JUDGMENT OF NDERUNGO ROMUALD

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY

AT MBEYA LAND CASE NO. 30 OF 2022 CASE REFERENCE NO. 20221026000457008 NDERUNGO M.R.A @ ROMUALD MATERU .................................... PLAINTIFF

VERSUS MBEYA CITY COUNCIL ..........................................................1ST DEFENDANT ELLY MUWANGA ..................................................................2ND DEFENDANT HON. ATTORNEY GENERAL ..................................................3RD DEFENDANT

JUDGMENT 23rd October & 10th December 2024. NONGWA, J. The plaintiff has sued the defendants for specific damage of TZS 20,000,000/= being the value of the business hut located at Meta area within the city and region of Mbeya. He alleges that in 1994 was given a permission by Mbeya municipal to construct business hut in the buffer zone opposite Meta Hospital. Further that in 2009, the 1st defendant issued a demolition order of the business hut but it was until on 30th October 2021 when the 1st defendant trespassed the premises forced out of the room the 2nd defendant who was his tenant and closed it demanding payment of TZS 800,000/= as rent. To mitigate the loss, the 2nd defendant paid the said amount and since then has neglected and refused to pay 1 rent to him since December 2021. He thus prays for judgment and decree on the following orders; a) An order that the defendants are trespassers to the plaintiff’s land/room. b) An order that the 1st and 3rd defendants be compelled to compensate the plaintiff Tshs. 20,000,000/= (Tanzania shillings twenty Million only) as specific damages being the current market value of the claimed disputed room (immovable property). c) An order that the 1st and 3rd Defendants be compelled to pay the plaintiff Tshs. 200,000,000/= Tanzania shillings two hundred million only) as general damages. d) All the Defendants (separately) or jointly as the

case may be) be compelled to pay Tshs. 2,080,000/= (Tanzania shillings two million and eight thousand only) as arrears of rent with an interest calculated at a rate of 15% per annum on arrears e) Permanent injunction to restrain the defendants from using and/ or interfering the plaintiff in the disputed land/ room. f) Costs of the suit to be paid by the defendants. g) Any other or further relief this Honourable court deems fit and just to grant 2 The 1st and 3rd defendant filed joint written statement of defence in which they admitted that the plaintiff was given permission to build a business hut but disputed the claim of trespass. They alleged that the plaintiff was not the owner as had no lease agreement with the 1st defendant over the premise. The 2nd defendant in his defence admitted to have been a tenant of the plaintiff and to have paid TZS 800,000/= after being so ordered by the 1st defendant. The compulsory court annexed mediation failed, paving way for full trial. During final PTC, four issues were framed; 1. Whether the plaintiff is the lawful owner of the disputed premises; 2. Whether the 1st defendant has any legal right to collect rent from the suit premise; 3. Whether defendants trespassed into the suit premise; and 4. To what reliefs are the parties entitled to. The plaintiff appeared in person while the 1st and 3rd defendants were represented by Messrs. Michael

Fyumagwa and Mr. Jibu Mbua and later joined the force Ms. Edina Mwamlima, all state attorney. The 2nd defendant had service of Ms. Martha Gwalema, learned advocate. 3 To prove the case the plaintiff (PW1) was a sole witness and tendered a total of four documentary evidence to wit a letter titled kuruhusiwa kujenga kibanda eneo la forest linalotazamana na hospitali ya Meta and receipt for ujenzi wa kibanda cha Meta (Exhibit P1), judgment in Application No. 177 of 2009 (Exhibit P2), payment of rent receipt (Exhibit P3) and Statutory notice (Exhibit P4). For the defence side there was four witnesses Remigi David Lipiki (DW1), a planning officer, Denis Theobard (DW2) civil technician, Furaha Mkonongo (DW3) trade officer and the 2nd defendant testified as (DW4). In his evidence the plaintiff (PW1) stated in 1994 requested and was granted by the Mbeya Municipal to construct business hut along Meta Road, a permission letter was tendered and admitted as exhibit P1. PW1 went on to state in 2009 the 1st defendant issued notice of demolition of the business hut. That he filed a case in the District Land and Housing Tribunal for Mbeya Application No. 177 of 2009 and won, the judgment was introduced in evidence and admitted as exhibit P3. Further that business room was rented to Ally Muwanga who was paying rent to him. PW1 informed the court that in October 2021, the 1st

