Land Case No

IN THE HIGH COURT OF TANZANIA LAND DIVISION (AT DAR ES SALAAM) LAND CASE NO. 188 OF 2022 ASALEA LUJABIKO KIHUPI..................................................................... 1stPLAINTIFF ELESIA A. KIHUPI.................................................................................. 2ndPLAINTIFF ELDA G. MSENGI................................................................................... 3rdPLAINTIFF CAROLINE S. MLAWA..........................................................4th PLAINTIFF VERSUS KISONGOI TIKWA MORETO........................................... 1st DEFENDANT GEORGE SIMON KIFUKO................................................ 2nd DEFENDANT JUDGMENT 29/8/2024 & 26/9/2024 A. MSAFIRI, J. The plaintiffs herein have instituted the suit against the defendants as shown above. The plaintiffs claim to be the owners of unsurveyed land located at Mpelamumbi Village in Chalinze, Coast Region, (herein the suit land), the plaintiffs alleges that they bought the suit land from Bernard Kwendako Zugazuga, Mohamed K. Msisi, Iddi Haljani Jamkonde, Saidi Mrisho Kingimali Saidi Hussein Saromu, Eksaudi Singa, Zainabu Omari Halili, Halili Omari and Jonasi Taratibu. The plaintiffs claims that they are i entitled to keep possession of the suit land thereof and be registered as owners. They pray for judgment and decree as follows:- i. A declaration that all that disputed land subject to this suit belongs to the plaintiffs and are entitled to keep possession thereof. ii. An injunction to restrain the defendants, by itself (sic), their servants or agents or otherwise howsoever trespassing into the said property and taking upon themselves the management of the said property, and denying the servants of the plaintiffs as well as the plaintiff's access to the said property. iii. Costs of and incidental to this suit be paid by the Defendants, iv. Any other relief(s) that the Honourable Court may deem fit. The defendants lodged their joint defence by filling their written statement of defence in which they vehemently denied the claims of the plaintiffs and put them to strict proof. In their written statement of defence, the defendants stated that the disputed land was legally within the proprietorship and administration of Kigoda Village since 1975 following the operation Vijiji Policy, the village in which the defendants were leaders. They prayed that the suit be dismissed with costs. Before the commencement of the trial, (4) four issues were framed and adopted by the Court as the issues in dispute. They are:- -AI f 2 1. Whether the plaintiffs are the lawful owners of the disputed /and located at Mperamumbi Village, Chalinze, Coast Pegion. 2. If the answer to 1 is in affirmative, then whether the defendants trespassed into the said land. 3. If the answer to 2 is in affirmative, whether the plaintiffs have suffered any damages. 4. To what reliefs are parties entitled to. At the hearing, the plaintiffs summoned (5) witnesses that are (PW1) Asalea Lujabiko Kihupi, (PW2) Caroline Shemu Mlawa, (PW3) Elda Geofrey Msengi, (PW4) Martin Reuben Jairo, (PW5) Kibwana Sultani Jahazi. Four Exhibits were tendered on the part of the plaintiffs. On the part of the defendants, they summoned (2) witnesses that are (DW1) Kisongoi Tikwa Moreto, and (DW2) George Simon Kifuko and seven exhibits were admitted in court. After hearing, the parties through their advocates filed their final submissions which I have taken into consideration while determining the matter. I will analyse the evidence adduced by parties while determining the issues. The first issue is whether the plaintiffs are the lawful owners of the suit land located at Mpelamumbi Vllage, Chalinze Coast Region. Here it was 3 the duty of the plaintiffs to establish that they are the lawful owners of the suit land. It is the cardinal principle of law that he who alleges must prove. This is embedded under Section 110(1), (2) of the Evidence Act, Cap. 6 R.E 2022 which provides; 110(1); whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 110(2) when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. In civil cases, the law places a burden of proof upon a person who desires a Court to give judgment in his or her favour and such a person who states the existence of facts has to prove existence of those facts. Such fact is said to be proved when in civil matters, its existence is established by a preponderance of probability. (See the decision of the Court of Appeal case of Ernest Sebastian Mbele vs. Sebastian Sebastian