the registered trustees kanisa la pentekoste tanzania vs the attorney general 4 others 2023 tzhclandd 16709 25 july 2023

IN THE HIGH COURT OF TANZANIA (AT DAR ES SALAAM) LAND CASE NO. 102 OF 2022 THE REGISTERED TRUSTEES KANISA LA PENTEKOSTE TANZANIA............................................. PLAINTIFF VERSUS THE ATTORNEY GENERAL.............................................................. 1stDEFENDANT KINONDONI MUNICIPAL COUNCIL.............................................. 2ndDEFENDANT TANDALE PRIMARY SCHOOL......................................................... 3rdDEFENDANT RAMADHANI KABETHI............................................. 4th DEFENDANT BETHEL MWANJALA....................................................................... 5thDEFENDANT JUDGMENT A. MSAFIRI, J This is an ex-parte judgment. The plaintiff hereinabove initially has instituted a suit against the defendants namely the Attorney General (the 1st defendant), Kinondoni Municipal Council (the 2nd defendant), Tandale Primary School (the 3rd defendant), Ramadhani Kabethi (the 4th defendant), and Bethel Mwanjala (the 5th defendant). The plaintiff's claims against the 1st, 2nd and 3rd defendants was for the discharge of the land which she owns under Kanisa la Pentekoste Tanzania, Manzese Parish, which is located at Tandale in Kinondoni Municipality (herein as suit land or suit plot) and which was erroneously included by the 2nd i defendant's surveyors as part of the 3rd defendant's land during the survey. The plaintiff also claims for eviction of the 4th and 5th defendants from the suit land. The 1st, 2nd and 3rd defendants filed their joint written statement of defence. However, the then 4th and 5th defendants never entered an appearance before the Court despite being summoned. The Court was informed by the counsel for plaintiff that the 4th and 4th defendants have refused the service. The Court then ordered that the 4th and 5th defendants be served by affixation under Order VI Rule 16 of the Civil Procedure Code Cap 33 R.E 2019 (the CPC). Hence the summons were affixed to the 4th and 5th defendants' residences. Still, they refused to appear in Court and file their defence. Lastly the Court ordered the service by publication which was done by publishing in a local newspaper on 16/8/2022. The proof was produced in Court. The 4th and 5th defendant did not appear in Court and never filed their defence. After that the Court then entered an ex-parte order against them. The matter was set for hearing and before that the following issues were framed by the Court; Alt 2 1. Whether the plaintiff have any right over the disputed land. 2. Whether the disputed land was surveyed and demarcated for 3rd defendant. 3. Whether the 4th and 5th defendants have trespassed to the plaintiff's land. 4. To what reliefs are parties entitled to. Before the commencement of the hearing, the plaintiff and the 1st, 2nd and 3rd defendants informed the Court that they have agreed to settle the dispute amicably. The said parties entered a settlement on 22/5/2023 and filed a Deed of Settlement on the same date on 22/5/2023. The said Deed of Settlement was recorded and registered as a Decree of Court in respect of the plaintiff and the 1st, 2nd and 3rd defendants only. Following the said settlement, the ex-parte hearing was set whereby the plaintiff was heard in absence of the remaining defendants i.e. the 4th and 5th defendants. At the hearing the plaintiff summoned two witnesses who were Job Cyprian Sembuche, PW1 and Seth Joshua Kihongosi, PW2. PW1 testified that he is the Pastor of the Pentecostal Church of Tanzania (herein it will be referred as Kanisa la Pentekoste Tanzania, Manzese Parish). 3 That he is a Pastor of the said church and has been for 20 years. And he is also a General Secretary and a Trustee of the Registered Trustees Kanisa la Pentekoste Tanzania. That as a Trustee, he is a custodian of the Church's assets and keep records of the said assets, both movable and immovable. He stated further that the suit plot is owned by Kanisa la Pentekoste Tanzania, Manzese Parish, and it is located at Tandale. It has a size of 50 metres on East side, 51 metres on West side, 16.6 on North side, and 23.85 metres on South side. He testified that Kanisa la Pentekoste Manzese Parish, got the suit plot in 1969 by purchasing it from the original owner, a native owner, and built a church on the plot. That, in 1973 after the church has already been built, the Government surveyed the land nearby the church for purpose of building Tandale Primary School. PW1 said that the survey erroneously included the suit plot as part of the school area. That, upon discovering that, they started communications with Kinondoni Municipal and Tandale Primary School so as to exclude the suit plot from the school area. The correspondent letters were admitted collectively as Exhibit Pl. 4 He said that the communication bore no success hence the church decided to sue the Kinondoni Municipality and Ministry for Lands as they refused to cooperate and to exclude the suit land from the school area. So, the plaintiff served a Demand Notice to the 1st, 2nd and 3rd defendants with intention to sue them. The said