Judgement Land Case No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI LAND CASE NO. 14 OF 2023 ARON JACOB MLANG’A (As a legal Representative of the late Kidaisho Kimbelwa Mlang’a)................................................PLAINTIFF VERSUS UCHIRA VILLAGE………………..……………………….… 1ST DEFENDANT MOSHI DISTRICT COUNCIL…..……………………….… 2ND DEFENDANT THE ATTORNEY GENERAL…………..………………….… 3RD DEFENDANT JUDGEMENT 03rd September & 30th October, 2024 MONGELLA, J. The matter at hand involves a piece of land measuring two (2) acres located at Uchira Juu area within Uchira village at Kirua Vunjo Kusini Ward within Moshi district (hereinafter referred to as the suit land). The land is bordered on the North by the late Kidaisho Kimbelwa; East by Mazumba and Mauki; South by Korongo and Mazumba and the West by Korongo. The plaintiff sues in the capacity of an administrator of the estate of the late Kidaisho Kimbelwa, his biological father. He demands for the defendants to return the suit in dispute to him alleging that the same was only Page 1 of 13 temporarily hired to the 1st defendant to be used for cattle dipping trough facility “josho.” In brief, the background of the matter as observed form parties’ pleadings is to effect that: the late Kidaisho acquired for himself 20 acres of land in Uchira village through bush clearing. Sometime in 1970, the 1st defendant requested a parcel of said land for constructing a cattle dipping trough. The facility was to be used by pastoralist villagers including the late Kidaisho. The plaintiff claims that the late Kidaisho gave the 1st defendant an area measuring 10 metres wide and 50 Metres long for the cattle dipping trough. He said that the land was abandoned after 20 years of use, that is, in 1990. In all the times, the late Kidaisho‘s family continued using the surrounding land. He alleged that prior to his death, the late Kidaisho claimed for the land be returned to him and the 1st defendant verbally consented to do so. The plaintiff further alleged that on 15.05.2019, the 1st defendant encroached 2 acres of Kidaisho’s land which included the cattle dipping trough. He tried to resolve the dispute amicably, but in vain. He then sent a demand notice to the 1st defendant on 12.07.2019. This was admitted as Exhibit P2. He eventually served the 2nd and 3rd defendants with statutory notice as evidenced by Exhibits P3A and P3B. Since his efforts to amicably settle the dispute proved futile, he filed the claim at hand seeking for the following reliefs: Page 2 of 13 i. A declaration that the plaintiff is the lawful owner of the suit land. ii. Payment of special damages of T.shs. 1,200,000/- per season as the Plaintiff was harvesting tomatoes from the suit land from date of encroachment to date of Judgement. [sic] iii. Payment of general damages for disturbances as shall be assessed by this Honourable Court. iv. Costs of this suit. and; v. Any other relief this Court deems just to grant. In their defence, the defendants claim that the entire suit land was legally and permanently given to the 1st defendant by the late Kidaisho in 1970. They asserted that the land never reverted back to the late Kidaisho as claimed by the plaintiff nor did the late Kidaisho ever requested the land to be given back. Following failure in mediating the parties through the Court’s annexed mediation, the following issues were framed for guidance in resolving the dispute, as conceded by the parties. 1. Whether the Plaintiff is the lawful owner of the disputed land. 2. Whether the 1st defendant trespassed into the disputed land. 3. To what reliefs are the parties entitled to. In consensus, the matter proceeded by witness statements. The plaintiff filed four witness statements, but called three witnesses. Testifying as PW1, he tendered four exhibits. On their part, the Page 3 of 13 defendants furnished three witnesses with no exhibits. Throughout the trial, the plaintiff was represented by Mr. Julius Semali, learned Advocate. On the other hand, the defendants were represented by Ms. Hadija Matewele, Mr. Muhsin Rajabu Kirua and Mr. Lucas Myula, all State Attorneys. With regard to the 1st issue, on ownership of the suit land, the plaintiff claimed that the suit land belongs to his late father, one Kidaisho Kimbelwa Mlang’a. According to him, his late father acquired 20 acres of land by clearing the bush and settling thereat. Speaking about how the 1st defendant found himself on the disputed land, he averred that in 1970, the 1st defendant approached the late Kidaisho requesting for an area for