Judgment ROSEMARY NICHOLAUS DUHIA v Municipal Director and others 1 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MWANZA AT MWANZA LAND CASE NO.20 OF 2022 ROSEMARY NICHOLAUS DUHIA…………………………..…… 1st PLAINTIFF NICHOLAUS M. F. DUHIA…………………………………..…….2nd PLAINTIFF VERSUS MUNICIPAL DIRECTOR ILEMELA MUNICIPAL COUNCIL …………….………….…..…1st DEFENDANT ATTORNEY GENERAL .......................................................2nd DEFENDANT SHUFAA OTHUMAN SALUMU……………………………………3rd DEFENDANT WILLIAM KAFURA……………………………………..…....…….4th DEFENDANT BETRICE KEMILEMBE MUTAYOBA…………………...…….....5th DEFENDANT JUDGMENT 1st August 2023 - 18th October, 2024 & 10th February 2025 ITEMBA, J. In this case, the plaintiffs, spouses, have sued five defendants claiming for ownership of land which has been described in paragraph 7 of the plaint as Plots number 574, 579, 580 and 581 Block B Nyagungulu area, within Ilemela District, in Mwanza, as part of an area famously known as ‘Kisambusa’, herein, the suit premises. Going by the plaint, the plaintiffs are praying for recovery of possession of the suit premises and they are praying for the following reliefs: 1. An order that the plaintiffs are the lawful owners of the suit premises named as plots number 574, 579,530 and 561 Block “B” ILEMELA Area 1 encroached by the Defendants situated at Kisambusa Area, Ilemela Ward, Ilemela Municipality, Mwanza City. 2. An order for the 3rd and 4th Defendants to vacate the suit premises. 3. An order for payment of general damages to the tune of Tshs. 500,000,000.00 (say Tanzania Shillings Five Hundred Million Only). 4. An order for payment of interest on the general damages of the rate of 7% per annum from the date of decree to the date of payment. 5. Costs be provided for. 6. Any other reliefs deemed proper by the court. The plaintiffs allege that they acquired the suit plot in 2015 from one Richard Majenga of Mwanza when it was unregistered area and a mere ‘shamba’ measuring 1.5 acres (70 x70). But later on, it has been encroached by the defendants. That, the said Majenge inherited the suit premises from his parents. According to the plaintiffs, since the time they bought the suit premises they could not proceed to do a land survey due to the 1st defendant being uncooperative. That, upon several follow ups, the 1st defendant told the plaintiffs that actually the suit premises belongs to the Tanzania Airport Authority (TAA). 2 That, in 2017, following a resolution by the government, a survey of Kisambusa area was done and five plots were realized in the suit premises. These were plots number 574, 579, 580, 581, and 582. However, the plaintiffs were allocated only plot number 582. As for the remaining plots they were invited to buy them at a market price. They resisted, as a result the said plots no. 579, 580 and 581 were sold to the 3rd defendant and plot no. 574 was sold to the 4th and 5th defendants who are spouses. That, the plaintiff was taken aback by this action as it constituted an illegal confiscation of her four additional plots while recognizing her only as a lawful occupier of plot number 582. That, despite her repeated efforts to prevent the third defendant from trespassing and demolishing her structures, she was unsuccessful. In their Written Statement of Defence, all the 1st and 2nd defendants deny that the plaintiffs have ever been owners of the suit property. The 3rd defendant Shufaa Othman Salum also disputed the plaintiffs’ claims stating that she is not a trespasser as she lawfully bought the plots no. 579,580 and 581 and she possess tittle deeds. That, she bought the said plots after the plaintiff’s being issued invoices and failed to buy them. That, the plaintiffs never owned the said plots because before her possession the land was 3 under the ownership of TAA. And that, the plaintiffs were aware of the ongoing dispute between TAA and the residents living around the suit premises. That, the said plots were empty and there were no developments therefore there was no demolition made. The 4th defendant also stated that he bought plot no. 574 from the 1st defendant lawfully and that, he is not a trespasser. In the conduct of this matter, the plaintiffs were duly represented by Mr. Iddi Msawanga learned counsel, the 1st and 2nd defendants had the services of Ms. Subira Mwandambo Principal State Attorney, Mr. Patrick Muhere and Ms. Sabina Yongo Senior State Attorneys while the 3rd, 4th and 5th defendants had the services of Mr. William Muyumbu learned counsel. On 4th of July 2023, when the matter came for final pre-trial conference, the following issues were framed and recorded for determination. i. Whether the plaintiffs are the lawful owners of the suit plot. ii. Whether the 1st defendant adhered to lawful procedures in allocating the suit premises to the 3rd and 4th defendants. iii. What are the reliefs entitled to the parties. 