kihonda pitsa makaroni industries limited vs br shindika ta stella secondary school 2021 tzhclandd 6795 25 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 197 OF 2005 KIHONDA PITSA MAKARONI INDUSTRIES LIMITED................. PLAINTIFF VERSUS B.R. SHI NDIKA t/a STELLA SECONDARY SCHOOL................................................DEFENDANT JUDGMENT A. MATUMA, J: The Plaintiff is suing the defendant for among other orders, a declaration that she is the lawful owner of Plot No. 194 'B' Mbezi Industrial area registered under title No. 25837 in her name Kihonda Pitsa makaroni Industries Limited. She acquired the ownership thereof way back in 1981. On the other hand, the defendant claims to have been owning the herein above-named land sine the 2nd day of June, 1977 under deemed right of occupancy. At first, this suit had undergone a full trial through three different Judges, namely; Rumanyika, J. Ndika, J. (as he then was) and Mkuye, J. as she then was. My learned brother Rumanyika, J. heard two witnesses for the Plaintiff, Hon. Justice Ndika took over and recorded the evidence of the third witness for the plaintiff and that of the first witness for the defendant which was given in chief. Then it was my learned sister Mkuye, J. as she then was^wfioproceeded with the matter recording the evidence of DW1 in the cross examination and subsequently other witnesses for the defendant. Thereafter, she composed and delivered her considered judgment in favour of the plaintiff. The defendant was aggrieved with the judgment hence an appeal to the Court of Appeal of Tanzania, Civil Appeal no. 128 of 2017. On appeal against such judgment and decree which were issued in favour of the plaintiff, the Court of Appeal observed some procedural irregularities particularly on the change of assessors during trial which it considered incurable vitiating the proceedings. It thus invoked its revisional powers under section 4(2) of the Appellant Jurisdiction Act, Cap. 141 R.E. 2019 and nullified the proceedings of this Court from where hon. Justice Rumanyika ended onwards. In that regard the judgment of this court by Mkuye, J and its Decree were accordingly quashed and set aside. That was Civil Appeal No. 128 of 2017 which was heard and determined on 19//06/2021 by S.A. Lila (JA), L.J.S. Mwandambo, (JA), Kerefu (JA). It is from such historical back ground I was assigned this matter to continue with the trial of this suit because my learned brother Rumanyika, J. is no longer stationed in this registry and could not be procured without undue delay to finish the trial of this case as expedite as it was ordered by the court of Appeal in its above-named decision. Since my learned brother Rumanyika, J in the course of trial he sat with two lay assessors; Kimolo and Mtumba, I was obliged to sit with them to finalize the trial but unfortunately, they could not be found and their whereabouts are unknown. It might be becausejhe-matter has taken 2 many years almost nine years since their last sitting in this case on the 19/04/2013.1 had therefore to proceed on my own as it was held in the herein above-named appeal between the parties herein at page 12 when the Court of Appeal held; " Since the trial began with Kimoio and Mtumba as assessors when PW1 testified, then in terms of the law applicable at that time, the trial court was bound to proceed with them till finalization of the case and in the event either of them was unable to attend court, the trial court was obliged to proceed with the remaining assessor and, in the event both assessors could not turn up, obviously the trial Judge was bound to proceed atone to the conclusion of the case instead of sitting with a new set of assessors as it happened in this case" Now back to the dispute between the parties they had agreed during final pretrial conference that four issues be determined to resolve the dispute between them arising from the facts of the matter as I have briefly stated herein above. The agreed issues were; i) Whether the defendant was in occupation of the disputed plot under a deemed right of occupancy at the time the plot was allocated to the plaintiff in March, 1981 and if so whether the defendant was fairly compensated for the existing unexhausted improvement. ii) Who is the lawful owner of the suit plot? Hi) If the plaintiff is the lawful owner whether the defendant's deemed right of occupancy was extinguished by an offer of a right of occupancy granted to the^Plaidfiff on 27//03/1981. 3 iv) What reliefs are the parties entitled. At the hearing of this suit both parties were dully represented by learned counsels whereas the Plaintiff was represented by Mr. Buberwa learned advocate while the defendant enjoyed the services of Mr. Joseph Rutabingwa learned advocate. The Plaintiff brought a total of three witnesses namely Nitesh Patel (PW1), the general manager of the Plaintiff, Juma legela (PW2), the assistant registrar of titles from the Ministry of Land and Human Settlement, and Hellen Philip (PW3) the Land officer from the Ministry of Lands. PW1 testified that the suit land was allocated to his company way back in 1981 and a certificate of occupancy to that effect was dully issued. A duplicate copy of such title deed was put in evidence as exhibit P3 by PW2 who corroborated the Plaintiff's evidence that to date the land register reads the Plaintiff as the sole owner of the property in dispute without any encumbrances. PW2 however conceded that his office is not concerned with land allocations nor he knew how the Plaintiff came to possess the property. PW1 also averred that they paid compensation to the existed occupant as it was assessed by the government although he had no documentary evidence to that effect nor had known exactly the sum allegedly paid as compensation. The Defendant's summary evidence through her witness DW1 was that; she obtained the suit area on 2/6/1977 from the village Authority of Mtongani Ujamaa Village Kunduchi within Ki nondoni,Di strict. 