sefu bakari masanga vs idd ismail mshana 2 others 2023 tzhc 22453 8 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE SUB REGISTRY OF MANYARA

AT BABATI LAND CASE NO. 06 OF 2023 SEFU BAKARI MASANGA.................................................... PLAINTIFF

VERSUS IDD ISMAIL MSHANA.............................................. 1st DEFENDANT BABATI TOWN COUNCIL......................................... 2l DEFENDANT THE HON. ATTORNEY GENERAL.............................. 3rd DEFENDANT

RULING 27th October & 08th November 2023 Kahyoza, J,: Sefu Bakari Masanga sued Idd Ismail Mshana, Babati Town Council and the Attorney General praying for a declaration that he is a lawful owner of the suit land, a permanent injunction against the defendants and their agents, general damages and costs. Idd Ismail Mshana, Babati Town Council and the Attorney General (the defendants) refuted the claims. The Court framed and the parties agreed to the following issues- 1. Whether there is in existence Plot 149 Block N - Ngarenaro. i 2. If the first issue is answered in affirmative, whether the said plot was legally allocated to a person from whom the plaintiff claim his tittle.

3. To what relief(s) are the parties entitled to. A brief background is that; Sefu Bakari Masanga sued Idd Ismail Msana back in 2006 in the district land and housing tribunal (the DLHT) where he emerged successful. Idd Ismail Mshana appealed to » this Court. The Court (Hon. Mugasha, J. as she then was) partly allowed the appeal, by setting aside the judgment and decree of the DLHT. In addition, it ordered the interested party to institute a suit impleading Babati District Council in respect of allocation of the disputed plot to Kelvin Martin and later to the Respondent. Sefu Bakari Masanga took step, instituted the suit and impleaded Babati District Council. He pleaded that he acquired the disputed land, Plot 149/N measuring 42 steps to 22 steps through exchange of plots with Martin Maro. He alleged that the exchange of plots of land occurred on 17.8.2002 and that one of the terms of contract was that Martin Maro would get a farm measuring 1/4 acre located at Lotima village, Kirua Ward in Moshi district. He added that he wrote a letter to Babati District Council on 19.09.2008 to apply for certificate of occupancy over the disputed land. Babati District Council replied that she had no requisite book to issue a 2 letter of offer "barua ya toleo" but insist that he (Sefu Bakari Masanga) was the owner of the suit land. Sefu Bakari Masanga alleged further that, the disputed piece

of land was part of Idd Ismail Mshana's land which was surveyed in 1998/99. He added that Idd Ismail Mshana was allocated plots No. 151N, 152N, 153N and 154N, and the remaining plots were allocated to other applicants including Martin Maro. Martin Maro was allocated plot No. 149N. The second and the third defendants denied any involvement in the allocation of the suit land to the first defendant or being privy to the contract between the Plaintiff and Martin Maro. The first defendant refuted the existence of plot No. 149N and to have trespassed to disputed land, which is plot No. 149N. Sefu Bakari Masanga testified and summoned one witness, Kelvin Martin. After the Plaintiff closed his case, the Court entertained doubts whether the plaintiff had established a prima facie case to require the defendants to enter their defence. Parties were invited to address the Court on the issue orally but they were permitted to file skeleton written submissions to supplement their oral submissions. Sefu Bakari Masanga, the Plaintiff, was unrepresented while Mr. John Lundu, advocate, 3 appeared for the first defendant and Mr. Mkama Musalama, learned State Attorney assisted by Mr. F. Bukambu, State Attorney appeared for the 2nd and 3rd defendants. Sefu Bakari Masanga (Pwl), submitted that through his testimony and that of Kelvin Martin Maro (Pw2), it was been established that he is the lawful

owner of the suit land and not Idd Ismail Mshana, the first defendant. He was recognised as a rightful owner by the District Land and Housing Tribunal - Babati (the DLHT) and the Legal and Human Rights Centre - Arusha (the LHRC). Furthermore, Babati District Council had also acknowledged him as a rightful owner and allowed him to develop the suit land. On the day, the parties were invited to submit whether the applicant had established a prima facies case, Mr. John Lundu, the first defendant's advocate did not enter appearance. Mr. Ismael, who held the first defendant's powers of attorney, submitted that the plaintiff's evidence is weak, as the he did not establish how he acquired disputed land or prove his title. He contended that Sefu Bakari Masanga (Pwl), had no right to sue Idd Ismail Mshana as; one, he has no titled to the disputed land. The certificate of title is in the name of Kelvin Maro; two, the alleged suit land is legally non-existent. Kelvin Maro (Pw2) testified that he knows 4 nothing about the suit land, in the circumstances, no claim can be proved as against Idd Ismail Mshana; and three, Idd Ismail Mshana is neither the claiming onwership nor the occupier of Plot No. 149 N. Therefore, it should be ascertained as to who is the legal owner of the suit premises. Mr. Mkama, the learned state attorney, submitted that the law requires that he who alleges must prove

