registered trustees of khoja shia ithua asheri jamaat vs attorney general 3 others 2022 tzhclandd 712 27 june 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 118 OF 2019 THE REGISTERED TRUSTEES OF KHOJA SHIAITHNA ASHERIJAMAAT PLAINTIFF VERSUS THE ATTORNEY GENERAL 1®^ DEFENDANT THE COMMISSIONER FOR LANDS, THE MINISTRY FOR LANDS, HOUSING & HUMAN SETTLEMENT DEVELOPMENT 2'*° DEFENDANT KINONDIONI MUNICIPAL COUNCIL 3'*° DEFENDANT ELLY KAVISHE 4™ DEFENDANT Date of Last Order; 25.04.2022 Date of Judgment: 27.06.2022 JUDGMENT V.L. MAKANI.J The plaintiff in this suit THE REGISTERED TRUSTEES OF KHOJA SHIA ITHNA ASHERI JAMAAT is seeking for the foiiowing orders: 1. A courtdeclaratory order that the plaintiffis the lawful owner of all that piece of land constituting Plot No. 586 and 587, Block /> Msasanf Village, KInondonI Municipality within Dar es Salaam Qty. 2. A permanent injunction to forever restrain the defendant their agents, servants or anyone acting under them from further interference and disturbances with the Piot No. 5876 Biock F Msasani Viiiage, Kinondoni Municipaiity within Dar es Saiaam City, 3. An order for removai of any structure or piants iiiegaiiy erected thereon and/or at the entrance thereofand/or any obstruction or buiiding that iimits and/or interferes with access to and from Piot No. 5876 Biock F Msasani Viiiage, Kinondoni Municipaiity within Dar es Saiaam City. 4. An orderforpaymentof TZS900,000,000/=(say TZS Nine Hundred Miiiion Oniy)being specific damages as a resuit ofdefendants act which hindered the piaintiff to deveiop Piot No. 5876 Biock F Msasani Viiiage, Kinondoni Municipaiity within Dar es Saiaam City and occasioned ioss to the tune above mentioned. 5. In addition to that the piaintiff ciaims for generai damages of which wiiibe assessed by this honourabie court. 6. Costs to be provided for. 7. Any other order and reiiefas the honourabie court may deem fit to grantin the circumstances. The plaintiff in this suit was represented by Carios J. Cathberty and Godfrey Samwei, Advocates. The I®', Z""* and 3"^ defendants were represented by Ms. Kiionzo, Mr. Masunga Kamihanda, Mr. Saieh Mohamed and Mr. Mwambalasa, and Mr. Kause Izuna, State Attorneys. The 4'^ defendant was represented by Mr. James Bwana, Advocate. The issues that were framed in terms of Order VII Ruie 40(1) of the Civii Procedure Code CAP 33 RE 2022(the CPC) were as follows: (a) Whether the plaintiff is the owner of the property known as Plots No. 586and587, Block /> MsasanI Village, KInondonI Municipality within Dar es Salaam Qty(the suitplots). (b) Whether there was proper revocation and re- allocatlon ofthe suitplots to the plaintiff. (c) Whether the suit plots were designed as an "open space". (i) Whether the plaintiffIs entitled to any damages as claimed. (e) To what reliefs are the parties entitled to. The plaintiff had three witnesses; and Yakati Hassanali Nanji(PWl) was the first witness. He said he is the Administrator of the plaintiff, a religious institution which deals with religion and education development. He said the plaintiff was in 1999 granted Right of Occupancy for 33 years in respect of the suit plots which is about 34,610 square meters. He said they were given originai Certificate of Titie No. 49331 dated 03/02/1999 in the name of the piaintiff (Exhibit PI). He said they initiaiiy had another Certificate of Titie No. 35904 granted in 1989 (Exhibit D2) which was revoked for reason that the property was not deveioped. PWl said in 1998 they received a letter from the Commissioner for Lands informing them that the Certificate of Titie was revoked (Exhibit P2). He went on saying that after the revocation the piaintiff appealed to the Minister and thereafter the piaintiff received a letter from the Commissioner for Lands returning the said suit plots to the piaintiff (Exhibit P3). He said after that they started processing a Building Permit and a Certificate of Titie. He said by 1999 the piaintiff was granted a new Certificate of Titie (Exhibit PI) with the same conditions and also a Building Permit(Exhibit P4). PWl informed the court that the piaintiff started construction, but their construction workers were arrested and later released by officers of the 3'^'' defendant, Kinondoni Municipal Council. PWl went on saying that they complained that they have been refused to develop the property and from 2003 to 2012 they were seeking for a solution. He said in 2012 the piaintiff was told to pay so as to revive the Building Permit and they did so and were granted a receipt (Exhibit P5). He said when they went to the suit piots, they found that there was a person taking care of the property, so they compiained once again to the Counciiior who toid the piaintiff that the suit piots were aiiocated for "open space"(Exhibit P6). He