20170830 TZHC Mwanza

_I _: /./IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA LAND CASE NO 44 OF 2014 KELVIN DERNARD BWIRE } (Administrator of the Estate of the Late Prisca Chamba) ••••••••••••••••••••• PLAINTIFF VERSUS TANZANIA ELECTRI SUPPLY COMPANY LTD .. DEFENDANT HEMED OMARY LWEISHAGWA ...................... 3Ro PARTY JUDGMENT 03.07.2017 & 30.08.2017 MatupaJ. The plaintiff is claiming compensation in respect of a piece of land, which he was claimed it was acquired by the first Defendant and, on which, a substation was constructed by the defendant. The defendant at first denied acquiring the land. Subsequently, they did not persist with the denial. Instead, they averred that the same was acquired from the 3rd party, who was 1 <fll /,to- paid the compensation. The third party was joined in the pleadings. He did not deny that a certain piece of land was acquired and that he was compensated for it. However, he claimed that the said land on which account he was compensated, was his. At the close of the pleadings, the following issues were framed. 1. Whether the person who was compensated for the land was the owner of the land. 2. To what reliefs are the parties entitled. At the trial, the plaintiff was represented by Ms. Bertha Benedicto who was assisted by Mr Kitale advocates, the defendant was represented by Mr. Kyalukulwa and was assisted by Ms. Juliana and, Mr Butambala assisted by Bernard Musalaa represented the Third Party. The plaintiff called two witnesses in a bid to prove her case. These were Richard Bunyoga Mugabo PW1 and Kelvin Bernard Swire PW2. 2 According to Richard Bunyoga Mugabo PWl, who happened to be a paternal brother to the late Prisca Chamba, the deceased sister asked him to find her a plot of land at the place he was living, which he did and informed her. The land he found belonged to Sanane Alex Simeo. He bought it at the price of shillings forty thousand only. The sale was witnessed by the Street Chairperson one Gasper Lazaro Ngwiji, in the presence of one Thomas. The witness could not recall the second name of the witness. The sale agreement was admitted and was marked "ERxh. Pl". He gave the sale agreement to the sister, sometimes in 1996. On cross examination, he described the land as being low density equivalent of the plots which are surveyed by the City council. Also, he could not describe his neighbors. After the plot of the land was bought, he continued to tender for the land, planting cassava on it. Sometimes in 2013, the said Prisca Chambo came home with the intention to start construction. When they went to the land, they found that the 3 I► foundation which had been erected on it was demolished and the place .was fenced off. He could not know off hand who had demolished the foundation. They enquired from people around the place on who could have demolished the foundation, they learned that it was Tanesco, the Defendant which did that. Since the late Prisca was residing at Dar es Salaam, it was resolved that she should follow up the matter there. In cross examination by the learned counsel for the Defendant, he said that he did not follow up the results of the inquiries the sister made at the headquarters of the defendants. The witness also denied knowing the third party. He denied to have seen him as his neighbor for all the time he was planting cassava at the area. He disassociated himself completely from the third party, as a neighbor or a contending occupier of the land in dispute. 4 Kelvin Bernard Bwire claimed that he is the legal representative of the later Prisca Chamba who was his biological mother. He came into the picture after the death of his mother. He filed for administration of the estate of his deceased mother and was appointed. It was at this time that he started looking for the papers and documents of value from the possessions of the mother in the process of collecting assets and liabilities of the mother. That is when he saw the letter from Tanesco, dated 3rd October, 2013. This letter was admitted without objection and was marked "exh. P3". He also came across a letter from WOLAC which was admitted and marked as "exhibit P2". According to the "exhibit P3", Tanesco admitted to have acquired the land. However, the letter intimated to the deceased Prisca that, one Hemed Omari Lweishagwa was compensated for the land she was claiming. This witness testified that he knew the area in dispute as he visited it thrice. For the first time he visited it in 1996 when he 5 came for the funeral of his relative, the late Chamba Bugabo. The next time he visited the area in 2008 and the last time he visited the area in 2014. According to him, on the area there was built a three bed room foundation. In 2008 there were timber trees which were grown on the area. -In 2014 there were trees which had grown up n the area. He estimated the size of the area as being 682M 2 • He sought to admit a copy of the letter of his appointment as the administrator of the estate of his deceased mother which was not objected to. Accordingly, the letter was admitted as "exhibit P4" On cross examination by Mr. Kyalukulwa, counsel for the . Defendant, this witness intimated that his deceased mother caused the land to be surveyed. This was in the light of the threat of invasion and in order to prevent the land from being sold off by con men. The survey was supervised by his mother. 6 Of essence from the cross examination is the fact that, the witness testified that Tanesco admitted to them that Hemed Lweishagwa was compensated for the area which belonged to them. He also conceded that he did not look at the list of people who were compensated. On further cross examination by Mr Butambala, the witness said that he was not told by his uncle that the land he bought was ever trespassed upon. He was asked a question suggesting that the land also belonged to Chisaka Sugabo his cousin. He denied that it did. This was all for the plaintiff as regards the issue of whether the person who was compensated for the land was the owner of the land. The defendant lined up three witnesses for the issue. These were John Simeo Chonja Dwl, Mukama Constantino Sululu Dw2 and Robert Bulahya DW3. 