared a forest reserve before its use was changed by CDA in 2016, surveyed and allocated to individuals including some of the defendants herein. As to the 2nd and 3rd defendant who alleged have already developed their plots also disclaimed all plaintiffs’ assertions that the land belonged to them through their late father as they were lawfully allocated the land by the relevant land authorities. These defendants in short prayed the Court for dismissal of the plaintiffs’ claims. Regarding the 4th to 11th defendants having been served with summons by 3 way of publication in two widely circulated newspapers defaulted appearance hence the Court ordered ex-parte hearing against them. During trial the plaintiff enjoyed legal representation of Mr. Christopher Malinga, learned advocate, while the 1st and 12th defendants represented by Mr. Nicodemus Agweyo and Mr. Omary Ngatanda, both learned State Attorneys and the 3rd and 4th defendants by Mr. Godfrey Wasonga, learned advocate. In proof of their claims the plaintiffs called in Court three (3) witnesses namely Hamis Said Ally (PW1), Stephano Anderson Magawa (PW2) and Magreth Philipo Manyika (PW3) and relied on four (4) exhibits. These are the letter of appointment from Chamwino Urban Primary Court and its judgment dated 15/05/2020 appointing plaintiffs as co-administrators of the estate of the late Said Ally Sufiani as exhibit PE1 and exhibit PE2 respectively. Others are the letter by residents of Mathias and Oysterbay areas within Kiawanja cha ndege ward, Dodoma City dated 19/07/2018 and the letter by plaintiffs dated 21/07/2020 both to the City Director, Dodoma City as exhibit PE3 collectively and a Demand Notice to the 1st defendant dated 30/08/2021 exhibit PE4. As to the 2nd and 3rd defendants both testified in persons as DW1 and DW2 and relied on their Certificates of Title in respect of Plots No. 305 and 306 as exhibits DE1 and DE2 respectively. On the 1st and 12th defendants’ side two witnesses were paraded in Court, namely Anna Paulo Nade, a Town Planning Officer as DW3 and Joyce Joseph Ibunga, a Land officer as DW4 both from 4 the 1st defendant’s office. The relied on exhibits were a certified copy of Dodoma Master Plan of 1976 exhibit DE3, a photocopy of lease agreement, leasing land for mixed crops farming within the CDA forest exhibit DE4, Patrol report on the protection of green zone areas exhibit DE5, Drawing No. 08/MLWN/612/457 dated 01/04/2019 which is Extension of Mlimwa North Layout Plan exhibit DE6 and a Certificate of Title No. 4585-DLR dated 11/05/1985 in favour of Capital Development Authority (CDA) exhibit PE7. In its bid to resolve parties’ dispute this Court framed four (4) issues for determination, which issue I am intending to address soon in this judgment. These are one, whether the suit plots are among the properties left by the late Said Ally Sufiani, second, whether the suit land was once planned as Forest Reserve and later on changed its use by the Government, third, whether 2nd and 3rd Defendants were lawfully allocated with Plots No. 305 and 306 respectively in Block D Mlimwa North area and lastly, what reliefs are the parties entitled to. At the end of trial both parties prayed the Court and so granted with leave to file their closing submissions. However, in this judgment I am not intending to reproduce the said submission rather consider them in the course of determination of issues above mentioned. It appears to the Court that, in their final submission in a way the 2nd and 3rd defendants raised an issue concerning plaintiffs’ locus stand to sue in this matter which concern I find it imperative to address it first. It was Mr. Wasonga’s contention that, the plaintiffs being administrators of the estate of 5 the late Said Ally Sufiani duly appointed on 15/05/2020, their recognition ceased on 16/09/2020 after expiry of six months (120 days) from their appointment. According to him their issue of a Demand Notice on 21/09/2020 and filing of amended plaint in respect of this matter on 27/06/2020 was done by strangers without locus stand to sue as their tenure in office had already expired. He relied on the case of Andrew C. Mfuko Vs. George C. Mfuko, Civil Appeal No. 320 of 2021 to fortify his contention, where allegedly the Court of Appeal held that, the Administrator of estate cannot act beyond the time fixed by the Court. He thus prayed the Court to dismiss the suit in its entirety. Having glanced at the cited case and considered the learned counsel’s submission allegedly supported by the said case, I find misconceived his argument that the plaintiffs