Registered Trustee of Tanzania Assembly of God v Gichameda Village Council and Two Others

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BARATI LAND CASE NO. 8153 OF 2024 REGISTERED TRUSTEE OF TANZANIA ASSEMBLY OF GOD.............PLAINTIFF VERSUS GICHAMEDA VILLAGE COUNCIL...................... ..1st DEFENDANT BABATI DISTRICT COUNCIL..................... 2nd DEFENDANT THE ATTORNEY GENERAL...................... 3rd DEFENDANT JUDGMENT 2"^ October & 28th November, 2024 KAMUZORA, J. The plaintiff sued the defendants jointly and severally claiming for the following reliefs; •Z That, the 1st defendant to give vacant possession and an order that the plaintiff is the owner of the suit land. ii. Defendants to pay the general damages. Hi. Defendants to pay for the costs of the suit. iv. Any other relief (s) that this honourable court may deem fit and just to grant. Page 1 of 18 In their joint written statement of defence, the defendants disputed the plaintiff's claim and raised the claim that the suit land is the property of the 1st defendant since 1977 and at no point in time the plaintiff owned the suit land. In an attempt to substantiate its claim, the plaintiff called three witnesses and tendered eleven exhibits while the defendants called three witnesses and tendered no exhibit. As a matter of legal representation, Mr. Tadei Lister, learned advocate represented the plaintiff while Mr. Nickson Tenges, learned state attorney represented the defendants. Three issues for determination were framed as follows; ,Z. Who is the lawful owner of the suit land. 2. Whether there was lease agreement between the plaintiff and the 1st defendant in relation of the suit land. 3. What reliefs are parties entitled to. Before I deliberate on the issues above, I would like to point out the inconsistencies in the names of the plaintiff. The plaint filed before this court indicates that the plaintiff is Registered Trustee of Tanzania Assembly of God but when filling the electronic form, the name Rev. William Panga was inserted as plaintiff's name. However, all other subsequent documents including the written statement of defence from the defendants referred the plaintiff as Registered Trustee of Tanzania Assembly of God. The evidence Page 2 of 18 also referred the plaintiff as Registered Trustee of Tanzania Assembly of God. I therefore find that, such error did not prejudice any of the parties for they all prosecuted the case with the knowledge that the plaintiff is Registered Trustee of Tanzania Assembly of God. Turning to the issues, I will briefly summarise the evidence relied upon by each side. The plaintiff relied on the evidence of PW1, PW2 and PW3. PW1 Solomon Jackson Mwagisa testified that, he has been the pastor and trustee of the plaintiff's church since 1968. That, trustees are responsible for the church properties, they can sue and be sued on behalf of the church. That, the plaintiff constructed a dispensary/health center on the suit land to help the community but was unable to run it thus, the 1st defendant rented the building to run the dispensary. That, 1st defendant refused to vacate the suit property and that is why the plaintiff is claiming back its buildings from the defendants. PW2 Zakayo Andrea Manda ri, is the pastor working with TAG church since 1999. He testified that, he was the secretary to the church and the project funded by World Vision hence, a custodian of all church documents. That, Tanzania Assembly of God (herein to be referred as TAG or simply the church) at Gichameda branch now known as RHEMA branch applied and was Page 3 of 18 allocated 374 acres of land by the village which they used in constructing some of the project buildings funded by World Vision including the dispensary. A letter to the village council applying for land was admitted as exhibit Pl. He explained that, they applied for 7 acres because they had several projects which they wanted to run but only 31/4 acres were allocated to the church in 1989 by the village land allocation committee. That, since they had other 374 acres allocated before, it made the total size of land allocated to the church to be 61/2 acres, That, after being allocated with the land, the plaintiff constructed a dispensary, doctor's house, milling machine and office building. That, the construction started in 1991 after obtaining a permit and was fully funded by World Vision. A letter by the church applying for permit to start dispensary services and a letter from the district executive director requesting for permit from the Ministry of Health were admitted as exhibits P2 and P3 respectively. PW2 further testified that the construction of the dispensary and other buildings started in 1991 and was completed in 1994. That, upon its completion, the project was handed over by World Vision to the plaintiff including; the dispensary, the church, milling machine and other office buildings. The handing over letter was admitted as exhibit P4. PW2 claimed Page 4 of 18 that the plaintiff is the owner of the dispensary building and Gichameda church was the supervisor of the project. That, later the 1st defendant rented the dispensary building for purpose of operating the dispensary therein. He tendered a letter and minutes (exhibit P5) showing that in 2013 the village had a meeting where they agreed and requested to use the church building in running the dispensary. Two more letters (exhibit P6 and P7) were admitted which contain the correspondences between the church and the village executive officer on behalf of the village (1st defendant) for the year 2015 and 2016 over the claim for rent by the plaintiff against the 1st defendant over the dispensary building. In exhibits P6 and P7, the 1st defendant admitted its failure to pay the agreed rent for the 1st defendant was the tenant to the dispensary building. PW2 claimed that, due to the 1st defendant's failure to pay rent, a dispute arose between the parties. They instituted a suit for the claim of rent but