20200508 TZHC Dar es Salaam

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' - :I~ ill~ IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM LAND CASE NO. 97 OF 2014 RITHA NATHANAEL MWANGA .•••................. 1 ST PLAINTIFF SIRI ZUBERI GONGO ........•••••••••.................... 2ND PLAINTIFF RAFIKI ALI MKWAYU .................................... 3RD PLAINTIFF HAMADI ABDALAH NGENJE ............................. 4™ PLAINTIFF IBRAHIM MWANAMASUKE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5™ PLAINTIFF HASAN FARAJI NGONYANI .............................. 6TH PLAINTIFF RAMADHANI MOHAMED ZOGOLO . . .. . . . . . . . . . . . . . . . . . ~a PLAINTIFF EMMANUEL MARUA .....................•••••...••.....• 8TH PLAINTIFF DONIEL LEKIVENI • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 9TH PLAINTIFF RAPAEL KIONDO . . . . . . . •. . ••••••••. ••. . •. . •. . •. •••. . 1 O™PLAINTIFF LEKIVEN BOYASASA . . . •. ••••. . . . . . •. . . . •. . •. . . . . •. ••••. . 11 THPLAINTIFF VERSUS NATIONAL HOUSING COOPORATION ........... 1 5 T DEFENDANT FORSTER AUCTIONEERS AND GENERAL TRADERS LIMITED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2ND DEFENDANT JUDGMENT Date of last order: 27'h March, 2020 Date of Judgment: 08'h May, 2020 NGWALA, J On 5 th December, 2014, the Plaintiffs sued the Defendant jointly and severally for the following reliefs that are quoted in verbatim:- 1 I " 1. Declaration that the eviction and demolition of the plaintiffs' property was illegal and contrary to the laid down procedure to acquire the plaintiffs' land. 2. Declaration that the plaintiffs were in lawful possession of the disputed land and they have developed the land lawfully. 3. Declaration that the purported trespass and demolition of the Plaintiffs' premises by the Defendants is illegal and ineffectual in law. 4. A permanent injunction against the Defendants jointly and severally, their workmen or any other person working on their behalf, from trespassing and interfering with the plaintiffs ownership of the disputed pieces of land. 5. The Defendant be ordered to pay a general damages in the sum of this Tshs 5,000,000,000/= only to cover disturbances and mental anguish for denying the opportunity to develop his plot according to his plans. Or in the alternatives if the 1st defend ant is in need to use the plaintiff land, the laid procedure should be followed including reaching agreement with the plaintiffs. 6. Declaration that if the 1st Defend ant intends to use the plaintiffs' land for whatever purpose, they could do so after they have paid the plaintiffs compensation of their 2 f demolished developments and the value of the land at the tune of Tshs 27,000,000,000 (says twenty seven billions) to cover both the value of the land developments. 7. The Defendant pays the Plaintiffs interest as per paragraph (d) hereinabove, and on the decretal amount at the Court rate of 11 % from the date of judgment till when the decree in fully satisfied. 8. Costs. 9. Any other relief (s) that the Honourable Court may deem.fit." In their joint Plaint they claim that they had been in lawful, peaceful and uninterrupted occupation of the suit land since the year 1992 to 2005 when the Government identified and formalized their occupation of the area. They were issued with Residential licences that they had been renewing till the 13 th August, 2014 when the defendants trespassed into their land and demolished their respective properties and took away the items stored in their containers and licences on the said piece of land. The defendants disputed the plaintiffs' claims. They averred in their Joint Written Statement of Defence that the plaintiffs have never been in lawful or legal occupation of the disputed land. The land in dispute is located within their registered plots of the land that was previously owned by the 1st Defendant's predecessor, namely, the Tanganyika Packers Ltd (TPL). The said land in dispute is known as 3 Plot Numbers 697, 709 and 711 Kawe Dar es salaam City. It is registered in the name of the 1st Defendant. The defendants further denied the allegations by the plaintiffs that the land in dispute is located in unsurveyed area of Kawe Mzimuni. On the contrary the defendants state that it is part and parcel of the registered plot known as plot No. 697 Kawe, Dar es salaam City. The defendants denied each and every allegation of the facts contained in the plaint. They prayed for the dismissal of the suit in its entirety with costs. At the commencement of the trial, in the Final Pretrial Conference that was conducted on 4 th August, 2015, the plaintiffs' were represented by Mr. Living learned advocate, whereas Mr. Matunda learned advocate represented the defendants. The parties agreed to and the court adopted the following issues:- 1. Whether the plaintiffs' were in lawful occupation or possession of the disputed land. 2. Whether the Plaintiffs did develop the disputed land. 3. Whether the demolition/ clearance of the structures in the disputed land of the defendant were lawful. 