LAND CASE NO 94 OF 2023 scanned

IN THE HIGH COURT OF TANZANIA LAND DIVISION (AT DAR ES SALAAM) LAND CASE NO 94 OF 2023 MWAZANI RAMADHANI DUMA (An administratix Of the estate of the late HAMISA ABDALLAH CHENJA)............ PLAINTIFF VERSUS PETER KIULA..........................................................................................1STDEFENDANT FREEMAN SHIRIMA...............................................................................2ndDEFENDANT UBUNGO MUNICIPAL COUNCIL.............................................................3rdDEFENDANT THE ATTORNEY GENERAL..................................................................... 4thDEFENDANT JUDGMENT 25/7/2024 & 22/8/2024 A. MSAFIRI, J, In this suit, the plaintiff herein above have sued the defendants named as above, jointly and severally claiming for a vacant possession of the piece of land located at Goba Center Street, Goba Ward, Ubungo Municipality in Dar es Salaam, (the suit premise or disputed land), the plaintiff claim that the said piece of land is the lawful property of the late HAMISA ABDALLAH CHENJA, of which the plaintiff is entitled to administer. The plaintiff claims that the late Hamisa Abdallah Chenja, (herein will be referred as Bi.Hamisa) inherited the suit premise from her late father i Abdallah Chenja in the year 1966. That the defendants have no lawful ownership or any claim of right whatsoever over the suit premise as the 3rd defendant was a mere invitee to the suit premise and not otherwise. The plaintiff therefore prays for the judgment and decree against the defendants jointly and severally as follows: 1. The suit land be declared the lawful property of the late Hamisa Abdallah Chenja thus be subjected to her estate for administration by the plaintiff. 2. The defendants jointly and severally be ordered to give vacant possession of the suit land forthwith. 3. The defendants jointly and severally be ordered to pay mesne profit to the tune of TZS 5,000,000/= per month from October, 2018 till the day of giving vacant possession of the suit land. 4. That the defendants be ordered to pay interest on the amount above at commercial rate annually from the date the cause of action arose to the date of judgment. 5. The defendants be ordered to pay interest at court rate from the date of judgment to the date of full satisfaction of the court decree. 6. Payment of general damages to be assessed by this court. 7. Costs of the suit. 2 The defendants filed their written statements of defence (WSD). The 1st and 2nd defendants filed a joint WSD and 3rd and 4th defendants also filed their joint WSD. All defendants vehemently denied the plaintiffs' claims and put her to strict proof. The plaintiff was represented by Mr. Amon Rwiza, learned advocate, the 1st and 2nd defendants were represented by Mr. Eliezer Kileo, learned advocate while the 3rd and 4th defendants were serviced legally by Ms. Victoria Lugendo, State Attorney who was always accompanied by different State Attorney on each date in which the matter was scheduled. Before the commencement of the trial, two issues were framed by the court in agreement of all parties. The issues are; i) Whether the plaintiff is the lawful owner of the land in dispute. ii) To what reliefs are parties entitled to. The hearing commenced with the plaintiff herself testifying as PW1. She said that she is the administratrix of the estate of the late Hamisa Abdallah Chenja (Bi Hamisa) who was her aunt and she died on 29/11/2021. She produced the letter of appointment which was admitted as Exhibit Pl. PW1 testified further that her claim is on the suit premise/ disputed land which is unsurveyed measured 22 meters on the East neighbouring Street,. 3 road, 22 meters on the West neighboring Selemani Athuman, 13 meters on the South neighbouring main road to Mbezi kimara via Goba and 12 meters on the North neighbouring Maige. That the land is located at Goba Centre Street, Goba Ward, Ubungo Municipality. PW1 stated further that Bi Hamisa got the suit premise by inheriting from her father Abdalla Chenja in the year 1969. She said that Bi Hamisa has constructed a building at the suit land and the building was comprised of the two rooms. That in 1978 to 1979, the Village Government of Goba requested Bi Hamisa to use one of the rooms at Bi Hamisa's house as a shop and another room to use as Guards office. The request was made orally by then village chairman one Shomari Pazi and Hamisa agreed on condition that once the Village Government acquire their own office, then they should return/hand back the office to Bi Hamisa. That after the office term of Shomari Pazi was over, the suit premise was returned back to Bi Hamisa, the owner. PW1 told the court that in 1999, another chairman was appointed by the name of Selemani Athumani who again, approached Bi Hamisa and requested to use the suit premise as the Village Government office. Bi Hamisa agreed and gave the suit premise to Selemani Athumani to use as the office of