SIMBAY AKOONAY editted

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF TANZANIA AT MANYARA LAND CASE NO. 000000044 OF 2024 SIMBAY AKOONAY ............................... COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS THE OFFICE OF ATTORNEY GENERAL.................................RESPONDENT / DEFENDANT JUDGMENT KAHYOZA, J, Simbay Akoonay (Simbay). (the plaintiff) alleged that he lawful owns 28 acres of land within Endagaw village which was formerly part of Haydom village. Simbay's ownership of 28 acres of land were allegedly approved by Haydom village Council in 1971. Later in 2019. the first defendant’s leaders and a team of villagers supporting them, invaded Simbay’s land, burnt the boundaries and cut down maize and beans. Simbay alleged that the first defendant invaded 7 acres of his land. The defendants did not dispute the allegations that Simbay owned 28 acres of land but contended that the land in dispute was not part of Simbay’s 28 acres of land. They contended further that, the disputed land was part of 64.5 acres of the village land reserved for pasturing. They averred also that Endagaw village was formerly part of Mewadane village and not Haydom village. It is from the above arguments the court framed and the parties agreed to the following issucs;- I. Whether the disputed land measuring 7 acres is part 28 acres allocated to the plaintiff. 2. To what reliefs are the parties entitled to? /.$ the disputed hind purl of the plaintiff's land? As pointed above the parties are in harmony that Simbay lawfully owns land within Endagaw village but they locked horns on the issue whether the disputed land 7 acres of land is part of it. To prove that he owns the disputed land, Simbay testified and summoned two other witnesses who arc Cclcstian Simbay (Pwl) and Eliud Dahayc (Pw2). Celestian Simbay (Pwl) deposed that he was the plaintiff"s son and he was bom at Endagaw village where he is leaving to date. He deposed that the plaintiff owns 28 acres of land where he grew maize sunflowers and beans. He Page. 1 named the boundaries as South- Endagaw canyon (korongo), East-Endagaw canyon, West-Haydom canyon and North-Palio. He added that on 5.04.2019 people invaded his father’s land burnt the boundaries, cut down maize and beans. They also grazed their heads of cattle onto his father’s farm. He saw the village executive officer and other people. He contended that they trespassed to 7 acres of land. He testified further that the boundaries of the land they trespassed onto were North-Pario, Wcst-Korongo la Haydom. East-Simbay, South-Korongo la Endagaw. Eliud Dahaye (Pw2) supported Celestian (Pwl) that Simbay the plaintiff owned land within Endagaw village and that on 3.04.2019, he saw people cutting down boundaries of Simbay’s land and uprooting crops. He added that he identified the village chairman as one of them. Eliud Dahaye (Pw2) contradicted Celestian (Pwl)’s evidence regarding the date when Simbay’s crops were uprooted. (Pw2) denied to know how and when Simbay (Pwl) got his land. He denied to know the size of Simbay’s land. I find no weight in Eliud Dahaye (Pw2)’s testimony regarding the issue at land. He could not tell the size or the boundaries of Simbay’s land but he contended that the land in dispute belonged to Simbay. Eliud Dahaye (Pw2)’s evidence did not advance Simbay’s case even an inch. Simbay, the plaintiff (Pw3), deposed that he owned a farm, which was 28 acres. The boundaries of his land were North- a road. South-canyon, East-canyon and West-canyon. He tendered a document executed when land was allocated to him. The document depicted that 28 acres of land were allocated to Simbay (Pw3) and stated the boundaries, which were, on the East-Endagaw canyon, North-cattle's path, West-Haydom canyon and on the South-canyon. The document was admitted as Exhibit P.l. The defence took a position that the disputed land is part of Endagaw village land set aside as pastures. Leonia Albert (Dwl) deposed that she was the village executive officer keeping records of the village. She deposed that the disputed land was set aside as pastures and the size of the land was 69 acres but when it was surveyed it was found to be 64.5. She contended that in 201 1 Batholomew Hamnai and Laurent Simbay trespassed to the disputed land and sued 7 people. Batholomcw Hamnai withdrew from the case contending that the disputed land did not belong to them. Leonia Albert (Dwl) tendered the right of occupancy which was admitted as Exhibit D. 1. Leonia Albert (Dwl) challenged the Simbay’s documentary evidence that the allocation was done by a person who had no mandate. She stated that Simon Mattrey, who was a TANU Chairman had no mandate to allocate land. She contended that in 1971 there was no post called village executive officer. Paulo Safari Bajuta (Dw2) was a member of Mcwadani village council in 1999 and that he became acting village executive officer in 2009 up to 2010. He contended that in 1978 they set aside land as pasture. He tendered minutes of Mewadani village Assembly which came out with the Land Use Plan. He tendered the minutes as Exhibit D.2. He contended that the minutes of 1999 were transferred to Endagaw village after it was established. He tendered minutes of meeting held in 2009 conducted to hand over properly between Mcwadani village and Endagaw village, including 69 acres of land set aside as pasture land. He supported Leonia Albert (Dwl) that in 2011 two people trespassed to the pasture land and they instituted a suit to the district land and housing tribunal. Later, they Page. 2 withdrew the case. On cross-examination Paulo Safari Bajuta (Dw2) deposed that Simbay (Pw3) had land where he grazed herds of cattle and cultivated crops. It is an established principle in civil litigation that who alleges must prove. In this case Simbay (Pw3) has a duty to establish on the balance of probability that the disputed land is part of 28 acres of land. As stated in case of Karangirangi v. Asteria Nyalwamba, in Civil Appeal No. 237 of 2017 (CAT) pg. 7 & 8, that the case burden of proof in civil case is not static, after Simbay (Pw3) discharging his duty, then the defendants have a duty to prove that the disputed land was not part of 28 acres of land. Commenting on the position of the law that the burden of proved in civil litigation, the Court of Appeal in Yusufu Seleniani Kimaro vs Administrative General & Others (Civil Appeal 266 of 2020) |2022| TZCA 306 (24 May 2022) staled- ".... Going by the above exposition of the law, it would be insincere if not a misapprehension of the law on the part of Mr, Halfani to complain as he did that the trial Judge had shifted the onus ofproof onto the second respondent. For, in civil cases, the onus ofproof does not stand still, rather it keeps on oscillating depending on the evidence led by the parties and a party' who wants to win the case is saddled with the duty to ensure that the burden of proof remains within the yard of his adversary' This is so because as per the case of Raghramma v. Chenchamnia. A 1964 SC 136, such a shifting of onus is a continuous process in the evaluation of evidence. " it is also settled that the weakness of the defendant's evidence docs not lessen the plaintiffs burden of proof. That is, the plaintiff must discharge his burden of proof notwithstanding the defendant’s evidential weight. The Court of Appeal, in Paulina Ndawavya v. Threresia Thomas Madaha, Civil Appeal No. 53/2017 (TCA unreported) held that- "the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his and the burden ofproof is not diluted on account of the weakness of the opposite party ’s case. ” (emphasis is mine) There is no dispute that Simbay (Pw3) owns the land alleged to be 28 acres which was allocated to him by the authorities in 1971. Simbay (Pw3)’s evidence was that Matlcy. the TANU, Chairman gave him 28 acres of land. He tendered a document to that effect. The defence challenges the plaintiff's evidence that the TANU Chairman had no mandate to allocate land. They did not provide evidence as to which institution had mandate to do so. The defendants averred further that, the document was fabricated as the stamp endorsed was from a non-existing office. I had a cursory review of the law' witich governed the composition of the village council in 1975, the village party chairman was a chairperson of the village council by virtue of his officer. Matlcy, the party chairperson chairman must have been the chairperson of the village council and he acted as such. Section 10 of the Villages and Ujamaa Villages (Registration, Designation and Administration) Act, No. 21 of 1975 states that- Pagc. 3 10. (1) The members of a Tillage Council shall, as soon as may be Village practicable after their election, hold a meeting at which they shall elect, from amongst their number- Council (a) a Chairman of the Village Council: (b) a Secretary' of the Village Council: Provided that in any case, where at the time of any election there is a branch of the Party within the village, the Chairman and the Secretary of such branch shall by virtue of their offices be members of the council and the Chairman and the Secretary, respectively, of the council (Emphasis added) I examined exhibit P.l, the document allocating land to the plaintiff, which depicts that it was executed on 5.09.1971, thus, it was executed before the above cited law. It is not surprisingly that the party leaders had mandate to allocate land at that time. 1 do not think that it was fabricated or there is evidence to that effect. The defence alleged without evidence that the chairman of TANU had no mandate to allocate land and that the stamp was fabricated. I do not find any merit in that. Exhibit P. I is categorical that the plaintiff was allocated 28 acres and the boundaries arc stated. It stated the type of the soil of the land allocated. It stated that 19 acres of land had red soil and 9 acres of land were composed of black soil. The boundaries stated were East-“Egusa” canyon. North-cattle path, West-Haydom canyon (korongo). South-canyon. It is unfortunate that the East bounder cannot be identified properly from the paper. Those arc the boundaries. 1 wish to add that, the fact that the defendants do not contest that Simbay lawfully owns land, they cannot be heard to dispute the mandate of the allocating authority. It is clear that a person who needed land was required to apply to the village council for a farmland. See National Agricultural and Food Corporation V Mulhadaw Village Council and Others [1985] TLR 88 and the Directions under the Villages and Ujamaa Villages (Registration, Designation, and Administration) Act. 1975 Government Notice No. 168/75, direction 5(2) provides as follows- “(2) subject to availability of arable land, the Village Council shall (diol a piece offarmland to every kaya in the village according to need and ability to develop it. The Village Council shall have power to determine the structural pattern offarms in the village and the use thereof. ” The composition of the village council is not disclosed. Simbay (Pw3) was allocated land by a competent village authority as there is no evidence to the contrary. The issue to be answered is whether 7 acres allegedly invaded are within the boundaries of the