civil decision 2024 12 25 20 32 47

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND CASE NO. 34 OF 2023 ABDALLAH SELEMANI MAZYALA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS SUMAKU MATOGOLO .............................. RESPONDENT / DEFENDANT JUDGMENT RWIZILE, J, The plaintiff Abdallah Selemani Mazyala is the biological son of the late Ahmad Selemani Mazyla, who died intestate on 17th November 2004. It is tragic, that it is not until 2020, when the plaintiff was appointed the administrator of his estate perhaps as an effort to file this case for his family. He is claiming for the land measuring 200 acres sited at Malagalasi village of Uvinza District of Kigoma region. The suit land is allegedly grabbed by the first defendant who lived in that land before the death of the plaintiff’s father, who had allowed him to manage it. It is alleged, the land was acquired before operation village where the deceased, planted mango trees, rice and other crops. The 1st defendant was supervising the activities until 2004 when the owner died. The 1st defendant is alleged to have come from Tabora in 1996 in search for arable land for farming and pasture. After the death of the plaintiff’s father, the 1st defendant took possession of the land and claimed it belonged to him. The plaintiff therefore claims for the judgement and decree as follows; 1. That plaintiff be declared the rightful owner of the landed property of 200 acres located at Malagalasi village of Uvinza District within Kigoma Region 2. The costs of the case 3. Any other relief that honourable court may deem just and fit to grant For the plaintiff, was Mr. Michael Mwangati learned advocate. The 1st defendant was represented by Mr. Sadiki Aliki learned advocate, while Mr. George Kalenda and Mr. Nixon Tenges learned state attorneys appeared for the 2nd, 3rd and 4th defendants. The witnesses and all evidence tendered was an effort to prove one key issue; who is the lawfully owner of the disputed land/suit land. In order to determine this question, the plaintiff called in, three witnesses namely, Abdallah Ahmad Seleman Mazyala, Moshi Ramadhan and Salehe Juma Rashid, who will be referred herein as Pw1, Pw2 and Pw3 Page. 1 respectively. The defence, on the other hand, called in three witnesses as well, to wit; Sumaku Matogolo, Joseph Lazaro Mitere and Erasto Daud to be referred herein as Dw1, Dw2 and Dw3 respectively. I have to say at the earliest that it is primarily the duty of the plaintiff to prove his case to the set standard. This is a legal requirement under section 110 (1) of the Evidence Act [CAP. 6 R.E. 2022]. As I have shown, the plaintiff testified and called two more witnesses to support his case. According to his evidence, his father acquired the land in dispute which 200 acres before 1973. When he was moved to Nguruka due to operation vijiji, the land was retained for cultivation as the means of his livelihood. He planted mangoes trees, cultivated rice and other seasonal crops and had also grazing land. He also said, the 1st defendant Sumaku Matogolo was allowed by his deceased father to stay in the land until he got his, because he was from Tabora and had no place to stay. Following his father’s death, the 1st defendant is alleged to have started processes to have the land legally acquired. It was his further evidence that until 2010, the plaintiff was still harvesting mangoes in the same land before they were prevented by the 1st defendant to do so on pretext that the land belonged to him. To prove so, he tendered exhibit P2, which is an agreement to sell mangoes from the same shamba. His evidence was supported by Pw2 and Pw3 who also admitted having known the disputed land to belong to the father of the plaintiff who is alleged to have acquired it years before operation vijiji. On the other side, the 1st defendant Dw1, said, he acquired that land in 1992 after coming from Tabora. He said, he has consistently used his land for years without any interruption. This evidence was supported by two other witnesses, Dw2 and Dw3, who said, the land belongs to him after clearing the bush and then took possession in 1992. He also applied for legal ownership from the village. Although he did not tender documents to prove ownership of the same but pleaded under paragraph 4 of the amended WSD that it was approved by the village assembly of Malagalasi in 2016. Upon briefly going through the evidence of both sides, I have to admit, in the absence of documentary evidence, proof of land ownership is difficult to trace. As in this case, for instance, Pw2 who is 76 years old and Dw2 who is 64 years old alleged have stayed in the same village since 1963 and 1973 respectively. Each of them claims to know that the land belongs to the side they are defending. Pw2 said knows well the land since his presence in the village. He said, its borders are Seleman Katale on the North, Northwest, there are cemeteries, and North is a railway