ngulo mtiga representative of the estate of abubakar omar said mtiga vs tulibako tabu kyoma 2018 tzhclandd 546 10 august 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO.184 OF 2016 NGULO MTIGA (As legal Personal Representative of the Estate of ABUBAKAR OMAR SAID MTIGA)..................................PLAINTIFF Versus TULIBAKO TABU KYOMA............................................. DEFENDANT Date of Last Order: 17.07.2018 Date of Ruling: 10.08.2018 EXPARTE JUDGMENT S.A.N. WAMBURA, J: In this matter the plaintiff Ngulo Mtiga is suing Tulibako Tabu Kyoma the defendant herein for trespassing into the suit premises situated on Plot No.320 Block “A” Mikocheni Area Dar es Salaam City held under a Certificate of Title with No.21778. I ordered the matter to proceed exparte after being notified that the defendant has failed to enter appearance though summoned twice by w ay of publication in the newspapers; that is on 8th of November, 2016 and on 23rd of February, 2018 through Mwananchi Newspapers. This was after Sylvester Shayo and Co. Advocates wrote a letter dated 15/7/2016 returning the copy of the plaint served upon them for want of instruction. They stated that their instructions ended with a prior matter being Land Case NO.40 of 2012. It is on record that Pwl Ngulo Mtiga is the administrator of the estate of his late father who passed aw ay in 1978, the late Abubakar Omary Saidi Mtiga as evidenced by Exhibit P2. He was appointed in 2010 after their grandfather Omary Said Mtiga who was the former administrator of the deceased estate also passed aw ay. By the time his father passed aw ay the plaintiff was still a minor and so could not administer the same. The plaintiff alleged that he becam e aw are of the trespass into the suit property sometime in 1998, when he was handed over their father’s properties. The earlier suit being Land Case NO.40 of 2012 was struck out for being time barred. He thus applied for extension of time from the Minister of Constitutional and Legal Affairs and was granted the same as evidenced by Exhibit P5. It is also on record that after being appointed the administrator of the deceased estate in 2010 he transferred the Certificate of Title from his father’s name into his name as evidenced by Exhibit P I. He also continued paying land rent as seen vide Exhibit P6. It has been submitted that prior to his death the late Abubakari had built a small squater and a foundation of an house intended to be built. However, the defendant who is said to be their neighbor at Plot No.322 trespassed into their plot. She built a house and fenced the suit land. The plaintiff thus prayed for a demolition Order of any structures and fence on the suit property as the site plan shows that there is encroachment on the suit land, costs and general dam ages as assessed by the Court. It is because though the 3 defendant was notified by the Municipal authorities to demolish the same she refused to do so. He also prayed for a declaration that he is the lawful owner of the suit property as apart from having the Certificate of Title in his name as per section 2 of the Land Registration Act Cap.334 R.E. 2002, the Court has also defined who is the owner in the case of Salum Mateyo Vs. Mohamed Mateyo ( 1987) TLR. Where the Court held that the owner is a person for the time being in whose name the estate or interest is registered. Now the provisions of Section 110(1 )and (2) of the Evidence Act puts the burden of proof of the allegations on the plaintiffs. It provides:- “Section 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. (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. ” 4 [Emphasis is mine] In the case of Roseleen Kombe VS. Attorney General (2003) TLR 347 the Court insisted that even if the matter is heard exparte the said burden is not discharged. The Court held: “Even where the defendant files no Written Statement of Defence at all or does not appear, let alone w here he files “an eva sive or gen era l d en ia l”, the plaintiff still has to p ro ve his c a s e for the relief so u g h t e v e n if ex-parte". [Em phasis is mine]. Now can the plaintiff in this matter be said to have discharged the burden of proof. From the evidence above there is no dispute that the suit property belonged to his deceased father and the same has not been revoked to date. By the time his father passed aw ay he was under age to administer the said estate. Having attained the age of majority he began making a follow up in Order to repossess the suit property. He has done so for almost 20 years now. The defendant was asked to demolish the said structures and issue vacant possession but has allegedly refused to do so. Though an earlier suit was struck out in 2012 she was aw are of the suit and of the dispute on the suit property, but has not demolished the same to date. Under the circumstances I believe she cannot therefore benefit from the doctrine of adverse possession. I note that the plaintiff was the only witness but in this case he has tendered all the necessary documents to prove that he is the owner of the suit premises apart from the fact that the number of witnesses is irrelevant in proving one's case as was held in the case of Ahmad Omari Vs Republic, Criminal Appeal No. 154 of 2005 CAT at Mtwara Registry (unreported). From the evidence adduced, I believe the plaintiff has proved that he is the lawful owner of the suit property. I thus make the following Orders:- 6 1. The plaintiff is herein declared to be the lawful owner of the suit premises situated on Plot No.320 Block ‘A ’ Mikocheni Area Dar es Salaam City. 2. The defendant is Ordered to demolish all the structures thereon within 30 days from the date of this Order. 3. The plaintiff is to be paid a sum of Tshs. 10,000,000/= as general damages for being denied the right to develop the suit land. 4. Defendant to pay costs of this suit. 5. Exhibits which are original copies to be returned to the plaintiff immediately and certified photocopies to be retained in the record. 10. 08.2018