JUDGMENT ROMUALD MATERU edited

THE UNITED REPUBLIC OF TANZANIAJUDICIARY

IN THE HIGH COURT O TANZANIA MBEYA SUB – REGISTRY

AT MBEYA LAND CASE NO. 2 OF 2023 CASE REFERENCE NO. 20230111000472877 ROMUALD A. MATTERU @ R.A. L. MATTERU .............................. PLAINTIFF

VERSUS MBEYA CITY COUNCIL ..........................................................1ST DEFENDANT STEPHANO ROBERT MANDOWA ..........................................2ND DEFENDANT RUTH LIMBOKA MWESI .......................................................3RD DEFENDANT HON. ATTORNEY GENERAL ...................................................4TH DEFENDANT

JUDGMENT 18th December 2024 & 11th March 2025 NONGWA, J. The dispute is over ownership of plots Nos. 37 and 38 held under certificate of occupancy with Title No. 4068-MBYLR and 4067-MBYLR both situated Block “X” Sistila area within the city and region of Mbeya in the name of the plaintiff. And another un-surveyed piece of land measuring half an acre, also located at Sistila area. I shall henceforth refer the afore described landed property as "the suit land". Briefly, in 1993 the plaintiff conducted private survey over his land and produced plots Nos. 37 and 38, he was issued with certificate of titles. Another unsurveyed land was purchased from Isdory Nyagano in 2001. He developed the suit land by constructing huts. In 2012 the first 1 defendant conducted the survey over the whole area of Sistila and plot 37 and 38 produced plots Nos. 447, 448, 449, 450 and 452 and block “X” was renamed to Block “C”. Some times in 2013, the plaintiff was served with a letter from the first defendant informing him that the whole Sistila area had been surveyed and discovered his land has been previously surveyed. He was informed to surrender the certificate of title issued to him and to discuss issue of compensation. It followed several meetings in vain. The second defendant got his land by purchase from Ruth Limboka but during construction stages encroached part of the suit land owned by the

plaintiff. There was some settlement of over the encroachment which was later cancelled. The third and fourth defendants have been joined as necessary parties. Having failed to resolve the matter, the plaintiff filed this suit challenging the survey and resurvey and prays for assortments of reliefs. (a) An order that the Defendants are trespassers to the Plaintiff's disputed two parcels of land. (b) An order that the Plaintiff is the lawful owner of Plots 37 and 38 Block "X "Sisitila area, lyunga ward in Mbeya City. (c) An order that the Plaintiff is the lawful owner of the un-surveyed land measuring 1/2 an acre near Plot 37 and 38 Block X,Sisitila area lyunga ward in Mbeya City. 2 (d) An order to declare that the sale of part of the disputed un- surveyed land of the Plaintiff by the 3rd Defendant to the 2nd Defendant was illegal, null and void. (e) An order to declare the survey and re-survey done in 2012 that touch the interests of the Plaintiff on his two parcels of land and all its fruits like beacons, new Block "C", residential plots (or of any other kind), roads, and the market plot, as illegal, null and void and that specifically plots 447, 448, 449, 450, 451, 452, 453 and 459 Block “C” Sisitila area, lyunga ward in Mbeya City should be EXTINGUISHED /ERASED FOR BEING ILLEGALLY CREATED to remain with Plots 37 and 38 Block "X" Sisitila area, lyunga ward in Mbeya City. (f)