line, while on the West is Malagalasi river. According to him, in 1963, when he first arrived in the village, he wanted to settle in that land but the plaintiff’s father did not allow him entry. Therefore, he went to do so five kilometers away. It was his evidence further that the plaintiff’s father was cultivating that land and his family because he had two wives. He had planted mango trees such as dodo, bolibo and sindano. At the operation vijiji, Pw2 moved to Mlyabibi while the plaintiff’s father went to Nguruka. But despite all that, they still went on cultivating rice, cassava and maize in their lands at Malagalasi. He said the first defendant came to Malagalasi village in 1996 and trespassed into that land but was told the land belongs to the deceased’s father and was told to meet him before taking possession of it. He said, he was later informed that the 1st defendant used the village government to have it acquired. Page. 2 This evidence is different from that of Dw2 as I have shown. To him, the land belongs to the 1st defendant for having acquired it by clearing it and taking possession. He said the 1st defendant is known to him since when he came from Tabora. He lived in the village since then. The mango trees were found there and were not planted by him. He said, in 1992, he joined the village government and was chairperson of the same village. He further said, he did not know Abdallah Seleman Mazyala but heard about one person called Hamad Kamelampasa who lived at Nguruka. It is clear from the evidence of the two sides that one side must be telling a concocted story. I think, the 1st defendant and his evidence have a contradicting story to tell. I will show how shortly. In his amended WSD, the 1st defendant said, under paragraph 3 and 4 as follows; 3. That, the contents of paragraph 3 are strongly disputed and the plaintiff is put into strict proof thereof , it is further averred that, the plaintiff's father has never been the owner of the alleged farm and not known to the 1st defendant but the farm has been the property of the 1st Defendant who had started following legal procedures to procure customary right of occupancy (deemed right of occupancy) for himself and his children one TOJIL SUMAKU, MALELE SUMAKU and BALAI SUMAKU fifty acres each after the 1st Defendant had acquired the same from the year 1992 by clearing virgin and unoccupied land (commonly and locally known as "kushika") and the 1st Defendant had built big, modern, sustainable and durable house built with bricks blocks and thatched with iron sheets commonly known as m’south/msauzi 4. That, after having applied for the customary right of occupancy: the village assembly meeting was convened and minutes were prepared thereby accepting the 1st Defendant's and his children request and the 1st defendant and his children paid directed payments to the district council on the total of 200 acres which had been used by the 1st Defendant's family for paddy plantation uninterruptedly from the year 1992 and by that time the 1st defendant liaised with the then village and plaintiff's alleged father was nowhere to be seen in the farm or around. [ Copies of a letter by Malagarasi village Executive officer dated 01/02/2016 marked as HMS 1, minutes of Malagarasi village assembly held on 22/01/2016 marked HMS 2 and a letter of District Executive Director for uvinza district council dated 18/03/2016 marked as HMS 3] As I have shown before, Dw1 testified that he acquired that land as a bush upon clearing it, in 1992 when he came grazing his cattle and found no body and there were no house or shambas. He cleared it and started using it until now. By that time the chairman was called Pauson. He started cultivating it, built his houses and buried, his parents there. But he also admits there were old mango trees planted there. This evidence is supported by Dw2 as shown above. Dw2, it should be noted was in the village government in 1992 according to his evidence. When cross- examined by the plaintiff’s counsel, he said did not know who lived in the land before 1973 and did not know who planted those mango trees. He admits, they must have been planted by someone. Further he said in 1992 the 1st defendant applied from the village government for authority to live in that land because he had cleared it. This statement, far and above, contradicts not only his evidence in chief, but also the evidence of the 1st defendant under paragraphs 3 and 4 of the amended WSD. It is plain that he said, he cleared the bush in 1992 and started applying for ownership from the village authority in 2016 and yet says there were old mango trees. Page. 3 Although Dw1 did not tendered the letters referred but the same are dated 1st February 2016 and 22nd January 2016 as mentioned in paragraph 4 of the said pleadings. But still, there is the evidence of Dw3 who was the village chairperson in between 2014 to 2024. He said received the application to legalize