KAKULUKULU Jdg

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA LAND CASE NO. 2 OF 2022 RASHID SAID KAKULUKULU (The administrator of the estate of the late SAID RASHID KAKULUKULU)........................ PLAINTIFF VERSUS TABORA MUNICIPAL COUNCIL.................................................. 1stDEFENDANT THE COMMISSIONER FOR LANDS..............................................2ndDEFENDANT ALLIANCE ONE TOBACCO COMPANY LTD............. 3rd DEFENDANT ATTORNEY GENERAL................................................................. 4thDEFENDANT JUDGMENT Date of Last Order: 03/05/2024 Date of Delivery: 04/07/2024 MANGO, J. The Plaintiff, Rashidi Said Kakulukulu filed this suit against the Defendants claiming ownership of the suit land covering 48,886 square meters of land which comprises of 66 plots located at block QQ, Ipuli within Tabora municipality, payment of Tshs. 35,000,000/= as specific damages, 30,000,000/= as general damages, costs of the suit and interest at commercial rates. Upon being duly served, the 1st, 2nd and 4th Defendants filed their joint written statement of defence and the 3rd Defendant filed his written statement of defence disputing the claims raised in the plaint. i During final pretrial conference and before hearing started, the following issues were framed, recorded and agreed between the parties for determination of this suit, namely: i. Who is the lawful owner of the suit land between the parties ii. To what relief (s) are the parties entitled to. During hearing of this suit, the Plaintiff was represented by the learned advocate Kelvin Kayaga, whereas the 1st, 2nd and 4th defendants were represented by Messrs. Gureni Mapande and Samwel Mahuma learned state attorneys and the 3rd respondent was represented by Ms. Flavia Francis. The plaintiff had three witnesses and tendered documentary evidence while the defence team brought two witnesses in total and documentary evidence as well. When the plaintiff's case opened, the Plaintiff who testified as PW1 informed the Court that he is the administrator of the estate of his late father Said Rashid Kakulukulu who was the owner of the land in dispute. The land in dispute has 66 plots from 955-971, 978-1034 located at Block QQ Ipuli within Tabora Municipality. He narrated that, his father cleared the land and he has been using the land for agriculture since 1952, the land is 15.8 hectors in size and its boundaries were Hassan Kisanzo East, said Msabaha North, Makwaya South, Kazuge West, the area has now been surveyed having 137 plots from number 919 to 1066 in total. The plaintiff alleged that, the 1st defendant allocated 66 plots which is equivalent to 44644 square meters to Alliance One Tobacco Company Ltd, the 3rd Defendant and 72 plots to the plaintiff's family which is equivalent to 2 42536 square meters. He concluded that his claim is that the 66 plots allocated to the company belongs to his family. He testified further that, his cause of action against the second defendant based on the second defendant's advice that the plots surveyed from the acquired land should be divided fifty-fifty between the third Defendant Company and the Plaintiff's family. The Plaintiff tendered Letters of administration of the estate of the late Said Rashid Kakulukulu and the letter authored by Regional Administrative Secretary for Tabora addressed to Land Commission dated 12/09/2008, a letter dated 22/12/2020 with Reference No. TC/F/3 VOL.II/144 authored by the Municipal Director, Demand notice and Statutory notice, an inquiry letter dated 11/11/2021, affidavit regarding name of Rashid Said Kakulukulu which were admitted as exhibit Pl, P2, P3, P4, P5 and P6 respectively. During cross examination by Mr. Mahuma State Attorney, the plaintiff averred that the land was acquired by the government in 1996 without their involvement. He admitted that, during the said acquisition, the land was not improved. As to when the dispute arose, he stated that the dispute arose in 2020 when 66 plots were offered to the 3rd Defendant. PW2 Masoud Mwilu Mhinda and PW3 Masoud Juma Mzalendo testified to the effect that the land in dispute was formerly owned by the plaintiff's father and they don't know the size. The land was surveyed between the year 2008-2010. That was all from the Plaintiff. Defence case commenced by DW1 Violet Manyiri a Land Officer working with the first Defendant. DW1 was the only witnesses for the 1st, 3 2nd and 4th Defendants. She stated that she works as a land officer at Tabora Municipal Council since 