final RUSTIS ALOYCE TARIMO tanzlii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MOSHI

AT MOSHI LAND CASE NO. 7 OF 2023 RUSTIS ALOYCE TARIMO……………………………..…………………….PLAINTIFF

VERSUS JOHN KISUNDA ………………………………….………………………1ST DEFENDANT MOSHI MUNICIPAL COUNCIL………………………………………..2ND DEFENDANT ATTORNEY GENERAL……………………………………………………3RD DEFENDANT

JUDGMENT 29th July & 26th August 2024 A.P. KILIMI, J. The Plaintiff RUSTIS ALOYCE TARIMO is suing defendants mentioned hereinabove praying for the following orders; first, the plaintiff to be declared the legal owner of the disputed piece of land; second, this court to order the 2nd Defendant to demarcate the whole plot by showing the exactly boundaries as prescribed in the title deed; Third, that the 1st Defendant to be declared as a trespasser to the disputed piece of land and that his action is illegal; Fourth, The perpetual injunction order be issued to restrain the 1st defendant from entering the suit property or interfering with the plaintiff quite occupation and usage hereof; Fifth, Special damages to the tune of TZS 30,000,000/=; Sixth, General damages to be paid by 1 the 1st Defendant; Seventh, Costs of this suit to be borne by the 1st Defendant As per the plaint filed by the plaintiff in this Court, the plaintiff avers that the 1st defendant trespassed to his suit plot No. 546 Block ‘JJJ’ with 677 square meters within Moshi Municipality (“suit land”) the plot which he legally owns as per land registered title deed Number 33346 as indicated in ‘annexure P1’ of the plaint. He stated therein further that he is the one who pays land rent. That on 04th March 2020 he entered into an amicable agreement with the 1st defendant to settle the dispute as shown in ‘annexure P2’.

It was an agreement witnessed by the 2nd defendant wherein the 1st defendant agreed to vacate from the plaintiff plot but never honored the said agreement. The plaintiff further averred at paragraph 11 of the plaint that, after the 1st defendant failed to honor the agreement, he filed a case at the Ward Tribunal of Pasua claiming the ownership of the suit plot where the Ward Tribunal ruled in his favour and ordered the 1st defendant to vacate from the disputed plot. Aggrieved with the ward tribunal decision, the 1st defendant appealed to the District Land and Housing Tribunal of Moshi where the tribunal ordered the 1st defendant to join 2nd Defendant as a 2 necessary party. The value of the suit property being Tshs 20,000,000/=, the plaintiff states that this court has jurisdiction to try as this suit involves the 2nd and 3rd defendants whose suit against them are to be filed in this Court. In his written statement of defence (“WSD”), the 1st defendant vehemently denies the plaintiff allegations and basically stated that it was the plaintiff who trespassed to his plot No. 545, Block JJJ within Moshi Municipal located at Pasua area. He further alleged that the 2nd defendant mistakenly surveyed his plot No.545 and extended part to plot No 546 of the plaintiff herein. He stated that he legally owns plot No. 545 as he legally bought it in 1991 from one Ally Juma Mzava. He further

averred that in the year 2006, twelve (12) individuals including himself and the plaintiff herein wrote a letter to the District Executive Director of Moshi Municipal requesting the area to be surveyed. It was later surveyed in 2010 where the 2nd respondent mistakenly surveyed the 1st defendant plot No. 545 and extended it to the plaintiff’s plot No. 546 block JJJ. He added that at a time his area was surveyed, he was imprisoned at Karanga prison at Moshi, thus the survey was done in his absence. 3 In their jointly filed WSD, the 2nd and 3rd defendants basically affirmed that the plaintiff allegations were undisputed as he was the legal owner of plot No. 546 Block JJJ Pasua area with a title deed dated 29th August 2011 and that the 2nd defendant only acted there to formalize the process. At the hearing of this suit, the plaintiff and the 1st defendant had no legal representation whereas the 2nd and 3rd defendants were represented by Mr. Moses Muyungi learned state attorney. Subsequently they agreed on the following three issues; 1. Whether the plaintiff is the legal owner of the disputed land.