4 There are three documents to that effect; exhibit DI the defendants letter to the Village authority on the 20/04/1977 applying for land for both cultivation and residential, exhibit D2 the Village authorities reply dated 25/05/1977 informing the defendant that his request for allocation of land has been accepted, and exhibit D3 which is a Certificate for deemed Right of Occupancy issued to the defendant by the Village authority on the 02/06/1977 and there was no any serious dispute against these documents by the plaintiff serve for minor cross examinations which did not affect their validities. That takes me to the determination of the issues raised by the parties for determination. In the first issue; it is whether the defendant was in occupation of the disputed land under a deemed right of occupancy at the time the plot was allocated to the plaintiff in March, 1981 and if so whether the defendant was fairly compensated for existing unexhausted improvements. As I have indicated herein above, the defendant through his oral and documentary evidence established to the satisfaction of this court that he owned the suit area under the deemed right of occupancy since 1977 prior to the Plaintiff having been reallocated it in in 1981 under the granted Right of Occupancy. I am aware that Mr. Buberwa learned advocate for the Plaintiff cross examined DW1 for the defendant with the view of impeaching his evidence in relation to the allocation of that land to him in 1977 but I find that the answers of DW1 overwhelmed the questions put to him. There is both oral and documentary evidence from the defendant which was not seriously contested as I have already explained above. Such evidence is very clear that the defendant was allocated the suit area by Mtongni Ujamaa village on 2/6/1977 following his application. Exhibit DI the Defendant's application letter to Mtongani Ujamaa Village dated 20/04/1977 reads; "MAOMBI YA SHAMBA LA KULLMA NA KUJENGA NYUMBA N.K. KATLKA KDIJICHAKO CHA UJAMAA. Husika na kichwa cha habari hapo juu. Mwenyekid naomba shamba kwa ajiii ya kilimo cha kufa na kupona Pamoja na kujenga nyumba na ufugaji wa aina mbalimbali. Natanguiiza shukrani endapo ombi langu Htafikiriwa. Wako katika ujenzi wa Taifa B.R. Shindika Sdg. " On 25/5/1977 the village authority responded granting the prayer vide exhibit D2 supra; "...Baada ya kufikiriwa kwa maombi yako, nachukua fursa hii kukujulisha maombi yako yamekubaiiwa na unakabidhiwa shamba ekari kumi na mbiii uziiendeieze kwa kilimo na makazi n.k.... Unatakiwa kuja ofisi ya Kijiji kuchukua Had yako ya shamba ya jina iako na kusaini had hiyd'. Then it followed the title deed (demand) exhibit D3 which is titled "HATIMAALUMU YA KUPEWA SHAMBA LA KULIMA EKARIKUMI NA MBILINDUGU B.R. SHINDIKA ". 6 This defendants evidence was in material particular corroborated by the Plaintiff through PW1 who gave evidence to the effect that the suit area was not a bare land or free from occupation by anybody at the time she was allocated. That is why in her evidence the Plaintiff clearly testified that the suit area at the time she was allocated had some developments such as coconut trees and fruit trees and that they had to pay compensation to the existed occupant. The plaintiff did not however give any evidence contravening that of the defendant that it was her who had planted those crops with several other developments thereat, nor that the existed occupant whom they had to pay compensation for the unexhausted developments was someone other than the defendant. I therefore conclude part of the issue to the effect that the defendant occupied the suit area under deemed right of occupancy before the same was later allocated to the plaintiff. About the second part of the issue as to whether the defendant was paid a fair and adequate compensation on the improvements she had made on the suit area, I find it not, despite the fact that PW1 alleged in his evidence that the compensation was dully paid. PW1 testified; "Before the plot was allocated to me, we paid such sum as per government assessment to compensate existing occupant." But when this witness was thoroughly cross examined on the evidence of such alleged compensation, he:had no option rather than telling the truth he knew; 7 "I do not have the evidence. I was outside of the country by then can't know the amount. The person who would probably know is already dead. He is Mr. Narendra V. Pate/ he passed away in 2001". When he was further cross - examined on whether there is any record in his office for such compensation he said there was none but the issuance of the certificate of title to them implies that the compensation was dully paid; "As such on this aspect there is no record in the company. As we have the title, it is assumed that the sum was madd'. With this evidence of the Plaintiff herself, there is no clear evidence that the compensation was made and if so, that it was the defendant who was given such compensation. The Plaintiff's evidence was speculative and conjectures than the reality. It has already been held in various cases that assumptions, speculations, and conjectures have no