2017. The plots in dispute were obtained through ordinary government process of acquisition and survey of land. She explained that, the government acquired un-surveyed land located within the municipality area, surveyed it and allocated the plots to people who applied to be allocated plots. By that time the applicable law, the Land Ordinance didn't recognize provide for compensation on unimproved land. Only unexhausted improvements on the acquired land were compensated. Compensation was also paid on long time fruit trees and other planted trees. She stated that Rashid Said Kakulukulu as administrator of the estate of the late Said Rashid Kakulukulu complained to the Municipal Director regarding Plots No. 751-766 resulted from the survey conducted in 1996. By that time the plots were allocated to Tabora Tobacco Processors Ltd as a lawful owner since the law provided that when the land is acquired, customary ownership ceases. She alleged that in 1999 Tabora Tobacco Processors Ltd sold the land to Alliance One Tobacco Company Ltd. The Municipal Council could not offer any compensation to the Plaintiff since there were no any improvements in the land. The Plaintiff's claim was referred to the Regional and National authorities as a result a Commission was formed to inquire and advice the responsible authorities on how the same can be addressed. The Commission recommended that, though the law does not provide for compensation to unimproved land, for the goodwill of the Government, the Plaintiff be given some plots from the surveyed land. In 2017, the Municipal Council checked if the land allocated to various people in 1996 4 were improved. The plots allocated to Alliance One Tobacco Co. Ltd plot No. 751-766 were not improved contrary to the allocation conditions. The Municipality wrote a letter to Alliance One Tobacco requiring them to give reasons why they have not improved their plots for so long. They responded and gave reasons for their failure to improve the land and requested to return the certificate of title for re-survey of the plots into small plots so that they can sell the same to their employees. The resurvey and sale of plots to the employees aimed at ensuring that the land is improved. The 3rd Defendant and the Municipality agreed that survey costs be met by the Municipality Council. Then the plots that will be obtained after the re-survey be divided fifty-fifty between the 3rd Defendant and Tabora Municipal Council. When the Commission visited the land complained of by the Plaintiff, it found out that Plaintiff was complaining of land located at Unyoga, Mnadani and Kazuge area. The commission recommended that fifty percent (50%) of plots that were to be given to Tabora Municipality be given to Said Kakulukulu out of Government good will. In the year 2020, Said Kakulukulu was given 72 plots that were surveyed at the expense of the Municipality. DW2 David Samwel Mayunga, the Manager of Alliance one Company Limited, testified that he started working at Alliance One Tobacco Co. Ltd since 1998 when the company was known as Dimon Morogoro Tobacco Processors. In 2021 they received a letter notice of intent to sue Tabora Municipal Council and Alliance one Tobacco for the plots located at Ipuli owned by the third Defendant. In 1999 Alliance One Tobacco Co. Ltd started initiatives of purchasing plots from Tabora Tobacco Processors Ltd which are 5 751-766, 16 plots at Ipuli. In 2001 the purchase of plots was finalized by registering transfer of ownership. Due to failure to improve the land, the company agreed with the municipal that the land be re-surveyed and divided into small plots and be divided 50% percent be owned by the company the remaining 50% be the property of the municipal to cover survey costs. After the re-survey, the land had 137 plots, 65 plots out of 137 plots were given to the company. He stated further that on the date they were handled their plots, they saw Municipal officers handling the remaining plots to somebody else. He prayed to tender all documents which effected the whole process which are; 1. A letter authored by Tabora Municipal company to Dimon Morogoro Tobacco Processors Limited dated 10/07/2017 with Reference No. TMC/M/03/029 admitted and marked as D2. 2. A letter dated 16/10/2017 with Reference No. LD/TM C/24999/06 from Tabora Municipal Council to Dimon Morogoro Tobacco Processors admitted and marked as exhibit D3. 3. A letter dated 12/09/2017 with Reference No. AOTTL/TBR/LC/17-03 from Alliance one to Tabora Municipal Council admitted and marked as exhibit D4. 