richard elangwa shaidi vs praxeda mtana 2020 tzhclandd 2274 25 september 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 338 OF 2016 RICHARD ELANGWA SHAIDI........................................ PLAINTIFF VERSUS PRAXEDMTANA........................................................... DEFENDANT JUDGMENT S.M. MAGHIMBI, J: The dispute beforehand is over a piece of land measuring 5 acres allegedly to be situated at Sungwi area in Kisarawe District of Pwani Region registered as Farm No. 2994 with Certificate of Title No. 85519 ("The suit property"). The plaintiff's claim is that he is the lawful owner of the suit premises having inherited the same from his late father, constructed permanent structures and planted both seasonal and permanent crops including mango trees, cassava, coconut trees and cash went. He alleged that having travelled to the U.S.A in 2012, he came back in 2015 and found that the defendant had trespassed the land and developed permanent structures. On her part, the defendant denied the claim alleging to have purchased the land from one Jumanne in 2015 and that the plaintiff has never acquired, owned or used the land in dispute. In his detailed amended plaint filed on 11/09/2019, the plaintiff prayed for judgment and decree against the defendant as follows: i a) The declaration that he is the lawful owner of the Land in dispute. b) The declaration that the act of the defendant to trespass and interfere the peaceful enjoyments of the Land in dispute is illegal and unjustifiable. c) An order for permanent injunction restraining the defendant from interfere the plaintiff peaceful enjoyments of his land. d) The defendant be ordered to pay for General Damages amount to Fifty Million (TZS 50,000,000/=) to the plaintiff for her unlawful act which caused disturbance to the plaintiff and same to be assessed by this honorable court. e) That the cost of this suit to be borne by the Defendant f) Any other reliefs as this honorable court may deem fit and just to be granted. Mediation having failed, pursuant to Order XIV Rule 1(5) of the Civil Procedure Code, Cap. 33 R.E 2019, the following issues were framed for determination: 1. Who is the rightful owner of the suit premises 2. Whether the defendant is a trespasser to the suit land. 3. To what relief(s) are the parties entitled to In order to prove his case the plaintiff called 5 witnesses including himself as PW1, PW2 was the plaintiff's brother Raymond Hussein Elangwa Shaidi, PW3 was Samson Zephania Isamilo, the acting Ward Executive Officer of Masaki Ward in Kisarawe District, PW4 was Phillipo John Mtumwinyi whose 2 father used to work for the plaintiffs father in the disputed land and PW5 was one Jumanne Samson Mwampashi a land officer with Kisarawe District. On the other hand, the defendant called 5 witnesses including herself as DW1, DW2 was one Chozi Mpanda Kirumbi, a member of Masaki Ward Tribunal; DW3 was Abasi Aeshi Zengwe who was the Chairman of Masaki Village at the time when the defendant allegedly purchased the suitland, DW4 was Ramadhani Saidi Kitenga who alleged to have been sent by the Village Council to testify on this case and DW5 was Saidi Omari Kikwata. Starting with the first issue, who is the lawful owner of the suit property. In his evidence, the plaintiff as PW1 testified that his whole farm measures a total of 54.31 acres with the following borders; on the North there is a bonde and a big water dam. On the West it is his brother's farm, which he sold the land to Mzee Kamba, on the South there is Mzee Bozo and on the East there is a Pastor called Jackson. On how he got the land, he testified that he inherited the land from his late father who was the first Inspector General of Police, his name was Elangwa Shaidi. That Mzee Elangwa got the land before the plaintiff was born. He also testified that his farm is surveyed from the year 2004-2005 and he tendered a Certificate of Title No. 85519 with Land Office No. 198908 for Farm No. 2994 which was admitted as exhibit P2 (EXP2) and prior to that he was issued with a letter of offer (EXP1). He also testified that between 2014-2015, he was informed of the trespass by his watchman Ali Salum, this was when he was in the USA for further studies. He reported the matter to the hamlet Chairman who said she was not aware of the 3 trespass and he also went to the Sungwi Village Government and asked them if they sold the land and they said they know nothing of the sale of land because the sale happened at Masaki Village. That Masaki Village Council also told him that they knew nothing of the sale and that is when he brought the matter to court. PW2 was the plaintiff's brother who explained how he was appointed the administrator of their father's estate and divided the land and further on the location of the plaintiff's farm. PW3 on the other hand was the acting Ward Executive Officer of Masaki Ward which is in Kisarawe District