construction of a cattle dipping facility. He claimed that the late Kidaisho gave the 1st defendant an area measuring 10 metres wide x 50 metres long. That, the 1st defendant used the land for only 20 years and abandoned it. He claimed further that the property had reverted to the late Kidaisho. The plaintiff went on testifying that in 1997, the 1st defendant approached the late Kidaisho requesting to use the suit land, but he refused. That, since the 1st defendant pushed further for the acquisition, the deceased decided to refer the matter to PW2 one Escary Fandi Ndosi, who was Divisional Secretary of West Vunjo at the time. PW2, received the complaint and forwarded the same to PW3 one, James Merinyo Maro, the Ward Executive Officer of South Kirua Vunjo. The dispute was mediated whereby the 1st defendant was found to have no good title, thus the land declared to belong to the late Kidaisho. These assertions pertaining the dispute being Page 4 of 13 referred to PW2 and forwarded to PW3 for the same to be resolved were corroborated by testimonies of PW2 and PW3. When called to testify, PW2 averred to have been the Divisional Secretary from 1987 to 1997. He said that during his tenure the cattle dipping trough was not operational. In addition, PW3, who worked in South Kirua Vunjo Ward from 1990 to 2004, testified that the cattle dipping trough was not operational during his tenure. In essence, all the plaintiff’s witnesses insisted that the suit land belongs to the late Kidaisho and the 1st defendant has been a mere invitee all the time. The defendants protested claiming rightful ownership of the suit land by the 1st defendant by virtue of donation from the late Kidaisho. To prove their claim, they presented first one, Julius Augusti Mkojera (DW1), the current Chairman of Uchira village (a position he stated to have served from 2014 to 2019). DW1 testified to have also served as hamlet Chairman of Kati Juu Hamle for 21 years from the year 1990. It is within this hamlet the cattle dipping trough is located. He alleged that the late Kidaisho unconditionally gave the suit land to the 1st defendant whereby a cattle dipping trough was constructed and used by the villagers since 1970. He claimed further that the late Kidaisho never reclaimed the suit land, a fact he confirmed by virtue of his position and a member of Uchira Village Council and Uchira Village Assembly. In cross examination, DW1 attested that the cattle dipping trough seized being operational in 2016 and the same was handed over to the ward. Page 5 of 13 DW2, one, Almanda Adriano Lupola, the Village Executive Officer (VEO) of Uchira village, testified that when handed over management of the village in 2018, he was as well handed over properties belonging to the village, including the cattle dipping trough. He claimed that the total area of the cattle dipping trough measured 2 acres. He said that he was informed that the land was donated by one Kidaisho in 1970. In cross examination he alleged that in 2006 the government allocated funds for renovating the cattle dipping trough. While he claimed not knowing the exact time the alleged renovation was done, he averred that the renovation was conducted the same day. DW3, one, George Mbwambo, the livestock officer for Moshi District Council, claimed that the Uchira cattle dipping trough, a name allocated to the cattle dipping trough in the suit land, is among the 9 cattle dipping facilities within Moshi District Council. He further testified that TZS. 4,000,000/= was allocated to renovate the suit land in 2006 whereby the funds came from the Local Government Capital Development Grant. About completion of the renovation, he alleged that the renovation was completed in January 2007. Both DW2 and DW3 supported the 1st defendant’s version that the late Kidaisho donated the suit land to the 1st defendant. After analysing the evidence on record, I wish first to restate the settled principle on onus of proof on in civil cases, to wit, that the standard of proof is on preponderance of probability or balance of probabilities. This is well stated under Section 3(2) (b) of the Evidence Act [Cap 06 R.E 2022]. Under the settled standard, courts are Page 6 of 13 required to weigh the evidence of the two parties and rely on that which is heavier than the other. See, Paulina Samson Ndawavya vs. Theresia Thomasi Madaha (Civil Appeal 45 of 2017) [2019] TZCA 453 and Crescent Impex (T) Limited vs. Mtibwa Sugar Estates Limited (Civil Appeal No. 455 of 2020) [2023] TZCA 17501, both at TANZLII. As stated earlier, there