rajabu shabani katungwa vs vicent japhet mbago and three others 2022 tzhc 15118 12 december 2022

I IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA) AT KIGOMA LAND CASE NO. 17 OF 2021 RAJABU SHABANI KATUNGWA (The administrator of the estate of the late Asha Juma Shati) PLAINTIFF VERSUS VICENT JAPHET MBAGO 1ST defendant KAPIPI RAMADHANI 2ND defendant KIGOMA/UJIJI MUNICIPAL COUNCIL 3”'’ DEFENDANT ATTORNEY GENERAL 4TH DEFENDANT JUDGMENT 29/11/2022 & 12/12/2022 L.M. Mia ChaJ The plaintiff, RAJABU SHABANI KATUNGWA (The administrator of the estate of the late Asha Juma Shati) filed a suit against Vicent Japhet Mbaga, Kapipi Ramadhani, Kigoma/Ujiji Municipal Council and The Attorney General (herein after referred to as the first, second, third and fourth defendants respectively) seeking the following, i) a declaration that plot No. 618 H.D. Block A Mwasenga, Kigoma Ujiji Municipal is property of the late Asha Juma I and hence part of her estate, ii) a declaration that the first and second Page 1 of 19 defendants are trespassers in the suitland, iii) demolition orders against the house of the first defendant, iv) immediate vacant possession, v) an award of Tshs. 10,000,000/= as general damages and vi) costs of the suit. It was stated in the plaint that In the course of collecting the assets of the late Asha Juma, as the administrator of the estate, the plaintiff found that the first defendant had built a house at the suit land and upon inquiry, it came to his I knowledge that he had bought the land from the second defendant who alleged to be the owner of the land. That all amicable means of settlement have failed hence the suit. The first defendant filed a defence and stated that he Is a bonafide purchaser of the suitland having bought the same from the second defendant. The second defendant filed a defence and agreed to have sold the land to first defendant as customary owner of the land. They both put the plaintiff to strict proof of all facts In the plaint. The third and fourth defendants filed a defence and started that the suitland was allocated to the late Asha Juma since 2007. They supported the claim of the plaintiff. When the case was called for hearing before me, Mr. Daniel Rumenyela appeared for the plaintiff, Mr. Silvester Damas Sogomba appeared for the first defendant, the second defendant appeared in person while the third and Page 2 of 19 fourth defendants had the services of Mr. Anold Simeo, state attorney. With the assistance of the parties, the court recorded the following issues: 1. Whether the suit land is part of the estate of the late Asha Juma Shati. 2. Whether the first and second defendants trespassed to the suit premises. 3. Whether the survey and allocation conducted by the third defendant was lawfully done. 4. To what reliefs are the parties entitled to. Lead by his counsel, the plaintiff (PWl) had this to tell the court. That, plot No. 618 H.D, Block A Mwasenga is property of his late wife, Asha Juma Shati. She got it from Kigoma/Ujiji Municipal Council. He tendered the letters of administration from Ujiji Primary Court. They were received as exhibit Pl. He also tendered the letter of offer which was received as exhibit P2. PWl went on to tell the court that she visited the plot after the death of his wife and found that the plot was occupied by the first defendant who had already built a house. He said that he bought it as a farmland from the second defendant. He decided to sue the Municipal Council to see if had I allocated the plot to two people but it did not appear so. He went on to say Page 3 of 19 that he cannot close the probate due to this case. He cannot distribute the estate of the deceased to heirs on the same reasons. He asked the court to grant the prayers in the plaint. He respondent during cross examination and said that his wife died in 2018 but she never happened to complain while alive. He said that the plot was allocated to her in 2007 but she fell sick in 2010. She could not raise until her death. He agreed that the letters of administration which he tendered are different from what he annexed in the plaint. He agreed that the documents are different but said that all came from the court clerk. PW2 Msafiri Rajabu (34) is a child of PWl. He told the court that the family sat on 4/5/2018 and proposed PWl to be the administrator of the estate of the deceased. They made a list of assets of the deceased which included plot No. 618 Block A, H.D. Mwasenga. He happened to visit the plot with his mother. He and his father used to pay ground rent. He tendered three (3) receipts which were received marked exhibit P3 collectively. They have the name of Asha Juma. He proceed to say that he heard that the second defendant was the former owner of the land and that the land had been Invaded by the first defendant. He still recognize it to be property of his late mother but they cannot get hold of it due to the dispute. Page 4 of 19 DWl Kapipi Ramadhani Mbungo (56) told the court that the land was formerly owned by his father. He got it in 1974 during operation vijiji. They remained there using it; planting beans, Maize and potatoes. Mr. Vicent came In 2013 looking for a plot to build. He sold the plot to him. He respondent to questions during cross examination and told the court that officials of the third defendant came to survey the land saying that they needed to put them In the town plaining. They promised to compensate but could not do so. He never got even a single cent. He sold the land to the first defendant in 2013 who started to build In 2014 but could not meet any resistance. He went on to tell the court that the street chairman one Asha Rajabu called a meeting in 2002 