magreth master bebi administratrix of the estate of late saada katema vs safia ally 2023 tzhc 22582 13 november 2023

IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY OF SHINYANGA

AT SHINYANGA LAND CASE NO.05 OF 2022 (Originating from High Court of Tanzania (Original Jurisdiction)

MAGRETH MASTER BEBI (Administratrix of the estate of late Saada Katema) ............................................................PLAINTIFF

VERSUS SAFIA ALLY................................................................DEFENDANT

JUDGMENT Date last Order: 30/10/2023 Date of Judgment:13/11/2023 B. E. K. Mganga, J. Brief facts of this case are that, Magreth Master Bebi, the abovenamed plaintiff, being the administratrix of the estate of late Saada Katema, has filed this case against Safia Ally, the defendant, claiming that defendant has trespassed onto plot No. 2 Block “E” Central Area/Ngaya road or Service Industrial Kahama hereinafter referred to as plot No. 2 block “E”. It is said that, in 1995, defendant was issued an offer for plot No. 29 Block “E” Central Area/Ngaya road or Service Industrial Kahama hereinafter referred to as plot No. 29 Block “E”. It is undisputed by the parties that, in her life, the late Saada Katema was blessed with children namely Santu J. shangwi@ Stanslaus 1 Santu Master, Scolastica Bena Ponera and Magreth Master Bebi as the last daughter. It is said that, on 2nd January 1989, Saada Katema, now deceased, was issued with an offer for plot No. 2 Block “E” Kahama where she installed two rice milling machines. It is undisputed by the parties that, on 16th January 1991, Saada Katema passed away. After death of the said Saada Katema, one Santu J. Shangwi@ Stanslaus Santu Master was appointed as administrator of the estate of the late Saada Katema but also passed away. It was after death of the said Santu J. Shangwi@ Stanslaus Santu Master, the herein plaintiff was appointed as

administratrix of the estate of Saada Katema. It is said that, in January 1995, defendant obtained a building permit for commercial buildings at plot No. 29 Block “E”. It is alleged by the plaintiff that, in 2006 the defendant trespassed on plot No. 2 Block “E”, the estate of the late Saada Katema and built warehouse, shops and residential houses. It is further alleged by the plaintiff that, defendant has blocked access to the suit premise resulting in business loss of TZS 1,500,000,000/= and that, defendant’s occupation of the disputed plot from January 1995 to January 2002 has generated TZS 972,000,000/= in rental charges accounting for mesne profits from the disputed plot. 2 Based on the foregoing, plaintiff is praying, (i) declaration order that defendant has continuously trespassed onto plot No. 2 Block “E”, (ii) declaration order that the defendant illegally and unlawfully erected her structures and /or buildings on the disputed plot, (iii) an order for demolition of the defendant’s building and/ or structures erected on the disputed land, (iv) payment of TZS 972,000,000 by the defendant, being mesne profits (equivalent to monthly rental rate of TZS 3,000,000/= per month) for 27 years from January 1995 to January 2022 and from January 2022 to the date of judgment, (v) an order for compensation of TZS 1,500,000,000/= by the defendant being specific damages resulting from

the defendant’s unlawful use and occupation of the disputed land covering loss of investment, loss of expansion opportunities and loss of pioneer market position in rice milling business, (vi)general damages as will be assessed by this court, (vii) interest on the decretal sum at the court’s rate of 12% per annum from the date of judgment to the date of full and final satisfaction, (viii) costs of this case and (ix) any other relief as this court may deem just to grant. On the other hand, defendant alleged that she has not encroached or trespassed on the late Saada Katema’s land, rather, she has erected her buildings on plot No. 29 Block “E” and refuted all claims and 3 allegations by the plaintiff. It is said that, plot No. 29 Block “E” after re- survey now is No.110. In order to resolve the dispute between the parties, four issues were drafted and agreed namely, (i) whether the defendant encroached the plaintiff’s plot No. 2 block “E” Central area /Ngaya road service industry Kahama Urban, (ii) whether plot No. 29 block “E” (or plot No. 110 block “E”) alleged owned by the defendant exists, (iii) if issues No. 2 is answered in affirmative, whether defendant erected her building on that plot and (iv) to what relief(s) are the parties entitled to. In the bid to prove her case, plaintiff had only two witnesses namely Scolastica Bena Ponera (PW1) and Magreth Master Bebi(PW2). PW1

stated in her evidence in chief that, she is a sister to the plaintiff and that, both are daughters of the late Saada Katema who died on 16th January 1991 while at Kahama District in Shinyanga Region. PW1 stated further that, after death of the said Saada Katema, one Santu Shangwi, who was their brother, was appointed as administrator of the estate of the late Saada Katema. She added that, the said Santu Shangwi also died a short period after his appointment. She went on that, after death of the said Santu Shangwi, plaintiff was appointed as administratrix of the estate of the late Saada Katema. 4 PW1 stated further that, the late Saada Katema was issued with an offer for plot No. 2 Block “E” (exhibit P3). She testified further that, in 2006 they got information that someone has built a house on that plot. PW1 stated further that, she wrote a letter to the Authorized land officer at Kahama and copied to Commissioner for land in Dar es Salaam complaining that someone has trespassed on the said plot. She further stated that, Authorized Officer made findings that, there is no plot No. 29 Block “E” on survey map and that, the trespasser has built a house on plot No. 2 block E”, the property of Saada Katema. She added that, they were copied a letter with the findings by the authorized officer at Kahama. She went on that, on the said plot, they installed a milling machine. PW1

testified further that, the said plot was trespassed by Ally but later on, it come to their knowledge that the trespasser is Safia Ally, the defendant. She stated further that, they were summoned before the authorized land officer at Kahama with a view of resolving the dispute and that, only her relatives attended. She added that, defendant disobeyed the summons and did not attend. In her evidence, PW1 prayed the court to issue an order that, (i) the late Saada Katema is the owner of plot No. 2 Block “E”, (ii) defendant be ordered to demolish the house she built on the disputed plot and (iii) defendant be ordered to 5 pay TZS 900,000,000/= for building five shops, four warehouses she has rented and in which she is being paid TZS 3,000,000/= monthly for the period of 27 years of her stay over the disputed plot. She testified that, defendant has built her structures on the disputed plot causing the family of the late Saada Katema to lose customers of their rice milling machine because customers ran away. Based on that, PW1 prayed defendant be ordered to pay TZS. 1,600,000,000/= being compensation for loss of business. Giving her evidence under cross examination, PW1 stated that, Magreth Master Bebi is the 2nd administratrix who was appointed on 17th October 2018. She maintained that, she is praying compensation for 27 years that ended in 2022. She also stated that, it is 27 years

