patrick sanga vs baker sons safari company limited another 2023 tzhclandd 16925 26 september 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO.68 OF 2023

PATRICK SANGA PLAINTIFF

VERSUS BAKER & SONS SAFARI COMPANY LIMITED DEFENDANT GRAYDON BAKER 2"" DEFENDANT

JUDGMENT 20™ to 26™ September, 2023 E.B. LUVANDA,J Patrick Sanga (the Plaintiff herein) who is a Tanzanian is suing Graydon Baker (Second Defendant herein) Canadian and founder and majority shareholder of Ms. Baker & Sons Safari Company Limited (First Defendant herein), complaining against the duo Defendants to have colluded with fraud to fabricate a lease agreement dated 24/07/2014 for a suit land measuring five acres situated at Mioka Village, Utete - Rufiji formerly dubbed as Ndoto Kidogo, by inventing or inviting the First Defendant who trespassed the suit land and forcefully kicked out the Plaintiff from I peaceful enjoyment of the leasehold, thereby extinguishing or melting away completely investment by way ofjoint venture or partnership on the part of the Plaintiff, aiieged had legitimate expectations to partner with the Second Defendant. According to the facts disclosed at the cross examination marshelled successfui by the Plaintiff who fended on his self, DWl (Second Defendant) stated that the first occasion to come across the Plaintiff who according to DWl, is a poiygiot for being renowned and exauited to have an exceiient Engiish (speaking) and fluent in French and German, they met at Ndovu Camp along Rufiji River on the boat, where the Piaintiff was working on Safari as tour guide and supervision at Ndovu Camp with semi autonomous, and Second Defendant tourist but

potentiaiiy determined to buy or invest on Safari Lodge along the vicinity of Selous Game Reserve this can be seen in his emaii address styled, crocodileQraydon@amail.com. It is when discussions for investment or trading on Safari started, aithough not certain on the form of a business whether partnership, joint venture, firm, company or soio, seemingly everyone was having a dream of his own on his mind or soui without sharing, communicating or speaking out or revealing to each other. While the Tanzanian was thinking of partnership, the Canadian on the other hand had a dream of a private or family and some how firm business. This can be evidenced by initial emails of communication and correspondence between the duo, in particular after the Canadian had resumed back to her mother land Dominion Canada at North America. According to emails forming part of a bundle of annexure BGl to the joint written statement of defence, the first emaii send by the Piaintiff to the Second Defendant on 12^^ December, 2013 regarding application of land, the piaintiff wrote..."The Village Government Committee wili discuss our applicatin (sic, appiication) and make approvai..." On December, 2013 the Second Defendant responded that"... are the chances good that they will approve my application for the iand?" On 19'" December, 2013 the Plaintiff changed language instead of saying our application as

communicated in the first email, he wrote "3: they will approve your application for the iand...". On 20'" December 2013 the Second Defendant also changed (twisted wording instead of singuiar form used on his first emaii, this time he wrote "Ahsante sana rafikl, keep us updated about the meetings and progress for our iand appiications." On 31=' December, 2013 the Plaintiff wrote "....I think after 7 days and everything it will be fme for us...Mungu akubarikisana". On 18'" January 2014, the Plaintiff send email to the Second Defendant titled "CONGRATULATION TO YOU", with contents, which it is pertinent to quote at iength, and I bold portion of my interest. "Hi Graydon, itisa goodnews to tei!you that the Village General meeting which was held today January, 2014gave us the area ofNGOTO KIKOGO. It was reaiiy intense competition between our application and another appiication...the main secret which made us to win the competition is ourpian to do aiso agriculture which means we wiii have some tractor so I promised that we wiii bring the tractor which every one within the viiiage wiii use it, and wiii belong to the Mioka Viiiage government and another is the free English School, the firstpriority is tractor this can be between 3.5 up to 7 tons is okay..." The last email to the bundle of annexure BJ-1, is dated February, 2014, which depict the Plaintiff send an attachment of a handwritten executive summary in capital letters/case somewhat skeleton report regarding the whole process of application for an approval of land, statement of account of money received from the Second Defendant to faciiitate the entire process, and the second paragraph from the bottom of the executive summary report read, I quote:- "THE TRACTOR WILL REMAIN UNDER BAKER AND SONS

