zuhura fredriki kalo vs athumani rubindo 2 othetrs 2023 tzhc 19949 4 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF KIGOMA AT KIGOMA LAND CASE NO. 08 OF 2022 ZUHURA FREDRIKI KALO PLAINTIFF VERSUS ATHUMANI RUBIN DO (Administrator of the Estates of Late Hussein Kihena) •••••••••••••••••••••••••••••••••.•.••.••••••••••••••••••••• 1sr DEFENDANT KAMWANYA LUVUMA 2ND DE FEN DA NT MBEZI AUCTION MART & COMPANY LTD 3R0 DEFENDANT Date of last Order: 13/07/2023 Date of Judgement: 04/08/2023 JUDGEMENT MAGOIGA, l. The plaintiff, ZUHURA FREDRICK KALO instituted the instant suit against the herein above defendants claiming judgement and decree against the 1st and 3rd defendants jointly and/or severally in the following orders: - i. The fourth defendant to declare as an authority on behalf of Kigoma/Ujiji Municipal Council which allocated the disputed property to the plaintiff; ii. Declaration of the plaintiff as a lawful owner of a suit property estimated a half-acre located at Katonga (Bangwe Ward) within Kigoma Ujiji Municipality in Kigoma Region; iii. An order that the suit plot was wrongly attached and handed over to the 1st respondent by the 3rd respondent in execution of ~ Page 1 of 25 th e ju dge m e n t o f th e W a rd T rib un a l fo r B ang w e in Lan d C a s e N o . 1 / 2 0 1 2 v ide M is c . La n d A p p li c a tio n N o . 1 4 1 / 2 0 1 8 o f D is tric t La n d a n d H o u sing T rib una l fo r K ig o m a ; iv . O rd e r o f p e rm an e n t in jun ct io n re s tra in in g the a g e n ts a n d o r w o rk m e n o n 1 st and 3rd defendants for developing the plaintiff's suit premises being currently homeless; v. General damages to the tone of Tanzanian shillings 20,000,000/= for harassment. vi. Cost of the suit. vii. Any other and further orders as this honorable court deem just and equitable to grant. rd Upon being served with the plaint, the 1st and 3 Defendants through Mr. Sadiki Aliki learned Advocate filed a joint written statement of defence disputing the plaintiff's claims and prayed for dismissal of the plaintiff's suit with costs and the suit be declared to form part of the estate property nd of the late HUSSEIN KIHENA. On the other hand, the 2 defendant filed a written Statement of defence conceding to the plaintiff's claims and praying that the prayers by the plaintiff herein be granted with costs. Formerly the suit had 4th and 5th defendants but whose names were struct Page 2 of 25 o u t u nd e r O rd e r I R ule 1 0 (2 ) o f th e C iv il P ro c e du re C o d e , [C a p 3 3 R .E .2 0 1 9 ] . T h e fa ct s o f th e ins tan t s u it a re n o t co mp lica te d . It is a ll e g e d th a t the pla in tiff p e rs o na ll y a c q u ired th e s u it p lo t th rou g h a ll o ca tio n b y the Kig o m a / u jiji M u n ic ip al C ou n c il (th ro u g h the Ka to n g a S tre e t A u t h o rity ), w a y b a c k in 1 9 97 a nd in 2 0 00 d e v e lo p e d th e s u it plo t by e re ct ing a s m a ll re s id e n tia l h o u s e c o m p ris ing o f fo u r roo m s w h ic h w as o cc u p ie d b y th e te n a n ts. F u rt h e r fa cts w e n t o n tha t, a fte r a c qu is itio n o f th e suit p ro pe rty fr o m Kigo m a U jiji M u n ic ip a l C o un c il (th ro u g h th e K a to n g a S tre e t A u th o rity ), th e p la in tiff p a id s u rv e y fe e s a nd w as issu ed tw o re c e ip ts N o . 1 1 7 an d 11 9 o n J u n e , 1 7 th 1997. It is further alleged in the plaint that, thereafter, arose a dispute between the 1st defendant and the 2nd defendant (the plaintiff's husband) over a different plot of land vide Land Case No. 1 of 2012 in which the 1st defendant won the case against the 2nd defendant which culminated into execution of the said decision in favour of the 1st defendant against the 2nd defendant by the 3rd defendant in June 3rd 2020. The 1st defendant in corroboration with the 3rd defendant maliciously and wrongly attached the plaintiff's suit plot and residential house which was not the subject to the ~ Page 3 of 25 s u it b e tw ee n th e 1 st and 2nd defendants, and consequently evicted four tenants, destructed the residential house rendering the plaintiff homeless in disregard of the plaintiff's protest and complaints in the course of execution. Against the above backdrop, the plaintiff instituted this suit against the defendants, hence, this judgement after hearing both sides of the dispute. Before hearing of this case commenced, the following issues were proposed by parties and adopted by this Court for the determination of this suit, namely: 1. Whether or not the plaintiff is the owner of the suit land; 2. Whether or not the suit land is part of the decree of the judgement in Land Case No. 01 of 2012 of the Ward Tribunal for Bangwe Ward and subsequently in drawn order in ruling in Misc. Land Application No. 141 of 2018. 