4. Whether the plaintiffs suffered damages on the hands of the Defendants. 5. To what reliefs are the parties entitled. 4 C In addressing the issues, the court will examne them in "seriatim' by evaluating the evidence adduced by the witnesses in relation to the guiding legendary legal principles in Civil suits. It has been established in the plaintiffs case that the cause of action accrued on 13th August, 2014, when the plaintiffs were m lawful occupation and possession of the disputed land. The 6 th plaintiff PWl testified that he was given five (5) acres of land by Tanganyika Packers Ltd without proof of any document or further support evidence from a witness to that effect. He subdivided that piece of land and gave it to the 1st , 2 nd , 3rd, 4 th , 5 th , 8th, 10th, 11th plaintiffs and another by the name of Abasi Mandondo who is not a party in this case. PWl tendered photocopies of the Residential licences (Leseni za Makazz) which were collectively admitted for identification purpose only as exhibit "IP-1" PW2, Ritha Nathaniel Mwanga, the 1st plaintiff, testified that she was occupying the suit land under a Residential licence for two years that was renewed to five years term expiring in 2016. PW2 however could not produce the original copy of that Residential licence on the ground that it was under the custody of CRDB Bank where she took out the loan. For that reason, PW2 tendered a photocopy of the said licence (Leseni ya Makazz), No. KND 025573 for Plot No. KND /KWE / KMZ8 / 119 which formed parts of annexture LRD I to the Plaint. It was received by the court as IP-2 for identification purpose only. 5 The 3rct plaintiff, PW3 Rafiki Ally Mkwayu stated that he was given the plot in dispute by PWl in 2003. He erected a house for his children. He was forced to vacate the area following the demolition of his house by the first defendant (NHC) in July, 2014. PW3 produced the Residential permit (Leseni ya Makazz) with No. KND 027365 that ran from 24/1/2011 to 23/1/2016 that was admitted as "exhibit Pl". PW3 argued that he was entitled to be paid compensation for the improvements made on the land. He ought to be informed of the process of Revocation of the Residential Licences. On being cross examined by Mr. Kamara Mpaya, the learned counsel for the defendants, PW3 admitted to have erected the house on the said plot without the requisite permit and that he made the last payments of land rent in 2011. The substance of the evidence of the 5 th plaintiff, who testified as PW4, was that he was also given the suit land by PWl in 1990. He erected a house and chicken cages in 1996. Later after the Government Officials had surveyed the land, he was issued with a Residential licence No. KND, 027364 for five years from 24 th January, 2011 to 23 rd January, 2016. The licence was admitted as "exhibit P2". The Defence case was featured by SIX witnesses. It was in the evidence of DWl, Nemes Lasway, the Care Taker and Security Officer of the 1st defendant, that the plaintiff had trespassed into the area of the 1st defendant comprised of plots No. 697, 709 and 6 711 Kawe, within Dar es salaam City. He contended that when the trespassers were given a Notice to vacate that trespassed land, one Alex Mosi Sindaniwe a trespasser resisted the Notice. Consequently the 1st defendant instituted a case against him in the High Court Land Division. The High Court ordered him and all other plaintiffs to vacate the disputed land in Land case No. 213 of 2014. The execution of the Decree in the said case resulted into the eviction of the plaintiffs and the said Alex Mosi Sindaniwe from the suit land. Thereafter all the Residential licences that were issued to the plaintiffs were revoked through Government Notices issued on 5 th November, 2013 and February 2014 vide GN No. 990 of 2013, GN No. 992 of 2013 and GN 211 of 2014 that were admitted in court collectively as "exhibit D 1". DW2, Catherine Mgeni, the 1st defendant's Housing Technician confirmed that the High Court had granted the 1st defendant an Order to evict all the trespassers from plots No. 697,709 and 711 Kawe, Dar es salaam in order to pave way for construction of the Kawe Satellite City. All the trespassers including the plaintiffs' were therefore evicted from the said plot under Police supervision. DW2 had tendered a copy of the survey plan, the original Certificates of occupancies registered under titles Numbers 135006 - L. 0 527915, 135010 - LO 527913 and 138497 - LO 527914 issued in the name of the 1st Defendant that were admitted as exhibits 'D2' and '03' respectively. 