said they had to go back to the Municipai Councii to inform them that the piaintiff was the owner of the suit piots and asked for assistance because construction had started vide a ietter (Exhibit P7). PWl observed that the piaintiff was granted a Certificate of Titie, but it was revoked after 10 years for not deveioping the property. But after the revivai of the said Titie the piaintiff has been facing a iot of obstacies in developing the suit piots. He questioned as to why the Certificate of Titie would be returned to the piaintiff if the suit piots were ""open space"". He pointed out that the current status is that the suit piots contain permanent trees, brick benches and he said there is a certain construction going on. He also said there are stone barricades so no one can enter the said suit piots. On cross examination PWl said the Trustees of the piaintiff are the ones who can sue and be sued. He said he is not among the Trustees but was authorised to testify as a witness on behaif of the Trustees. He said he is an empioyee of the piaintiff and not the owner of the suit piots. PWl said Exhibit PI is the new Certificate of Titie No. 49331 that was issued in 1999. The previous Certificate of Titie that was issued in 1989 was revoked. He said Exhibit P4 the Buiiding Permit did not describe the plots subject of the said permit. PWl admitted that the use of land was for nursery school only, but the Buiiding Permit reflected that the intended buildings were for "madrasa" which also means school. He said he did not know who owned the suit piots before the plaintiff. The second witness was Mehboob Versi (PW2). He said he is one of the Trustees of the piaintiff and he was Trustee from 2012 but now he is retired. His testimony was similar to that of PWl but he emphasized that currently the suit piots have a garden and a clinic which was built recently. He said since the Piaintiff has a Certificate of Titie and it has not been revoked, then the suit piots belong to the piaintiff and there are correspondences to that effect. He further said that the piaintiff has paid Land Rent and Land Rent Assessment and Exchequer receipts for 2009 and 2016 were tendered as Exhibit P8 and P9 respectively. In cross examination PW2 admitted that the Minister cannot nullify the directives of the President. He also admitted that when they paid the Land Rent in 2003 and 2016 the plaintiff was already aware that the suit plots were ''open space^by virtue of Exhibit P6 which letter was from Kinondoni Municipai Council. He said the compensation claimed by the plaintiff is for development as there was a wall which was demolished. PW2 also admitted that the 4"^ defendant is the one who maintains the garden on the suit plots. He said both the 4^^ defendant and the Municipal Council workers barred the plaintiff from developing the suit plots (Exhbit P12). He said though they are no photos of demolition of the wall, but the plaintiff had started construction and they had a Building Permit. He said the TZS 900,000,000/= the plaintiff is claiming is the value of the land. PW3 was Fakrudin Tayabali. He said he is a retired citizen and in 2010 he was given the task of investigating about the dispute of the suit plots by the plaintiff. He said in the course of his investigation he visited many authorities, and he wrote a letter to the Minister for Lands to inquire about the dispute(Exhibit P13)and specifically who had barred the plaintiff from continuing construction at the suit plots. He said the file could not be found at the Land Registry, and when he went with a Municipal Officer to the said suit plots, he found the beacons removed and the neighbour did not allow anything to be done on the suit plots as there was a garden and benches. He said he was informed by the office of Serikaliya MitaaVnat the neighbour who was taking care of the suit plots was Eiiy Kavishe the 4"^ defendant. PW3 went on saying that though he visited the 4'*^ defendant they did not discuss anything, but he decided to send a letter to the Minister as a reminder (Exhibit P14). He said he kept following up and he sent another reminder letter to the Minister (Exhibit P15). He said his letter was responded vide Exhibit PIO which stated that the suit plots were "open space"av\6 the procedure for construction of a kindergarten was not proper. He said after this letter he wrote another letter to the Commissioner for Lands (Exhibit P16) and he reminded the Commissioner vide another letter vide Exhibit P17. He then received the letter Exhibit Pll from the Commissioner for Lands telling the plaintiff that the suit plots were wrongly surveyed and given to the plaintiff, as the suit plots were allocated for an "open space", that the Certificate of Title was mistakenly issued and hence would be