3. What reliefs are the parties are entitled to. When this matter was scheduled for hearing and before hearing started, th th this court noted that the plaintiff had no issue against the 4 and 5 defendants and after that discovery, both parties addressing the court, conceded to that, and this court by virtue of the provision of Order 1 Rule ~ Page 4 of 25 1 0 (2 ) o f th e C P C , p ro c ee de d to s tru c k o u t the n a m e s o f th e 4 th and 5th defendants who were improperly joined in the suit hence remained with only three defendants. In this suit, the plaintiff was represented by Mr. Daniel Rumenyela, learned advocate, whilst the 1st and 3rd defendants had the legal services of Mr. Sadiki Aliki, learned advocate; whereas the 2nd defendant was present in person and unrepresented. In a bid to establish her claims, the plaintiff called three witnesses. The first witness was ZUHURA FREDRICK KALO (to be referred in these proceedings as 'PWl'). PWl under affirmation told the court that she has been living at Katonga since 1982 when married to Kamwanya Luvuma (the 2nd defendant) herein and that they were by then living in a house of his husband's grandmother. According to PWl, in 2012 Hussein Kihena started a case with Kamwanya Luvuma (2ndDefendant) and when Hussein Kihena died, the 1st defendant took over the matter and won the case. PWl tendered in court the judgement before Ward Tribunal dated 19/11/2012 which was admitted as exhibit Pl. PWl told the court that, in the said judgement, PWl and the 2nd defendant were to be evicted from the house they were living on 3/6/2020. PWl went on telling the court that contrary to that judgement and decree, her ~ Page 5 of 25 lan d w h ic h sh e g ot fro m stre et lea de rsh ip in 1997 was also encroached and was evicted from the disputed land and house. According to PW1, the suit land was surveyed by the street leadership and the Municipal Council and a ridge which separates the two houses. The payment of the survey was evidenced by two receipts which PWl tendered in court and were admitted in evidence as exhibit P2 a-b collectively. It was PW1 further testimony that in 1997 when she paid for survey, Athuman Rubindo (I" defendant) and his father were present but never objected. PW1 further testimony was that, she had a house with 4 bed rooms in her personal name therein which she constructed in 2000. At all material time PW1 testified that, the defendants were present and never contested. According to PW1, the disputed house was rented to tenants since 2002 and when the incidence happened, tenants were there because she st believed her plot and house were not subject to the case between the 1 and 2nd defendants. In further testimony PW1 told the court that, she suffered irreparable loss because she lost everything; tenants left and she got loss and herself became a tenant since 2020. She finally prayed the court to allow the suit ~ Page 6 of25 a s p ra y ed a nd p re s s ed fo r c o m pen s a tio n fo r d is tu rb an c e a s w e ll as th e c o s ts o f th e s u it. U nd e r c ross e x a m in a tio n b y M r . A lik i, P W l to ld th e c o u rt tha t it is tru e th e y w e re s ta y ing in th e h o m e o f g ran d m o th e r w h ic h th e 1 st respondent won a case and that had execution stopped in the house belonging to her husband there would be no problem. PW! told the court that, during execution the court broker came with notice and that she stopped him in vain and ended up demolishing her house. Pressed with question, PWl told the court that she put demarcation using the ridge and trees. On monetary claims, PW! told the court that her house was Tshs. 30 million. The 