defendant trespassed the business room and closed it demanding payment of rent. He followed the matter with his tenant to the City and told to pay rent arrears of TZS 800,000/=. Later his tenants paid the amount, the receipt 4 was admitted as exhibit P3. He stated the tenant was paying rent of TZS 200,000/= per month and now is using the room without paying rent to him. PW1’s further testimony was that he issued ninety days notice to the defendants who has failed to heed to the claim, it was admitted as exhibit P4. He prayed reliefs claimed in the plaint to be granted. During cross examination he said the land belongs to the government and he was only claiming the business room which he was given. That Elly Muwanga was his tenant and was paying rent to him. That he never paid rent to the council. Defendants’ camp started his defence with the evidence of DW1, in his sworn evidence said the area in dispute is open space and is a buffer zone. That the plaintiff was given permission to construct in a buffer zone. That exhibit P1 was just permission to construct a structure, conditions were to be contained in the contract between the allocatee and the City council. DW1 said the plaintiff had no any contract with the City. During cross examination he said temporary structure is allowed in buffer zone. That he did not see any building permit of the plaintiff. On his side DW2 testified

that his duties includes inspections of buildings being constructed, inspecting building permits, Plan drawings and procedure to acquire building permit. He informed the court that the plaintiff in exhibit P1 was given permission to construct business room 5 and see the engineer and lawyer for directives. That after being allowed to construct the plaintiff was to obtain building permit and sign contract with the City. DW3 stated after seeing the plaintiff did not follow the procedure to construct the room in 2009 the City wanted to demolish the structure. In his sworn evidence DW3 stated his office has duty to educate people on business, collect revenues and different fees from businessmen for the city council including business licence fees and rent fees from different premises belonging to the City council. That they collected rent from the plaintiff as the area belonged to the government. DW3 further evidence was that for the plaintiff to be recognised was to have building permit and contract with the city. DW3 added the plaintiff was collecting rent from the 2nd defendant illegally. During cross examination by Ms. Walema, DW3 said for them to collect rent there should be contract. On further cross examination by the plaintiff, DW3 said they collect rent even when there is no building depending on the agreement. DW4 testified that was a tenant of the plaintiff since 2015 and

was paying rent of TZS 200,000 per month. That the dispute arose in 2021 when his room was locked by the City for being on rent arrears. He informed the plaintiff and followed the matter to the City but the plaintiff 6 said was not indebted to it. That his properties were getting damaged, he pleaded with the City and was given control number for paying TZS 800,000/= and paid in the name of the plaintiff. Then business was not going well and surrendered the room to the plaintiff in 2022. Having summarised party’s evidence, I will now dwell on the issues framed. The first issue is whether the plaintiff was the owner of the disputed premised. It has to be noted that from the pleadings and evidence adduced, there is no dispute that the area under discussion belongs to the government and is a buffer zone situated at the persist of the road. Further there is no dispute that the plaintiff was granted permission to construct business hut. In that sense, ownership discussed in this case is that of tenancy. The plaintiff relied on exhibit P1 as giving legitimacy in the premises, the fact which was strongly disputed by the defendants. Exhibit P1 is reproduced below; 7 ‘MBEYA MUNICIPAL COUNCIL TELEPHONE: DIRECTOR 2372 OFFICE OF THE MUNICIPAL

COUNCIL : ALL DEPARTMENT 2506/7 P.O. BOX 147 IN REPLY PLEASE QUOTE:

MBEYA

TANZANIA REF: No. MMC/LD/P/16/Vol.IV/104 24 Juni, 1994 Ndugu Nderungo MRA S.L.P. 2705