revoked. He said they were then advised to go to court. He said before this case the plaintiff filed Land Case No. 61/2013, Land Case No. 381/2016 and Land Case No. 307/2017 which were all struck out on technicalities. He prayed for justice to be done and said in the suit plots there is currently a government hospital. In cross-examination PW3 said Exhibit Pll was telling the plaintiff that the plots were wrongly surveyed, wrongly allocated to the plaintiff as suit plots were allocated as "open space". He said the letter was addressed to him and he has never gone back to the Commissioner for clarification. He admitted that the Certificate of Title was issued by the Commissioner for Lands and the Commissioner was the one who informed the plaintiff that the suit plots were wrongly allocated to them. He also admitted that the letters for complaints, that is. Exhibit P13, P14 and P15 were not addressed to the Commissioner for Lands but to the Minister. The letters Exhibit P16 and P17 were addressed to the Commissioner for Lands and were responded to vide Exhibit Pll. In further cross examination PW3 said he is not aware if the Certificate of Title of the plaintiff has been revoked. He said the 4''^ defendant has never barred them from making developments but some youngsters {wahun!) who were sent to bring chaos so no development could proceed. The first witness for the defence was Sljaona DImond Mwasomola (DWl). He said he Is a Town Planner In the Ministry of Lands. He said according to Map No.1/501/569(Exhibit Dl)the suit plots were "open 5j0ace"and no changes have been effected. He said the final say on usage of land Is Exhibit Dl. And If there Is a dispute of the Deed Plan In any Certificate of Title then a Map such as Exhibit Dl takes precedence. On cross examination he said that the Initial Certificate of Titles No. 35904 (Exhibit D2)shows the usage of the land as for nursery school. DW2 was Adelfrlda Camlllus Lekule Land Officer at the Office of the Commissioner of Land. She said according to records the suit plots were Initially owned by the plaintiff. But In,1998 the ownership was revoked by the President on the ground that the property was not developed. She said the office of the Commissioner also discovered that the suit plots were mistakenly allocated to the plaintiff contrary to the City Planners. She said In 1999 the ownership of the suit plots 10 was reinstated to the plaintiff but later it was again discovered that the land use was still wrong as there was no permit or application as the use was still "open space". She said the land ownership was revoked in 1998 and the initial Certificate of Title has an endorsement to that effect. She said reinstatement of ownership by the plaintiff did not follow procedure because there was no application to the Land Allocation Committee. She said Exhibit PH informed the plaintiff that the suit plots were wrongly surveyed and allocated to the plaintiff as the use of the said plots remain as "open space"an(li there is no change of use. The witness continued to say that there was intention of rectification but there was a report that there is a case in court in 2013 so the process of rectification stopped in lieu of the pending case. She said after informing the plaintiff that the suit plots remain as"open space" there have not received any complaints from them. She said the ownership of the suit plots was mistakenly allocated so there is need of rectification by the Commissioner for Lands or by order of the court. She said compensation on rectification depends on the use of the land and also the land bank prevailing at that time and the readiness of the person applying for the compensation. She said in the present 11 case the plaintiff has not appiied for any compensation. She prayed for the court to note that the suit piots are "open space" and if the piaintiff was granted ownership, then it was a mistake. On cross examination DW2 stated that a Certificate of Title can mistakenly be issued because of the infrastructure and procedures which were previously in place which were mostly manual. She said the sketch plans before did not reflect the ''open space''. She said it was not intentional but it was due to infrastructure but there was still room for remedy. She said the remedy was for the plaintiff to approach the office for discussion. She said she does not know if there is a dispensary/clinic or any developments on the suit piots. She emphasized that there was further need of revocation of which rectification is in the process. She said the rectification of the said piots commenced in 2012 under the Land Registration Act which allows the Commissioner to pioneer rectification where necessary. She said the piaintiff has not come to the Commissioner for the remedy of the