plaintiff's land. I wish to state that Simbay (Pw3) and his witness did not adduce evidence prove that the defendants trespassed onto his land or the extent of the defendants’ penetration. The plaintiff identified the 7 acres by stating the boundaries on the North, as Laurent Simbay, West as the Valley or canyon. South as Laurent Simbay and East as Simbay Akonaay Girgis. Such boundaries do not prove the size of the land invaded or that the defendants trespassed onto the plaintiffs land. I would have expected the evidence to show that the defendants crossed the borders mentioned in in Exhibit P.L and the extent of the invasion. There is no evidence to prove that the defendants trespassed up to 7 acres of the plaintiff's land. Simbay (Pw3) and his Witness fell into the trap of explaining the boundaries of the land allocated to Simbay (Pw3) in 1971. The size and boundaries of the land allocated to Simbay (Pw3) in 1971 was not in dispute. The plaintiffs Page. 4 duty was to prove that the defendants invaded 7 acres of the land allocated to him. There is no such evidence. I had an opportunity to examine the defence evidence, which also did not prove that the disputed land was part of the village land reserved as pastures. The evidence on record shows that the village made a resolution for Land Use Plan in 1999 and set aside land for pastures. I read the minutes tendered as evidence, the same state the boundaries of the land reserved as pastures. It is in the minutes that the meeting resolved that pasture land located in Gwanda, Qalodarer and Hayenda hamlets, which is 600 acres be demarked to prevent trespasses to encroach [it], [and] 69 acres of land in Gcndaryandi hamlet used as pastures is set aside as grazing land. The resolution did not state the boundaries and it is not clear if the said land were demarcated. Thus, Leonia Albert (Dwl)'s evidence had no any value as far as the boundaries of the land set aside as pastures in Gendaryandi hamlet is concerned. I reviewed Exhibit D.3, the minutes of the village assembly held during the transferring property from Mewadane village to F.ndagaw village in 2009. One of the properties transferred from Mewadani village were pastures which were 69 acres of land within Gcndaryandi hamlet. Unfortunately, the boundaries were not stated in the transfer document. Obviously, the dispute is not whether Simbay (Pw3) has title over Gendaryandi pastures or not, but whether the 7 acres claimed by the plaintiff formed part of the pasture land. There is no evidence to prove that the land Simbay (Pw3) claims in this suit is part of the pasture land transferred from Mewadane village to Endagaw village in 2009. I do not find any relevance of Exhibit D.3 to the dispute under consideration. Worse still, the defence never summoned any witness who knew the boundaries of the alleged 69 acres of pastures situated within Gendaryandi hamlet. Such a witness would have informed that Court that the minutes did not state the boundaries because may be the boundaries were well known or that after the village assembly meeting in 1999, the pastures were demarcated as resolved at the meeting. Thus, the defence evidence did not establish the boundaries of the alleged 69 acres of land or that 69 acres of land did encompass those 7 acres of land in dispute. Worse still, the defence tendered the “Hati ya Haki miliki ya Kimila” Exhibit D.l. showing the land set aside as pasture land was situated within Gcndaryandi hamlet - Endagaw village. The customary right of occupancy shows GPS points or coordinates to mark the boundaries, but no one explained how the boundaries were identified. Boundaries and rights in the land, which is subject to the application for customary right occupancy, are some of the issues to be considered before the village council grants the right of occupancy. See section 23 of the Village Land Act. [Cap. 114 R.E. 20I9J. I have no reason to doubt that there was land set aside as pastures but the boundaries were not stated before the survey and issuance of the right of occupancy. For that reason, I do not find evidence from the defence to prove that the land in dispute is part and parcel of the land set aside as pastures situated within Gendaiyandi hamlet - Endagaw village. To conclude, the first issue I find that the plaintiff to whom the burden was on his shoulder did not prove that the disputed land of 7 acres was part of his 28 acres of land. Much as the burden had not shifted to the defendants to prove that the disputed land was legally part of the pastures, the defendants’ evidence on record, like the plaintiff’s evidence, is equally wanting. I answer the first issue negatively that the plaintiff did not establish that the disputed land is part of 28 acres of land he lawfully owned from 1971. Page. 5 To what reliefs are the parties entitled to? The above said and done, I find that the plaintiff failed to prove his claim. Consequently, I dismiss it. I make no order as to costs since the evidence on record depicts that the first defendant is the genesis of the dispute under consideration. I order accordingly. Dated at Bahati this 5th day of February. 2025. J. R. Kahyoza Judge Page. 6 Court: Judgment delivered in the presence of Mr. Kuwengwa Ndonjekwa. advocate for the Plaintiff is absent but represented by his son. Mr. Lameck Buntuntu, Senior State Attorney for the defendants and Mr. Helson Jacob, the Chancellor Gctcrcc Ward for the first defendant. B/C. Mr. Shadrack (RMA) present. J. R. Kahyoza Judge 05. 02. 2025 Dated at THE HIGH COURT OF TANZANIA AT MANYARA this 5th of February 2025 . J. R KAHYOZA JUDGE OF THE HIGH COURT Page. 7