the registered trustees of the evangelistic assemblies of god tanzania vs swale traders company limited 4 others 2022 tzhclandd 12708 8 december 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 133 OF 2021 BETWEEN THE REGISTERED TRUSTEES OF THE EVANGELISTIC ASSEMBLIES OF GOD TANZANIA...................................... PLAINTIFF VERSUS SWALE TRADERS COMPANY LIMITED...................... 1st DEFENDANT THE HONOURABLE ATTORNEY GENERAL................. 2nd DEFENDANT THE REGISTRAR OF TITLES..................................... 3rd DEFENDANT THE COMMISSIONER FOR LAND............................. 4th DEFENDANT TEMEKE MUNICIPAL COUNCIL................................ 5th DEFENDANT JUDGMENT Date of last Order: 30/11/2022 Date ofJudgment: 08/12/2022 A, MSAFIRI, J. The plaintiff herein above has lodged a suit against the named above five defendants. She claims that she is the owner of suit premises since the year 1974. That the suit premise was previously un-surveyed and currently i it is identified as Plot No. 141 Block D measuring 1.986 acres after the survey. The plaintiff claims that through the members of the local church known as the Evangelistic Assemblies of God Temeke(EAGT), she cleared the bush and had been in total occupation over the suit premises since then until on 02/2/2021 when the 1st defendant came into occupation of the suit premises after the District Commissioner ordered that the dispute property be handled to the 1st defendant. That, the plaintiff being a religious organization/institution is a legal custodian of all properties of all local churches that are operating under the denomination of the Evangelistic Assemblies of God Tanzania including the disciples who worship at Temeke Church who had been the beneficiary of the suit premises since the year 1974 to 1994 without being disturbed by any person or authority. The plaintiff hence prays for judgment and decree against the defendants as follows; 1. An order that the occupancy of the 1st defendant over a disputed premise is unlawful and unjustifiable. /V/ /. 2 2. A declaratory order that the plaintiff is entitled to be granted with a right of occupancy of a suit premise. 3. The 1st defendant to pay the plaintiff a total sum of Tshs. 50,000,000.00 being specific damages. 4. Payment of general damages to the plaintiff by the defendants at the tune to be assessed by this Honourable Court. 5. An order of demolition of the wall constructed on the suit premise by the 1st defendant. 6. An order for vacant possession of the suit property against the 1st defendant, his agents or representatives. 7. Costs of this suit to be borne by the defendants. 8. Any other reliefs. The 1st defendant filed her written statement of defence and vehemently denied the claims by the plaintiff. She stated that the plaintiff has never been the owner of the suit premises registered as Plot No. 141 Block D and that, the plaintiff could not have cleared the bush and occupied suit premise in 1974 as she was not yet incorporated and was inexistent. That the plaintiff was incorporated in 1991. The 1st defendant claimed to be in total occupation and control of suit premises since 1992. W/ L. 3 She prayed that the suit be dismissed with cost and for payment of general damages. The 2nd - 5th defendants also filed their joint written statement of defence and denied all claims by the plaintiff. They stated that the plaintiff has never been in possession of the disputed premise and to date the same is lawfully owned and occupied by the 1st defendant. They prayed that the suit be dismissed with costs, a declaratory order that the 1st defendant is the lawful owner of the disputed property, a declaratory order that the 1st defendant be entitled to quite enjoyment of the disputed property. The plaintiff was represented by Mr. Melchior Hurubano, learned advocate, Mr. Deniol Msemwa, learned advocate represented the 1st defendant and Ms. Jesca Shengena, Principal State Attorney and later Mr. Thomas Mahushi, State Attorney represented the 2nd - 5th defendants. A total of three issues were agreed for determination of this suit; 1. Whether the disputed premises was lawfully allocated to the 1st defendant. 2. Who between the plaintiff and the 1st defendant had a right to be allocated the disputed property? 4 3. To what reliefs are parties entitled to. In his claims, the plaintiff alleges that the occupancy of the 1st defendant over a disputed property is unlawful. PW1, one Christomoore Isack Ngoni, testified as witness of the plaintiff to support the allegations. He was the only witness for plaintiff. He stated that the Evangelistic Assemblies of God, Tanzania (EAGT) has been on the suit premises since 1975 and that the area was unoccupied and they used to farm there. That after that, the Church decided to request the ownership of suit premises. That they wrote an application letter to the Land Office, Temeke District in 1978 requesting to be allocated the suit premises. The said letter was admitted as Exhibit Pl. That, the Director of the City Council wrote to Planning Officer, Dar Es Salaam, admitting to receive the request letter and approving the request. The said letter was received as Exhibit P2. That after sometime, the Church wrote to the Minister for Land reminding of the request for allocation of suit premises. The reminder letter was tendered as Exhibit P4. PW1 stated that the Minister for Land agreed to the