20171218 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA .. , (DAR ES SALAAM DISTRICT REGISTRY) AT.DAR ES SALAAM LAND CASE NO. 17 OF 2013- ISSA MOHAMED LINYAMA .... ........................... . PLAINTIFF VERSUS KITANGA FIEDRIECH MWANJA .................... DEFENDANT JUDGMENT 2 Oct.&. 18 Dec. 2017 DYANSOBERA, J. The Plaintiff and defendants are natural persons residing in Dar es Salaam. It is claimed by the plaintiff in the plaint and denied by the defendant in the written statement of defence that the plaintiff is the owner of un-surveyed area of ten acres situated at Kisarawe Visegese Bwawani area in Kisarawe District, Coast Region since 1991 where by he had planted various permanent crops such as cashew nuts, mangoes, coconut trees. That in 2007 the defendant trespassed onto the suit area, destroyed all crops and built therein a house which is now semi-finished. Efforts to have the defendant vacate from the suit land and make good the damages caused with no lawful cause could materialise. Consequently, the plaintiff has filed this suit against the defendant claiming the following reliefs: 2 a) A declaratory order that the plaintiff is a lawful owner of un-surveyed piece of area covering ten acres situated at Kisarawe Visegese Bwawani area in Kisarawe District, Coast Region. b) A declaratory order that the defendant is a trespasser of un-surveyed piece of area covering ten acres situated at Kisarawe Visegese Bwawani area in Kisarawe District, Coast Region being the lawful property of the plaintiff. c) An order that the defendant be evicted from the suit area situated at Kisarawe Visegese Bwawani area. d) An order that the defendant to pay to the plaintiff Tshs. 40,000,000 as general damages for the trespass to the suit area. The defendant has resisted the claims arguing that they are baseless as the said piece of land lawfully belongs to him having lawfully purchased it in 2003 from one Mohamed Hussein Airudi, the young brother of the plaintiff. At the commencement of the hearing, three issues were framed namely: 1. Whether the plaintiff is the lawful owner of the suit land 2. If so, whether the vendor of the suit plot to the defendant one Mohamed Hussein Airudi had good title to pass to the defendant. 3. To what reliefs are the parties entitled? The plaintiff was represented by Mr. Juma Nassoro, learned counsel while the defendant defended the case on his own. 3 Three witnesse_s testified for the __d_efenG~ while the plain_tiff testified alone as a sole witness. The case for the plaintiff according to his evidence was that --before moving-to Tabata where he now-resides, he--was living at---- Kiluvya Kwa Komba. He is a retired officer having worked with the Tanzania Publishing House as an accountant. He was forced to retire after he became blind. According to him, he had a shamba at Kisarawe Visegese measuring about ten acres. The land was virgin and a bush but he then planted mango trees and cashewnut trees. He then built a house for his mother one Hawa Mohamed Serenge who is now dead. It was the plaintiff's further evidence that he was told that the shamba had been sold by Mohamed Hussein Airudi, his young brother. He told the court that he was not aware about the sale of this piece of land. He then referred the matter to Amoma, the Village Chairman who called the defendant but the latter refused to attend claiming that he did not know the plaintiff. The chairman referred the plaintiff to Kisarawe Police Station. He went to the Primary Court to complain but that his complaint was not dealt with as the police refused to take the file to the court. The plaintiff then complained to the District Commissioner. He denied to have met and communicated with that young brother save at Kilwa when they met at the mourning of their mother. On cross examination, the plaintiff told the court that he had neighbours including Amoma, his father and others who 4 are dead. He mentioned those who died as Hassan and Haji Mohamed. .He admitted that in that farm there were two houses; one being occupied by their mother and the other beings used by the said Mohamed Airudi who sold the said farm to the defendant. As to how the plaintiff came to know that the farm was sold, he said that it is their uncle one Haji. On how his mother ceased to be occupying the said house, the plaintiff said that it was after she went to nurse him that is when the farm was sold and that even their mother told him that the farm was sold. The plaintiff denied to have either consented or authorised the sale of the farm 1n dispute. He said that he also benefitted nothing from the sale of the house. He said that Mohamed Hussein Airudi had no farm to sell. As to why he did not sue the person who sold the farm to the defendant along with the defendant, the plaintiff said that his concern was with the occupier and not the seller. In his defence, the defendant denied to have trespassed onto the said farm which measures nine acres and is situated at Bwawani Visegese, Kisarawe District in Coast Region. He testified that he bought the said farm on 10th August, 2003 at Tshs. 320,000/= from Mohamed Hussein Airudi. The sale was witnessed by six people; on part of the Mohamed Hussein Airudi, the vendor, the witnesses were Mangaya@ Amoma,Haji Mohamed Serenge and Shafikifa Mohamed. The witnesses on part of the defendant, the purchaser of the farm, were John Kamigwa Wagala, Zakaria Mkude (who showed the defendant 5 _the farm)_and_Roherta Mwanja._The_evidenceQf tlle defend~nt further revealed that the sale was supervised by Bwawani Kitongoji chairman one Michael Mkangule and the sale - transaction-was reduced in writing~ In proof-of the sale, a-Sale- Agreement was produced and admitted without objection and marked as defendant's Exh. l(Exh. D. 1). According to the defendant, he at first paid Tshs. 200,000/= at the time of the conclusion of the contract and then on 10th August, 2003 he paid Tshs. 120, 000/=. It was the defendant's further evidence that in the farm there were two mud houses which were also bought as part of the farm. As to whether the farm measured ten or nine acres, the defendant said that at first it was thought that it was ten acres but then after measurement, it turned out to be nine acres only. The defendant explained on the boundaries of the