have no locus stand to sue in this matter. I so view as Mr. Wasonga cited no law that renders appointment of administrator of estate invalid after expiry of six (6) months of his/her appointment. I further find even the case of Adrew C. Mfuko (supra) relied on by him to back up his argument is irrelevant to the facts of this case and does not support his contention at all since in that case the Court of Appeal held that, it was improper for the administrator of estate in a Probate cause already closed by the Court to sue or be sued for having vacated the office and not when his appointment is not revoked or ceased to exist by operation of law if any, like the situation allegedly obtained in this matter. I therefore find the raised issue 6 by Mr. Wasonga is without any merit hence disregard it and proceed to determine the case on merit. Before venturing into determination of the four (4) issues raised above, I find it apposite to pronounce principles guiding proof of civil matters, which shall guide this Court in determination of parties’ dispute. It is a settled principle under sections 110(1) and (2) and 112 of the Evidence Act, [Cap. 06 R.E 2022] that, he who alleges must prove and that, the burden of so proving existence of a particular fact lies on the person who would wish the court to believe its existence and enter judgment in his favour. As to the standard of proof the law under section 3(2)(b) of Evidence Act provides that, it is on the preponderance of probability or balance of probabilities. See also the cases of Abdul Karim Haji Vs. Raymond Nchimbi Alois and Another, Civil Appeal No. 99 of 2004 (CAT-unreported) and Berelia Karangirangi Vs. Asteria Nyalwambwa, Civil Appeal No. 237 of 2017 (CAT -Unreported). In the case of Berelia Karangirangi (supra) the Court of Appeal had this to say: ’’We think it is pertinent to state the principle governing proof of cases in civil suits. The general rule is that, he who alleges must prove….it is similar that in civil proceedings, the party with legal burden also bears the evidential burden and the standard in each case is on the balance of probabilities.’’ Now to start with and before canvassing the first issue, this Court wishes to pronounce itself clearly that having considered the submission and evidence adduced in Court by both parties, in particular exhibits PE1 and PE2, the 7 settled fact is that, one Saidi Ally Sufiani is dead and he so died intestate. And that, the plaintiffs were lawfully appointed as co-administrators of his estate hence interested parties in this matter with locus stand to sue on the interest of the estate. Having settled the said facts, I now move to consider and determine the first issue as to whether the suit plots under dispute are among the properties left by the late Saidi Ally Sufiani. In my humble opinion for the plaintiffs to prove the above issue ought to have established on the balance of probabilities that, the said twelve plots were surveyed and obtained from the claimed 2¾ acres of the piece of land allegedly owned by the late Said Ally Sufiani since 1960 as deposed in paragraphs 8 and 9 of the amended plaint. I hold that view as parties are bound by their pleadings and are prevented to deviate therefrom by raising new claim which is not founded in pleadings or inconsistent to what is pleaded. See the cases of Yara Tanzania Limited Vs. Ikuwo General Enterprises Limited, Civil Appeal No. 309 of 2019 (CAT-unreported) as correctly cited by Mr. Malinga in his submission and Astepro Investment Co. Ltd Vs. Jawinga Company Limited, Civil Appeal No. 8 of 2015 (CAT-unreported). In this case the late Said Ally Sufiani’s son PW1 informed the Court that, he was informed by father to have acquired and owned the disputed land located at Oysterbay Mailimbili area now Mlimwa North since the year 1960 through clearance of land and that, as the family continued to make use of the same for farming of mixed crops since 1975 when he was born until the year 2018 8 when the 1st defendant secretly surveyed it, planted beacons and illegally allocated the twelve (12) plots obtained therefrom to different defendants including the 2nd and 3rd defendants. Relying on letters in exhibits PE3 written to the 1st defendant he said, they complained to the 1st defendant of the illegal survey of their land without their involvement and the allocation of the twelve (12) plots obtained therein without compensation or allocation of any of the plot to them but no response was received from her, hence this suit after issuance of demand notice in exhibit PE4. When referred to