from 1995, the year defendant trespassed on the disputed plot. She further stated that, she can’t recall as to when the rice milling machine was built on the said plot, but it was in early 1980’s. She maintained that, the said machine stopped to work in 1995 after defendant has trespassed on the disputed plot. She also stated that, in 2006 there was no administrator/administratrix of the estate of Saada Katema and that, Santu Shangwi was appointed as administrator but died shortly thereafter. PW1 maintained that, Plot No. 29 block “E” does not exist. 6 She went on that, they got information from many people who resides in Kahama that defendant has trespassed on the disputed plot. On further cross examination, PW1 stated that, the offer for plot No. 2 block “E” was issued on 01st January 1989 and that, it is for 33 years that expired in 2022. She admitted that they have not updated the period of ownership. She further stated that, she is not aware that the disputed area has been re-surveyed. She maintained that, the said plot has not been allocated to the defendant and added that, if defendant was allocated, she should prove. PW1 maintained that, in the disputed plot, there are building which are shops that were built by their family and a building by the defendant. She maintained that, defendant has built shops, warehouse, and residential house on the disputed plot. PW1 stated

further that, defendant was issued with building permit for her plot No. 29 Block “E” service industrial area Kahama. She further stated that, Land Officer are the ones who can prove whether plot No. 29 block “E” is on the dispute plot or not. It was evidence of Magreth Master Bebi(PW2), plaintiff through video conference while in Dar es salaam that, PW1 is her young sister. She added that, Saada Katema was her mother and that, now she is deceased. She went on that, after death of the said Saada Katema, Stanslaus Santu Master was appointed in 1996 as administrator by 7 Kahama primary court. She stated further that, Santu died in 2006 while in Dar es Salaam Kariakoo hospital. She added that, after death of Santu, in 2018, she was appointed by Kahama Primary Court to be administratrix of the estate of the late Saada Katema. She further stated that, one of the estates of the late Saada Katema is plot No. 2 block “E”. PW2 went on that, the said plot was trespassed by Safia Ally Malik who built a house and frames for shops on the said plot. She went on that, she has filed this case after they have failed to resolve the dispute. She concluded by praying that the plot be returned to them. Giving her evidence under cross examination, PW2 stated that, defendant trespassed the plot in question in 1994 and build on part of the said plot. She testified further that, in the disputed plot

there is rice milling machine. She also stated that, Stanslaus Santu was the initial administrator. She further stated that, Santu complained against trespass by the defendant before he became sick(paralyzed) and before he died. PW2 stated further that, the said Stanslaus Santu was residing at Kahama while both herself and PW1 are residing in Dar es Salaam. She stated further that, they didn’t remove the said Stanslaus Santu from administration of the estate of the late Saada Katema because he was still alive. PW2 also stated that, the process for her to be appointed as administratrix started in 2014 and in 2018 she was appointed. She 8 also stated that she was not aware that defendant did build houses on plot No. 2 after being granted building permit. She maintained that the plot is surveyed, and they have an offer that was issued to the late Saada Katema. On the other hand, Safia Ally (DW1) the defendant, the only witness for defence, in her evidence in chief stated that, she owned plot No. 29 Block “E” since 1994. She added that, the said area was surveyed in 1994 because initially it was a farm. That, she was required to pay costs for survey and that she paid. She added that, she was issued an offer (exhibit D1) and was shown plot No. 29 Block “E” by Mzee Lugendo, who, was the land officer. She denied to have trespassed on plot No 2 Block “E”. She went on that, she

submitted to land officers the site plan proposing to build commercial building (exhibit D2) on plot No. 29 Block “E” as a result, a building permit (exhibit D4) was granted. DW1 further stated that, in 1995 she built a house on plot No. 29 Block “E” and that, she moved from Uhindi street to the said plot. She went on that, since 1995 she has been residing on the said plot peacefully. She added that, the plot was re-surveyed and now it is No. 110 block “E”. DW1 mentioned Mr. Yusuph and another, both from land office as the persons who re-surveyed plot No. 29 Block “E” and 9 renamed it as No.

110. DW1 stated further that, on 17th December 2019, she was issued with a Certificate of title No. 75736 for plot No. 110 block “E” (exhibit D5). When under cross examination, DW1 stated that, plots No. 29 and No. 2 block “E” are close to each other about 5 paces. In further cross examination, DW1 stated that, she doesn’t know plot No. 2 block “E”. She stated further that, if she has trespassed on someone’s plot, land officers should be held accountable. She maintained that her plot is No. 29 block “E”. She added that, it is not true that plot No. 29 block “E” does not exist. She went on that, she asked land officers in relation to existence of plot No. 29 block “E”, but they said nothing. Given the circumstances of the case, on 27th October 2023, both the plaintiff and the defendant, prayed land officers from Kahama be called as court witness. The prayer was granted, as a result, Yusuph Shaban Luhumba (CW1), the authorized land officer, and Yahaya Msangi (CW2), the land surveyor, were summoned and testified as court witnesses. It was evidence of CW1 that, plot No. 2 block “E” is owned by Saada Katema since in January 1989 and was issued with an offer. He tendered file No. LD/KTC/6077 KTC/00/4939 (exhibit C1) for plot No. 2 block “E” that has all information for the said plot. CW1 stated further 10 that, in exhibit C1 there are many information inter-alia that, a police loss

