MOHAMMED ENTERPRISES TANZANIA LTD VS KIDAISHO ALMAS

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LAND CASE NO. 09 OF 2023 MOHAMMED ENTERPRISES TANZANIA LIMITED.........PLAINTIFF VERSUS KIDAISHO ALMASI ….….……………………............…. DEFENDANT JUDGMENT 19/02/2025 & 19/03/2025 SIMFUKWE, J. Mohammed Enterprises Tanzania Ltd (hereinafter referred to as ‘the Plaintiff’) instituted this suit against Kidaisho Almasi (hereinafter referred to as ‘the Defendant’) concerning a dispute over land registered under Certificate of Title No. 12709, located at Kisangara Estate within Mwanga 1 district in Kilimanjaro Region. The Plaintiff alleged that the Defendant unlawfully trespassed into the said land in April 2022. It was further claimed that the portion of land in dispute falls within the boundaries of the Plaintiff’s registered plot. The Plaintiff asserted that efforts have been made to compel the Defendant to vacate the land, including reporting the matter to the Village Executive Officer, who ordered the Defendant to cease the encroachment and stop any construction activity. Despite such directives, the Defendant has refused to comply. Consequently, the Plaintiff decided to institute the present suit, seeking judgment and decree against the Defendant, on the following reliefs: a. Declaration order that the Defendant is a trespasser in the suit premise. b. A permanent injunction restraining the Defendant, his servant, agents or any other person deriving authority from the Defendant from interfering in any manner whatsoever with the Plaintiff’s occupation and use of the premise in dispute. 2 c. An order of eviction against the Defendant from the suit premise. d. Costs of this suit be borne by the Defendant e. Any other relief(s) the honourable court may deem fit and equitable to grant The Defendant opposed the plaintiff’s claims set forth in the plaint by filing a Written Statement of Defence. The Defendant proclaimed that he is the lawful owner of the suit land, which was originally owned by his grandfather in 1981. He averred that his grandfather planted various fruit trees, including mangoes and coconut trees, on the land. Thereafter, in 1986, ownership of the land was transferred to his mother, who peacefully possessed and enjoyed it until 2016, when she gifted it to him. During the trial, the Plaintiff was represented by Mr. Peter Mwakabungu and Ms. Nuru Jamali, both learned counsels, while the Defendant was represented by Mr. Josephat Msuya, learned counsel. Before the commencement of the hearing, the following issues were framed and duly agreed upon by the parties: 1. Who is the lawful owner of the suit property? 3 2. If the first issue is resolved in favour of the plaintiff, whether the defendant is a trespasser. 3. To what reliefs are the parties entitled to? The Plaintiff had four witnesses and tendered ten exhibits in support of her case, while the Defendant called five witnesses to testify. Their evidence is summarized as follows: PW1 George Lusekelo Mwamakula, Senior Estates Manager, testified inter alia that the plaintiff is the lawful owner of the suit land. His testimony was supported by a Certificate of Title (CT No. 12709) which was admitted as Exhibit P1. PW1 explained that the original title deed was mortgaged to Absa Bank of Mauritius, and communication regarding the original copy was conducted through email. He tendered the email printouts and attachments confirming the communication and the same were admitted as Exhibit P2. Further, it was PW1’s evidence that the ownership of the suit land was originally under Karimjee Agricultural Ltd, which was later transferred to Mohamed Enterprises Ltd in 1999 through a Deed of Conveyance and Transfer of Right of Occupancy. He tendered the Deed of Conveyance and Transfer of Right of Occupancy, which were admitted as Exhibits P3 and 4 P4, respectively. PW1 testified further that when the plaintiff acquired the said land, there were no encumbrances. He stated that the government had allowed former employees of Karimjee to temporarily cultivate seasonal crops on the suit land under an agreement. However, the said agreement stated that the squatters won’t be allowed to claim anything in the future. A photocopy of the agreement, obtained from the squatters, was admitted as Exhibit P5. The testimony of PW1 also reveals that the plaintiff has been complying with legal obligations by paying land rent annually. The most recent land rent assessment was tendered as Exhibit P6. PW1 explained further that after multiple attempts to restrain the defendant from encroaching on the land, the plaintiff’s Board of Directors resolved to institute the present suit. PW2 Rashid Zuberi Msindo, the Estate Manager, testified that his duties, were supervision of production, security and identification of land boundaries. He identified the defendant as a trespasser who deposited building materials (stones, sand and bricks) on the suit land. PW2 said, the issue was reported to the village government whereas mediation meeting was conducted on 4/7/2022, and both parties were required to 5 present ownership documents on 11/7/2022. That, the plaintiff produced the Title Deed, while the defendant failed to produce any proof of ownership. Consequently, the Village Government ruled that the plaintiff was the rightful owner and directed the defendant to vacate. However, the defendant ignored the order and continued construction activities. A letter was issued on 17/10/2022, yet the defendant did not comply. The minutes of the meetings and the letters of 04/07/2022, 11/07/2022 and 17/10/2022 were admitted as Exhibits P7, P8, and P9, respectively. PW2 identified