2. Whether the defendants trespassed the disputed land.

3. What are reliefs entitled to the parties To prove the case, the plaintiff case was mounted by three witnesses, the plaintiff himself Rustis Aloyce Tarimo (PW1), Shabani Said Makishe (PW2), and Athumani Rajabu Mwanga (PW3) together with exhibits, a letter to the Municipal Executive Director (Exh.P1) and the Title deed proving the ownership of plot No.546 (Exh.P2). The 2nd and 3rd Defendants brought one witness a Municipal Authorized Land Officer, one Arobogast Zacharia Mumba (DW1), in his testimony he tendered one 4 exhibit ( Exh.D1) which is minutes of agreement between the parties). As for the 1st defendant, his case had three witnesses who are the 1st Defendant himself John Kisunda Mugabo (DW2), Jumanne Habibu Njoka (DW3) and Havena Hosea Kenga (DW4). The plaintiff Rustis Aloyce Tarimo (PW1) testimony was that, he was allocated the disputed plot No. 546 by the 2nd defendant on 24/01/2011 after the 2nd defendant invaded and demolished almost 70 houses bytelling them that the area was planned for industries and railway. After demolition, it remained only twelve (12) mud houses and they were given 7 days to vacate the area. They made followed up to local leaders and to the of Regional Commissioner who advised them to apply for the area to be surveyed. Later, the area was surveyed and PW1 was given plot No.546 while the 1st defendant was allocated to plot No 545. Their plots were adjacent to each other. PW1 further said, after such allocations of plots, the 2nd defendant ordered the 1st defendant to remove his mud house which was now seen to be at the PW1 plot No.

546. He agreed at first but later refused to remove or demolish the said mud house which is a source of dispute at hand. They tried to solve the matter amicably with the 1st defendant without success. 5 The matter went to the Ward tribunal of Pasua area where again the 1st defendant agreed to remove the house at the PW1 plot as it was not his plot but he never did so. PW1 tendered a title deed evidencing the ownership of the disputed plot showing that he legally owns plot No. 546 block JJJ Moshi Municipality which was admitted as Exh.P2 and a letter from the Municipal Director which was admitted as Exh.P1. Plaintiff’s witnesses, Shaban Said Makishe (PW2) testified in respect to what was the finding of the tribunal and efforts applied to settle the dispute which ended in vain. Athuman Rajabu Mwanga (PW3) stated that he was amongst people whose houses were demolished. In their defence, the 2nd and 3rd defendants brought one witness Arobogast Zacharia Mumba (DW1) an Authorized Land officer who testified that it was true the plaintiff and the 1st defendant plots were surveyed and registered in a city plan number 60925. After surveying the area, a dispute arose concerning a small part of the 1st defendant mud house which was seen to have extended to plaintiff plot No.

546. DW1 further stated that his office tried to solve it by a meeting with both parties where it was agreed by both that the 1st defendant was to demolish the said mud house within a period of three months and the plaintiff to build a fence within two 6 months. To substantiate his testimony DW1 tendered a minute’s agreement which was marked as exhibit D1. On his side, the first defendant John Kisunda Mugabo (DW2) denied trespassing to the plaintiff’s plot and stated that after the 2nd defendant demolished their houses in 1995, him amongst with other victims including the plaintiff herein went to the Regional Commissioner office who communicated with the 2nd defendant and ordered the area to be surveyed but the two mud houses were not surveyed. DW2 went to the Minister for lands who visited the area and ordered the survey operation to stop. DW2 further testfied that in the year 2009 while serving as a prisoner at Karanga prison in Moshi, the 2nd defendant surveyed the area and came up with the two plots, plot No. 545 which was given to him and plot No. 546 which was allocated to the plaintiff. He testified that the problem was that the boundaries and demarcation of those plots traversed to his house as his mud house was now seen to be part of the plaintiff plot No.