4 The plaintiffs relied on three witnesses in advance of their case, the 1st plaintiff Rosemary Duhia testifying as PW1, Richard Iss Majenga (PW2) and Japhet George Rutabasibwa (PW3). They had 10 exhibits. The 1st plaintiff presented a sale agreement (exhibit P1) stating that, she bought the suit premises from one Richard Iss Majenga. She stated that, upon purchasing, they found various trees and a half-built house nearby. They improved the land by building a fence, adding traditional plants used as boarders (Masale), and installing a water system. That, in October 2015 she requested a land survey of the suit premises from Ilemela Municipal director through a letter (exhibit P2) without response. Later, the plaintiffs collaborated with neighbors including PW3 to make follow-ups of the same. That, in 2017, the 1st defendant was informed about the ongoing land dispute concerning the suit plot. A letter was sent to the District Commissioner seeking resolution of this dispute. In October 2017, residents living on Kisambusa area, including the first plaintiff, wrote to the 1st defendant communicating their desire to conduct a survey but faced challenges due to a lack of authorization from Tanzania Ports Authority. 5 That, during that same month, these residents convened and elected leaders responsible for advancing the land survey process. Subsequently, in November 2017, they submitted a letter to the Regional Commissioner requesting that their area be surveyed in accordance with his prior instructions given to the 1st defendant. Additionally, in November 2017, the Regional Commissioner Mwanza sent a letter to the Director General of Tanzania Airport Authority requesting consent for a land resurvey of the suit plot through ‘upimaji shirikishi’. A survey which will involve the residents of Kisambusa and it aimed to facilitate the formalization of areas occupied by residents within the suit plot. PW1 states further that the survey was conducted at Kisambusa area which included the suit premises. That, after the land survey was done, out of the suit premises, the 1st defendant issued five plots: number 574, 579, 580, 581, and 582 in block B. That, the plaintiffs were allocated only plot number 582, after paying TZS 432,000 as processing fees for a title deed and other associated costs, through an invoice issued to her (Exhibit P.6). She produced a land plan issued by Ilemela Municipal for Block B plot no. 582. (exhibit P3) where the rest of the disputed plots also appears in the plan. That, in suspense, in June 2019, the first plaintiff sent a letter to the 6 1st defendant (exhibit P4) demanding the remaining plots. However, instead of addressing her request directly, the 1st defendant issued her with invoices (exhibit P5) which required the first plaintiff to buy the said plots at market value as if she was a stranger to the suit premises. PW1 also told the court that the defendants made some development on the suit premises and demolished her properties. The plaintiff testified that, she observed the third, fourth and fifth defendants trespassing on her land. They demolished permanent structures, damaged her properties, and constructed a wall around the premises in the form of a fence. That, she sent the 3rd defendant among others, a notice to vacate on the suit plot (exhibit P8) and to prevent development on her property but faced construction activities that damaged her boundaries and infrastructure, prompting legal action against these developments. The plaintiff's testimony was corroborated by PW2, who informed the court that he sold the suit premises measuring 1.5 acre to the plaintiffs who paid for it in installments until completion. He stated further that, he was born at the suit premised in 1965 and was raised there before he inherited the suit premises from his parents. He acknowledged the sale agreement between himself and the plaintiffs (exhibit P1) and noted that, after selling 7 the suit premises, he left the area while his sister moved away upon getting married in Geita. That, currently, he resides in Kahama, as both of his parents have passed away. PW2 explained further that, when they inherited their father's land, it was originally larger than 1.5 acres, approximately 3 acres in total, of which he took half while his sister retained the rest. He agreed with the plaintiffs regarding notable features of the suit premises at sale: a large eucalyptus tree near the road, a significant rock formation and an existing foundation where cassava and other plants were cultivated. Upon inquiry by the court, PW2 told the court that, there is currently a different dispute involving his sister and government authorities concerning her