NOORS FARM LIMITED VS LAROI VILLAGE COUNCIL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF ARUSHA AT ARUSHA LAND CASE NO. 10 OF 2018 NOORS FARM LIMITED...................... ..PLAINTIFF VERSUS LAROI VILLAGE COUNCIL.................. DEFENDANT JUDGMENT OF THE COURT 1 2 /0 3 / 2 0 2 0 & 2 8 /0 4 / 2 0 2 0 GWAE, J. In this court, the plaintiff, a Private Limited Company incorporated in Tanzania since 1971 has instituted a land dispute against the defendant, Laroi Village Council. The plaintiff who is a holder of Right of Occupancy issued on the 7th March 1976 on a parcel of land (Farm No. 14) measuring 2,296 acres located at Oljoro area within Arusha District as it then was, now Arumeru District in Arusha Region (suit land or farm) is claiming that the defendant and her villagers have unjustifiably encroached her parcel of land and effected some developments thereon. According to the plaintiff's plaint, the plaintiff is claiming for judgment and decree against the defendant for the following reliefs; (a) An order of the eviction from the suit land and injunctive order restraining the defendant her agents and servants or by whomsoever from entering the said suit farm or any portion thereof (b) Alternatively, payment of US Dollars 4,592,000/ = being compensation for the said farm (c) Costs (d) Such other further reliefs as may be deemed fit by the court to grant Upon service of a copy of the plaintiff's plaint, the defendant through the legal service of Mr. Lawena &Co. Advocates, filed her written statement of defence disputing the alleged encroachment and seriously contended to have been procedurally issued with Certificate of Registration in the year 1999 followed by issuance of a village land certificate together with a village map. Immediately before commencement of trial of the case, the parties' advocates were involved and eventually the following were agreed issues for determination; 1. Who is the lawful owner of the disputed farm between the parties 2. Whether the plaintiff effected developments as per Right of Occupancy 3. To what reliefs are the parties entitled Throughout the trial, the plaintiff and defendant were represented by Mr. Colman Ngalo (advocate) and Mr. Muhidini (solicitor) assisted by his colleague, Mr. Peter (solicitor) respectively. However the defendant's written statement of defence and closing submission were prepared and duly filed by Mr. Severin Lawena, the learned advocate. In proving his case, the plaintiff was able to summon two witness on his behalf, these were; Funn Von Weinndum Pentensen, a Managing Director and shareholder of the plaintiff (PW1) and Ally Bakary who appeared in this court for testimonial purpose as PW2. The plaintiff further tendered three documents in support of its case, to wit; a certificate of title in respect of the suit land (PEI), plaintiffs Board of Directors Resolution to institute this case (PE2) and an estimate for re-survey of the suit land (Farm No. 1-PE3). PW1 testified inter alia that, the main activity of the plaintiff was farming and that land rents had been regularly paid to the relevant authority by the plaintiff to date (2020). The PW1 however adduced to the effect that in the year 1988, the plaintiff obtained a loan from the CRDB and in the year 1989, the plaintiff failed to repay the loan and therefore the plaintiffs farm mortgaged was put under receivership by the Loans and Advance Realization Trust (LART) however sometimes in the year 1999 the mortgage of the suit land was absolutely discharged. PW1 went on testifying that, despite the crops that were planted namely; maize, beans, saw meals etc there were building structures such as main house (residential house), machinery, workshop stone crusher, water tanks and water pipes. He also told the court that, all the plaintiffs machineries were taken by CRDB during receivership or its agent adding that in the year 2003 and 2004, the plaintiff brought container with excavator, tractors and other farming equipment but he did not bring the same to the farm due to the fact that there were trespassers (plaintiffs villagers) whom he feared that they could steal or make any loss. Furthermore, PW1 told the court that in the year 2009-2010, the trespass into the suit farm by the defendant or her villagers was reported to different authorities, Minister concerned, District Commissioner as well as the plaintiffs Embassy, as an attempt to amicably settle the dispute, the District Council eventually entered into an agreement with the plaintiff for re-survey where the plaintiff was to pay for the costs of the intended re­ survey however no re-survey of the suit farm despite the fact that the plaintiff paid for the costs (PE3). Eventually, PW1 said that the Board authorized him to file the case before this court against the trespasser (s) of the suit farm so that the plaintiff can be able to smoothly develop it or alternatively, payment of compensation, costs of the case especially the advocate's fees and his travelling costs. In principle the testimony of PW2 is more less the same as that of PW1 summarized above however he distinctly testified as follows; that, he was an administrator of the Plaintiff since 1976 and that by then the farm's Manager was one Haji Mkumbo. He added that after repayment of the outstanding loan the Title Deed was returned to the plaintiff. Similarly, PW2 went on testifying that the defendant's villagers were temporarily using the farm while the Bank was promising to evict them but in vain and that in the year 2010 there was gradual increase of the suit farm trespassers which led to plaintiff's complaints to various authorities and eventually agreement for re-survey and amount estimated for re­ survey was Tshs 11,500,000/= for the exercise which was paid by PW1. After the close of the plaintiff's case, the defendant was availed with an opportunity to give her testimony in respect of the plaintiff's claims. She summoned three witnesses, namely; Lesicari