546. His witnesses Havena Hosea Konga (DW4) stated that after the 2nd defendant surveyed the disputed plot, its demarcation traversed the mud house of the DW2t. Another first defendant’s witness was Jumanne Habibu 7 Njoka (DW3) who stated that he only witnessed the 1st defendant buying plot number 545 but he was unaware of the parties’ dispute. After hearing the parties and their witnesses, the circumstances of this matter led me to decide that it was necessary to visit a locus in quo, and on 26th day of July, 2024 this court visited the area in dispute located at Pasua within Moshi Municipality whereby both parties and their witnesses attended. Before I dwell into issues agreed in deciding this matter, I find pertinent to underscore that, it is a settled position the onus in proving existence of any fact lies on the party asserting its existence and in civil cases proof is on balance of probabilities. That is in accordance with the provisions of sections 110 and 111 of the Law of Evidence Act [CAP 6 R. E. 2019]. It requires that a person who alleges must prove. The Act provides that: - (1) Whoever desires any court to give judgment 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. 8 The

import of the above also derives from principle based on an ancient rule that incum bit probation qui dicit non qui negat, which means the burden of proving facts rests on the party who substantially asserts the affirmation of the issue and not upon the party who desires it; for a negative is usually incapable of proof. In our jurisprudence the same was appreciated by the Court of Appeal of Tanzania in the case of Anthony Masanga vs. Penina Kitira and Another, Civil Appeal No 118 of 2014 (unreported), where it stated that; "It is the principle of law that in civil cases, the burden of proof lies on the party who alleges. It is a common knowledge that in civil proceedings, the party with legal burden bears the evidential burden and the standard in each case is on the balance of probabilities." In lieu of the above, to commence with the first issue on whether the plaintiff is the legal owner of the disputed land. I have carefully considered the testimony from both parties and it is from those testimonies I have noted that, both of the parties are not disputing that the plaintiff is the rightful owner of plot No. 546 Block JJJ, located at Pasua area within Moshi Municipality with a title deed No. 33346 with L.O. no. 383425. This is 9 evidenced by the testimony of the Plaintiff himself (PW1), (DW1) who is an Authorized Land Officer of Moshi Municipal Council, exhibits ‘P2’ which is

a title deed with the name of RUSTIS ALOYCE TARIMO (plaintiff). Further the same is supported by the testmony of the 1st defendant himself who stated that plot No 546 belongs to PW1 the plaintiff herein. but the same traversed his mud house which in fact is the source of the dispute between him, plaintiff and allocating authority (the second defendant). To grasp the extent of the dispute as alluded above, this court visited a plot in dispute ‘locus in quo’, and according to the evidence adduced at the visiting of locus in quo, parties maintained what they stated during hearing of the matter. While at locus in quo, Authorized Land Officer (DW1) while on oath started by showing and indicating the beacons which demarcated the boundaries of Plot No. 545 for the first defendant (DW2), and plot No. 546, for the Plaintiff (PW1). DW1 also indicated and showed the mud house and testified that it was located in the plaintiff plot No.

546. He indicated that according to demarcations and a city plan the 1st defendant whole mud house was alocated at plot No. 546 and its small part of it was on another plot No.

547. Both parties observed that status 10 and agreed to that effect. In view of the above evidence which was also undisputed, I am satisfied that the Plaintiff have proved to be the legal owner of the allocated land plot no.

