LAND CASE NO

\ / IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE N0.28 OF 2019 HUSNA LESHIKON YUSUPH (Adminstratix of the estate of the late Prof. Ramadhani Bakari Senzota) PLAINTIFF VERSUS HAMIS SALEHE i^tdefendant KIZITO JAMIAN MCHUKA, 2ND defendant MUSA BAKARI NAMBOGA, 3RD defendant BAKARI LITONGOLE 4™ DEFENDANT KULUTHUMU JUMA KAZEMA 5™ DEFENDANT ISMAIL HUSSEIN defendant SAID ISSA CHILONGAMWENI 7™ DEFENDANT PETER HARISON HAULE B^N DEFENDANT MORIS KABEGA defendant STEPHENE MADAWA 10™ DEFENDANT EMMANUEL MAZIKU 11™ DEFENDANT ANET MUNGI 12™ DEFENDANT JUDGMENT Date of Last Order: 29.03.2024 Date ofJudgment: 15.0.52024 1 T.N. MWENEGOHA -J The subject matter of this dispute is a 15-acre piece of land, located at Kilimahewa Street, Salasala Area, Kinondoni District and Dar es Salaam Region, (formerly, known as Tegeta Juu, Zone No.8). Husna Leshikon Yusuph, being a widow and legal representative of the Late Prof. Ramadhan Bakari Senzota, claims that the suit land belongs to the estate of her deceased husband. That, he purchased it, from different persons, between the year 1988 to 2003. Then, he developed the suit land, by establishing a private forest, where different kind of trees were planted. He also established a Bioenvironmental Centre, registered as KIBISA. He erected buildings for the Centre, including Hostels, Reflection House, Field Museum, Herbarium and also created animal park. The late Prof. Senzota, applied for a survey of his land, and the initial survey was conducted in 1995. It was her claim that, the defendants, trespassed in the suit land and took possession of about 10 acres. The invasion took place between May 2012 to 2016. That the defendant cut down trees and demolished some of the buildings to establish their settlements, hence this case arose. When the defendants were served with the plaint, they disputed the claims against them, save for the 1^, 4'^'^ and 6* defendants, who never appeared in Court. Therefore, the case proceeded ex-parte against them. Further, in hearing of this case, the following issues were agreed for determination; - 1. Whether the plaintiff is the owner of the suit land comprising of 15 acres, located at Kilimahewa area. 2. Whether the defendants are trespassers. 2 3. To what relief the parties are entitled to. Opening the plaintiff's case was Husna Leshikon Yusuph, who testified as PWl. She informed this Court that she was appointed as an Adminstratix of the deceased's estate together with her brother-in-law, one Awadh Musa Mfinanga as seen in Exhibit PI. That, she knows the suit land, is about 10 acres out of the 15 acres she owned together with her Late husband who died in 2016 November as seen in Exhibit P2. The late Prof. Senzota, PWl's husband, bought the said land at different times from 1988 up to 2003, through different persons. She tendered 6 sale agreements, which were admitted as Exhibit P3 collectively. It was testified further that, in 1988, he purchased 3 acres from one BlaunI Kondo at a price of 18,000/=, followed by 4 acres from Almasi Hasan at 24000/=, then in 2001 he purchased another piece of land with an unknown size from Athuman Mtapa at a price of 2,200,000/=. Further, in 2003 he bought 2 acres from Ali Koroboi for 1,500,000/=. Another 2 acres, also purchased in 2001 from Mang'aa at 600,000/=. PWl went on to state that, after buying the suit land, the late Prof. Senzota planted various trees, built a library and a house and hostels. He also drilled a well and created several huts for resting and for research. Also, there were concreate poles around the land and also entered a contract with Halotel to place their telephone tower in that land. PWl went on to state that, her late husband was a lecturer at the University of Dar es Salaam. That, he planned to establish a Centre for research on plants and soil. He registered the Centre called Biomazingira at Business Registration and Licensing Agency (BRELA) in 2003 and admitted some students, as seen in Exhibit P4. 