abel samson vs aron yakobo ndalubonee and 2 others 2023 tzhc 18938 14 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZAN (IN THE DISTRICT REGISTRY OF KIGOMA)

AT KIGOMA

LAND DIVISION

ORIGINAL JURISDICTON LAND CASE NO. 16 OF 2021 L.

ABEL SAMSON TIFF

VERSUS ARON YOKOBO NDALUBONEE (THE ADMISTRATOR OF THE ESTATE OF THE LATE ELIYA NTAGAGE) pT DEFENDANT V KASULU TOWN COUNCIL 2ND defendant HON. ATTORNEY GENERAL 3’^° DEFENDANT '1 ■v. JUDGMENT 7/6/2023 & ■ xX Mlacha,J. The plaintiff, Abel Samson (35) filed a suit against Aron Yackobo Ndalubonee (The administrator of the estate of Eliya Ntagage), Kasulu Town Council and the Attorney General (hereinafter referred to as the first, second and third defendants, respectively) claiming to be the lawful owner of a piece of land (unsurveyed) located at Kigule street, Kigondo ward, Kasulu Town, Kigoma 1 region measuring 4.5 acres. It was stated that the plaintiff's neighbours are Simon Nzabhuka, Jabu Mazibha, Samweli Bijoga and Kigule primary school. The land was estimated at a value of Tshs 10,000,000/=. The plaintiff stated that he bought the land on 2/9/2015 from Mr. Elias Ntagage (now deceased) for Tshs.2,500,000/= vide a sale agreement which was annexed. He developed it by planting trees and preserving the natural forest. The land was later encroached by the school hence the dispute. Tl^e plaintiff prayed to be declared the lawful owner of the land, a declaration that the second defendant is a trespasser in. the land, compensation of the land as an alternative and general damages as the court can deem fit. I The first defendant did not file any defence to the amended plaint. He ■ ■ ■•

I supported the Claim. The second and third defendants filed a defence to the amended plaint and denied the claim. They stated that Elias Ntegage could \ • not sell the land legally in 2015 because he had surrendered the same to the school in 2005. A copy of minutes of villagers who surrendered the land to the school was attached. It was stated further that the alleged neighbours of the plaintiff are very far from the suit land. It was added that they don't have any dispute with the school. The sale agreement was said to be 2 doubtful for want of signatures of village leaders. The plaintiff was put to strict proof of his allegations. Efforts to settle the dispute through mediation could not be successful. With the assistance of counsel, Thomas Msasa advocate for the plaintiff and Anold Simeo and Edwin Rwekaza state attorneys for the second and third defendants in the presence of the first defendant m person, the court framed two issues namely; one, who is the lawful owner of the land and two, to what reliefs are the parties entitled to. The plaintiff called 5 witnesses. The defendant had 4. PWl Abel Samson (35) told the court that he bought the land 4.5 acres from the late Elias Ntagage in 2015 for Tshs. 2.3 Million. He bought it through a sale agreement which was witnessed by Mr. Simon Madai. The sale T . ' . ........ ■ ..... *^4^ agreement was received marked Pl. He

cultivated sweet potatoes and cassava. He went to school in November 2015. He came back in 2019 found that the school had trespassed into his land by planting beacons which put his land to be part of the school land. He complained to the town director who referred him to the land officer. They moved to the site and discussed but could not reach an agreement. He decided to serve them the 90 days' notice of intention to sue the government and came to file the case. He 3 asked the court to declare him the lawful owner of the land. He said that he can be compensated as an alternative means. A copy of the 90 days' notice was received as exhibit P2. In cross examination, he told the court that he informed the village chairman, Mr. Nashon, of his intention to buy the land. He insisted that he went to school soon after the purchase in 2015. He went for a master's of science in public health. He added that agficyltural activities were going on up to 2019 when he was prevented to cultivate on the land. He said that Mango and 'Mkajwali' trees are still there todate. PW2 Yudesi Pori (59) is the wife of the late Elias Ntagage. She said that her husband sold the suitland to the plaintiff in 2015. She asked the court to assist him (plaintiff) to get the land. PW3 Simon Madai (57) told the court that he witnessed the sale agreement. He complained that his land was taken also by the school. He