MBEYA YAH: KURUHUSIWA KUJENGA KIBANDA ENEO LA FOREST LINALOTAZAMANA

NA HOSPITAI YA META Somo la hapo juu lahusika. Ningependa kukuarifu kuwa ombi lako la kutaka kujenga kibanda cha biashara kama ilivyotajwa hapo juu, limekubaliwa na Halmashauri kupitia kamati ya mipango miji iliyokaa 23/6/1994. Tafadhali wasiliana na mhandisi Manispaa kwa maelekezo ya ujenzi. Nakutakia kazi njema. Sgd. Nakala - Mhandisi wa manispa Mbeya Mwanseria wa manispaa Mbeya.’ The above incept is self-explanatory that the plaintiff’s request to build a business hut was acceded subject to other process. It is thus clear to me that for the plaintiff to be legally recognised as the owner of the rented place was subject to communicating with the municipal engineer 8 and the municipal solicitor. According to DW1, DW2 and DW3, the plaintiff after being given permission to construct business hut was to sign a contract with stipulated conditions. Throughout the testimony of the plaintiff never said he signed contract with the municipal or that was paying rent. The requirement to communicate with municipal engineer and solicitor was intended to validate his permission, but no evidence was led to prove that he complied with the direction. See the case of the Registered Trustees of the Al-Duwil Masjid Madrsatul and 3 others vs Commissioner for Lands Ministry of Lands Housing and Human Settlements and 2 others, Civil Appeal No. 252 of 2021 [2024] TZCA 883 (11 September 2024; TanzLII)

on effect of failure to comply with conditions for validation of title, any occupation becomes illegal. During cross examination the plaintiff admitted that was a tenant of the government and was supposed to pay rent, however no evidence in form of oral and documentary was produced to prove his tenancy, agreed rent and payment of the same. With this evidence the plaintiff cannot claim ownership of the business hut. Thus, the first issue is answered in negative. Moving to the second issue whether the 1st defendant has any legal right to collect rent from the suit premise, this will not detain me much as it is admitted by the plaintiff that was a tenant of the 1st defendant. How 9 and at which rate it did not come out from evidence of both parties for good reason that they had no any tenancy contract. Bearing that any tenancy agreement is validated by payment of rent agreed in any form, in my view the 1st defendant is justified to claim rent from the plaintiff otherwise it will be meaningless for the plaintiff to claim that is the tenant of the 1st defendant without him paying rent. I therefore decide the second issue in affirmative. Advancing to third issue, whether the defendants are trespasser. The term trespasser is defined by Black's Law Dictionary 8th Edition by Bryan A. Garner at page 1565 as one who commits trespass, one who intentionally and without consent or privilege

enters another’s property. And the term trespass is expressed to mean an unlawful act committed against the person or property of another esp., wrongful entry into another’s real property. In Frank Safari Mchuma vs Shaibu Ally Shemndolwa [1998] TLR 280 the court stated that trespass is an unjustifiable intrusion by one person upon the land in the possession of another. Proof of trespass does not necessarily call for proof of ownership, because mere possession of a property may entitle one to sue for trespass, thus the landlord may be sued by the tenant for trespass in the premises. In the case of Geita Gold Mining Limited vs Twalib Ismail 10 & Others, Civil Appeal No. 103 of 2019 [2021] TZCA 3526 (3 December 2021; TanzLII) the court stated; ‘It is a truism that trespass is a tort of interference to possession, that is why even a tenant may sue his landlord for trespass if he encroaches upon his lawful possession.’ Contemporary even a person whose entry is lawful becomes a trespasser if he continues to occupy another's premises beyond the period permitted. See Avit Thadeus Massawe vs Isdory Assenga, Civil Appeal No. 6 of 2017) [2020] TZCA 365 (24 July 2020; TanzLII). In this matter it is undisputed fact that the area under dispute is owned by the 1st defendant and the permission given to the plaintiff was meant to create landlord-tenant relationship. Further there is no

any tenancy agreement and the plaintiff has not impliedly validated his presence in the premise by paying rent to the 1st defendant. In those circumstances it is clear to me that the defendants cannot be trespasser in the premises. The third issue is answered in negative. The last issue is to what reliefs are parties entitled to, in this suit the preceding issue have all been answered against the plaintiff. Bearing that the plaintiff has failed to discharge burden of proof under section 110 of the Evidence Act [Cap 33 R: E 2022] it follows that is not entitled to any reliefs he claimed. 11 In the event the suit is dismissed with costs to the defendants. V.M. NONGWA

JUDGE 10/12/2024 Dated and Delivered at Mbeya this 10/12/2024 in presence of the Plaintiff in person and Mr. Modest Siwavula for the 1st and 3rd Defendants and absence of 2nd Defendant. V.M. NONGWA

JUDGE 12