the letter exhibit PE3 dated 21/07/2020 and cross examined as to when he became aware of existence of the suit land as administrator, he admitted it was in the course of collection of the estate. And on further cross examination by counsel for the 2nd and 3rd defendants on when his father was born and be able to own the claimed land in 1960 he said, it was the year 1952. PW2 a resident of Mailimbili Oysterbay area within Dodoma area, came in to corroborate PW1’s account and informed the Court that, the late Said Ally Sufiani owned a farm at that area close to the farm of his uncle Noah Magawa, which later on was illegally surveyed by the 1st defendant on the ground that it was a forest reserve. He said, plaintiffs’ efforts to be allocated the surveyed twelve (12) plots from that farm or be compensated instead, proved futile as were given an option for alternative plots at Kikombo area allegedly on humanitarian grounds for being invaders of the alleged suit farm. When cross examined by counsel for the 1st and 12th defendants he said, his uncle Noah 9 Magawa acquired the land in 1945 and that, since his childhood he found him cultivating it but he doesn’t know how he acquired the same. In support of PW1’s evidence also was PW3 who testified to the effect that, she was living at Mailimbili Oysterbay area before she was moved to Mwatano area at Miyuji Ward by the Government since 2010 after being compensated of her land and given an alternative plot there. She denounced the disputed land to be located in forest reserve, if any. When cross examined by counsel for the 1st and 12th defendants on the closeness of the area she was moved from and the land claimed by the plaintiffs, she said the two areas were different. On the adversary side, the 1st and 12th defendants through DW3 and DW4 claimed ownership of the suit land. It was DW3’s evidence that, the disputed land is part of the land which was designated as forest reserve since 1976 as per the Dodoma Master Plan of 1976 (exhibit DE3), in which later on the Capital Development Authority (CDA) was granted with a right of occupancy as per the Title Deed No. 4585-DLR (exhibit DE7), before its land use was changed and surveyed as per the certified Town Planning Drawing No. 8/MLMN/612/457 approved on 27/09/2017 (exhibit DE6) that included the disputed land and the plots allocated to different people including the 2nd and 3rd defendants. Before changing its use she contended, the said land was under protection as exhibited in the patrol report (exhibit DE5) as it was farming activities of mixed crops only which were allowed by CDA in the said area through fixed time lease agreements as shown in exhibit DE4. As for the 10 2nd and 3rd defendants is was their defence when testified as DW1 and DW2 respectively that, they were lawfully allocated with plots No. 305 and 306 in Block ‘D’ Mlimwa North and dully issued with the Certificates of Title by the 1st defendant as exhibited in exhibits DE1 and DE2, respectively. Thus lawful owners of their plots. In the plaintiffs’ submission Mr. Malinga convincingly argued that, the plaintiffs through evidence of PW1 and PW2 as well as exhibits PE3 and PE4 were able to prove that, the disputed land belonged to their late father and that, the 1st defendants unlawfully and without their consent or any kind of compensation surveyed their land and allocated the plots obtained to different people including the 2nd and 3rd defendants. Mr. Abweyo for the 1st and 12th defendant held the contrary view claiming that, ownership belongs to the 1st defendant who holds a title deed through her predecessor CDA since 1987 as exhibited in exhibit DE7 since the area was formerly a forest reserve as shown in exhibit DE3 but later on changed its use and surveyed as per the certified Town Planning Drawings exhibit DE6. According to him, it is the holder of certificate of title who has a better title which is a conclusive evidence of land ownership unless proved to the contrary that the certificate was obtained unlawfully. The presumption according to him is rebuttable through evidence of prior interest, possession or use of the disputed land. To back up his stance the Court was referred to the case of Nicholaus Mwaipyana Vs. The Registered Trustees of Title Sisters of Jesus Tanzania, Civil Appeal No. 11 276 of 2020(CAT- unreported). He thus prayed the court to find the plaintiffs have failed to prove ownership of the suit land and proceed to dismiss the suit. I have critically considered the fighting submissions from both parties regarding the first issue. The settled fact