martha masanja adminstratix of the estate of masanja milanga versus beni marechela 7 others 2023 tzhclandd 16642 22 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO.105 OF 2021 MARTHA MASANJA (Adminstratix of the Estate of Masanja Milanga) PLAINTIFF VERSUS BENI MARECHELA 1^ DEFENDANT MAGRETH OBAKO 2"" DEFENDANT ABDUL MGUMBA DEFENDANT KULWA TIMOTHEO® KULWA KUKU 4™ DEFENDANT MASONGOLO HAMISI 5™ DEFENDANT JOSEPH KIBWINA 6™ DEFENDANT PATRICK MWASALINGE 7™ DEFENDANT ELINASTO EDWARD 8™ DEFENDANT EX-PARTE JUDGMENT Date ofLast Order: 30.05.2023 Date ofJudgment: 22.06.2023 T N. MWENEGOHA.J This judgment comes upon the failure of the defendants to appear and defend the claims against them, from the plaintiff herein above named. The root of this dispute, as narrated in her plaint, are the defendants' actions of trespass into the 4 acres land, owned by the plaintiff. The said 1 land being part of the 10 acres piece of land, located at Mbutu-Kichangani, Somangiia Ward, in Kigamboni District, formerly owned by the plaintiff's father, one Masanja Miianga, now deceased. According to the plaintiff, Martha Masanja, she is the Adminstratix of the Estate of her late father and also the sole heir to her father's estate. That,the defendants'trespass into the suit land, has caused a substantial destruction of crops found on the land in question. Hence, the plaintiff has claimed among others a declaration that she is a lawful owner of the suit land and a payment of specific damages by the defendants to the tune of 50,000,000/= (Fifty Million Tanzanian Shillings). During the final pre-trial conference, two issues were agreed for determination by this court as follows; - 1. Who is the lawful owner of the disputed land. 2. To what reliefs the parties are entitled to. Three witnesses were brought by the plaintiff to prove her case. Martha Masanja, the plaintiff, aged 43 years, testified as PW3. In her testimony she insisted that, she was born at Mbutu-Kichangani, Kigamboni, where the sujt land is situated. That, the same belonged to her late father and she inherited it after his death, in 1989. She produced a death certificate which was admitted at Exhibit Dl. She informed the Court that, after the death of her father, she was appointed as an Administratix of his estate. She tendered the minutes of the family meeting proposing her to be the Administratix of the estate of her late father, admitted as Exhibit D2, and Court appointment letter, admitted as exhibit D3. She insisted that, her father left her 10 acres of land. That, the defendants have trespassed in an area measuring 4 acres and have erected their structures. She also tendered photographs as proof of the structures built on the land trespassed upon. The same were received as Exhibit D4 collectively. Her testimony was supported by that of PW2, Eddie DIcluck Mwangonda, the plaintiff's neighbour. He Informed the Court that, he Is a resident of Mbutu area since 1980 and that he knows the plaintiff and her father, one Masanja very well. He Insisted that suit land belonged the plaintiff's father. The same Is measured about 10 acres. He told the Court that the plaintiff Is the only child of the late Masanja. That, the said land Is bordered by the road on one side, Mzee Omarl Said on the other side, Mzee Makaranga and Mzee Petro on the other sides. PWl, Vampoa Gurlsha Mboga, a relative of the plaintiff, also joined hands with her In her testimony which was similar to PW2. Further, In the final submissions, filed by Advocate Samuel Shadrack Ntaballla for the plaintiff, reiterated the testimonies of PW1-PW3. After analysing the above facts, I now have to determine who Is the rightful owner of the land In dispute. The plaintiff Informed this Court that she has come Into her ownership of the disputed land through Inheritance as a sole heir from her father's estate. That, the said land was part of her father's land comprising of a total of 10 acres. This testimony was collaborated with Exhibits D1-D3 and also the testimony of PWl. Further to that, the testimony of PW2, Eddie DIciuck Mwangonda also backed up the plaintiff's story. PW2 named the neighbours bordering the plaintiff's land together with a presence of a road on one of the sides. Basing on the fact that, the plaintiff's evidence was not challenged, there is no other story to dispute that of the plaintiff. Consequently, It Is the only evidence that can be considered In proving ownership. Basing on the exhibits tendered in Court and testimonies of the witnesses I find it worth of consideration as far as the ownership of the suit land is concerned. See Hemed Said versus Mohamed Mbilu (1984), TLR 113. Therefore, the issue is answered in the affirmative. As for the 2"'' issue, on the reliefs she is entitled to, the plaintiff claimed a payment of special damages to the tune of 50,000,000/=. However, neither in her testimony, nor her witnesses such thing was ever mentioned. In other words, she has failed to prove incurring such loss as claimed in her plaint. She cannot therefore be compensated as claimed. In the case of Anthony Ngoo and Another versus Kitinda Kimaro, Civil Appeal No. 25 of 2014, Court of Appeal of Tanzania, (unreported), it was observed that; - "/f is a trite law that, special damages must be specifically pleaded and proved. In proving special damages, documentary evidence must be produced to prove the alleged losd' In the case at hand, this rule was not followed, as no evidence, be oral or documentary, was given by the plaintiff to prove that she suffered the loss in question. The 2"" issue is therefore answered in the negative. In the event, the plaintiff is declared to be a lawful owner of the disputed land. Order as#,costej,,^^<5,\ •>, •A \ V- '.N. MWENEGOHA 'O omsy JUDGE 22/052/2023