the invaded land and tendered GPS pictures which were admitted as Exhibit P10. PW3 Kacha Shabani Mruma, a retired Village Executive Officer, corroborated PW2’s testimony. He confirmed that he was present during the mediation process and that the village government had ruled in favour of the plaintiff. He further testified that prior to Mohamed Enterprises Ltd, the land was owned by Karimjee Jivanjee, who classified land users into three categories. The defendant’s grandfather, Ramadhani Mshengeli, was listed in Category 3 as per Exhibit P5. PW4 Atufigwege Ezekiel Mwasumbi, Acting Land Development Officer, among other things testified that the plaintiff holds a granted right 6 of occupancy. He said, the title deed (Exhibit P1) confirms ownership, and rent payments were regularly made. He identified exhibit P1 and P6. He explained that land disputes involving registered land should follow legal mechanisms, including the Commissioner for Lands or relevant tribunals. That marked the end of the plaintiff’s evidence. The defendant, in turn, called five witnesses, whose testimonies are summarized below. DW1 Kidaisho Almasi (the Defendant), testified that the suit land was given to him by his mother for personal use. He stated that the land contains permanent crops, including coconut trees, mangoes and tope tope trees. He agreed that he had deposited building materials (stones and bricks) on the land, which led to a dispute with the plaintiff. The dispute was referred before Lembeni Ward Tribunal at Kisangara village, where both parties called witnesses, and the tribunal conducted a site visit (locus in quo). However, he was unable to attend the ruling date because he was in remand due to a criminal case filed against him by the plaintiff. The tribunal ruled that the plaintiff had no right over the land. When the ruling was rescheduled, the plaintiff failed to appear. 7 DW1 alleged that the plaintiff pursued multiple legal actions against him, including a police case at Mwanga Police Station, and eventually, instituted the present case. Regarding Exhibit P8, DW1 stated that, people listed in the document did not attend the meeting. He also disputed Exhibit P9, alleging that he was chased away. He continued that the letter (Exhibit P9) was issued on 17/10/2022, while the ward tribunal’s ruling came later, on 18/11/2022. DW1 also contested the validity of the agreement tendered by the plaintiff (Exhibit P5), asserting that names were merely attached to it and some pages were missing. DW1 concluded that, the land which he owns, no sisal has ever been planted on it. DW2 Khadija Omary, the mother of the Defendant, testified that she originally owned the suit land, which was given to her as a gift by her father-in-law in 1986. She explained that the land had coconut palms and mango trees. That, she continued to own and use the land until when she was tired, she decided to transfer it to her son, the Defendant herein. DW2 testified further that when she was given that land, there was no dispute of any kind until 2016, when she was surprised to hear that her 8 son was accused of invading company land. The case was then instituted at the land tribunal, which ruled in favour of the defendant. DW3 Diwani Masudi Msuya, briefly testified that he had cultivated land near the Defendant’s land since childhood. He stated that he, the Defendant and one teacher Samwel had been farming in the area for years and continue to do so. DW4 Kivalia Juma, testified that the suit land was given to the Defendant’s mother by Ramadhani Msangi. He recalled witnessing the transaction and affirmed that the District Land and Housing Tribunal visited the locus in quo and determined the dispute in favour of the defendant. DW5 Juma Omary Msuya, testified that the land originally belonged to Ramadhani Msangi, who planted coconut palms, bananas, and mangoes. When he passed on, DW5 did not know how the land was distributed among his children and grandchildren. Also, he did not know how the estate came into possession of the farm. He guessed that the children of Ramadhani Msangi may have sold it. That marked the conclusion of the evidence from both parties. 9 In determining whether the Plaintiff has proved her case or not, the framed issues will be determined in a systematic manner. The first issue for determination is, who is the rightful owner of the suit land? Before addressing this issue, it is important to outline the legal principles that will guide this determination. First, the law requires the party with stronger evidence to win. It is a fundamental principle that he who alleges must prove, and the standard of proof in civil cases is on balance of probabilities. The principle is provided under Section 110(1) of the Evidence Act [CAP 6 R.E 2022]. The Court of Appeal has expounded further on this principle by emphasizing that the burden of proof never shifts to the adverse party until the party making the allegation has discharged his burden. The position has been affirmed in numerous decisions, including the case of Jasson Samson Rweikiza vs Novatus Rwechungura Nkwama (Civil Appeal No. 305 of 2020) [2021] TZCA 699 (29 November 2021), Tanzlii, where the Court of Appeal at page 14 stated that: “It is again elementary law that the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his burden and that the burden of proof is 10 not diluted on account of the weakness of the opposite party's case.” The second legal principle that will guide the determination of the rightful owner of the suit land is the well-settled doctrine that, in cases of land disputes, the person who holds a certificate of title, is presumed to be