Elisha Sanga vs Brown Mwakatage (DC Civil Appeal No. 25 of 1996) [1999] TZHC 445 (8 July 1999)

·n,•1-TTPOPO J £.---.;,.---0 W~'-~ - ~~~ IN THE EL1Gli COURT OF - TA~A..1\JIA T MBEYA DC CIVIL APPEAL NO. 25 OF 1996 (From the decision of the.District Court_ of . 1 1 .beya District at l-'.beya in Civil Case No 66 pf 1993 BEFORE: S. !'-'.USA - DISTRICT f"iAGISTRATE) ELISHA SA.1\JGA • 4 0 e e O • e O e I • e • e e • • • • APPELLAl\JT VERSUS BROWN r.'WAKATAGE • • • • • • • • • • • • • • • • • RESPONDENT

JUDGEMENT The appellant Elisha -Sanga was allocated Plot No. 116 Block M Forest Area in l'-Cbeya r-'unicipal Council in 1979 by a letter of off er of ·a right of occupancy and· he l·ater on got a Certificate of title of it and r~gistered it with the Registrar of Titleso -In three months of.December, 1986 and arch, 1987 the respondent Brown Jll;wakatage started building oh this plot ·· the house foundation and walls;. In 1988 he roofe·d the building and started staying in it_(See testimony of DW.l). On te other hand the appellant detected the entry of the respondent in. his plot in 1987 and protested to him and to the Land Office and Police for trespassing on hi·s plot, and the Land Off ice intervened in 1988 in vain against the respondent's entry into the plot of the appellant (See the testimony of PW.land • Ultimately the appellant complained against the respondent , . . . criminally for Criminal trespass and theft of his building material he·had kept at his•plot (sand and stones), but the p.olice advised them to -have it settled by the land office • • • •/2 fl

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• 2 - to the appellant for the used material but the respondent refused. The appellant sued the respondent in the Primary • Court but the District Court quashed the proceedings in the Primary Court because this was a·suit on registered land upon which the Primary Court had no jurisdiction. So, this case was properly filed in the District Court by the appellant who lost by having his suit dismissed on his claims of . being the lawful owner of this plot, of being compensated for his lost building material and of being paid general and specific damages and costs etc. Whence this appeal. The grounds of appeal raised by the learned r Kayange (Adv.) for the appellant are that the trial court did 1 .not address his decision on the issues framed, that the weight of evidence was not taken into account and properly evaluated and that it was wrong in law to direct the appellant to institute the suit against the Land Office whereas there was no cause of action against the same IV:unicipal Land Off ice o The respondent who was not represented in this appeal has opposed this appeal on all gr0unds and he insisted that he built on plot No. 115 Block Mas shown to him by the Land Officers • • This Court directed by consent of- both parties to have additi0nal evidence taken in respect of ownership of plot No. 115 Block Mon which the respondent .argued was the one allocated to him and upon which he built the house the subject of _the trespass claims of this suit. cw.1 Silas Dumiyelo,Land Assistant from the Mbeya l·~'d.ctipal Land Office testified in the District Court in the presence of both parties and he was cross examined by both sides • • . • /3