VILLAGERS WILL USETT UNDER REASONABLEPRICE TO HELP

THEM AND TOOLS WHICHIANALYZED IN OUR APPLICATION

FOR THE TRACTOR TO PULL FT IS ONLY PLOUGH AND HARROW" There is no email which was attached showing response to these two emails. Unfortunate ail these emails including the executive summary mentioned above were not tendered in evidence for reasons best known to the Defendants. Thereafter the Plaintiff initiated a formal process of requesting for allocation for land vide a letter for application for allocation of land dated 03/01/2014 exhibit D2, whereby the MIoka Village Council convened meeting to receive and evaluate the application as per exhibit P3, subsequently tabled it to the Village General Assembly which approved allocation of land as per exhibit P4. In exhibit P2 depict applicants are Patrick Sanga and Graydon Baker, equally exhibit P3 and P4 depict land was allocated to Patrick Sanga and Graydon Baker. In a minutes of Mioka Village Council exhibit P5 where the Second Defendant was formerly introduced to the villagers, the Second Defendant was referred as "investor" and Plaintiff was referred as his partner. In the minutes of the MIoka Village Council meeting dated 21/07/2014 exhibit P6, which the Plaintiff bragged to have convened to deliberate and thereafter concluded that Patrick Sanga and Graydon Baker were the tenants who could execute a lease agreement, however an addendum to it which reflect the intended terms of a lease agreement, suggest the tractor will be

under the supervision of a company and the tenant promised that the Manager of his company will be an indigenous villager. In the addendum there is no mention of partnership. In fact it was vague, in a sense that even the so caiied company or firm was not disclosed. On the same date to wit 21/07/2014 a general assembly meeting was convened as per minutes exhibit P7, where the viiiagers were informed that the iand was aiiocated and handed over to the Piaintiff and Second Defendant. In view of the above, the Piaintiffs contended that the First Defendant who executed a lease agreement with the MIoka Village Council (the latter Is not a party to the suit) exhibit PIO, are invader and trespasser to the suit iand and exhibit PIO is invalid and forged one, on the ground that there is no any document indicating that the First Defendant had appiied for aliocation of land or any minutes for either Viiiage Council or Village General Assembly approving the allocation of iand to the First Defendant. The Plaintiff accused and heapened blame to one All Rwambo (was not summoned as a witness) who Is the Village Executive Officer(VEG) MIoka Village for being hypocrite and two faced person, for that he (VEG) participated to sign the disputed lease agreement exhibit PIO at the same time when the Defendants wrote a letter dated 16/08/2017 exhibit PS requesting aiteration of Viiiage Council and

General Assembly minutes to reflect the name of the First Defendant instead of the Plaintiff and Second Defendant, the VEO turned around disallowed,it, instead advised the Second Defendant to reconcile with his partner the Plaintiff, as per a letter exhibit Pll. The Second Defendant on the other had contended that ail those were pre contractual arrangements, were done in his absence by the Plaintiff and accused the later for misrepresenting to the Village Council and Village General Assembly regarding allocation of land to himself and Second Defendant, money for facilitation a sum of USD 2,000 alleged to been conned, purchase of a tractor for the village and construction of free English medium school for indigenous pupil (children) which he (Second Defendant) did not promise. The Second Defendant alleged that he was not conversant in Swahiii (although email above had some wordings in Swahili version, and he allege to had stayed in Tanzania at the University of Dar es Salaam for one year on missionary works or assignment); alleged he was not given a feed back, although the executive summary was emailed to him with details including updating by email), also conceded that the Plaintiff shared copies of alleged Swahili version to his best friend one Godfrey Mwakisitu, also DWl conceded to have received a scanned copy. DWl disowned the Plaintiff on that they are not partners, did