and informed them about the survey. None of them was given a plot. He retained ownership of the plot from his father. DW2 Hadija Rajabu (52) told the court that she was the street chairperson from 2005 up to 2010. While there, the third defendant came to survey the land. They never Involved them. They moved to complain to the District Executive Director (DED) and the District Commissioner (DC). The DC sent a committee. Surveyors came and identified plots for each. They were given numbers. She got her plot. Moshi the brother of the second defendant was Page 5 of 19 I shown their plots (the plots of their family). She said that the second defendant does not know his plot number but knows his plot. When cross examined, she said that his plot is No. 583 while the second defendant's plot was No. 618. She added that the second defendant sold it to the first defendant. He went on to say that the land was surveyed but they never got any compensation. The surveyors used to come with people (other than the owners) in the evening to show them plots but people used to chase them. She never happened to see Asha Juma in the area. She admitted that the plaintiff has built a house at the suit premises and has lived there for a long time. DW3 Hassan Selemani (83) told the court that he and Mzee Ramadhani, the father of the second defendant, shifted to live in the area in 1974 during operation vijiji. He lived there since then and was a member of the village government lead by PW2 Hadija Rajabu when the third defendant sent surveyors to survey their land without engaging them. They complained to the DC who referred them to the DED. They told the DED that those who had been given plots are causing trouble to land owners. The DED issued a letter stopping development of the land. The third defendant said that they could give 3 plots to each family to release the land. They resisted. The Page 6 of 19 family of the second defendant allocated their plots to themselves. The second defendant sold his plot to the first defendant. When cross examined he said that the second defendant owns plot No. 618. He added that he does not have any title deed but is living there. Like DW2, he said that the third defendant took the land without any compensation. He had the view that compensation was their right. He stressed that the plot belonged to the second defendant. DW4 Vicent Japhet Mbago (40) told the court that he bought the plot from the second defendant on 1/1/2013 and built a house. He started to live there in November 2014. Nobody prevented him to build. He has lived there for 8 years since then. He tendered the sale agreement which was received as exhibit DI. He proceeded to tell the court that the second defendant was not sure of the plot number. He got it from his brother, Mzee Moshi. He denied to be a trespasser saying he bought legally before witnesses. He went on to say that the survey was illegal because it did not involve owners of the land. She added that Asha Juma paid land rent in 2019 while in reality she was supposed to pay starting 2007. Further that, the said Asha Juma did nothing in the land. He said that he never happened to quarrel with Asha Juma over the years. He wondered the reason as to why he is now in dispute Page 7 of 19 with the plaintiff. When cross examined he admitted that he does not have a title deed or building permit. He added that none of them has a title deed there. He admitted that the plaintiff has a Letter of offer but hastened to say that it may be fake (ya mchongo). He said that the dispute started in 2019. DW5 Joseph Makeremo (25) is a land officer from the third defendant. He studied land management, valuation and registration. He told the court that Mwasenga was formerly a government forest but there were people nearby. Some entered inside the forest to live and did some developments. He said that people were shifted to live there in 1974 during operation vijiji but the land remained as a government property. He proceeded to tell the court that plot No. 618 Block A Mwasenga was given to Asha Juma in 2007. The survey was done in 2004. People lodged their applications and were given plots after payment of costs. They were then given offers of a right of occupancy. Asha Juma was given her offer that way, he said. He tendered the offer of a right of occupancy which was received as exhibit D2. DW5 went on to say that the land was formerly a government forest and I given to people to develop it. He denied to know the second defendant. Responding to questions during cross examinations, he said that the government surveyed the land because it was a forest. He added that it did Page 8 of 19 I L not involve the people on that basis. He went on to say that he was employed on 1/1/2021 but had been working as a volunteer earlier. He added that he got what he said from office records. He admitted that he could not tender any map or documents to establish what he had said. I plan to have a general discussion covering all the Issues. Looking at the evidence, one can find that the following things are not disputed, i) That the plaintiff is the administrator of the estate of the late Asha Juma Shati, who was also his wife, li) that the late Asha Juma Shati was issued with an offer of a right of occupancy (exhibits DI and D2) on 5/10/2007 in respect of plot No. 618 Block 'A' HD Mwasenga, ill) that, the second defendant occupied and owned the land customarily prior to the 2004 surveys which were done by the third defendant, Iv) that, the second defendant sold the plot to the first defendant on 1/1/2013 vide exhibit D4 and v) that, following the sale of the land, the first defendant has built a house at the suit premises