andrew mahundodamian nyarandajoachim zephania others vs the permanent secretary ministry of natural resources tourist another 2018 tzhclandd 45 9 march 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 35 OF 2013 ANDREW MAHUNDO, DAMIAN NYARANDA, JOACHIM ZEPHANIA & 38 O THERS............... DEFENDANTS VERSUS THPERMANENT SECRETARY, MINISTRY OF NATURAL RESOURCES AND TO URIST....... .1st DEFENDANT ATTORNEY GENERAL................................. 2 nd DEFENDANT JUDGMENT P.M. Kente.J: The Plaintiffs namely Andrew Mahundo, Damian Ntaranda, Joachim Zephania along with 38 others instituted this suit claiming against the 1st defendant for what they called “the recovery of their lands situated at Mwambisi Village in Kisarawe District in coast Region". They prayed for the judgment and decree to be entered against the 1st defendant as follows:- (i) That, the plaintiffs be declared lawful owners of the land in dispute. (ii) That, the 1st Defendant be ordered to enter (sic) vacant possession of the disputed land. l (iii) That, this Honourable Court be pleased to make an order for permanent injunction restraining the 1st defendant and any person acting on its behalf from conducting any activity in the lands in dispute. (iv) That, this Honourable Court be pleased to order the 1st defendant to pay them special damages of Tshs. 430.000.000/= as compensation for their destructed houses and crops following the eviction whereby each of them should be compensated at the estimated value of Tshs. 10.000.000/= (v) That, this honourable court be pleased to order payment of Tshs. 900,000,000/= as general damages following the act conducted by the 1st defendant. (vi) Any other relief this honourable court deems fit and just to grant. The defendants in their written statement of defence have challenged the plaint by completely denying the entire allegations. They implored this court to dismiss this suit with costs. The plaintiffs appeared in persons while Mr. Mtae learned State Attorney represents the defendants. Immediately before the commencement of hearing the following issues were identified from the pleadings and framed so as to be determined by the court:- (i) Whether the plaintiffs are lawful owners of land situated at Mwambisi Village in Kisarawe District, Coast Region. (ii) Whether the 1st Defendants issued notice, invaded, demolished houses and evicted the plaintiffs from land situated at Mwambisi Village in Kisarawe District. (iii) If the 2nd issue is answered in affirmative whether the plaintiffs are entitled to any compensation. (iv) To what reliefs are the parties entitled to. In a bid to prove the plaintiffs' case, one Andrew Mahundo who testified as PW1 stated that he bought his piece of land from another witness PW4 (Mohamed Kapungu). Another witness is PW2 Damian Nyaranda. He told the court that he bought his piece of land in dispute in 2008 from one Amos Tambukwa. Joachim Zephania (PW3) contended that he had been living in the Mwambisi village and used the disputed land since 2009 as a tenant but later on he bought it. PW4 testified that he has been living in the house which was given to him by his former employer the 3 National Housing Corporation who was running the Kisarawe Bricks Factory. In support of the defence case DW1 (Mathew Munuo) stated that the disputed land the subject matter of this suit was within the Pugu Forest Reserve contrary to the Forest Act No. 14 of 2002 which governs forest conservation in Tanzania. He contended that the claimants were lawfully residing in the Forest Reserve during the time when Kisarawe Bricks Factory was still operational in the said Reserve. He added that, the said Factory was later on closed down or moved out of the Forest Reserve and therefore its ex-employees were required to move out of the Forest reserved too. This testimony was corroborated by the testimony of DW2 one Elias Ntibansubile (a Forest Surveyor) who told the court that the land in dispute is situated within Pugu Forest reserve. He added that during the year 2009/2010 when he went to verify and restore the Pugu Forest Reserve boundaries (beacons), he found old dilapidated Buildings in the said reserve. He stated that the presence of the factory was justifiable as the owners had sought and obtained a legal permit allowing them to conduct their business in the forest reserve. 4 According to Pingu Mohamed Betela DW3, who is a former resident of the real Mwambisi Village which he said was located outside of the Pugu Forest Reserve, there is no village inside the forest reserve which is known as Mwambisi. He added that the current Mwambisi is part of Kisarawe village. According to the witness, there was no one living at Mwambisi area after “operation vijiji" and since 2011 there was no one living at Mwambisi area. He added that the area that the plaintiffs claim to be theirs is within Pugu Forest Reserve. In the final submission Mr. Mtae learned State Aattorney for the Defendants contended that the plaintiffs have failed to prove that they own and lawfully occupy the disputed land. He relied on the provisions of Section 110 of the Evidence Act, [Cap. 5 R.E. 2002] to support his contention. I have gone through the pleadings, and testimonies in relation to the first issue. In the first place, I agree with the counsel for the Defendants who submitted that the plaintiffs have failed to prove their allegations that they were lawfully owning the suit land. It is on record that the plaintiffs who came to testify in court contended that they own the land in dispute but none of them was able to adduce any 5 evidence to prove if he owned that land and under which type of tenure. The law is very clear that the one who alleges must prove. In this case the plaintiffs’ claim to own the disputed land that is however