room in Civil Litigations. I had held so in the case of Hamis Nkuluzi vs Mbezi Auction Mart Company Ltd and 2 others, (DC) Civil Appeal No. 5/2019 (High Court at Kigoma), I reiterated as such in Denis Elias Nduhiye versus Lemina WHbard, Juvenile Civil Appeal No. 1/2019 (HC) at Kigoma. You may also see the same holding in Materu Leison and J. Foya versus R. Sospeter (1998) TLR 102 (HC). I therefore conclude the first issue on the second part that the defendant was not compensated for the unexhausted improvements on the suit area by the time the same, was reallocated to the plaintiff. The 8 question of whether there was fair compensation cannot arise as there was no compensation at all. The Plaintiff through PW3 testified that the responsible person to pay compensation is the acquiring authority. She did not want to speak straight that the acquiring authority is the government wherever her advocate questioned her as such tending to establish that it was the government who ought to have been arraigned for compensation. In the instant matter the government cannot be said to be the acquiring authority as the suit land was not taken by the government nor the plaintiff brought any evidence to the effect that there was acquisition of that land by the government. Rather it is in evidence that it was the Plaintiff who acquired it and applied to the Commissioner to be allocated. The plaintiff was thus the one responsible to pay the requisite compensation and PW1 in fact conceded as such when she stated that they paid compensation to the existed occupant although there was no positive evidence for such alleged compensation. I now move to the third issue before determining the second one. The third issue is; whether the defendant's deemed right of occupancy was extinguished by an offer of a right of occupancy granted to the plaintiff on 27th March, 1981. In law, both deemed right of occupancy and granted rights of occupancy are protected. See section 4(3) & (6) of the Land Act, Cap. 113 R.E 2O19.The two classifications and tenure of land cannot however co-exist. The deemed right of occupancy will exist on un-surveyed land while granted right of occupancy will only exist on an urban planning area, the surveyed land. When the land is surveyecPas^an urban planning area, 9 the granted right of occupancy will always extinguish the deemed right of occupancy. That was the position stated in the case of Mwalimu Omari and Another v. Omari Bilal [1990] TLR 9. But that is a technical aspect of the law. Substantially, the law provides that granted right of occupancy cannot extinguish the deemed right of occupancy unless a fair and adequate compensation is made to the occupant under the deemed right of occupancy for the developments exhausted when after the survey and urban planning the plot or plots born out is or are not granted to the existing occupant by whatever reasons. If the compensation is not made/given, the granted right of occupancy to whoever would be invalidated and declared illegal. In the case of Village Chairman - KCU Mateka v. Anthony Hyera [1988] TLR. ISSthis court (Kazimoto, J.) made a lucid decision which I fully subscribe in the instant matter that common sense and equity forbids the land allocating authority to re-allocate land within its jurisdiction which is under the possession and development of another without prior consultation to the person in possession of the said land. My learned brethren Kazimoto, J. as he then was went on that allocation of land which is in possession of others would not only bring lawlessness and anarchy in the society but would also retard the developments of the society. In the like manner, the defendant having been allocate the suit land by the Village Authority, developed it by planting various permanent crops and fruits trees, he also built some structures thereat and has subsequently erected several other structures for school businesses. He tendered exhibit D4 the valuation report to thejeffect that the value of io the unexhausted improvements/developments on the suit land up to 06/01/2006 was Tshs. 262,300,000/=. I have no good reason to disbelieve the Valuation report as it was made by the government valuer and approved by the Chief Government Valuer. With all these developments made by the defendant in the suit land prior to its re-allocation to the plaintiff, it was unfair, illegal and oppressive to deprive him ownership of such land without prior consultation and pay of a fair and adequate compensation. I am aware that the plaintiff tried to put forward an argument that the current structures on the suit area were erected by the defendant recently as by the time she was allocated the same such structures were not there. I have two observations on this. First; that PW1 for the Plaintiff is not a person to trust because it is on record that he gave two contradicting versions on a very material fact in relation to the whereabouts of his original title deed. At first on page 36 of the proceedings he told the court that such title deed was stolen; "Our office was on 4/4/2010 broken and things stoien...among others certificate of title" But on page 41 when he was asked a question for clarification the story he gave was different as he stated that they surrendered the certificate of title and it is being held by the land authority because of this case; "There was a Public announcement that occupants of the Mbezi plot surrender the title deeds, it could be possible that my title deed is retained quite in connection of this.. " i A witness who contradicts