report of an offer for plot No. 2 block “E” and a letter by Scolastica Ponera dated 11/05/2006 complaining that Ally Malik has trespassed plot No. 2 block “E”. CW1 stated further that, plot 29 block “E” is owned by Safia Ally since 16th November 1994 and tendered file No. LD/KTC/6154(exhibit C2) containing information for the said plot. CW1 stated that, exhibit C2 has many information some of them are (i) a letter of offer in the name of Safia Ally, (ii) a layout of the building to be constructed, (iii) building permit, (iv) payment of receipts, (v) draft certificate of occupancy for plot No. 43 block “E” and (vi) documents for plot No. 2 namely, meeting and appointment of administrator, extract of sketch plan, a letter by Scolastica Ponera complaining that plot No. 2 is owned by Saada Katema and that Ally Malik has trespassed and build a residential a house thereon. CW1 stated further that, on 11th May 2006, Scolastica Ponera complained that Ally Malik has trespassed on plot No. 2 Block “E” and prayed land officer to help the owner to recover nine (9) meters trespassed by Ally Malik. CW1 stated further that, on 16th August 2006, the acting director for Kahama, wrote a letter to the Commissioner for lands showing that Safia Ally has an offer for plot No. 29 block “E” and 11 that, Safia Ally was issued building permit. That, in the said letter, it was stated that Plot No. 2 is

owned by the late Saada Katema and that, the visit to the locus in quo, shows that the house of Safia Ally is built in the middle of plot No. 2 and 3. CW1 went on that, Safia Ally was informed that plot No. 29 does not exist and that she should vacate or agree with Scolastica to divide the plot between them. CW1 further stated that, certificate of title for plot No. 43 block “E” that is exhibit C2 does not relate to the disputed area. When he was cross examined by counsel for the plaintiff, CW1 stated that, Certificate of title for plot No.43 was issued by mistake to the defendant and that, she was ordered to surrender it and she did. CW1 stated further that, in 2019 re-survey was done as a result, the plot that has a house of Saada Katema is No. 108 and plot No. 110 has the house of Safia Ally, the defendant. He added that, these plots No. 108 Block “E” and 110 Block “E” are all from plot No. 2 block ”E” owned by Saada Katema. In further cross examination, CW1 admitted that, in exhibit C1 there is no record showing that the administratrix of the estate of Saada Katema was informed and consented to subdivision of plot No. 2 block “E” into two i.e., plot No.108 and No.

110. CW1 stated further that, defendant was granted building permit though she trespassed on plot No. 2 block “E” which is why, plot No. Block “E” was 12 sub divided. CW1 stated further that, their office considered rent paid by the defendant and building permit, which is why, they decided to subdivide plot No. 2 block “E” into two to accommodate development done on the plot. In further cross examination, CW1 admitted that, land office was supposed to pay costs incurred by the defendant. He stated further that, plot No. 29 block “E” did not exist but was created just after the defendant has made improvement or development. When he was cross examined by counsel for the defendant, CW1 stated that, the offer issued to Saada Katema in exhibit C1 is for plot No. 2 block “E” while the offer issued to Safia Ally in exhibit C2 is for plot No. 29 block “E”. CW1 stated further that, both plot No. 2 and No. 29 are in the same block. He admitted that, exhibit D2 was received at land offices as it was drawn by RM Magale. He added that, exhibit D2 is sketch layout and that, the same cannot be used by land officers. He maintained that Plot No. 2 block “E” is owned by Saada Katema and that District council made a mistake to allow defendant to stay on the said plot. It was evidence of Yahaya Msangi (CW2) in chief that, plot No. 2 block “E” is at Malunga service industries. That, according

to demarcation survey in his office, there is no plot No. 29 block “E” Malunga service area. CW2 also stated that, according to town plan 13 drawing No.15/48/474A (exhibit C3), in south of Plot No. 2 block “E” there is plot No. 1, in the north there is plot No. 3, in the west there are plots that were not issued numbers, in the east there is a road (Tabora road). CW2 stated further that, plot No. 2 block “E” is owned by Saada Katema and that, structures thereon, were erected long period ago. He went on that, according to their office record, exhibit C2 was plot No. 29 block “E” but there after, it became plot No.43 block “E”. He added that, the owner of plot No. 29 that changed into plot No. 43 is defendant. CW2 stated further that, he doesn’t know what led to that change. He further stated that, there is no plot No. 29 block “E” in the Town Planning drawing (exhibit C3). He went on that, according to the current registered survey plan No.105369 (exhibit C4) that was done in 2019, plot No. 2 block “E” now has two plots namely, plot No. 110 and plot No.

108. CW2 stated further in chief that, plots No. 110 and No. 108 are a result of subdivision of plot No. 2 block “E” that is owned by the late Saada Katema. He added that, at the time of conducting re-survey in 2019, there were buildings on the said plot No. 2 block “E”. He went on that, they re-surveyed plot No. 2 by the order of the District Director who received an order from the Minister for Lands after complaints by 14 owner of plot No. 2 block “E” that someone has trespassed on her plot. He stated further that, to resolve the dispute, they subdivided plot No. 2 block “E” because there was property of two different persons on a single plot both having documents from land office. He stated further that, the documents that the two owners were in possession are an offer and building permit. CW2 admitted in his evidence in chief that, offer letters that were in possession of the parties were not the same because they were for plot No. 2 and No. 29 that are two different plots. CW2 stated also stated that, in April 2019 they subdivided plot No. 2block “E” into two plots number 110 and plot No. 108 because there are buildings for Safia Ally and Saada Katema. He admitted that he is the one who re-surveyed plot No. 2 block “E” and subdivided it into two plots. He further admitted that, at the time of re-survey, there was complaint by owner of plot No. 2 block “E” that Safia Ally has trespassed on her plot. He also admitted that, there is no letter informing owner of plot No. 2 block “E” of the intention to subdivide the said plot. He further admitted that, ownership of plot No. 2block “E” was not revoked prior subdivision into plot No. 110 and No.

108. CW2 also stated that, in the file for plot No.2 (exhibit C1) there is no building permit and that in exhibit C2, there is a building permit issued to Safia Ally for plot No. 29 Block “E”. CW2 stated further that, 15 the building that was erected by Safia Ally is on plot No. 2 as per exhibit C3 and not on plot No.