• 3 - The __ ev.i.den-ce. of 0/l. l. Sj.l.a.s Dt-..m.iyelo is being assessed which directed its taking · :ror the first time · by this court I but, the District Court is -the one-which took L it:additionally after the trial curts judgement had been . · · to written and appealed against L this court. The testimony of CW .1 suIIIII1arized is to the effect tha·t -plot No. 115 Block M does not belong to the respondent Brown Mwakatage either but to one Jane Zebedayo ¥.rwafongo who bought the small. building built on it for Shs.30,000/= from one D.N. Msambwa who on his part was re-allocated the plot on 13/3/7? by land office Reference No. MB/2095/14/55M after it had been taken away from the original allocatee of it one Raphael !Vwasangu who was first allocated this pl.at on 19/6/1972! At one time on 20/11/1996 the respondent was re allocated this. plot by the land office through reference letter /LD/9Lt-4/7 of 2/11/1986. But;·the owner of the small building and the plot one D.E •. }'sambwa sold his plot and houe to Jane Zebedayo J'.'wafongo on 3/10/88 and the new buyer she got the Certificate of Occupancy .which L registered with a title Noo5011-MBYLR as shown in exhibit Cf which is the regis- tered Certificate of Occupancy·showing that it is Jane Zebe- dayo ¥,wafongo who is the rightful owner of plot No.115 Slock . . . . M issued with a land title No •. 5011-MBYLR with an uncompleted b · 1d · 1 d erected · t t t · f · d 1 C 1 'l 2 N ui mg area y L . on J. as es i:ie oy v,• ~_asoro• Kisilwa the Senior Registration Officer of Mbeya Zonal Registry of the Registrar of Titles. The trial court presided over .by the leprned Mr. s. ·Musa (DoM.) entered judgement in favour of the respondent based on two ma.in grounds that the appellant failed to built on this plot in question Plot No.116 Block M from 1979 'when he was allocated it until· 1986 when the respondent started ••• /4 l I ,·

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• 4 - building on it. This was a long premise upon which the trial court could base its decision in: denying the appellant • ownership of the plot in question. Whether the appellant had failed to built on his plot within time or not was net relevant . L issue for the trial court to determine it ,for it was not drawn as an issue during the trial. That is an issue for the lands office to handle. If at all the Land Officer the appellant felt thatL had taken long to built on it proper steps been taken such as would haveLto give notice to the appellant accordingly - cancel it and re-allocate it to the respondent. This was never done and instead the land office consistently has recognized the appellant as the rightful owner of this plot and have granted him with a Certif'icate of Occupancy and which has been registered with the Registrar of Titles and been given a·land title No- 33 65-MBYLR of 14/9/1992. There is no evidence at all showing the r~spondent as having ever been allocated or re-allocated plot No. 116 ' Block M' Chunya Street, Fore.st Area. He himself doesn't ever claim to have been allocated this plot. He has . . a no right or clairn 1 over it not evenLrernote lien on it of any sort factually and legally • The other ground used by the trial court to dismiss the suit in favour of the respondent was that the Land Officers nre the ones who misled the respondent in showing him plot No.116 Block M instead of plot No.115 Block M. The respondent·. in his testimony as DW.l propounded this theory of being misled by the Land Officers to build on This plot No. 116 Block M. L is a blatant lie and· it is have impossible for the L°and Officers toLdone so because the Land Officers knew pletty well. that the plot of the ••• /5

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• 5 ... ' .··respondent \fas No~ ll.5 Block M.. Two. Land Officers have . testified to this effect who are PW.2 Asalile Torn Issa 'Wanyesya who dealt with this plt at the relevant time of · 1987 /88. He testified that the respondent refused· 'to cooperative wi.th the , Land Off ice and to bring him to the Land Officer they haq. to nse the police to have him arrested and locked up first before the respondent could accept the .calls of the Land Officer to settle this problem. If the Land Offtcers were his friends on his·side in misleading him · ,. in entering into plot No. · 116 Block M 'why didn I t they come I to hs rescue for all these years from 1987 until today'? , Tri.e respondent fn his pleading in para 3 of the Written Statement of Defence avered that,I quote him verbatim:- if . ~ ... The defendant never trespassed into the ,Plaintiffs. plot nor did he interfere i.yi th the : plaintiff's operations therein. Further, that fi!?1.~-j.ant h acted upon and occup.J,.ed PJot No. 115 ,lg_q£!f_M beya Municipality duly allocated to him by the r-1:unicipaJ. Land Development Officer, .§. £.f.l?!<2_copy of the letter of allocat.ion .hereto· . <!tt..cq to form' part of the defence The g_efeFdant will call an officer from t.h,e Munici- E..~~J;and Allocation Authority as 11.-11-~tness to cJ...§.dJY on the matte:r_:o 11 ( The underlines are my own emphasis)o portions . . . • From the und·erlined quoted · L of para 3 of the Written Statement of Defence of the respondent it .is clearly shown that the Land Officer allocated him and showed him plot No. 1 115 Block M. If' they had all0cated him Plot 115 Block Mand ••• /6 •

