JANETH NYAKALILO SCANNED

IN THE HIGH COURT OF TANZANIA LAND DIVISION (AT DAR ES SALAAM) LAND CASE NO. 329 OF 2022 JANETH NYAKALILO KUSSAGA........................................... 1st PLAINTIFF WILLY NYAKALILO KUSSAGA............................................. 2nd PLAINTIFF VERSUS EDGAR MANYANYA........................................................... 1st DEFENDANT MAGILANI SAKINOI.......................................................... 2nd DEFENDANT LUGANO ANYISISYE CHISAMBA....................................... 3rd DEFENDANT MARIAM MULANGA............................................................ 4th DEFENDANT WAIDA MULANGA.............................................................. 5th DEFENDANT CHARLES SOKO.................................................................. 6th DEFENDANT HAPPY MALWA SAYI.......................................................... 7th DEFENDANT JACOB IWATO.................................................................... 8th DEFENDANT EDWIN IWATO................................................................... 9th DEFENDANT SAMWEL THOBIAS CHILUMBA.......................................... 10th DEFENDANT DISTRICT COMMISSIONER, KINONDONI DISTRICT....... 11™ DEFENDANT KINONDONI MUNICIPAL COUNCIL.................................. 12™ DEFENDANT COMMISSIONER FOR LANDS............................................ 13™ DEFENDANT THE ATTORNEY GENERAL..................................................14™ DEFENDANT JUDGMENT 24/9/2024 & 18/10/2024 k. MSAFIRI, J. The plaintiffs herein have instituted the suit against the defendants as shown above. The plaintiffs claim to be the lawful owners of Plot No. 444 i Block "F", Tegeta Area, in Kinondoni, Dar es Salaam (herein the suit property) and that the 1st,2nd,3rd,4th,5th,6th,7th,8th,9th, 10th and 11th defendants are trespassers. The plaintiffs prays for the judgment and decree against the defendants jointly and severally as follows; a) A declaration that the plaintiffs are the lawful owners of Plot No. 444 Block "F" Tegeta Area, Kinondoni Municipality, held under Title No. DSM102419 and measuring 6,263.00 square meters, with effect from 1st April 2022 and that the 1st,2nd,3rd,4th,5th,6th,7th,8th,9th,10,and 11th defendants are trespassers. b) A declaration that the Use Groups and Use Class(es) of Plot No. 444 Block "F" Tegeta Area, Kinondoni Municipality, is Class B(c) as defined under the Registered Plan No. 26819. c) A declaration that the respective suspension of the Building Permit No. KFP/253/2022 by the 14th and 15th defendants respectively was totally illegal and void ab initio. d) An order for permanent injunction restraining the 1st,2nd,3rd,4th,5th,6th,7th,8th,9th, 10th and 11th defendants from interfering in any way with the plaintiffs' suit property. Jw I „■ 2 e) An order against the defendants, jointly and or severally, for immediate refund of expenses stated in paragraph 34 in the Plaint. f) A declaration against the 12th, 13th,and 14th defendants jointly and severally that their visit to the plaintiffs' suit property was not justified and hence led to the illegal restraint to the plaintiffs' efforts to develop their illegally owned property. g) Alternatively, and in the alternative only, that the defendants jointly and severally be permanently restrained from making any change of current use class of the suit property. h) Interest on (d) above at the rate of 12% per month from the date when the cause of action arose (18th August 2022) to the date of filing the suit to the date of judgment. i) Interest on (d) above at the rate of 12% per month from the date of filing the suit to the date of final settlement of the judgment debt. j) Interest on (d) above at the court's rate of 7% from the date of judgment to the date of final settlement of the judgment debt. k) General damages against the defendants jointly and or severally as shall be assessed by the Honourable Court. I) Costs of the suit and • 3 m)Any other relief(s) as the Honourable Court shall deem just and fit to grant. The defendants lodged their defence by filling their written statements of defence in which they vehemently denied the claims of the plaintiffs and put them to strict proof. In their written statement of defence, the 1st,2nd,3rd,4th,5th,6th,7th,8th,9th and 10th defendants stated that they are the beneficiaries of the suit property which is an open space and they have been enjoying the usage of the said open space since 1993. They prayed for the dismissal of the suit with costs. The 13th, 14th and 15th defendants also denied the plaintiffs allegations and stated that the plaintiffs have no legal capacity to claim on the suit property. They prayed that the suit be dismissed with costs. Initially, the 11th plaintiff entered appearance in court but he never filed his written statement of defence. After the time limit for filing the defence lapsed, the 11th defendant did not bother to file his defence and later for the reasons known to himself, stopped entering appearance in court despite of being aware of the suit. Therefore by the court order, the hearing of the suit went on in his absence. Before the commencement of the trial, four (4) issues were framed and adopted by the Court as the issues in dispute. They are:-Jw H r 4 1. Whether the plaintiffs are the lawful owners of the suit premises referred as Plot No. 444 Block F, Tegeta Area, Kinondoni Municipality, Dar es Salaam with CT No. DSMT102419. 