VEDASTUS LUKAGO JUDGMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MWANZA AT MWANZA LAND CASE NO. 05 OF 2023 VEDASTUS LUKAGO……….…........................................................1ST PLAINTIFF DAVID MASABA……………………………………………………………..2ND PLAINTIFF VERSUS CHINA CIVIL ENGINEERING CONSTRUCTION CORPORATION.1ST DEFENDANT TANZANIA RAILWAYS CORPORATION…………………............…2ND DEFENDANT ATTORNEY GENERAL.....................….......................................3RD DEFENDANT MWANZA CITY COUNCIL…………………………………………...NECESSARY PARTY JUDGMENT 25st May &22nd July 2024 CHUMA, J. In this suit Mr. Vedastus Lukago and David Masaba (hereinafter referred 1st and 2nd Plaintiffs) respectively knocked on the doors of this Court tracking down a package of reliefs against, China Civil Engineering Construction Corporation, Tanzania Railways Corporation, Attorney General (hereinafter referred to 1st, 2nd and 3rd Defendants), Mwanza City Council as a necessary party, praying for judgment and decree as follows: pg. 1 a) Declaration that the first and second defendants are trespassers on Plot Number 23/1 Mkuyuni Industrial Area and Plot Number 22/1 Mkuyuni Industrial Area, b) Declaration that the first and second defendants are continuing to trespass on Plot Number 23/1 Mkuyuni Industrial Area and Plot Number 22/1 Mkuyuni Industrial Area, c) order against the first and second defendants jointly and severally for payment of a total sum of Tanzanian Shillings Two Billion ( Tshs 2,000,000,000/= being general damages for trespass to the plaintiffs’ respective pieces of land mentioned in the amended plaint d) the defendants jointly and severally be ordered to pay interest on the decretal sum at the court’s rate from the date of judgment until the date of payment in full e) An order for restoration of the plaintiffs’ pieces of land in its previous arable and vegetative state as it was before the trespass, f) the plaintiffs also claim vacant possession of their respective pieces of land, pg. 2 g) eviction of the first and second defendants from the plaintiffs’ pieces of land, h) an order for a permanent injunction against the first and second defendants, their agents, workmen, and any other entity deriving title or interest from the first and second defendant from entering into or in any way dealing with the plaintiffs’ pieces of land, i) costs of the suit and j) any other reliefs as this Court will deem necessary to grant. The historical background of this suit albeit brief is not difficult to comprehend. Thus, the plaintiffs assert being the rightful owner of Plot No. 23/1 and No. 22/1 Mkuyuni Industrial Area respectively (hereinafter the suit lands) and that their land has been trespassed by the 1st and 2nd defendants. The facts further allege that, while in their peaceful occupation of the suit lands, on 4th July 2022, they visited the same and found it fully occupied by the 1st defendant. The latter was found to have fenced the suit lands, erected dwelling houses, and placed heavy construction machines/equipment thereat without the plaintiffs’ permission. That, upon inquiry they learnt that the 1st defendant is constructing 341 Kilometers Standard Gauge Railway pg. 3 project (lot 5 Isaka-Mwanza) which is owned by the United Republic of Tanzania under the supervision of the 2nd Defendant. On the 25th Day of July 2022, the plaintiffs received a letter from the necessary party ordering them to hand over their original Certificate of Titles over the suit lands for the reason that their lands are covered by the project. They were not consulted by the 1st and 2nd defendants prior to the use of their lands for the project. The defendants and necessary party denied the facts on the plaint in their written statement of defence. In this case, the Plaintiffs enjoyed the legal service from Mr. Geofrey Kange, a learned advocate whereas the first Defendant had the legal service of Mr. Akida Majenga also a learned advocate. Ms. Sabina Yongo, Ms. Maria Matata, and Mr.Masawe both learned State Attorneys appeared for 2nd, and 3rd Defendant and the necessary party. In their efforts to prove the case on the standard required in civil litigations, the Plaintiffs testified themselves Vedastus Lukago, (PW1), and David Masaba (PW2) who tendered a total of ten (10) documentary exhibits, Certificate of the title of Plot No 23/1 Mkuyuni Industrial area, letter dated 11/08/2022, letter dated 16/12/2022, letter dated 29/08/2022, letter dated pg. 4 3/11/2022, Title Deed of