request and wrote to the Director of the City Council directing that the suit area be allocated to 5 the Church. He tendered the said letter as Exhibit P5. He said further that, the Town Planning Department wrote to the Church stating that the requested area has already been allocated to another institution. The said letter was admitted as Exhibit P7. PW1 testified further that, after that, the Church (plaintiff) complained to the Commissioner for Land who informed them that the area in dispute was allocated to the 1st defendant, Swale Traders. That the Commissioner for Land, however told them that, the 1st defendant was wrongly allocated the suit premises as she used fraudulent means. That, the Commissioner said that he is working on the matter, and that he has directed the Registrar of Titles to deregister the Certificate of Title which was issued to the 1st defendant. He produced a copy of the declaration of the Commissioner for Land on the suit premises. The declaration was admitted as Exhibit P8. PW1 told the Court that, in 1999 they received a letter from City Council estopping the 1st defendant from developing the suit premises. However in 2011, they received a letter from the Registrar of Titles informing them that the suit premises has been reinstated to the 1st defendant. The said letter from the Registrar of Titles was admitted as Exhibit P12. AflL 6 PW1 prayed to this Court to declare that the plaintiff is the one entitled to be allocated the suit premises. He also prayed for the Court to direct the 3rd and 4th defendants to revoke the Certificate of Title on suit premises which is held by the 1st defendant and that the same be issued to the plaintiff. On the defence, they claim that the 1st defendant is the lawful owner of the suit premises as it was granted the said land in 1992. DW1, Leonard Steven Swai was the first witness of the 1st defendant. He stated that he is a Director of Swale Traders Co. Ltd (1st defendant), since 1992. That, the claims by the plaintiff are not true because the suit property was allocated to the 1st defendant since 1992. He produced a Certificate of Title/Title Deed on the suit premises which was admitted as Exhibit DI. He said further that the 1st defendant got the suit plot after making an application, requesting to be allocated the suit plot. That, the request was made to the City Commission at the time and after making all requisite payments, the 1st defendant was issued with the Title Deed. AflL , 7 DW1 stated that, after grant of ownership, they built an office and a fenced wall to surround their area. He produced a building permit which was admitted as Exhibit D2. He also produced the receipts for land rent payments which were admitted collectively as Exhibit D3. He told the Court that the plaintiff could not have cleared the bush and occupied the suit premises since 1974 or requested for the same in 1978 as she claims because at that time the plaintiff was not in existence. PW1 stated further that, the 1st defendant made a search at the office of the Registrar of Trustees - RITA (Registration Insolvency and Trusteeship Agency) and was informed that the EAGT church was registered in 1991. So, it was not in existence in 1974 or 1978. He tendered the letter on registration which was admitted as exhibit D4. About the claims of fraud, DW1 stated that, the 1st defendant lodged a suit at the High Court objecting the fraudulency claims by the plaintiff. He produced an order of this Court in Civil Appeal No. 9 of 1996 which was admitted as Exhibit D5. The witness stated further that originally the complaint over the allocation of the suit premises was filed by CCM Temeke District Branch. The 8 complaint was directed to the Registrar of Titles over the allocation of the suit premises to the 1st defendant. CCM Temeke complained that, the 1st defendant obtained the suit premises by fraudulent means. Following the complaints, the Certificate of Title by the 1st defendant was revoked. However the 1st defendant appealed successfully to the High Court and the Certificate of Title was reinstated by Court's order. DW1 prayed for the Court to declare the 1st defendant as the lawful owner of the suit property. Having gone through the evidence presented by the plaintiff and the 1st defendant who are the contesting parties over the suit premises, I will now determine the issues which were framed at the beginning of the trial. While determining these issues, I will also look at the evidence presented by the 2nd - 5th defendant who, to my view, they were joined to this suit as necessary parties. I will start with the second issue which; who between the plaintiff and the 1st defendant had a right to be allocated the disputed pr°perty? yMA- 9 To my view, none of the parties between the plaintiff and 1st defendant has a rightful claim to be allocated the disputed property over the other. Each party having complied with the procedures for requesting an allocation of land to the land allocating authorities, has a right to be considered for the allocation of the same. My view is supported by the evidence of DW4, Grace Bruno Mathew, a Land Officer at Temeke Municipal Council. She testified that, she remembers that the 1st defendant was allocated the suit property in 1992. That there were other applicant requesting to be allocated the same property who by then were TAG (Tanzania Assemblies of God) but the allocating authority (Temeke Municipal Council) decided to allocate the property to the 1st defendant. DW4 stated further that the reason for that decision was that the planned use of suit property was for service trade and the 1st defendant requested the suit property for that use. However, TAG which is now EAG, requested the suit property for use of building nursery, extension of Church, building recreation park, etc. She said that, the use of requested land by the church was contrary to the planned use of the area which was for service trade. I? . io DW4 stated further that, another reason for not granting the suit property to the Church was that, the Church had no consent from the Administrator General to allow it to acquire land. Hence as per DW4, the plaintiff did not qualify to be granted the ownership of land in dispute. In the plaintiff's evidence which includes also the final submissions, the plaintiff claim that it is entitled to ownership of suit property. That from the year 1978, the plaintiff through one Pastor Calisti Masalu Dionisi, has applied for the disputed premises until 1992 when the same was granted unlawfully to the 1st defendant. That, for a total of 14 years, correspondences were going on between the 3rd, 4th and 5th defendants and the plaintiff, and the said defendants were promising the plaintiff that the disputed premises would be allocated to her. However, what is clear from the plaintiff's evidence is promises. The defendants have never granted the right of occupancy to the plaintiff, but there was promises to that. As gathered from the exhibits tendered by the plaintiff in Court i.e. Exhibits Pl - P12, there is no any evidence that the land allocating authorities allocated the suit premises or made an order to any authority to allocate the suit premises to the plaintiff. J J j ii The plaintiff through PW1 stated that the Ministers for Land by then made orders that the suit premises should be allocated to the plaintiff. The plaintiff based her claims on Exhibits P4 and P5. She claims that, in these letters the Ministers for Land by those time directed/ordered that the suit premises be allocated to the plaintiffs. Looking at Exhibit P4, it was a letter from Temeke Assemblies of God to Hon. Mustafa Nyang'anyi who was at that time the Minister for Land. It is dated 13/10/1981. In the letter, the Minister responded thus; "Sioni sababu kwa nini ombi hili iisiheshimiwe ikiwa nia ni kuwaendeieza waumini. Tafadhali wasaidieni". Exhibit P5 is a letter from the Minister for Land at that time Hon. M.B. Komanya. It is dated 11/11/1992. In the letter, the then Minister is insisting that the disciples of EAGT, Temeke be allocated the suit premises as they have been requesting for the same for a long time now. "Ningependa kusisitiza sasa kwamba waumini hao wa Evangelistic Assemblies of God Temeke Ju! / 12 wapewe sehemu hiyo kwa kuwa walishaomba tangu zamanisna (1978)..." Looking at these letters, there was no orders issued by the two Ministers for Land but, the Ministers were asking/advising the allocating authorities to consider the fact that the Church (EAGT) has requested the suit premises for a long time and should be considered and be granted the suit premises. The Ministers are not the allocating authority that is why they could not issue a direct order that the land in dispute be allocated to the plaintiff but they kept advising/asking the allocating authority to grant the land in dispute to the plaintiff. It is my view that the land allocating authorities were not compelled to grant the land in dispute to the plaintiff simply because they have requested earlier than the 1st defendant. As I have said earlier, the allocating authority looks on whether the one requesting the land had complied with procedures. Furthermore, it is not mandatory that whoever request for a particular land should be granted the same. More than one person may request for allocation of particular land and the same can be allocated to a different person. JL/ / 13 About the claim by the plaintiff in the plaint that she had been in total occupation since way back, that claim was not proved. The plaintiff herself through the evidence of PW1 has stated that the land was unoccupied and they used to farm there. So, since the land was unoccupied, that is why they had to make an application to the authorities, seeking to be granted the land. The fact that they have been farming on the land does not give them right to that land more than other applicants. Hence, as said earlier, to answer the second issue, none of the parties between the plaintiff and 1st defendant had right more than the other to be allocated the suit premises. It all depends on whether the requesting party has fulfilled the required procedures and even if they have fulfilled the same, it is still the discretion of the allocating authority to grant or not to grant. The allocating authority was not satisfied with the requests by the plaintiff hence they did not allocate the suit land to them. The allocating authority are not bound by any law that they have to grant every request for land ownership. The first issue is whether the disputed premises was lawfully allocated to the 1st defendant? A/*/ L 14 In her evidence, the plaintiff claims that, she had applied to be allocated the disputed premises for a total of 14 years from 1978, and surprisingly, in 1992, she was informed that the 1st defendant has been granted