7 0 DW3, Benit Nicholaus Masika who by then was the Regional Manager of NHC for Kinondoni testified that upon rece1v1ng information that their area comprising of plots No. 697, 709 and 711 had been invaded, by unknown person who were constructing and fencing the area with barbed wires; they issued a Notice to "whom it may concern" (Exhibit 03) to stop Developments and to recover their properties on the land allocated to the 1st Defendant - NHC. The Notices were affixed on the concrete polls and containers of the trespassers. The trespassers failed to comply with the Notice. An order was issued by the Land Division of High Court Dar es salaam as per the copy of the Drawn Order (ID -1), that resulted into the demolition of the barbed wire fences, concrete polls "magenge' "kiosks" and removal of containers on the cite. The order was executed by Forsters Court Brockers, the 2 nd defendant. DW4, elaborated that, the Residential licences of the plaintiffs were revoked because they had been issued wrongly by the Municipal Council of Kinondoni. The laid down procedure to revoke the Residential licence was followed, after verification through the Local Government Officers of the area, and realising _that those Residential Licences were issued after the survey had already been conducted and there was a Title Deed to the disputed land. It was thus found that the plaintiffs were inside the land that had already been allocated to the 1st plaintiff- NHC, that suggested there was double allocation hence the Residential Licences were "void abinitio". 8 .: When cross examined by Mr. Thobias Kavishe, the learned advocate for the Plaintiff, DW4 replied that the Local Government Authorities (Serikali ya Mtaa) did not disclose the true facts on the ground. It was after receiving the complaint from Tanganyika Packers and NHC that the Municipal Council had issued Residential licences in their Registered land, they reviewed those Licences and cancelled them for being obtained illegally. Besides DW4's testimony, DWS, Selasia Daniel Mwanalila the then Authorized Land Officer for Kinondoni Municipal Council added that there was a Government Notice (Exhibit D5) with directives that the Residential Licences that were wrongly issued on the surveyed areas should not be extended. A letter from the Town Planner of Kinondoni Municipal Council was tendered in court by DW6 Geofrey Sethi Mwamsojo, the Authorized Land Officer of Kinondoni Municipal Officer who also tendered Exhibit D5 and that letter dated 25 th October, 2008 titled "Zoezi la ufumbuzi wa miliki katika majengo yaliyojengwa kiholela katika mtaa wa Kawe Mzimuni". Exhibit D5, showed clearly that the Residential licences that were obtained illegally cannot be reviewed after expiration of the period of licences. Those licences should be revoked. DW6 insisted that in the Government Notices all the Residential licences of the plaintiffs including the original Residential licences of PW3 and PW4 had been revoked as per exhibit 'D l '. 9 On the 1st issue, whether the plaintiffs were in lawful occupation or possession of the disputed land, from the evidence that I have narrated at length it is quite clear that the plaintiffs' allegation in their Plaint that they have been in lawful possession and occupation of the disputed land, has not been proved. None of the 2°d, 4th, 7th, 8th, 9th, 10th and 11 th plaintiffs has appeared in court to prove their claims. As this is not a representative suit their claims against the Defendants have not been proved. Accordingly they are out rightly dismissed with costs. The witnesses too who had testified as PW 1, PW2, PW3 and PW4 also, did not prove that they were in lawful possession or occupation of the suit land on 13 th August, 2014 when the complained demolition took place. More so there is a conflicting testimony between, PW4 who stated that the demolition occured on 13 th August, 2014 while PWl stated that it took place on 24 th July, 2014 and PW2 stated that the demolition took place on 23rd July, 2013. Similarly, PWl and PW2 who tendered photocopies of Residential licences that were received and admitted in court as exhibits 'IP I' and 'IP2' respectively, that were admitted by the court for purposes of identification only, carry no evidential value as held in the case of Saully Lawoneko v. Mwanamvua Ngocho; High Court of Tanzania at DSM in Land Appeal No. 12 of 2011 (unreported). His Lordship Juma J, (as he then was held) that documents 10 received and admitted by the court for identification purpose carries no evidential value. The licences of PW3 and PW4 that there admitted as exhibit 'Pl' and 'P2', like those other residential licences that were found to have no evidential or probative value, were cancelled and revoked on 8 th November, 