An order that Plot 451 Block "C" Sistila area, lyunga ward in Mbeya City is illegally made and illegally allocated. (g) An order to demolish the PART of the erected building on Plot 451 Block "C" Sisitila area, lyunga ward in Mbeya City that protrudes into the Plaintiff's parcels of land both surveyed and un-surveyed for want of merit and legality. (h) An Order that the 1 and 4th Defendants be compelled to compensate the Plaintiff Tshs. 150,000,000/= (Tanzanian shillings one hundred and fifty million only) as SPECIFIC DAMAGES being the current market value of the claimed disputed two parcels of land (immovable property). (i) An order that the 1and 4th Defendants be compelled to pay the Plaintiff Tshs. 80,000,000/= (Tanzanian shillings eighty million only) as GENERAL DAMAGES towards trespass on Plot 37 and 38 3 Block "X", Sisitila area, lyunga ward in Mbeya and the un-surveyed piece of land measuring 1/2 an acre near the two plots. (j) An order that the 2nd Defendant be compelled to pay the Plaintiff Tshs. 10,000,000/= (Tanzanian shillings ten million only) as GENERAL DAMAGES towards trespass on the Plaintiff's land both the surveyed and un-surveyed as detailed in this plaint thus delaying its development. (k) An order that the 3rd Defendant be compelled to pay the Plaintiff Tshs. 5,000,000/= (Tanzanian shillings five million only) as GENERAL DAMAGES by unlawfully trespassing

and selling the Plaintiff's part of the un-surveyed land near plots 37 and 38 Block “X", Sisitila area in lyunga word in Mbeya City to the 2nd Defendant causing unnecessary inconveniences. (l) Permanent injunction to restrain the Defendants from using and/or interfering the Plaintiff in the disputed land. (m) Costs of the suit to be paid by the Defendants. (n) Any other or further relief this Honourable Court deems fit and just to grant. The first and fourth defendants in their joint written statement of defence disputed the claim alleging that the re-survey and survey followed the procedure and the plaintiff was informed. They stated plots nos. 37 and 38 produced plots nos. 447, 448, 449, 450 and 452. The half acre was reserved for public service. Further that new created plots have been allocated to the plaintiff except has refused to surrender the 4 previous title so that he be issued with new ones. Further that the plaintiff has not been cooperative to receive compensation on the plot which has been surveyed. The second and third defendants also filed joint written statement of defence, the second defendant said his plot 451 has partly encroached to the plaintiff’s land and agreed to settle down at Tsh 2,000,000/= paid partly before the plaintiff cancelled the agreement. Other averments were disputed. Mediation failed, by tripartite agreement the following issues were framed; 1. Who is the lawful owner of the disputed suit land; to what extend.

2. Whether the surveys of 2012 were done illegally or not.

3. Whether the Defendants trespassed the disputed land or not; to what extend.

4. What are reliefs the parties are entitled to. On the hearing date the plaintiff appeared in person, had no representation whereas the first and fourth defendant were represented by Messrs. Modest Siwavula, Jibu Mbua who maintained appearance thourgh out the hearing and Messrs. Joseph Tibaijuka, Michael 5 Fyumagwa, Ladislaus Kisanga, and Nsaji Moses, Ms. Edina Mwamlima all state attorneys appeared on different dated. The second and third defendant were represented by Mr. James Kyando, learned advocate. To prove the case the plaintiff testified as (PW1) and tendered a total of eleven documentary exhibits title no. 4067-MBYLR and 4067- MBYLR (exhibit P1 and P2), ‘Makubaliano ya kuuziana shamba’ (exhibit P3), two land rent receipts (exhibit P4 and P5), a letter with reference no. MBRL/ 8780/8/CIN dated 18/1/2013 (exhibit P6), the letter with reference no. MCC/LD/M.13/15/VOL.II/76 of 18/11/2015 (exhibit P7), The letter with reference no. CB134/159/ of 10/7/2017(exhibit P8), ‘Mkataba wa kulipana fedha fidia ya kiwanja (exhibit P9), Mkataba wa kuvunja makubaliano 30/9/2017’ (exhibit P10) and notice to sue (exhibit P11). He summoned Simon Tende Mwakolo (PW2) in support. For the defence side four witnesses were called, the second defendant (DW1), Arafa Nassoro Ismail (DW2), Ruth Mboka (DW3) who was found to be incompetent to testify due to his old age and George Poland (DW4). The