· mistakenly showed him plot No o .. 116 Block M as per his sworn testimony he should have covered this point in the pleadJ.ngs. rv:oreover, the purported f'lhotocopy letter of the offer was neither attached to the Written Statement of Defence nor produced or availed to the c0urt and the plaintiff at the time the trial began on 22/6/1994,, Even PW.-2 from the land office who testified on· 10/8/1994 was not cross examined by the respondent on it if at. all they misled him or gave him a letter of Offer on plot Noo 115 Block Mo Worst still_, the respondent promised to call -!::he Land Officer who showed him to built on plot 116 Block M in · the said 3rd para of the Written Statement of Defence but he never did so at the time of the trial .. With this factual background it was wrong for the trial magistrate-to admit the purported letter of offer of the plot No.115 Block M to the respondent as sh0'Wll in exhibit Dol despite the protests of the learned ¥Jr. JY:wangole ( Adv o) and without fallowing the provision of 0.13 R 0 l, 2 and 3 of the CPCo This exhibit just came from nowhere without a chance being given to the court and the other party (the appellant to see it before and study it to counter check with the Land Officer if it was genuine or a forgery. The trial c 1 ;urt erronously admttted this document at the defence • · stage,. · • The additional evidence of C'vi o 1 has worsened even further the position of the respond.ent j_n respect of this plot No. 115 Blc•Gk. M for he testified that it does not belong t~ the respondent a·c all but to one Jane Zeb~<iayo Mwafong0 who has even got a certificate of oc'.}upancy and a registered land title on it as confirmed by 0if r.,2o CWol has exposed even the venal dealing of the respondent with possibly some Land Officers not known up to now and whom he doesn't ever dare to mention them for obvious 0 •• /7

7 reasor>.s that n.e w-j_J_\ br:~ ·..-::1::posing him to other dangerous criminal insinuatirui~- that actually after this plot was re-allocated to DE Msambwa on l~/3/79 the said Msambwa built a small house on the pl.:::>t" Despite this development on the plot someone in the land o.ffj_e on 18/11/86 wrote 3 letters to . the plot owner D.E., :rv:sambwa requiring him to complete his building in his pioto Two days later on 20/11/86 this plot was re-allocated to Brown Mwakatage the respondent who the next month in December, 1986 started building on it without so even getting a building perit for PW.2 testifiedLwhen re- examined by the learned JV;r .. Yiwangole Advocate. It was· impossible to ·get allocated the plot on 20/11/86 and within a matter of a week or so the resnondent to draw the house plans and have them 4 ' Engineer submitterl to the JVunicipalland get~ approval of a building permit by the ¥.•unicipal Engineer and start building in the s·ame month of December ·1986 within 3 months to reach wall stage. This is the behaviour of the respondent whom the triai court endorsed as not amounting to a trespass on plot Nos. 116 Block M. The purported re•allocation of plot No. 115 . Block M to the respondent on 20/11/86 was. clearly unlawful for the then lawful owner· of it DoMo l''sambwa was not given enough time to finalize his building betwee 18/11/86 when the last letter was written to him and 20/11/86 when the plot was.purportedly re-alloated to the respon_dent .. · The off.er of right of occupancy to the said That . D.M. Msambwa was not cancelled at all. L i$ why th same Land Office of the Municipal and Cornmissioner for Lands continued to process his -sale of the plot and buiding on it to Jane Zebedayo Mwafongon On top of all this, the said D.M. IV:sambwa had a building on the plot whih he ought to have been compensated for its value first before they could re"!"allocate •.• /8 ... . J