2nd defendant had nothing to cross examine PW1. Under re-examination by Rumenyela, PWl told the court that Hussein Bugomba has no issue with her. There are beacons as well, which were installed by the Municipal Council but some have been removed. On the amount of Tshs. 30 million, PW1 answered that it is current purchase value. Page 7 of 25 O n que stio n fo r cl a rifi c a tio n b y th e co u rt , P W l cl a rifi e d tha t th e tw o plo ts a re d iffe ren t fro m th e o n e in th e o ld ca se an d sh e p ro m ise d to sh o w th e m w h e n o n site . T he n ex t w itness fo r th e p la in tiff w a s JUMA BILAL (to be referred in these proceedings as "PW2"). PW2 under affirmation told the court that he knows PWl as the wife of Kamwanya Luvuma and was living at Kamala but after marriage she moved to Katonga. PW2 told the court that he knows Athuman Rubindo, because they live in the same street. Even his late father Hussein Kihena was living in the same street. PW2 told the court that he was a ten-cell leader since 1985-1993 and street chairman from 2005-2015. PW2 admitted to have knowledge on the conflict between the late Hussein Kihena and Kamanya Luvuma on land which dispute was near the road and was before Ward Tribunal. Further testimony of PW2 was that he knows PWl, the disputed land and that PWl had a house and an open plot. He pointed out that the house of Zuhura was in the next street. According to PW2, during survey of the land in dispute, was a member of the survey team and people from Municipal, and Wananchi were paying for survey. It was during this period, PW2 pointed out that, Zuhura got the two pieces of land from Hamis Hussein who had allowed the two plots ~ Page 8 of 25 b e a ll o c a ted to Z uh u ra w h o paid T s h s .1 6 ,0 0 0 / = as s u rv e y fe e s an d rece ip ts w e re is s u e d . P W 2 re co gn iz e d exhibit P2 that they were the receipts issued to Zuhura. Further testimony of PW2 is that Mbezi Auction Mart went to execute against Kamwanya Luvuma to evict him from one house which was the subject of the case but unfortunately and without heeding to the resistance of PWlexecuted to next houses not in the dispute which house was in different plots. During survey iron beacons were placed but now there are block beacon. PW2 promised to show the boundaries of the two plots upon going there. He explained that there are trees which separate the two plots. Under cross examination by Aliki, PW2 told the court that he knew Seba Muhobira as the neighbhour to the disputed plot. There is also Ramadhan Kibiriti, who is a neghbour as well. PW2 told the court that he knows the plot of Ramadhan Kibiriti and that of Hussein Kihema are not equal. Pressed with more question, PW2 stated that there is no road between the two plots. The plot of Hussein Kihena was 30 lengths. Ramadhan Kibiriti had 30 meters length. The house of Zuhura was outside the plot in dispute between Luvuma and Hussein Kihema. Page 9 of 25 O n fu rt h e r que stio ns , PW 2 to ld th e cou rt tha t, the plo t o f Zu hu ra w as 4 0 - m e te r le ng th . Tw o plo ts togeth e r m a de a le n g th o f 7 0 m e te rs. Ra m a d h an K ib iriti plo t is 7 0 m e te rs. H e p o in ted o u t tha t P W 1 an d D W 2 w e re liv ing in the h o u s e o f H u sse in K ih e m a a s d e c ide d b y W a rd T ribu n a l. W h e n aske d a b o u t w he re th e p la in tiff g o t th e lan d , P W 2 re p lie d tha t th e tw o p lo ts w e re giv e n to h e r by H a m is H u sse in d u rin g su rv e y a n d sh e is the o n e w h o pa id fo r su rv e y . H a m is H u sse in ga ve o ka y to p roce e d su rv e yin g th e land a nd ga v e it to Z uh u ra w h o p a id Tsh s 8 0 0 0 /= p e r p lo t a nd tha t, e xh ib it P 2 w a s w ritt e n by h im se lf. T h e 2 nd defendant had nothing to cross examine this witness. On re-examination by Rumenyela, PW2 stated that Hamis Hussein have never complained ever since that the land belongs to Zuhura upon payment of survey fees. The last witness is HAMIS HUSSEIN AMANI (to be referred in these proceedings as "PW3"). PW2 Under affirmation, PW2 told the court he knows Zuhura Fredrick Kalo personally and they stay together. PW3 stated further that, he had a shamba which he used to farm, but