defence side had no any documentary exhibit. The plaintiff in his sworn evidence narrated that was allocated plots Nos. 37 and 38 and issued with titles No. 4067-MBYLR and 4068- MBYLR which was received as exhibit P1 and P2 respectively. That he 6 has paid rent up to 2023, receipts were tendered as exhibit P4 and P5. He said half acre purchased in 2001 from one Isdory Nyagano and a sale agreement was admitted as exhibit P3. PW2 stated in 2012 the city council re-surveyed the area put new beacons, planned afresh residential and market area, roads without notice to him. The re-survey of 2012 produced plots nos. 447, 448, 449, 450, 451, 452, 453, and 459 (Market), all Block “”C” Iyunga Sistila over the suit land. PW1 went on to state that he was informed of the survey in 2013 when they wanted him to surrender the title deed. The letter with reference no. MBRL/ 8780/8/CIN dated 18/1/2013 was introduced in evidence and marked as exhibit P6. That he complained and was informed some plots will be given to him, the letter with reference no. MCC/LD/M.13/15/VOL.II/76 of 18/11/2015 was admitted as exhibit as P7. PW1 stated that the second defendant started construction in his plot, complained to the regional commissioner and they agreed to settle at Tzs 2,000,000/ but it was not honoured and he cancelled it. The agreements were tendered as exhibit P9 and P10 respectively. He informed the

court that he was not notified of the resurvey, the procedure used was not proper and first defendant was not cooperative in solving this dispute. Further that they did not pay him compensation. 7 That the survey of 2012 was not legal. He prayed compensation of Tzs150,000,000 and 100,000,000 for the plots and 50,000,000 for unsurveyed plot. Further for a declaration that plots no. 447, 448, 449, 450, 451, 452, 453 and 459 Block “C” Sistila Iyunga Mbeya were surveyed improperly without following procedures. On cross-examination said he was informed to return certificate of titles after survey. He did not know the owner of the new plots. PW2 testified on the agreements he prepared between the plaintiff and the second defendant on payment over the encroached land and the cancellation of the agreement. For the defence side DW1 testified that he bought his piece of land from Ruth Mboka. When he started construction, he was stopped by the plaintiff on ground that has encroached his land. They agreed that he be compensated, he paid Tzs800,000/= and left all affairs to his wife after he travelled. When he returned, the plaintiff refused to receive the remain balance and cancelled the agreement. DW2 Arafa Nassoro Ismail, a Senior Town Planning Officer, said was tasked to supervise land survey project at Sistila. When they were in initial stage of the project discovered there was another

survey and notified the owner of plot Nos. 37 and 38 to be attended under the 8 project procedures. He stated the owner went several times to them, but he did not agree with the project at Sistila. That after his refusal, since the area had already been surveyed, the plots belonging to him were set as per the new survey, produced plots nos. 447 to 453. DW2 went on to narrate that all efforts to hand the plots to plaintiff were not successful as he did not agree with the resurvey, wanted to remain in the previous plots of which were no longer existing for the previous map had been replaced with new survey and until now the said plots are still his. DW2 informed the court that plaintiff was to be compensated for him to release land for public service but never got the compensation because he refused to accept. That during survey there is possibility of encroachment and if it happens, they advice parties to settle. Further that the plaintiff is entitled to compensation for the area that became market place, the rest is supposed to accept the plots that have been resurveyed. When put to cross examination by the plaintiff, DW2 said in revocation of the title, they start from the low level up to the president who revoke the tittle deed. For revocation process to start was to have first the title deed to be revoked. Survey Plan on plots. 37 and 38 was private survey, it did not