the same was dismissed as per exhibit PE9 for being time barred and were directed to institute a suit for ownership hence, this suit. PW3, Jotham Fabiano Pareso is currently working with TAG church as a pastor at Gichameda church. He testified that, upon being sent at Gichameda, he was handed with church documents including ownership Page s of 18 documents for the church and the dispensary. A copy to the ownership document was admitted as exhibit PIO showing that the 1st defendant was allocated 31A acres of land and a police report indicating that they reported on the missing original ownership document was admitted as exhibit PE11. In defence, DW1 Joseph Joku Samuhela claimed to be the 1st defendant's secretary by 1976. He testified that, the size of the suit land is 2% acres which by 1980's was used for cultivating cotton. That, in 1987 Marco Marja, a pastor from the plaintiff's church came back from abroad where he went for studies. That, he went with people form World Vision international and introduced them to the village. That, World Vision wanted to know the villagers' needs so that they could fund them and the villagers wished for a shop, grinding machine, workshop, dispensary and sewing machines. That, World Vision agreed to fund the project by constructing the requested buildings and the church was appointed to supervise the project. That, the village allocated the suit land for the project which was to be owned by the 1st defendant. That, by 1990 when DW1 stopped working as village secretary, the construction had already started. DW1 denied receiving exhibit P.1 at the village office by that time and added that, the plaintiff was allocated 2 acres of land for church construction but the same was different from the Page 6 of 18 suit land in this case. He insisted that, the suit land is the village property as it was intended for the village project. DW2, Stanslaus Medard Njovu testified that, he was a member of the village council in early 1994 to 2019 and secretary to the community service committee for 20 years. That, as a member of the community service committee, he was responsible for recording and keeping minutes for the meetings. He claimed that, the suit land is 234 acres only and it is the property of the 1st defendant. That, the dispensary, doctor's house, admission ward, carpentry workshop and sewing machine were constructed into the suit land following an agreement between the village and World Vision Tanzania for the village development. DW2 further testified that, the plaintiff participated as normal villagers and was appointed as supervisor to the project but the same was intended for the villagers. He insisted that, the suit land and the dispensary therein are legally owned and run by the government. He added that, exhibit PIO was not issued through the village assembly and the people listed as members of the allocation committee were not members of that committee. That, the chairman of the allocating committee by that time was Wilfred Makori and not the person who signed the document. That, being the Page 7 of 18 secretary to the allocation committee, DW2 was the one who was supposed to sign the said exhibit PIO. He added that while the said exhibit shows that it was issued in 1998, the record shows that the dispensary was already constructed since 1990. He insisted that the suit land is 2% acres and not 31/4 indicated in the plaint and denied being aware of exhibit P8 or any contract for renting the dispensary buildings. He added that all contracts at the village level must be discussed by the village council and approved by the villagers. DW3, Juma Ibrahim Juma testified that, he was a chairman of Gichameda village from 1999 to 2004 and a member of the World Vision project committee. He supported PWl's evidence regarding World Vision visits in 1987 and its purpose. He added that, World Vision went to the village through the plaintiff but the project was intended for the villagers. That, the plaintiff was allocated 31& acres for the church and another separate land was allocated for the project which they agreed to be under the ownership of the villagers and the plaintiff was to stand as supervisor. That, in 1994 the project was handled to the village and they are operating the dispensary. From the evidence on record, there is ample oral and documentary evidence showing that the plaintiff's official one Pastor Marco Marja was Page 8 of 18 responsible for securing World Vision as funders to the project and several buildings were constructed to help the surrounding community to wit; a dispensary, doctor's house, administration office, sewing machines' office, milling machine building and the shop. While the plaintiff believe that they are owners of the buildings constructed following World Vision funding for they were the ones who secured them, the defendants believe that they are owners of all buildings because the project was intended and directed to villagers and not the church. Following my perusal to the evidence, I find the plaintiff's evidence more convincing as opposed to the defendant's evidence. It is clear that the plaintiff tendered documents showing that they were initiators in everything. Basically, the project was intended for the surrounding community but at no time it was applied for or pressed under ownership or supervision of the village as suggested by the defence side. The oral testimony of the plaintiff's witnesses was supported by documentary exhibits. Exhibit Pl shows that the plaintiff applied for land from Gichameda village and the intention was indicated therein. They needed land for they had secured a donor ready to support them in constructing a dispensary and other building for necessary services. The document shows that they were requesting for 3 more acres Page 9 of 18 to make, a total of 7 acres but according to the evidence only 3 1/4 acres were allocated. Such document was rejected by the defence witnesses DW2 who claimed never to have seen