the same. That, the 1st defendant was unlawfully granted the suit property. PW1 in his evidence stated that having been informed that the suit property was allocated to the 1st defendant, they went to see the Commissioner for Land who admitted that the suit land was allocated to the 1st defendant but said that the 1st defendant got the area by fraud means. That, the Commissioner for Land made a declaration under section 99 of the Land Act, Cap. 334 that there was fraud in acquiring the suit plot and applied to the Registrar of Titles to deregister the name of the 1st defendant from the Land Register. PW1 produced a photocopy of the said Declaration of the Commissioner for Land which was admitted as Exhibit P8. PW1 said further that in 2011, the Registrar of Titles wrote them a letter informing them that the name of the 1st defendant has been reinstated again in the Register and the 1st defendant has been reissued with a 15 Certificate of Title. The letter from Registrar of Titles was admitted as Exhibit P12. In his defence, the 1st defendant through DW1 stated that 1st defendant was granted the suit property lawfully after making an application to the City Commission and after making requisite/ necessary payments, it was issued with a Certificate of Title. DW1 denied vehemently the claims that the said Certificate was obtained fraudulently. DW1 testified that, the 1st defendant lodged an appeal in this Court, against the decision of the Registrar of Titles objecting the claims that the ownership was obtained by fraudulent means. That the appeal was allowed and by Court Order, the Title was reinstated. DW1 tendered the purported Court order which was admitted as Exhibit D5. He said that their Title of ownership which was deregistered, was reinstated by the Court's Order. In determination of the hereinabove issue, I will look at the two important questions which were raised by the plaintiff during the trial. First is when did the 1st defendant applied for the allocation of land in dispute and 16 second on the genuineness of Order of this Court in Misc. Civil Appeal No. 9 of 1996, which was tendered as Exhibit D5. The plaintiff in his evidence and in the final submissions raised the question of the time of application for allocation of the land in dispute by the 1st defendant. DW1 stated that the plot was allocated to 1st defendant in 1992. This was also supported by Exhibit DI, the Certificate of Title which shows that the same was issued to the 1st defendant in 1992. However, in his main evidence, DW1 did not state when did the 1st defendant made an application requesting to be allocated the suit land. In cross examination, DW1 was asked by the counsel for the plaintiff when did 1st defendant made an application for the acquiescence of the land in dispute. DW1 responded that, they applied for the same from 1990 and received a Title in 1992. He stated further that the 1st defendant which is a Company, started in 1992. DW1 was asked on how the 1st defendant made an application for land in 1990 while it was not yet in existence, DW1 responded that the company 17 was registered in 1992 but, then, the Directors of the Company started requesting for land in dispute in 1990 using the name of the Company. In the same breath, DW4, a Land Officer from Temeke Municipal Council testified that the land in dispute was lawfully allocated to the 1st defendant. The question of the time on when the 1st defendant made an application to be allocated the land in dispute was never pleaded in the Plaint but was raised during cross examination. It is a rule of law and practice that the claims by the parties should be pleaded in their pleadings. Nevertheless, the 1st defendant's witness DW1 stated that they started the process of application in 1990 as Directors while processing for registration of their Company. Section 19(1) of the Land Act, Cap 113 provides for who is eligible to be allocated land in Tanzania. It provides thus; "19(1) The rights to occupy land which a citizen, a group of two or more citizens whether formed together in an association under this Act or any other law or not, a partnership or a corporate body in this Act called - 18 "right holders"may enjoy under this Act are hereby declared to be, a) granted right of occupancy b) a right derivative of a granted right of occupancy..." (emphasis added) Under this provision of the Land Act which is appliable in land matters in Tanzania, any citizen including a group of two or more citizens whether under association or not may enjoy a right to occupy land. Hence, the act of the Directors of the 1st defendant to make application for allocation of suit land in 1990 was not unlawful. The process of granting the suit land went on up to 1992 and by that time, the 1st defendant was already registered as a company. DW4 who is an officer from allocating authority stated that the allocating authorities were satisfied that the 1st defendant met all the requirements for applying and being allocated the land that is the reason the suit land was allocated to the 1st defendant and the certificate of ownership on the suit land was issued to the 1st defendant. Second, there is a question of order of the Court in Misc. Civil Appeal No. 9 of 1996 (Exhibit D5). In her plaint at paragraph 21, the plaintiff 19 contended that, the Commissioner for Land on 1st November 1995 made a declaration to rectify Title No. 40489 by