20171129 TZHC Mwanza

I ~:,~J ,',.,. ., " IN THE HIGH COURT OF TANZANIA '" ATMWANZA LAND CASE NO. 64 OF 2014 1. THOMAS JOSEPH NYANGULI (The administrator of the estate of JOSEPH THOMASl_ NYANGUU) · . · . . f 2. JOSEPH BROWN ..................................................... PLAINTiffS VERSUS MWANZA CITY COUNCIL. ........................................... DEFENDANT JUDGMENT 12/10/2017 & 24/11/2017 _Gwae, J One Joseph Nyanguli now deceased was sued by the defendant, Mwanza City Council before this court vide Land Case No. 32 of 2013 (PEl). The defendant in that former dispute claimed the following against the deceased; 1. A declaratory order that government quarter No. 15B Block '51' at Gulio Street in Mwanza originally owned by Tanzania Building Agency (TBA) and but later on was purchased by the deceased is on the road 2. Eviction order and de~olition order in ~E':ct of suit premises·~ 1 3. The defendant be ordered to collect the compensation computed by the plaintiff in the tune Tshs. 152, 220, 222.50/= in order to pave way for Medical Store Department (MSD) for Mwanza. All the above reliefs were accordingly granted by this court (Hon. Sumari, J) on 7/03/2014, therefore the former matter was decided in favour of the then plaintiff now defendant. On 25th November 2014 th~ deceased subsequently to the above decision of this court instituted this instant land dispute alleging that on 14th March 2014 the then plaintiff now defendant demolished the house located in Plot 15B Block "51" at Gulio (hereinafter to be referred to as the house) In this present land case, the deceased alleged that the defendant or his agent (s) assisted by police on the 14th day of March 2014 at abo"ut 03:00 hours demolished the house and damaged some valuable properties owned by himself and his tenant, Joseph William (2nd plaintiff) were damaged, that, before the demolition exercised the deceased and his family were falsely imprisoned. The plaintiffs further alleged that the defendant demolished the house without adhering to the necessary procedures. Following the death of the deceased, Joseph Thomas Nyanguli on ·1 st of April 2015, his son Thomas Joseph Nyanguli was on September 2016 appointed administrator of the estate of his late father and following the qrder of this court dated 3 rd October 2016,. the amended plaint was filed among other things inserting the names of the administrator. ~ 2 In his amended plaint the plaintiffs are found claiming against the defendant for the following reliefs; V a) That, the defendant be condemned to pay the 1st plaintiff specific damages of property valued at Tanzania Shillings one thirty one million three hundred thirty four thousand eight hundred shillings (Tshs. 130, 334, 800/=) b) That, the defendant be ordered to pay 1st plaintiff ten million shillings (10,000,000/=) for false imprisonment c) That, the defendant be ordered to pay the 1st plaintiff ten million (10, 000,000/=) for infliction of mental distress d) That, the defendant to pay the 2nd defendant specific damages of property destroyed valuated at Fourteen Million nine hundred twenty eight thousands shillings (14, 920, 000/ = ). e) That,. the defendant be ordered to pay the 2nd plaintiff ten million shillings (10, 000,000/ =) for mental distress. f) That, the defendant be ordered to pay to the plaintiffs' general damages to be assessed by this court. g) Costs of the case to follow the event h) Any other remedies that this court may deem fit to grant Issues framed immediately before to commencement of trial were as hereunder; 1. Whether defendant demolished the plaintiffs' house 2. Whether the defendant's agents destroyed the plaintiffs'~ properties, Ill/Iv 3 3. Whether the plaintiffs were imprisoned by the defendant or his agent. u 4. What are the reliefs are the parties entitled At the hearing of this suit, both plaintiffs were represented by Mr. Sayi, the learned advocate whilst the defendant had legal services from her employee, Mr. Masunga, the learned solicitor and advocate. Three witnesses for the plaintiffs' case were summoned and adduced evidence during trial and a total of four exhibits namely; a certified copy of judgment of this court dated 7 th March 2014 (PEl) and not 11 th March 2014 as wrongly indicated in the plaintiff' amended plaint, A list of allegedly damaged properties owned by the 1st plaintiff (PE2), .Demand Notice dated 16th April 2014 (PE3) and a list of properties allegedly damaged by the defendant and owned by the 2nd plaintiff (PE4), the list is comprised of 100 distinct items allegedly damaged by the defendant's employees. The plaintiffs' witnesses, PWl, Thomas Joseph testified that on the material date time and place while at his family house the defendant's employees, ambulance, moto~ vehicles (bulldozers) and police motor vehicles (four defenders) went thereat with a view to