in 1997 it was surveyed and under his consent allowed Zuhura to pay for ~ Page 10 of 25 th e su rv e y a nd s e rv ic e th e n it b e c a m e h e rs s he c on s tru ct e d a h o use th e re o n . It was further evidence by PW3 that, he knows Hussein Kihema as was his neigbhour, Chongela and Stumai. He also admitted to know Kamwanya Luvuma but denied to know anything about the case between Hussein Kihema. According to PW3, the plot of Hussein Kihena does not extend to the plots of Zuhura. Under cross examination by Mr. Aliki, PW3 told the court that the house in dispute between Hussen Kihema and Luvuma, to his knowledge belonged to Luvuma but has nothing to do with Zuhura plots. Pressed with question on the size of the plot in dispute, PW3 replied that he does not know the length or width of the plot. According to PW3, he gave to Zuhura 2 plots but he doesn't know exactly the size because he did not measure it to tell exact size. As usual, the 2nd defendant had nothing to cross examine this witness. Under re-examination by Mr. Rumenyela, PW3 replied that Ugumba was his brother but insisted that he doesn't know the exact size of the plot in dispute. Page 11 of25 T h is m a rke d th e e n d o f th e p la in tiff 's ca s e a nd s a m e w as m a rked cl o s e d . O n th e pa rt o f d e fen c e, the re w e re th re e w itn e s s e s . T h e fi rs t w itn e ss w as ATHUMANI RUBINDO (to be referred in these proceedings as "DWl". Under affirmation, DWl told the court that he knows that in this case Zuhura is complaining over the plot of Hussein Kihena because he has been living there since his childhood and after his blood father's death, his step father Hussein Kihena took care of him to date he is living there. DWl further told the court that, the plaintiff and his husband Kamwanya Luvuma were living in the place of Hussein Kihena. On the facts which relates to the suit, DWl told this court that Zuhura is complaining on the plot of Hussein Kihena. DWl went on telling the court that, the disputed plot has their cemeteries where their relatives were barred. According to DWl, the house which the plaintiff claims is within the home of Hussein Kihena. He added that the plaintiff has no claim of right in the disputed plot. DWl went on testifying that, the complains by the plaintiff that she was given by Katonga government leadership has no evidence because the plaintiff never told the court who gave her the plot. He further testified that, Juma Bilal denied that the plaintiff was given by the Municipal ~ Page 12 of 25 C o u n c il b u t b y H a m is H u s s e in (P W 3 ) to th e p ro c ee d in g s b u t H a m is H u ss e in to ld th e co u rt tha t h e c on s e n ted th e plot to b e g iv en to Z uh u ra . It w a s fu rt h e r te s tim o n y D W l tha t, H a m is H u ss e in w a s a lie r a s h e gave the plaintiff without knowing its size and that he was not the owner of the disputed plot as such he could not give it to anyone without family consent. It was further testified by DWl that, Hamis Hussein is in the East and a road between but the house of Hussein Kihena is in the West which separates them. About the house in dispute, DWl told the court that it was constructed as rest home while alive. And it is thatched with dilapidates rods. DWl declined that tenants were there after notice was issued and insisted that the disputed plot belongs to Hussein Kihena as such prayed the suit to be dismissed with costs. Under cross examination by Mr. Rumenyela, DWl told the court that he was not a party to the case between Hussein and Luvuma but he knew all the places of Kihena. About Hamis Hussein, DWl replied that he only consented the plot to be given to Zuhura. ~ Page 13 of 25 A b o u t the se co n d h o u se w h ich is in d isp u te, D W 1 rep lie d th a t it is still th e re w ith in th e d isp u te d p lot of H usse in K ihe na a n d n o b o d y w a s e vict e d . D W 1 co n c e de d tha t th e h o u se in d ispu te w as co nstru cte d by Z uh u ra b e fo re h e w a s a p p o in te d as a d m in istra to r a n d tha t th e y h a v e n ev e r sued Z uh u ra fo r co n stru ctio n o f th a t h o u se . D W 1 a lso a d m itt e d th a t h e w as n o t p rese n t w h e n su rv e y w a s d