• it to another pe.rson., It appears obvious that when the res- pondent found the builoing on plot 115 Block M he decided to grab plot No •. 116 Block M which was never allocated or shown to in order to evade paying compensation to D. M. Msamba. him by anybody The lower courts decision exonerating the It respondent from trespass was erronous. Lis quashed. The respondent trespassed upon the plot No_.116 Block M of the appellant. .. With the unlawful trespass having been held hereinabove to have been established it now only remains to determine whether the plaintiff/appellant suffered any valuable damages for his non use of the plot during the period the respondent and · · · unlawfully enteredLstayed in plo.t No~ll6 Block M of the appellant. Some of the .damages suffered were the, 7 trips of stones valued at Shso40,000/= and 7 trips of sand valued at Shso42,000/= with value total of Shs.82 1 000/= which were kept by the appellant on the plot in issue and later on allegedly ) used by the respondent to build his illegally erected house on the pl0t No o 116 Block M., This claim is .. covered in para 3 ani 4 of the plainto materials respondent .has denied to have used these building was backed'up by and he/DW,,2 Leonard JV:sangalufu who testified to be i. neighbour of the respondent who used to cultivate the plot No.116 Block M until in 1979 when the appellant stopped him ·from using the plot,. He testified to have not seen the stone and ·. sando Indeed, this witness could not have seen the heaps of ·stones and sand because he used to cultivate it prior to 1979 . , when the plot had not.yet been allocated to the appellant. When it was ultimately re-aJ.J.ocated to the appellant in 1979 this witness was stopped from continue using this plot 116. e o o/9

• 9 - ·'.BJ._ook 14 :fi,r ·nis ,C{l.J,:tJvation because· the rapp·elant started working on it with intention to deve:1op it.; • There was 1no 'lawful business ·' ·of ·this. witness· any ·longer which would have ·attrac·ted- this ·, .-. 1 witness to vieift this plot again· and see if-':ft ·had 'been heaped· with stones-and .sand of the ·appellant · :After .. a11-nw.:2 ·!l.-eft. ·Mbeya for· 'fukuyu it appears from 1979 to 1988 ,10 .. .years later ... during which period --he would not have"been · able to _se_e .the sand .... ,. '..and stone ·brought and heaped into· the :Plot :byits·, lawful owner . · - the ·appellant.· ' The other issue is whether 'the Jrnrn.e:·tuildirig: materials· were used by: ·the respondent to build ·his, unlawful .house. • From the testiffony of PW.2 the Land 0fficetheld that the'respondent was liable to compensate the appellant for his building materials used by the respohdent to·- build his same house ·:in the' disputed,:plot 116/M. - Iri'the'letter oft Regional Land Officer\referrd in . ' the 3rd ·para of>the ·p_aint and filed .in- this:District Court 1 _s file with Ref. Mf'IIC/LD/945/13 of 7/1/93 it clearly statedvthat.the .. respondent used the stones-· and sand and was ;liable to refund ' . . . ,,,.. them to the·· appellant, because· the· neighbours---,to this ·plot con:f'l.rmed to the larid officer to· have seen the building materials of---the appellant in that plot 116/M., It.wa-s- erronous'"for. the trial • court to hold that no such bui 1 lding material were kept in hat plot and used by the respondent.- · The same verdict was. erronous and it- is hereby quashed. The 'respondent I ·holdfound'the,stones and sand there- and us'ed •it for-· ]?uilding his,- own house in issue or caused otner pople to· steal them while he·was unlawfully trespasin,z into that plot. The claim··of the damages. of Shs.-· 82,000/= value of the building stone heaps and sand heaps was sufficiently proved on a proper1d.erance of probability. · The respondent is hereby held liable to pay this damage of Shs.82,000/= .. •·• •• /10