deleting the name of the 1st defendant after it was proved that one Leonard Swai had obtained the Title after having cheated to the relevant authorities. However, it is in the evidence that 1st defendant appealed successfully to the High Court against the decision of the Registrar of Titles to deregister her name and the name was reinstated. The plaintiff in the evidence particularly in the final submissions has raised doubt on the validity and genuineness of Exhibit D5 which is the Court's Order in Misc. Civil Appeal No. 9 of 1996 instituted by Swale Traders Co. Ltd vs. The Registrar of Titles, whereby the appeal was allowed. The plaintiff alleged that the Court Order was not accompanied by the judgment and it is not signed by the Hon. Appellate Judge. Also, the appeal was not accompanied by the decision of the Registrar of Titles which was appealed against. That, the 1st defendant has not produced such a decision of Registrar which was annexed to the petition of appeal. The plaintiff went on to claim in his final submission that the 1st defendant could easily present a false Order of the Court to the Registrar of Titles. -/MJ a. 20 I find the claims of the plaintiff to be baseless and merely on assumptions. Furthermore, these assumptions of the plaintiff were not pleaded in the plaint as per the requirement of Order VI Rule 4 of the Civil Procedure Code Cap 33 R.E 2019 which provides that; "In all cases In which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence and in all other cases in which particulars may be necessary to substantiate any allegation, such particularly shall be stated in the pleading." In the present case, as already stated, the issue of genuineness or validity of the Order of the Court in Civil Appeal No. 9 of 1996 has mostly been raised during cross examination and final submission by the plaintiff. Hence these claims are hereby disregarded. In addition, it is the duty of the plaintiff to prove her case on the balance of probabilities. Sections 110, 111 and 112 of the Evidence Act Cap. 6 R.E 2019 provides that he who alleges must prove. The plaintiff have a burden to prove her claims and cannot shift the burden to the 1st defendant. Since the plaintiff question the validity or genuineness of Exhibit D5 then the onus was on her to prove her claims 21 which she did not. The plaintiff's claims as already found, are based on mere assumptions which cannot be relied upon by this Court. By the evidence available particularly from the 1st defendant (DW1) and the Land Officer of the 5th defendant (DW4), the allocation of suit property to the 1st defendant was lawful. There was no dispute that at one time, the 1st defendant's right of ownership of the suit property was revoked/rectified when the Registrar of Titles by the application from Commissioner for Land, deleted the name of 1st defendant from the Register and the ownership of the property was returned to His Excellency the President of the United Republic. However, after appealing successfully against the said decision, the 1st defendant's name was reinstated and Certificate of Title was granted back to her. Whether this Court's Order (Exhibit D5) was genuine or not, it was the duty of the plaintiff to prove his claims. Furthermore, the fact that the Court's Order in Misc. Civil Appeal No. 9 of 1996 was not accompanied by its judgment does not invalidate the said order. Before this Court is not a review of Misc. Civil Appeal No. 9 of 1996 22 which was decided by this Court (High Court Dar es Salaam Registry), but is a different land case to determine on ownership of suit land. It was not stated in this Court whether the Registrar of Titles who was party to the said Misc. Civil Appeal No. 9 of 1996 has ever appealed against the said decision or order. The plaintiff if she believes she had an interest on the said matter, then she could have taken a proper legal procedures by then rather than trying to get this Court to review the purported clerical errors and other discrepancies and omissions of the said Court's order as they were pointed out by the plaintiff. According to DW4, after receiving the Court's Order (in Misc. Civil Appeal No. 9. Of 1996), the Registrar of Titles complied and reinstated the name of the 1st defendant. Having reasoned as above, it is my finding that the disputed premises was lawfully allocated to the 1st defendant. Hence, the first issue is answered in affirmative. The third issue is to what reliefs are parties entitled to. The plaintiff was not entitled more than the other party to be allocated the 23 disputed property and allocation of the same to the 1st defendant was lawful. Basing on these findings, it is clear that the plaintiff is not entitled to any reliefs claimed in her plaint. The defendants has prayed for the suit to be dismissed with costs. The 2nd, 3rd, 4th and 5th defendants has gone further to pray for the Declaratory Order that the 1st defendant is the lawful owner of the disputed property and a declaratory Order that the 1st defendant be entitled to quite enjoyment of the disputed property. However, I hesitated to grant these prayers for the reasons that, first they were not prayed/pleaded by the 1st defendant herself, and second, there was no counterclaim filed by the defendants which could have given them the right to claim for the said reliefs. Hence, I hereby dismiss the entire suit with costs. Right of Appeal explained. 24