such a document in the village office. However, it was corresponded by other evidence including the defence witnesses who agreed that the village allocated land for the projects save that they denied allocating it to the plaintiff. Thus, whether the suit land was allocated for the project is unquestionable. What is needed is evidence on whether the land was allocated to the plaintiff or not. Exhibit P2 shows that the plaintiff applied to the Doctor in charge of Babati district for a permit to construct a. dispensary at Gichameda village. Exhibit P3 is the letter District Executive Director of Babati District to the Permanent Secretary, Ministry of Health. It indicates that the district council approved the plaintiff's application for construction of the dispensary at Gichameda due to a number of reasons thus, District Executive Director was requesting for permit from the ministry. Although there is no response letter from the Ministry that was tendered, the evidence shows that there was construction of dispensary and other requested buildings which started their operations under the supervision of the plaintiff. Exhibit P4 is the letter from World Vision handing over the project to the plaintiff's Archbishop after Page 10 of 18 construction. The contents of that document are very clearly referring all buildings constructed for the project including the dispensary. It also indicates that the: handing over was subject to the agreement entered between World Vision and the plaintiff and all buildings were handed to the plaintiff as the owner and administrator of the project. A copy to that document was served to the village chairman and at no time, the village claimed improper handing over of the project to the church. In addition to the above, there is another documentary exhibit (exhibit P5) showing that upon the church's failure to run the dispensary, the village stepped in and requested to use the building in operating the dispensary. Exhibit P5 is the letter from the village executive officer directed to the church requesting for the use of the dispensary building for health services. The same is accompanied by the minutes of the village meeting which came up with the resolution to request for that building to operate the dispensary. Although contested, this court found no sound reason to disregard such exhibit for there was no sound evidence to challenge its genuineness. In their evidence, the plaintiff's witnesses claimed that they signed a lease agreement for the 1st defendant to rent dispensary building but the said lease agreement was not tendered as exhibit. However, in other two Page 11 of 18 letters from the 1* defendant (exhibits PE6 and PE7), the village executive officer of the 1st defendant acknowledged the existence of the lease agreement between the 1st defendant and the plaintiff and outstanding lease amount. The said letters were also contested by the defence side but, I similarly find no sound evidence to disregard them. The same were signed and stamped with office stamp and at no time, their genuineness was successfully challenged. With such evidence, the plaintiff was able to show how it is related to the suit property as opposed to the defence side who only came up with the oral account that the project was intended for the villagers hence, belong to the village. At no point in time the defence side was able to show the action taken by the 1st defendant in either applying for permit or supervising the project after being handed to the church. Despite the fact that the intention for the project was to help the community, it was never pressed under ownership or supervision of the 1st defendant. Thus, unlike the plaintiff who had corresponding documents showing their involvement to the project, the defendants were unable to present anything linking them with ownership of the project. The fact that they allocated land for the project does not automatically turn them to be owners of the buildings constructed therein. Page 12 of 18 It is in evidence that the land was allocated to the church for the project and it followed with issuance of the ownership document (exhibit PE10). It was however argued that such exhibit was issued after the construction thus, its legality questioned. It is true that while the project seems to be handed to the plaintiff in 1995, exhibit PE10 was issued and signed in 1998. Going through the contents of the exhibit, it covers even those people who were allocated land way back before the date of its issuance. Unless the contrary is shown, the said exhibit and oral testimony of all plaintiff's witnesses convince this court to believe that the suit land was allocated to the plaintiff for they went with the donor who intended to fund the church for the project which was intended to help the surrounding community. In fact, even the defence witnesses admitted in their evidence that a pastor from the plaintiff's church went to the village with people from World Vision for they intended to help the community. Both the plaintiff and the defendants' witnesses are at agreement that the 1st defendant allocated land for the project but the defendants deny the fact that the land was allocated to the plaintiff. This is what raises the 1st defendant's demand for ownership over the said projects. Yet, there is no any corresponding evidence showing that at any time, the 1st defendant worked hand in hand Page 13 of18 with the donor or was handed with the project after its completion. Ail corresponding evidence shows that the plaintiff was the one who secured the donor for the project and the project was handed to them after its completion and they continued running it until they were unable to do so. During closing submissions, the defence counsel raised the issue of contradiction in plaintiff's evidence regarding the size of the suit land and that there was no proper description of the suit land. On the contradiction, the learned state attorney referred facts in the