2013 vide GN. No. 190 of 2013, as evidenced in Exhibit 'D l' for the reason that they had been illegally and improperly procured. PW2 stated further that she had not paid the Land rent for the disputed land on the ground that the receipts were lost and that the original was with the CRDB Bank. This piece of evidence too proves the fact that PW2 was not in lawful occupation of the land. The testimonies of PW3 and PW4 do not establish the legality of their occupation vide their licences admitted as exhibit 'Pl' and 'P2'. I hold so because Exhibit P 1 had been revoked way back on 8 th November, 2013, vide GN No. 1000/2013. Similarly Exhibit P2 had also been revoked within 30 days from 8 th November, 2013 vide GN No. 992 of 2013 comprised in exhibit D 1. Thus, it is evident that by 13 th August, 2014, upon which the plaintiffs claim that the cause of action arose following the demolition of their suit properties the plaintiffs were not in lawful occupation of the Suitland. Further to that testimony of PW 1 who states that he was given the piece of land within the disputed area way back in 2003, by Tanganyika Packers Ltd, PWl could not support his assertion by 11 • producing a written document in accordance with the provisions of Section 64(1)(a) of the Land Act, (Cap 113 R. E 2002) that provides:- "A contract for disposition of a Right of accompany or any derivative right in it or a mortgage is enforceable only if the contract is in writing or there is a written memorandum of its terms" It is on those basis that I hold that all the plaintiffs, including, PWl, PW2, PW3 and PW4 none of them had proved that they had building permits to effect the building on the disputed ·plots. More so, the onus of proving that the plaintiffs were in lawful occupation or possession of the Suitland that rests squarely on the plaintiffs as the ones who alleged that fact to that effect has not been proved in accordance with Section 110 of the Tanzania Evidence Act, Cap 6 R. E 2002, as elaborated by Mwandambo J, in the case of "Al- Karim Shamshudin Habib v. Equity Bank (T) Ltd and Another HC Commercial Division, at DSM, Commercial Case No. 60 of 2016, at page 7 (unreported) that:- "He who alleges must prove his allegations on the required standard to succeed in a suit. This being a Civil Case, the standard of proof is on balance of probabilities which simply means that the court will accept such version of evidence which is more credible and probable than the other as articulated by Lord Denning in Miller v. Minister of Pension [1937) 2 ALL. ER 372." 12 His Lordship Mwandambo J, quoted Lord Denning articulation that·- ' "If at the end of the case the evidence turns the scale definitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unable to come to a determinate conclusion one way or the other, then the man must be given the benefit of the doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in Civil Case. That degree is well settled. It must carry a reasonable degree of probability, but not so high as required in a Criminal Case. If the evidence is such that the tribunal can say - we think it more probable that not, the burden is discharged, but, if the probabilities are equal, it is no ....... " (at page 340) The plaintiffs' have failed to prove that they were owners of the land in terms of Section 2 of the Land Registration Act, [Cap 334 R.E 2002] and the case of Salum Mateyo v. Mohamed Mateyo [1987] TLR 111 where the court held that;- "Section 2 of the Land Registration Act Ordinance Cap 334 defines owner in relation to any estate or interest as the person for the time being in whose name the estate or interest is registered". 13 • There is also a clear evidence that the 1st defendant is a holder of certificates of titles to the disputed land in accordance with Section 40 of the Land Registration Act Cap 334 R. E 2002, that a certificate of title is a prima facie evidence in terms of Section 33 of the same Land Registration Act, that the owner of any estate, shall hold it free from all estates and interests, other than those mentioned under Section 33(1) and (2) of the said section. In this case it also clear to me that the said title deeds had been registered in terms of Section 22 of the Registration of Documents Act, Chapter 117 R. E 2002 that was not challenged by the plaintiffs' proved the fact, the 1st defendant has a good title as held in the case of Okello v. Uganda National Examination Board [1986 - 1989] EA 436 (SCU) that:- "The law is very clear that certificate of title is conclusive evidence of title. The certificate can only be impeached on limited grounds including fraud ...... " For the foregoing reasons the 1st issue whether the Plaintiffs were in lawful occupation or possession of the disputed land is answered in the