2. What is the lawful use of the suit premises? 3. Whether the Certificate of Title No. DSMT 102419 with square metre 6263 was lawfully procured. 4. What are the reliefs entitled to the parties? At the hearing, the whole case has three witnesses who adduced their evidence. The 1st plaintiff Willy Nyakalilo Kussaga was the sole witness for the plaintiff who tendered 26 Exhibits. On the part of the defendants, the 1st - 10th defendants had also one witness i.e. Edgar Manyanya, the 1st defendant who testified as DW1. On the side of 12,13th 14th and 15th defendants, a sole witness one Kajesa Minga, A Land Officer from the Commissioner for Lands, testified as DW2. The defence has a total of three (3) exhibits. After hearing, the parties through their advocates filed their final submissions which I have taken into consideration while determining the matter. I will analyse the evidence adduced by parties while determining the issues. 5 The first issue is whether the plaintiffs are the lawful owners of the suit premises referred as Plot No. 444 Block F, Tegeta Area, Kinondoni Municipality, Dar es Salaam with CT No. DSMT 102419. Here it was the duty of the plaintiffs to establish that they are the lawful owners of the suit land. It is the cardinal principle of law that he who alleges must prove. This principle is embedded under Section 110(1), (2) of the Evidence Act, Cap. 6 R.E 2022 which provides; 110(1); whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 110(2) when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. In civil cases, the law places a burden of proof upon a person who desires a Court to give judgment in his or her favour and such a person who states the existence of facts has to prove existence of those facts. Such fact is said to be proved when in civil matters, its existence is established by a preponderance of probability. (See the decision of the Court of Appeal case of Ernest Sebastian Mbele vs. Sebastian Sebastian Mbele, Civil Appeal No.66 of 2019 CATIringa (Unreported).Jw q ■ 6 According to the facts pleaded and evidence tendered in this court, the plaintiffs' claims to be the lawful owners of the disputed plot as described hereinabove. Through the sole witness, PW1, the plaintiffs set to prove that they were indeed lawful owners of the disputed plot. In his evidence, PW1 testified that he and the 1st plaintiff who is his wife, bought the disputed plot from one Nurdin Ally on 06/02/2009 for TZS 3 Million. That they entered and signed a sale agreement before an advocate/Commissioner for Oath. PW1 produced the sale agreement which was admitted as exhibit Pl. The sale agreement shows that on 06/02/2009, Nurdin Ally sold the disputed land located at Plot No. 444 Block F, Tegeta Area, Kinondoni Municipality together with the improvements thereon. He produced also a Deed of Transfer as exhibit P2 but according to the terms of the sale agreement, the Deed of Transfer was subject to the consent of the Commissioner for Lands. To show that the vendor Nurdin Ally was the owner of the disputed plot, PW1 also produced a copy of the Letter of Offer issued by the Ministry for Land to Nurdin Ally dated 01/6/1989. The Letter of Offer admitted as exhibit P3 shows that Plot No. 444 Block F, Tegeta, Dar es Salaam was granted to Nurdin Ally for a term of 99 years from 01/4/1989. 7 After that it seems that the dispute arose between the vendor and purchasers which witnesses several suits being instituted in courts of law over the disputed plot. The evidence shows that Nurdin Ally, the vendor instituted a suit in this Court which is Land Case No 70 of 2011 against William Kussaga. According to the judgment of this court which was delivered on 04/5/2015 which this court in this instant matter has taken judicial notice, the parties Nurdin Ally and William Kusaga entered a sale agreement whereby Nurdin Ally agreed to sale a piece of land covering 800 square meters. In the suit, Nurdin Ally was claiming back the disputed plot after alleging that the defendant William Kusaga has failed to honour their agreement. Nurdin