Olerangai Molel (DW1), Thomai Lamaai (DW2) and Marco Mahoo (DW3) and one document was produced that is certificate of registration of the defendant dated 19th day of July 1999 and its map which were collectively admitted as D EI. In essence the defendant's evidence adduced by her three witnesses named herein above is to the effect that, prior to the establishment of the plaintiff as a registered village that is before 1995, the plaintiff was a mere hamlet since by then the established village in which the defendant's villagers were living was known as Oljoro village. The witnesses also adduced that, the plaintiff was in possession and use of the suit farm prior to 1989 but subsequent to that year, the plaintiff abandoned the suit land as a result indigenous persons who were living nearby the suit land started encroaching it by doing temporal farming activities however as there were misunderstandings among the suit land invaders, the Oljoro village leaders opted to intervene and eventually the trespassers were allocated one acre each in the suit farm. The defendant's witnesses went on testifying that, in the suit land, there had been no interruptions or interferences whatsoever by the plaintiff, investor since 1989 till 2014 when PW1, advocate Ngalo and other Government Officials convened a meeting with a view to amicably settle the matter and that it was resolved that the plaintiffs villagers (village inhabitants) to proceed with their developments in their suit land including but not limited, erection of residential houses, public social services namely; defendant's primary school and church as well as farming activities and that the investor would be allocated with an alternative right of occupancy, particularly as per the Minister's direction of 2015. Finally, the defendant's witnesses particularly DW3 told the court that it was an obligation of the plaintiff or his agent to make follow ups of being re-allocated another parcel of land for her investment if she seriously desired. The parties' representatives sought and obtained leave to file their respective closing submission after closure of the evidence by both parties. I now have to determine the issues as demonstrated herein above. In the first issue, who is the lawful owner of the disputed farm between the parties? Considering the evidence adduced by the parties' witnesses during trial it is clearly established that, the certificate of title with title No. 14294 (PEI) tendered by PW1 clearly bears the name of the plaintiff, Noor's Farm Limited and that the same had been used to secure loans from various financial institutions including a loan secured on 20th July 1988 from the Central and Rural Development Bank (CRDB). It is also from the witnesses of both parties that the plaintiff is undoubtedly a holder of right of occupancy so tendered and received by the court for evidential value. The defendant's counsel attempt in his written submission, that the plaintiff did not comply with terms and conditions stipulated under section 33 (1) and 34 of the Land Act No. 4 of 1999 by not paying land rents and failure to develop the land, to my view, that contention does not in law hold water since there are procedures to be followed in order a right of occupancy to be revoked for failure to the meet terms and conditions contained in a certificate of title. More so, that had not been an issue for consideration and even if that were among issues to be dealt with yet the plaintiff has proved to the required standard that he had been paying the land rents to date ("I am duty bound to pay land rents and developed the land I have been paying land rent all the ways up to June 2020 ) opposed to the defendant. In Attorney General v. Lohay Aknonaay and Joseph Lohay (1995) TLR, Court of Appeal (Nyalali C.J., Makame and Kisanga JJA.) when dealing with dispute on acquisition of a land customarily owned by respondents, had these "Customary or deemed rights in land, though by their nature are nothing but rights to occupy and use the land, are nevertheless real property protected by the provisions of Article 24 of the Constitution. Their deprivation without fair compensation for unexhausted improvements and even where there are no unexhausted improvements but value is added to the land, is prohibited by the Constitution". In our case, the defendant's witnesses have absolutely and glaringly failed to establish if the right of occupancy granted to the plaintiff was either revoked or acquired and if acquired in order to establish the Laroi Village if the plaintiff was actually compensated. The defendant or its villagers should not therefore benefit from their wrongful doings. Strict adherence to the law that is article 24 of our Constitution was judicially stressed by this court in Mulbadaw Village Council and 67 others v. National Agricultural and Food Corporation (1984) TLR 15 at page page 16 where it was stated; , The Mulbadaw Village council and Mulbadaw villagers were lawfully possessing land and they could only be deprived of their land due to operation of law , not by mere blessings of the Government and party leaders in Hanang District and Arusha Region Provisions of the Land Acquisition Act (No. 47 of 1967) were not followed in acquiring the land belonging to Mulbadaw Village Council and Mulbadaw villagers and therefore such acquisition was unlawfully" In our instant land dispute, the defendant's witnesses attempted to convince the court that, the Minister responsible for lands allowed them to proceed with the possession and use of the land in dispute uninterruptedly and that the plaintiff would be allocated an alternative parcel of land for investment but till when the parties appeared before this court for trial there was no such evidence or information if he was given another piece of land. Hence the defendant and her villagers cannot escape from being termed squatters to the suit land (see the court's jurisprudence in Mwalimu Omari and another