where he has lived undisturbed from 1/1/2013 up to 2019. Parties seem to be In quarreling on the following areas, i) the legality of the survey, il) the legality of the allocation and issue of the letter of offer of Asha Juma Shati, iii) the legality of the sale agreement between the second and the first defendant and iv) the legality of the first defendant's occupation of Page 9 of 19 the land. This calls for an in depth discussion of the evidence and the law as it had been at the time of survey and allocation of the land. I will attempt to do so. PWl and PW2 did not say anything about the way the land was surveyed. They appear to be not aware of what had happened on the ground earlier. Their evidence starts with application and allocation of the land. It then moves to the issue of the latter of offer which they kept home from 2007 when it was issued up to 2019 when the returned to pay land rent cumulatively (2007 to 2019). This was done in as a means of gathering strength to confront the 'trespasser.' There is evidence from DW2, DW3 and DW4 showing that the second defendant lived on the land prior to the 2004 survey. He came there with his father during operation vijiji In 1974. DW3 and DW4 who were village leaders say that land officers came to the land without any notice to the people and conducted the survey. No compensation was made to the people. They thereafter started to allocate plots to new occupiers. They were In conflict with the people whom they chased. People moved to complain to the DC who referred them to the DED. The DED formed a committee which tried to solve the dispute in vain. There is evidence from DW5 who said that the land Page 10 of 19 I was formerly a forest. People moved in and developed it. They remained there. It then came the idea of surveying the land. The third defendant did the survey. As it was formerly a forest according to DW5, no compensation was done to existing occupiers. People were Invited to apply for the plots. The plaintiff's wife applied for the plot and was given the plot and an offer in 2007. PWl supports the evidence that his wife applied for the plot and was given a plot. Section 8 of the Land Survey Act, Cap 324 give the director of survey or any land surveyor or any person authorized by the director to enter upon any land for the purpose of making survey, fixing or setting up there in any survey mark, inspecting any survey or survey mark, altering, repairing. moving or removing any survey mark or doing anything necessary for carrying out any of the above purposes. The proviso to section 8 has a requirement for a reasonable notice to the owner or occupier of the land of the intension to enter in the land. There is also a liability to pay damage caused in the exercise of any to those powers. The applicable law in matters pf planning in 2004 when the land was acquired for planning purposes was the Town and country planning Act, Cap 355 R.E 2002 (repeated by section 80 of the Urban Panning Act 2007). Page 11 of 19 Survey could only be made after creation of schemes. The Minister could exercise his powers under section 13 to convert an area to be a planning area. Section 13 (1) of the Act speak it all. It provided as under:- "13(1) If, after consultation with the local government authority, the Minister is of the opinion that, a genera! planning scheme shouid be made in respect ofany area, he way by order pubiished in the Gazette declare that area to be a planning area" (Emphasis added). Once an area had been declared a planning area, the planning committee could come in. Section 15(1) created planning committees which in a Municipal area was the Municipal Council. Section 21 required the planning committee to pass a resolution to prepare a general planning scheme. Section 26 had contents of the schemes. Sections 35 - 38 has control of development and execution of the schemes. Section 45 (1) gave the president power to acquire land where there is no agreement between the owner of the iand and the iocai authority. The law was clear that acquisition could only be done on public interest where there is no agreement between the owner of the land and the local authority. That Page 12 of 19 I means that, the local authority (in our case the Municipal Council) was first required to talk with the owner or occupier of the land telling him of the planning scheme and the intention to take the land. The powers of the president were to be exercised as a last resort and only on public interest. Sections 50, 53 and 59 had a requirement for valuation and compensation to the owner or occupier of the land before the land is taken. The land was to be valued and the owner had to be compensated in full before the scheme was to be put in place. Reference may also be made to section 3 of the Land Act, cap 113 R.E 2018. It has a requirement to all people exercising powers under the Act to observe the fundamental principles of the National Land policy which is the objective of the Act. It has the following:- faj - CeJ not relevant (f) to take into account that an interest in land has value and that value is taken into consideration in any transaction that affecting that interest (g) to pay full fair andprompt compensation to any person whose right of occupancy or recognized long standing occupation or customary use of land is revoked or Page 13 of 19 otherwise interfered with to their detriment by the state under this Act or is acquired under the land Acquisition Act. Provided that, in assessing compensation of Land acquired in the manner provided for in this Act, the concept of opportunity shaii be based on the foiiowing. /. market value of the real property; a. disturbance allowance; Hi. transport