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IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO.69 OF 2023 MUSSA HUSSEIN KHAMIS.........................................PLAINTIFF @Mussa Bajuni

VERSUS MTEMI NALUYAGA ..............................................1st DEFENDANT TANGANYIKA AUCTION MART CO. LTD............ 2nd DEFENDANT

EXPARTE JUDGMENT 13/9/2024 & 17/10/2024 A. MSAFIRI, J. The Plaintiff, Mussa Hussein Khamis @ Mussa Bajuni has instituted this suit against Mtemi Naluyaga, the 1st defendant and Tanganyika Auction Mart Co. Ltd, the 2nd defendant, a company incorporated under the laws of Tanzania. According to the plaint, the plaintiff claims that, sometimes in September, 2018, the defendants entered into the plaintiff's parcels of land and affixed on the plaintiff's premises, notices and orders of eviction, in the plaintiff's Plots No. 1528, 1530, 1532, and 1534 Block"E" 'situated at Chadibwa- Tungi Area, Kigamboni Municipality at Dar es Salaam. The plaintiff was. i shocked by the defendants' actions because the eviction order emanated from the proceedings and judgement to which the plaintiff was neither a party thereto, nor aware of their existence. That despite the efforts to stop the defendants, the defendants proceeded to demolish the plaintiff's three dwelling houses and a fence wall. As the result of the said demolition, the plaintiff lost income which was generated by the projects which the plaintiff was carrying out in the said premises. Therefore, the plaintiff prays for judgment and decree against the defendants jointly and severally as follows; a) The defendants be ordered to compensate the plaintiff the sum of TZS 470,000,000/= being the value of demolished fence and three dwelling

houses. b) The defendant be ordered to compensate the plaintiff the sum of TZS 750,000/= being monthly rent from the date of demolition to the date of filing of the suit. c) Compensation of TZS 80,000,000/= as the loss of bargain on intended sale. d) General damages. e) Interest on (a), (b) and (c) at rate of 32% from the date of demolition (i.e.,28.02.2018) till judgment. Mix- 2 f) Interest on decretal sum from the date of judgement till full payment. g) Permanent injunction restraining the defendant from involving in and interfering with the plaintiff's peaceful use and enjoyment over plots No. 1528, 1530, 1532, and 1534 Block "E" Tungi. h) Cost of the suit. i) Any other orders and reliefs as this honourable court may deem fit to make. The 2nd defendant has never appeared in Court or file her defence. The service of the 2nd defendant was effected through the Court Process Server. However, the same deponed an affidavit of service stating that the 2nd defendant could not be traced at the pointed residence and there was no forwarded address. Having been satisfied that the 2nd defendant was duly served, the Court ordered substituted service by publication whereby the 2nd defendant was served by publication in Mwananchi Newspaper on 03/6/2023. By 10/7/2023, the 2nd defendant had neither appeared in Court nor filed her written statement of defence. The Court then ordered the

hearing of the case to proceed ex-parte against the 2nd defendant.| n 3 On the 1st defendant, he was served and physically appeared in court. On 09/5/2023 the 1st defendant was present in court, in person. He informed the court that he has received the Plaint. The court ordered the 1st defendant to file his written statement of defence (WSD) within the statutory time. However, by 10/7/2023 when the 1st defendant appeared again in court, he has not yet filed his WSD. On 27/7/2023, Mr Alex Balomi, Advocate for the 1st defendant appeared in court seeking for extension of time to file the 1st defendant WSD, the court, not satisfied by the reasons advanced by Mr Balomi, rejected the prayers and entered an exparte order against the 1st defendant for failure to file his defense within time. Therefore, this suit was heard exparte against the defendants. Before the commencement of ex-parte hearing, the Court framed issues for determination as follows: - 1. Whether the plaintiff is the lawful owner of the landed properties known as Plots No. 1528, 1530,1532, and 1534, Block "E", Chadibwa-Tungi Area, Kigamboni Municipality, (formerly known as Temeke Municipality), DSM (herein the suit property). । / 4 2. Whether the demolition of the plaintiff's landed property known as Plots No. 1528, 1530,1532, and 1534, Block "E" Chadibwa-Tungi Area, Kigamboni Municipality done by the defendants was lawful.