7 According to John Simeo Chonya a land surveyor employed by Tanesco, this witness explained the method of identifying the . owners of the land in dispute. It was his testimony that those eligible for compensation were identified by the street leadership. Each of the owners was invited to stand on his property. A form was generated, which identified the owners and it was signed by the witness on the behalf of the Defendant and Mtaa executive officer (henceforth to be referred to as MEO), signed on the behalf of the street government. The form was admitted and was marked "exh. Dl". According to his testimony, all those verified were paid their compensation by the Defendant through City Council. It was his testimony that Hemed Omar Lweishagwa was one of those persons who were listed in the payment schedule and was paid for a foundation listed in it after he was identified by the leadership. As regards he letter from Tanesco Exhibit P2 it was the testimony of the witness that it was written at the 8 WI headquarters of Tanesco without consulting him. He also admitted in court that before the exercise, he did not know the owners of the plots. They only became to be known after the exercise and identification by the leadership of the street. Mukama Constantine Sululu Pw2 was the MEO at the time. He participated in the valuation exercise. It was his testimony that the exercise was supervised by a representative from the City Council one Ismail Kalaghe, the representative of Tanesco one John S. Chonja and the MEO himself. According to this witness, there were nine persons who were identified for compensation. Our or them, two persons had foundations on their properties. One of the foundations belonged to Chisaka Mugabo and the other for one Omari Hemed Lweishagwa, the third party. The former, presented himself as a representative of the family of Renatus Mugabo. Nevertheless, he conceded that there is no indication in the form, that he was so representing the family of Renatus Mugabo. This witness further conceded that those who 9 efl represented others were shown in items number 4, 6, 7 and 9, they indicated so in their respective spaces in the 4th column. The third witness was Robert Petro Sulahya DW3, who was the ten cell leader of the place at the time. In essence, his testimony supported that of Mukama Constantine Sululu in as far as the representation of Richard Sugabo was concerned, but for the variation that he represented himself as representative of the family of Renatus Sugabo rather than Richard Sugabo. On the location of the area, the witness at first attempted to distinguish the location at Nyasaka as being different form Nyamuge. He explained that the land of the plaintiff which is claimed to be located at Nyasaka could not be at the project area which is at Nyamuge. However, when he was referred by the court to a similar sale agreement he witnessed for the third party, which was described to be located at Nyasaka and, which was subject of the same compensation in relation to Lweishagwa, he 10 agreed that the land in Nyasaka could as well mean that it was at Nyamuge. He claimed further that all the occupiers had customary rights and only Omary Lweishagwa bought the land from a third person. He admitted that he signed in the form on the behalf of the owner in line item number 4, in respect of Rukia Samira and that, there were nine persons who were compensated. On whether the plaintiff was compensated, he asserted that the family of Chisaka was compensated on the behalf of the family of Richard Bugabo, and that, he all along knew that the land which Chisaka was compensated, belonged to Richard Bugabo. Presently, the latter resides at Kiseke, and he has left behind his family. It was his testimony that he trusted that the land belonged to Richard, because all along the mother of Richard Bugabo was tendering for the land. It never occurred to him that the land belonged to any person other than Richard Bugabo. 11 As regards the third party Omary Hemed Lweishagwa, this witness said that he witnessed the sale of his plot of land although he was a leader of the nearby Nyasaka area because Paulo Samson, the Chairman of Nyamhuge was sickly. He was firm that following the sale of the land to Lweishagwa, he was never informed that the land had been resold. The evidence in regard to Omary Lweishagwa was simple. It was his testimony that he bought the plot of land for which he was compensated, from one Ngeleja. The said Ngeleja sold the land on the behalf of one Tabu Idebe. The sale was witnessed by Gaspar Lazaro, Bulahya and Yambo Misalaba. Gasper Gwiji was also present as the chairperson. The witness introduced the sale agreement as "exhibit TP-1." The latter witness also witnessed the valuation in favor of Chisaka Sugabo. The names of the witness as shown in exh "TP-1" and "Exh D-1" are the same, notwithstanding the difference in the interchange of names. He described the location of his land as being partly within and partly 12 outside the substation which was constructed by Tanesco. The testimony of this witness was corroborated by Gaspar Akilimali Lazaro Ngwiji DW4. From the foregoing long narration of the evidence, one thing is clear. There were nine persons who were compensated by Tanesco to pave way for the construction of the Substation. These are contained in Exh. D-1. These were namely Chisaka Mugabo, Omary Hemedi Lweishagwa, Peter Boniface Mhana, Rukia Sambila, Tombo Misalaba, Maritina Tobias Silvester Yambo, Suzana Simoni Makumiane and Cresensia Renatus. Two there is variation as to the name of the third party Hemedi Omari Lweishagwa and that of Omary Hemedi Lweishagwa who is listed in the schedule of payment. However there is adequate evidence from people who witnessed the sale of the land who came to testify in court, that the land that was compensated for was bought by him from one Ngeleja on behalf of Tabu Idebe. 