and testified to the effect that he knows that the disputed land is surveyed according to the law. He also confirmed that the Title Deed (EXP2) is what is conclusive that the land has been officially surveyed. On his part PW4 testified that he knew the disputed land since when he was a little boy because his father, John Mtumwinyi, used to work in that farm and he was employed by Mzee Elangwa Shaidi who is now deceased. That when he was born in 1972 his father worked there until he passed away in 1993. PW5 was the Land Officer who surveyed the land and issued the title deed. He testified that there are about 8 surveyed farms in Kisarawe including the plaintiff's farm and that till now, the records at the Ministry of Land show that the same belongs to the plaintiff. Up to this stage, the plaintiff's evidence has established that the disputed land is included in the land with Title EXP2 and that the ownership claimed is through a registered title. Now let us what the defence evidence has to say. 4 The defendant testified as DW1, her testimony was to the effect that the disputed land is situated at Masaki Village, Mitwini Hamlet and measures around 5 acres in estimate because they have not been officially surveyed. This land is bordered by Bonde la Maji on the North, on the South there is a road, on the East there is Zubeda Ramadhani and on the West there is Mwanaimani Tuli. She also testified that she purchased the land in February 2012 from Jumanne Polisi and before him the land was owned by a person famously known as Dobe. That the said Jumanne Polisi sold to two people, Mwanaimani Tuli on one side and she bought the other side under the supervision and witness of Masaki Village, whereby at the time the WEO of Mitwini was there representing the Village. She tendered the sale agreement for the purchase of the land and was admitted as exhibit DI (EXD1). DW1 went on testifying that in 2017 when she went to visit the land, her neighbors told her that the land was in dispute and there was a case filed in court. That in the same year 2017 the Kisarawe District Council ordered the villages to take stock and identify its residents and she was lifted and tendered EXD2 to support her testimony. That she constructed a house and after this case was lodged she could not develop that building till now when it is broken. At this point, I am satisfied that the evidence of the plaintiff is sufficient to establish that the land belonged to him. He tendered exhibit P2, which showed that the land is a registered land. It is trite law that a title deed is a better title where ownership of land is in dispute, although the parties have to prove ownership prior to the survey. At this point, I was satisfied 5 with the plaintiff's evidence that the land belonged to his late father. This testimony was supported by PW2, PW5 and PW3 who knew of the history of the land. On her part, the defendant relied on a mere sale agreement EXD1 between her and one Jumanne Polisi who never came to testify. Furthermore, the defence evidence was full of contradictions, while the defendant testified to have bought the land from the said Jumanne and 4 others (EXD1) none of whom was brought to court. She also relied on the EXD2, an exhibit which doesn't describe the suitland, neither does it prove ownership of the defendant over that of the plaintiff because it was a mere verification exercise. Furthermore, DW2 testified that the land belonged to the village and anyone could use the land for farming, defeating the defendant's evidence that the land belonged to Jumanne Polisi. The defendant's DW3 also did not have any value addition to the testimony as he could not even testify on the history of the land. Therefore, since the plaintiff brought a title deed which was issued years before the purported sale to the defendant, and owing to the fact that the defendant could not establish ownership of the said Jumanne Polisi or any of the people in EXD2 having come to testify, the evidence of the plaintiff on ownership outweighs that of the defendant. In conclusion, the first issue is answered in favor of the plaintiff as the plaintiff's evidence sufficiently showed that he is the lawful owner of the suit property. The second issue is on the reliefs that the parties are entitled to. In her SWD, the defendant prayed for the dismissal of this suit with costs and 6 since the plaintiff has successfully established his ownership to the suitland, this court allows the suit and makes the following orders: 1. The plaintiff is declared the lawful owner of the land in dispute to wit; five acres comprised within the registered Farm No. 2994 with Certificate of Title No. 85519 situated at Sungwi area in Kisarawe District of Pwani Region. 2. The defendant is permanently retrained from interfering with the plaintiff peaceful enjoyments of his land. 3. The costs of this suit shall be borne by the Defendant 7