the lawful owner. This principle was insisted in the case of Amina Maulid Ambali & Others vs Ramadhani Juma (Civil Appeal No. 35 of 2019) [2020] TZCA 19 (25 February 2020) Tanzlii at page 6, last line to page 7, first line, where the Court of Appeal held that: “In our considered view, when two persons have competing interests in a landed property, the person with a certificate thereof will always be taken to be a lawful owner unless it is proved that the certificate was not lawfully obtained.” In our case, in proving ownership of the suit land, the Plaintiff, summoned PW1, Senior Estates Manager, PW2, Estate Manager, PW3, a retired Village Executive Officer and PW4, Land Development Officer. According to the testimony of PW1 and PW3, the suit land belonged to the Plaintiff, but formerly, it belonged to Karimjee Agricultural Ltd, who transferred it 11 to the Plaintiff through purchase in 1999. PW1 tendered the Certificate of Title with CT No. 12709, which was admitted as Exhibit P1, together with the Deed of Conveyance and Transfer of Right of Occupancy, which were admitted as Exhibits P3 and P4, respectively. PW3 revealed that the initial owner had passed the title deed to different categories, and one Ramadhani Mshengeli, the Defendant’s father, was under category 3 but was later ordered to vacate the land. Further, to prove that the suit land is covered under the certificate of Title, PW2 tendered GPS Map Camera pictures which were admitted as Exhibit P10. PW4, the Land Development Officer, confirmed to the Court that the Title is in the name of the Plaintiff, and that the Plaintiff is the one who is paying rent, as reflected in Exhibit P6 which was tendered by PW1. On part of the Defendant, he explained that the suit land belonged to him. He stated that it was once owned by his mother (DW2), who got it from her father-in-law in 1986. DW4 testified that the suit land was given to DW2 by Ramadhani Msangi. DW3 stated that they used to cultivate the suit land with the Defendant since their childhood. DW5 testified that the land belonged to Ramadhani Msangi but he did not know how the Plaintiff came into possession of that land. 12 Weighing the above evidence, it is appropriate to state on the outset that evidence of the Plaintiff is more compelling than that of the Defendant regarding ownership of the suit land. This is because the Plaintiff is the holder of the Certificate of Title. As previously stated, whenever there is a dispute over land, the holder of the Certificate of Title is deemed the lawful owner unless it is proved that the certificate was obtained unlawfully. The Defendant did not adduce any evidence to prove that the Certificate of Title (Exhibit P1) was obtained unlawfully. It is regrettable that the Certificate of Title was admitted without objection, which implies acceptance of its contents. See Joseph Deus @ Sahani & Another v. Republic (Criminal Appeal 564 of 2019) [2022] TZCA 411 Tanzlii at page 11. Moreover, the court has noted that, when cross-examined, the Defendant explained that the suit land is not included in the title deed which was tendered, as his land is measured ¾ acre. With due respect, the area trespassed by the Defendant falls within the land covered by the Certificate of Title. This fact is proved on balance of probabilities by the evidence of PW2, who tendered the GPS map pictures, which were 13 admitted as Exhibit P10 collectively, to show the area covered by the Certificate of Title owned by the Plaintiff. Based on the above scrutiny of evidence, I do not hesitate in concluding that the Plaintiff has proved on balance of probabilities, that she is the lawful owner of the suit land. The next issue for determination is whether the Defendant is a trespasser. This issue has already been determined in the first issue, that the land claimed by the Defendant falls within the area covered by the Certificate of Title. Exhibit P10 buttressed that the suit land is part of the Plaintiff’s land under the Certificate of Title (Exhibit P1). Consequently, it follows that the Defendant trespassed into the Plaintiff’s land. The Defendant claimed ownership of the suit land but failed to discharge the burden of proof, whereas the Plaintiff, on balance of probabilities, successfully proved ownership of the suit land. Through the evidence of witnesses and tendered exhibits, the Plaintiff has proved trespass. Lastly, regarding the reliefs which the parties are entitled to, the Plaintiff, in the plaint, prayed for declaration that the Defendant is a trespasser; two, a permanent injunction restraining the Defendant from 14 interfering with the Plaintiff’s occupation; three, an eviction order and four, costs of the suit. It is the finding of this Court that since the Plaintiff has proved ownership of the suit land and confirmed that the Defendant is a trespasser, this Court decides this suit in favour of the plaintiff and hereby grant the following reliefs: i. The Plaintiff is the lawful owner of the suit land. ii. The Defendant is hereby declared a trespasser on the suit land. iii. Permanent injunction is hereby issued, restraining the Defendant, his servants, agents, or any other person deriving authority from him from interfering in any manner whatsoever with the Plaintiff’s occupation and use of the suit land. iv. Eviction order is hereby issued against the Defendant, directing him to vacate the suit land immediately after delivery of this judgment. v. Lastly, the costs of this suit shall be borne by the Defendant. 15 Ordered accordingly. Dated and delivered at Moshi this 19th day of March 2025. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 19/03/2025 16