demolish the house. That before demolition, the family of the deceased and him were put under restraint, handcuffed and harassed by police. The PWlwent further adducing that the defendant's employees or agents then demolished the housed and thereby caused damages of the properties, domestic utensils, restaurant's utensils and properties owned by the tenant of his late father (2 nd plaintiff). The PWI also testified that his / ~ 4 late father who was by then seriously sick was kidnapped by defendant's militia men and later came to be known that he was taken to -Butimba- Nyamagana District Hospital where was not treated due to lack of his medical history by the Butimba Medical Practitioners regarding the deceased's illness. The PWl also told this court that the resultants' effect of the purported demolition caused them (plaintiffs) to sustain a loss following damages so caused to their properties worth more than Tshs. 130,000,000/ = and that all damaged properties were enlisted on the material date (PE2) and that after demolition statutory notice thirty days (PE3) was given to the defendant by the plaintiffs. This 1st plaintiff's case was also supported by a daughter of the deceased, Naomi Joseph (PW2) who mainly supported the testimony of the PW1 however she added that she was beaten when she attempted to resist the demolition. The last witness in support of the plaintiffs' claims was Joseph William, 2nd defendant who appeared as PW3 who testified that he is a technician by profession and he had been a tenant of the de~eased in the demolished house since 2009 to 2014 however when cross examined by the defendant's counsel on existence of his tenancy with the deceased he failed to produce any tenancy agreement. The PW3's testimony is further to the effect that he was informed of the demolition exercise by the PW2 and when he reached the locus in quo he found his properties missing ·from his room, he then produced a list of his properties which was admitted a n d ~ marked as 'PE4' dated 22 nd March 2014 with a total of 18 enlisted items alleged damaged. After closure of the plaintiffs' case, the defendant was able to summon his .solely witness one Abdillah Mbaka, a Gulio street chairperson ('DW1') who arrived at the locus in quo after having been phoned by the deceased's daughter, PW2 about demolition exercise carried out in the deceased's residential house. The DWl went further said that upon his arrival at the scene he was requested by police to request the house dwellers to remove their belongings out of the house and thereafter he joined the deceased's family to take out the properties which were in the house and then he enlisted all properties which were taken out before demolition. The list of the properties alleged rescued from being damaged was then produced and admitted as DE1. The DWl went testifying that when he was asked as to the one who took the lead to the demolition of the deceased's house he was told that it was Bank of Tanzania (BOT) adding that he was aware of existence of a dispute which was between the 1 st plaintiff and Tanzani 9 Building Agency (TBA} and the demolition exercised was peacefully conducted. This is what in a nut shell transpired during trial cif this particular land · dispute. Having given brief facts of the case and testimonies given by the parties' respective witnesses, I have come to observe that the following facts were not disputed, that the 1 st plaintiff and defendant had a dispute filed to this cOurt whose final verdict was entered on H' March 2014 h (PE1) and t h a t ~ 6 that the deceased's house was demolished on the material date and the same was after delivery of judgment of this court. In determining the above issues I should start with 1st issue, "whether he defendant demolished the house valuated -for compensation to the deceased in order to pave way for MSD". Both plaintiffs are seriously found stating that it was the defendant who manned or took lead to the demolition of the house in question. The witnesses, PWl and PW2 strongly told this court that it was the defendant's employees relied factors being the employees for instance one Tito (acting defendant's Director by then), one Makusudi, defendant's solicitor, ambulance with registration No. 'SM'. I wish to quote party of the PWl particularly when cross examined by the learned solkitor for the defendant "I did not manage to .identify the motor vehicle but the ambulance had a number "SM" meaning that it is Serikali ya Mitaa. I did not manage to identify those who came to our house and demolished. I was shocked by defendant's act. I was not treated despite the fact that I was assaulted .... I saw th_e legal solicitor, One Makusudi. I neither had grudges with street chairman nor police officers. I cannot · identify police officers who came to our house on the material date. I have not testified that I was falsely imprisoned. I have no photo of the scene at the moment. Looking at the testimony of the PWl as a whole and that of PW2 as well as the PEl, my simple analogy is that if the defendant did not demolish the house in question it must be his agent. In· the former case the defendant I~. 