residence on their inherited land and that their father was buried in Magu District. PW3 supported the plaintiff's case by stating that he also owned a piece of land in the disputed area, after inheriting from his late father. He recounted farming on the land as a child and mentioned a prior dispute between local residents and the airport authority, resolved by designating a tarmac road as the boundary. That, after his father's illness, he represented his family in meetings with municipal officials demanding land surveys for title deeds of their plots. That, the residents of Kisambusa elected him a 8 secretary of a committee formed to address their land issues. He produced several correspondences with regional authorities regarding Kisambusa area. He identified the first plaintiff as his neighbor whose plot had been partially developed. He produced a letter which he wrote to the Director Ilemela Municipal (Exhibit P12) complaining about the Kisambusa area and asking for written declaration that their land has been acquired by the Municipal Council. He also produced a letter issued to him from the Regional commissioner replying to his complaints against the decision by Ilemela Municipal taking over all the plots which were not developed and some of the citizen who were involved in the survey committee (kamati ya upimaji shirikishi) getting bigger land (Exhibit P9). He also produced a letter issued by one Shukrani Kyando on behalf of the Director Ilemela Municipal (exhibit P10) which among other shows that, through the survey of 1987, the suit premises belonged to the government specifically aimed for the airport. That, in 2018, land resurvey was allowed following the then Minister of Land, (Hon. W. Lukuvi), together with the then Permanent Secretary Ministry of Construction, Transportation and Communication and Executive Director TAA visiting the disputed land, and to avoid further conflicts he instructed that all the developed areas should be identified and granted to the residents 9 and the undeveloped areas should be sold. He also told the court that some relevant documents regarding his follows up were lost, leading him to file a police report (exhibit P11). This marked the end of the plaintiff’s case. The defendants on their part, had four witnesses; Brigitha Joseph Msangi, (DW1), Authorised Land Officer of Ilemela, Hermes Stanslaus Tegambwa, (DW2) retired land Surveyor, the 4th defendant Dr. William Geofrey Kafura (DW3) and the 3rd defendant Shufaa Othman Salum, testified as DW4. In total, they had 10 exhibits as well. DW1 testified that the suit premises belonged to the government. That, it was re-surveyed in 2019 and 2020 after the Kisambusa area land being cut off from the land which belonged to the Tanzania Airport Authority following the government instructions. That, the original survey was in 1987 and that, while the plaintiffs claim to own a plot measuring 1.5 acres, usually that size, if it is surveyed, it will be 4,047 square meters. Therefore, the half can be 2,000 square meters. She insisted that, because the land belonged to TAA, the then Land Minister of Land, the Minister for Construction, Transportation and Communication, and the Director of Tanzania Airport Authority, visited the suit premises in 2018 and directed for the plot known as Kisambusa to be resurveyed. She said that the procedure was followed 10 and after surveying, the residents were given invoices. That, the plaintiffs were given invoices for plot number 582 and they acknowledged it. She produced a letter of acknowledgement of plot number 582 as Exhibit D1. She also recognised Exhibit P5 because the said invoices were issued by the first defendant. She explained that, because the plaintiff did not pay for the plots within 30 days, the said plots were issued to other applicants and those other applicants filled application form number 20 and paid for the suit premises and they were granted the land lawfully. She explained that, among the applicants, the 3rd defendant got plot number 579, 580 and 581 and she produced three letters of acknowledgement which were marked Exhibit D3 collectively. That, the 4th defendant was granted plot number 574 she produced a letter of acknowledgement for that plot which was marked as Exhibit D4. She testified further that, since the 1st plaintiff failed to make timely payments, she forfeited her rights to these plots, leading to their allocation to other buyers who complied with payment deadlines. She added that, after surveying Kisambusa area it was noted that, only 19 residents had developed their land while other areas remained undeveloped and were subsequently sold. She produced a list prepared by Ilemela Municipal's town planning 11 department detailing resident status and development costs which was