Ally was seeking for the court order to compel the purchaser/defendant to hand over all the relevant documents of the disputed plot. This court disregarded all the claims by the then plaintiff and dismissed the suit with costs. Following that decision, PW1 went on to process the transfer of a right of occupancy on the disputed plot. On 08/02/2022, an authorised officer gave an approval for a disposition of the right of occupancy jointly to the plaintiffs. The certificate of approval was produced in court by PW1 and admitted as exhibit P6. On 01/6/2022, the Registrar of Titles issued a 8 certificate of occupancy on the suit plot jointly to the plaintiffs as seen in exhibit P8. Therefore, according to the evidence adduced by the 2nd plaintiff both orally and by documents produced in court and admitted as exhibits, Plot No. 444 Block F, Tegeta is registered in the names of Janeth Nyakalilo Kussaga and Willy Nyakalilo Kussaga as joint tenants for a term of 99 years started from 01/4/2022. The evidence also shows that the previous owner of the disputed plot was Nurdin Ally whose ownership was proved by a Letter of Offer issued to him by the Ministry for Lands hence it is my finding that Nurdin Ally, the vendor had a lawful title to pass to the current owners. On the other side, the 1st,2nd,3rd,4th,5th,6th,7th,8th,9th and 10th defendants claim that the disputed plot is an open space designated for social activities and them being among the residents of Tegeta Masaiti where the disputed plot is located, have an interest over it and are the beneficiaries of the said open space. In the evidence adduced by the sole witness of the 1st,2nd,3rd,4th,5th,6th,7th,8th,9th and 10th defendants, Edgar Manyanya as DW1 testified that the disputed plot was planned by the Government as a recreation area, a public space. He said that they were told by the mandated authorities that the area is an open space. He named those 9 mandated authorities to be Ministry for Lands and Kinondoni Municipal Council. DW1 said further that Nurdin Ally emerged claiming that the disputed plot is his farm. That the 1st -10th defendants followed up the matter to the Ministry for Lands and the Assistant Commissioner came at their area and informed them that the disputed plot has been planned for public use. To prove his claims, the witness produced two letters which were admitted collectively as exhibit DI and D2. The letter exhibit D2, it is dated 03/02/2011 and the author is the Commissioner for Lands, Ministry for Lands. It was addressed to Luguru &Co. Ltd. To sum up, the contents of the letter shows that the Commissioner for Lands acknowledges the sale of the disputed land from Nurdin Ally to the plaintiffs. This letter states at the last paragraph thus; "Hivyo kwa barua hii Ofisi ya Kamishna wa Ardhi inapenda kuwafahamisha ha/i ha/isi i/iyopo sasa ni kuwa ndugu NURDIN ALL Y ameuza kiwanja hiki kwa Ndugu WILLY KUSAGA na JANETH NYAKALILO KUSAGA as 'Joint Occupiers'. The contents of the second letter, it is dated 14/12/2006. The author is the Director of Development of Settlements, Ministry for Lands, writing to Nurdin Ally, seeming to respond to the previous letter written by Nurdin Ally about the disputed plot. The contents of the letter states that io the Plot No. 444/F which was allocated to Nurdin Ally, does not show any use of the land. That the lawful use of the said plot are shown in the Deed Plan No SSP/1/15/589 which is Block G. That the use of the said land is for public use. For easy of reference, I shall reproduce the paragraph in the second letter as follows; "Baada ya kufanya uchunguzi wa kina, tumegundua kwamba eneo u/i/opewa kama kiwanja namba 444/F, katika mchoro wa Mipangomiji hauonyeshi matumizi yeyote ya ardhi. Matumizi haiaii ya kiwanja hicho yanaonyeshwa kwenye mchoro namba SSP/1/15/589 ambao ni kitaiu G. Matumizi husika ni pamoja na huduma za jamii kama zima moto, poiisina burudani..." (emphasis added). The above letter seems to suggest that the use of land on the disputed land is not shown in the deed plan but it is shown in the deed plan of Block G which is a public space. Here the questions which arise are; is Block F the same as Block G? Are they two different Blocks? How can the use of land of the plot located in Block F shown in the deed plan of Block G? I expected all these questions to be answered by the witness from Land Authorities, the Land Officer Kajesa Minga who testified as DW2. In his evidence, DW2 admitted that the disputed plot was granted to Nurdin 11 Ally as per the Offer Letter which the court was shown the original one from the office of the Commissioner for Lands as the plaintiff has already produced the photocopy as Exhibit P3. He said that the use of the said land was for