7 ' . stood on her own legs suing the 1st plaintiff for inter alia eviction and demolition order. lG) If not so, who else if not him or his agent or MSD whom she worked for that is conducting valuation for the Plot No. 15B and subsequently instituting a land case on his behalf for eviction and demolition. The defendant is certainly a prime suspect for the demolition. Proof in civil cases is on the preponderance of probabilities and not beyond reasonable as the case in the criminal cases In Siraj Din v. Ali Mohamed Khan [1957] 1 EA 25, "The quantum of proof ordinarily required in civil litigation is not such as resolves all doubt whatsoever but such as establishes a preponderance of probability in favour of one party or the other". See also Miller v Minister of Pensions (1947) 2 All ER 372 and Wilmett v. Harmer (1839), 173 E.R. 678). In our instant case, the plaintiffs' witnesses particularly, PW1 and PW2 had testified to have seen the ambulance and bulldozers with Reg. No.- "SM" connoting Serikali za Mitaa and some of employees of the defendant equally seen by the plaintiffs' witnesses. Standard of proof being that the plaintiffs in this suit must have satisfied this court that it is more probable that the ·defendant's employees or his any or any other person acting in his capacity had demolished the 1st plaintiff's residential house than not. According to the evidence on record I am fully satisfied that it more probable that defendant or his agent (s) is ~ 8 ' . the one who demolished the house immediately after seven (3) days from the date of delivery of this court judgment vide Land Case No. 32 of . 2013. The 1st issue also answers the 2 nd issue in that it is sufficiently established that it was th_e employees and or his agents (people militia men and police officers whose presence was vital for implementation of demolition and assurance of peace and tranquility. Regarding the 3 rd issue, 'whether the 1st plaintiffs were falsely imprisoned by the defendant or his agents'. It is the evidence by the PWl and PW2 that the 1st plaintiff was seen nowhere immediately after the demolition exercise had been completed till when it came into knowledge that he was taken from the demolished house and sent to Nyamagana District Hospital equally the PW1 was put under restraint so that the demolition would be · interfered . . However it is clear that the 2 nd plaintiff was not present during demotion and therefore he was not imprisoned unlike to what it is pleaded in the plaintiffs' amended plaint at paragraph 8 as I had an advantage of hearing the testimony given by the PW3 (2 nd plaintiff), part of· it is reproduced herein below for clarity "I did not personally see those who demolished my office as I was just told that it were the defendant's motor vehicles which ·demolished the house" It is also the position of the law that once a person dies his claim under law. of torts also abates. Saidi Kibwana and General Tyre E.A. ltd v. Rose Jumbe (1993) TLR 175, Court of Appeal of Tanzania held; . ~ 9 ,,: r The general rule is that all rights of action and all demands existing in favour of or against a person at the time of his death survive to or against his representatives, except those rights which are tied up with the individuality of the deceased which are caught up in the • maxim actio personalis moritur cum persona, i.e., a personal right of action dies with the person; A claim on false imprisonment is tortuous claim based on personality or individuality. It thus follows that the 1st plaintiff's claim on the false imprisonment had died with 1st plaintiff since 1st April 2015. The right to sue in this suit survived the death of the plaintiff and the legal representative but not on the issue of false imprisonment for reason ·aforestated. Equally, the PW1 who was evidently seen to have been put under police restraint i.s vividly not a party to the present suit but an administrator of the estate of the 1st plaintiff. He cannot therefore be entitled to any compensation on the false imprisonment tort. I say so for very obvious reason that reliefs grantable by courts of law are those pleaded by the parties themselves. In the 4 th issue on reliefs that the parties are entitled, having determined three issues as herein above, ·1 should now assess to what extent of reliefs in each item as per the plaintiffs' amended plaint (a) Specific damages in the tune of Tshs. 131, 334, 800/=on the <' allegedly damaged properties ·of the 1st plaintiff, both in the residential house and restaurant. ~ 10 ( .. There