546. Thus, the first issue is answered in affirmative, therefore the Plaintiff is declared legal owner of plot No. 546 block JJJ at pasua area at Moshi. Now having the above evidence, the next issue which follows is whether the defendants has trespassed to the plaintiff plot. This issue faults the acts of both the land allocation authority (second defendant) and the owner of the said mud house (first defendant). This has caused me to recall the evidence on evidence how it all started. As evidenced above the two plots no 545 and 546 before existence, the land being not surveyed were owned by first defendant and plaintiff respectively, each had a building in his area, later when the area was surveyed, boundaries and demarcations were drawn and title deeds issued. In the process of doing so the whole said mud house was plotted at plot 546 which belong to the plaintiff and a small part of it was into plot No. 547 which belong to another person not a party in this matter. The above was evidence of the parties when this court visited locus in quo as alluded above. 11 The evidence is silent as it does not depict that before the second defendant allocated those plots whether he compensated those who were in those plots. whereas the first defendant maintains that by the time the plots were surveyed and allocated he was imprisoned at Karanga prison. However, the evidence furthers shows

that the second defendant struggled to settle the matter amicably but it was proven futile. Nonetheless, it is not stated whether the plot allocated to the first respondent included also compensation in respect of the said mud house or whether it was agreed that the same to be demolished. In my view since those concerns were not discussed before allocations of the said plots raises alarm of the matter at hand. Be as it may, I have considered those plots were officially demarcated in 2011 and certificates of titles were issued, since then the dispute have never resolved, but the parties herein, the plaintiff and the 1st defendant each has continued to develop their plots for almost 13 years. Since now they have knocked the realm of this court for the same to be settled. In my considered view under that circumstances above to nullify the survey conducted will escalate more problems due to an exhausted improvement made on the said plots. 12 Nevertheless, the facts that the said mud house existed before the area was surveyed, in my view the ownership was based on customary tenure. But since the area was then surveyed its earlier status (customary tenure) cannot co-exist with the right granted right of occupancy, taking regard that after survey, the mud house was allocated to a stranger (PW1) who in law owns everything including anything attached to it by the principle of ‘quic quid

plantatur solo, solo cedit’ . Thus, it is my belief that it was not the faults of the first defendant his house to be found in the plaintiff plot. Believing that it is not the fault of the first defendant which caused the said mud house to be found at the said plot allocated to the plaintiff after survey, and as in according to the evidence alluded above the first defendant was issued an adjacent plot no. 545 which in my view shows acknowledgement on the part of the second defendant as Land allocating authority. The above transaction has endured me, to recall the development of Land jurisprudence in this country. In the case of Mwalimu Omari & Another vs. Omari A. Bilali [1990] TLR 9. It was held that: “...w hen an area has been declared to be tow nship or m inor settlem ent, title under custom ary law , and the granted rights of 13 occupancy cannot co-exist. Title to urban land depends on grant....once an area is declared an urban planning area, and land is surveyed and given plots, whoever occupied the land even under customary law would normally be informed to be quick in applying for rights of occupancy. If such person sleeps on such a right and the plot is given to another, the squatter, in law, would have to move away and in law, strictly would not be entitled to anything.” [Emphasis supplied] Later the above stance was developed in the case of Attorney General vs. Lohay

Akonaay and Joseph Lohay [1995] TLR 80, where it was stated by the Court of Appeal of Tanzania that: - "I am thus of settled view that, much as there is a presence of a Title Deed in place, the weight of evidence adduced by the plaintiffs overshadows that of the Defendants, them being deemed to that of Right of occupancy as defined under Section 2 of the Village Land Act Cap 114 as an extension of customary Right of occupancy. I t therefore follow s that the outgoing occupiers ow ned the disputed land custom arily up to, and until such 14 tim e w hen it w as now declared surveyed and developed but the outgoing occupiers should not have vacated em pty handed. " [Emphasis added]. In my view of the above authority, put into practices the intention of the legislature in enacting the land act, which is embodied under the crux of section 3 of the Land Act, [Cap. 113 R. E. 2019], which provides for the objectives of the Land Act is to promote implementation of the Land Policy, which among them is to ensure full payment of 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 to their detriment by the State under this Act or is acquired under the Land Acquisition Act. (see section 3 (1) (g) of Land Act (supra). Moreover, the same becomes the implementation of the