Goba village. That after the term of Selemani Athumani was 4 over, the office of the village at the suit premise was passed over to Peter Kiula (the 1st defendant). That the said offices went on to run until 2018 when Tigo telephone tower/pole which was nearby the suit premise fell over the office building on the suit premise and smash it into the ground. That, after that incident, Tigo Company compensated the Goba Village Government by building new offices at another land owned by the village Government and after that the village Government offices shifted to the new office which was on their own land and they vacated Bi Hamisa's place. That the new area is located at Goba Kinzudi. PW1 testified further that on 24/7/2018, Peter Kiula (the 1st defendant) invaded the suit land owned by Bi Hamisa and started to clear the debris of the collapsed buildings, measured the land and started construction of the business building. That PW1 arrived there at the premise and was shocked to see the ongoing construction, she confronted the 1st defendant and attempted to stop the construction but she was arrested and taken at Police Post Goba. Later she was released and advised to institute a land suit. PW1 said that she instituted a case at the District Land and Housing Tribunal of Kinondoni at Mwananyamala (DLHT) claiming the land of Bi Hamisa. That at the DLHT she sued the 1st defendant but she was told - 5 that Freeman Shirima was the one who was building on the disputed land hence she joined him in the suit. That she was later advised to join the Ubungo Municipal Counsel as one of the party. She produced a letter from Ubungo Municipal which stated that the Municipal has no any knowledge about the construction which was going on the area. The letter was admitted as exhibit P2. That after joining the Ubungo Municipality and the Attorney General, the matter at the DLHT collapsed and it was reinstituted at this court which is the current suit. Questioned by her advocate, PW1 said that she know Philipo Msamvu and that he also lived at Goba Village at a place known as Mto Mbezi and was selling alcohol beverages. PW1 vehemently denied the fact that the area in dispute was owned by Philipo Msamvu. She maintained that the suit premise is the lawful property of Bi Hamisa. That the defendants have illegally built the commercial building at the premise and are collecting rent. She prayed for the payments of compensation of rental payments from October 2018 until the judgment date, the amount of TZS 5million. In cross examination, PW1 stated that when Bi Hamisa inherited the suit premise from her late father, PW1 was there as she was about 12 years old. She admitted to have no any document to prove the ownership of the suit premise and she added that during those times there was no such documents. She agreed that the agreement between Shomari Pazi and other Village Chairmen about using the suit house of Bi Hamisa for office were orally and there is no any written document on that. She said that Bi Hamisa had no Title over the suit land but she owned it by customary. PW2 was Ramadhani Juma Pazi who testified that he lives at Goba and has lived there all his life. He said that he knew Bi Hamisa and her father Abdallah Chenja. That the family of Bi Hamisa was close to his family. That when Abdallah Chenja died, his daughter Bi Hamisa inherited the suit area where she built two houses. PW2 said that around 1975/1976, the village Government of Goba requested to use one building as their office. That the request was made by the Village meeting and Bi Hamisa agreed to lend the village her landed property to use as offices on condition that once the village has acquired its own area, it should return the suit premise back to Bi Hamisa. PW2 said that he is the resident around the area and that he was a member of the Village Government of the area. That he was a cell leader until 2015. PW2 maintained that what he know is that the suit land belonged to Bi Hamisa and not the Village Government. 7 When asked about the claim that the suit premise is owned by Ubungo Municipal which they got from Philipo Msamvu, the witness said that he know Philipo Msamvu and he is not the owner of the disputed area. That he was living at Mbezi and has no any area at Goba. That the said Philipo was a farmer and used to visit Goba often. He said he knows the plaintiff who is the niece of Bi Hamisa. PW3 was Selemani Athumani Mkutano who said that he knows Bi Hamisa as they were distantly related. That he was once the Chairman of the Street Government of Goba from 1999 until 2009. That at the time the Village has no office so he went to Bi Hamisa and requested her to allow the Village to use her house as the office and Bi Hamisa agreed on condition that after getting a new office, the house should be returned back to her. PW3 said further that in 2009 when he finished his term in the office, he took Peter Kiula, the incoming Chairman to meet Bi Hamisa. That, he, PW£ returned the house to Bi Hamisa but Bi Hamisa agreed that the Street Government should continue to use her house as office until they can get their own place. M- 8 That before moving out of Bi Hamisa place, the Tigo Telephone tower fell over the said house and destroyed the building which was being used by the Street Government as the office. He said further that he knows Philipo Msamvu and that his place was at Mbezi Kibululu. He maintained that Msamvu has never owned area at Goba. PW3 said that he did not sign the handover letter to Peter Kiula and that the contents of the said handover letter particularly about the boundaries is wrong. When he was shown the signature in the handover letter he said that it was not his signature and he did not sign the document. That he gave the office equipment to the Street Executive Office not Peter Kiula. After the closure of plaintiff's evidence, due to the facts of the case, the 3rd and 4th defendants prayed to give their evidence ahead of the 1st and 2nd defendants. Two witnesses gave evidence for the defence of the 3rd and 4th defendants. The first witness was Elias Peter Kunambi, who testified as DW1. He said that he is the Street Executive Officer currently working at Kinondoni Shamba Street in Kinondoni Municipality but in 2006 he was working at Goba Street in Goba Ward. That he worked there as Street Executive from 2006-2012. 9 He said that when he went to work at Goba Street in 2006, he found there was a permanent building which was used as offices of Goba Street Government which was formerly known as Goba Village Government. He said that from the documents he found in the office records, the building was owned by the Government. That in 1974 there was Operesheni Vijiji whereby there was planning of the villages. That one Mzee Philipo Msamvu was allocated the disputed area through the said Operesheni Vijiji. He was living on the area which is now the office of Goba Street. That in 1976, the Government acquired the disputed area for the purpose of using it for the Village Government Office. That Mzee Msamvu was reallocated to another area at Goba Kiburururu. He said that therefore from 1976, the disputed area was owned by the Government which constructed the office building. He said that from 2006 to 2009, there was no any dispute over the area until 2010 when he emerged one Alfred Maige who claimed that he had purchased the suit area. That the said Maige started to construct a foundation on the disputed land, that DW1 stopped him but he continued. That the Street Committee met and discussed how to stop the said Alfred Maige and they decided to institute the suit at Goba Ward Tribunal i.e. Shauri No 340/2010. That during the hearing at the Ward Tribunal, the. io key witnesses were Philipo Msamvu, Selemani Athumani @Mbaba who was Goba Street Chairman from 1999-2009, Felix Tadeo Mwanambilimbi who was Goba Councilor from 2000-2005 and others. In its decision, Goba Ward ordered Alfred Maige to stop the construction on the disputed land and demolish any building he has erected thereon. That Alfred did not stop construction and instead he appealed to the District Tribunal of Kinondoni. The court took judicial notice of Goba Ward Tribunal in Shauri No 340/2010. In cross examination, the witness said that he didn't know if the proceedings of Shauri No. 340 at Goba Ward tribunal was still valid as he didn't know the results of the appeal. Bakari Mengi Mshanga who testified as DW2 was the second witness for the 3rd &4th defendants. He said that he is a Street Executive Officer of Goba Street since November 2021 until to date. He said that the office of Goba Street is located at Goba Kinzudi but before that it was at Goba Center. That there was an accident at Goba Center where the telephone pole fell over the office building and it collapsed to the ground. That the new office was built at Goba Kinzudi. He said that the place is owned by the Government and it was acquired from Philipo Msamvu who was the former owner but he was relocated to another area. He said that there ii was an agreement between the said Msamvu and Goba Village Government. He produced the said agreement which was admitted as exhibit DI. That later the office decided to invest on the disputed area and the decision was discussed and approved by wananchi at meeting. He produced the Minutes which were admitted as exhibit D2. DW2 stated further that after the resolution to invest on the area was passed, the agreement was entered between Goba Street Government and one Freeman Kassian Shirima. He produced the Joint Venture Agreement which was admitted as exhibit D3. That after the agreement was entered, the construction started on the disputed area and the business building was constructed there at disputed area. In cross examination, he admitted that exhibit DI states that the area which Philipo Msamvu gave to Goba Village Government was at Goba Kijijini and that it does not show the size, boundaries