Plot No 22/1, letter dated 29/8/2022, letter dated 25/04/2022, letter dated 11/8/2022, letter dated 16/12/2022, both admitted as Exhibits PE1, PE2, PE3, PE4, PE5, PE6, PE7, PE8, PE9, and PE10 respectively. On the other hand, the defendants managed to summon four witnesses, Gasper Andrew (DW1), Pendo Samson Lukindo (DW2), Sufian Peter Stanislaus (DW3) and Judas Thadeus Mahuma testified (DW4). A total of four (4) documentary exhibits were tendered namely a letter dated 21/4/2022, Valuation Report, two letters from Mwanza City Council to Vedastus Lukago and David Masaba, two letters from Vedastus Lukago and David Masaba dated 28/8/2015, Two letters from Mwanza Council to David Masaba and Vedastus Lukago, both admitted as Exhibit DE1, DE2, DE3, DE4 and DE5 respectively. The plaintiffs’ case commenced with PW1, Vedastus Lukago, the first plaintiff who testified himself as the owner of Plot No. 23/1 Mkuyuni Industrial area. He has the title of that Plot for 33 years (exhibit PE1). That, his plot has been invaded by the first defendant who has built a yard and placed heavy construction machines for the Standard Gauge Railway Project (SGR) thereat. That, according to the first defendant, the plot was given to pg. 5 them by the 2nd defendant. He tried to consult the Railways authority via mobile phone and then sent a letter to Mwanza City Council (exhibit PE2). He once received a letter from Mwanza City Council requiring him to pay land rent but later on he was ordered to remit back his certificate of title within seven days for want of the standard gauge railways project. That, he was entitled to be compensated. That, by a letter dated 16/12/2022 (exhibit PE3) he was recognized by the necessary party as a rightful owner. Despite the latter’s claim of land rent his title over the plot was not legally affected. That, according to the necessary party, compensation ought to be paid by the 2nd defendant but he has never received any amount as compensation. He wrote a letter to the 2nd defendant (exhibit PE4) who never replied. He informed the 1st defendant of trespass on 3rd November 2022 (exhibit PE5) but the latter never replied as a result opted to file this case against the defendants asking for compensation. He prayed for this court to declare him as the owner of his respective claimed plot eviction of the first defendant in his plot and pay compensation of Tshs. 2 Billion together with the cost of the case. PW2, David Masaba the 2nd plaintiff testified that he owns plot No. 22/1 Mkuyuni Industrial area. And that he has had a title deed for 33 years since pg. 6 2012 (exhibit PE6). That his plot is now occupied by the 1st defendant. He communicated to the 1st defendant via letter dated 29th August 2022 (exhibit PE7) which was never replied to. That he once received a letter from the necessary party dated 25/04/2022 (exhibit PE8) and replied with a letter dated 11/08/2022 (exhibit PE9). That, he also received a letter from the necessary party dated 16/12/2022 (exhibit PE10) which recognized his ownership of the plot. He was never paid anything as compensation in that plot and he did not remit or surrender the title deed because he is still a rightful owner of that plot. He prayed to be declared a rightful owner of plot No. 22/1 Mkuyuni area, eviction of the 1st defendant, cost of the suit, and general damages. On his side DW1, Gasper Andrew, a Public Relations Officer of the 1st defendant, stated that on 21/04/2022 they received a letter from the 2nd defendant handing over a site for construction. The handing over was done via a letter dated 21 April 2022 (exhibit DE1). The 2nd defendant informed them that the land of about 357 km is ready for use. They were affected by the dispute over the land allocated for such a project. DW2, Pendo Samson Lukindo, senior valuation officer at the Ministry of Land under Government Chief Valuer had this to say, that she was pg. 7 involved in the valuation of suit lands in March and April 2022. After receiving a letter from the 2nd defendant. They identified and conducted valuation for each person there as identified to them by their leaders. That, a valuation report (exhibit DE2) was handed over to the 2nd defendant. That, the value of the area thereat plus all costs worth about Tsh 468,880,000/=. DW3, Sufian Peter, street chairman, Tambuka Reli testified that he remembers to have received direction from the 2nd defendant about valuation and compensation in that area. That, his task was to introduce