3 That, in 2012 the suit land was invaded and the late Prof. Senzota reported the matter to the police station and the case was later decided in favour of the deceased. PWl tendered the copy of the Judgment and it was received as Judiciai Notel. She went on to say that, the invasion was reported by Nipashe newspaper, (Exhibit P5) and was aiso reported to the iocai government authorities in several occasions but nothing was done. She aiso tendered the letters addressed to local government officials and the same were admitted as Exhibit P6. Another letter was sent to the Municipal Director which was tendered and admitted as Exhibit P7. That, invaders established their settlements in the suit land. Hence a case before Mwananyamala District Land and Housing Tribunal was filed and registered as Land Application No.376 of 2017. The Judgment was received as Judicial note2. She stated that to date there are many houses built in the suit land, though only 12 persons have been sued. Other persons came later, after the case has been filed, while other names were not obtained during the filing of this suit. When cross-examined, PWl insisted that, she failed to sue all the residents present in the suit land because of the hostility. That, only 10 acres are in dispute, though the whole area owned by the late Prof. Senzota comprises of 15 acres. That, the invasion took place in 2012 during the night. That, when the late Prof. Senzota bought the land in question, he found survey stones already placed in the area. On re-examination, PWl maintained that, she is suing as the Adminstratix of the estate after being appointed. That, all the defendants are in the suit land. Her testimony was well supported by that of PW2-Ephraim George, PW3-Amina Said Chaduma, PW4-Victor Stephene Malana, PW5- 4 Peter Francis Kasigwa, PW7-Ayubu Ramadhan Mkwizu, PW8- John Bundala Chida, PW9- Asuman Hiza, PW-lO-Ferdinand Augustine Mketa, PWll-Juma Mpemba Malechela and PW-12 Yusuph Ramadhan Senzota. The defence case on the other hand, was opened by the testimony of DWl, Kizito Damian Mchuka who testified that, his land has nothing to do with this dispute. He bought the same in 2016 through a Real Estate Agent, at a price of 3 million and it is located at Saiasala Kilimahewa. The land was sold by Abel Ognas Mauga. The Transaction was conducted before the street leader, Bakari Litongolele and later in 2018 the transaction was officiated by the Street Chairperson, one Kuluthumu Kazena, as seen in Exhibit Dl. That, before buying it, PWl followed all the procedures and knew that the same had no dispute or any encumbrances. That his land is measured 20 by 20 paces. He insisted that, he has not invaded any land. When Cross-examined by Advocate Mrindoko, DWl maintained that, his land is far from the disputed land. And that, he knew the land even before purchasing it. That, it's true, they were sued at the District Tribunal of Kinondoni in 2017 together with their Chairperson Kuluthumu. That, he has not built any house in his land, he just cleared it. His neighbors to that land are baba Kasunga in the South, Chilongamwene at the Northen side, and on the West side is Bakari Musa Mboga. That, his land is within the 10 acres claimed by the plaintiff. On re- examination, DWl insisted that his land and the suit land are two different lands. DW2, Musa Bakari Namboga, like DWl, he denied to have invaded the plaintiff's land. That, he purchased the land at Kilimahewa Juu in 2016 from Abel Mauga. Also, the transaction took place at the local government 5 office, witnessed by Bakari Litongolele. DW2 tendered the sale agreement which was received as Exhibit D2. His land is measured 20 by 20 paces. When cross-examined, DW2 insisted that, his land is outside the disputed land. And when they were given a sale agreement at the Street Government, there was a case at the District Land Tribunal. On re examination, DW2 insisted that, he bought his land on the 5“^ of December, 2012. That, the contracts that they were given were prepared by the local government. DW3, Said Issa Cholongamweni, also gave the same testimony as DWl and DW2. That, he also purchased his land from the same person, Abel Ognas Maunga in 2016. His land is measured 20 by 42 paces and the price of 3 million. He also tendered the sale agreements which were admitted as Exhibit D3 collectively. When cross-examined by Advocate Mrindoko, DW3 maintained that, he bought the land after he was