complained to the town director who had promised to attend the problem but he has not done anything to date. He did not opt to sue. PW4 Petro Michael Bujoga (54) told the court that Elias Ntagage was his neighbour at Kigule. His land was taken by the school. That of Elias was also taken. Elias sold his land to Samson, the plaintiff. He added that the school was built on the land without Consent of owners. When he was referred to the minutes, no 34 in cross examination, he denied the name of 4 Petrol Charles as his name. He said that he never sat at the meeting. He admitted that people were involved before building the school but hastened to say that he never attended the meeting. PW5 Jabu Maziba (56) told the court that Elias Ntagage sold the land to the plaintiff in 2015. The, land was later invaded by the school in 2019. They complained to the town director without success. He denied to have given his land to the school. He accused the minutes saying they might have been forged. He denied to attend the meeting. It was the evidence of DWl Kurwa John Saso (53) that he has been at Kigule primary school for 19 years now. He is a teacher. He started to teach at Kigondo Primary School in 2002 before being moved to the new school. He said that there was a problem of distance for pupils which caused the demand for another school. People were summoned in 2004 to discuss the matter.

There were suggestions to build another school in Nyamavuye or Kigule. Majority of people in attendance suggested Kigule. They asked I villagers of Kigule to sit and agree to release their land for building the school. They sat in 2005 and agreed to release 25 acres. Mzee Elias Ntagage attended the meeting. He identified the minutes and asked the court to receive them. An objection was raised by Mr. Eliuta Kivyiro successful. The 5 court said that he could not tender the minutes because he is not the author, addressee or custodian. They were left to be tendered by another witness. DWl went on to say that they started to build classrooms in 2006. They finished 2 rooms in 2007 and shifted standard 3 and 4 to Kigule. They built 2 more rooms and the house of the head teacher in 2008. They whole school ■1 shifted to Kigule in 2008. They got more money and added classrooms and >1s, the staff room making the status of the present school / He asked the court to find that the land belongs to the school. In cross examination, he told the court that the plaintiff appeared in 2021 to demand ownership of the suit land not earlier. He went on to say that he attended the handing over of the land to the school not the village meeting. He said that there was a village meeting which Involved people who had land in the area. They agreed to release their land foitschool purposes. DW2 Jacob Aron

Ndaluboneye (66), the administrator of the estate of the late Elias Ntagage told the court that he knew that the plaintiff had bought the land from Mr. Elias Ntagage through a perusal of documents. He bought 4.5 acres atTshs 2,300,000/=. He supported the plaintiff's claim of the land. DW3 Jacob Vicent Ndavavisa (60) told the court that Kigule Primary School was part of Kigondo Primary School. It was formed to avoid congestion of 6 Im J students at Kigondo. Parents were called at Kigondo primary school to discuss the problem. The decided to build another school. He attended the I meeting. He was selected chairman of the committee of the new sjchool. He I called the first school committee meeting on 16/3/2004. One of the agendas was getting land to build the new school. The new school was to be built at Kigule. They engaged Kigule village government who advised them to wait for meeting of Villagers which could be called during the dry season. They waited up to the end of 2004 without success, They were called in March 2005 and shown the land. The land is in Kigule hence the name of the school. They received money in May 2005 for building 2 classrooms. They built 2 classrooms, the house of the teacher andjioilets. The school started in 2007. They finished building the classrooms and house of the teacher in i2008 and the school got its full operation. He led the school committee

from 2004 up to 2013. He proceeded to tell the court that the received the land from the village government and had no reason to question the way they got it. They were told that it was 25 acres but it was actually more. It was reduced to 25 acres during the survey. He stressed that there was no any dispute in the land from 2004 up to the 2020 survey. He argued the court to declare the land to be property of the school. 7 DW4 LIDIA MABULA (39) is the head teacher of Kigule Primary School. She was posted there in April 2020. She told the court that she knew the way they got the land through school documents which included the minutes. He received them from Mwalimu Gervas, the former head teacher. She was told that the land had 25 acres. She initiated a process of surveying the land which was done on 7/7/2020. Boundaries were fixed with. bcac;ons. She referred the court to the minutes which show that villagers released their land to the school without any payment. The minutes were received marked exhibit DI. Responding to questions during cross examination she said that the school was registered on 4/1/2004. She went on to say that the land officer came on 7/7/2020 to survey and put beacons on the land. • The court had a chance to visit the suit land being led by PWl and DW4. The street chairman^ward leaders and the district education officer were also in attendance though not