and the clear location of the area. The 1st and 2nd defendants were the only witnesses in their case. DW3 was the 1st defendant Peter Kiula. He testified that he was elected a Street Chairman of Goba Street and served for ten years from 25/10/2009 to 24/11/2019. He said that the suit land was owned by Goba Village Government since 01/6/1976 when Philipo Marco Msamvu who was the 12 owner of the area was allocated to another area and his former area was acquired by the Village Government. That Msamvu was given another area at Kibululu and the suit land is not owned individually by him the 3rd defendant but it is a public area. DW3 said that he has been sued by the Bi Hamisa claiming that he has invaded her land and sold it to Shirima (2nd defendant). That he was sued in Case No. 587 of 2018 which was later struck out for non-joinder of Ubungo Municipal Council. Then the plaintiff instituted the current case. DW3 stated that he supervised the construction of a new office of the Street Government when the old one collapsed after the Tigo telephone tower fell over it. That after the office has moved to another area, he convened a street meeting where it was decided that the street government should construct a business park at the old area where the offices used to be which is the disputed area. That it was agreed to find an investor who will construct and invest on the area. That in that public meeting, Shirima was approved among other investors to invest in the disputed area. That after that approval, DW3 communicated with the Land Office of Ubungo Municipal Council which drafted an agreement between Goba Street Government and Mr. Shirima on investment on the disputed land, i 13 DW3 admitted to receive the Street Office from the predecessor Selemani Athumani Makutano. That Selemani was the outgoing chairman who handed over the office to him. He identified exhibit DI as an agreement between Goba Village and Philipo Msamvu, Exhibit D2 as Minutes of Goba Street meeting and exhibit D3 as an agreement of investment between Goba Street Government and Mr. Shirima. He also produced a hand over report which he received from the outgoing chairman Selemani Athmani Mkutano which was admitted as exhibit D4. In cross examination, the witness said that he got the information about the suit land to be owned by Msamvu from the documents at the Street Government Office. He said that Philipo Msamvu is now deceased but his relatives and family is there and lives at Goba. DW4 was the 2nd defendant, Freeman Kasian Shirima. He testified in court that he has invested in the suit land since 2018. That he knew about the suit area through Philipo Mazengo who is an agent (dalali) who informed him about the land which is being leased by Goba Street Government. That he went and met with the Street leaders and entered an agreement by which he DW4 was to construct a business park on the disputed land. He identified the lease agreement as exhibit D3. , L 14 He said that there was dispute over the suit land and once when he started building the area, he was served with the stop order to stop construction. He said that he informed the Street Chairman Kiula. After that he continued with the construction of the building on the area in dispute. He don't know who was issuing the orders and he also don't know who is the owner of the disputed land. That he constructed the shops at the disputed area and have leased them to other people. In cross examination, DW4 said that he was at the meeting which approved him to invest on the area. That, he has entered a lease agreement with Goba Street Government and Ubungo Municipality and the payments are as per the agreements. That he signed the said agreement in 2019. Having gone through the evidence oral and documentary which was adduced in court, now I will determine the issues as framed. The first issue is whether the plaintiff is the lawful owner of the land in dispute? In this, it is the plaintiff's obligation to establish or prove that she is the lawful owner of the suit property. In the evidence, the plaintiff is the administratix of the estate of the late Bi. Hamisa. She claims that Bi Hamisa is the lawful owner of the suit property and she is an appointed administratix of the estate of Bi Hamisa who have the right of claiming L. 15 ownership in her duty of administrating the said estate. That the plaintiff has a duty to include/add the suit property into the estate of Bi Hamisa who is the lawful owner of the said suit property. Hence the plaintiff has to establish first ownership of Bi Hamisa on the suit property. It is the cardinal principle of law that he who alleges must prove. This is embedded under Section 110(1), (2) of the Evidence Act, Cap. 6 R.E 2022 which provides; 110(1); whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 110(2) when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. In civil cases, the law places a burden of proof upon a person who desires a Court to give judgment