o n e th ou g h h e said h e k n o w s Ju m a B ila l. nd U nde r cross e xa m in a tio n by M r. L u vu m a , (th e 2 defendant) DW1 replied that Hamis Hussein was bordered by Hussein Kihena. Pressed with more question about the lies of the plaintiffs' witnesses, DW1 replied that Harn is Hussein said he had the land but did not state the size, Juma Bilal who said was a surveyor supported the story of Hamis Hussein and all did not tell the size of the land. According to DW1, the plot of Hussein Kihena is 25 meters and if the same won't be true let him considered a liar. Under re-examination by Mr. Aliki, DW1 insisted that the plaintiff got the disputed land after it was given to her after survey by the village in 1997 together with Kigoma-Ujiji Municipal. On eviction, DW1 testified that no witness testified was evicted from the disputed house. The next witness was KAMWANYA LUVUMA to be referred in these proceedings as "DW2." DW2 under affirmation told the court that he wonders that the house of Zuhura has been attached due to his case ~ Page 14 of25 w h ic h is in d iffe re n t p lot. Ac co rd in g to D W 2 , th e c a s e w as a g a in s t h im o n o ne h o use tha t w as h is . W ith o u t m u c h w o rd s , D W 2 p ra y ed fo r ju stic e to b e d o n e in t h e c i r c u m s t a n c e s of t h i s c a s e . U nde r c ro ss e x a m in a tio n b y M r. R u m e n y e la , D W 2 to ld th e c o u rt tha t, th e h o use o f Z u hu ra w a s th e re w h e n th e c a s e a g a in s t h im w a s ong o in g . A b o u t w h e n Z u h u ra g ot th e p lot in d is p u te b u t c a n n o t re m e m b e r th o u g h h e w as th e re to g e th e r w ith H u s s e in K ih e n a a n d ne v e r su e d h e r. U n de r c ros s e x a m in a tio n b y M r. A lik i, D W 1 re p lied tha t h e r w ife had a h o use a n d h im s e lf h a d one in w h ic h h e w as ev icted fr o m . It was his testimony that, the plaintiff's house was begotten by her own efforts. According to DW2, the two houses are bordered and there is a ridge between them and also there are beacons separating the two plots. Additionally, DW2 explained that on those two plots, Zuhura constructed a house on one plot and the other is bare to date. Next and last witness was JOB JOHN GW ASA who in these proceedings is to be referred as DW3. DW3 under oath told the court that he is a court broker in Kigoma region & DLHT of Kigoma in the name of MBEZI AUCTION MART & Co Ltd. DW3 testified that, as a court broker he was given an order to go and evict the debtor (the 2nd defendant) herein. DW3 further pointed out that, he knew Zuhura through execution because she ~ Page 1 5 o f 2 5 w as livin g in th e sa m e h o u se w h ic h h e w as g iv e n o rd e r to ev ict . H e fu rt h e r te stifi e d th a t, h e on ly e xe c u te d ev ict io n o n o n e h o u se a n d th e seco nd h o u s e w a s n o t to u ch e d bu t th e te n an ts m o ved o u t b y th e m s e lves . Acco rd in g to D W 3 , h e g ot cou rt o rde r in 2 020 /1 7 /4 a n d h e d id e xecu te on 3.6 .2 02 0 a fte r g iv in g 14 d a y s' n o tice to th e jud ge m e n t d e b to r w h ic h n otic e h e also g a v e to DC , W E O a n d Stre e t C h a irm a n . D W 3 p o in te d o u t tha t a fte r g iving th e n otic e a n d o n e xe cu tio n the te na n ts vacate d th e m se lv es b e cau se th ey k n e w the p lo t h a d d isp u te . DW 3 den ie d to h a ve a n y k n o w led g e o n th e d itch w h ich D W 2 e xp la ine d . Acco rd in g to h im all h o u s e s w e re constru cte d o f m u d b ric ks a n d tha tch ed w ith iro n she e ts. Afte r e v ictio n , D W 3 sa id th a t w ha t fo llow e d w as h an d o ve r to th e de c ree h o ld e r w h ic h de cre e w a s to evic t a ll th a t w e re livin g in th e d isp u ted p lo t. D W 3 stro n g ly re sisted th e fa ct tha t th e se co n d h ou se w as o u tside th e d isp u te d p lo t in th e case h e w a s e xecu tin g . D W 3 , thu s, p raye d th e su it be d is m is s e d w it h c o s t s . U n d e r c ro ss e xa m in a tio n by M r. R u m e n y ela o n th e o rd e r, D W 3 re p lie d tha t h e h a d n o th e o rd e r h e w a s e x e cu ting n o r h a d th e n o tic e h e issue d to th e ju d g m e n t d e b to r h e re in cou