admitted as exhibits D5 (i) and (ii). The exhibit was comprising two documents: one listing residents who regained their plots and another listing sold plots. That, throughout this process, plaintiffs were actively involved but failed to comply with purchasing procedures despite being given priority through invoicing. Consequently, she stressed that, their claims lack validity; they are not owners of any remaining four plots. During cross-examination, she clarified that ownership could be established through maps or town planning documentation. That, during survey only plot number 582 had been developed. That, invoices were issued generically without compensation offered at Kisambusa area developments. She acknowledged part I of exhibit P.10 stating that borders would align with a main road leading towards Malaika Hotel, indicating all who developed their land should receive compensation. DW2, the land surveyor, informed the court that the dispute at Kisambusa emerged due to map discrepancies. That, airport staff requested to be allocated the plots around the airport as many citizens, particularly employees, had encroached on them. That, a map of the suit premises was done in 2003 leading to changes in airport plots; a road to Igombe was 12 removed for being too close to the airport reception and replaced with a tarmac road extending to Malaika Hotel. That, this alteration resulted in the triangle shape known as Kisambusa, which is part of the airport plot and should not be owned by anyone. He produced the said map (the survey) of Plot No. 1 Mwanza Airport, Mwanza municipality as exhibit D6. During cross-examination, he acknowledged that surveys do not determine ownership but failed to present the updated map post- survey and noted that land must be free from encumbrances before surveying. He mentioned that the regional surveyor endorsed the survey and that during this period, there was no development involving airport staff or other citizen. Moving forward with the defence, DW3 told the court that, he lawfully bought the plot number 574 jointly with his wife who is the fifth defendant. He produced the certificate of title which he was granted by the municipal council. (exhibit D7). That, after he got information that there were plots for sale, he followed the procedures and bought the plot at TZS 45,000,000/=. The last witness DW4 who is the third defendant told the court that she owns the three Plots 579, 585, and 581. That, she saw the 13 announcement in the newspaper and on the online platform that Ilemela council is selling the plots. Because she knows the place, she went ahead and bought three plots between 2020 and 2021. That, she was given the title deeds. She produced them and they were admitted as exhibits D8, D9 and D10 respectively. She told the court that she is the lawful owner because the certificates were issued by the registrar of title and the she applied for a building permit and she developed the area by building a fence, a gate and a foundation and installed electricity and water in all the three plots. That, she had never demolished any property on the suit plot and she does not know the plaintiffs she just saw them before the court. She said that, she bought the plots for 60,000 per square meter and one of the plots was TZS 43,000,000/=. This marked the end of the defense case. Due to the nature of the case and having seen the land plan (Exhibit P.3) of the suit plot, this court visited the locus in quo on 18th of October 2024 and made some observations which will be considered in this judgment. Having gone through the testimonies by both parties, I will now turn to the issues which were framed before the commencement of the hearing. 14 To start with, I think it is pertinent to state the principle governing proof of case in civil suits. The general rule is that, he who alleges must prove. This rule finds support from sections 110 and 111 of the Law of Evidence Act, Cap 6 R.E. 2019 which state: 110.-(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 111. The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side. It goes therefore, in civil proceedings, the party with legal burden also bears the evidential burden and the standard in each case is on a balance of probabilities. In addressing a similar circumstance on who bears the evidential burden in civil cases, the Court in Anthony M. Masanga versus Penina (Mama Ngesi) and another, Civil Appeal No. 118 of 2014 (unreported), cited with approval the case of In Re B [2008] UKHL 35, where Lord Hoffman in defining the term balance of probabilities states that:- 15 ''If a legal rule requires a fact to be proved (a fact in issue), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates in a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it; a