his people around the area for valuation. He had known those people for about ten years. Prior to the area being occupied for the project it was occupied by the people who were dealing with farming activities but also, they used that very area for residence. DW4, Judas Thadeus Mahuma a land officer, testified that he is an employee of Mwanza Municipal Council. His duties are inter-alia to keep a record of titles. That, a lawful title is what is free from any dispute between the intended owner and other people. The plaintiffs have no right to claim the disputed area for want of some conditions which they have failed to meet. He remembers to have reminded the plaintiffs to settle the dispute between them and the prior owner in respect of compensation via letters pg. 8 (exhibits DE3 collectively). That the plaintiffs replied by letters (exhibit DE4 collectively). That, despite their promise to compensate the prior/original owners of those plots but they never honored their promise by compensating them as promised. Following their noncompliance, they reminded them via letters (Exhibit DE5 collectively) and demanded them to remit back title deeds within 7 days. He prayed for the case to be dismissed with cost. I have with keen interest considered the evidence adduced by both parties and to a great extent the reasoned final submissions of the learned counsels for the 1st and 2nd Plaintiffs and the learned State Attorneys for 1st, 2nd Defendants and necessary party. I understand that closing submissions are not matters of evidence and in either way can not bind the court in making its decision. However, closing submissions may be important in assisting the court in broadening the court’s mind in reaching its final decision. Before dwelling on determining the framed issues by the court it is not irrelevant to state the well-known position of law that, whoever alleges a fact must prove on the balance of probability. This position was emphasized in a number of cases including the case of Attorney General & Two Others Versus Eligi Edward Massawe and 104 Others, Civil Appeal No. pg. 9 86 of 2002, and the case of Walfong Dourado Vs Tito Da Costa ZNZ Civil Appeal No 102 of 2002 where the Court held that whoever alleges a fact, unless it is unequivocally admitted by the adversary, he has to prove it albeit, on the balance of probability. In this suit then the plaintiffs are duty- bound to establish their claims on the balance of probabilities. In this suit the framed issues on 19th day of October 2023 for determination by this court are as here under; 1. Whether or not the plaintiffs are the lawful occupier of plots No. 23/1 and 22/1 Mkuyuni Industrial Area respectively; 2. If the 1st issue above is determined in affirmative, whether the 1st and 2nd defendants are trespassers on the said plots; and 3. To what reliefs are parties entitled? The first issue for determination is whether the first and second Plaintiffs are lawful owners of the disputed land Plot 22/1 and 23/1 Mkuyuni Industrial Area respectively. However, from the evidence on record, parties are at once on some piece of facts and evidence as follows: One, the Plaintiffs were issued Certificates of Titles on plots No 23/1 and 22/1 Mkuyuni Industrial area from 2012 for the duration of 33 years as evidenced by exhibits PE1, PE6, PE3, and PE10. Second before the grant to pg. 10 the Plaintiffs effected by the Commissioner for land, there were original owners who owned the said disputed land. Third the Plaintiffs are in breach of the conditions of rights of Occupancy on the plots in question for failure to pay rents and made no exhaustive improvement on the suit land as required by the law as evidenced by Exhibits PE3 and Exhibit PE8. Fourth the Plaintiffs were ordered by Mwanza City Council (necessary party) to surrender the Certificates of Titles granted by the Commissioner of Land on plots in question paving the way for construction of the Standard Gauge Railway (SGR) as evidenced by Exhibit PE8. Fifth the Plaintiffs did not surrender their Certificate of Titles issued by Commissioner for Land as ordered by Mwanza City Council. The matters which are in controversy as far as the first issue is concerned are as follows: First whether the condition to compensate the original owners by Plaintiffs featured in Exhibit PE1 and PE6. Second, whether failure by the Plaintiffs to effect compensation to the original owners extinguishes the right of titles to the Plaintiffs. Third, whether