... 10 -:to· the appeJ.lcmt. . Due to the un1awful trespass and continued unlawful ... , . occupation of plot 116/M tpe appellant claimed for loss of inflated building costs of the house amoupting to Shs.1,168;765/= being the loss diffe-r.ence of costs- in between 1986 when the respondent trespassed into th,is land until 1993 when this suit that had· was filed in- court. .There is no doubt L the appellant i. built in the ouseL1979 the building costs would have been less than in 1983. The .appellant did not go. into a detailed account ·I hold on amounted to what such expanded costsLdue to the delay in building the house. From 1986 until now the appellant has been blocked by the respondent's trespass on this land from building his own house of it. The damages of Shs.1,168; 765/== are ·on J;he high side T.he same are hereby trimmed down to. their half value of Shs.536,22/50. I hold that.the respondent is liable to pay Sh~~536, 282/50 as compensation for the dela~ caused to th~· · · : building ·.:· appellant to utilize hi~ plot at a ,.owerLprice .a;s it prevailed in 1986. The appellant has further claimed for general damages and ' ' ,_loss of expectatiqn in the 5 para of the plaint. Indeed, the appellant has suffered a.lot of mntal anguish and embarasment • at having his plot unlawfully trespassed by the respondent who wa~ very arrogant by· refusing to.reconcile until the police were .involved in arresting him. He. further refused 1to pay the compensation of the building material used by him to built his own unlawful .house. I award Shs.300,000/= as general damages. for the trouble and painful waiting the appellant has undergone in waiting. He has never enjoyed any. peaceful occupation and use uf this plot since 1986 •. The appellant further claimed for specific damages of ••• /11

• 11 - Shs. 173,405/= in attending to the plot in land fees, title deed fees surveying.etc. as shown in para 6 of the plaint. These are real costs incurred by.the appellant in acquiring and keeping custody.and ownership of this plot. I hold that these special damages of Shs.173,000/= have been proved been as havingLincurred by the appellant for which the respondent is hereby held liable to compensate to the appellant up to the entire claimed·sum of Shs.173,405/=. The appellant further prayed for 31% interest on the claimed adjudged amount of compensation from the day of filing of the suit on 15/7/93 until final payment. The awarded attract damages and compensation c-.ertainly must an interest of L some sort being the bank interest prevailing at the time Qf of the continued hearingLthe suit. The claimed 31% interest is on the high . side. · I reduce it to 20% ( twenty per cent). · The granted damages hereinabove shall, carry a bank interest of 20% from 1992 until today. Thereafter, I grant the court . . interest of 10% p.a. until the final decretal award is finally satisfied. The Total awarded compensation is Shs.l,091,687/= (Shs~s2,ood/= + 536,282/= + 300,000/= + 173,000/= + 82,000/=). The 20% p.a. Bank int.erest is equivalent to Shs.218,337/60 per annum (i.e. 1,091,687/= x • 20% x 6 years) with a total interest which comes up to • The Shs.l, 310,005.60. · , court interest will begin to run .from . L . today., 'rhe total compensation granted adds up ·to Shs. · 2,401,692/60 (compensation of Shs.1,091,687 x 20% p.a. for 6 years of Shs.1,310,·005/60). It is unfortunate that the appellant did not pray for a relief of having the respondent evicted from the plot .. No. 116/M he unlawfully occupies and to have the house in questi0n demolished so that he gets vacant possession. Had ••• /12

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• l2 - • he prayed for these reliefs they should have been granted to him and execution done. The appellant is free to apply for the same reliefs•in the formal manner so that the other side gets chance to rebut the application. Otherwise, this appeal is allowed with costs. If the appellant on humanitarim grounds does not proceed to apply for eviction and demolition of the respondent 1 s unlawful house erected on plot 116/M through trespass then~ oLgeing p 9 id to its full satisfactionLliis judgement debt . thereafter hereby allowed above held,Lthe reondent isLto move the Land Office to legalize his physical possession of plot 116/M by the revocation of the land title and ownership granted to the . . ·by appellant so far and - thereafteI,_Lgranting the plot on re-allocation to the respondent on payment o:f the necessary that event, fees. In ;LAppellant i~ en.titled to get an alternative plot from the land office who shall act on it within ·,· ·Mwipopo, J. JUDGE 8/7/1999 Appellant: Elisha Sanga - present Resp. Brown ¥wakatage - Absent C/C. Kosam COURT: Judgement delivered in the presence of the · Appellant and abs·e·nce of Respondnt. District, Registrar to inform the Respondet accordingly. ELKM/JJM ~ ... E.L.K. MWIPOPO JUDGE 8/7/1999