is no dispute that the late Kidaisho gave land to the 1st defendant for use as a cattle dipping trough facility and the same was constructed and used, albeit for some time. The contest is on two issues being: one whether the land was given on permanent terms and it never reverted back to the late Kidaisho. Two, whether he gave 2 acres of land to the 1st defendant or 10 x 50 metres. From the evidence on both sides, it is clear that the facility has been abandoned for quite a long time. While the plaintiff claims that the land was given to the 1st defendant on temporary basis whereby it was to revert back to the late Kidaisho, the defendants claim that it was permanently donated. It is unfortunate that both parties have asserted mere statements as there is no document substantiating their respective assertions. I am aware of the settled position that every witness is entitled to credence and to be believed, unless where his testimony is inconsistent, contradictory or implausible. See, See: Goodluck Kyando v. The Republic, Criminal Appeal No. 118 of 2003 (CAT, unreported). This right is accorded to the witnesses on both sides of the case. Page 7 of 13 The law is also settled that the onus of proving facts shifts to the defendant only when the plaintiff has discharged his duty by proving his assertions. See: M & M Food Processors Company Limited vs CRDB Bank Limited, Civil Appeal No. 273 of 2020, (CAT at DSM, found at www.tanzlii.go.tz). Since the plaintiff has the duty to prove his assertions, I expected him to state the exact period under which the land was to revert to the late Kidaisho. In his evidence, it appears that he somehow changed gears and contended that the non-use of the cattle dipping trough for a long time rendered the land to revert back to the late Kidaisho. The question is therefore whether the non-use of the cattle dipping facility caused the same to automatically revert back to the late Kidaisho. In my considered view, I do not find that plausible. In the absence of the specific tenure of the alleged contract and the fact that a permanent structure was built for use by all the village members signifies that the land, especially where the facility has been constructed, was donated to the 1st defendant on permanent terms. Regarding the size of the land in dispute, I find both parties adduced mere assertions. While the plaintiff claimed that the land donated measures 10 x 50 metres, the defendants claim that the same was 2 acres. It was the plaintiff’s evidence that the family of the late Kidaisho continued to use the land surrounding the cattle dipping trough undisturbed until the dispute at hand arose. It was further the plaintiff’s evidence (at para 11 of the PW1’s witness Page 8 of 13 statement) that within the 2 acres demanded by the 1st defendant, there is a family of one Chanze residing therein undisturbed and that the said family was invited by the late Kidaisho. These facts were never disputed by the defendant. In fact, they were confirmed by DW1 in his testimony, when cross examined by the plaintiff’s counsel, whereby he agreed that the said family lives within the disputed area that the 1st defendant had put beacons and that some of the family members have been buried therein. Under the circumstances, I find the claim by the plaintiff that the piece of land donated to the 1st defendant was 10 x 50 metres and not 2 acres. This is because, if the 1st defendant was indeed donated 2 acres as he claims, why then did he let the late Kidaisho allocate part of it to the Chanze family to even use the same for burial. Why did she also let the plaintiff’s family to continue cultivate on the land for all this while. These questions render the plaintiff’s version that the land donated to the 1st defendant was only 10 x 50 metres, plausible. The second issue is whether the 1st defendant trespassed on the suit land. It is alleged that in 2019, the 1st defendant entered the suit land and started inserting beacons therein. This fact was not contested by DW1, DW2 and DW3 who seemed to have participated in the process which they claimed to have been preparations for construction of modern slaughterhouse. Having ruled that the 1st defendant was only donated 10 x 50 metres and not 2 acres, I find that the 1st defendant trespassed into the suit land Page 9 of 13 exceeding the 10 x 50 metres donated to him for construction of the cattle dipping trough. Moving on to the reliefs the parties are entitled to. The plaintiff has proved on balance of probabilities that the late Kidaisho is the