29. He added that, Safia Ally built her structures on the place other than she was permitted to build her building. When CW2 was cross examined by counsel for the plaintiff, he maintained that Plot No. 29 does not exist and that, it is the land officer who granted defendant building permit. When he was cross examined by counsel for the defendant, CW2 stated that, he doesn’t know how certificate of title for plot No. 43 was issued. He maintained that, in 2019, Plot No. 2 block “E” was re-surveyed to produce two plots namely, No. 110 and 108. He stated further that, he doesn’t know whether, the plot Safia Ally built her house is where she was shown or not. CW2 stated further that, Safia Ally has a certificate of occupancy and that she is not a trespasser. After conclusion of hearing, both counsel for the plaintiff and the defendant prayed to file written final submissions and the prayer was granted. It was submitted by Mr. Renatus Lubango Shiduki, learned counsel for the plaintiff that, defendant trespassed on plot No. 2 block “E” and that she was advised to settle the dispute but declined. Counsel submitted further that, defendant did not prove that she was shown plot No. 2 Block “E” by employees of Kahama District council’s land office as 16 plot No. 29 Block “E”. Mr. Shiduki further submitted that, re-survey of plot No. 2 block “E” that was intended to legalize stay of the

defendant on the said plot, was neither consented for nor communicated to the plaintiff. Counsel added that, in terms of section 162 of the Land Act [Cap. 113 R.E. 2019] subdivision was supposed to be done upon an application by either, all occupiers in common or, with the consent of other occupiers in common. He added that, Cap. 113 R.E. 2019 (supra) does not empower any land officer to subdivide a registered land owned by one person to create another plot for another person. He added that, application for subdivision was supposed to be made to the Registrar of Titles. He went on that, since defendant obtained plot No. 110 Block “E” with title deed number 75736 after subdivision of plot No. 2 Block “E”, the said plot No. 110, and the titled deed thereof, is invalid because the same cannot grant legally protectable and enforceable right to the defendant. Counsel for the plaintiff submitted further that, for a long time, defendant knew that she has trespassed on plot No. 2 block “E” and continues to trespass because plot No. 29 Block “E” does not exist. Mr. Shiduki cited the case of Jeal Kalinga v. Omari Karumwana [1991] T.L.R. 67 and submitted that, defendant had no right to plot No. 2 block 17 “E” and further that, has no right to plot No. 110 block “E” after the said unlawful and illegal subdivision of plot No. 2 block “E”. Counsel for the plaintiff prayed the 1st, 2nd and

3rd reliefs prayed by the plaintiff be granted. Counsel cited the case of Hamisi Bushiri Pazi & 4 Others vs. Saul Henry Amon & 4 Others, Civil Appeal No. 116 of 2019, CAT(unreported) and submit further that, defendant being a trespasser, all investment thereon was done at her own risk. Counsel for the plaintiff submitted further that, plaintiff is entitled to be paid TZS 972,000,000/= equivalent to TZS 3,000,000/= per month for 27 years as mesne profit. He went on that, defendant did not cross examine PW1 on that prayer, hence, evidence relating to the said amount was not challenged. To support that submission, counsel for the plaintiff cited the case of Jacob Mayani v. Republic, Criminal Appeal No. 558 of 2016, CAT (unreported), Eligius Kazimbaya v. Pili Prisca Mutani @ Pilli Pria Yangwe Mutani & Peter Paul Kazimbaya, Civil Appeal No. 163 of 2019, CAT(Unreported). In additional to that, counsel for the plaintiff submitted that plaintiff is entitled to be paid TZS 1,500,000,000/= being special damages for failure to commercially utilize the said plot after being trespassed by the defendant. On the other hand, Bakari Chubwa Muheza, learned counsel for the defendant filed his written submission on 7th November 2023 while 18 out of time and without leave of the Court. Since submissions by the defendant was filed out of the scheduled time and without leave of the court, I will not

consider them as they were illegally filed. I should point out that, parties should always abide by court orders and more so, they should, much as they can, seek leave of the court in filing documents out of time. Of course, in granting or refusing to grant leave, the court will have to hear both parties and consider reasons that led to non- compliance of the order. It is unprofessional for a party to sneak into the court, a document, including submissions, hoping that the court will act on it. To consider submissions that were filed out of time and without leave of the court may, create negative impression to the other party. I don’t want to create that impression. With those views in my mind, as I have pointed hereinabove, I will not consider issues raised by counsel for the defendant in his written submissions. I am alive that the course I have taken will not prejudice the parties because, it is settled position of the law that, submissions are not evidence, rather, are clarification to support evidence on record. Even in absence of submissions, the court will consider well adduced evidence and decide in favour of the person whose evidence support the case. On the other hand, in absence of evidence on record, however loaded the submission is, cannot be regarded as evidence and cannot be acted upon by the court as it was 19 held in the case of Bruno Wenceslaus Nyalifa vs

Permanent Secretary Ministry of Home Affairs & Another (Civil Appeal 82 of 2017) [2018] TZCA 297- Tanzlii, Rosemary Stella Chambejairo vs David Kitundu Jairo (Civil Reference 6 of 2018) [2021] TZCA 442- Tanzlii and Registered Trustees of the Archdiocese of Dar es Salaam v. The Chairman, Bunju Village Government & 11 Others, Civil Appeal No. 147 of 2006, In Bunju Village case (supra) the Court of Appeal held inter-alia that:- " . . submissions are not evidence. Submissions are generally meant to reflect the general features of a party's case. They are elaborations or explanations on evidence already tendered. They are expected to contain arguments on the applicable law. They are not intended to be a substitute for evidence." In the case at hand, I have considered evidence adduced by the parties and find that, it is undisputed that the late Saada Katema was issued with offer for plot No. 2 Block “E”. It is also undisputed by the parties that Safia Ally, the defendant, was issued plot No. 29 block “E”. It is also undisputed that, defendant was granted a permit to construct commercial buildings on plot No. 29 block “E”. The dispute between the parties is whether, after being granted building permit, defendant erected her house on plot No. 29 Block “E” or she erected on plot No. 2 block “E” that was issued to Saada Katema, now deceased. 20 It was evidence of both PW1 and PW2 that,