in his or her favour and such a person who states the existence of facts has to prove existence of those facts. Such fact is said to be proved when in civil matters, its existence is established by a preponderance of probability. (See the decision of the Court of Appeal case of Ernest Sebastian Mbele vs. Sebastian Sebastian 16 Mbele, Civil Appeal No.66 of 2019 CAT Iringa (Unreported) in which this cardinal principal on burden of proof on balance of probabilities was set). The Court of Appeal in the cited case of Ernest Sebastian Mbele (supra), when illustrating on the proof on balance of probabilities or preponderance of probabilities, quoted with approval the Indian case of Narayan Ganesh Dastane vs Sucheta Nayaran Dastane (1975) AIR (SC) 1534 that, "The normal rule which governs civil proceedings is that a fact can be said to be established ifit is proved by a preponderance ofprobabilities. This is for the reason that ...a fact is said to be proved when Court either believes it to exist or considers its existence so probable that a prudent man ought to act upon the supposition that it exists. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved, (emphasis added). Applying this above principle in the case at hand which I am bound to do so, I can say that I am faced with conflicting probabilities concerning the ownership of Bi Hamisa. In the evidence, PW1, Mwazani Duma and PW2. 17 Ramadhani Juma Pazi said that the suit property is the lawful property of Bi Hamisa. It was said that Bi Hamisa inherited the disputed land from her father Abdallah Chenja. That Bi Hamisa has owned the suit land since 1969 by inheritance. There was no evidence of how the purported Abdallah Chenja came to own the suit land as to give him the right to pass it to another person. How Abdallah Chenja acquired this land? The evidence is silent on that. In addition, there is no evidence on how Bi Hamisa inherited this land. In cross examination by the State Attorney for the 3rd and 4th defendants, the plaintiff said that Bi Hamisa was the first born among the eight siblings but did not told the court the whereabouts of these siblings. None of them was summoned to testify but the plaintiff called PW2 and PW3 who was the former chairman of Goba Village. When asked about the appointment of the administrator of the estate of Abdallah Chenja, the plaintiff said in those days there was no such things. In the cited case of Sebastian Mbele (supra), the Court of Appeal quoted with the approval the Indian case of Narayan Ganesh Dastane vs Sucheta Nayaran Dastane (1975) AIR (SC) 1534 in which it was observed that a fact is said to be proved when Court either believes - 18 it to exist or considers its existence so probable that a prudent man ought to act upon the supposition that it exists. Borrowing from the above observation which gives me guidance in determination of this matter, I find that the evidence of the plaintiff is hard to believe since the probability of existence of the facts which the plaintiff have narrated in her evidence is near to 0 (zero). I say so for the following reasons; First; there is no any documentary evidence to prove that Abdallah Chenja, the purported father of Bi Hamisa really owned the suit land as claimed by the plaintiff. There is oral evidence by the plaintiff herself who said that she was living with Bi Hamisa in 1969 when she inherited the land from her father. She admitted that she had no document to prove the ownership. PW2 also corroborated the evidence of PW1 saying that he knew Abdallah Chenja as they were close. That Abdallah Chenja owned a farm in Goba and when he died, Bi Hamisa took over the said farm. PW3 also insisted that the disputed land was owned by Bi Hamisa. But as pointed earlier, these witnesses did not establish how this Abdallah Chenja came to own the disputed land and whether the land was owned by clearing the virgin forest, was allocated land by village or purchased from the previous owner? - A11 Ip 19 Second; the evidence on the conducts of the purported owner of the suit property also raise doubts which the court finds hard to believe that really Bi Hamisa owned the disputed land. In the defence case, the defendants beside stating that the disputed land was acquired by the Goba Village Government from one Philipo Msamvu in 1974, DW1 testified about the existence of the land dispute over the same suit land between one Alfred Maige and Goba Street Government whereby the said Alfred Maige claimed the disputed land to be his lawful property. The matter went up to the Ward Tribunal in Shauri No.340/2010. In that dispute the Ward Tribunal declared that Goba Street Government is the lawful owner of the suit property. Although this court was told that Alfred Maige appealed to the District Tribunal, the outcome of appeal is unknown to this court. The court took judicial notice of the decision of Shauri No. 340/2010. This court has then asked itself where were Bi Hamisa at all this time when