vs. Omari Bilali (1990) TLR 9). It is also legally clear that, mere blessings from either Local Government authority or Central Government are not capable of violating the laws of the country by depriving an individual's right of occupancy without following the law Since it is certainly established by both sides that the suit farm No. 14 at Oljoro area-Laroi village was allocated to the plaintiff and following undisputed fact that, the ones who are occupying and using the same are no more than trespassers and taking into account that the plaintiff has neither been compensated nor to date has the right of occupancy been procedurally revoked or unprocedurally revoked for the public interest as required under section 27 of the Land Acquisition Act, Cap 118 R.E, 2002. Moreover the plaintiff is still a lawful registered as his estate is duly registered as per section 2 of the Land Registration Act, Cap 334 R. E, 2002. It follows therefore the plaintiff is found to be the lawful owner of the suit farm and the defendant and her villagers are taken to be in unlawful occupation of the suit land as provided under section 175 (1) & (4) of the Land Act, Cap 113 Revised Edition, 2002. As to the 2nd issue, whether the plaintiff effected developments as per the Right of Occupancy, PW1 sufficiently testified that the plaintiff effected developments such as grains farming (maize, beans etc), stone Crasher, water tank before receivership by the CRDB after the plaintiff had defaulted repayment of the outstanding loan plus accrued interest. His evidence was supported by that of DW1 who told the court that during his chairmanship he was seeing the Plaintiff's owner or Manager doing cultivation, carpentry and related activities. Nevertheless it is evidentially established that, by 1989 there was nothing like continuity of activities in the suit land, such as farming, saw mill industry that were being carried out as PW1 had already gone to his country to raise the money for repayment of the loan and the suit farm was already under receivership of the CRDB which appointed the LART as Receiver Manager. For the sake of clarity part of PW l's testimony is reproduced herein under: "The CRDB then took charge of the farm following our default November 1989. I went back home after receivership by LART. The CRDB intended to publicly auction but in vain. I then started working in Denmark and I was then able to repay the outstanding loan... Then the mortgage was discharged in the year 1999. After the discharge, I came back to Tanzania and found nothing like structures which were there before receivership by CRDB". According to the evidence so adduced by the parties, including that of PW1 depicted above, it is evidently clear that the plaintiff initially effected necessary developments in the suit farm however the CRDB or his receiver manager negligently manned the farm as a result, the structures made in the suit land are found to have been destroyed or damaged or removed or stolen during receivership. As regard the 3rd issue on the reliefs that parties are entitled, the order of eviction sought by the plaintiff, to my view, is not more suitable and convenient in this case than an order as to allocation of another piece of land or compensation taking into account that, the developments that have been made in the suit farm such as residential houses of the plaintiff's villagers, social services buildings such as primary school and church and other buildings. I have also taken into consideration of a peculiarity of the situation in this particular case that, the defendant's villagers had intruded the plaintiffs farm merely because the one who was responsible to ensure that the land in question is safe and free from interference or damage was CRDB whom the plaintiff had already instituted the suit against him (CRDB), the defendant and her villagers therefore deserve less blame worth apportioning 1/4 of the developments. It is settled law that, if the plaintiff, the foreign investor had not proved to have made some unexhausted improvements in the suit land in anyhow since she was granted such right of occupancy she could not have been entitled to compensation as the suit farm would be deemed to have no value since the plaintiff's certificate of title was vividly granted prior to the enactment of the Land Act (supra) as stipulated under section 20 (3) of the Land Act (supra) as amended by section 4 of the Land Act (Amendment). Act, 2004 which reads; "20 (3) For the purpose of compensation made pursuant to this Act or any other written law all land acquired by non-citizen prior to the enactment of this Act, shall be deemed to have no value except for unexhausted improvement for which compensation may be paid under this Act or any other law". In our case, as intimated herein above, the plaintiff, had clearly made some developments in the suit land which were destroyed or damaged or stolen due to the CRDB's negligence and or the defendant and his villagers' acts. The acts of the defendant and her villagers are rated to 25 % (1/4) of total condemnation. The plaintiff is therefore entitled to compensation to US Dollars 1,000,000 out of what he has claimed in his plaint (value of the exhausted improvements by then) x 1A (defendant's liability) = US Dollars 250,000 (Tshs. 550,000,000/=). It goes without saying that, the plaintiff must have incurred unnecessary costs of this case which is to be reimbursed by the defendant In the final analysis, therefore, I am constrained to find the plaintiff's claims to have been successfully to the above extent, she is now entitled to re-allocation of another piece of land worth not less than US Dollars 250,000 equated to Tshs. 550,000,000/= or she be paid compensation in the tune of UD Dollars 250,000 or Tshs. 550,000,000/= for unexhausted improvement in the suit farm and costs of this case which shall be taxed by the Deputy Registrar of the court. It is so ordered. M. R. GvVAE JUDGE 28/ 04/2020