plaint, evidence by plaintiff's witnesses and the what was discovered during the visit at the locus in quo. He explained that, while under paragraph 5 of the plaint the suit land is mentioned as 41/4 acres, the evidence of PW2 and PW3 and exhibit PIO refers to 31/4 acres. That, during visit of the locus in quo, the suit land was discovered to be 8821 square meters equivalent to 214 acres. To him, such contradiction goes to the root of the matter. I do not find any material contradiction in considering the fact both parties claimed ownership of the suit land and still, there was competing evidence regarding the size of the same. This court opted to visit the locus in quo to clear out the issue and all parties participated in describing the suit land by showing the boundaries. The expert was also invited by the court Page 14 of 18 and he came up with the actual size of 214 acres as the suit land described by both parties. Thus, the argument by the learned state attorney over the size and description of the suit land based on the case of Olorubare Nginyu vs Kilempu Kin oka Laizer Civil Appeal No. 416 of 2021, cannot stand. On the argument that the plaintiff failed to produce minutes of the village general assembly or village land allocating committee to prove the claims for allocation of the suit land, this court finds that the evidence by the plaintiff suffices to conclude that there was allocation of the suit land. There was a clear explanation by PW2 during cross examination that, by 1988, the application was approved by the land allocation committee but there was no procedure for approval by the village assembly. That, no allocation letter was issued save that, the names were kept at the village office. In the circumstance of this court, it was not expected for the plaintiff to have the minutes of the village general assembly or village allocation committee. Based on exhibit P10 and other corresponding evidence, it is in my view that, the plaintiff's evidence sufficiently proves that the plaintiff was allocated the suit land. It was also argued by the learned state attorney that, while the evidence shows that TAG was allocated the land, TAG is not a legal entity Page 15 of 18 with capacity to own property as per section 8(i)(c) of the Trust Incorporation Act [Cap 318 R.E 2019]. He added that, the plaintiff did not obtain the permit of the administrator general before acquiring interest in the suit land. The pleadings are ciear that TAG sued under the Registered Trustees of TAG thus, the plaintiff is a legal entity which can sue or be sued on behalf of TAG church. The evidence on record also shows that TAG church at Gichameda branch was acting under the umbrella of the TAG Dodoma Diocese and PW1 stood as member of the registered trustees to show that although the land allocation was applied for by the church branch, ownership is pressed to the Registered trustees of TAG. He acknowledged to the correspondences involving construction and handing over of the project to have involved TAG leading diocese. Therefore, the fact that the documents tendered did not refer registered Trustees of the TAG church does not invalidate ownership for it was still unregistered land. On the argument that the plaintiff did not obtain the consent of the administrator general before acquiring interest in the suit land contrary section 8(l)(c) of the Trust Incorporation Act, I find it baseless. Such provision does not refer issuing consent by the administrator general in acquiring interest over land rather, it refers compliance of the conditions and Page 16 of 18 directions contained in the certificate of incorporation. The said section 8 refers to section 5 (1) which is clear that, the administrator general will impose conditions and directions in the respective certificate. Besides that, the need to obtain consent from the administrator general is relevant where the: registered trustee is seeking to be issued with certificate of title. Butthat does not invalidate the right obtained locally before the land is registered for purpose of acquiring a certificate of title. Basing on the above discussion, I answer the 1st issue in affirmative that the plaintiff was able to prove ownership of the suit land and all structures therein. As to the 2nd issue on whether there was lease agreement, I find no reason to venture much into the same because despite being pleaded, there was no relief sought regarding issue for lease. However, there was a relief for general damages which is basically based on the plaintiff's inability to use its property upon the same being occupied by the defendants and the defendants' failure to pay the rent. Since there is no dispute that the defendants are occupying and operating dispensary services inside the plaintiff's building, it is without doubt that the plaintiffs were unable to use that building. I however hesitate from awarding damages because, in first place, the donors funded the construction of the dispensary building for Page 17 of 18 purpose of helping the surrounding community which was travelled a long distance for health services. The defendants stepped into the shoes of the plaintiff to fulfil the intended purpose by providing the same service which was intended by the project. That being the case, it cannot be said that the plaintiff suffered any damage therefrom. Thus, whether there existed any lease agreement or not, it does not justify the claim for damages. I therefore find no merit in the 2nd issue. In concluding, I am satisfied that the plaintiff was able to prove the claim for ownership of land measuring 21A acres and all buildings there in located at Gichameda village, Babati District in Manyara region. I therefore hold in favour of the plaintiff save that the claim for damages which is not proved. The 1st defendant shall therefore give vacant possession of the suit land. The costs of the suit shall be borne by the defendants. DATED at BABATI this 28th day of November, 2024. Page 18 of 18