mistaken allocation of the suit piots because the initial remedy is administrative and thereafter the court where necessary. DW2 admitted that the owner of the suit piots is the plaintiff as rectification is at standstill because of the pending case. She said the 12 rectification in this case was in respect of the Certificate of Titie by withdrawing the right of ownership, and when rectification is conciuded the suit piots wiii remain as "open space". She said the process has stopped because of this pending case. She insisted that she does not know the 4'*^ defendant and the records do not show any deveiopments on the suit piots. DW3 was Paimon Martin Rwegoshora, Assistant Registrar of Tities, Office of the Registrar of Tities operating from Dar es Saiaam. He said the suit piots under Certificate of Titie No. 35904 (Exhibit D2) were in the name of the piaintiff but in 1998 the said Certificate of Titie was revoked and reverted to the name of the President. He said the revocation was on 03/09/1998 On cross-examination DW3 said Exhibit PI and Exhibit D2 are different as Exhibit PI is CT No. 49331 (34,610 square meters) and Exhibit D2 is CT No. 35904 (34,406 square meters). He said the issue of "open space" is been deait with at the office of the Commissioner for Lands and a deed of revocation is normaiiy submitted to the Registrar of Tities and then the revocation is registered. DW3 couid not verify Exhibit PI because he insisted that 13 it was not original. He said a title could not be issued twice and there could not be two valid certificates of title on the same plots. He insisted that when search is conducted then the owner of the said plots would read as the President. Counsel for the parties filed their final submissions as they were ordered by the court and I commend their assistance to the court by their weii-researched submissions, by the plaintiff and ought to be struck out with costs. I would wish to first address the irregularity that was raised by Mr. Izuna in his final submissions. The irregularity was the impropriety of PW3to instruct an advocate to draw, institute and prosecute this suit and also to instruct PWl, PW2 and PW3 to testify without being lawfully instructed and authorised by the plaintiff. Mr. Izuna relied on section 8(l)(a)(b) and (2) of the Trustees Incorporation Act CAP 318 RE 2002, Order VI Rule 15(1)(2) and (3) of the Civil Procedure Code CAP 33 RE 2019 and the case of Ilela Village Council vs. Ansaar Muslim Youth Centre & Another,Civil Appeal NO.317 of 2019 (CAT-Iringa) (unreported). I wish to state at the outset that the irregularity raised is an afterthought and without merit. In my 14 considered view, the said irregularity ought to have been raised in the course of the hearing when all the parties had an opportunity to respond thereof. Raising them at them in the final submissions is an afterthought and condemning the defendants unheard is an injustice on their part. This issue is therefore disregarded. Now coming to the substantive issues. The first issue for determination is whether the plaintiff is the lawful owner of the suit plots. Section 2 of the Land Registration Act Cap 334 R.E 2019 provides that prima facie proof of ownership of land is Certificate of Title or at least a Letter of Offer. And this position was illustrated in Salum Mateyo vs. Mohamed Mateyo(1987)TLR 111 where the court held: "This means, any presentation ofa registered interestin iandisprima facie evidence that the person so registered is the iawfui owner ofthe said iand. It is the plaintiff's case that she initially had Certificate of Title No. 35904 (Exhibit D2) in respect of the suit plots which was revoked and reverted to His Excellency the President. The plaintiff alleges that after the revocation the suit plots were returned to her under Certificate of Title No. 49331 (Exhibit PI) hence the plaintiff considers to be the owner of the said suit plots. However, it is also on 15 record that the Commissioner for Lands after the issuance of Certificate of Titie No. 49331(Exhibit D2), iater informed the piaintiff that the said certificate was mistakenly issued as the suit plots were "open space"ar\6 called for the rectification of the said Certificate of Titie No. 49331 (Exhibit D2). It is apparent therefore there are two certificates in respect of the suit plots that is Certificate of Titie No. 35904 which is now in the name of Her Excellency the President and Certificate of Title No. 49331 in the name of the piaintiff. This is so because according to DW3, whose evidence was not controverted, Certificate of Titie No. 35904 is stiii on the and there cannot be two certificates in respect of the same plots. This creates doubt as regards the issuance of the subsequent Certificate of Titie No. 49331(Exhibit PI) and whether