himself on material facts and evidence is not much to trust and his evidence should be taken with a great caution to avoid the possibility of being taken up by false testimonies thereby denying the rights of a deserving party to the suit. See; Rogers Andrew Lumenyela v. Masaka Mussa & 2 others, land case no. 4 of2020 (HC at Kigoma). Even if I have to agree with the Plaintiff that the structure developments on the suit land were made recently and not at the time she was allocated such land, still the fact is that there was no compensation even to the developments made prior to the reallocation which the Plaintiff herself acknowledged to have been there. Also no evidence was given by the plaintiff to the effect that the occupant of the suit area, the defendant for that matter, was estopped from further developments of the same either by reason of reallocation, deprivation of the land or payment of compensation for the existing developments with the view that she gives vacant possession. In that regard, the defendant had no any encumbrance to make further developments on the suit area as she did up to the 19th April, 2006 when both parties agreed before the Court to maintain the status quo of the suit property without making further developments therefrom. As I have said earlier, it was unfair, illegal and oppression to deprive the defendant ownership of his lawful land without prior consultation and pay of a fair and adequate compensation. In fact, I had time to deal with the matter of similar nature in the case of Judith Yoas & 15 others v. Kibaha Housing- Cooperative Society Limited (KIHOCOSO), Land Appeal No. 19 of 2017(HC land Division-Dar es salaam) in which I condemned the characteristics of colonialism among them land degradation to exist within land allocating authorities. I had the following to say in the said Judith Yoas & 15 others' case; .. to grab one citizen a land and give it to the other without justifiable cause, the same amounts not only to discrimination but also to oppression, land degradation and humiliation which were among the characteristics of colonialism" Likewise in the instant matter, so long us the defendant was not consulted prior to deprivation of his lawfully possessed land, and was not paid any compensation of the developments he had made on the land, the land allocating authority which allocated the suit land to the plaintiff acted as a colonial master and the plaintiff stood as a colonialist who pretended much better in the society to possess the land than other citizens like the defendant. I reiterate what I remarked in Judith Yoas' case that; "Colonialism has gone, let it go forever" Even the court of Appeal of Tanzania has in a number of cases condemned the habit of depriving some individuals' rights to land to protect the interests of others contrary to the public interest. Thus, for instance in the case of Agro Industries Limited vs. Attorney Genera! [1994] TLR 43, the court of Appeal of Tanzania held against arbitrary decision of those in authority to deprive land from one person for another which is not in the public interest. It held that the subsequent person in the allocation becomes a trespasser be it a public enterprise, a private enterprise or an individual. 13 In the instant suit the allocation bf the suit land to the plaintiff which was in occupation of the defendant was not done in the Public interest but to protect the interest of a trespassing private enterprise. It is upon such unbearable actions of land authorities, the Court of Appeal in the above-named case of Agro -industries held that; " Public interest requires that legal property rights should be protected against trespassers..." In compliance to the directives of the superior court on our beloved land of Tanzania, I stand firm protecting the defendant's rights over the suit land and proceed to conclude the third issue that the defendant's deemed right of occupancy was not extinguished by an offer of a right of occupancy issued to the plaintiff in the year 1981 because the grant of right of occupancy to the plaintiff was in law subject to a fair and adequate compensation to the defendant which was not done. Therefore, the granted right of occupancy of the suit plot to the plaintiff remained to be her recognition as a technical owner thereof but substantially it was, and it is still the defendant who is legally the owner of the suit property. The plaintiff Js a technical owner because she does not even possess the original title deed as she was required to surrender the same to the relevant Land Authority according to her own evidence through PW1 as herein above quoted. She is merely appearing in the register of the registrar of titles without having the title deed itself. The explanation PW1 gave for such surrender according to his own evidence at page 41 of the proceedings is that it could be because of this case. 14 Even though there is no explicit reason for such withholding of the title deed of the Plaintiff by the Land allocating authority. PW3 the Land officer from the land allocating authority was not lead to explain why they decided to take away such title deed from the plaintiff and when was it. She did not even produce such title on what she said she had no records nor she had worked on the issue of Kihonda Pitsa Makaroni Industries Limited. I am thus entitled to draw adverse inference against the plaintiff that the surrender of the title to the land allocating authority and its being retained and or destroyed as it is nowhere to be seen was because the land