engaged in the exercise which was done by the court, PWl and DW4. PWl and DW4 lead the court through the suit land and the boundary line fixed by the second defendant generally. The suit land, defined as 4.5 acres, is a piece of land adjacent the road or one side and surrounded by school land. It appeared to be a bushland without any plants save for two mango trees and some bush trees and tall grasses. Like 8 the rest of the land, it appears to have been deserted for some years. The school land had a marked line moving through with beacons. Some small trees (newly planted) were found along the boundary line. I will now move to discuss the issues. The first issue is the main issue. It was who is the lawful owner of the suit land? I have three areas for discussion on this issue namely, demeanour of witnesses, the evidential weight and the legality of documents tendered as exhibit. I will discuss them together. Looking through, I could not doubt the evidence of DWl, DW3 and DW4. They appeared as witnesses who had nothing to hide, witnesses of truth. I believed them. I could not doubt the evidence of PWl on the existence and execution of the sale agreement, exhibit Pl. My problems is on its legal effect. I will shpw this later. I did not believe the words of PW2, PW3, PW4, PW5 and DW2. They appeared as having a hidden agenda and an interest to save. I find both exhibit Pl and DI as

documents which were duly signed by the parties, no forgeries. I find as a fact established through the evidence of DWl, DW3 and DW4 that parents and teachers of Kigondo primary school 9 had a problem of congestion and long distance for students. They called a meeting in 2004 to discuss the problems. It was decided that another school should be started. They started a school within the school in 2004 while looking for a place to build another school. It was agreed that it should be built at Kigule. By then Kigule was a village under a village government. The village government was engaged and agreed to look for land to build the school. They called a meeting of villagers who included people who had land in the proposed area. They sat down and agreed to release their land, 25 acres for the new school. People agreed to release the land freely. The school was built and operated from 2007 up to 2020 without a dispute. The evidence is clear that in July 2020 the school administration decided to fix their land with beacons. The surveyors found the land to be more than 25 acres. They surveyed 25 acres and fixed beacons. The rest of the land was left for the villagers. They planted trees along the boundary line. This information reached the plaintiff who came to the suit premises. It came to his knowledge that his land had been encroached. He started a move to recover the land without

success hence the notice of intention to sue and the suit. 10 The plaintiff says that he found the encroachment in 2019 but I think the correct year was 2020 or later because the survey was done by DW4 who was not present in 2019. She said the beacons were fixed in July 2020. There was no fixing of beacons in 2019 so there could not be no confrontation prior to 2020. The defendants say that the plaintiff came to complain in 2021. It I is likely that he came in this year because this is the year when he served the 90 days' notice and filed the suit. 1%^, \ I could not doubt the authenticity of the minutes given the । age and appearance of the papers. They were also properly identified by DWl and DW4. The later said that she received them from Mr. Gervas, the former < head teacher. DW4 did not appear to speak a lie. I believed her words. Like DWl, DW3 spoke of the meeting and the minutes. The papers do| not have any sign of forgery. I believe them. I will take exhibit DI as containing genuine minutes of the meeting. It is thus my finding that there was a meeting of villagers in 2005 who resolved to release their lands to the village government for building the school as part of their contribution in developing education in the area. Mr. Elias Ntagage's name is in the minutes as No.