said to be within the Forest Reserve. The Plaintiffs have not established that the so called Mwambisi village which is located deep inside the Pugu Forest Reserve is a duly registered village as defined under section 2 of the Village Land Act [Cap. 114 R.E. 2002]. Going forward and as stated before, looking at the evidence from the defence side, it is evident that the plaintiffs were formally employed by the bricks factory. There is nothing on record upon which I could hold and find that the plaintiffs were indigenous and residents of the alleged Mwambisi Village. There was also the fact that in fact, the plaintiffs had moved and settled at the disputed area after closure of the said factory leading to the termination of their services. For my part, I am bound to accept the correctness and proof of the above stated facts, there having been no attempt by the plaintiffs to challenge them. It seems to me therefore that, the disputed area was not a village which was commonly occupied by native residents. Rather it was part of the Pugu forest reserve, and, 6 properly interpreted, the creation of a settlement by the plaintiffs was nothing but an act of trespass. To that end the first issue is resolved in the negative. The plaintiffs were not the lawful occupiers and owners of the piece of land forming the subject matter of the present dispute. Only the factory workers were allowed to stay and live within the forest reserve by virtue of their employment. After termination of their services, the plaintiffs who remained behind became trespassers. The next point for determination is whether the first defendant issued notices, invaded, demolished houses and evicted the plaintiffs from the land situated at Mwambisi village in Kisarawe District. I have already held and decided that the plaintiffs were unlawfully occupying land in the Forest Reserve. The defence case shows that the plaintiffs were duly notified of their unlawful settlement in the forest reserve and that they were required to demolish their houses and to move away. The defence case further showed that it was upon the plaintiffs’ failure or refusal in flagrant defiance of the said notices that the first defendant demolished their houses. For further and more importantly, the defence case showed and this was not sufficiently challenged that the area in dispute was not the real Mwambisi village, rather it was a recently created human settlement 7 within the forest reserve. Upon the above proved facts, it is certainly clear that the first defendant had issued notices requiring the plaintiffs to demolish their houses and move away from the disputed area and that, following their failure or refusal to comply, their houses were demolished. At the same time, the plaintiffs were forcefully evicted from the area in dispute. As regards the question as to whether or not the plaintiffs are entitled to any compensation, I was pressed with their contention that they had suffered untold suffering and damage after their houses were demolished and their properties including various crops destroyed. For that matter, they claimed sh. 430,000,000/= as specific damages for their destructed houses and crops. They also claimed general damages amounting to sh. 900,000,000/=. Mr. Mtae learned State Attorney appearing for the defendants submitted at length that the plaintiffs’ claims for specific damages were not substantiated because, one, they were not prepared by a qualified valuer and verified by a Chief Valuer of the Government and two, there was no wrong committed by the defendants to warrant the granting of any relief contained in the plaint. 8 For my part, I am disposed to accept Mr. Mtae’s second argument. At law, a person cannot be allowed to benefit from his own wrongs. To that end, I entirely subscribe to the holding by the Court of Appeal of Tanzania in the case of Tenende Budotela & Another V. The Attorney General, Civil Appeal No. 27 of 2011 (unreported) which was ably cited to me by Mr. Mtae that, trespassers are not entitled to any compensation. Moreover, it should be noted that in a representative suit like the instant one, to prove that each of the plaintiffs owned his or her portion of the suit land, each plaintiff was supposed to appear in court and testify in support of his claim. That duty is not left to those suing on their behalf. That is the law as it was stated in the case of NAFCO VS. MULBADAW VILLAGE AND OTHERS [1985] TLR 88 where the court of Appeal of Tanzania held that:- “There is no evidence as to when each villager had occupied or was in possession of the land. In any event each villager had to prove his own case. Each claim is different from the other. In terms of date of possession, of acreage, of the method of acquisition and so on. They were individual claims. A person may act and represent 9 another person, but we know of no law or legal enactment which can permit another person to testify in place of another”. In the present case, three witnesses testified out of 41 plaintiffs. Had the three plaintiffs been successful, the rest would have their claims dismissed for want of prosecution. In conclusion, and in passing I, only need to observe as the Court of Appeal of Tanzania did in the above cited case that, forests must be protected by law to prevent environmental destruction, deforestation and drought which, if left unchecked, would endanger and threaten the survival cf mankind, fauna, flora, birds, insects and other creatures and turn our country into a desert. For this reason the courts of law would not support trespass into forests. In the upshot, the plaintiffs’ claim is found wanting both in substance and merit and is accordingly dismissed with costs. Dated at Dar es Salaam this 9th day of March, 2018 P. M. Kente, ' JUDGE. 10