pt kasikana vs the registered trustees of the archdioces of dar es salaam 2020 tzhclandd 46 26 february 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 95 OF 2019 (Originating from Land Application No. 200 o f2008 in the District Land and Housing Tribunal ofllala, Hon J.M Bigambo) P.T KASIKANA.............................................. ......... APPELLANT VERSUS THE REGISTERED TRUSTEES OF THE ARCHDIOCES OF DAR ES SALAAM............ RESPONDENT JUDGMENT ON APPEAL S.M. MAGHIMBI. J The appellant being aggrieved by the decision of the District Land and Housing Tribunal of Ilala in Land Application No. 200 of 2008, hereby appeal to this Court on the following grounds:- 1. That the honorable trial chairman erred both in law and fact in holding that the appellant was not the lawful owner of the suit land when the evidence established that he was the lawful owner. 2. That the honorable trial chairman erred both in law and fact in holding that the appellants had been compensated by the respondent for the suit land when the appellant has not received any compensation. 3. That the honorable trial chairman erred both in law and fact inholding that the appellant was not entitled to payment for the value of his destroyed crops on the suit land. 4. That the honorable trial chairman erred both in law and fact in holding that the appellant is not entitled to general damages. 5. That the honorable trial chairman failed to evaluate evidence before him, thus reaching the wrong conclusion. The appellant's prayer to this court is that the appeal be allowed, the tribunals decision be set aside and the appellant be declared the lawful owner of the suit land. The appellant further prayed for compensation for the destroyed crops and an order that the respondent pay costs of this appeal and for other reliefs as the court may deem fit to grant. In this appeal, Mr. Steven Msuya, learned Counsel represented the appellant while the respondent was represented by Mr. Eric Mhimba, learned Counsel. By an order of this court dated 02/09/2019, the appeal was disposed by way of written submissions. Brief background of the dispute at hand dated back to the year 1975 when the appellant herein claims to have acquired the ownership of the suitland through bush clearing and planting of coconut trees. He peacefully continued to enjoy the suitland and the mayhem first surfaced in 1985 when he received a letter from the respondent who claimed to own the suitland. The respondent gave him an option of continuing to use the suitland under a contract which was not annexed to the said letter. The applicant then made an inquiry to the respondent's administration and he was left to use the Suitland until 1997 when the respondent came up with a new style, by fencing the disputed area. The appellant and one Ms. Agnes Mbogo then filed a Civil Case No. 09/1991 before the Ilala Primary Court a result of which a valuation report of the disputed area was prepared and a total payment of Tshs. 1,589,818.00 was effected to the Dar-es-saiaam City Council. The appellant's claim is that he was never compensated and the suitland belongs to him, a fact which is denied by the respondent hence this appeal after the decision of the tribunal did not satisfy the appellant. In his submissions, Mr. Msuya argued that the appellant told the lower tribunal that he had been the owner and cultivator of the suit land measuring about three acres since 1975, having cleared the bush surrounding his house, which was sold to him by the respondent who was then his employer. That the appellant used the land uninterrupted until 1997 when the respondent forcefully entered the area, felled the applicant's crops and trees and fenced the area. Mr. Msuya submitted further that the appellant took the steps to acquire title to the area and has processed various documents at the Municipal level before the respondent's interference. That in 1985, ten years after the appellant has developed the land, the respondent wrote to the appellant that he [respondent] was the owner of the suit land. That in 2001 when the respondent's acts became unbearable the applicant decided to file a Civil Case No. 28 of 2001 at the Ilala District court which gave rise to the application at the Ilala District land and housing tribunal which led to this appeal. 