satisfied that it has no dispute and that was in 2016. On re-examination, he insisted that, his land has nothing to do with this dispute. The evidence of DWl, DW2 and DW3 was well supported by that of DW4, Abel Ogenes Mauga, who sold the pieces of land to them. That, he obtained the said land after purchasing it from one Castor Herbet Ndosi in 2009. That the size of the said land was 30 by 125 paces as seen in Exhibit D4. Castor Ndosi bought the land in question from one Omari Idd as shown in Exhibit D5. Omary Idd was located the land by Ujamaa Village called Mtongani in 1983 as seen in Exhibit D6 collectively. That, in the same land, he was once invaded by Aloyce Gabriel, but after the dispute was taken to a Ward Tribunal, DW4 won the case, vide Application No. 104 of 2016. The copy of the decision was admitted as Judicial Note 4. 6 When cross-examined by Advocate Mrindoko, DW4 insisted that, he does not know where Omar Idd is, but he was given a iand measuring 125 by 30 paces by Mtongani Ujamaa Viilage. Omar Idd sold the said land to Castor Hubei Ndosi who also sold it to DW4 and DW4 sold part of it to DW1-DW3. That, DW4 knows well the late Prof. Senzota. That, he never had any dispute with him as their lands are adjacent to each other. That, the late Prof. Senzota built several houses in his land. That, DW4 does not know if the land of the late Senzota was invaded. On re-examination, DW4 stated that, for now, Mtongani Village has changed to Kilimahewa area. DW5, Moris Kabega on his part also stated that, he bought his land located at Kilimahewa in 2017, from Issa Hafla Chiwanya, who purchased the same from Athuman Ngozi. He tendered sale agreement which was admitted as Exhibit D7. That, for now he has built a house and he is residing in it. When cross-examined by Advocate Mrindoko, DW5 stated that, before 2016, he did not know if the land has a dispute. But in 2018 there was a case involving the suit land. That, he became aware of the late Prof. Senzota in 2018 after being summoned to appear in Court. On re examination, DW5 stated that, he bought the land in disputed after an assurance from the local government authority, that it has no dispute. DWG, Kuluthumu Juma Kazema, supported the evidence of DW1-DW3 on the agreements issued by her office regarding ownership of their lands. DW7, Sara Mkongwa through her affidavit filed on the 18‘^ July 2023, stated that, she is a lawful owner of parcel of land measured 12 by 20 7 meter, located at Salasala in Dar es Salaam. She purchased the same in 2019 from Fatuma Hatibu for 2,000,000/=. Fatuma Hatibu bought it from Mr. Hissan Flenje. And Mr. Henje obtained the land in question from Abel Orgenes Mauge (DW4). When cross examined DW7 stated that, she is a wife of the ll'*' defendant but she is the owner of the disputed land. That, she did not pray to be joined as she knew she will come as a witness. On re-examination DW7 stated that, before buying the land in dispute, she confirmed from the local leaders that it has no dispute. DW8, Anneth Mongi, also filed an affidavit and stated that, she didn't invade any land of the plaintiff. That, she bought her land from Salum Mahoka, measured 20 by 25 meters in 2017. During cross-examinati on, DW8 stated that, she is the 12‘^ defendant. That, she owns the said land jointly with her husband. DW9, Issa Afra Chiwaya. In his affidavit, stated that, he purchased a land in 1999 measuring 27 by 38 meters for 200,000/=, from Athuman Ngozi. That, he is still the owner of the said land to date. Therefore, he has not invaded any person's land. When cross-examined, DW9 insisted that, he purchased his land from Athuman Ngozi who obtained it from the Village Government. That, he has already sold the said land to Moris. On re examination, DW9 stated that, he has never been a neighbor of the late Prof. Senzota. DWIO, Peter Harrison Haule, stated in his affidavit that, he is the 8‘'' defendant in this case and a lawful owner of a parcel of land, measured 972 square meters. He purchased it from Dominic Christopher at a price of 38 million in 2015. Mr. Domic obtained the said land from one Salum Mahoka. Salumu Mahoka was allocated that land by the village government in 1978. 