the registered trustees of the al duwil masjid madrasatul vscommission for lands ministry of lands housing and human settlement 2020 tzhclandd 3947 11 december 2020

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 370 OF 2016 THE REGISTERED TRUSTEES OF THE AL-DUWIL MASJID MADRASATUL ...................... . 1st PLAINTIFF ALLY ABDALLAH AFIF............................................. 2nd PLAINTIFF ALI ASCER S. KASAMALI....................................... 3rd PLAINTIFF MOHAMED A. SULEMANI AND SONS COMPANY LIMITED....................................... 4th PLAINTIFF VERSUS COMMISSION FOR LANDS, MINISTRY OF LANDS, HOUSING AND HUMAN SETTLEMENTS.... 1st DEFENDANT HON. ATTORNEY GENERAL ...... .............................. 2nd DEFENDANT ILALA MUNICIPAL COUNCIL................................. 3rd DEFENDANT JUDGMENT November 16 & December 7,2020 Masara, J, 1.0 Introduction The Plaintiffs herein preferred this suit against the three Defendant for: a declaration that they are the lawful owners of all that land comprising of Title No. 35854, Plot No. 48 Block Y and Plots No. 45,46 and 47 Block Ilala Boma, Dar es Salaam City (the disputed land); cancellation of the Certificate of Title/offer issued by the Defendants in favour of the 3rd Defendant housing Ilala Boma Primary School; payment of general damages and costs of the 11 P a g e suit. According to the Plaint, the Plaintiffs were allocated the above-named Plots by the then Ministry of Lands, Natural Resources and Tourism by issuance of Offer letters dated 10/8/1988. The above plots had been applied alongside Plot No. 44 Block Y, Ilala. Plot 44 was surveyed and a certificate of title No. 35854 issued in favour of the 1st Plaintiff. The cause of action arose when on 22nd March, 2016 the 3rd Defendant issued a notice requiring the Plaintiffs to demolish/remove their building structures and affixtures on the suit plots within twenty-four hours, on the ground that the occupied area belong to the 3rd Defendant housing Ilala Boma Primary School. The Plaintiffs decided to prefer this suit against all the Defendants. The Defendants filed a joint statement of defence (WSD) denying all allegation by the Plaintiffs. Under paragraph 4 of the WSD the Defendants stated that the 2nd Plaintiff did request the 3rd Defendant to survey Plots 45,46,47 and 48 located at Ilala Boma however the request was not granted as the land in dispute was already surveyed and allocated to the school. The Plaintiffs summoned three witnesses and tendered 12 exhibits to advance their case. The witnesses are Mr. Abdul Nasar Mohamed (PW1), Mr. Ally Abdallah Afif (PW2) and Mr. Ally Ascer Kasamali (PW3). On the other hand, the Defendants also summoned three witnesses and tendered one exhibit. The Defendants7 witnesses are Hassan Mohammed Mwaliko (DW1), Adelfrida Camilius Lekule (DW2) and Seif Bakari Mahiza (DW3). At the closure of the evidence, parties opted not to make any closing remarks. On 2 | Page the request of the counsels for the parties, it appeared necessary to visit the disputed plots. The record of the visit was prepared and forms part of the proceedings. Three issues call for determination of this Court; these are: a) Who is the lawful owner of the disputed land allegedly located at Plots No. 45, 46, and 47 Block Ilala Boma and Plot No. 48 Block Y; b) Whether the Plaintiffs have encroached the boundaries ofproperty housing Ilala Boma Primary School; and c) To what reliefs are the parties entitled to. 2.0 Who is the lawful owner of the Disputed Land? The witnesses for the Plaintiffs maintained that they are entitled to ownership of the disputed land given the fact that the same was lawfully allocated to them in 1988 and no revocation of the same was made by the Defendants until when this dispute arose in 2016. PW1 testified that he is the Chairman of the 1st Plaintiff and a director of the 4th Plaintiff. He stated that the 1st Plaintiff was allocated Plot No 44 Block Y, Ilala and also Plot No. 45 Block Ilala Boma for the purposes of constructing a mosque. The 1st Plaintiff managed to get Plot No. 44 Block Y surveyed and a certificate of title No. 35854 issued to them in 1989. They could not develop Plot No. 45 because they failed to get a building permit and also were ordered to vacate it in 2016. PW1 further testified that they applied for the plots in 1987 and in august 1988, they were given letters of offers in respect of Plots No. 44 Block Y, 45,46,47 and 48 Block Ilala Boma. They continued to pay land rent up to 2015 although the Defendants failed to survey Plots 45,46,47 and 48 Block Ilala Boma, something that hindered them from developing the same. PW1 stated that the 2nd Plaintiff was allocated Plot No. 46 while Plot No. 47 was given to the 3rd Plaintiff. The 4th Plaintiff was allocated Plot No. 48. Plots 3 | Page 46, 47 and 48 were given for the purposes of