consider other social needs for the public. 9 Further, the plaintiff has not surrendered the title deeds, so they continue to read in the system because are yet to be revoked. That Plots nos. 37 and 38 do not exist in any map or plan, it has been replaced by plots nos. 447-453. George Poland (DW4) testified that in 2012 was a member of local government, the city announced on the planning of the city. The called meeting of citizen and people were educated on the project. That people were educated on the benefits of the planning and survey and promised that every house will access roads and electricity. DW4 further testified that he received complaint of encroachment of the plaintiff’s land by the second defendant but they agreed to settle. Parties prayed to file final submission, the plaintiff and Mr. Kyando complied with the order. The first and fourth defendants did not file their final submission. Filed final submission was on analysis of evidence thus, I find no need to reproduce here. In answering the first issue, from evidence of both parties it poses no difficult. In fact, there is no dispute from the defendants that the plaintiff is the registered owner of plots Nos. 37 and 38 with certificate of right of occupancy No. 4067-MBYLR and 4068-MBYLR both situated Block “X” Sistila area. And indeed, exhibit P1 and P2 is self explanatory 10 and are in the name of the plaintiff.

This was also supported by DW2 who said after resurvey previous title has not been revoked as the plaintiff has not surrendered. Regarding the half acre, also the defendants did not dispute that it was owned by the plaintiff. As the defendants did not challenge ownership of the suit land by the plaintiff, the first issue is answered in favour of the plaintiff. The second part of the first issue to what extent will be answered when dealing with third issue. With regard to the second issue whether the survey of 2012 was done illegally or not. Any survey of the land is carried out as per the provisions of the Land Survey Act Cap 324. Section 8 particularly provides; 8. The Director, or any land surveyor or any person authorised by the Director either generally or specially, may enter upon any land with such unlicensed assistants as may be necessary, for the purpose of (a) making any survey; (b) affixing or setting up thereon or therein any survey mark; (c) inspecting any survey or survey mark; (d) altering, repairing, moving or removing any survey mark; 11 (e) doing anything necessary for carrying out any of the aforesaid purposes: Provided that (i) before so entering upon any land the Director or land surveyor or the authorised person shall, wherever practicable, give reasonable notice to the owner or occupier of the land of his intention to enter thereon; (ii) nothing contained

in this reaction shall exempt the Director or land surveyor or person authorised as aforesaid from liability for any damage caused in the exercise of any power conferred by this section.’ Evidence of PW1, DW2 and DW4 is that the whole land of Sistila was surveyed in 2012 and per DW2 the survey which resulted to issuance of title deed to the plaintiff was private. Thus, in the real sense in regard to plots nos. 37 and 38 held by the plaintiff, in 2012 was meant to resurvey and incorporate in the whole Sistila survey project. How resurvey has to be done, DW2 testified that it starts with identification of the land owner, revocation of the previous title, payment of compensation. On how people of Sistila participated, DW4 explained in detail, he said; ‘The city asked the street to call meetings to educate the citizens about the city planning. The exercise to survey was done and compensation was done, meetings were called and 12 the DC was there. I don’t recall the dates, but we continued with other meetings without DC, several meetings.... Survey was communicated to all of us at Sistila, people have been paid, people own land there and life goes on.’ The above evidence shows that people of Sistila were very much aware about the survey which was to be carried out. It has to be noted no one protested in any way including filing a suit in a court of law to challenge the manner in

which the exercise of surveying was conducted. DW2 said they informed the plaintiff after discovering there was another survey, he referred to exhibit P6. I have scrutinised exhibit P6, the plaintiff was given notice of the survey after discovering his land had been surveyed by a private surveyor. DW2 said after finding a survey informed the plaintiff and there were several discussions but the plaintiff did not agree with the project, he wanted his plots to remain the same. This informs me that the first defendant had no knowledge of the previous survey which resulted to issuance of exhibit P1 and P2. The reason after coming across the survey they invited the plaintiff on the round table to discuss his entitlement and surrender of the title deeds and replace with the new, the exercise has not been done to date. It has to be noted that the plaintiff did not controvert during cross-examination evidence of DW2 13 that the plaintiff was reluctance to cooperate on the issue of compensation and surrendering title. The first defendant conducted fresh survey without knowledge of the survey over the plaintiff’s land. DW2 said the survey by the plaintiff was private that is it did not involve the whole Sistila area. From the evidence of DW4 there was consultation of the people over the project and they had knowledge or notice of the intended survey. On those circumstance it cannot be