Mbele, Civil Appeal No.66 of 2019 CAT Iringa (Unreported) in which this cardinal principal on burden of proof on balance of probabilities was set). According to facts pleaded and evidence tendered in this court, PW1 Asalea Lujabiko Kihupi (the 1st plaintiff) testified that he and other 4 plaintiffs namely Caroline Shemu Mlawa, who testifies as PW2 (the 4th plaintiff), Elda Geofrey Msengi, who testified as PW3 (the 3rd plaintiff), jointly they have bought a piece of land with a size of 147.71 acres at Mpelamumbi Village. PW1 said that individually, he bought about 69 acres of land. PW1 said that he bought the said 69 acres from Ndugu Zugazuga and his fellows. He admitted that the vendors of the said land had no any ownership documents but they were known and recognised as residents of the Village by the Village authority. He produced the two sale agreements which were admitted as exhibit Pl collectively. I have read the contents of exhibit Pl. It is the two sale agreements whereby the first agreement shows that Zainabu Omari Halili have sold the farm to Asalea Lujabiko Kihupi. The document shows that the other vendors beside Zainabu Omari Halili are Halili Omari, and Jonasi Taratibu. But only Zainabu Omari Halili signed the agreement. What about other vendors Halili Omari and Jonasi Taratibu? Despite the fact that exhibit Pl shows them as the vendors, they never sign the agreement. It is unknown whether the purported vendors Zainabu Omari Halili, Halili Omari and Jonasi Taratibu owned the sold land jointly and Zainabu Omari Halili was their representative at the sale? Were Halili Omari and Jonasi Taratibu present during the sale? This important fact is unknown to the court. The 5 sale was done and approved by the office of Mperamumbi Village and was witnessed by the Village Executive Officer (VEO) of Mperamumbi and other village leaders. The other sale agreement shows that Asalea Lujabiko bought a land from one Bernard Kwendako Zugazuga. The parties to the agreement who signed before Mperamumbi Village leaders are Bernard Kwendako Zugazuga as the vendor and Asalea Lujabiko Kihupi as the purchaser. However the agreement shows that the farm has been sold by Bernard Zugazuga who sold 17 acres, Mohamed K. Msisi, 5.42 acres, Iddi Halfani Jamikonde, 4.92 acres and Saidi Mrisho, 2.8 acres. PW2 also testified that she bought her part of suit land located at Mperamumbi Village in 2017. That she bought the said portion of land from one Said Hussein, and that the land has a size of 39 acres. PW3 also claimed that she bought a piece of land together with the other plaintiffs in 2017. She produced a sale agreement which was admitted as exhibit P2. It shows that Elda Msengi, the 3rd plaintiff bought a piece of land from Eksaudi Singh. Exhibit P3 is also a sale agreement between Elesia A. Kihupi, the 2nd plaintiff and the vendor Said Huseni Salum. It shows that the sale agreement was entered between "famiry ya Huseni Sa/um"and Elesia A. Kihupi. On the other part of the agreement it shows that the vendor is Saidi Huseni Salumu. Who is this "famiry ya Huseni 6 Sa/um" \Nho> sold the land to the 2nd plaintiff but never signed the agreement and the same was signed by Saidi Huseni Salumu? Furthermore Exhibit P4 is the village payments receipts which does not reveal which village issued the said receipt. In addition, I have noted that, despite being the 2nd plaintiff, Elesia Kihupi never appeared in court to testify on her claim. Even the above sale agreement (exhibit P3) and the receipts (exhibit P4) which shows that she bought a piece of suit land were produced in court by one Martin Reuben Jairo (PW4) who is not a party to this suit but a witness. Why did the 2nd plaintiff failed to enter appearance in court to testify on her claims? Basing on the questions which arose from the contents of the sale agreements, it was important that the 2nd plaintiff and vendors who are claimed to have sold the suit land to the plaintiffs, to appear in court and testifies in regard as to who was the real owner of the suit land purportedly sold to the plaintiffs. PW4 and PW5 supported the evidence that the 1st, 2nd and 3rd plaintiffs bought the suit land from the owners who are villagers of Mperamumbi. The plaintiffs have brought evidence to show how they acquired the suit land. They claim that the suit land is within Mperamumbi Village. The defendants have raised a claim in their defence that the suit land is within 7 Kigoda Village hence the vendors had no authority to sell the said suit