value of 1 is returned to and the fact is treated as having happened’. (emphasis supplied) See also: Barelia Karangirangi v Asteria Nyalwambwa, Civil Appeal No. 237 of 2017, CAT, Mwanza (unreported). Responding to the first and partly to second issue; In order to prove that both plaintiffs had interest in the suit plot, the first plaintiff testified that in 2015 they bought the suit plot from Richard Majenga. She produced a sale agreement of the suit plot. (Exhibit P1). The 1st defendant insists that the suit premises belonged to the government. It was later granted to the Kisambusa residents but only the parts which were developed. Going through the records, the piece of evidence which explains the background and fate of the suit premises is a letter by (Exhibit P. 10) which is 16 acknowledged by both the plaintiffs and defendants that Kisambusa area was returned to residents. PW3 while tendering exhibit P.10 said; “I received another copy from Ilemela giving a guidance of what to be done including Rosemary. It was expounding the former letter from the Regional Commissioner on how we will be given our land. It had a national emblem It was dated 25/6/2018 with reference number KUMB IMC/L/20/10 it was copied to me.” Therefore, parties are in agreement that, the manner in which the plots were granted to residents of Kisambusa is as per Exhibit P10 which stipulates as follows: “i. Mpaka wa eneo la Kiwanja cha ndege uwe barabara inayokwenda Hotel ya Malaika kutokea Barabara Kuu inayoelekea mjini. ii. Mkurugenzi wa Mamlaka ya viwanja vya ndege Tanzania alirudisha eneo la Kisambusa kwa Mamlaka ya Upimaji (Halmashauri ya Manispaa ya Ilemela) iii. Manispaa ya Ilemela ilipange, Kulipima na kugawa viwanja kwa mujibu wa sheria. iv. Wananchi wenye maendelezo watambuliwe, wapangwe bila kuondolewa na wamilikishwe viwanja ili walipe Kodi za serikali. v. Viwanja vitakavyobakia (maeneo yasiyo na maendelezo) Manispaa ya Ilemela ivitangaze na kuviuza ili vimilikishwe na kuendelezwa 17 kwa mujibu wa sheria.” The effects of this resolution, in brief, were that: One; The director of TAA will surrender the Kisambusa area to Ilemela Council for resurvey. Two; The boundary between the airport land and the suite premises will be the road from the main road going to Malaika Hotel. Three, the Ilemela Municipal should resurvey and allocate the plots according to the law. Four; all the citizens which have developed the suite premises should be identified and be allocated with the land without being removed so that they can pay the tax. Five; all the remaining plots (the plots which are not developed) the Ilemela Municipal should publicize them and sell them according to the law. Therefore, according to this letter, (Exhibit P10), the issue of ownership has been narrowed down between the plaintiffs and defendants because it demonstrates that, TAA surrendered the land and left it to the first defendant to resurvey and allocate it accordingly. That's why TAA are not even part of this case and there were no issues of non-joinder. It is also noted that the crucial parts of Exhibit P10 are item iv and v, whereas the plaintiffs were entitled only the land which was developed. Therefore, while the plaintiff had a duty to establish that they have developed the said land, 18 the first defendant too had had a duty to prove that the sold land was not developed hence they were at liberty to sell it. There is no dispute that the plaintiffs owned part of land which after survey it turned to be plot no. 582. There is no dispute that the plaintiffs developed the said land. The plaintiff is claiming that this land not in dispute was part and parcel of 1.5 acre which she bought from PW2. That being the case, the 1st defendant must have reasons to say why they concluded that development was not in respect the whole 1.5 acre occupied by the plaintiffs. According to section 2 of the Land Act, Cap 113 " Unexhausted improvement" means anything or any quality permanently attached to the land directly resulting from the expenditure of capital or labour by an occupier or any person acting on his behalf and increasing the productive capacity, the utility, or the sustainability of its environmental quality and includes trees, standing crops and growing produce whether of an agricultural or horticultural nature” The plaintiff is stating that, she did not develop only part of her land but she developed her whole 1.5 acres by planting trees, Masale and installing a water system and barbed wires. 