it was duly registered at the Registrar of Titles as there is no evidence that was led as regards of the process of the registration of Exhibit PI. Another controversy as regards to ownership of the suit plots is that the Commissioner for Lands noted and informed the piaintiff that there was a mistake in the issuance of the Certificate of Titie (Exhibit PI). This information was communicated to the piaintiff vide Exhibits PIO and Pll and the Commissioner told the piaintiff the 16 mistake had to be rectified. DW2 testified that the process for rectification had commenced but was baited by the ongoing cases fiied by the piaintiff. The piaintiff is in knowledge of the said letters and the directives of the Commissioner for Lands as these are exhibits tendered by the piaintiff. In essence therefore, though the Certificate of Title No. 49331 is in the name of the plaintiff, but after discovery by the Commissioner for Lands that it was mistakenly issued, he informed the piaintiff that there was need for rectification which process according to DW2 has been held in abeyance pending this court case fiied by the piaintiff. This assertion by DW2 was not controverted and the plaintiff, on the other hand, is in cognisant of this mistake as she was duly informed by the Commissioner for Lands vide Exhibit PIO and Exhibit Pll as corroborated by the testimony of PWl, PW2 and also PW3. According to Exhibit PH the Commissioner for Lands stated in part that: "...the Certificate ofTitie [No, 49331] which was wrongiy issued over these piots wiii be revoked by the means ofrectification in the Land Register. As stated above,the plaintiff does not deny the receipt of these letters Exhibit PIO and Pll but has not shown what she did after receipt of these letters. From the records it is apparent that after the letter 17 Exhibit Pll, which was the last correspondence between the plaintiff and the Commissioner for Lands,the plaintiff find it necessary to call upon the Commissioner for Lands for any further enquiries, and this was also confirmed by PW3 in his testimony. Since section 10(1) of the Land Act states that the Commissioner for Lands is the principal administrative and professional officer of, and adviser to the Government on ail matters connected with the administration of land and shall be responsible to the Minister for the administration of land; then the court cannot ignore what was noted and discovered by the Commissioner for Lands that there was a mistake in the issuance of the latter Certificate of Title (Exhibit PI) which mistake was also notified and is in the knowledge of the plaintiff in terms of the letters Exhibit PIO and Pll. It is obvious that there was and still is a process of rectification of Exhibit PI which is yet to be finalised by the Commissioner for Lands as stated by DW2. In the circumstances, and considering that this process has not been finalised, it means the ownership cannot be in the hands of plaintiff until it is sorted out by the Office of the Commissioner for Lands. In the premise, the court cannot declare ownership to the plaintiff with the controversy of issuance of the second Certificate of Title (Exhibit 18 PI) at hand. Further, as said by DW3 there cannot be two valid Certificates of Title in respect of the same plots. For that matter it is obvious that the Certificate of Title No. 49331 (Exhibit PI) was mistakenly issued and unless this problem which have been noted by the Commissioner for Land is cleared; in other words, until the rectification process is exhausted,the court cannot declare ownership to the plaintiff by virtue of Certificate of Title No. 49331 (Exhibit PI). The suit plots remain in the name of Her Excellency the President and I hold as such. The second and third issues are straight forward and will be considered together. It has been established that the first Certificate of Title No. 35904 (Exhibit D2) was revoked and that the second Certificate of Title No. 49331 (Exhibit PI) was mistakenly issued. It is quite clear therefore that the revocation of Exhibit D2 is not at issue here, but the problem is the issuance of the second Certificate Exhibit PI and re-aliocation of the plots to the plaintiff. It has been established that the Commissioner for Lands discovered that there was a mistake in issuance of the Certificate of Title No. 49331 (Exhibit PI), and the plaintiff is duly informed of the said mistake and the need for rectification, then the mistake in re-aliocation and 19 issuance of Exhibit PI was wrong because the plots as noted In the Town Plan (Exhibit Dl) were "open spaces"an6 this was asserted In evidence by DW2 and DWl. In his final submissions Mr. Carlos said the evidence of the defence witnesses show that the error was not occasioned by the plaintiff and there was