allowance; iv. loss ofprofits or accommodation; V. cost of acquiring or getting the subject land; vi. any other costs loss or capita! expenditure In currieo to the development of the subject land, and vii. interest at market rate wiii be charged; (h) to provide for an efficient, effective, economical and transparent system of land administration (i) to enable all citizens to participate in decision making on matters connected with their occupation or use ofland. (j) ~ (n) not reievant"(Emphasis added) Looking at the evidence of the plaintiff and DW5 I could see no evidence showing that the land was declared as a planning area. No evidence that the scheme was even made. We are just told that the land was a forest which they decided to take. DW5 agree that there people there who had come to Page 14 of 19 live in the area but did not say anything on the way their land was taken. He was lead by the state attorney to tell the court that the land was a forest but did not tender any document to show that the land was a forest. No maps or planning documents were brought to court other than the letter of offer which has problems as we shall see later. He regarded the people in the area as trespassers in the government forest but did not say how. To the contrary, we are told that the area was a village land occupied by people under customary Law. We have the evidence of the former village chairman and a member of the village government whom I could not doubt their credibility. DW3 said that he came to live there with the second defendant's father in 1974 during operation vijiji. The second defendant accept this fact. DW2 said that she was the village chairperson from 2005 up to 2010. DW2 and DW3 who were village leaders said that surveyors stormed In the land and made the surveys without any notice to the village government or the people. DW5 did not speak of any notice for to him the notice was not necessary. So, the third defendant took the land which they surveyed without any notice and compensation thereby contradicting the Law. Believing the land to be a forest, as was said by DW5, no compensation was made. They did not talk to the people or their leaders. I think that what was done by the third Page 15 of 19 I defendant was against the law. It contradicted section 3 of the land Act and the provisions the Land Survey Act and the Town and country planning Act. While I don't think this to be a fit forum to declare the survey of the area as being illegal, but I cannot hesitate to say that, the offer of the right of occupancy was issued without compensation to the former occupier of the land and therefore illegal. The land still remained in the hands of the second defendant despite the survey for want of compensation. He had power and justification to sell his land to any person for he was still the owner of the I land under customary law. His land could only be taken away from him on a due process of the law which was not the case here. It follows that the first defendant is not a trespasser on the land having bought it lawfully from the second defendant who had a good title under customary law. Apart from the illegalities pointed above coming from the way Asha Juma Shati got her offer, the offer had other serious defects. It was not a valid offer in 2013 when the land was sold for breach of development conditions. It was already dead, it had ceased to have legal effect. I will try to show. The offer reads I part as follows:- Page 16 of 19 II Your Application for a long term Right of occupancy (later in this letter called 'the Right") over this plot has been approved. The terms and conditions of the Right are as follows: - 1. (i) Term 33 years from 1^ January 2007. (ii) Rent: Shs. 3,600/= (Hi) User: The Land shall be used for residential purposes only use group A' user class (iv) (a) Buiidings to be in permanent materiais. (b) Building plans to be submitted to the Kigoma/Ujiji Municipal Council within six months from the commencement of the Right (c) Building construction to begin within six months after approval of the plans. (d) Buildings to be completed within 36 months from the commencement of the Right (v) Further, You must pay fees, charges etc and refund any contribution in Heu of rates which maybe paid by the government (vi) ... "(Emphasis added) The plaintiff's wife never submitted any building plans to the council for approval within six months as required by clause 1 (iv) (b). No approval was I made. No construction was commenced and finished within 36 months as Page 17 of 19 required by clause l(iv) (d). And worse, Land rent could not be paid from 2008 up 2019. It was paid cumulatively in while she was already dead. Much as the money was received and thereby increasing the government revenue but that, in my view, did not change the fact that In 2013 when the land was sold to the first defendant Asha Juma Shati was In breach of development conditions which Included none payment of rent. I cannot therefore hesitate to say that the offer of right of occupancy which was issued 5 years ago had no legal effect in 2013 for failure to abide to development conditions. This case now ends as follows: 1. The suit is found to be baseless and dismissed with cost. 2. The offer of a right of occupancy issued to Asha Juma Shati is declared illegal, null and void. 3. The first defendant is declared to be in a lawful occupation of plot No. No. 618 H.D. Block A Mwasenga, Kigoma Ujiji Municipal and must be given title deeds in his name. 4. Costs to follow the events. Page 18 of 19 z li ( i i;: L.MvMlacha -1-1 Judge 12/12/2022 Court; Judgment delivered. Right of Appeal Explained. f i-. L.M. icha ■« i Judge 12/12/2022 Page 19 of 19