land. It was imperative that in order to establish whether the vendors had lawful titles over the land they sold, the plaintiff should have brought evidence to show how the vendors acquired their lands. Were the said vendors lawful owners of the pieces of land they sold to the plaintiff? Did the vendors had authority to sell those portions of land? How did the vendors got their land? By clearing the forests or by being allocated by the Village Authorities? Since the vendors are claimed to be villagers of Mperamumbi, and the supposed sale was witnessed and authorised by Mperamumbi Village leaders, the vendors and Mperamumbi Village leaders who witnessed and authorised the sale were supposed to appear as witnesses in the court so as to clear those questions. I am aware of the principle that no amount of witnesses are required to establish ones' case. However, the circumstances of this case necessitate the presence of the vendors and Mperamumbi Village leaders/authority to appear as witnesses in the matter to establish that the plaintiffs are the lawful owners of the suit land. Aria f B. 8 The importance of the said witnesses are that first, the plaintiffs and their witnesses have failed to prove whether the vendors had lawful titles to pass to the buyers (plaintiffs). The vendors' evidence could have shown how they acquired the lands which they sold to the plaintiffs and that they were the lawful owners of those lands at the time they were selling to the plaintiffs. Second, there is a dispute on the location of the suit land which the plaintiffs bought from the vendors. The evidence of the vendors and Mperamumbi village authorities would have cemented the plaintiffs' claim that the suit land is located within Mperamumbi Village. Why then did the plaintiffs failed to bring these very important witnesses that could have assisted their case? This remains in the plaintiffs' knowledge. In the case of Hemedi Saadi vs. Mohamed Mbilu, [1984] TLR 113 (HC), this court held that; "Where for undisclosed reasons, a party fails to call a material witness on his side, the court is entitled to draw an inference that if the witnesses were called they could have given evidence contrary to the party's interests. To establish their claims that the suit land was not within Mperamumbi Village but in Kigoda Village, the defendants brought two witnesses who 9 were the defendants themselves. Kisongoi Tikwa Moreto is the 1st defendant and testified as DW1. He said that he is the Village Chairman of Kigoda Village since 2014. He said that the suit land was sold wrongly to the plaintiffs as the vendors and authority that authorised the sale had no authority to do so since the suit land is within Kigoda Village. He produce the Minutes of the joint meeting between Mperamumbi Village Council, Kigoda Village Council and other Ward leaders who met to settle amicably the land dispute between the two villages. The Minutes were admitted as exhibit D5. I have read the Minutes titled "MUKTASARI WA KIKAO CHA PAMOJA BAINA YA HALMASHAURI YA KIJIJI CHA MPERAMUMBI NA KIGODA PAMOJA NA VIONGOZIWA KATA KUHUSU USULUHISHIWA MPAKA KATI YA KIGODA NA MPERAMUMBI TAREHE 15.5.2020'. The Minutes shows that the disputed land was not located in Mperamumbi Village but at Kigoda Village. By this analysis of the evidence by both parties to the suit, the first issues is answered in negative, that the plaintiffs failed to prove the lawful ownership of the disputed land. The second issue is; if the answer to the first issue is in affirmative, then whether the defendants trespasses into the suit land. Since the first issue Af io is answered in negative that the plaintiffs have failed to prove that they are the lawful owners of the suit land, then even this issue is answered in negative that the defendants did not trespass into the suit land. The plaintiffs failed to establish the right of ownership of the suit land and hence they have no right to claim trespass on the said land. The third issue is whether the plaintiffs have suffered any damages. Since the plaintiffs have no claim of right over the suit land, then they cannot claim to suffer damages over the said land. On the fourth issue of reliefs, the plaintiffs have no any entitlement of reliefs since they have failed to establish that they are the lawful owners of the suit land. On the part of the defendants, they did not file a counterclaim but they prayed for the dismissal of the suit. I therefore dismiss the entire suit with costs. Right of appeal expressly explained. 11