the breach of condition of the right of occupancy (failure to pay rent and development in those plots) extinguishes the Plaintiffs to have a good title over the plots in dispute. pg. 11 According to the plaintiff, they are still recognized as lawful owners of the suit lands and the same is recognized by the necessary party. During cross-examination the 1st plaintiff testified to have paid rent once, to have failed to meet conditions stipulated in the certificate of occupancy regarding developing the land, and that he promised to pay the original owners of the land but failed. The 2nd defendant when cross-examined - responded that he paid rent once in 2012, and never complied with conditions of developing the land due to financial constraints, but denied promising to pay the previous occupier though is aware that the plots were owned by the original owners. As I have stated herein above they admitted to have not paid the original owners of the suit lands. The plaintiffs were required on 15/5/2015 by exhibit DW3 regarding claims by original owners and the former was required to visit the offices of the necessary parties for valuation processes in order to pay compensation to those original owners. By exhibit DW4 the plaintiffs on 28/8/2015 wrote to the necessary party requesting valuation as they are ready to pay compensation. By exhibits PW3 and P10 the plaintiffs were again inter alia informed by the necessary party that they have failed to pay pg. 12 compensation to the original owner’s paragraph 6 of exhibits P3 and P10 reads; “pamoja na kuandaliwa miliki mpya ya kiwanja hiki bado uliendelea kukitelekeza kiwanja hiki na hukukomesha milki ya asili iliyobaki kwa kulipa fidia mpaka sasa” Having considered the above evidence, it is my considered view that the plaintiffs were ready to pay compensation to the original owners. They requested for valuation to be made for the purpose while responding to exhibit DW3. The records are silent as to whether the necessary party conducted the requested valuation. What followed was a notice of failure to pay compensation (exhibit P3 and P10) and an order for a return of the original certificate of titles. During cross-examination, DW4 admitted a fact that exhibit DE4 has a prayer for valuation in the suit lands. Be that as it may, going through the testimonies made by PW1, PW2 DW4, and Exhibit PE1 and PE6, nothing suggests the existence of condition to those two certificates of Titles commanding the Plaintiffs to effect the compensation to the original owners. Being cross-examined by the Plaintiffs’ advocate, the DW4 Land Officer stationed at the office of the Necessary party admitted that the condition to effect compensation by the Plaintiffs to the original owners did not feature in Exhibit PE1 and PE6.In other words, pg. 13 one may hardly say that the issue of compensation is not among the conditions prescribed in the title deeds issued to the plaintiffs requiring them to comply. Despite their willingness and redness to pay compensation subject to valuation by the necessary part, such an arrangement was made outside the prescribed procedures. If I may go further what comes first, is it the grant of titles before compensating original owners or compensation first before issuing titles? How can one be granted titles on the area occupied by another person without first compensating the original ones? It is not easy for a prudent person to believe so rather it can be treated as an afterthought idea. It goes without saying therefore that the Plaintiffs were not dictated to effect the compensation to the original owners hence their titles cannot be extinguished for failure to compensate the original owners. As regards whether the failure by Plaintiffs to pay rent as among the conditions for the right of occupancy can extinguish their good titles to own the plots in dispute. The provision of Section 22 (1) (b) of the Land Act Cap 4 of 1999 offers that the granted right of occupancy is subject to the prescribed condition including payment of annual rent as required under Section 33 of the Land Act. However, the provision of Section 45 of the Land Act provides for consequences for breach of condition for grant of a right of occupancy that is revocation of occupancy. The evidence on record pg. 14 adduced by DW4 was that the Plaintiffs did not pay rent and made unexhausted improvements to the disputed plots hence they were ordered to surrender the Certificate of Titles. The evidence does not