is that, the 1st defendant is a holder of certificate of title covering 253,102 hectors through her predecessor CDA the authority established under Public Corporations Act, 1969 by order published in GN No. 230 of 1973 as exhibited in exhibit DE7. As per paragraph 2 of the 99 years lease conditions in exhibit DE7, the land was to be used for multiple purposes including commercial, residential, industrial, agricultural, pastoral, forest and any other use as provided by the National Capital Master Plan and the Town and country planning (use classes) Regulation, 1960. As the law stands now and rightly submitted by the 1st and 12th defendants counsel in his final submission the submission which I embrace, the holder of certificate of title has a better title as it serves as a conclusive evidence of ownership of the disputed land unless otherwise proved that, it was unlawfully obtained. See the cases of Nicholaus Mwaipyana (supra) and Amina Maulid and Two Others Vs. Ramadhan Juma [2020] TZCA 19 (25 February 2020,TANZLII). On that presumption of better title the Court of Appeal in the case Amina Maulid and Two Others (supra) had this to say: ’’In our considered view, when two persons have competing interests in a landed property, the person with a certificate 12 thereof will always be taken to be a lawful owner unless it is proved that the certificate was not lawfully obtained.’’ The above presumption of the law is rebutted only if there evidence is led proving prior interest on the land, possession or continued use of the said land. See the case of Nicholaus Mwaipyana (supra). In this case, apart from PW1 and PW2’s assertion that, when growing up found the late Said Ally Sufiani cultivating his farm in the disputed land, there is no concrete evidence to prove on how the same was acquired. I so view as the plaintiffs were expected to bring evidence in Court from persons who saw their father clearing the said farm land if any or any witness from the street or village authority where the disputed land is located proving that, the late Said Ally Sufiani was in long possession or use of the disputed land prior to the survey conducted in 2018. In absence of such evidence this Court runs out of reasons to believe PW1’s assertion that, his father acquired said land since 1960, more so when contradicted his own version during cross examination by the Mr. Ngatanda and stated that, his father was born in 1952, meaning that he acquired the said land at the age of eight (8) years something which is next to impossible. To add salt on the fresh wound, PW1 and PW2 failed to prove to the court's satisfaction size of the alleged land claimed to be 2¾ acres as deposed in paragraph 8 of the amended plaint. In absence of evidence to prove prior interest over the land, possession or continued use of the disputed land which its size is not established too, I find the plaintiffs have failed to prove to the Court on the balance of probabilities that, the claimed disputed 13 land was acquired by late Said Ally Sufiani in 1960 and continued to be in its use to date, hence forming part of his estate Having discounted plaintiffs’ claim that their late father acquired the disputed land way back 1960 and that, they have been in continuous occupation or use of the said land, I accede to the submission made by Mr. Abweyo that, he who holds a certificate of title has the best title to the contested land. As alluded to above in civil case the proof is on the balance of probabilities. See the cases of Abdul Karim Haji (supra) and Berelia Karangirangi (supra). Deliberating on standard of proof of civil matter on balance of probabilities the Court of Appeal in the case of Mathias Erasto Manga Vs. M/S Simon Group (T) Limited, Civil Appeal No. 43 of 2013 (CAT-unreported) made reference to the case of Re Minor (1996) AC 563, where it was held that: ’’The balance of probability standard means a court is satisfied an event occurred if the court considers that, on the evidence the occurrence of the event was more likely than not.’’ In this case since it has been proved to the court’s satisfaction that, the 1st defendant is a holder of certificate of title over the suit land, on the balance of probabilities, I hold she is the owner of the suit land in which the claimed Plots No. 305 to 316 Block ‘D’ Mlimwa North are situated. To that end, the first issue is answered in negative as the plaintiffs have failed to prove on the balance of preponderance that, Plots No. 305 to 316 Block ‘D’ Mlimwa North within Dodoma City are among the properties left by the late Said Ally Sufiani. 