lawful owner of part of the suit land which exceeds the 10 x 50 metres where the cattle dipping trough has been constructed. Since the plaintiff filed this matter on the late Kidaisho’s behalf, as his administrator, I hereby declare the late Kidaisho the lawful owner of the suit land. Shall the 1st defendant need more land for the anticipated modern slaughter house, he shall negotiate the same with the late Kidaisho family. As to specific damages of TZS.1,200,000/= claimed by the plaintiff; the law is clear that specific damages must be specifically pleaded and strictly proved. See, Stanbic Bank Tanzania Limited vs. Abercrombie & Kent (T) Limited (Civil Appeal 21 of 2001) [2006] TZCA 7; M/s Universal Electronics & Hardware T. Limited vs. Strabag International Gmbh Tanzania Branch (Civil Appeal 122 of 2017) [2021] TZCA 125 and; SANLAM General Insurance Tanzania Ltd vs. Dennis Charles & Another (Civil Appeal No. 51 of 2021) [2024] TZCA 105. In SANLAM General Insurance Tanzania Ltd vs. Dennis Charles & Another (supra), when expounding the difference between general damages and specific damages, the Court cited the case of Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Page 10 of 13 Kericho HCCA No. 45 of 2003, (a Kenyan decision) in which Kimaru, J. aptly held that: "In current usage, special damage or special damages relate to part pecuniary loss calculable at the date of the trial, whilst general damages relate to all other items of damage whether pecuniary or non-pecuniary. If damages are special damages they must be specifically pleaded and proved as required by law. For a loss to be calculable at the date of trial it must be a sum that has actually been spent or loss that has already been incurred.... Special damages and general damages are used in corresponding senses. Thus, in persona/ injury claims, 'special damages' refers to past expenses and lost earnings, whilst 'general damages’ will include anticipated loss as well as damages for pain and suffering and loss of amenities.... Special damage is in the nature of past pecuniary losses or expenses while general damage is futuristic pecuniary loss or expenses.” In the matter at hand, the amount claimed by the plaintiff was speculated to be the value of tomatoes had the plaintiff cultivated the same at the time of dispute. These are clearly anticipated loss, thus not falling under special damages as explained in the holding in Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Kericho (supra). Anticipated loss can only be covered under general damages which incorporates futuristic loss or expenses. Special damages on the other hand originate from past pecuniary loss or expenses. In the circumstances, the plaintiff is found to have failed to establish the special damages he claims for. Page 11 of 13 The plaintiff also prayed for general damages. General damages are awarded under discretion of the court upon considering the evidence on record and circumstances of the case. This was well stated in the case of Ami Tanzania Limited vs. Prosper Joseph Msele (Civil Appeal 159 of 2020) [2021] TZCA 668 TANZLII, whereby the Court of Appeal expounded: “In law, general damages are awarded at the discretion of the court having considered the evidence on record and all circumstances of the case and having satisfied itself that the claimant has suffered materially or mentally following the unlawful action of the defendant.” Defining what general damages entail the Court in Tanzania Saruji Corporation vs. African Marble Company Ltd. [2004] TLR 155 stated: “General damages are such as the law will presume to be direct, natural or probable consequence of the act complained of; the defendant’s wrongdoing must, therefore, have been a cause, if not a sole, or a particularly significant, cause of damage.” The above holding indicates that there ought to be some proof that such wrongdoing by the defendant caused damages to the plaintiff. The plaintiff however failed to express the loss he suffered. In his testimony, he showed that he is still using the area surrounding the cattle dipping trough. Even the alleged anguish that might have been caused by the 1st defendant demanding the extra land has not been thoroughly explained by him. In that respect, general damages cannot be awarded either. Page 12 of 13 From the foregoing observations, this suit partly succeeds as expressed hereinabove. Costs of the suit to be borne by the defendants. Dated and delivered at Moshi on this 30th day of October, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 13 of 13