reflect on whether procedures for revocation of titles as per sections 45 and 51 of the Land Act were followed by the relevant authority. Therefore, irrespective of noncompliance to conditions as agreed by both parties, the certificate of occupancy held by the plaintiffs was not legally revoked. In the case of Mwinyihatibu Jumaa Hatibu vs. Ridhiwani Jumaa Hatibu, Civil Appeal Number 70 of 2020 (unreported) the court held on page 13 that; “We begin by acknowledging the settled position of the law that, unless established to the contrary, when the question as to who is the rightful owner of land, the certificate of title is vital and conclusive evidence to prove ownership”. In the event since the plaintiffs still own the title deeds, I have no justification to fault their ownership of the suit lands in plots for want of credible and tangible evidence. The 1st issue therefore answered in the affirmative that the first and second Plaintiff are lawful owners of the disputed land plot No 22/1 and 23/1 Mkuyuni Industrial Area. pg. 15 The second issue is whether the first and second Defendants are the trespassers to the disputed plots. The issue cannot take much time and energy as the same is narrow to be resolved. PW1 testified that 1st defendant invaded his plot by building a yard and constructing a heavy machine being there for the standard gauge Railway project. The witness went on to say that the 1st Defendant acted under the supervision and instruction of the 2nd Defendant and the necessary party. PW1 testified that he was not paid compensation before the intrusion of his land. PW2 testified that his plot was intruded on by the 1st defendant under the instruction of the 2nd Defendant. He went on to say that following the said intrusion he communicated with 1st defendant evidenced by Exhibit PE5 and claimed vacant possession. He also claimed compensation as per Exhibits PE4 and PE7. The evidence of DW1, DW2, DW3, and DW4 support the Plaintiff's case that the areas were occupied by SGR construction supported by the contents of DE1. When cross-examined DW2 responded that plots no 23/1 and 22/1 do not appear in the valuation. The evidence drives this court to question why the plaintiffs were not involved in the valuation process leading to compensation alleged to have been done in the disputed area. In other words, what was the status of the plaintiffs at the time of the compensation process to the alleged original owners, bearing in pg. 16 mind that by then the plaintiffs were ready issued with the certificate of titles? Those questions remain unanswered. Having gone through the evidence on record, the Defendants have not produced any documentary evidence showing they had a title deed when they intruded on the plots in dispute. It is settled law that one of the defences against an action for trespass is the claim by the Defendant that he had a right to the possession of the land at the time alleged trespass or that he acted under the authority of some person having such right. See the decision of the Court of Appeal of Tanzania in the case of Jera Kalinga Vs Omary Karumwana (1991) TLR 67. It is without doubt if one weights the position of the Defendants and necessary party vis as vis that of the Plaintiffs’ who in the eyes of the law have good titles which have not been revoked by an authority with the mandate to exercise such right, the Plaintiffs have a good title. This takes me to what is meant by the term trespass as an interference with the possession of land without lawful justification. The Court of Appeal of Tanzania in the case of Grace Olotu Martin Vs Ami Ramadhani Mpungwe Civil Appeal No 91 of 2020 underscores the settled principle that trespass to land is an unjustifiable intrusion by one person upon the land in the possession of another. Such interference entitles the one in possession pg. 17 of the land recourse to court for either eviction, ejection, or payment of compensation termed as mesne profit due to non-use of it during the period of his dispossession. In this matter, the evidence adduced by PW1, PW2 supported by Exhibit PE4, PE5, PE7, and DE1 boils the conclusion that the 1st and 2nd Defendants made an unauthorized entry on the disputed plots owned by Plaintiffs by constructing a heavy machine for the standard gauge Railway project, as result interferes with Plaintiffs lawful possession of the disputed land. The cumulative evidence pointed above drives this Court to a conclusion that the second issue is