his allegations. A duty to prove cannot shift to the defendants before the plaintiff discharges the obligation to prove his claim to the required standard, as provided for under sections 110 and 111 of the Evidence Act [Cap. 6 R.E 2022]. From the testimonies availed, there is no evidence to prove that the disputed land was surveyed in 1998/1999, nor was there a proof that there was land transfer between the Plaintiff and Martin Maro. The plaintiff failed to adduce any document to prove transfer of the disputed land from Kelvin Martin Maro to him. Kelvin Martin Maro (Pw2) testified categorically that he knew nothing about the disputed land. He asserted further that there was no land transfer executed between him and his late father and that the disputed plot was not included in his father's estate. Thus, the plaintiff had failed to establish a prima facie case. 5 In addition, Mr. Mukama submitted that, should the court find that the plaintiff has a case to answer, that finding should not prejudice the defendant's right to defend themselves. He prayed that should the Court find that the Plaintiff did not establish a prima facie case, he prayed the Court to dismiss the suit with costs. To support his contention, he cited the cases of Mwai. Paulo Mhozya vrs The Attorney General [1996] TLR. 222 and Mwesiga Zaidi Silaji vrs Mara Textile Ltd, Civil Case No. 53/202 Dar-es-salaam

(Kakolaki, J) at page 15 -25 & 27, where the court found that the plaintiff failed to established a prima facie case and went on to dismiss the case with costs. On behalf of the second and third defendants, Mr Mkama Musalama prayed for; one, the suit to be dismissed with costs, as the defendants has no case to answer. Two, that in an event that this court finds that the plaintiff has established a prima facie case as against the defendants, then let there be a leave to call witnesses, as it was articulated in the case of Daikin Air Conditioning Ltd vrs. Harvard University [1996] TLR No.l. In his rejoinder, Sefu Bakari Masanga was emphatic that the suit land was surveyed in 1998/1999. He also admitted that, Kelvin Martin Maro (Pw2) knows nothing about the plot, however, his family recognises 6 a contract between him and the late Mr. Martin Maro, who gave him the suit land. He conceded that the High Court did set aside the decision of the DLHT, however, he unyieldingly contended that the High Court did not quash the DLHT's declaration that he was the lawful owner "haikunifutia umiliki wangu” of the suit land. Again, it was the court that sent him to the LHRC, which also found him the owner of the suit land, the plaintiff argued. He pleaded to the Court not to dismiss the suit with costs. Having heard the submissions, the duty of this court is to find out whether the plaintiff

established a prima facie case to require the defendants to put up their defence. I wish to begin by stating the obvious that in civil proceedings who alleged must prove as it was held in Abdul Karim Haji Vs. Raymond Nchimbi Alois and Joseph Sita Joseph [2006] TLR. 419, "It is an elementary principle that he who alleges is the one responsible to prove his allegations!'. Sections 110 and 111 of the Evidence Act, [Cap 6 R.E 2022] are to that effect. It is also common knowledge that in civil proceedings, the party with legal burden also bears the evidential burden and the standard in each case is on the balance of probabilities. See, Godfrey Sayi v. Anna Siame as Legal Personal Representative of the late Marry Mndolwa, Civil Appeal No. 114 of 7 2012 (unreported). This is also provided for under section 3 (2) (b) of the Evidence Act. It is also an established principle in civil cases that, a party whose evidence is heavier than that of another must win. (See the case of In Hemed Said V. Mohamed Mbilu [1989] TLR 113). Not only that but also, the Court of Appeal in Yusufu Selemani Kimaro v. Administrator General and 2 Others, Civil Appeal No. 226/ 2020, took a stand that once the plaintiff gave evidence the defendant bears a burden to controvert the plaintiff's evidence. I wish to add that the burden does not shift from the plaintiff to the defendant to refute or counter