Illegal rectification by the 2"" and 3"^ defendants and In essence there was no rectification was done as admitted by DW2. He went on saying that the plaintiff during the process of rectification was not given the right to be heard according to Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977 as amended, and this also Infringed the plaintiff's constitutional right of right to be heard under Article 24 of the Constitution which Is a mandatory right. He also relied on the case of Charles Christopher Humprey Kombe vs. Kinondoni Municipal Council, Civil Appeal No. 81 of 2017(CAT-DSM)(unreported). Indeed, I agree that the right to be heard Is mandatory. But as stated above, the rectification process has, according to DW2, been put In abeyance pending the completion of this case; and secondly, the plaintiff Is In knowledge of the rectification process and as said by PW3 though they were recalled by the Commissioner for Lands In his letters 20 Exhibit 10 and 11, the plaintiff has not made any effort to visit his office or otherwise make a complaint about the whole process of rectification. In such circumstances, the plaintiff cannot cry that there is unfair procedure, or she has not been heard. Mr. Carlos also pointed out that the defendant failed to establish that the suit plots were designed as "open space"es there were a lot of uncertainties in the Map (Exhibit Dl) but on the other hand there was no other Map or evidence to controvert the fact that the suit piots were indeed not "open spaces"as demarcated in the map. In fine, I hold that the re-aiiocation and issuance of the new Certificate of Title Exhibit PI was improper and hence ineffectuai because the piots as noted in the Town Plan (Exhibit Dl) were "open spaces" and the process of rectification is under process and in the knowiedge of the plaintiff. As for the fourth issue, it is settled law that specific damages have to be specifically pleaded and strictly proved. As correctly said by Mr. Bwana in his final submissions the ciaimed amount of TZS 900,000,000/= has not been specifically pleaded as the plaintiff has not in his pleadings given particuiars of the speciai damages. I 21 subscribe to the Mr. Bwana's cited cases on specific damages nameiy, Samwel Kimaro vs. Hidaya Didas, Civil Appeal No. 271 of 2018(CAT-DSM)(unreported) and the case of Stanbic Bank(T) Limited vs. Abercrombie & Kent(T) Limited, Civil Appeal No. 2001,(CAT-DSM)(unreported). The piaintiff's witnesses have not proved how the demoiition and obstruction of development were done and the amount of loss incurred. The plaintiff had the duty in law to prove the costs incurred, if any,towards the alleged demoiition. And as Mr. Bwana put it, and correctly in my view, "the plaintifffailed to pinpoint the quantum of losses"for which the court could have assessed the specific damages. In view thereof, I don't find reason to award the specific damages prayed. As for the claim for general damages, it is trite law that the court discretionarily awards general damages after taking into account all relevant factors of the case (see the case of Cooper Motor Corporation Limited vs. Moshi Arusha Occupational Health Services[1990]TLR 96) also see the case of Antony Ngoo and Denis Antony Ngoo vs Kitinda Kimaro, Civil Appeal No. 35 of 2014 (CAT-Arusha) (unreported). Since the plaintiff has failed to 22 prove the claims in the plaint then this court cannot award general damages. Before I pen off, I would also wish to touch on ciaims against the 4"^ defendant. I agree with Mr. Bwana as observed in his finai submissions that the first to fourth issues are on matters that are beyond the knowiedge and functions of the 4"^ defendant, as they were matters handied by the piaintiff, the 2"^" and 3'''' defendants. The 4"^ defendant therefore was not in a position to testify on them as she has never worked for the 2"'' or 31^ defendants, or even participated in the grant or revocation of the Certificate of Titie subject of the suit. In principie and according to the evidence, the 4"^ defendant was joined because she was just a neighbour and was taking care of the suit piots, she was not the owner of the piots or had any compiaint regarding the piots. In my view,the cause of action against the 4"^ defendant was very remote she couid have as weii been a witness to either the parties to explain the current status of the suit plots. For the reasons I have endeavoured to address, it is evident that the evidence the piaintiff has failed to prove the case to the standards of 23 law required and clearly the balance is leaning In favour of the defendants. Subsequently, the suit is hereby dismissed with costs, and theplaintiff is not entitled to the reliefs prayed in the plaint or at all. It is so ordered. V.L. MAKA NI JUDGE 27/06/2022 24