her purported disputed land was a subject of controversy over the two parties i.e. Goba Street Government and Alfred Maige? Where was Bi Hamisa when her purported land was being declared by Goba Ward Tribunal to belong to Goba Street Government? This decision was made in 2010 when Bi Hamisa was still alive since it was stated by the plaintiff that Bi Hamisa passed away in 2021. JV1 In. 20 Third; PW3 one Selemani Athumani Mkutano who corroborated the plaintiff' evidence that the disputed land was owned by Bi Hamisa who inherited it from her father in 1969, surprisingly was among the witnesses who testified in Shauri No. 340/2010 where Goba Street Government had sued Alfred Maige for trespass on the suit property. In the said case at Ward Tribunal, PW3 testified as the Chairman of Goba Street Government. He said that the disputed area was the Government area. He never raised the issue of Bi Hamisa's ownership over the disputed land but admitted the land to belong to the Street Government. In the instant case, PW3 was questioned during cross examination about this fact that he gave evidence as a witness in Shauri No. 340/2010. He said that he knows Alfred Maige but does not remember Shauri No 340/2010. Fourth; another piece of evidence which makes the court hard to believe the evidence of the plaintiff PW1 and her witnesses PW2 and PW3 is that, PW3 has not disputed that he was the Street Chairman of Goba for ten years from 1999 to 2009. In his evidence he said that at the time he took the office, Goba Street Government had no office so he went to Bi Hamisa and asked her to use her area and building as the Street office... 21 That Bi Hamisa agreed on condition that once they got their own office, the Street would return her area. That in 2009 when PW3 finished his term and was succeeded by Kiula (the 1st defendant), he took Kiula the new Chairman to Bi Hamisa and that he returned back the building/disputed area to Bi Hamisa. That Bi Hamisa agreed to continue lending the building to the Street Government. However in his evidence, the said Kiula said that the land in dispute was officially owned by Goba Village Government since 1976 having acquired it from Philipo Msamvu. I have read the contents of Exhibit D4 which is the Handover Report between the two chairmen of Goba Street Government. The outgoing Selemani Athumani Mkutano and the ingoing Peter Mazengo Kiula. There is nothing about the disputed land and the building thereon to belong to Bi Hamisa and being used temporarily by the Goba Street as office. When questioned about the Handover Report, PW2 denied it and denied to have signed it although the Report shows that it was signed by both parties to the handover. Following that I find the evidence of PW3 to be too full of doubts to be believed by the court on balance of probability. . 22 The plaintiff through her counsel has raised a doubt about the authenticity of exhibit DI which is purported to be a letter of agreement dated 01/6/ 1976 between Philipo Msamvu and the leadership of Goba Village Government whereby the said Msamvu is handing over his land to Goba Village Government in exchange of another area at Goba Kibururu. The counsel for the plaintiff when cross examining DW, raised doubts on whether the area described in exhibit DI to belong to Msamvu, is the same land described as really disputed land in the instant suit as there is no proper description of that land in exhibit DI. Even if this court will disregard the contents of Exhibit DI, then certainly the court has taken judicial notice of Shauri No.340/2010 in which Philipo Msamvu testified as a witness saying that the suit area was his property but later he was moved to another area where the suit area was acquired by the Village Government. Fifth; as said earlier, there is no any document from the plaintiff to cement her claims. I'm alive to the fact that oral evidence also can prove a fact but in this, I find the evidence of defence to be heavier such that the oral claims of the plaintiff cannot stand on their own. Exhibits Pl and P2 produced by the plaintiff does not establish the purported ownership. Pl is the administration letter which was not in dispute and P2 is the letter- 23 from Ubungo Municipal Council elaborating/ explaining on the absence of building permit on the construction which was being done at the disputed area by the Street Government under the Investor. Both exhibits does not help in establishing the ownership of Bi Hamisa on the disputed property. After the above analysis, I find that the plaintiff have failed to prove the ownership of the suit property by Bi Hamisa which she is the administratrix of her estate. The first issue is answered in negative. Following the fact that the plaintiff have failed to establish her case on balance of probability, she has no right to any relief and the second issue is also answered in negative. In upshot, the suit is dismissed with costs. The right of appeal is explained. 22/8/2024 24