Constitution of the United Republic of Tanzania, 1977 as amended, under Article 24 which provides; 24. Haki ya kumiliki mali (1) Bila ya kuathiri masharti ya sheria za nchi zinazohusika, kila mtu anayo haki ya 15 kumiliki mali, na haki ya hifadhi kwa mali yake aliyonayo kwa mujibu wa sheria. (2) Bila ya kuathiri masharti ya ibara ndogo ya (1), ni marufuku kwa mtu yeyote kunyang'anywa mali yake kwa madhumuni ya kuitaifisha au madhumuni mengineyo bila ya idhini ya sheria ambayo inaweka masharti ya kutoa fidia inayostahili. As explained above there is no evidence adduced by the second defendant that before the areas was surveyed, he consulted the first plaintiff and the first defendant in respect to the compensation of the said mud house which after survey was to be allocated to the plaintiff plot, or it was planned and agreed the second defendant will be located another plot or plots in instead of the said mud house. Therefore, in my considered opinion lacking of the evidence to prove the same, I am settled I cannot take on board that the fact that the first defendant was allocated plot no. 545 also meant his property ‘the mud house’ was extinguished off/ or compensated as per authority of the law cited above. In defending the second defendant, solicitor Mr. Muyungi prompted questions during his cross examination to witnesses, he endeavored through his questions to show that the

said plots before its survey was 16 owned by the Railway corporation, I think in his view, he was trying to show that those who resides in those plots before the area was surveyed were trespassers. I have considered the evidence and the pleading, despite the fact his witness who is the Authorized Land Officer (DW1) did not evidence on that, but also the same was not pleaded in their written statement of defence in order to be dealt by this court legally. Thus, in my view cannot be proved indirectly as Mr. Muyungi tried to depicts. To support my stance above, I wish to refer the case of Barclay’s Bank (T) Ltd vs Jacob Muro (Civil appeal no 357 of 2019) [2020] TZCA 1875 (TANZLII) where the court insisted on the parties to a suit to be bound by their own pleadings and the Court to refrain from issuing orders that have not been pleaded, the court had this to say; We feel compelled at this point to restate the time honoured principle of law that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not support the pleaded facts or is at variance with the pleaded facts must be ignored 17 (See also James Funke Ngwagilo vs. Attorney General [2004] TLR 161; Lawrence Surumbu Tara vs. The hon. Attorney General & two others Civil appeal no. 56 of 2012). According to the evidence adduced in the light of above authorities, I am settled the

second defendant did not prove with evidence that the said land before being surveyed belonged to the Railways Corporation as he endeavored during hearing. In such regard, the remaining evidence in this matter as depicted above, causes me to believe that the said land before survey was owned customary by the plaintiff and the first defendant herein. Thus, the fact the area was surveyed by the second defendant as Land allocating authority after being declared a planning area by virtue of being within Moshi township, in my settled view cannot be taken that the second defendant trespassed the said land, since according to the law the second defendant was exercising its legal duty on that area being declared township. Also as shown above, the first defendant cannot be said that he trespassed the said land because the said survey done found his property to wit a mud house erected on the area. Therefore, the second issue raised in this court is answered not in affirmative. 18 Under the above circumstances, I have asked myself what will settle the existing dispute between the parties; as alluded hereinabove, it was the duty of the second respondent to change the status of the said area to be a planned area, thus no wrong was done and since in that exercise obvious the second defendant had a duty to plan the area in order to accommodate other infrastructures, therefore what the second