negative, because none of Plaintiffs has proved on balance of probabilities that they were in lawful occupation or possession of the disputed land. On the 2 nd issue, whether the Plaintiff developed the disputed land. The Plaintiff had averred in the Plaint, that "the defendants demolished properties, their buildings, plaintiffs houses and fences" 14 • however in their respective testimonies they did not show or prove that any of them had developed any part of the land, by telling the materials used in the construction of their houses, building, fences etc. for example neither PW 1, PW2 nor PW3 told the court the type of the house and the value of the house. PW2 who had just estimated the value of the house to be Tshs 75,000,000/= (seventy five million shillings) did not produce any evidence to justify such estimation. For the sake of argument, even if they would have succeeded in proving that the suitland was developed, they still did not have the right to build in the suit land because they failed to prove ownership. On the part of the Defendant's evidence it was established clearly that the plaintiff trespassed by putting barbed wires fence thereof. The plaintiffs who had testified in court were living outside the disputed area. DWI stated so, and similarly according to DW4, it was established that during the eviction and demolition to pave way to construction, they found the barbed wire fences, temporary structures, Kiosk and containers on the disputed land In view of this evidence, there is a generalized mention of the demolished properties alleged to have been built and developed on the land that should or must be pleaded specifically and specifically proved as held in the case of Anthony Ngoo and Another v. Kitinda Kimaro, Civil Appeal No. 25 of 2014 at page 16 that; 15 "In relation to special damages, the law is settled. Special damages must be proved specifically and strictly" Similary, on generally damages, in the same case of Anthony Ngoo and Another v. Kitinda Kimaro (Supra) it was held;- "The law is settled that general damages are awarded by the trial Judge, after consideration and deliberation on the evidence on record able to justify the award. The judge has discretion in the award of general damages. However the judge must assign a reason" It follows therefore that the evidence by the plaintiff doesnot supports the averment in the pleadings as the plaintiffs have not adduced evidence to prove that they had developed the disputed land. The 2 nd issue is therefore is also answered in the negative. Regarding the 3 rd issue whether the demolition/ clearance of the structures in the disputed land the defendant were lawful. Upon examination of the 'evidence, there is no doubt that the 1st defendant is the lawful owner of the disputed land comprised in plots Number. 697, 709 and 711. It has also already been found that the plaintiffs have not proved that they were in lawful occupation or possession of the suit land because their Residential Licenses had been revoked as the Residential Licenecs in Dar es salaam City are issued in squatter areas or unserveyed land and not on surveyed land. 16 It is also in the defendants' case through DWl and DW3 Benito Nicholaus Masika that upon receiving information that their plots had been trespassed into the disputed land; They issued quit Notices to the trespassers who were required to vacate on the said plots. It is also in exhibit 'D5' that an eviction order was issued by the court, and the 2 nd defendant subsequently levied that order under Police supervision. In this respect I am satisfied that the Demolition was lawful as this court is legally enjoined to take judicial Notice of its Order dated 23 rd day of July, 2014 in the case of National Housing Corporation v. Alex Mosi Sindamiwe and Z. F. Bharimal Land Case No. 213 of 2014 of High Court Land Division Dar es salaam. The 1st Defendant was therefore legally enjoined to take the action it did along with the 2 nd Defendant against the trespassers. Accordingly the 3 rd issue for the aforesaid reasons, is resolved affirmatively. Regarding the 4 th issue whether the plaintiffs suffered damages in the hands of the defendants; As it has already been found that none of the plaintiffs were in lawful occupation of the disputed land on the material date of demolition, and further that, none of the plaintiffs had proved to have carried development on the suit land, and that the plaintiffs have neither specifically pleaded any general damages that must be averred that such damages has been suffered for the Judges consideration and deliberation on the evidence on record to be able to justify the award, as held in the cited case of Anthony Ngoo and Another v. Kitinda Kimaro (Supra), and also, Tanzania China Friendship Textile Co. Ltd v. 17