4. A letter dated 24/01/2018 with Reference AOTTL/TBR/LC/18-Ol from Alliance one addressed to Tabora Municipal Council admitted and marked as exhibit D5. 5. A letter dated 20/08/2019 with Refence No. LD/TMC/24999/07 from Tabora Municipal Council to Alliance one admitted and marked as exhibit D6. 6 6. A letter dated 30/09/2019 with Reference No. AOTTL-19-008-C from Alliance one to Tabora Municipal Council admitted and marked as exhibit D7. 7. A letter dated 22/12/2020 with Reference No. TMC/F3VOLII/W5 from Tabora Municipal Council to Alliance one Company Limited is admitted and marked as exhibit D8. That was all from the Defendants case. After the closure of the Plaintiff's and Defendant's case, parties decided not to file final submissions. Having going through the pleadings, exhibits and evidence adduced by both parties I can now determine the suit by determining the issues raised. The first issue reads, who is the lawful owner of the suit land. Evidence in record does not establish the Plaintiff to be the lawful owner of the land. I hold so on the reason that, evidence from both sides establishes that the land was acquired in 1996. When the land is acquired, title granted or acquired prior to the acquisition ceases. Thus, the Plaintiff's title over the land ceased in 1996 when the Sand was acquired. What can be discerned from the Plaint, is that the Plaintiff alleges that, he was not paid any compensation for the acquisition of the land. This is expressly stated under paragraph 8 of the Plaint which reads:- "That in 1996 the 1st Defendant acquired the Plaintiffs land and offered the same to Dimon Morogoro Tobacco Processors Ltd, the same being known currently by the name of Alliance One Tobacco Tanzania Limited being the 3rd Defendant herein, to which a CT. 10746 was issued by the 2nd Defendant in that respect and no compensation whatsoever was given to the Plaintiff in iieu 7 of such dispossession by the Defendants Respectively." (Emphasis added) It should be noted that, the land was acquired under the Land Ordinance which did not recognize value of unimproved land. It was the Plaintiff's testimony that by the time of acquisition, the land was not developed but was merely used for growing seasonal crops. Compensation was introduced in our laws through the Land Act, [Cap 113 R.E 2019]. The Land Act recognized the value of land under S. 3(g), and set some pre­ requisite conditions in accessing compensation under the proviso (i-vii). Section 3(g) of the Act provides that: "to pay full, fair and prompt compensation to any person whose right of occupancy or recognised long-standing occupation or customary use of land is revoked or otherwise interfered with to their detriment by the State under this Act or is acquired under the Land Acquisition Act:" Despite the fact that the Plaintiff's land was acquired at the time when unimproved land was considered to have no value, evidence on record establishes that the Plaintiff was given 72 plots after the land was re­ surveyed into small plots in the year 2019/2020. Regardless the term used, the plots were given to the Plaintiff as compensation for his acquired land. If the Plaintiff was not satisfied with the compensations, he ought to have filed a suit challenging the same. By instituting the matter at hand claiming the remaining 66 plots out of 137 which were obtained during survey of his acquired land, the Plaintiff attempts to reclaim back the entire land. Such action cannot succeed because the land was properly acquired and the Plaintiff was paid compensation. 8 I would have declared the third Defendant as the owner of the suit land, however it was the testimony of DW2 David Samwel Mayunga, the third Defendant's Company sold most of the plots to other people. In that regard most of the plots are nolonger owned by the third Defendant. Moreover, the Defendants did not raise any counter claim. In that regard I will proceed directly to the reliefs entitled to parties. It is my considered view that the first relief that parties are entitled to is to have the case dismissed as I hereby do. The second relief is costs. I thought of not granting costs due the nature of parties in this matter, but I found it necessary to grant costs due to the fact that the third Defendant had incurred costs of hiring an advocate. In that regard, the suit is dismissed and the Plaintiff should bear costs incurred by all Defendants in prosecuting this matter. Dated at Tabora this 4th day of July 2024 Z.D. MANGO JUDGE 9