defendant trespassed on plot No. 2 block “E” owned by the late Saada Katema. It was also evidence of CW1 and CW2, both being land officers that, defendant trespassed on plot No. 2 block “E”. It was also evidence of CW1 and CW2 that plot No 29 block “E” does not exist. In fact, CW2 testified that both Town Plan drawing No.15/48/474A (exhibit C3) and registered survey plan No.105369(exhibit C4), does not show plot No. 29 block “E”. It was unshaken evidence of both CW1 and CW2 that, defendant was informed that she should vacate from plot No. 2 block “E” or agree with PW1 to subdivide the said plot between them. That evidence is supported by a letter dated 16th August 2006 that is in file No. LD/KTC/6154 (exhibit C2) that has many documents of the defendant. The said letter reads:- “Mkoa wa Shinyanga Idara ya Ardhi, Simu Nambari: 028-2710032 S. L. P 50, Fax Na: 028-2710100 KAHAMA Unapojibu tafadhali taja: Tarehe: 16/08/2006 Kumb Na. LD/KCD/7583/6 Kamishna wa Ardhi, S. L. P. 9230, DAR ES SALAAM. YAH: HISTIORIA YA KIWANJA NAMBA 29 KITALU “E” KAHAMA MJINI. Tafadhali, rejea barua yako yenye Kumb. Na. LD/163530/SFM ya terehe 27/07/2006 ikihusu somo hilo hapo juu. 21 Nimepitia nyaraka mbalimbali zilizoko katika Ofisi ya Ardhi kuhusiana na kiwanja Namba 29 Kitalu “E” Kahama na ifuatayo ni historia ya kiwanja husika. 1). Ndugu Safia Ally ana barua ya toleo la kiwanja namba 29(SI) Kitalu

“E” Kahama ya tarehe 16/11/1994 na Hati ya haki ya kiwanja ya tarehe 28/11/1995 (Angalia kiambatianisho A na B) 2). Halmashauri ya Wilaya ya Kahama ilimpatia Ndugu Safia Ally kibali cha ujenzi baada ya kuwasilisha Ramani ya jengo (Angalia Kiambatanisho C na D) 3). Tarehe 11/05/2006 Ndugu Scolastica Ponera alilalamika kuingiliwa kwa kiwanja Na. 2 (SI) Kitalu “E” na Ndugu Safia Ally (Angalia kiambatanisho E). 4). Katika kumbukumbu ni kweli kiwanja Na. 2 (SI) Kitalu “E” kinamilikiwa na Saada Katema ambaye kwa sasa ni marehemu. Kwa barua ya toleo la kiwanja la tarehe 2/1/1989. (Angalia kiambatanisho F). 5). Ofisi ya Ardhi ilipitia Ramani ya Mipango Miji ya eneo hilo TP Drawing No. 13/1/488B na ramani ya Upimaji E21 77/17 kuangalia kiwanja Namba. 29 (SI) kinacholalamikiwa. Katika ramani hizo hakuna kiwanja namba 29 (SI) kama kumbukumbu zilivyo katika jalada la kiwanja na Registry ya kiwanja. (Angalia viambatanisho G na H). 6). Ofisi ya Ardhi pia ilienda katika viwanja husika na kujionea hali ilivyo ardhini. Katika mazingira ya ardhini kuna nyumba ya Marehemu Saada Katema iliyoko katika kiwanja Na. 2 na pia kuna nyumba ya Ndugu Safia Ally iliyoko katikati ya kiwanja Namba 2 na Namba3. 7). Baada ya mgogoro huu kuibuka mwezi Mei 2006 suala hili lilifikishwa katika Kamati iliyoundwa kutatua migogoro ya Ardhi, Ndugu Safia Ally alielezwa kwamba Kiwanja namba 29 (SI) hakipo na hivyo

aondoke. Aidha Ndugu Safia Ally alishauriwa 22 aelewane na Ndugu Scolastica Ponera msimamizi wa Mirathi ya Marehemu Saada Katema aruhusu kiwanja Namba 2 kigawanywe ili aendelee kubakia hapo alipo kwa kuwa ukubwa wa kiwanja unaruhusu. 8). Ndugu Safia Ally hakukubaliana na ushauri wa kuelewana na Ndugu Scolastica Ponera mmiliki wa kiwanja Namba 2 kwa kuwa yeye hakuwa mvamizi na ana vibali halali vya kumiliki kiwanja namba 29(SI) alivyopewa na Halmashauri ya Wilaya. 9). Mazingira yanaonesha kwamba inawezekana kiwanja Namba 29 (SI) Kitalu “E” kilizalishwa kutoka katika kiwanja Namba 2 japo Ofisi ya Ardhi imeshindwa kuthibitisha kwa kuwa ramani hiyo haikupatikana. Pamoja na maelezo haya nimeambatansiha vielelezo mbalimbali vinavyohusiana na viwanja hivi kwa ushauri na maamuzi ya kutatua mgogoro huu. Sgd Duncan Thobas Kny: MKURUGENZI MTENDAJI, HALMASHAURI YA WILAYA, KAHAMA.” The above letter (part of exhibit C2) tells all that, defendant trespassed on plot No. 2 block “E” and that, she did not abide by the advice that was given namely, to agree with the administratrix of the estate of the late Saada Katema in subdividing plot No. 2 block “E”. In her evidence, defendant (DW1) stated that, she owns plot No. 29 block “E”. She stated while under cross examination that, if she has trespassed on someone’s plot, then, land office should be held accountable. It is my conclusion based on the

afore pointed out 23 evidence, that, defendant trespassed on plot No. 2 block “E”, the estate of the late Saada Katema. It is my further view that, the statement by the defendant that she was shown the disputed plot by Mzee Lugendo who, was the land officer, cannot help her for various reasons. One; the said Mzee Lugendo, who, defendant alleges showed her the disputed plot as plot No. 29 block “E” was not called to testify on her behalf. More so, no reasons were given by the defendant for that failure. In my view, defendant knew that possibly, the said Mzee Lugendo would have adduced evidence that is not favorable to her. It was the duty of the defendant to state, in her evidence, reasons for not calling the said Mzee Lugendo, including but not limited to, whether, the said Mzee Lugendo was within reach or not. Since no reasons were advanced by the defendant as to why the said Mzee Lugendo was not called, this court, is entitled to draw adverse inference against the defendant. See the case of Jaluma General Suppliers Limited vs Stanbic Bank (T) Limited (Civil Appeal 11 of 2013) [2013] TZCA 320, Pascal Mwinuka vs Republic (Criminal Appeal 258 of 2019) [2021] TZCA 174, all unreported, to mention just a few. It is my view that, due to that failure, defendant cannot successfully, in this case, shift liability to the land allocating authority. 24 Two; it is clear from the above