residency. DW2 said that in 2009, the Office of the Commissioner received the documents of request for transfer of ownership from Willy Nyakalilo Kussaga. That when their office was in the process of transfer, there emerged dispute between Nurdin and Willy Kussaga whereby several suits were instituted. That in 2019, the Office of the Commissioner for Lands received a letter form Nurdin Ally informing them that he lost the case in court hence he was vacating the disputed plot. He produced the said letter which was admitted as Exhibit D3. I have read the contents of exhibit D3 which indeed shows that Nurdin Ally reluctantly, following execution No. 08/2019 he was vacating the plot. The letter was addressed to the plaintiffs and copied to the Commissioner for Lands. DW2 said further that there is no any record on change of use of Plot No. 444 Block F, Tegeta. That until now, it is for residential use. He explained further that according to the Title issued to the plaintiffs (which was admitted as exhibit P8), it shows the use is for housing estate. The 12 witness said that in their records, there is no record to show that there was a change of the disputed plot from the residential to housing estate. In cross examination, DW2 was asked about the contents of the second letter exhibit Pl, he stated that it is not true that the use of the disputed land was for social use and no any plan map/ deed plan has been produced to prove that. Answering the question for clarification from the court, DW2 stated that there is Block G which shows that the area is for social services but Plot No. 444 Block F was for residential purposes only. From the evidence of the parties, as of now the disputed plot is lawfully registered jointly to the plaintiffs and according to the evidence of DW2, a Land Officer, it is for residential use only. DW2 told the court that there was investigation on fraudulent acts surrounding the process of registering the disputed plot to the plaintiffs and that his office was preparing to revoke the Title. However, the court was not told the outcome of the investigations which were purportedly undergoing/ carried by the investigating organs including PCCB. The witness did not told the court the conclusion of the investigation and whether it was proved that indeed there was fraudulent acts done by the 13 plaintiffs. And as of now, the revocation has not been done hence the ownership is still in the name of the plaintiffs. The defendants did not file a counterclaim in which they could have try and prove the claimed fraudulent acts. Furthermore, the 1st-10th defendants, the onus being on them to prove that the disputed land is for public use (open space), they failed totally to establish their claims. The court was not told the location of this Block G which was claimed to be an open space for public use as seen in the second letter as exhibit DI collectively. The Land Officer denied the claim of the 1st-10th defendants that the disputed plot was the public one, but added that it was Block G which is an open space. In the circumstances, the first issue is answered in affirmative. The plaintiffs are the owners of the disputed plot. The second issue is what is the lawful use of the suit premises? The answer to this one is clear from the evidence which I have already analysed herein above. The 1st -10th defendants claims that the disputed area is an open space. However, I have already found that there is no evidence that the disputed area described as Plot No. 444 Block F is designated as an open space for social services. The available evidence which was adduced by DW1 was that the area was declared the open space by the authorities. However there is no any document to show a 14 formal statement on that. The letter which was produced as exhibit DI stated that the disputed plot was not designed for any use, but the use was planned at Block G where it was designated for public use. DW2 insisted in his evidence that the disputed plot from the beginning it was designated for residential purpose and the act of the plaintiffs to change the use into estate housing was not blessed by the office of the Commissioner for Lands. DW2 stated specifically that the open space was Block G. Taking into consideration of such evidence from the defendants themselves, the second issue is answered that the lawful use of the disputed plot was certainly not an open space but according to the Land Officer from the Office of the Commissioner for Land, the use was for residential purpose. The third issue is whether the Certificate of Title No. DSMT 102419 with square metre 6263 was lawfully procured. In this, the plaintiff testifying as PW1, said that all the procedures for acquiring the Certificate of Title on the suit premises was complied with and that is why he was issued with the said Certificate of Title which he produced and it was admitted as exhibit P8. 