the plaintiffs evidence, unless the plaintiff's evidence established the prima facie case. The Court of Appeal in Yusufu Selemani Kimaro (supra) stated- "....iGoing by the above exposition of the law, it would be insincere if not a misapprehension of the law on the part of Mr, Halfani to complain as he did that the trial Judge had shifted the onus of proof onto the second respondent. For, in civil cases, the onus of proof does not stand still, rather it keeps on oscillating depending on the evidence led by the parties and a party who wants to win the case is saddled with the duty to ensure that the burden of proof remains within the yard of his adversary. This is so because as per the case 8 of Raghramma v. Chenchamma, A 1964 SC 136, such a shifting of onus is a continuous process in the evaluation of evidence." The Court of Appeal, yet in Paulina Ndawavya v. Threresia Thomas Madaha, Civil Appeal No. 53/2017 (TCA unreported) held that- "the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his and the burden of proof is not diluted on account of the weakness of the opposite party's case." (emphasis is mine) The question for determination in simple terms, is whether after the plaintiff and his witness, Kelvin Martin Maro (Pw2) testified, the burden shifted to the defendants to lead evidence either with the view to controverting the

plaintiff's evidence or supporting their own case. It is very rare but not unfounded or unprecedented for a court to hold that a plaintiff has failed to establish a prima facie case and subsequently, dismiss the suit. The practice is commonly in criminal trials, where in every case, the court must find whether the prosecution has established the prima facie case before inviting the accused person to make his defence. In Black's Law Dictionary (Ninth) prima facie case is defined as follows- 9 "4 case supported by at least the minimal amount of evidence needed to meet the requirement for trying it; adequate to be able to avoid a directed verdict or a motion to dismiss." (emphasis is mine) Given the above definition, it is my view that the term prima facie case means that, at first look, it appears that a case has been established against the defendant or that from the face of the case, there is enough evidence for there to be a case to answer. That is the evidence of the plaintiff is sufficient to establish a fact or case unless controverted. The task of this court at this stage is to find out if the evidence of Mr. Sefu Bakari Masanga, the plaintiff, has established the following facts- 1) Whether there is in existence Plot 149 Block N - Ngarenaro.

2) If the first issue is answered in affirmative, whether the said plot was legally allocated to a person from whom the plaintiff claim his tittle.

3) To what relief(s) are the parties entitled to. Has Sefu Bakari Masanga established the existence of Plot No. 149 Block N? I had a cursory review on evidence given by Sefu Bakari Masanga (Pwl) and Kelvin Martin Maro (Pw2), it is unfortunate that nothing that was stated established that plot 149 block N exists. io Sefu Bakari Masanga testified that in the year 1999 after his retirement, he applied to and acquired land, (Plot No. 148 Block N) from the Director of the Babati District Council. As he wanted one more piece of land adjacent to his land. He expressed his desire to the Director of the Babati District Council who assigned him to the Land officer to assist him. The latter informed him that there was Plot No. 149 Block N, which had not developed. The owner was identified as Martin Maro. He traced the owner of Plot No. 149 Block N and an agreement for exchange of land was executed between them. He added that the late Mr. Martin Maro gave him a copy of the certificate of right of occupancy to plot 149 Block N. On the 05/10/2002 when the land officer and the plaintiff visited the said plot, to identify and point out the boundaries of the said plot, the first defendant stopped them, claiming to be the lawful owner of the disputed land. The land officer and the Director of Babati District Council advised him to take legal actions. He successfully sued the first defendant via

Land Application No. 37/2006. Idd Ismail Mshana appealed to High Court of Tanzania Arusha vide Land Appeal No. 38/2011. The High court ordered the matter to be tried afresh, hence this Land Case. When cross-examined by Mr. John Lundu for the first defendant, he answered and I quote: - ii 7 don't know if my plot is No. 29 HH. I have not tendered any document to show that the disputed land belonged to Martin Maro. The document is in the hands of Kelvin Martin Maro. They did not give me the original agreement as they did not inspect the land I gave them. I have a letter from Babati Town Council." It is crystal clear that up to the closure of the plaintiff's case no documents were tendered to prove that Plot No. 149 Block N existed. The existence of a surveyed plot of land would be proved by tendering a certificate of occupancy or title or even a letter of offer. The plaintiff deposed that the certificate was in the hands of Kelvin Martin Maro (Pw2). However, when Kelvin Martin Maro (Pw2) appeared he deposed that he searched all documents his left behind by Martin Maro, now deceased, but he was not able to come across the certificate of occupancy. Kelvin Martin Maro (Pw2 deposed I quoted- 7 did not get the original contract. I did not get the original copy of the right of occupancy or a letter of offer." The plaintiff seeks to rely on the letter from the Director of Babati District