3. To what reliefs are the parties entitled to. During the ex-parte hearing, the plaintiff had three witnesses who testified orally. They tendered ten (10) exhibits which were admitted in court. In his evidence, PW1, Mussa Hussein Hamisi @ Mussa Bajuni the plaintiff, stated that he is the owner of the landed property i.e. Plots No. 1528, 1530, 1532,1534 Block E, Tungi, Kigamboni Municipality, by then under Temeke Municipality. That he purchased the land from one Mwinyikombo Hela Kisengo in 2006. He tendered the sale agreement between him and Mwinyikombo Hela Kisengo which was admitted in Court as Exhibit Pl. He stated that after the purchase, he surveyed and registered the landed property as Plots No. 1528 and 1530 of Block E, Tungi, Kigamboni and he was granted a Title Deed on the said plots. The Title Deed was admitted as Exhibit P2. PW1 stated he got another area from the parcel of land he purchased from Mwinyikombo. That the area was Plot No. 1532 and it was surveyed. 5 and divided into three plots namely Plots No. 1528, 1530 and 1532. On proof of ownership of this parcel of land, he tendered the Title Deed which was admitted as exhibit P3. PW1 testified further that he purchased another land property which is Plot No. 1534 Block E Tungi, Kigamboni, Dar es Salaam from the first owner Upendo Kabula Msobi. He produced a Deed of Transfer of ownership which was admitted as

exhibit P4. The court also received the receipts on the Government fee payments and payments on land rent and deed of plan. The receipts were admitted as exhibits P4 and P5 respectively. PW1 told the court that having acquired the said property, he made some developments whereby he erected the brick fence wall surrounding all the plots, and constructed two houses. He said that after that he conducted valuation on the suit premises. He produced valuation report which was admitted as P7. He stated that the total value of the suit property was TZS 422,600,000/=, the premise was used for yard and for residence. He leased the area for TZS 750,000/= monthly rent and that he has leased the premises from 2006 to 2018. jL 6 PW1 testified further that in 2018, he found a copy of eviction notice and demolition notice affixed on the suit property. The notices were from Temeke District Land and Housing Tribunal and the copy of eviction was from Tanganyika Auction Mart (the 2nd defendant). The said notices were affixed on his fence surrounding his properties. He stated that the names in the said copies were of Mtemi Naluyaga who is the 1st defendant, and the copy from Tanganyika Auction Mart has names of Orestic Ngulumi. The eviction order was issued by the Temeke District Tribunal in Application No. 298 of 2018 and a copy from Tanganyika Auction Mart was admitted as exhibit P8. PW1 stated

that the eviction order has order of eviction of one Orestic Ngulumi and not him. That exhibit P8 was affixed to the walls of the suit property. He said that he doesn't know Orestic Ngulumi. That after that he reported the matter to the Street Government of Tuamoyo, Kigamboni, then to the District Commissioner and later he and his neighbours who were also affected, instituted objection proceedings at the said Temeke District Tribunal vide Application No. 292/2018. The objection proceeding application was not heard to merits, but Mtemi Naluyaga (1st defendant) filed an Application No. 411/2018 praying for an order to evict 25 people 7 including the plaintiff from the disputed area, the prayer which was granted and the eviction order was issued by the Tribunal. Following that, PW1 and others instituted Land Revision No. 1 of 2009 before the High Court Land Division, seeking this court to revise the order issued in Application No. 411/2018 by the Temeke District Tribunal. PW1 said that the 1st defendant was aware of the proceedings in the High Court as he was duly served and he appeared and attended the hearing of the application for revision. He produced the summons which was admitted as exhibit P9. PW1 said that the summons was served to the 1st defendant and received on 27/2/2019. That the defendants demolished the suit premises while the application for revision was pending in