13 4l --- The land which he bought had a foundation and it did not change hands after it was bought. Thirdly, it is not in dispute that there were two plots of land on which there was a foundation and which were a subject of compensation. One of them belonged to Chisaka Sugabo and the other belonged to Omari Hemed Lweishagwa or Hemed Omari Lweishagwa who claimed to be one and the same person. Further that, the latter admitted to have attended the valuation meeting and was compensated for the land he bought which as said, had a foundation. Four, One Chisaka Sugabo, who is the son of Richard Sunyoga Mugabe PW1 and therefore the niece of the late Prisca Chamba participated in the valuation and was paid compensation for another plot which had a foundation. Unfortunately, this person was not secured to testify and explain how he participated in the valuation exercise. However, Richard Bugabo, the father of the 14 --- said Chisaka Sugabo came to testify here in court. According to his testimony, there was only one piece of land on the area which belonged to the late sister. According to his description of the land, it had a foundation. This description, together with the evidence given by Kelvin Bernard Bwire PW2, John Simeo Chonja DWl, Mukama Constantino Sululu Dw2 and Robert Bulahya DW3, tallies with the description of the second plot which had a foundation and for which compensation was paid. The plot was one of the two plots which had a foundation on it. One of the plots belonged to the third party, and another to the plaintiff. From "exh. D1," the plots of land in which there was a foundation and, on which compensation was paid, was the plot for which Chisaka Mugabo received compensation and on the other, Omar Hemed Lweishagwa received compensation. Five, there is evidence from Robert Petro Bulahya DW3 and Gaspari Akilimali Lazaro Ngwiji Dw4, Omari Lweishagwa was 15 definitely paid compensation in relation to a plot of land which belonged to the third party himself, and not that which belonged to the plaintiff. Six, there is evidence from Tanesco headquarters of a letter which was admitted as exhibit P3, which was signed by Mhandisi Sadia S Mgonja. This letter intimated that the compensation I relation to the land in dispute was paid to the owners of the foundations who were mentioned in that letter as Chasika Mugabo and Hemed Omari Lweishagwa. For some reasons counsel for the defendant attributed the payment of Hemed Omary Lweishagwa, contrary to what the letter said. Reading the letter again, it clearly said that in fact, the compensation was paid to owners of the foundations and the two owners were mentioned by it. The intimation by the learned counsel for the defendant to seek indemnity by way of third party proceedings from Hemedi Lweishagwa alone, rather than the two 16 4( ---- Owners, is not bone out of the letter. The letter mentioned all the two owners of foundations who were paid compensation. Seven, there is evidence from Robert Petro Sulahya DW3 and Gaspari Akilimali Lazaro Ngwiji Dw4, to the effect that the entire neighborhood knew the land for which Chisaka Sugabo received compensation, belonged to the family of Sugabo. The presentation by Chisaka Sugabo that he was representing the family was not bone out of the form and was an oversight on the part of the witnesses. They all knew that the land belonged to the father, and yet Tanesco was not told of that reality. From the evidence on the record, it is quite clear that Tanesco followed the procedure for compensation. The leadership was fully involved in the whole process of identification and payment of the compensation. I find no reason to lay blame on the part Tanesco, as there is little they could do to mitigate the situation. 17 From the foregoing, it is my finding that the foundation which is the subject of the suit is not the one for which Hemed Lweishagwa was paid compensation. Since Chisaka was not called to testify, I will not make a finding against him. However, I can safely make a finding that, there was one more foundation for which compensation was paid and that is not the one which belonged to Omary Lweishagwa and for which the latter was compensated. From the evidence on the record, I can safely hold that Tanesco paid for all the plots of land it acquired, and that all those who were paid, are documented. It is therefore open to the plaintiff to pursue any of them as they can deem appropriate. From the state of the claim as it is, I am unable to pronounce myself more than what I have done. In the result, I will answer the issue whether the person who was compensated the land was the owner in so far as it relates to 18 . . the third party, in the affirmative. That is, for avoidance of doubt, Hemed Omary Lweishagwa was lawfully paid compensation for his own land. I· therefore dismiss all claims by the Defendant against him with costs against the Defendant, and he is discharged from these proceedings. From the evidence on the record, it is my holding that Tanesco paid compensation for all the land it acquired for the construction of the substation at Nyahunge. As to the reliefs to which the parties are entitled, from the decision I have made except as against the third party, all claims against Tanesco are hereby dismissed. However, since the case was filed pro bono, I will not make an order as to costs for the plaintiff. Date at Mwanza, this 30th da of August, 2017 S.B.M.G. Matupa I Judge 19 , Date: 30.08.2017 Coram: Hon. Matupa, J Plaintiff: Steven Kilali & Berther Benedict Advocates for the plaintiff Defendant: 1st Juliana Third party 2nd Mr. Butambala Advocate B/c: Kaijage Steven Kilali: The case is set for judgment and we are ready. Court: The judgment was delivered in chambers, in the presence of the parties and their respective advocates this 30th day of August, 2017. Right of appeal fully explained. s.~I. . Matupa Judge AtMwanza 30th August, 2017 20