said the 2012 survey was illegal. On issue number three whether the defendants have trespassed the plaintiff’s land. The term trespass is defined by Black's Law Dictionary 8th Edition by Bryan A. Garner at page 1565 to mean an unlawful act committed against the person or property of another esp., wrongful entry into another’s real property. DW4 stated all people were involved in the meetings of the intended survey and they consented after being educated. On that basis the first defendant had consent of the people of Sistila to enter their land and make survey. That is why after discovering the existence of the plaintiff registered titles promptly informed him to go and discuss except per evidence of DW2 the plaintiff did not want to change his title to new designated plots. From the evidence in record, it cannot be said the first 14 defendant is a trespasser, because of lack of knowledge of the existing title of the plaintiff over the land it surveyed. Thus, the first defendant was not the trespasser. With regard to the second defendant, there is ample evidence that he encroached in the plaintiff’s land to the extent of one foot. Upon discussion and on amicable settlement of the dispute through exhibit P9 it was agreed that, the plaintiff add the second defendant four feet and be paid Tzs 2,000,000/= as compensation. However, their agreement did not live longer as it was

cancelled through exhibit P1. The second part of the issue number three is to what extent. In the plaint the plaintiff claimed that plot Nos. 37 and 38 produced plots number 447, 448, 449, 450, 451, 452, 453 and 459. DW2 on the other hand said it was plots 447, 448, 449, 450 and 452, this also reflected in exhibit 6. As the plaintiff alleges that plots 451, 453 and 459 was from the suit land, had to prove this fact. It is the settled principle of law embodied under section 110 of the Evidence Act [Cap 6 R: E 2022] that he who alleges must prove. Expounding the rule of burden of proof in Paulina Samson Ndawanya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 [2018] TZCA 218 (12 October 2018; TanzLII) the court quoted a passage passage from Sarkar's Laws of Evidence, 18th 15 Edition M.C. Sarkar, S.C. Sarkar and P. C. Sarkar, published by Lexis Nexis in which the author explains; ‘... the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for negative is usually incapable of proof. It is ancient rule founded on consideration of good sense and should not be departed from without strong reason.... Until such burden is discharged the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to

discharge his burden. Until he arrives at such a conclusion, he cannot proceed on the basis of weakness of the other party....’ Emphasize added. Evidence in record fall short of establishing that plot is No. 451 owned by the second defendant was part of the suit land. However, it is not disputed that only one foot was encroached to the plaintiff’s land as reflected in exhibit P9. The second defendant should observe boundaries of his plot 451 and if it has extended to the plaintiff’s suit land, then the matter be settled. Regarding plots 453 and 459 being part of the suit land, the plaintiff has failed to prove this fact. I therefore rule that it is not part of the suit land. 16 In conclusion, the third issue is answered partly in favour of the plaintiff only to encroachment of one foot by second defendant. Finalising with the fourth issue on reliefs. I have already answered the second issue that the survey was not illegal. DW2 said plot Nos. 37 and 38 produced plots Nos. 447, 448, 449, 450 and 452 under the new survey. DW2 said new plots has been reserved for the plaintiff, and that is what is mentioned in exhibit P7 on those circumstances ownership of the land which fall under plot nos. 37 and 38 has not changed except that they are in the new plan and new plot number created. I have noted that the plaintiff has not challenged evidence of DW2 that has refused to surrender the