allocating authority realized its wrong in allocating the suit land to the Plaintiff. I am also entitled to draw adverse inference that the surrendering of such title was made by Narendra V.Patel himself who was the actual person who processed for the allocation of that land and he surrendered it to be revoked. That is why the defendant occupied the suit land peacefully at all times when Narendra V. Patel was alive. The plaintiff rushed to claim ownership of the suit land merely because when she made an official search from the Registrar of title she found her name still there registered in the property. The mere fact that the register by the registrar of title is still reading the Plaintiff's name is not conclusive evidence of ownership. This is because the name might be wrongly entered in the register or rightly entered but wrongly continued to exist after some: changes of circumstances which necessitated the name to ought have been removed. It might thus be that the Plaintiff's name was forgotten to be erased from the register. Otherwise the plaintiff should have been in possession of the title or give sufficient explanation as to why she does not have it in possession. 15 During cross examination PW1 was very clear that he did not know how the land was obtained because it was his relatives who obtained it when he was personally abroad nor he knew which land authority allocated them such land. All these can be seen at page 39 of the proceedings and for easy of reference I quote; "I cannot state with clarity which authority located us the plot. I only came to see the title deed.....there is nobody else apart from the /ate Narendra who could tell how the plot was acquired" With this evidence, PW1 did not justify the manner in which the Plaintiff obtained title over the plot in dispute. He only relied on the fact that they had a Certificate of Occupancy regardless on the manner in which it was procured. In law a mere presence of the title deed on the property or a mere evidence that the name of either party is registered by the Registrar of titles, is not conclusive proof of ownership. It should be accompanied with sufficient evidence that it was procedurally and legally obtained. There are a number of cases to that effect among them; George Benjamin Ferdandes v. Registrar of Titles and Anna Kibibi Mareaiie Civil Appeal no. 65 of 2018 (CAT) and Saada January Nyambibo (admnistratrix of the estate of the late January Bwire Nyambibo) versus Debora January Nyambibo and another, Land case no 97 of2020 (HC land Division Dsm). Now back to the second issue as to who is the lawful owner of the suit plot, I would simply say it is the defendant for the reasons which I have already stated in the third issue. That takes me to the last issue regarding to the reliefs which the parties are entitled to. In the circumstances of this suit as discussed herein above, the first relief to the parties is a declaration that the defendant is the lawful owner of the suit property, plot no. 194 'B' L.O. No. 63661 with title No. 25837 and the plaintiff is technically a trespasser thereat. I call her a technical trespasser because she is not in physical possession of the suit land, but the defendant. Also because some official documents which although illegal, names her as the owner of that suit land. The Plaintiff if is in need of the suit area should buy it from the Defendant under her free will without any force and at the market price as shall be mutually agreed between them. I order and direct that the names of the plaintiff be removed from the register of the registrar of titles is respect of the property. The land allocating authority shall thereafter issue the Certificate of Occupancy to the defendant in respect of the property herein above referred after the due processes as if nobody had ever been granted rights of occupancy thereof. I also grant costs of this suit to the defendant against the plaintiff and order permanent injunction against the plaintiff and his agents from entering and or interfering with the suit property unless she dully seeks and obtain permit from the defendant. The defendant has prayed for compensation of Tanzania shillings one billion for the loss of her business. It is difficult to decree such claim due to its hugeness which attracts a thorough litigation between the parties. 17 I therefore take into consideration generally that the Defendant was running a school business at the suit plot and as a result of this suit she was obliged to stop such business and further developing her lawful property. As such, she is entitled to general damages of Tanzania shillings one hundred million (Tshs. 100,000,000/=) against the Plaintiff which might not be enough taking into consideration the longtime of sixteen years this matter has taken but at least would boost the defendant to reorganize herself for the business lost. If she thinks that this awarded amount is not sufficient, she is at liberty to commence a fresh suit against the plaintiff to plead her claims and establish them. Those having been said I pronounce that this suit has been brought without sufficient cause and therefore I dismiss it with costs. It is so ordered. JUDGE 25/11/2021 Court: Judgment delivered in the presence of Mr. Nitesh Patel (Plaintiff) and his advocate Mr. Buberwa, and in the presence of Mr. Bole Raphael Shindika (Defendant) and his advocate Joseph Rutabingwa. Any aggrieved party with this judgment has the right of appeal to the court of Appeal of Tanzania subject to the relevant guiding laws and rules thereat.