15 At the same time the Land Officer DW2 said that there was cheating/ fraudulent acts from the plaintiffs while processing for the Certificate of Title and the allegations were tabled before the PCCB and other institutions. That following those cheating acts by the plaintiffs, the office of the Commissioner was undergoing rectification process on the Title of the disputed plot when this suit was instituted. DW2 said that the Title exhibit P8 shows that the disputed plot has the size of square meters 6263 while according to their records, the disputed plot has a size of 800 square meters. Exhibit P21 is a letter from Willy Kussaga the 2nd plaintiff writing to the Commissioner for Land requesting for the correction of the data on the disputed plot which shows that the size of the disputed plot was 800 square meters. The plaintiff requested for the changes to show that the data of the area to be 6,268 square meter and the use is for housing estate. I find that DW2 did not told the court the cheating/ fraudulent acts on the suit premises which was being investigated by the PCCB and other organs. However, there is a fact which is clear that the disputed area previously had the size of 800 square meters. This is shown not in the sale agreement between the plaintiffs and one Nurdin Ally but in the judgment of this court in the case of William Kusaga. The judgment was 16 received by the court as judicial notice 1. It shows that Nurdin Ally sold a piece of land measuring 800 square meter to William Kusaga. Since there is no any other document which shows the actual size of the suit premises except for the above said judgment, and since it is not shown whether the Commissioner for Lands received the letter of the 2nd plaintiff (exhibit P21) and acted upon it, it is my view that this alone does not support the claims that there was cheating /fraudulent acts by the plaintiffs. But it is my view that there are unanswered questions on the actual size of the disputed land and how it changed from square meters 800 as per the Judgment of this court, to square meter 6,263, then it is the duty of the land authorities to make an inquiry on that. The standard of proving fraudulent acts in the civil cases is much higher beyond the normal standard of balance of probability. Since the defendants did not provide any document to prove that the procurement of the Certificate of Title was unlawful, then this court cannot declare the process of the requesting and procuring the Certificate of Title to be unlawful. It is upon the 13th defendant, the Commissioner for Lands and other land authorities to make investigation on how the Certificate of Title, Exhibit P8 was processed and issued to the plaintiff showing the changes of size 17 and use. This is within the authoritative powers of the 13th defendant which is provided by the law. As for now by this court, the third issue is answered in affirmative. The fourth issue is on the reliefs entitled to the parties. In the plaint, the plaintiffs have prayed for several reliefs. The court grant the first relief and hereby declare the plaintiffs the owners of the disputed land and the 1st -11th defendants as trespassers. On the second relief, the plaintiffs are praying to the court to declare that the use of the disputed plot is class B. However, the court refrain from the said declaration for the reason that the plaintiff did not produce evidence to establish the type of use or class of the disputed plot, and the same goes to the third relief about the building permit suspension. The court refrain from declaring the suspension of building permit illegal since the plaintiff's evidence did not prove the claim. The court grant the relief number (d) in the plaintiff, and hereby enters an order of permanent injunction restraining the 1st -11th defendants from interfering in any way with the suit property. The court refrains from granting any of the alternative reliefs which the plaintiffs seek. The reason is that first, the court cannot issue an order against change of use of land plans because doing so will be interfering 18 with the land plan by the land authorities. Second on the claim of damages, the plaintiffs have not succeeded to prove to the court how they have suffered damages as they claim. To sum up, the court enters judgment in favour of the plaintiffs by declaring them the owners of the suit property and entering permanent injunction against the lst-llth defendants. Because of the nature of the suit, each party shall bear its own costs of the suit. Right of appeal expressly explained. It is so ordered. JUDGE 18/10/2024 19