constructing Offices. To support the claims, PW1 tendered Exhibits Pl which is a letter dated 3 June, 1987 addressed to Mkurugenzi wa Mipango Miji applying for a plot to build a Mosque and Madrassa; Exhibit P2, a letter from the Ministry of Lands, Natural Resources and Tourism agreeing to the request and providing them with requirements needed for grant of title to the plots; Exhibit P3, a letter from the Ministry informing the 1st Plaintiff to utilize Plot 45 for Mosque activities; Exhibit P4, a letter dated 11 January 1989 from Mkurugenzi wa Mipango Miji addressed to Director of Survey and Mapping on Plot No. 45 Ilala Bomani; Exhibit P5, a sketch Plan showing the disputed mosque and office areas; Exhibit P6 which is the Offer letter of Plot No. 45, Ilala Boma; Exhibit P7, an Offer letter for Plot No. 48 and Exhibit P8, Registered Plan for Muslim Primary School. PW2 and PW3 corroborated the evidence adduced by PW1. They tendered Exhibit PIO, an Offer letter for Plot No. 46 and Exhibit P12, an offer letter for Plot No. 47 respectively. The Defendants' evidence was generally that the Plots claimed by the Plaintiffs are non-existent. They tendered Survey Plan No. D' 763/5, which was registered as 14877 (Exhibit DI) to substantiate their claim. DW1 stated that the Plan was prepared in 1972 and its approval was in 1989. He vehemently disputed the Plaintiffs' claims about having plots at Block Ilala Boma. According to him, there is no block called "Ilala Boma" as all blocks are identified by a number, alphabet or just a dash. He further stated that the disputed area is part of Ilala Boma Primary School and that the school is 5.5 acres in size located in Block Y. On her part, DW2 likewise testified that 4 | Page the disputed land does not belong to the Plaintiffs as there is no record in the Commissioner for Lands7 office about ownership of Plots 45,46,47 and 48 Block Ilala Boma. That there is a record about Plot 48 Block Y, Ilala whose title was issued to Chama cha Waalimu Tanzania. She denied to know the authenticity of Exhibits P6, PIO and P12 (offers for disputed Plots) on the grounds that no such files are in the Commissioner for Lands Office. The testimony of DW3 was to the effect that although the receipts for rent payment and assessments attached to the letters of offer are alike those issued by the Ministry of Lands, he could not confirm that they actually came from the Ministry. He challenged their authenticity due to the fact that they refer to a Block that does not exist. Further, it was his testimony that it is possible for one plot to have multiple assessments or payments; thus, such receipts are not a proof that the plots in question legally exist. On cross examination, he stated that he did not examine the records himself, but was informed by colleagues that files for the suit plots do not exist. This Court decided to visit the locus in quo in order to satisfy itself on the land subject of the dispute as it had emerged that its actual size and location was blurred. The Court did so in line with the guidance provided by the Court of Appeal in Avith Thadeus Massawe Vs. Isdory Assenga, Civil Appeal No. 7 of 2017 (unreported) where it confirmed the position taken by the Nigerian High Court of the Federal Capital Territory in the Abuja Judicial Division in the case of Evelyn Even Gardens NIC LTD and the Hon. Minister, Federal Capita! Territory and Two Others, Suit No. FCT/HC/CV/1036/2014; Motion No. FCT/HC/CV/M/5468/2017 in which 5 | Page various factors to be considered before the courts decide to visit the locus in quo were set. The factors include: "1 . Courts should undertake a visit to the locus in quo where such a visit will dear the doubts as to the accuracy of a piece of evidence when such evidence is in conflict with another evidence (see Othinie! Sheke Vs. Victor Plankshak (2008) NSCQR Vol. 35, p. 56. 2. The essence of a visit to locus in quo in land matters includes location of the disputed land, the extent, boundaries and boundary neighbor, and physical features on the land (see Akosile Vs. Adeyeye (2011) 17 NWLR (Pt. 1276) p.263. 3. In a land dispute where it is manifest that there is a conflict in the survey plans and evidence of the parties as to the identity of the land in dispute, the only way to resolve the conflict is for the court to visit the locus in quo (see Ezemonye Okwara Vs. Dominic Okwara (1997) 11 NWLR (Pt. 527) p. 1601). 