rt . A b o u t ha n d o v e r, D W 3 rep lied tha t h e d id n o t h a ve n o r d id te n d e r it a n d in siste d to h a ve n o t e xecu te d th e o rd e r u n la w fu lly . Page 16 of 25 O n the re p o rt o f e x e c u tio n , D W 3 to ld th e c o u rt th a t he d id n o t h a v e it in c o u rt . P re s s e d w ith que s tio n , D W 3 to ld th e c ou rt tha t, th e o rde r w as on ly fo r o ne h o u se a n d th e d ista n c e b etw e e n th e tw o h o u s es w e re 2 0 m e te rs . P re ss ed w ith qu e s tio n a b o u t e x e c u tio n , D W 3 to ld th e c o u rt th a t h e w as sh o w n th e h o u se in d is p u te by the d e c re e h o lde r a n d tha t h e w a s in c o m p a n y w ith W E O, M ilitia p e o p le , stree t c h a irm an a n d w e re o p e n th o u g h h e co u ld n 't te ll w h y h e fa ile d to te nd e r a ll re leva n t e x e c u tio n d o c u m e n ts . U n d e r c ros s e x a m in a tio n b y M r. L u v u m a (2 nd defendant), DW3 replied that he conducted execution in the 1st house but the 2nd house tenants moved out without objection. Under re-examination by Mr. Aliki, DW3 insisted that in this case Zuhura complains to have been unlawful evicted. This marked the end of hearing of defence case and the same was marked closed. Having heard the rivalling parties, and before I embark on composing the judgement, Mr. Rumenyela, the counsel for the plaintiff addressed the court by praying that, despite the parties closed their case, he prays this court should move to the locus in quo where parties can show the boundaries for the interest of justice. The prayer being unobjected, I granted it and on 13th/7/2023 the court moved to the locus in quo. Page 17 of 25 T he pla in tiff sh ow ed tw o plo ts w ith o n e d ilap id a ted h o u se a nd tw o st b e acon s w ith N o . OBY/734 and another one on the other side. The 1 defendant also showed a house which had a case which is facing the West of the tarmac road to the West with approximately 20 meters apart. Mr. Rumenyela for the plaintiff had nothing to cross examine at locus in quo. On the part of ist and 3rd defendants, Mr. Aliki asked questions and the plaintiff replied that the beacons seen were for her neigbour but that she had receipts. She explained that it is not true that plots exceed to the backward. Ramadhan Kibiriti was the owner of her plot given to him by Nyamuragula. PWl denied to have said that, there were boundary but that there were trees. With the above in mind, the noble task of this court now is to determine the merits or otherwise of this suit. However, it is a cardinal principle of law that he who alleges must prove. And in Civil Cases the standard of proof is that of balance of probabilities. This principle is enshrined under provisions of section 110 and 111 of the Evidence Act, [Cap.6 R.E. 2022]. Section 110 reads as follows; "110(1) whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence Page 18 of25 of facts which he asserts must prove that those facts exist" "(2) when a person is bound to prove the existence of any fact it is said that the burden ofproof lies on that person" Section 111 of the same law reads; "The burden of proof in a suit proceeding lies on the person who would fail if no evidence at all were given on either side" The burden of proving facts rests on the party who substantially assets the affirmation of the issue and not upon the party who desire it, for a negative is usually incapable of proof. Before embarking to answering the issues advanced, I have noted that there are facts which are not disputed in this case; One, that the plaintiff and the 2nd defendant are husband and wife, Two, that the 1st defendant had a case against the 2nd defendant to wit Land Case No. 01 of 2012 where the 1st defendant won a case. Three, that, upon such decision, there followed execution of the order. However, what is in serious dispute is whether the plaintiff is the owner of the suit land and whether the suit land is part and parcel of the decree of the judgement in land case No. 01 of 2012. Page 19 of25 N ow ba ck to th e in sta nt suit a n d sta rt in g w ith the firs t iss u e w h ic h w a s c o u c h ed th a t "whether or not the plaintiff is the owner of the suit