quoted letter (part of exhibit C2) that, in 2006, defendant was informed by the land allocating authority that, she has built her structures on plot No. 2 block “E” and that, she should agree with the administratrix of the estate of the late Saada Katema in resolving the matter including subdivision of the said plot into two, but she refused. It is my view that, from that time, defendant was t well aware that she is a trespasser over the disputed land. I have carefully considered evidence of the defendant (DW1) and it seems that, she believed that the plot on which she constructed her buildings is No. 29 Block “E” that she was allocated. That belief, however honest it may be, cannot be a justification for her to continue to stay on the disputed plot. The court of Appeal had an advantage, in the case of Grace Olotu Martin vs Ami Ramadhani Mpungwe (Civil Appeal 91 of 2020) [2023] TZCA 193, to discuss whether hones belief by someone who has trespassed on the land of another is a good defence or excuse or not. In Mpungwe’s case (Supra) it held inter-alia that:- “The law on trespass is certain and free from ambiguity. Trespass to land means interference with the possession of land without lawful justification and, on this, we agree with the definition given by Lugakingira J. in Frank S. Mchuma vs Shaibu A. Shemdolwa… that trespass is an unjustifiable intrusion by one person upon the

land in the possession of another. Such interference entitles the one in possession of the land recourse to court for 25 either eviction/ejection or for payment of compensation termed as mesne profit due to non-use of it during the period of his dispossession.” In Mpungwe’s case (supra), the Court of Appeal further quoted what R. K. Bangia said in his book: Law of TORTS, Twenty-First Edition, 2008 at page 407 that: - "Trespass is actionable per se and the plaintiff need not prove any damage for an action of trespass. "Every invasion of property, be it ever so minute, is trespass." Neither use of force nor showing any unlawful intention on the part of the defendant are required. Even an honest mistake on the part of the defendant may be no excuse and a person may be liable for trespass when he enters upon the land of another person honestly believing it to be his own. Probably inevitable accident will be a good defence as it is there in case of trespass to persons on chattels.” Having quoted the above paragraph, the Court of Appeal added that:- “…We have considered the phrases an honest mistake... and honestly believing... in the above quoted extract and we entertain no doubt that they refer to absence of ill-will or intention to enter into another's land. They connote what Mr. Augusto termed as innocence on the part of the trespasser. But as shown above, in law, honest belief

or innocent entry are irrelevant factors when it comes to trespass actions hence they constitute no good defence. Given such stance of law, it follows therefore that the only available defences to defendants in such suits are that the entry was with authority of the owner or was in the due execution of a statutory duty or under the authority of some law…Worse still, the intention of a trespasser is of no essence in cases of trespass and cannot successfully be relied on as a defence from liability.” 26 In the quoted paragraph, the Court of Appeal clearly stated that, honest belief is irrelevant factor and cannot be a defence in suits for trespass on land. It is also clear, in evidence of both CW1 and CW2 that, having noted that defendant trespassed on plot No. 2 block “E”, in 2019, re- survey was done, and that, the said plot was subdivided to produce two plots namely No. 108 and 110. In fact, CW2 admitted in his evidence that he is the one who re-surveyed plot No. 2 block “E” and produce two plots No. 108 and 110 as shown by survey of plots No. 107-114 Block E Kahama Township with Registered plan No. 105369 dated 7th April 2019 (exhibit C4). It is my view that, re-survey was done as an afterthought to cover up what was stated in paragraph 9 of the letter dated 16th August 2006 part of exhibit C2 quoted hereinabove. It was after the said subdivision of plot No. 2 Block “E” that

produced plot No. 108 and 110, on 29th November 2019, defendant was issued with certificate of title No. 75736 for a term of thirty-three (33) years (exhibit D5). It is worth to note that, the complaint by PW1 was made in 2006 that defendant has trespassed plot No. 2 Block “E” and the land allocating authority confirmed that she trespassed and advised the two to agree on subdivision of the said plot. It was evidence of both CW1 and CW2 that plaintiff was neither consulted nor did consent for 27 subdivision of pot No. 2 block “E”. I have examined the file with No. LD/KTC/6077 KTC/00/4939 (exhibit C1) for plot No. 2 block “E” (exhibit C1) and find that, there is no evidence showing that plaintiff was either consulted or that she consented for the said plot to be subdivided. Again, there is no evidence in the file with No. LD/KTC/6154(exhibit C2) that has documents for the defendant showing that plaintiff consented or was consulted prior to subdivision of plot No. 2 Block “E” to produce plot No. 108 and 110. In short, there is no evidence of consultation and or consent for subdivision of plot No. 2 block “E”. Further, there is no evidence proving that plaintiff consented, after subdivision of plot No. 2 block “E”, plot No. 110, that is a result of the said subdivision, be allocated to the defendant. More so, there is no evidence in the Certificate of Title No. 75736 for plot No.