the High Court. That later, the High Court having revised the decision in Application No. 411/2018 by Temeke District Court, held that PW1 was not party to the dispute in Application No. 8/2006. He produced the decision of the said revision of High Court which was received for judicial notice. He also produced the official search which was admitted as exhibit P10. He prayed for the Court to grant the reliefs prayed in the plaint. PW2, Mustafa Kaisi Mohamed, stated that he was a Street Chairman of Tuamoyo Street. He knew Musa Bajuni @ Musa Hussein Hamisi who was 8 an employee of Temeke Municipal Council. He stated that on 21/9/2006 he witnessed and signed and stamped the sale agreement of a piece of farm between the plaintiff and Mwinyikombo. He testified further that the farm had a size of 95X50 meters. He further stated he knew Mtemi Naluyaga as he also bought six acres from Mzee Mwinyikombo. He stated further that he heard that there was a dispute between Mtemi Naluyaga, Mussa Hussein and others whereby Mtemi Naluyaga claimed that Musa Hussein and others have trespassed into his land. That PW2 later heard that Mtemi Naluyaga had succeeded in his case and was demolishing the houses. That PW2 witnessed the demolition process whereby Musa Hamisi and others' houses were demolished. PW3 was Juma Suleimani Tindwa. He said that he is the administrator of the estate of the late

Mwinyikombo Hela appointed by Kigamboni Primary Court. He stated that after the death of Mwinyikombo who was his grandfather, he found the sale agreement between the plaintiff and the late Mwinyikombo Hela among the documents of the sale agreements on which the late Mwinyikombo has sold the pieces of his farm. He further stated that, Ntemi Naluyaga purchased six (6) acres also from the late Mwinyikombo Hela on 28/11/1992 but the said piece of land is different from the one sold to the plaintiff. juI [ 9 PW3 stated that, one day he found the eviction papers affixed on his house. The eviction order was also affixed on the houses of the plaintiff and all the neighbouring houses. That the order was eviction order from the District Tribunal at Temeke. That he, the plaintiff and the other neighbours filed objection proceedings No. 389/2018 at the Temeke District Tribunal where the said application was kept pending. That, Mtemi Naluyaga filed Application No. 411/2018 to execute the decision of Land Application No. 8 of 2006 between Orestic Ngulimi vs Mtemi Naluyaga. The Tribunal granted the application, and order eviction and demolition of all the houses including his house and the plaintiff houses. He testified that he and the plaintiff instituted Land Revision No. 1/2019 at the High Court which was decided in their favour but the defendants have already demolished their

houses. Having gone through the evidence presented both oral and documentary, I will now determine the framed issues, the first one being whether the plaintiff is the lawful owner of the suit property. It is a principle of law that whoever desires a Court to give judgment in his/her favour, he/she must prove that the facts they allege or claim, does exist. This principle law is set under Sections 110 and 112 of the Evidence io Act, Cap. 6 R.E 2022. This principle has been emphasized also by case law in numerous cases among them is the case of Ernest Sebastian Mbele & 2 others, Civil Appeal No. 66 of 2019, CAT at Iringa, (unreported) where the Court of Appeal held that;- The law places a burden of proof upon a person who desires Court to give judgment and such a person who asserts the existence of facts to prove that those facts exists (Section 110 (1) and (2) of the Evidence Act.) Such facts is said to be proved when in civil matters its existence is established by a preponderance ofprobability. ” Guided by the above principle, on the case at hand, the plaintiff bears the evidential burden to prove her case on a balance of probabilities despite that the hearing was one sided (ex-parte against the defendants). The plaintiff in his evidence has managed to establish that he purchased the disputed landed property from Mwinyikombo Hela Kisongo in 21/02/2006 the evidence which was

supported by PW2 who at the time of purchase was the Street Chairman of Tuamoyo, and PW3 who is the administrator of the late Mwinyikombo Hela Kisongo as per Exhibit Pl. As per evidence, PW1 registered the suit property and he was issued with the Title Deed of Plot 1528,1530 and 1532 Block E, Tungi at Kigamboni ii as per Exhibit P2 & P3. The evidence shows that PWI also purchased Plot No. 1534 from Upendo Kabula Msobi as per Exhibit P4, and he made all the necessary Government payments for the landed property as per Exhibit P5. I have extensively examined evidence on record, and I am satisfied that the plaintiff unequivocally established that he is the rightful owner of the suit landed property. This has been proved vide exhibits Pl, P2, P3 and P4. Hence the first issue is answered in affirmative. As per the second issue on whether the demolition of the plaintiff's landed property done by the defendants was lawful; according to the evidence adduced by PWI, he found the eviction and demolition order affixed in his property as per Exhibit 8. The eviction order was issued by the District Land and Housing Tribunal of Temeke resulting from the decision in Land Application No. 8/2006 between Mtemi Naluyaga vs Orestic Ngulumi and the notice was issued by Tanganyika Auction Mart, the 2nd defendant. Following the eviction order, the plaintiff, PW3 and others filed objection proceedings