4. The purpose of a visit to locus in quo is to eliminate minor discrepancies as regards the physical condition of the land in dispute. It is not meant to afford a party an opportunity to make a different case from the one he led in support of his claims. "(Emphasis added). In the above cited case, the applicant was seeking the court and the parties in the suit to visit the locus in quo. In its ruling the Court relied on the decision in the case of Akosile Vs. Adeye (2011) 17 NWLR (Pt. 1276) p. 263 which summarized the above factors thus: "The essence ofa visit to locus in quo in land matters includes location of the disputed land, the extent, boundaries and boundary neighbour, and physical features on the land. The purpose is to enable the Court see objects and places referred to in evidence physically and to dear doubts arising from conflicting evidence if any about physical objects on the land and boundaries." In the visit, Mr. Andulnasser Mohammed (PW1) showed the area that he referred to as Plots 45,46, 47 and 48 Block Ilala Boma. The Court observed that in the said area, there are no permanent developments except in what 6 | Page he referred to as Plot No. 48 Block Ilala Boma. The area borders Ilala Boma Primary School and is inhabited by small traders, commonly known as Mama Ntilie. There are small and large vehicles and scrappers all over. A large building is in the disputed Plot No. 48 Block Ilala Boma, the building that has been in use as aa day care centre for a considerable time. According to PW1, this building structure was constructed during the late President Mkapa's era (1995-2005). Mr. Hassan Mohammed Mwaliko (DW1) showed the area with the help of the Survey Map dated 1989. He assisted in getting the size of the area, particularly the disputed Plot 48, which was found to be about 3234 square metres. According to him, that part now belong to Mkoani Primary School as the former Ilala Boma Primary School was divided to form two schools; namely, Boma Primary School and Mkoani Primary School. The dispute Plots 45, 46 and 47 Block Ilala Boma remain to be part of Boma Primary School. Having elucidated the evidence obtained from the witnesses, the exhibits and what was observed during the visit in the locus in quo, it behoves me to determine the issue of ownership of the disputed property. There is no dispute that the Plaintiffs applied and were granted offers for the disputed Property and Plot 44 Block Y Ilala. It is also not in dispute that after they were granted those offers, they managed to survey and got a certificate of title in respect of Plot No. 44 Block Y where a Mosque was later built. It is further noted from the evidence and the visit of the locus in quo that there is no dispute that Plot 48 Block Y was never granted to any of the Plaintiffs, it is currently occupied by Chama Cha Waalimu. What remains in dispute is 7 | Page whether the offers granted to the Plaintiffs still exist to entitle them the claims of ownership of the disputed plots. I should state apr/or/that there appear to have been errors from both sides. Whereas it may be true that the Plaintiffs were offered the disputed Plots, there is no evidence that the said offers were preceded by a Survey Plan which could identify the said plots with certainty. I agree with the Defendants' witnesses that there is no Block named "Ilala Boma" and what should have been inserted could either be a "dash" (where a Block does not exist) or a number/alphabet (in case a block exist). The Sketch Plan tendered by PW1 (exhibit P5) cannot under any stretch of imagination be considered to be the basis of the Plaintiff's claims as the same is not an authentic government Land Survey Plan/Map and looks to be a sketch. It also does not identify the areas by any numbers commensurate to what appears in the letters of offers (Exhibit P6, P7, PIO and P12). The Defendants tendered Exhibit DI which is a Survey Plan No. D' 763/4, registered as 14877 to substantiate their claims that the said plots do not exist in the area. According to the evidence available this Plan was prepared in 1969 and its. The Plan contains details akin to those in Exhibit P8 (registered Plan No. 16072) tendered by PW1 and which was approved in 1989. What that means is that the Plaintiffs were aware that their alleged Plots were not in any approved survey Plan since the year 1989 when Exhibit DI was approved. With the exceptions of the letters dated 1989 in exhibits P3 and P4 which referred to Block 45, there is no other communications from 8[Page the Plaintiffs to the Defendants on the fate of the said Plots. In their evidence, the Plaintiffs seem to suggest that there were such communications and that the defendants deliberately did not survey their Plots for the purposes of issuing them with title deeds and consequently authorising them to construct offices therein as per the authorised use plan. They back up this argument by receipts and assessment of rents attached to the letters of offer. They had actually paid up to 2015, a year before this dispute commenced. I have taken time to examine the assessments of rent and the receipts of payment relied upon by the Defendants to claim ownership, whereas I cannot conclusively discount their authenticity, I have noted that with the exception of the rent for 1988/89, the