land." PWl testified that she personally acquired the suit plot through allocation by the Kigoma Ujiji Municipal Council (through the Katonga Street authority) way back in 1997 where she tendered in court the receipts evidencing payment after the survey admitted as exhibit P2 to st justify her claim. She also stated that during that allocation, the 1 defendant and his late father Hussein Kihena were there and never objected. On the other hand, DWl resisted that fact by saying that the plot which the plaintiff claims is the property of Hussein Kihena and the house which the plaintiff claims is within the home of Hussein Kihena. DWl added that the plaintiff has no claim of right in the disputed plot. DW2's evidence mainly supported the testimony by PWL About DW3, he had nothing to contribute on the issue of ownership. Having carefully considered both sides pleadings, testimonies of PWl for plaintiff, DWl, DW2 and DW3 respectively and having gone through the contents of both exhibits Pl and P2, I am inclined to find the first issue in the affirmative, that, the plaintiff is a legal owner of the suit land. I will explain. One, the disputed plot on the part of the plaintiff was obtained ~ Page 20 of 25 o n 1 7/ 6 / 1 99 7 a s p e r exhibit P2 while on the other hand, the case between Hussein Kihena and Kamwanya Luvuma was done in 2012. The evidence is to the effect that, even before the death of Hussein Kihena, and during the dispute in Land case No. 1/2012, the plaintiff was already in occupation of the plot in question. Two, the 1st defendant brought nothing to disprove the fact that the plaintiff was not the owner of the plot in dispute while on the part of the plaintiff there is ample and strong evidence on how she got the plot from the original owner (PW3) of the plot in dispute who gave a go ahead to the Municipal Council and the village government leaders to continue with survey and permission for the plaintiff to pay for the costs of survey. Three, proof of ownership in land depends on plausible explanation and production of evidence on balance of probabilities. The plaintiff brought in court two receipts which were written in her name showing that she paid for the survey of the 2 plots. Four, in the testimony by DWl under cross examination admitted that the second house was constructed by Zuhura before he was appointed as administrator of the estates of late Hussein Kihena. Five, the testimony of DWl was bare and with no supporting documents to negate the strong evidence of the plaintiff and as such is rejected for want of merits in this suit. Page 21 of 25 T h e refo re, it is m y c on sid e re d o p in io n th a t, th e pla in tiff in th is suit p ro v ed to th e b a la n c e o f p ro b a b ilitie s tha t she is the o w n e r o f th e lan d in dis pu te . In the to ta lity o f th e abo v e reas on s, I fi n d th e p la in tiff u tte rly p ro v ed st ow n e rs h ip o f the d is p u ted plo t a g a in st th e 1 defendant herein. That said and done, the first issue is answered in the affirmative that the plaintiff is the lawful owner of the suit land. This takes me to the second issue couched that;" Whether or not the suit land is part of the decree of the Judgment in Land Case No. 01 of 2012 of the Ward Tribunal for Bangwe Ward and subsequently in drawn order in Ruling in Misc. Land Application No. 141 of 2018". PWl's testimony was that the disputed plot is her own plot as per her testimony corroborated by the testimony of PW2 and PW3 as well as supported by the evidence of DW2 and exhibits tendered. rd Her main complaint was about the act of the 1st and 3 defendants in executing the decree and order directed to him from the Judgment in Land Case No. 01 of 2012 of the Ward Tribunal for Bangwe Ward and subsequently in drawn order in Ruling in Misc. Land Application No. 141 of 2018 proceeded to unlawful execution her personal plots. On the part of DWl, he insisted that the plot belonged to the decree holder and not the plaintiff. DW1 also denied that eviction was done in the house in ~ Page 22 of 25 dis p u te b u t te n an ts v a c a t e d b y th e m s e lv es . D W 2 h ad n o th ing n e w bu t w o n d e re d w h y e x e c u t io n e x te nde d fr o m h is ca s e to the pla