20000804 TZHC Dar es Salaam

.. ' ,t j(j~/rl<,1- 11/c· ... .. ., IN THE HIGH COURT OF TtNZ.ANIA ~ DAR ES SALAAM DISTRICT REGISTRY AT D/iR ES SALAAM CIVIL C/i JE NO, 92 OF 1995 OM.t1H.I MBUZINI KILJ.\NA • , ••••••• •·. PL1aNTIFF VERSUS l.\i'EHEMIJ\H JER£l'l'IP,S NYJ,NG!1W/1 M1\KGF.I,t, ••• DEFEl'IDi-\NT 1 J U D G E ME N T BUBESHI 2 J: The plaintiff claim was filed in 1995. It arises out cf a dispute concerning a piece of land measuring some seven acres which the defendant had en~roached upon and cJ.aimed two acres thereof to belong to him. The dispute between the parties was agjudic3ted upon first in Tl:miani Primary Court vide Civil Case No.140/88, Moro~oro District Court Appeal Case No.17/89~ Morogoro District Court A1)peal Case No.23/93 culminating in (PC) High Court Civ. Appeal No.92/93. Copies of :these judgments were ~exed to the- plaint - 1\nnextures J\ 'A, ' B ' , ' C ' , ' D ' and ·1K' • The plaintiff testified th;;1t for a period of 7 years, h2 had been deprived usa~e of his land through court injunction d3ted 26/3/92. That it was not until 22/4/94 when this court dismissed the defend:,nts appeal . :...-!'A due to non prcsecution. During the hearing of this suit, the defendant failed to file his wpitten statement of defence till 9/2/2000 when I ordered the plaintiff to prove his claim exparte 1 by oval evidence,in view of the quantum of damages bein~ claimed. There is no doubt that the plaintiff has suffered some lO$S of profit throueh the civil/criminal litigations between him and the defendant. The question to be \• determined is how much is he entitled? The plaintiff i has assessed theda~aeit'loss of profits at TShs.189,000,000. ... 2 Clearly this is no small amount to,~;&\aim from his adversary •. This Court therefore summoned the District Agricultural Officer from Morogoro Rural to assist determining . the loss suffered. The . Court . heard evidence from Elias fesaya Kinyahe who had earlier prepared some estimates/figures for compensation. Mr. Kinyaha informed the court that after considering the . claim, and taking into account the costs involved, he was of the opinion that the pl.gintiff cauJ.d be entitled to an award of TShs.88,720,000/=. This court having considered the matter is of the view that the plaintiff indeed is entitled to some compensation from the defendant. However I think the amount of TShs.88,720,000/= is clearly on the high side.. 1his court is not convinced that the defendant may be in,a position to compnsate the plaintiff to that magnitude. In the premises I would award an amount of TShs •. twenty million only as damages~ The plaintiff is also awarded costs and interest as claimed. ,. The defendant who was absent during the hearing of this matter to be served with the certified copy of this judgement •.. ,Jj_&~~ P,. G. BUBESHI Delivered in presence JUDGE of plaintiff •. 4/8/2000