said farm and the bordering neighbours. The defendant informed the court that the Kitongoji chairman took the responsibility of supervising the sale after he was satisfied that the plaintiff had consented to the sale._ The defendant then sought to develop the farm trying to dig a well and make bricks and started constructing a house and effected a survey of the area whereby the village government granted the farm to the defendant as evidenced by the Minutes (Exh. D. 2). The defendant was in 2010 summoned by the Visegese Village Land Council (Exh. D.3) where the plaintiff had complained that the defendant had taken the farm belonging to him. The 6 defendant-explained how_ .he__ acquired_ the said_ land __ and promised to take the witnesses there. When the matter went for hearing the plaintiff defaulted appearance and that was the - -- end o-r the matter~- Later--he-was summoned-- by the District Administrative officer and then by the police at Kisarawe where he took his documents and explained how he got the shamba. The police advised the matter to be taken to the District Land and Housing Tribunal. In 2013, the defendant was summoned by the High Court. The defendant maintains that he bought the farm legally and followed the required procedures and the claims against him are unfounded and the suit should be dismissed with costs. When cross-examined by learned counsel for the plaintiff, the defendant said that at the time of the purchase of the farm there those two mud houses, one belonging to Mohamed and the other being occupied by their mother. He said that the dispute arose after their mother and Mkangule died. This evidence got full support from the testimony of the vendor of the farm Mohamed Hussein Airudi (DW 2). He said that it is the plaintiff who initiated the sale of the farm since he was living at Kiluvya and had advised DW 2 to move to Mang'ula, Morogoro-they had therefore to sell that farm. The plaintiff wrote a letter to his uncle Serenge which letter when tabled before the village council, the sale was to be performed. DW 2 supported the fact that Michael Mkangule who was_ the 7 k-itongoji chairman as welL as the plaintiffs father jn law supervised the sale of the farm. After the sale, DW 2 heard the plaintiff recanting the consent of sale. DW 2 was called at the -village Council but the-· plaintiff did not attend. A--complaint- was also registered to the Regional Commissioner who directed the Area Commissioner to deal with the matter but the plaintiff did not also attend. At the funeral of their mother, the plaintiff was suggesting that they revoke the sale, and then re- sell the farm to a higher price. DW 2 later heard that the matter was before the High Court. On cross-examination, DW 2 said that the plaintiff consented to the sale and the consent was given in writing. He however, admitted that he did not indicate on the sale agreement that he was selling the farm with the consent of the plaintiff. He admitted that he indicated that he was selling his farm, but denied any fraud in that version. He told the court that the plaintiff received the proceeds of the sale of the farm. DW 3, Abdallah Mohamed Mangaya was one of the witness to the sale of the farm. He supported the evidence that the plaintiff had consented in writing to sell the farm and the letter was read out by the kitongoji chairman who supervised the sale. He also told this court that the matter happened to have been referred to the Village Land Council. DW 3 admitted to have witnessed the sale and signed the sale agreement. 8 As far as the first issue is concerned that is whether _the plaintiff is the lawful owner of the suit land in dispute, the evidence clearly shows that the said suit land was sold by DW 2 one Mohamed Hussein Airudi on 10th August, 2003 to the defendant at the price of Tshs. 320,000/= and the sale was reduced in writing (Exh. D. 1) and witnessed by six witnesses including Abdallah Mohamed Mangaya who testified in court as the DW 3. Although the evidence shows that the plaintiff made some efforts to challenge the sale at the Village Land Council level, the Police and the Regional Commissioner, he was silent on how that issue was resolved before it was brought before this court. It seems there was no follow up that was being made apart from mere complaining. Exhibits D 1 and D 3 which are, respectively, a sale agreement and an allocation of the suit land to the defendant by the Village Government is a clear indication that the plaintiff is not and cannot be a lawful owner of the suit land. The second issue is whether the vendor that is Mohamed Hussein Airudi had good title to pass to the defendant. The evidence is abundant that the plaintiff authorised his young brother, DW 2 to sell the suit land. That the authorisation was made in writing and the authority letter which was addressed to their (plaintiffs and DW 2's) uncle one Haji Mohamed Serenge was read out at the village government. Further, it was not in dispute that the sale was supervised by the kitongoji chairman one Michael Mkangule who was also the 9 plaintiffs-in.;claw. It is the evidence on record that the kitongoji chairman that consented to supervise the sale after he was satisfied through the written authority that the plaintiff had consented to the sale. This is exactly what the defendant, DW 2 and DW 3 testified in court. The standard of proof in civil cases is on balance of probabilities and the burden of proof shifts. The burden of proof lies on the party who asserts the truth of the issue in dispute. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden shifts to the other party, who will fail unless sufficient evidence is adduced to rebut the presumption. The court makes its decision on the "balance of probabilities", and this is the standard of proof required in civil cases. In this case the plaintiff failed to discharge his burden. The end result leads me to the third issue on the reliefs. In view of my findings in the first and second issues, I find that the plaintiff has failed to prove his case on balance of probabilities. I dismiss the suit with cost W. P. ·oyansobera JUDGE 18.12.2017 10 Delivered this 18th day of December, 2017 in the presence of Mr. Omary Bori Ahmad for the plaintiff and In the presence of the defendant in person.