20140905 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 173 OF 2005 RASHID M. NAMPISO ............................................. PLAINTIFF

VERSUS JAMILA SURURU ............................................ 1sr DEFENDANT THE COMMISSIONER FOR LANDS .................... 2ND DEFENDANT THE ATTORNEY GENERAL. ............................... JRD DEFENDANT

JUDGMENT B.R. MUTUNGI, J. Before I embark ori the merits of this matter I would like to make an introductory remark that I om a successor in office in this case. The matter proceded before Longway, J then 1'4chimbi, J up till the evidence of D\N3 vvho was the last defence witness. I hove only been involved in the 'Nriting of this judgment. Hoving said so let me now highlight what entailed the dispute at hand. The plaintiff Rashid Nopiso is claiming against the defendants JomiloSururu, the Comrnissioner for 1 ; .·· ·: ·';~ /<:: ·•'1f;f,~:r:'.hl·t· zl:fJ;-%;{i.- -J,.:_fij;>~-tt.t~_;-~~:-·t~)rr::t.·:· :JJ·...... -r~~~::r~:.:.r1~ ;/;z'fi~~?\~r-~tt~1x~;:r~r• . ~i:·~:-•:~~·:$":ci·~~~~~~,ii~f~i.,.,~".:!\J~f ·;r-i1-~5'.~~~J/;t:·~>c:t~~;-:.:~{,,,·:-?:·:;~~-~{t-C\4~,1:'~•:J:?.:l:;'.7.:.,..~:,~~~fy:,;~••:~}~ 1 7 ~~ · ~ . . . . .p .! ~ i..:: .....1 } ...... •• ... / .. -:...· :.:. • .,. ·.-· .. :·~---· '. - • - .,;! • •• -:· ..... ~ .,· ..... -- - • ,... ,_ ..... - - - ~ . y " - ~.;1-·..,_ ~.,.-=.-_ .-_;_~- ;•t.~ ~.. --~·-:~. . .,. .'t'-- _r-·· '_ lands and the Attorney General (first, second and third defendant ~espectively) jointly and severally for a. • declaration that he is the lawful occupier of the piece of land situated at Kinondoni Area. To be precise the piece of land is Christined plot No. 90 Block T TegetaKinondoni Area within Dar es salaam City and for an order of payment

of 30,000,000/= as general dameges for unlawful ~evocation of his right of occupancy by the second defendant plus interest at the. current commercial rate from the date of judgment to the date of payment in full. In the alternative, the plaintiff is claiming for re-fund of Tshs. 9,561,236 plus interest at the current commercial rate .. . . being value of unexhausted improve111ents already made on the suit land together with the paid u_p land rent up to year 2003/2004 and general damages to the tune of 30,000,000/=.· In support of his case the plaintiff testified that in June 1988 he hod applied for and legally allocated the suit land by the second defendant. After being allocated the suit land, the plaintiff dully paid all the requisite fees and 2 Jfi~\~t~~ .J.,;~'"':~.,~.· '.<~>>', ... •?. - • :a :. • ·...... • - • '··.. ; · ••.• ~ ;--·-! '-:,_-::· -'~· · proceeded thereafter doing the same,in all the following years a.s he had been issued with an offer. In the year 2003 the plaintiff prepared plans for development of the suit plot. What the plaintiff did was to construct a foundation for a single storey building. To the plaintiff's surprise, the first defendant confronted him and claimed ownership of the said suit plot. As the two were disputing over-the said plot, the matter was referred to the second defendant .Contrary to his expectation, the second defendant revoked the

plaintiff's offer and offered the suit land to the first defendant. On the other side the defendants had three witnesses. DVV 1 who was the step father of the first defendant narrated of how the suit plot was allocated to the first defendant in 1988 ofter making a formal application. In 2002 they started developing the suit land only to find the plaintiff on the land. Fate had it that in 2003 the first defendant passed away and one Amina Hussein was ·appointed the administrator of the estate of the first 3 • J · defendant. DW2 Amina Hussein had the same story to tell as that of DW 1 as she testified that the suit plot was allocated to the first defendant in 1988 following on oppljcation made by him. DW3, Suzan Mollyo a legal officer from the second defendant's office come out loud that the plaintiff hod no legal right over the disputed plot. This is evident from the records to be found in second defendant's office. It is on record that the first defendar.it was granted an offer LD/13/4/96/P JC of 10/8/1988 and had been paying the ' requisite fees/rent ever since. DW3 further clarifi~d that having received the plaintiff's complaint over the suit land, the defendant's office carried out an investigation and found that the letter of offer in the nqme of plaintiff had. no relation with .the relevant plot file. Thbt it is to say it wa~ not in relation to plot 90 Tegeta but plot No.