8 When cross-examined, DWIO stated that, he knows the late Prof. Senzota as he has a piece of land in that area. DWll, Steven Madawa, stated in his affidavit that, he is the 10^^ defendant and a lawful owner of a land measuring 30 by 30 metres. The said land was previously owned by Salumu Mahoka. Salumu Mahoka sold it to Makenya IWpalamiho who in turn, sold the said land to DWll in 2015. Therefore, he is not a trespasser to any one's land. On cross-examination, DWll insisted that, he bought the land in dispute on the 20^^ July 2015 and the witnesses involved in the transaction were Litongolele and Kuluthumu. That marked the end of the defence case. After the closure of the case, the Court visited the locus in quo and after finalizing the proceedings at the disputed land, parties were ordered to file their final submissions. In his closing arguments, Mr. Mrindoko, the counsel for the plaintiff insisted that, the plaintiff has managed to prove her case on balance of probabilities as required in civil cases. Her testimony when read together with that of her witnesses, PW2-PW12, show that, the late Prof Senzota had a good title over the suit land which was invaded by the defendants. That, based on the priority principle, the plaintiff deserves to be declared the lawful owner of the suit land, approximately 10 acres, as the late Prof. Senzota was the first to set foot into that particular land, compared with the defendants who came to buy the same later. His title is superior to their subsequent titles. That, the plaintiff has acquired the suit land from 1988 to 2003. While the defendants acquired their pieces of land in the same disputed area, in between 2015-2017. To support his arguments, 9 he cited the case of Ombeni Kimaro versus Joseph Mishili T/A Catholic Charismatic Renewal, Civil Appeal No. 33 of 2017, Court of Appeal of Tanzania at Dar Es Salaam(unreported). That, after all, the persons named to have sold the pieces of the lands to the defendants did not have a good title to pass the same to the defendants. These are Abel Orgenes Mauga (DW4), Isa Afra Chiwaya (DW9), Fatuma Hatibu Mpini, Mwita Marwa Kasiboi, Dominic Christopher and Makenya Mpalamino. Therefore, their transaction is against the rules stated in Faraha Mohamed versus Fatuma Abdallah (1992) TLR. Further, DW4 tried to rely on a Judgment given in his favour by the Ward Tribunal, vide Shauri No. 104 of 2016, to claim ownership of the said land. But that decision cannot bind those who were not parties to the dispute including the plaintiff as stated in Jacqueline Jonathan Mkonyi & Another versus Causal Properties Limited, Civil Appeal No. 311 at Dar es of 202, Court of Appeal of Tanzania, Salaam(unreported). That, afterall, the defense testimonies especially of DW7, DW8, DWIO and DWll, is based on hearsay. That, they admitted when cross-examined that, they knew how their vendors got ownership of the disputed land based on the information given to them by their vendors and Ten-cell leaders who were not called as witnesses. This fact is very important as it weakened their defenses. Hence the defendants failed to discharge their legal burden to prove that they have better title to the suit property, on balance of probabilities. Therefore, the 1^ issue was answered affirmatively in favour of the plaintiff. On the 2""^ issue if the defendants are trespassers, he argued that the answer is in affirmative, based on the testimony of the plaintiff and her witnesses. The defendants invaded about 10 acres out of the 15 acres 10 owned by Prof. Senzota hence, they are nothing but trespassers as stated in Frank Safari Mchum versus Shaibu Ally Shemdowe (1988), TLR 280. As to what reliefs the parties are entitled to, Mr. Mrindoko insisted that, since the defendants are trespassers, they have to vacate the suit land immediately and the plaintiff be declared as the lawful owner of the same. Also, the plaintiff is entitled to general damages as stated In Tanzania Sanyi Corporation versus Africa Marble Company Ltd (2004) TLR and also the case of P.M Jonathan versus Athuman Khalfan (1980) TLR 175. On the other hand. Advocates Michael Kasungu and August Mramba for the defendants, maintained in their final written submissions that, the plaintiff