19 In my understanding, because the 1st defendant acknowledged the plaintiffs as the owner of plot no.582, she (the 1st defendant) cannot disown the plaintiffs the rest of the plots without justification. I have visited the locus in quo , the plaintiffs showed some old foundation and wires used as a fence which they constructed when they bought the land. The trees and masale plants were not seen. I have noted that, the 3rd defendant as well, had already developed the plots no. 579, 580 and 581. I consider that, the wires and masala plants could have been removed during development of plot no. 579,580 and 581. I find that so long as there were those developments made by the plaintiff on the suit plot, these developments were made on the one and same piece of land which belongs to the same owners. The land plan (survey) of the suit premises (Exhibit P3) reflect that these disputed plots are close to each other. It means that, one cannot access plot no. 582 without passing through one of the disputed plots. That also means obviously, the suit plot was in one piece before being sub-divided into 5 plots. It is my firm view that the facts stated orally by PW1, by the first plaintiff under oath and which are not contradicted, especially regarding developing the suit premises, they are as good and they can prove that both 20 plaintiffs were the lawful owners of the suit land. PW3, the plaintiffs’ neighbor and secretary of the follow-up committee corroborates that PW1 developed the suit premises. He stated: ‘She started to develop by putting fence, one side there was barbed wire and the other side a wall which was demolished and there were long term plants like trees’ If the 1st defendant agreed that plot no. 582 belonged to the plaintiffs and it was developed that is why the plaintiffs were allocated it and if the plaintiffs are explaining that plot no. 582 was just part of the 1.5-acre land which was in one piece of land. The 1st defendant ought to have justified the reasons to acquire plots no. 574, 579, 580 and 581 and not merely stating that they were not developed. It should also be noted that, the TAA are not claiming any ownership of that land. If the TAA agreed to surrender part of its land to the citizen who had lived there for a long time it means the right of ownership was vested to the original seller of the land who proved to have been the resident of the suit premises and therefore the plaintiffs being the buyers were lawfully owning it. Secondly, the 1st defendant ought to have acquired the suit 21 premises without any encumbrances. Before the 1st defendant deciding to sell the suit plot to the people, they were supposed to prove that the plaintiffs were not owners. The plaintiffs have proved that they were owners and actually they have made some developments on the suit plot and this was not disputed by the defendants. Therefore, under the circumstance, the 1st defendant was supposed to compensate the plaintiffs before sale of the suit premises, but she did not. That said, the acquisition of the suit premises from the plaintiffs was unlawful. As for the third, fourth and fifth defendants, I will consider them as bona fide purchasers of the suit premises because in their testimonies, they have explained that they saw the advertisement for sale and they innocently believed that the land was not having any encumbrances and they followed all the procedures to pay for the purchase price and finally, they were issued with titles deeds for their respective plots. Black's Law Dictionary, defines a bonafide purchaser as: "A purchaser for a valuable consideration paid or parted with in the belief that the vendor had a right to sell and without any suspicious circumstances to put him on inquiry" 22 Also, in the case of Idrisa Ramadhan Mbondera (Administrator of the Estate of the LateRamadhani Ally Mbondera) v. Allan Mbaruku & Another, Civil Appeal No. 176 of 2020 (unreported), the Court of appeal stated: "In any common law jurisdiction like ours and particularly in the law of real property, a bonafide purchaser is someone who purchases property in good faith, believing that he or she has dear rights of ownership after the purchase and having no reason to think that there is any other party's claim to the title of that property." Therefore, the 1st issue is answered in affirmative that the plaintiffs are the lawful owners of the suit plot. Moving to the 2nd issue, as I deliberated above, the sale procedures were not adhered to by the 1st defendant. The 1st defendant had no right to sell the 4 plots either to the plaintiffs or to the 3rd, 4th and 5th defendants because the land did not belong to her (1st defendant). Either, the plaintiffs should have been duly compensated before acquisition. Consequently, the 2nd issue is answered in the negative. The 3rd issue is on reliefs. In the plaints, the plaintiffs have prayed for the 3rd and 4th defendants to vacate the suit premises. They also prayed for general damages amounting to TZS 500,000,000/=. Starting with the first 23 prayer, indeed once the suit