110 Block (exhibit D5) showing that, plaintiff was consulted and consented for plot No. 110, a product of subdivision of plot No. 2 Block “E”, to be allocated to the defendant. Therefore, Plot No. 2 block “E” was subdivided into two and plot No. 110 was allocated to the defendant without first affording plaintiff right to be heard. In my view, that was not proper. It is settled law that, any decision made in violation of natural justice principles including violation of the Constitution, cannot be left to stand even if the same decision would have been reached had there been no violation of the natural 28 justice principles. See the case of case of Said Mohamed Said vs Muhusin Amir & Another (Civil Appeal 110 of 2020) [2022] TZCA 208 (unreported), Independent Power Tanzania Ltd vs Standard Chartered Bank (Hong Kong) Ltd (Civil Revision 1 of 2009) [2009] TZCA 17 (unreported), Mbeya-rukwa Autoparts & Transport Ltd. vs Jestina George Mwakyoma (Civil Appeal 45 of 2001) [2001] TZCA 14 also [2003]T.L.R. 251 to mention just a few. What happened in this case in subdividing plot No. 2 block “E” is similar to what was stated in Independent Power Tanzania’s case (supra) namely, “hang him first and try him later” syndrome. The estate of the late Saada Katema was hung by being subdivided into two and plot No. 110 the product of the said subdivision, allocated to the defendant who was

thereafter issued with the certificate of title, believing that, in a trial like the one at hand, the said subdivision and grant of certificate of title to the defendant can be a justification for the defendant to occupy and own the disputed plot. That was done believing that the one in possession of a certificate of tittle is regarded as the owner of the land. In my view, that principle cannot be applied without exceptions. I am aware that if care is not taken, individuals who have not issued with certificate of titles may be dispossessed their landed property by crooks who, can quickly and by improper means, obtain a certificate of title and legalize 29 acquisition of the landed property through judicial procedures. This tells all as to why defendant was relying on the certificate of title (exhibit D5) that was issued to him in relation to plot No. 110 a product of subdivision of plot No. 2 block “E” property of the late Saada Katema. By all standard, that cannot be accepted. In Independent Power Tanzania’s case (supra), the Court of Appeal, quoted with approval, the decision of the Supreme Court of Zimbabwe in the case of Holland v. Minister of Public Service, Labour and Social Welfare [1998] 1 LRC 78 that:- “It is settled law that where a statute empowers a public official or body to give a decision which will prejudicially affect an individual in his liberty, property or

existing rights, the right to a fair hearing is to be given effect to unless the statute expressly or by implication indicates the contrary.” In the case at hand, plot No. 2 block “E” was subdivided into two namely No. 108 and 110 and part of the said plot namely, plot No. 110 was allocated to the defendant without affording plaintiff right to be heard. In short, the decision to subdivide plot No. 2 block “E” affected the estate of the late Saada Katema without affording plaintiff right to be heard. It was evidence of CW1 and CW2 that plot No. 2 block “E”, the estate of the late Saada Katema was subdivided into two to 30 accommodate defendant who trespassed the said plot and had erected buildings thereon and continued to pay rent. It was evidence of CW2 that, they were directed by the Minister for Lands that the dispute be resolved which is why, considering costs defendant has incurred and that, she was paying rent, they opted to subdivide the said plot. In my view, reasons advanced by both CW1 and CW2 for subdivision of plot No. 2 Block “E” are not convincing. In my view, those reasons can be a catalyst for many trespassers, who after trespassing, will develop the land knowing that the said land will be subdivided based on improvement already done. It is my view that, that may create a state of affairs akin to the law of the jangle because, any person with financial muscles,

may trespass on any land and develop it within a short time and later, the land be subdivided considering costs incurred by the trespasser. This court cannot nurture environment for the law of the jangle to exist in our society. It has and it will at all fours make sure that, that will never happen. It is my view that, once a trespasser, always a trespasser. There is a saying that, it is easy to steal a village drum, but it is difficult to play and enjoy the beats of the said drum while in the same village without being noticed. Similarly, a trespasser can trespass on someone’s land, and s/he cannot enjoy forever without being noticed and feel the pinch 31 thereof. It is my view that, development of the land by the trespasser cannot give him right, including but not limited to subdivision of the trespassed land, to accommodate the trespasser. The remedy available to trespasser is vacant possession and demolition of whatever is erected on the trespassed land. See the case of Tenende Budotela and Another vs Attorney General (Civil Appeal 29 of 2012) [2012] TZCA 247 and Mpungwe’s case (supra). As pointed hereinabove, there is no room for subdivision of the land to accommodate the trespasser, unless the owner consents to the said subdivision. Therefore, whatever investment defendant injected on the disputed plot, was at her own risk as it was held by the Court of Appeal in the case

of Hamisi Bushiri Pazi & Others vs Saul Henry Amon & Others (Civil Appeal 166 of 2019) [2022] TZCA 186(unreported). As pointed hereinabove, improvement by the defendant on the trespassed land, was not a justification for subdivision plot No.2 block “E”, the estate of the late Saada Katema. Again, receipts(exhibits D6 to D12) that were tendered by the defendant to show that she was paying land rent in respect of the disputed property, cannot legally be considered conclusive documentary proof vesting title or conferring ownership of the disputed property to her. See the case of Registered Trustees of Joy in The 32 Harvest vs Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139(Unreported). It was submitted by counsel for the plaintiff that, subdivision of plot No. 2 Block “E” was illegal and invalid because it was done by persons who have no authority. I entirely agree with him. Section 162 (1) of the Land Act[Cap. 113 R.E. 2019] clearly provides that, for land to be subdivided, three conditions must be met namely, (i) an application must be made to the Registrar by one or more of the occupiers of land, (ii) occupiers of the land must consent to subdivision of the land, and (iii) the Registrar shall partition the land in accordance with the agreement of the occupiers in common. Unfortunately, that was not done. Again, section 162(2) and (3) of Cap. 113 R.E. 2019

(supra) provides conditions for a land to be subdivided without the consent of all occupiers or any person in whose favour an order has been made for the sale of an undivided share in the land in execution of a decree. Conditions in section 162(2) and (3) of Cap. 113 R.E. 2019(supra) are that, (i) an application must be made to the Registrar through the prescribed form, (ii) the registrar must hear the applicant and any other occupier who wish to be heard, (iii) the registrar must consider conditions provided under section 162(3) (a) to (i) before granting the 33 application. It is my view that, plot No. 2 Block “E” was illegally subdivided to produce plot No. 108 and 110 because, one; the said plot was not owned in common between the late Saada Katema and the defendant, rather, defendant was a trespasser, two; there was no application for the said plot to be subdivided, three; there was no consent for subdivision of the said plot and four; the order for subdivision was not done by the Registrar. Since plot No. 2 block “E” was subdivided in contravention of the law, allocation of plot No. 110 to the defendant and issuance of certificate of occupancy (exhibit D5) to the defendant is invalid and cannot grant legally protectable and enforceable right to the defendant. In other words, the purported subdivision of plot No. 2 block “E” did not give right to the defendant to own plot