not form any company, did not have any agreement, there is no legal entity that exist or created between him and the Piaintiff. According to DWl, the Plaintiff was acting as an agent and broker for his (DWl) Company and was paid USD 2,000 initial payment for facilitation, paid allowance of 50,000/= per month, handeded over a bodaboda worthy Tshs 2,000,000/= as per a card exhibit D9 which was appreciated by the Plaintiff and requested two more, as per the email dated June, 2015 exhibit D7. DWl contended that this company has invested over 200,000 USD on the suit land, and the Plaintiff invested nothing. DWl stated that his company is paying land rent Tshs 1,200,000 per annum, hotel levy USD 3 per person per night, exhibit PD6, handed over a school and tractor to MIoka Village as per letter of appreciation from the District Commissioner and District Executive Officer exhibit D4 and D5, respectively. While the Plaintiff has nothing to offer. At the final pre trial conference the following issues were framed: One, whether the Plaintiff has furnished any consideration to MIoka Village to entitle him to be a lessee along with the First Defendant; Two, whether the Court can step into the shoes of MIoka Village and create a lease for the Plaintiff; Three, whether the First Defendant trespassed to the disputed land; Four, whether the Plaintiff suffered any general damages; Finally,

reliefs entitled by the parties. As it transpired at the triai and also reflected in the pieading, the Piaintiff is suing the Defendants over the impugned lease agreement executed on 24"^ July, 2014, exhibit PIG, whose tenure is oniy fifteen years, expiring on 23^ Juiy, 2029. In other words the tenor of the iease is currentiy running on the second haif, as at the time of inception of this matter. The predominant ciaim of the piaintiff is trespass and invasion to the suit iand aiieged committed by the First Defendant at the invitation of the Second Defendant vide a iease agreement exhibit PIO. In paragraph eieven of the plaint, it is pleaded by the Plaintiff that shortly after the allocation of iand, the Piaintiff was barred assessing (sic, accessing) the suit iand by the Defendants for reasons that he was a broker and that his duty had been officially terminated after successful acquiring of the suit iand. When the last witness for defence was testifying, one Bakari Hassan Mwesimba (DW3), after he was asked the last question on cross examination by the Piaintiff, DW3 stated that, I quote "Your ought to querry on time, the leas agreement was signed in 2014itis now2023. I picked from there and asked myself if this suit was preferred competently within time. It is common knowledge that suits founded on the tort of trespass to the land, the available period to sue is three years, see item 6 Part I of the Schedule to the Law of Limitation Act, Cap 89 R. E.

2002. Herein, the act of trespass is alleged to had occurred upon execution and implementation of the lease agreement exhibit PIO, signed on 24^ July, 2014. Therefore the three years expired on 24"" July, 2014. In the case of Sixmund Luambano vs Vodacom Tanzania Limited & Others, Miscellaneous Land Case Appeal No. 2/2020, High Court Songea, this Court speaking through Honorable Moshi, J as she then was, had this to say at pages 6 and 7, The Court ofAppealin the case ofAvit Thadeus Massawe vsIsdory Assenga (supra), defined the conceptoftrespass to mean; "entering, remaining or causing an object to faiion the premises/iand in the possession of another without permission and/or withoutjustification cause" This Court went on to say, at page 7, The ingredients of the tort of trespass are entering (physicalor through an object)or remaining on the iand, possession of premises. In the case of Avit Thadeus (supra) the Court ofAppeal heid that trespass to iand is 10 a tort and the remedies available to the claimant are perpetualinjunctions and monetary compensation' Herein, the wrongful acts complalned of, were committed 24"^ July, 2014 and this suit was instituted on 17'*^ March, 2023. In my respective view, the Plaintiff ought to have Instituted this suit before the 24"^ of July, 2017. But as It transpired In the record of the proceedings, this suit was Instituted on 17"^ March, 2023

as aforesaid well after the elapsed of six years. It Is crystal clear that, this suit Is barred by the law of limitation as It was filed after the expiry of the period of limitation prescribed by the law. In my view, the suit Is liable to be dismissed. Therefore, I agree with the argument of Mr. Senen Mponda learned Counsel for Defendants that this suit is incompetent for it is barred by the period of limitation. The suit is dismissed. However, in view of the circumstances of this suit it is undesirable to order costs. Therefore, each party to shoulder his or her 6\3RT 0/ c costs. 7

ANDA ★ V— t>GE 09/2023 11 Judgment through video conference attended by the Plaintiff In person and Mr. Luslu Beter iJ^a^n^d Counsel for First and Second Defendants. o s 3. LUVANDA ★ ★ JUDGE DIVA.^ 6/09/2023 12