are three lists produced by the 1st plaintiff (PE2), 2nd plaintiff (PE4) and the one produced by the defendant, DW1, (DE1). However looking at the testimonies of the witnesses who testified during trial and the documents admitted in evidence, I am not convinced if the plaintiffs had been able to prove this type of claim as no document as to ownership of tenancy that were · produced. It must be borne in our minds that the specific damages must be specific pleaded as well as strictly proved. Court of Appeal at Mwanza in Masolele General Agencies v African Inland Church Tanzania (1994) TLR 192 stated inter alia when a claim for a specific item is made, that claim must be strictly proved, else there would be no difference between a specific damages and a general one; Moreover, the testimonies for the plaintiffs had also been tremendously challenged by the of defence witness who was their street chairperson and testified to the effect that the plaintiffs' properties were removed from the house and in fact he was the one who ordered by police to request his people to remove the properties, for sake of clarity, part of DW1 is hereby quoted; "l did not have any permit into the house of Nyanguli but we were together with the family including PW1. At the time when I arrived at the locus in quo I found the members of . family removing their belongings from the house whiie the PW1 was under restraint. I attended there at as justice i f ~ peace". ,..... V li I I have noted another anomaly that is the plaintiffs are saying that . . they had enlisted all properties damaged during the purported exercise, it is astonished to see some of enlisted properties in the PEl are said to have been taken out of the house before demolition by the DW1 vide DEl for example mattress, generator, two sets of coaches and related items. However on the other hand, I am made to believe that in the prevailing circumstances and since the plaintiffs were not • adequately notified of the intended demolition, som·e of properties must have been either stolen, damaged. Thus damages resulting from the demolition may awardable to restore the plaintiffs on the claim· on general damages and not specific damages (b) Not awarded as the 1st plaintiffs' claim on the false imprisonment abated upon his death since 1st April 2015 (c) & (e) on a claim of Tshs. 10, 000,000/= by each plaintiff. There is no evidence as to how the plaintiffs suffered mental distress to justify this court to grant _such relief particularly for the surviving plaintiff (2 nd defendant) nowhere the 2nd plaintiff testified that he suffered mental distress. (d) As to claim of Tshs, 14, 928, 000/= alleged being the value of the properties of the 2nd plaintiff allegedly damaged by the defendant as explained the in the item (a), the 2nd plaintiff has not even shown the tenancy necessary purchase receipt _and worse enough some properties which he alleges to have damaged o r ~ 12 I stolen or lost during demolition are said to have been safely . removed out by the DWI supported by DE1 for instance item 10- deep freezer vs. item 6 of PEl. (e} As dealt in item ( c) above (f) General damages in favour of the plaintiffs As the defendant did not give statutory notice to the plaintiffs to· vacate, including removing their properties therein, the plaintiffs must therefore have sustained inevitable damages awardable by this court following demolition of the house with statutory notice In Pazia Jaffer Ali vs. Ahmed Mohamed Ali Sewji and five others (2006) TLR 433, where the Court of Appeal with approval of foreign Judicial jurisprudence in Livingstone v Rawyards Cool Co. (1880) 5 APP Cas 25, 39 interpreted damage to be; "The sum of money which will put the party who has been injured or who has suffered in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation". Njoro Furniture Mart Ltd v Tanzania Electric Supply Co LTD (1995) TLR 205 (CA at Arusha) It is in the light of the above legal position that the plaintiffs should be entitled to general damages to the extent that they can be brought to the position immediately before the demolition knowingly that the compensation in regard the value· of the . . house st had been paid to the 1 plaintiff ~ 13 ~ f (g) Costs of this case. It is wise and just the defendant to pay the · ,. plaintiffs costs of this legal .proceeding - In the_ event, the plaintiffs' case is granted to the above extent in that the 1st plaintiff is granted eighteen million Shillings (Tshs. · is, 000, oooj =) · being general damages and 2nd plaintiff is awarded five million shillings only (Tshs. 5, 0000, 00_0/=) being .general damages. The plaintiffs shall also have their costs of this suit borne by the defendant It is so ordered. ·illi~-\ M.k. c1eA Judg 29/11/2017 Right of appeal for an aggrieved pa · · d =- . M. 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