3 He continued to submit that the claim by the respondent that it is the registered owner of the suit land since 1979 cannot hold water because the appellant at the lower tribunal furnished evidence that his area has been surveyed by the city council of Dar es Salaam and was since 1984 known as farm 157 and that the appellant enjoyed quite possession from 1985 to 1997 when the respondent interfered again. He further argued that it was a serious error by the tribunal to hold that since the respondent is holding a certificate of title No 23747 which it alleges to include the Suitland, she is the lawful owner of the area in dispute. Mr. Msuya argued further that at the trial, DW2, father Novatus Urbano Mbaula, alleged that the title was issued to them in July 1980 but on cross examination he said it was issued in December 1979 while the appellant was in occupation of the land since 1975. On the 2nd ground of appeal Mr. Msuya submitted that the compensation referred to on page 12 of the judgment cannot stand for as long as it is based on records of Ilala Primary Court Civil Case No. 9 of 1991, which the tribunal held that it did not determine the dispute of ownership of the suit premises. He argued that to date, the appellant as the owner of the suit land has not been compensated. On the 3rd ground of appeal Mr. Msuya submitted that at the Tribunal the appellant listed coconut trees, baobab trees, miarobaini, flower shrubs and a sewerage pipe, all totaling a value of Tshs. 6,000,000/=. He argued that the said evidence which was not challenged by the defence yet in his judgment, the trial chairman held that the appellant did not adduce any 4 evidence. That the respondent did not dispute the value attached by the appellant to the destroyed items hence it was wrong for the tribunal to hold from the blues that there was ■ no destruction of those items. He argued that this poses a question as to what compensation is it that the tribunal held that the appellant had been paid and whether the alleged 1991 value would be the same at the time of hearing the application at the tribunal. On the fourth ground of appeal Mr. Msuya submitted that the appellant had been laboring in the courts since 2001 at the Ilala District Court in Civii Case No. 28 of 2001 and then application No. 200 of 2008 which led to this appeal and that he is entitled to general damages for the anguish, suffering and anxiety. As for the fifth ground of appeal, Mr. Msuya submitted that the trial Chairman failed to evaluate evidence before him as he said that the appellant was compensated together with Agnes Mboga and that the appellant refused to collect his cheque from Dar es Salaam City Council, while at the same time he held that Ilala Primary Court Civil Case No. 28 of 2001 did not determine the issue of ownership of the suit premises. That the question is if that case settled the issue of compensation to the appellant why wouldn't it settle the issue of ownership? At this point, I must point out that Mr. Msuya has been mentioning two different case, an Ilala Primary Court Civil Case No. 09/1991 and Ilala District Court Civil Case No. 28/2001. The records (the Application at the tribunal) only talked of District Court Civil Case No. 28/2001. 5 On his reply, Mr. Mhimba submitted that according to Exh.Dl, the respondent was registered as the owner of all that land known as Catholic Mission Plot Dar es Salaam city way back in 1979 including the disputed land. He argued that the appellant was time barred when he instituted an application to the Tribunal because 38 years had already passed since registration of the right of occupancy. That the 1st schedule paragraph 22 of the law of limitation provides that a suit to recover land must be instituted within 12 years from the time the cause of action arose. Mr. Mhimba submitted further that in the appellant's testimony, he alleged that he received a letter from the respondent informing him that he should stop farming the disputed land unless he signs an agreement because the land belongs to the respondent. He argued that the appellant didn't take any action to asserts his rights until 2001 when he instituted Civil Case No 28 of 2001at Ilala District Court at Samora, that was 16 years from the date he got the alleged letter requiring him to sign the agreement to use the respondent's land. I must not be detained much by this objection which is unprocedurally raised at the appellate stage. One would wonder why Mr. Mhimba did not raise the objection during trial. However, in the interest of justice since he is attacking the jurisdiction of the trial to entertain the matter, I will make a finding therein. Review of the evidence shows that the appellant alleged to have received the first letter in 1985, attempted to settle the matter with the administration of the respondent in vain. Thereafter he alleged to have been left with peaceful enjoyment of the suitland until 1997. Hence for the sake of computation of time, the actual interference started in 1997 and by all means, it cannot start in 1979 because the appellant was not aware of the issuance of the certificate and he was the one in possession of the suitland. That said, I need not dwell much on the objection raised as it lacks merits. As for the substantive appeal, Mr. Mhimba submitted that at the lower tribunal, DW1 testified that the appellant came to work at the respondent's Msimbazi mission school from Mahenge and was accommodated at