defendant did might be believed that was done honestly. However, as the law above provides and taking regard that no evidence was brought to show that the first defendant was compensated, I am settled the first defendant is entitled to be compensated from the allocating authority which is constitution right as alluded above. Consequently, first; I order the said erected mud house which is situated at plot no. 546 and a small part of it at plot no. 547 be valued by Authorized Government Valuer by costs of the second defendant and the proceeds of the said valuation/ amount ascertained be paid by the second defendant (Moshi Municipal Council) to the first defendant (John Kisunda). Secondly; After valuation done the said mud house be demolished at the expense of the second defendant. This is because the second defendant as land allocating authority has a duty to ensure quite possession of the 19 land he allocated to the plaintiff and subsequently is ordered to proceed with payment of the said compensation to the first defendant. In respect to other prayers; the plaintiff has prayed this Court to order the 2nd Defendant to demarcate the whole Plot by showing the exactly boundaries as prescribed in the Title Deed. Having considered the evidence adduced when this court visited locus in quo and the evidence adduce in this court at the hearing before visiting. Earlier in this court evidence was the said mud house was traversed by the boundaries of plot no. 545 but what transpired when this court visited the land with municipal surveyors, the whole mud house is situated at plot 546 and a small part of it at plot. No.

547. Therefore, it is my considered view in order to remove any further ambiguities between two plots. I order the second defendant immediately after demolition of the said mud house to put visible demarcation (beacons) to that effect as prayed. Another prayer, is perpetual injunction order be issued to restrain the 1st Defendant from entering the suit property or interfering with the Plaintiff quiet occupation and usage hereof. Since as stated above I have declared that Plot. 546 belongs to the plaintiff as envisaged in the titled deed issued to him, it goes without saying that the first defendant is 20 hereby restrained from entering the said plot. No. 546 Block ‘JJJ’ with 677 square meters registered title deed Number 33346 Moshi Municipality. Also, the plaintiff have claimed Special damages to the tune of TZS 30,000,000/=. In Metropolitan Tanzania Insurance Co. Ltd vs Frank Hamadi Pilla (Civil Appeal 191 of 2018) [2019] TZCA 281 (TANZLII) deciding on whether to grant or not special damages claimed, the court of Appeal referred the case of Stroms Bruks Aktie Bolag &. Others v. John and Peter Hutchson [1905] A.C. 515. which Lord Macnaghten described special damages as follows: - "Special damages are such as the law will not infer from the nature of the act. They do not follow in the ordinary course. They do not follow in ordinary course but are exceptional in their character and, therefore, they must be claim ed specially and proved strictly. " [ Emphasis is mine] (See also the case of Asthana Brothers (92) Ltd. v. St. Meer and Tanzania Investment Co. Ltd. and Chinese - Tanzania Joint 21 Shipping Co. (Sinotaship) Civil Appeal No. 72 of 2007, CAT (unreported) and (supra) and Zuberi Augustino v. Anicet Mugabe [1992] T.L.R.

137. In this matter at hand the plaintiff at paragraph 16 of his plaint has claimed from the 1st Defendant monetary gains by the 1st Defendant from illegal use and benefits from the disputed piece of land at the tune of TZS 30,000,000/=. He did not provide any necessary details or evidence of how the said amount was gained by the 1st Defendant from using the said land in dispute as in accordance to the above principle which entail specific damages must be claimed specifically and proved strictly. In that regard, I am of considered view he did not exercise his legal duty to prove the same, therefore I hereby find this prayer lacks merit for want of prove, thus not granted. Finally in 6th and 7th prayers, the plaintiff has prayed General damages and costs of this matter respectively be paid only by the 1st defendant. I have considered the evidence and finding of this court as alluded above, the fact the 1st defendant all the time was claiming his rights of unexhausted improvement which existed due to his occupation of the said land before it was surveyed, in my view cannot be punished due to his claim of right he had after consequent survey made over to his 22 previous ownership. Therefore, I find the prayer to the plaintiff misconceived thus this reliefs sought are not granted forthwith. In conclusion thereof the Plaintiff’s case has succeeded to the above extent stated. It is so ordered. DATED at MOSHI this 26th day of August, 2024.

X

JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 26th day of August, 2024 in the presence Mr. Moses Muyungi learned state Attorney for the second and third Defendant, Plaintiff and second defendant present in person. Sgd; A. P. KILIMI

JUDGE 26/08/2024 23 Court: Right of Appeal explained. Sgd; A. P. KILIMI

JUDGE 26/08/2024 24