LOKOLOVA CHAMA CHA USHIRIKA LTD V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LAND CASE NO. 577 OF 2024 LOKOVA CHAMA CHA USHIRIKA UFUGAJI NA UZALISHAJI MALI LTD ............................................................................. PLAINTIFF VERSUS 1. GABRIES KINZI WAYO 2. RUBEN KINZI WAYO 3. PETER KINZI WAYO 4. EMMANUEL KINZI WAYO 5. JULIUS PETER KINZI WAYO 6. SILVESTER RUBEN WAYO 7. MICHAEL MSOMA 8. RICHARD MICHAEL MSOMA DEFENDANTS 9. JAMES MICHAEL MSOMA 10. LAZARO MICHAEL MSOMA 11. CLAY MICHAEL MSOMA 12. ALLOYCE MWARABU MLEWA 13. MARTIN MWARABU MLEWA 14. DAVID MWARABU MLEWA 15. JOHN MWARABU MLEWA 16. GERALD ROBEN KINZI 17. GIFT MARTIN ALOYCE 18. MRS MUSA KINZI 1 DEFAULT JUDGMENT 29/07/2024 & 31/07/2024 SIMFUKWE, J. The plaintiff is a corporate body and purported registered owner of landed property with Certificate of Title No. 3619, Farm No. 70/1 located at Himo within Moshi district in Kilimanjaro Region. It has been pleaded inter alia that the plaintiff has more than thousand members who contributed their monies for carrying out the project at the suit land. Whereby more than 2000 plots would be available for its members upon completion of the survey of the suit land. The plaintiff did engage Kili Surveyors Ltd and Brandmark Infrastructure Ltd for carrying out the survey and paving roads on the suit land. Part of the land has been donated to Kilimanjaro Regional Government. The instant suit was instituted against the defendants claiming that on diverse dates they trespassed into the plaintiff’s suit land mentioned herein above. They occupied each a portion of land measuring about one acre inside the plaintiff’s land and are erecting houses. Jointly and severally, the defendants are said to had obstructed the plaintiff from carrying out her activities, assaulted the plaintiff’s staff and caused them 2 to suffer grievous bodily harm and psychological torture, damaged machines which were used in the survey work and paving roads, damaged and uprooted survey pins, damaged and uprooted survey beacons, damaged and destroyed office building of the plaintiff causing loss to the plaintiff. It has been stated that consequences of the defendants’ actions include but not limited to temporary cessation of the survey and road paving works leading to huge financial loss to the plaintiff. The value of the suit land was said to be TZS 1,027,903,000/= (One billion and twenty-seven million, nine hundred and three thousand, which is within the jurisdiction of this court. The plaintiff annexed to the plaint the following documents: i. Annexure P1 (Cheti cha Usajili) ii. Board Resolution Annexure P2. iii. Letter of surrender of the suit land, Annexure P3. iv. Copy of certificate of Title, Annexure P4. v. Demand Notice of claim from Brandmark Infrastructure Ltd dated 04/03/2024, Annexure P5 vi. Demand Notice of claim from Kili Surveyor Ltd, dated 26/06/2023 as Annexure P6. 3 vii. Police Report (RB) as Annexure P7. Wherefore the plaintiff prayed for judgment and decree as follows: a) Declaration that the suit land is owned by the plaintiff and defendants are trespassers to the suit land to wit Certificate of Title No. 3619, Farm No. 70/1, Himo, Moshi District, Kilimanjaro Region. b) That, court orders eviction and demolition of the defendants’ structures from the suit land. c) That, this court orders the defendants jointly and severally to pay the plaintiff TZS 378, 903,000/= as special damages. d) That, this court orders the defendants jointly and severally to pay the plaintiff general damages. e) Interests on the decretal sum at bank rate from the date of judgment to the date of full payment, to be paid by the defendants jointly and severally. f) Costs of the suit to be paid by the defendants jointly and severally. g) Any other relief that this court deems fit to grant. The defendants were served by a process server on 09/04/2024, 24/04/2024, 29/05/2024 and 02/06/2024 respectively. They were required to file their written statement of defence within 21 days. They refused to be served and none of them appeared before the court, nor 4 did they file their written statement of defence. Then, they were served through substituted service in Mwananchi newspaper dated 24th June 2024. Nonetheless, they never responded or filed written statement of defence. Then, Mr. Elikunda Kipoko learned counsel for the plaintiff prayed this court to enter default judgment for the plaintiff. Order VIII rule 1(1) of the CPC provides that: “1. -(1) Where a summons to file a defence has been served in accordance with Order V and the defendant wishes to defend the suit, he shall within twenty-one days from the date of service of the summons, file to the court a written statement of defence and enter appearance on the date specified in the summons.” Guided by the quoted provision of the law and based on the fact that the defendants have never appeared before this court nor filed their written statement of defence, I hereby enter default judgment for the plaintiff and against all the defendants and decree that: 5 a) The plaintiff is the lawful owner of the suit land with Certificate of Title No. 3619, Farm No. 70/1, Himo, Moshi District, Kilimanjaro Region and the defendants are trespassers to the same. b) The defendants should be evicted from the suit land and structures of the defendants which are within the suit land are ordered to be demolished. c) The defendants are jointly and severally ordered to pay the plaintiff general damages at the tune of TZS 18,000,000/=, to compensate the loss and inconveniences suffered by the plaintiff. d) Interest on the decretal sum awarded in (c) at the court rate of 7% from the date of judgment to the date of full payment, should be paid by the defendants jointly and severally. e) Costs of this suit should be paid by the defendants jointly and severally. I have not granted the prayer of specific damages to the tune of TZS 378,903,000/= based on the obvious reason that apart from the minutes dated 04/03/2024 which were attached to the plaint, there is no pleaded fact or attached exhibit to strictly prove the amount sought in the plaint. It is trite law that specific damages must be specifically pleaded and strictly proved. See the cases of Zuberi Augustino vs Anicet Mugabe 6 [1992] TLR 137 CAT and Stanbic Bank Tanzania Ltd vs Abercombie & Kente (T) Ltd, Civil Appeal No. 21 of 2001, CAT. In another case of Future Century Limited v. TANESCO, Civil Appeal No. 5 of 2009, [10 February 2016] TZCA at page 15 of the judgment it was stated that: “Specific damages must be pleaded and proved…... The Court held in its decisions in the cases of Zuberi Augustino v. Anicet Mugabe [1992] T.L.R 137 and Cooper Motors Corporation (T) Ltd v. Arusha International Conference Centre [1991] T.L.R 165 that special damages must be specifically pleaded and proved.” Emphasis added Consequently, default judgment has been entered for the plaintiff to the extent decreed herein above. It is so ordered. DATED and DELIVERED at Moshi this 31st day of July 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 31/07/2024 7 8