his ownership of the land he acquired in 1992. He received his application in 2016. That was not enough, pressed further under cross-examination by Mr. Mwangati, he said, the 1st defendant wanted a bigger land than what was authorized to him in 1992. The second time he came, was in 2000 when he was given more land than he had. All this is not in line with facts as in the pleadings and 1st defendant’s evidence. I am of the opinion that the said contradictions go to the root of the dispute. Material contradictions as the above, normally lower the credibility of the witnesses, as held in the case of Africarriers Limited vs Millenium Logistics Limited, (CAT), Civil Appeal No. 185 of 2018 at page 13 that; “Contradictions that go to the root of the matter blemish the evidence and taint the witness's credibility”. It has been stated throughout the proceedings that lands, in old times, was acquired by among other ways, clearing the unoccupied forest and take possession. It means the forest, must be a no man’s land. It does not appear that the 1st defendant even after acquiring land in that manner still went on to apply for a lawful authority to use it. This, I think is not true. He must be telling his own story which is not consonant with the real situation. Even assuming that was true, still in 1992, there was no land which was without the owner. It had been planted in it mango trees and it was therefore not a no man's land. It must have been a village land or general land or privately owned. I am saying so because according to Dw2, when cross-examined by Mr. Celestine Ngailo state attorney for the 2nd to 4th defendants, he said, “I did not know the plaintiff. I heard about the claims against that land is from the family of Kamelampasa. The village was registered in 1973, and it had its land and the land in dispute was in that village. He got the land first and then came to apply for ownership. He had to apply first before taking possession. I know and I have testified on what we did. He applied for bigger land in 2000”. If his evidence is true, then the land he said was clearing and therefore taking possession was property of the village, since upon registering the village in 1973, all land that was not occupied or reserved for other purposes by the government automatically was the village land. How then, Dw2 and Dw3 allocated that land to the 1st defendant who after all had been in possession as alleged. But still, there is no proof that he was allocated that land. There is no document shown that at least the village gave that land to him even against the law. All he is saying are stories about how 200 acres was acquired by clearing the bush.If I may be pardoned for so saying, I do not believe and trust the story told by the defence. It is rather contradictory in nature. On the other side, as I have shown before Pw1 said, his father was born in 1918 at the same place. He lived there until during operation vijiji in 1973 when they were moved but still retained their land for agriculture. It is his father who planted trees and the land belonged to him. Pw2 who said knew the plaintiff’s father well came to the village in 1963 and lived there since. Pw3 as well said came to the area in 1985 and saw the deceased father in the land that had mango trees since they lived in the neighborhood. He said, they started seeing 1st defendant in 1996 in the land. Page. 4 The evidence of the plaintiff therefore tells at least a consistent and plausible story that it is likely and therefore true that a person who lived in the land since 1963 as Pw2, is better placed to know what happened to the same village than Dw2 who said came 10 years later and was by then 13 years old. Still, Pw1 tendered exhibit P2, which is a mango selling agreement. It was executed in 2010. Clause 6 of the same, names the 1st defendant as the guardian of the land left by the plaintiff's father. Exhibit P2 supports the fact that the 1st defendant lived but never had been the owner, that is why he was allowed to harvest mangoes from one tree out of 62 trees that were in the place. Apart from what I have shown, why did 1st defendant who said lived in the land uninterrupted for all those years, acquired and took possession for all those years, but started applying for allocation of the land that belonged to him in 2016, after having stayed for all those years, and after death of the plaintiff's father. I find the plaintiff has proved that the land in dispute belonged to his deceased father. Therefore, the first issue is determined in favour of the plaintiff. The last is issue is to what reliefs are the parties entitled to. It has been stated that the land in dispute is 200 acres. Since, it has been held that the same is the plaintiff’s, it follows therefore that the judgement is entered in favour of the plaintiff with costs following the event. Dated at KIGOMA this 12th of December 2024 . A. K RWIZILE JUDGE OF THE HIGH COURT Page. 5