certificated so that he be issued by new ones. Section 37(2) of the Land Registration Act [Cap 334 R: E 2019] provides; ‘(2) Where any person refuses or neglects to comply with any such notice as aforesaid, the Registrar or any interested person may apply to the High Court, for an order summoning such person to show cause why the certificate of title should not be produced to the Registrar and upon the appearance before the High Court of any person so summoned, the High Court may make such order as it thinks fit.’ I understand the first defendant did not raise it in his defence or by way of counterclaim. However, for purpose of multiplicity of suits 17 based on exhibit P6 and 7, I order the plaintiff to surrender certificate of occupancy with Title No. 4067-MBYLR and 4068-MBYLR both situated Block “X” Sistila area and in place he be issued with ne certificates over plots 447, 448, 449, 450 and 453 block “C” Sistila area within the city and region of Mbeya. In respect of unsurveyed area of half acre, the first defendant admitted that the whole area was taken for public service and no compensation has been paid. I have noted that there was no any attempt by the first defendant to cause any compensation to be paid. No any provision under the Land (Assessment of the Value of Land for Compensation) Regulations, GN No. 78 of 2001 and the Land (Compensation Claims) Regulations 2001

was complied by the first defendant. Based on evidence in record, the plaintiff was not accorded the opportunity to discuss or negotiate and reach a settlement on the payable amount of compensation. In short, the fundamental principle of the Land Act embodied under section 3(1) was not observed. Section 3(1)(g) of the Land Act require the land acquiring authority; ‘to pay full, fair and prompt compensation to any person whose right of occupancy or recognized long standing occupation or customary use of land is revoked or otherwise interfered with 18 to their detriment by the State under this Act or is required under the Land Acquisition Act". And, Regulation 13(2) of the Land (Assessment of the Value of Land for Compensation) Regulations, provides that: ‘For the purpose of computing interest payable upon compensation prompt payment of compensation within six months after the subject land has been acquired or revoked.’ It is almost twelve years since the plaintiff’s half acre was acquired. However, there is no evidence on assessment of payment of compensation be it by the plaintiff (self assessment) or by the first defendant (approval of the assessment) thus there is no any starting point upon which the court can order amount of compensation to be paid. In Attorney General vs Tanzania Electric Supply Company Limited & Others, Civil Revision No. 1 of 2023 [2024] TZCA 520 (28 June

2024; TanzLII) the court stated; ‘... It is needless to say that, when it comes to claims for compensation of acquired land, the starting point as the basis of assessment, is the market value.’ In fact, I cannot re-do what has been done. Thus, I order the plaintiff and the first defendant to cooperate and make assessment on the payment compensation based on the current market value of the 19 land at that place over the half acre which has been taken by the government. As for general damages, the plaintiff has contributed to the delay in attainment of his rights after resurvey. From the evidence, since 2013 when was informed about the resurvey, offered no cooperation to the first defendant for what he was entitled hence, I find no general damages entitles the Plaintiff. In the final analysis, I make the following orders; 1. The plaintiff to surrender certificate of right of occupancy with Title No. 4067-MBYLR and 4067-MBYLR to be dealt with in accordance with the law.

2. The first defendant to facilitate registration of plots No. 447, 448, 449, 450 and 452 Block “C” Sistila area within the city and region of Mbeya in the name of the plaintiff.

3. The plaintiff and first defendant to assess the amount of compensation in respect of the acquired half acre. In case of disagreement the provision of section 13 of the Land Acquisition Act Cap 118 shall apply.

4. The second defendant pay the plaintiff on the encroached land. 20 5. Owing to the circumstances of the matter, each party shall bear own costs. V.M. NONGWA

JUDGE 11/3/2025 Dated and Delivered at Mbeya this 11th March 2025 in presence of the Plaintiff in person and Ms. Edina Mwamlima - State Attorney through VC for the 1st and 4th Defendants and Ms. Mary Gatuna holding brief of Mr. James Kyando for the 2nd and 3rd Defendants. V.M. NONGWA

JUDGE 21