Demand Notice was tendered as Exhibit P2. PW1 stated that, they have also sued the 4th and 5th defendants' because they have trespassed into the suit plot since 2018 and refuse to vacate on argument that the suit plot belongs to Tandale Primary School not the Church. That despite the efforts of evicting the 4th and 5th defendants from the suit plot, the said defendants have refused to vacate the plot. That, after instituting this case, the plaintiff served the 4th and 5th defendants but they refused services. PW1 said that, the plaintiff has a Deed of Settlement with the 1st, 2nd and 3rd defendants and have now settled the dispute between them. That this case is now between the plaintiff and the 4th and 5th defendants. He said that, the suit plot is the lawful property of Kanisa la Pentekoste Tanzania, Manzese Parish and that the 4th and 5th defendants are trespassers. pf Hn. 5 PW2 stated that he is a Pastor of Kanisa la Pentekoste Tanzania, Manzese Parish. His evidence was similar to the one of PW1. He also testified that the 4th and 5th defendants trespassed into the suit plot which is the church area in 2018 and started to plant trees and establish petty business in the area. That, after trespass of the said defendants, they reported the matter to the Street Government Office and Ward Office but the 4th and 5th defendants refused to cooperate. He insisted that the suit plot is a lawful property of the Board of Trustees of Kanisa la Pentekoste Tanzania. Having heard the evidence adduced by the plaintiff, my duty is to determine the issues which were framed. Initially, four issues were framed which involves all defendants to the suit. This means that the issues were framed before the plaintiff and the 1st, 2nd and 3rd defendants have agreed and settled the dispute amicably and filed a Deed of Settlement. Since the 1st, 2nd and 3rd defendants have settled their dispute with the plaintiff, this Court then will have to amend the framed issues to suit the current status where now the suit is between the plaintiff and 4th and 5th 6 defendants' only. The other defendants having settled the dispute with the plaintiff, there are some matters which are no longer in controversy. Having said so, I hereby amend the framed issues under Order XIV Rule 5 of the CPC which gives this Court power to amend and strike out issues. Using the said power, I strike out the second issue and now there are three issue which are; 1. Whether the plaintiff have any right over the disputed land. 2. Whether the 4th and 5th defendants have trespassed to the plaintiff's land. 3. To what reliefs are parties entitled to. Starting with the first issue on whether the plaintiff have any right over the disputed land, through the evidence of PW1 and PW2, the plaintiff have managed to establish on balance of probabilities that she is the lawful owner of suit property having bought the same since 1969 from the native owner. This land of the church was erroneously included in the survey of the neighboring plot belonging to Tandale Primary School. However, the plaintiff and Kinondoni Municipal Council have agreed to resurvey the land and separate the two areas, the area of Kanisa la Pentekoste Tanzania, Manzese 7 Parish and the area of Tandale Primary School and this is per the Deed of Settlement which was filed and recorded as Decree of this Court. This evidence, cemented with the documentary evidence Exhibit Pl collectively, proves that there is no dispute that the plaintiff have a right over the suit plot. The first issue is answered in affirmative. The second issue is whether the 4th and 5th defendants have trespassed to the plaintiff's land. Here, the plaintiff have established that she is the lawful owner of the suit land hence she has a right over the same. The Kinondoni Municipal Council have admitted to have erroneously included the suit plot into the area of Tandale Primary School and has agreed to separate the suit plot from the area of the latter. This Court was told that the 4th and 5th defendants trespassed into the suit plot claiming that it is the area of Tandale Primary School. Since it has been established that the area belongs to the plaintiff and not Tandale Primary School, then the 4th & 5th defendants have no right whatsoever to occupy the suit plot and use it. The 4th & 5th defendants refused the services, and refused to attend the Court and exercise their rights to be heard. I find that the said defendants 8 have trespassed into the suit plot which is the plaintiff's plot. The second issue is also answered in the affirmative. The third issue is on the reliefs which are parties entitled to. Having found that the 4th and 5th defendants are trespassers to the suit plot, they are not entitled to any reliefs. Therefore, this case is decided in favor of the plaintiff and it is hereby ordered that; 1. It is declared that the 4th and 5th defendants (Ramadhani Kabethi and Bethel Mwanjala) are trespassers into the plaintiff's land. 2. The 4th and 5th defendants are ordered to vacate the plaintiff's land immediately from the date of this judgment. 3. Costs of the suit be borne by the 4th and 5th defendants. It is so ordered. Right of appeal explained. 9