in Application No. 292/2018 claiming that they were not party to the Land Application No. 8/2006. This evidence was also supported by PW3. 12 The evidence shows that the 1st defendant went and filed Application for execution No. 411 of 2018 seeking for the eviction order which was granted. However, the plaintiffs and his fellows instituted the application before this court seeking for revision of Application for execution No. 411 of 2018. It was Application for revision No.l of 2019. The 1st defendant was served with the summons of the Application and despite that, he went and demolish 25 houses including the houses of the plaintiffs. Exhibit P9, the summons, shows that the 1st defendant was served with the summons to appear in Land Revision No. 1 of 2019 through his advocate Lutufyo Mvumbagu. The summons was received on the same date of service i.e., 27/02/2024 at 13:32. The summons was informing Mtemi Naluyaga that the Land Revision No. 1/2019 was fixed for mention on 04/3/2019 and summoned the parties to appear. The Ruling of Land Revision No. 1 of 2019 by this court shows that the 1st defendant appeared in court for hearing and was represented by Mr Alex Balomi, learned advocate. The Ruling was delivered on 30/9/2020. In the said Ruling (which has been received for judicial notice), this court invoked its revisional powers and proceed to strike out the proceedings in

Misc. Land Application No. 411 of 2018 in favour of Musa Bajuni (the 1st defendant) and Juma Selemani Tindwa (in instant suit as PW3). Mfr 13 Unfortunately, while the proceedings of Land Revision No. 1/2019 which this court was moved to revise Misc. Application No. 411 of 2018 was pending in this court, the defendants went on and demolished the suit properties of the plaintiff on 30/7/2019. This act shows that the 1st defendant acted with malice while knowing that there was pending matters in court against the order of eviction and demolition. The fact that the defendants went on and demolished the suit premises while having knowledge and were actually party to the Land Revision which was filed to revise the order of eviction and demolition issued by the District Tribunal, shows clear that the demolition of the plaintiff premises which was done by the defendants was unlawful. The second issue is answered in affirmative. The third issue is whether the parties are entitled to any reliefs. Since the suit is decided in favour of the plaintiff then this court finds that he is entitled to some of the reliefs as pleaded in his Plaint, subject to the law and evidence adduced in court. The plaintiff is seeking for compensation of TZS 470 million, being the value of demolished fence and the three dwelling houses. However, in the evidence, the valuation which was done and the report

admitted as exhibit P7 was done in August 2021 which was well after the demolition which 14 took place on 30/7/2019. The court was not told or shown how the plaintiff has reached to the stated amount while the valuation report shows that the valuation was done in 2021 where the suit premises were supposedly already demolished. It is my view that the plaintiff did not prove that the value of the demolished fence and two dwelling houses was worth TZS 470 million at the time of demolition. Nevertheless, the plaintiff managed to prove that indeed his property were demolished and he suffered great loss financially. Therefore in consideration of that this court declare that plaintiff is entitled to compensation of TZS 300,000,000/=. I also grant an interest of rate of 7% from the date of demolition i.e. 28/02/2018 to the date of this judgment. I also find that the plaintiff has failed to prove the reliefs sought of monthly rent as there was no evidence that he was leasing the demolished properties and he did not prove that he was getting monthly rent from the purported tenancy as he claimed in his testimony. I also refuse to grant the relief of TZS 80 million since there is no proof of loss of bargain as the plaintiff claims. A permanent injunction is entered against the defendants from involving in or interfering in the use and enjoyment of suit premises. JL / 15 Having also considered the extent of loss both physically and financially, I find that the plaintiff is entitled to general damages to the tune of 50,000,000/=, and costs of suit. 16