3. This proves that he released his land to the village government just like 11 others. The words of his wife (PW2) that he never released the land are therefore nothing but an open lie. Taking someone's land for public use attract compensation under section 3(lXg) of the Land Act, cap 113 R.E.2019 and the corresponding provisions under the Land Acquisition Act cap 324 R.E.2019 but if someone release his land freely as part of his contribution in the development of the nation, the law which demand 'to pay full, fair and prompt compensation' do not operate. Peoples' contribution to development is allowed and encouraged. That has been the spirit in many areas of this country. It is also part of our public policy and has been applied successful in many areas for many years. \ . ■ ■ Many schools, hospitals and roads were built that way. It is a voluntary agreement between the citizen and the government which like any agreement is binding and irreversible. That is to say, land once released for development use cannot be recovered or retaken back without a second agreement. Looking through I could not see anything showing that the land was taken forcibly as alleged by PW3, PW4 and PW5. If that was the case, there must have been resistance and evidence of cases. There was no resistance or cases in any court from 2005 up to 2021 showing that these wi^esses were 12 / ,/ J speaking a

lie. I think that what they said was merely aimed at defending the plaintiff and nothing more. If their lands were taken as alleged, they had no reason to wait for the arrival of the plaintiff. They were supposed to lodge complaints to the district council, district commissioner or town director. They could also file cases. No evidence of a complaint letter or case filed in any court. What about the sale agreement exhibit Pl? I have no problem with the I execution of the document as pointed out above. It appears that it was . ... II signed by Mr. Elias Ntagage and the plaintiff in 2015. My problemj is on the legality of it. I find it with problems. I have concern on two areas. One, based on the above discussion, it is obvious that Mr. Elias Ntagage had already given the land to the school in 2005. If that is the case, he had no \ title to pass to the plaintiff jn 2015 because the land was no longer his. It was therefore wrong to return to sell it again. Two, the land could not be sold without an endorsement of the street government because it was in a planning area under Kasulu town council. Kasulu town council was established on 17.06.2011 vide GN No. 175 of 2011 making all lands under its area to be a planning area, subject to the control of the planning authority which is the town council. Kigule village turned to be Kigule Street after the 13 establishment of the town

council. It became a planning area from that date subject to control of Kasulu town council. The use of its land was subject to Part IV (d) of the Urban Planning Act 2007. There was therefore a requirement to get the consent of the planning authority before anything is done on the land, including sales. The planning authority is the town council but its representative at the low level is the street government. If land is in a planning area and it is unsurvgyed, any disposition of it must get the consent of the planning authority through the street government. This has a lot of meaning. It brings knowledge to the planning authority that some changes of ownership are taking place in the area. It gives notice of a new comer for land in this country is restricted to Tanzanians. If the buyer is a foreigner, consent cannot be granted. If the land does not belong to the seller, consent cannot be granted etc. I think that Mr. Elias Ntagage skipped this stage because he was aware of what he had done earlier. If this requirement could have been complied with, the plaintiff could have been told that Mr. Elias Ntagage had no land to sell. He could be told that the land is property of the school. Failure to take the agreement to the local government for endorsement is the source all these problems and has adverse effect to the sale agreement. 14 Speaking of a simiiar arrangement contained

under section 8 of the Viiiage Land Act, cap 114 R.E.2019, this court had this to say in Isaya Edward v. Mwajuma Iddi, Misceiianeous Land Appeai No.lO of 2021 (High Court Kigoma), pages 8 and 9 it was said as under: "7/7 practice, the parties will go with their witnesses,, at least two 11 from each side .... In a good system of land management, the chairman and the village executive secretary will move to see the land before witnessing the sale. They will check the boundaries and call neighbours to express their views and register objections if any. They will then come to the office for signing. Some percentage of the sale may be retained by the village\ for development purposes using village bylaws. This washot the base here^aking the sale agreements illegal" It was thus important to sign the contract before the chairman and secretary of the street government. That was not done making the saie agreement, exhibit Pl, iilegai and inoperative in law. 15 As for the reliefs, I can simply say that, there is no evidence showing that the plaintiff is the owner of the suit land. His case is found to be baseless. It is dismissed with costs. It is ordered/so. L.M. Mlacha Judge ,4 14/7/2023 ifu. Court: Judgment delivered in the presence of parties^Right of appeal . explained. J LM lacha Judge 14I7I2Q13 16