No. 110 and the certificate of title thereof. However good intention CW2 had in subdividing plot No. 2 block “E”, the said subdivision cannot be left to stand because it was done in violation of the law and was done by the person who had no power. Therefore, subdivision of plot No. 2 block “E” into plots No. 108 and 110 and the grant of plot No. 110 and Certificate of Title No. 75736 to the defendant is a nullity. For all what I have discussed hereinabove, I hold that, defendant trespassed on plot No. 2 block “E” Central area /Ngaya road service 34 industry Kahama Municipality, the estate of the late Saada Katema by building thereon commercial buildings. I further hold that, subdivision of plot No. 2 block “E” into plots No. 108 and 110 and the grant of plot No. 110 and Certificate of Title No. 75736 to the defendant is nullity. I therefore answer the 1st issue in affirmative. I also answer the 2nd and 3rd issues in the negative because defendant did not build on plot No. 29 block “E” which according to evidence does not exist. On the relief(s) namely, the 3rd issue, plaintiff prayed the court to issue a declaration order that defendant has continuous trespassed on plot No. 2 Block “E” and unlawfully erected her building on the said plot. I hereby issue that order. Plaintiff further prayed that defendant should be ordered to demolish her building and /or structures erected on

the disputed plot. I hereby grant that order because that is the proper remedy available in the case of trespass as it was held in Mpungwe’s case (supra). I further order that, defendant should demolish all building and /or structures erected on plot No. Block “E” Central area /Ngaya road service industry Kahama Municipality immediately at her own costs. In the plaint, plaintiff prayed to be paid TZS 1,600,000,000/= being compensation for loss of business. It is my considered view that 35 plaintiff is not entitled to that relief. The prayer for compensation of the said amount cannot be entertained because it was filed and claimed out of the 12 months provided for under item 1 of the schedule to the Law of Limitation Act [Cap 89 R.E. 2019] hence it is time barred. In other words, this court has no jurisdiction to grant that relief. See the case of Kigoma Ujiji Municipal Council vs Ulimwengu Rashid t/a Ujiji Mark Foundation (Civil Appeal No. 222 of 2020) [2023] TZCA 131(unreported). In his submissions, counsel for the plaintiff prayed plaintiff be awarded 1,500,000,000/= being special damages. That prayer cannot be granted because plaintiff did not prove by evidence that she is entitled to be paid the said amount as special damages. In the plaint, plaintiff prayed to be paid TZS 900,000,000/= (equivalent to monthly rental rate of TZS 3,000,000/= per month) for 27 years from

January 1995 to January 2022 and from January 2022 to the date of judgment. Apart from stating the said amount in the plaint, in her evidence, plaintiff (PW2) did not claim that amount. The said amount was only claimed by PW1 in her evidence. In my view, the prayer by PW2 in her evidence that the said amount be paid as mesne profit without evidence on how that amount was arrived at, is not enough. It was stated by PW1 that defendant has been receiving rent 36 from 1995 but no evidence was adduced relating to rent by the defendant. More so, no evidence was adduced by both PW1 and PW2 to establish mesne profit claimed. It was not enough for the plaintiff only to claim that amount in the plaint without justifying, by evidence, payment of the said amount. Plaintiff was supposed to adduce evidence to justify that claim as it was held by the Court of Appeal in the case of Eligius Kazimbaya vs Pilli Prisca Mutani @ Pilli Prisca Yangwe Mutani & Another (Civil Appeal 163 of 2019) [2020] TZCA 1886(unreported). In Kazimbaya’s case (supra), the Court of Appeal quoted its earlier decision in the case of Tanzania Sewing Machine Co. Ltd v. Njake Enterprises Ltd, Civil Appeal No. 15 of 2016 (unreported) that:- "We think in fairness to trial judge, DW2s tenuous figures of money which was collected as rent can hardly provide the basis for the determination of definite amounts of mesne profits to

cover the period of six to seven years when the respondent was in occupation of the suit property. We take judicial notice of the fact that in a Municipality like Arusha, payments of rents are evidenced by receipts and rents attract municipal taxes and fees which should have been evidenced by documents. We similarly take it that tenants occupying rooms in the suit property had rent agreements...These agreements were not exhibited before the trial court. This Court has on an occasion provided in the case of Abdul Hamad Mohamed Kassam and Abdulatiff L. Murukder v. Ahmed Mbaraka, Civil Appeal No. 42 of 2010 (unreported) commented that proof of mesne profits needs evidence because it is not a question of pure law: - 37 …There is no dispute that in law mesne profits is calculated on the basis of the rent payable at the material time. But it occurs to us that in the justice of this case, the basis and terms of the leased agreements had to be established first before determining the amount of mesne profits payable in the circumstances. Yet again, this was a matter which needed evidence. It was not a question of pure law.” Having quoted the above paragraphs, in Kazimbaya’s case (supra) the Court of Appeal concluded: - “We are of the view that, much as the 1st respondent would be entitled to mesne profits the same was not proved…” Guided by the above decision of the Court of Appeal, I

find that plaintiff failed to prove mesne profit hence she is not entitled to the amount claimed. Plaintiff has also prayed to be paid general damages. I have considered that in 2006, defendant was told to give vacant possession of the disputed plot, but she refused. Not only that but also, she was advised to negotiate with the plaintiff and agree with subdivision of the disputed plot, yet she refused. Considering all these and the circumstances in this case, I hereby award plaintiff to be paid Six Million Tanzanian Shillings (TZS 6,000,0000/=) only as general damages. I further hold that defendant shall pay costs of this case. 38 For all what I have discussed and held hereinabove, I hold that plaintiff has proved her case at the balance of probabilities. Dated at Shinyanga on this 13th November, 2023. B. E. K. Mganga

JUDGE Judgment delivered on this 13th November 2023 in chambers in the presence of Rosemary Makori, Advocate for the Plaintiff and Bakari Chubwa Muheza, Advocate for the defendant. B. E. K. Mganga

JUDGE 39