premises is declared belonging to the plaintiffs, it is their right to possess it. However, records show that, the suit premises have been sold to the 3rd 4th and 5th defendants and the said defendants have developed it. When this court visited the locus in quo, among others, it is noted that the 3rd defendant has already developed the suit premises by constructing a wall, gate and adding an immense number of rocks. Under the circumstances, and in consideration of whether the defendants should vacate the suit plot, I thought I should find wisdom from Hon. Msoffe, J.A (as he then was, now retired J.A) in The Attorney General v SISI Enterprises Ltd. Civil Appeal No. 30 of 2004, CAT, Dar es salaam Where the Court was faced with an almost similar situation and had this to say: ‘In considering the third and fourth grounds of appeal we think it is necessary to introduce the subject by making the following observations. One, since the acquisition was unlawful as we have tried to demonstrate in the second ground of appeal, De jure the respondent remains the lawful owner of the suit premises. De facto, however, the embassy of the United States of America has been offered the land and a new chancery built on it. In the premises, the only realistic and prudent option for the respondent is to be granted viable and adequate compensation for unexhausted improvements’ 24 In the same vein, I find that, under the circumstances, the ‘realistic and prudent option’ is for the plaintiffs to be granted with adequate compensation based on the value of the suit premise. In determining the amount of compensation, I will be guided by paragraph 30 of the plaint which is undisputed and which states: ‘30. That, the cause of action arose in Mwanza City and the value of this suit land including its’ development is TZS 450,000,000/=...’ Therefore, the plaintiffs will be granted an amount of TZS 450,000,000/= as a compensation of the suit premises. As for the general damages, I am alive to the principle that, general damages are within the discretion of the court to grant as opposed to specific damages. In the case of PM Jonathan v. Athumani Halfan 1980 (TLR) 175, Hon. Lugakingira, J.A as he then was, held that: “The position as it therefore emerged to me is that general damages are compensatory in character. They are intended to take care of the plaintiff's loss of reputation as well as to act as solarium for mental pain and suffering.” In the present suit, the plaintiffs have pleaded for general damages amounting to TZS. 500,000,000/=. Indeed, records show that the plaintiffs 25 have suffered having been deprived of their land for almost 7 years, from the date of acquisition of the suit premises by the 1st defendant to the date of this judgment, and as a result, they were forced to knock the courts’ doors. They therefore deserve damages. Nevertheless, the amount prayed for is excessive. I am inclined that, to meet the ends of justice, an amount of TZS 50,000,000/= Fifty Million Only, will suffice. The last prayer is about the costs of the suit. It is trite law that, the award of costs is in the discretion of the court as provided for under Section 30 of the Civil Procedure Code Cap.33 [R.E 2019]. It is a fact that the Plaintiffs would not have sued the defendants if the 1st Defendant had not mishandled their property. As a result, the 1st defendant’s acts necessitated the plaintiff to incur costs in hiring an advocate, filing case, transport among others. Therefore, the plaintiff is entitled to the costs of the suit. In the final analysis, the plaintiffs have managed to prove their case. I thus proceed to enter judgment for the Plaintiff with the following orders: i. The plaintiffs are the lawful owners of the suit premises which are plots no. Plots number 574, 579, 580 and 581 Block B 26 Nyagungulu area, within Ilemela District, in Mwanza, famously known as ‘Kisambusa’. ii. The 1st defendant unlawful acquired the suit premises and sold it to the 3rd 4th and 5th defendants. iii. Due to the development made at the suit premises, instead of the 3rd ,4th, and 5th defendants vacating it, the 1st defendant shall pay the plaintiffs a compensation for unlawful acquisition of the suit premises amounting to Tanzanian shillings Four Hundred and Fifty Million only. (TZS 450,000,000/=). iv. The above sum of money will attract interest at 6% rate per annum prevailing at the date of this judgment to the date of final payment. v. The plaintiffs are entitled to damages amounting to TZS 50,000,000/= Fifty Million Only which shall be paid by the 1st defendant. vi. The Plaintiffs are entitled to the costs of the suit to be paid by the 1st defendant. It is so ordered, right to appeal explained. 27 DATED at Mwanza this 10th day of February, 2025. L.K.J. ITEMBA JUDGE 28