58 Block "F" Tegeta. I ~ j The investigation further revealed that the. first receipt ' 71) 3/0925. was issued by the "WizaroyaUtumishi" on 1/5/1988 nqt by the Ministry of Lands. 4 There was also another receipt 7/394/72 which was issued by the internal r~venue (samora branch) office on 20/6/1998 or.id not the Ministry of Lands. DW3 clarified further that the proper letter of offer is LD/1341961 /1 /PTC dated 15/8/1988 for Plot No~ 90 Block "F" Tegeta. DW3 went further and explained that ownership is conferred by a letter of off er or title and not by payment of · rent or fees alone. In 2004 the second defendant's office wrote the plaintiff a letter informing him that· he was not a lawful owner of the disputed plot and asked to vacate the suit plot. In view of this DW3 stated in black and white that the Government is not to blame as it never issued the said receipts,furthermore he is not entitled to any compensation. The issues that were framed by the court were; : 1. Whether the plaintiff was lawfully allocated the · suit land by the second defendant : 2. Whether the first defendant was lawfully allocated the said suit premises by the second defendant 5 3. Whether the revocation of plaintiff's title over the suit . land by the second defendant was lawful .

4. Whether the plaintiff had made any developments on the suit land 5. To what reliefs if any ore the parties entitled to. I now turn to the framed issue starting with the first issue this can only be answered by the documents that were tendered. The plaintiff tendered a letter of offer issued by the second defendant (Exhibit Pl) and various land rent exchequer receipts and a payment receipt for acquisition of building permit (Exhibit P5) .To substantiate the second defendant's allocation of the suit plot to him contrary to what the plaintiff was trying to suggest there is the evidence of DW3 together with the • letters from the second defendant's office. These letters clearly show the second defendant's stand in the whole issue. The Commissioner for Lands one F. Kanuti on 24/8/2007 puts it in black in white that all the payment exchequer receipts and the letter of offer were all forged documen_ts. This is the very position that was also stated by DW3 from the same office. The 6 commissioner puts it very clear that it cannot be said that the plaintiff in the given scenario was lawf.ully allocated the suit plot. It follows therefore H~at the evidence is very clear that the plaintiff was never lawfully allocated the disputed land by 2nd defendant. The second issue is answered straight away in the positive . as all the documents tendered by the defendants side specifically the

letter of offer, the payment receipts and letter from the Ministry of Lands dated 10/11/2003 show· very clearly that the one allocated the suit plot is the first defendant. DW3 was also of the same view. In so far as the revocation of the plaintiff's letter of offer is concerned by the second defendant i'his was obviously done lawfully. Having found that the letter- of offer was forged and all the subsequent payment receipts, the only remedy that the second defendant had was to revoke the plaintiff's letter of offer. The issue of exhausted improvement carried out on the suit land by the plaintiff, these had been acknowledged by H1e second defendant but as he had been deciared a 7 trespasser and had no colour of right he was ordered to remove them. There is . no way in the given situation that he could bE? compensate~ for the s_ame as he had entered unlawfully on the said plot. Lastly on the issue of reliefs, it is obvious the plaintiff does not deserve anything as he was on the suit land unlawfully with forged documents. He was the maker of his own fate and should now face the consequence which is that, his case stands dismissed with costs. Right of Appeal Explained. B.R. MUTUNGI

JUDGE 5/9/2014 Read this day of 5/9/2014 in presence of Miss lesulie (State Attorney) for the 2nd · and 3rd defendants, the 1st defendant in person and in absence of plaintiff dully notified. B.R. MUTUNGI

JUDGE 5/9/2014 8