the respondent's house which was later sold to him. That DW1 further testified that the respondent is registered owner of the suit land that had been owning the suit land even when parts of it were acquired by the government in 1965 and in 1976. Mr. Mhimba submitted further that DW1 tendered Exh.Dl which is the Certificate of Title issued to the respondent way back in 1979, Title No.23747,LO No.53994 and the land is known as Catholic Mission Plot Dar es Salaam City measuring 24.04 Acre arguing that the respondent's land is really defined. He submitted further that his ownership was confirmed by the testimony of DW2 who clearly challenged the testimony of PW1 by stating that by the time the appellant applied to be a registered owner of the land, the respondent had already secured a title deed way back in 1979. At this point, he argued that the appellant is betrayed by his own testimony that he came from Mahenge and while in Dar es Salaam he managed to buy a house from his former employer and did not buy any other property in Dar es Salaam while there is no evidence that suggest that he was given any land from any authority. On the 2nd ground, Mr. Mhimba submitted that when testifying before the tribunal, DW1 and DW2 testified that there was a certain case filed before the primary court which ordered the government valuer to establish the value of the crops of the appellant together with another person who was not party to this case. That compensation was not for the suit land as such but it was for the crops which were planted on its land and that payments were made directly to the Municipal Authority as per Exh, D2. On the 3rd ground of Appeal, Mr. Mhimba submitted that the appellant didn't adduce any evidence to support his claim. That according to the case of Wuberi Augustino Vs.Anicet Mugabe 1992 T.L.R 137 And Cooper Motors Corporation Vs Arusha International Conference Center 1991 TLR 165, special damages must be specifically pleaded and proved. On the fourth ground of appeal Mr. Mhimba submitted that the appellant failed to prove specific damages as required by law hence general damages could not accrue hence the chairman finding was justified. As for the last ground of appeal, Mr. Mhimba submitted that there is no proof to support appellant's assertion that in 1975 he went to the Ministry of Lands to I inquire on the ownership of the suit land. Further that there is no proof that the Ministry of Lands told him that the suit is no man's land. In his rejoinder, Mr. Msuya reiterated what he said in his submission in chief and told this court that in the previous proceedings the respondent didn't raise the issue of limitation, that this is the afterthought which should be dismissed without much ado. 8 Going through parties submissions, it is clear that the main issue here is on the ownership of the disputed land. After perusing the record of the trial tribunal and the submission of the parties in this court, the records show that the appellant admits to have been an employee of the respondent and it was the respondent who gave him the house he lives in. it was also undisputed that the appellant started living in the house which is also surrounded by the disputed land since 1975 and in 1985 ten years after the appellant has developed the land, the respondent wrote to the appellant that he [respondent] was the owner of the suit land. This evidence is sufficient to rule that the appellant was using the disputed land being a land attached to the house allocated to him by his employer. The evidence is also undisputed that the dwelling house now owned by the appellant was later on sold to him but the sale didn't include the suitland. Therefore it is upon the appellant who alleges to have acquired ownership of the dispute land by a purported adverse possession to prove the existence of those facts. In his evidence the appellant admits to have received a letter on ownership of the suitland in 1985. He continued to hold possession until 1997 when the second disturbance arose. On their part, the respondent have tendered and EXD1 which is a Title Deed over the disputed land that was issued to them in 1981 after the processes having started in 1979. Therefore by 1981, the respondent was registered owner of the suitland. In the absence of the evidence of the appellant to counter the evidence of the respondent, by virtue of EXD1, the respondent is the lawful owner of the disputed land and the appellants attempts to survey a piece of land already having a Title Deed was just a class drama. 9 That said, I find the evidence adduced at the tribunal concur with the findings of the tribunal. I therefore see no justification to interfere with the findings of the trial tribunal. The appeal beforehand lacks merits and is hereby dismissed with costs. Appeal Dismissed, Dated at Dar es Salaam this 26thday of February, 2020. AGHIMBI JUDGE 10