rest were being paid in arrears. The evidence of DW3 also suggest that anyone may pay for any plot, and a registered plot can be paid by more than one person on the same rent period. Thus, possession of receipts of payment alone is insufficient to prove that a person owns a particular plot of land. I have also noted that the Plaintiffs have not been keen in following up what they allege to be their rights over the suit property. This is exemplified by the fact that they did not take any actions against "encroachment" in the alleged Plot 48 Block Ilala Boma. PW1 confirmed that a building is in the said plot since Mkapa's era, 15 years or more. There is no evidence that he, or any of the Plaintiffs, took legal action to claim ownership of the said plot. Similarly, no developments were made to the disputed plots since they were allegedly granted to the Plaintiffs in 1988 to date. In the circumstances, it is the finding of this Court 9] Page that the 3rd Defendant, housing Ilala Boma Primary School, is the lawful owner of the disputed property. 3.0 Have the Plaintiffs encroached the boundaries of property housing Ilala Boma Primary School? After determining the issue of ownership of the disputed land, the next question to determine is whether the Plaintiffs have encroached the disputed land. During the visit at the locus in quo, the Court observed that the area had small traders utilizing it and there were movable structures (iron sheet and timber kiosks), used vehicles and scrappers scattered all over the place. The Plaintiffs asserted ownership of the same. In Court, it was the Plaintiffs' evidence that they filed this case upon receiving a notice from the 3rd Defendant ordering them to leave the area in March 2016. Further, the Defendants, through DW1, DW2 and DW3, categorically denied presence of the disputed plots and that there are no files of the disputed plots at the Commissioner for Lands Office. It has been noted that whereas the Plaintiffs occupation of the Plots was legal pursuant to the offers granted to them in 1988, their continued occupation after 1989, when the Survey Plan for the area was approved, was unlawful. From the said Survey Plan, the suit land was handed over to the then Ilala Boma Primary School. Consequently, their continued occupation or purported occupation of the suit land is nothing but trespass and an encroachment to the property belonging to the 3rd Defendant housing Ilala Boma Primary School. The second issue is therefore answered in the affirmative. io | P a g e 4.0 Conclusions and Reliefs Before dealing with the last issue on reliefs to the parties, I find it necessary to comment on a number of things that became apparent in the course of hearing of this dispute. One, Ilala Municipal Council appear to have been negligent in securing public properties, including land allocated to public institutions, in this case Ilala Boma Primary School. It is hard to fathom that there had been encroachment on the area for over 30 years. Witnesses for the Defendant were not even aware of the present occupier of the disputed Plot No. 48 Block Ilala Boma, despite the building being in use for over 15 year. That demonstrates high degree of negligence in the protection of public property. The fact that the Plaintiffs were allowed to pay rent which was assessed and the size thereof inserted up to the year 2014/2015 is another indicator of flaws in the land management systems. The Plaintiffs should not have been allowed to pay rent for non-existing plots. These flaws in the systems made the Plaintiffs to believe that they were entitled to ownership of the disputed plot. They should be refunded the amounts paid. That said, it is the finding of this Court that the Plaintiffs have not managed to prove their case on the balance of probability. The law is settled that a person who alleges must prove and the standard of proof in civil cases is on the balance of probabilities by weighing the weightier evidence. See Geita Gold Mining Ltd & Another Ite, Ignas Athanas, Civil Appeal No. 227 of 2017; Anthony M. Masanga Vs. Penina (Mama Mgesi) & Lucia (Mama Anna), Civil Appeal No. 118 of 2014 (both unreported). In this case, the Defendants' evidence appears weightier to that of the Plaintiffs. The first 11 | P a g e relief claimed by the Plaintiffs cannot be sustained as they are encroachers to the suit land. The evidence available does not also support their claims for general damages and the other reliefs. Consequently, the suit is dismissed for want of merits. Taking note of what I have explained in the preceding paragraph, the Defendants to refund the Plaintiffs money unlawfully received for non-existing plots. The same shall attract interest at the Bank of Tanzania rate. Considering the peculiarity of this case, I direct that each party bears their own costs. It is so ordered. 12 | P a g e