has failed to prove her claims on the balance of probability in this case. That, she alleged that, the late Prof. Senzota owned 15 acres of land, but failed to prove that claims. The Exhibit P3 is only able to account for 11 acres. Further one of the sale agreements picked from Exhibit P3, dated 31='^ August 2001 does not indicate the size of the land sold. The witnesses brought by the plaintiff, PW2-PW11 did not know the exact size of the land in dispute. Therefore, the first issue has been answered in favour of the defendants as stated in Berelia Karangirangi versus Asteria Nyalwambwa, Civil Appeal No. 237 of 2017, Court of Appeal of Tanzania(unreported). Since the 1=* issue was answered in negative against the plaintiff, therefore, the defendants are not trespassers and the plaintiff deserve nothing as reliefs from this Court. Having heard the testimonies of the witnesses, from both the plaintiff and the defendants, having visited the locus in quo and having read carefully the final submissions of the parties as presented by their learned counsels, I now proceed on the discussion of the issues as follows; - 11 starting with the issue, on whether the plaintiff is the owner of the suit land comprising of 15 acres, located at Kilimahewa area. PWl, the plaintiff herself insisted that, her late husband. Prof. Senzota owned 15 acres of land at Kilimahewa, where the defendants have invaded 10 acres out of the 15 acres. In supporting her claims, as far as the 1^ issue is concerned, she called 11 witnesses, PW2-PW12. All these witnesses supported the plaintiff on one fact, that they knew the late Prof. Senzota had a land at Kilimahewa. Some of these witnesses were his neighbors at the locality and others his friends who witnessed the purchase of the pieces of land forming part of the 15 acres claimed to be owned by the late Prof. Senzota. However, none of the witnesses knew the exact size of the land owned by the Late Ramadhan Senzota. Sadly, even the plaintiff could not prove the existence of 15 acres claimed to belong to Prof. Senzota. The plaintiff, has asked this Court to declare the defendant's trespassers to the suit land. However, how is such a task possible if the exact land owned and that disputed has not been proved to Court? One thing to note is that after having gone through the evidence given by defendants, I find the actions of the street leaders quite suspicious and questionable. This is so because, among other*, they redrafted all the sale result some of the agreements between the year 2012 to 2018, as a the defendants did not have original sale agreements. One wonders motive of such actions. Going back to the plaintiff's case, it was argued by the advocate for the land since 1983. plaintiff that the plaintiff's husband was at the disputed size and location However, as noted above, we need to establish the exact 12 of the late Senzota's land so as to determine its ownership. Especiaily so, as some of the defendants also claimed to have roots from 1978 to 1983, see Exhibit D6 coliectively. I note that the saie agreements tendered in this Court as Exhibit P3 coiiectiveiy, do not prove that, the pieces of land purchased by the late Prof. Senzota, between 1988 to 2003, when summed together form a total of 15 acres of land. According to Exhibit P3 collectively, the late Ramadhan Senzota on the 12* December 1988, bought a 3 acres piece of land, from one Blaundi Kondo. Prior to that, on 10/12/1988, he purchased a 4 acres land, from Almas Hassan. Therefore, up to the end of the year 1988, the late Ramadhan Senzota had a total of 7 acres at Kilimahewa as per Exhibit P3 collectively. The purchase continued in 2001, March the 28*, with one Mang ana, selling a 2 acres piece of land to the late Prof. Senzota. Further to that, in August 31®‘, 2001, the Late Prof. Senzota added a land purchased from Athuman Mtapa, with unknown size, though the boundaries were stated in the sale agreement. Again, on the 10* May 2003, he bought a 2 acres the late land, from All Koroboi Daudi. Therefore, up to the end of 2003, considering the Prof. Senzota had purchased a total of 4 acres, without land sold by Athuman Mtapa as its size is unknown. If added to the 7 acres bought in 1988, we get a total of 11 acres. Now, more questions are in need of answers, as far as the 1=‘ issue is concerned. Firstly, what is the size of the land sold to the Late Prof. Senzota by Mr. Mtapa in August 31^ 2001 as per Exhibit P3 collectively? Secondly, should the Court assume it has 4 acres, to complete the 15 acres of land, claimed by the plaintiff? 