in tiff 's p e rs o n al p ro p e rt ie s . D W 3 , o n his p a rt d e n ie d to h a v e e x tended the e x e c u tio n sta t ing th a t, th e e xe c u tio n w a s d o n e o n o n e h o u se a n d n o t th e o the r. H e in sis te d tha t th e te na n ts in th e d is pu ted plot v a c a te d th e h o use a fte r s e e in g th e n o tic e a n d d is c o ve red tha t the h o u s e w as als o to b e a tta c h e d . U n fo rt u n a te ly , D W 3 d id n o t te n d e r a n y d o c u m e n t to sh o w tha t th e o rde r c o v e red w h ic h p ro pe rty . N o r did h e ten d e r in c ou rt the s a id n o tic e o r h an d o v e r re p o rt . T h is a ct io n o f hid ing th o se n e c es s a ry a nd im p o rt an t in fo rm a tio n e n t itle d th is c ou rt to d ra w a n a d v e rs e in fe re n c e tha t the th ird d e fen dan t e x e c u ted th e d e c re e a nd o rd e r in d ire d iffe ren t w a y fr o m w ha t w as d e c re e d a nd d ire c ted b y th e c ou rt . T h is c ou rt u po n v is iting th e p lo t in d is p u te , it w itne s sed tha t th e tw o h o use s a re n o t in o n e c o m p o un d an d b e tw e e n th e tw o h o u s e s , th e re a re s o m e tre e s a nd bea c on s o n th e N o rt h e rn and S o u th e rn pa rt b e side the p lo t in d is p u te w e re n ote d . To m y c o n s ide re d v ie w s, th e p lo t in d is p u te is d iffe re n t and fa r a p a rt fr o m th e p la ce w h e re e x e c u tio n w a s to ta k e p la c e . In th e circ u m s ta n c e s , I h o ld th a t th e suit lan d w as n o t p a rt o f th e d e c ree o f th e J u d g m e n t in La n d C a se N o . 0 1 o f 2 0 1 2 o f th e W a rd T ribun a l fo r Page 23 of 25 Bangwe Ward and subsequently in drawn order in Ruling in Misc. Land Application No. 141 of 2018. That said and done, I find the second issue in the negative. This trickles down to the third issue which was couched that, " What reliefs are the parties entitled to." The plaintiff urged this court to st allow this suit as prayed in the plaint with costs. On the other, the 1 and 3rd defendants prayed for dismissal of the plaintiff's suit with costs and the suit land be declared an estate property of the late HUSSEIN KIHENA. Based on my findings in issues Nos. 1 and 2 herein above, it is obvious that the plaintiff suffered loss which need her to be intitled to compensation. I say so because, the order of eviction was wrongly imposed to her by DW3 who did not take necessary steps to see that the order to be executed should not be imposed to innocent party. Having seen that the land is still there and can still be used by plaintiff, I will now consider the general damages prayed. The plaintiff prayed for payment of general damages to the tune of Tshs.20,000,000/= for harassment caused on her. Given the circumstances and evidence on record, there is no dispute that the plaintiff was unnecessarily and st rd unlawfully evicted from her house. The conduct of the 1 and 3 defendants were calculated and intended to deprive her not only her ._ Page 24 of25 p eace fu l e njoy m e n t o f h is p lo ts b u t also ca u sed th e p la in tiff's te n a n ts to v a c ate the ho use a nd a s su c h n o w d ila p id a ted fo r lo n g n o n -use . T h a t n o ted a n d co n sid e red th e p la in tiff, in m y co nsid e re d o p in io n is e n title d to g e n e ra l d a m a ges . C o n sequen tly , I e n te r ju dg m e n t a nd de cree in fav o u r o f th e p la in tiff in the fo llo w ing o rd e rs, n a m e ly :- 1. I d e cl a re tha t th e pla in tiff is a la w fu l o w ne r o f th e su it p lo ts. 2 . T h e su it p ro pe rty w a s w ro n g ly atta che d a nd h ande d o ve r to th e 1st defendant by the 3rd defendant in execution of the judgement of the Ward Tribunal for Bangwe in Land Case No. 1/2012 vide Misc. Land Application No. 114/2018 of the District Land and Housing Tribunal. 3. The pt and 3rd defendants are jointly ordered to pay general damages to a tune of Tshs.10,000,000/=being harassment and disturbances caused by the 3rd defendant by wrongly evicting and denying her from her lawfully owned plots and house. 4. Cost of the suit be borne by the 1st and 3rd defendants. It is so ordered. \ r S. . MA OIGA JUDGE ' \ _.. 04/08/2023 Page 25 of 25