14 Next for determination is whether the suit land was once planned as Forest Reserve and later on changed its use by the Government. It is Mr. Malinga’s submission that, the 1st and 12th defendants failed to establish that the said disputed land was once planned a forest reserve and later on changed its use. He argued that, in paragraph 2 of their Written Statement of Defence the 1st and 12th defendants deposed that, the plan for forest reserve of the dispute area was done in 1923 but DW3 gave a contrary version when said that, it was in 1976 through exhibit DE3. On the other hand in his submission Mr. Agweyo was insistent that, as per DW3 and DW4’s evidence and exhibit DE3, it was evidenced to the Court that the suit land was a forest reserve which was latter on surveyed and distributed to other land users. Having revisited the pleadings and the evidence led by DW3 and DW4, I embrace Mr. Malinga’s submission that, the 1st and 12th defendants failed to prove on the balance of preponderance that, the disputed land was once a forest reserve. I hold that view as parties are bound by their pleadings and estopped from deviating to what is averred therein. The Court of Appeal in the case of Charles Richard Kombe t/a Building Vs. Evarani Mtungi and 2 Others, Civil Appeal No. 38 of 2012 (CAT-unreported) discussing on the need of parties to be bound by the pleadings had this to say: ’’It is cardinal principle of pleadings that the parties to the suit should always adhere to what is contained in their pleadings unless an amendment is permitted by the Court. The rationale behind this proposition is to bring the parties to an issue and 15 not to take the other party by surprise. Since no amendment of pleadings was sought and granted the defence ought not to have been accorded any weight.’’ In this case since the 1st and 12th defendant failed to lead evidence in proof of what was deposed in paragraph 2 of the Written Statement of Defence to the amended plaint that, the planning for forest reserve of the disputed plot was done in 1923 instead brought in new evidence in that it was 1976 without amending their amended WSD, I accord no weight to their defence on that fact. Now what remains uncontroverted fact as herein above found when resolving the first issue is the fact that, the 1st defendant has the best title over the suit land vide Certificate of Title exhibit DE7, covering 253,102 hectors. This Court is therefore satisfied that, it is out of that land which was acquired by the 1st defendant through its predecessor CDA for multipurpose use including commercial, residential, industrial, agricultural, pastoral, forest and any other use, the said disputed 12 plots were surveyed and distributed to other land users including the 2nd and 3rd defendants as correctly submitted by Mr. Agweyo and Mr. Wasonga, both learned counsel and exhibited by exhibit DE6. The above issue therefore is partly answered in negative to the extent that no proof that the suit land was once a forest reserve but partly in affirmative to the extent that the said land changed its use from farming to allocation of plots to land users. The findings in this issue in my humble view answers in affirmative the third issue as to whether the 2nd and 3rd defendants were 16 lawfully allocated Plots No. 305 and 306 respectively as the 1st and 12th defendants in their defence through DW3 and DW4 do not dispute to have so done. Further to that, the 1st defendant lawful issued title deeds to them as proved in exhibits DE1 and DE2 respectively, which evidence if the principle in Nicholaus Mwaipyana (supra) and Amina Maulid and Two Others (supra) is invoked they have the best title other than the one claimed by plaintiffs against them. Lastly is the issue as to what reliefs are the parties entitled to. I think this issue need not detain much this Court. Since the plaintiffs have failed to prove their claims against the defendants, the only remedy available to them is dismissal of this suit. All said and done I proceed to dismiss the suit in its entirety with costs. Order accordingly. Dated at Dodoma this 28th day of June, 2024. E. E. KAKOLAKI JUGDE 28/06/2024. Court: The judgment has been delivered at Singida today on 28th day of June, 2024, via video conference in the presence of Mr. Christopher Malinga, advocate for the Plaintiff who is also holding brief of Mr. Godfrey Wasonga for the 2nd and 3rd defendants, Ms. Kumbukeni Kondo, State Attorney for the 1st 17 and 12th defendants, all appearing from Dodoma, IJC and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 28/06/2024. 18