13 On my part, I will answer the 2"=' question, and the same is in the negative. Because this Court is not allowed to ride on assumptions, especially when facts before it, are of the nature that, tangible evidence is needed to prove the same. The law is clear, when you allege, you must prove, as section 110 and 111 of the Evidence Act, Cap 6, R.E 2019 provide and I will reproduce them, for easy reference; - "110. -(1) Whoever desires any Court to give judgement as to any legal right or liability dependent on the existence effects which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact. It is said that the burden ofproof lies on that person. 111. The burden ofproof in a suit proceeding lies on that person who would fail ifno evidence at all were given on either side." See also the case of Berelia Karangirangi versus Asteria Nyalwambwa, (supra). It is obvious therefore, that, the late Prof. Ramadhan Senzota, had a land at Kilimahewa area. But its exact size is unknown. Based on the evidence available, the same could be 15 acres as claimed by the plaintiff, or less than that, as argued by Mr. Kasungu and Mr. Mramba for the defendants, or even more than 15 acres. It will be a disaster for this Court to decide through chances and probabilities that 15 acres are owned by Prof. Senzota, while the plaintiff did not prove so. What is certain therefore as far as the first issue is concerned, the same has been negatively answered against the plaintiff, based on the afore given observations. 14 Turning to the 2"'* issue, whether the defendants are trespassers to the disputed land. Again, the answer is in the negative. According to PWl, Husna Leshikon Yusuph, the plaintiff above named, when cross examined during her testimony, clearly stated that, when the late Prof. Senzota bought the land in question, he found survey stones already placed in the area. This statement is well supported by Exhibit P7 collectively, which among others, there is a letter dated 28‘^ February, 1996. The same was from the then Ministry of Land, House and Urban Development. It was written by the Director of Urban Development, one John A. Mhando and, directed to the late Ramadhan Senzota, In reply to his letter to the Ministry, dated 5/1/1996. The said letter informed the late Prof. Senzota that, after investigation, the Ministry found that, the land to which the late Prof. Senzota applied to build his "Bioenvironmental Centre" was a reserved Land, kept for people who were expected to be affected by a gas pipeline project from Songosongo to Wazo Hill area. The letter further informed the late Prof, Senzota that, the Ardhi University was tasked to prepare a plan layout can also for the said land. That, he should contact them so that they survey his land. With this piece of evidence, as shown above, it is safe to conclude to say that, the late Prof. Senzota purchased a surveyed land, reserved for people settlements. In fact, he was aware of that, since 1996, based on the letter. Moreover, as revealed while answering the first issue above, the plaintiff has failed to prove her case, especially as far as size of land is concerned. It would be absurd, therefore, in such circumstances, to declare the 15 t • defendant to be trespassers. The 2"*^ issue has also been answered in negative. To what reliefs the parties are entitled. Indeed, the plaintiff is not entitled to any relief as she has failed to prove her claims against the defendants on balance of probabilities, see Godfrey Sayi versus Anna Siame as Legal Representative of the Mary Mndolwa, Civil Appeal No. 114 of 2012, Court of Appeal of Tanzania, at Dar es Salaam, I (unreported) and, Hemed Said versus Mohamed Mbilu (1984) TLR 113. Eventually, the case is dismissed with no order as to costs. \ .o I- t « ■ii ■Cw t t \''v EGOHA ;' .T* I i, 9 IS / - T. 1? JUDGE : t* >1. '•X* . t K' 15/05/2024 16