answered affirmatively that the 1st and 2nd Defendants are the trespassers to the disputed plots. Finally, but not least, what reliefs are the parties entitled to? The Plaintiffs sought a bundle of reliefs as earlier recorded. The contents of this judgment are sufficient testimony that the Plaintiffs deserve some of the reliefs sought in their amended Plaint as they have been proved to the standard required in civil litigation. In the strength of the evidence adduced by the Plaintiffs during the hearing, this Court grants the following reliefs to the Plaintiffs as follows: First, the Court hereby declares the first and second Defendants as trespassers on Plot Number 23/1 Mkuyuni Industrial Area and Plot Number pg. 18 22/1 Mkuyuni Industrial Area, second the Defendants are ordered to give vacant possession of the disputed plots owned by Plaintiffs, third. first and second defendants are hereby ordered to be evicted from the plaintiffs’ pieces of land. Regarding general damages. The law on general damages is awarded after consideration and deliberation on the evidence on record able to justify the award. In this matter, the Plaintiffs are claiming the total sum of Tanzania Shillings Two Billion (Tshs 2,000,000,000)/= as general damages. The powers vested to the Court confer the discretion in awarding general damages subject to reasons being assigned. See the decision of the Court of Appeal of Tanzania in the case of Antony Ngoo and Davis Antony Ngoo V. Kitinda Kimaro, Civil Appeal No. 25 of 2014, and that of Alfred Fundi Vs Geled Mango and Two Others Civil Appeal No. 49 of 2017. Again the Court of Appeal in the case of Peter Joseph Kilibika and CRDB Bank Public Company Ltd V.Patric Aloyce Mlingi, Civil Appeal No.37 of 2009, held that; …General damages do not need to be specifically claimed or proved to have been sustained”. After consideration of the evidence on record and because the area was not developed before its invasion, but also taking into account that the pg. 19 Plaintiffs did not use the suit premises for two years since the suit premises trespassed to date and the fact that the Plaintiffs were denied the right to access the plots as well as all circumstances surrounding the case, the Court is of the decided view that TZS 40,000,000/= (say Tanzania Shillings Forty Million) to each Plaintiff with interest at Court rate from the date of this order to the date of full payment is reasonable and adequate to mitigate the Plaintiffs’ loss of use of the suit properties. As regards the question of costs, the general rule on costs is clear that costs follow the event, and where the court directs otherwise reason has to be assigned. See the provision of Section 30 of the Civil Procedure Code. It follows therefore that the successfully party is entitled to be reimbursed the expenses spent in prosecuting or defending the case and where the court decides otherwise, it is enjoined to assign reasons for so doing. See the case of Njoro Furniture Mart Ltd v Tanzania Electric Supply Co Ltd (1995) TLR 2005. Flowing from the above principle, I proceed to order the 1st and 2nd Defendants and the necessary party to pay the Plaintiffs the costs of the suit. However, I feel unable to award reliefs on an order for restoration of the plaintiffs’ pieces of land in their previous arable and vegetative state as pg. 20 it was before the trespass. Likewise, an order for a permanent injunction against the first and second defendants, their agents, workmen, and any other entity deriving title or interest from the first and second defendant from entering into or in any way dealing with the plaintiffs’ pieces of land for want of justification to warrant this court grant the same. In the final analysis and based on what I have endeavored to state herein above, the Court is satisfied that the Plaintiffs have managed to prove the case to the standard required in civil litigation, that on the balance of probabilities. In fine, the consequence is obvious, the Plaintiffs deserve and are hereby granted the reliefs pleaded for in the amended plaint to the extent stated in this judgment with costs. It is so ordered. DATED at MWANZA this 22nd day of July 2024. W.M CHUMA JUDGE pg. 21 Judgment delivered in court before Mr. Kange, Advocate for the Plaintiff’s, Mr. Akida, Advocate for the 1st Defendant, Mr. Emmanuel Masawe and Sabina Yongo, State Attorney’s for the 2nd, 3rd Defendant and Necessary Party this 22nd day of July 2024. C. KISONGO DEPUTY REGISTRAR pg. 22