Council that he was the owner of the suit land Plot No. 149 Block N. Unfortunately, Mr. Sefu Bakari Masanga did not tender the letter. He attached a copy of the letter to the Plaint but he was not able 12 to produce it as exhibit. A court cannot rely on a document attached to the Plaint which was not produced in evidence. It is trite law that, annextures attached to the Plaint or the witness statement do not automatically form part and parcel of court exhibits unless and until they are admitted in evidence and endorsed accordingly by the trial court. (See Total Tanzania Ltd u. Samwel Mgonja, Civil Appeal No. 70/2028 CAT (Unreported). Even if, Mr. Sefu Bakari Masanga had tendered a letter from the Director of Babati District Council, that alone would not have established the existence of Plot No. 149 Block N in the absence of the certificate of the right of occupancy. The plaintiff had a gun loaded in his hand to shoot that is to pay a search fee and obtain a report of the existence of the disputed. The search would have proved not only the existence of the land in dispute but also the owner of the suit land. To make things worse, Sefu Bakari Masanga did not tender evidence to prove that there was a contract with Mr. Martin Maro to exchange the disputed land, let alone with Kelvin Martin Maro (Pw2) who is the alleged owner of the suit land. Kelvin Martin Maro (Pw2) deposed that

his late father told him that he wanted to exchange his (Kelvin Martin Maro (Pw2) land located at Babati with the plaintiff's land located at Moshi. During 13 cross-examination, Kelvin Martin Maro (Pw2) deposed that the contract was yet concluded between the plaintiff and his father. He asserted further that, the plaintiff had not shown them the land in exchange for the disputed plot of land. In addition, Kelvin Martin Maro who was alleged to be in possession of the original documents, neither produced them nor admitted to be aware as to the existence of suit land. And that the same was never subject to the estate of his father. Thus, mere statement that there exists plot No. 149 Block N and that the suit land is a surveyed land do not establish the existence of the said plot. Section 40 of the Land Registration Act, [Cap 334 R.E 2019) provides:- "40. Certificate of title to be evidence A certificate of title shall be admissible as evidence of the several matters therein contained." Since, the plaintiff was categorical that the suit land was a surveyed plot and the certificate of right of occupancy was issued to that effect, it was incumbent upon him to produce proof to that effect. Failure to do so, means he failed to discharge his evidential burden. 14 Furthermore, the purported exchange agreement was never concluded, as; one, the plaintiff failed to tender evidence he

concluded a contract with Kelvin Martin Maro, the owner of the disputed plot; two, the plaintiff never paid consideration by showing or transferring his piece of land in exchange of the plot in dispute; and three, the plaintiff did not apply for grant of approval of disposition as provided by section 39 of the Land Act, [Cap. 114 R.E. 2019]. The section states that- 39. -(1) An application for a grant of approval for a disposition shall be - (a) made on a prescribed form; (b) signed by all the applicants; (c) accompanied by any other information which are prescribed or which may be required by the Commissioner; (d) accompanied by any fees which may be prescribed. In the circumstances, the plaintiff has no any justifiable claim or cause of action against any of the defendants. I find that Sefu Bakari Masanga, the plaintiff, did not establish a prima facie case that Plot No. 149 Block N existed to require the defendants to disapprove that fact. The evidence of the plaintiff is wanting. Since Sefu Bakari Masanga, the plaintiff did not establish a prima facie case regarding the first issue, it 15 follows that the plaintiff failed to establish to a prima facie in respect of second and third issues, which depended on the outcome of the first issue. For that reason, I will not bother consider them. Consequently, I dismissed the plaintiff's suit for want of merit. Given the fetched

history and the nature of this case, I make no order as to costs. It is ordered accordingly. Dated at Babati this 8th day of November, 2023. J. R. Kahyoza Judge 08/11/2023 Court: Ruling delivered in the presence of Mr. Sefu Bakari Masanga, the Plaintiff, Mr. John Lundu, advocate for first defendant, the first defendant's, representative, Mr. Francis Bukambu for second and third defendants. B/C Ms. Fatina (RMA) present. J. R. Kahyoza Judge 08/11/2023 16