focus cosmas chuwa 4 others v muharamy ally 110 others 2023 tzhclandd 84 23 february 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ; ;^(LAND-DIVISldN)>'/v ;_-- : AT DARES SALAAM V LAND CASE NO,84 OF 2021 FOCUS COSMAS CHUWA PLAINTIFF KITUNDU SHILA CHARLES ..f.:...;, . 2"° PI^INTIFF kOSTANTINO EGINO MBONDE 3*^° PLAINTIFF KHAMIS SAID HAMIS 4™ PLAINTIFF LUPIANA MICHAEL LUPIANA (Administrator of the Estate of The Late MICHAEL SIMON LUPIANA 5™ PLAINTIFF VERSUS MUHARAMI ALLY isr DEFENDANT NAssoRo SAID 2'''' defendant SAID MBWANA 3RD pEpENDANT All SHABAfil Ait DEFE^ MAMA NYAGA" 5™ DEFENDANT NYAMKENI ABDALLA 6™ DEFENDANT AMINA MOHAMED.. 7™ DEFENDANT REHEMA HEMED ;... 8™ DEFENDANT RUTHI LABAN 9™ DEFENDANT KULWA SALEHE ............................................... 10™ DEFENDANT MOHAMEb ABDALLAH 11™ DEFENDANT ABDALLAH HASHIM 12™ DEFENDANT DAWA LUGANO 13™ DEFENDANT UBAVA RAJABU 14™ DEFENDANT ADRIAN CHRISPIN 15™ DEFENDANT SAMWEL OTOM I 16™ DEFENDANT FRANK JUSTIN 17™ DEFENDANT CHARLES MAKOYE ^ 18™ DEFENDANT ALI BOKO 19™ DEFENDANT' ZAITUN S, LABANI ,..........i..i.................. 20™ DEFENDANT JUMANNE RAMADHANI 21ST DEFENDANT. YOHANAJONAS ........1 22"^° DEFENDANT JEREMIA CHAULA 23R'> DEFENDANT NDUGli GUMBO 24™ DEFENDANT SALIM ABDALLA 25™ DEFENDANT MBARAKA HASSAN 26™ DEFENDANT YUDA MALINGA 27™ DEFENDANT ODAAOtOM 28™ DEFENDANT JUMA NG'AMBI 29™ DEFENDANT REGINARI A. MUSHI 30™ DEFENDANT CHRISPIN Mitl 31^ DtFENpANt LIBERATI JUSTINE KAVISHE V...»;...,. 32"° DEFENDANT ISMAIL MZULA 33**° DEFENDANT SHABANI SAID 34™ DEFENDANT DANI KASAMBALA 35™ DEFENDANT .2 ISSA MOHAMED LIPANDA 36™ DEFENDANT LILIAN MAIOJO 37™ DEFENDANT JAMES SHAVO 38™ DEFENDANT MOHAMED MSKINDO ....; ...;.:.:..,i.......... 39™ DEFENDANT MBARAKA SAID 40™.DEFENbANT MOHAMED IDDI 41^^ DEFENDANT SHUKURU MZUZURI ......i, 42"° DEFENDANT EDWIN GABRIEL ..».....i.„.............. 43*^° DEFENDANT KUBEJA JAMES ;.... 44™ DEFENDANT SELEMANl MILANZI 45™ DEFENDANT MREMBWA MNAKU .........;.;.^...4.;...,;.. 46™ DeIfENDANT CHRISTOPHER MALISA .. :..;47™ DEFENDANT SALUM MtUNGp ..;i.„...„..:i.....;;.......^;..;;...;.. 48™ DEFENDANT IDDI MPAMBALUPI .............i 49™ DEFENDANT FATUMAJUMA 50™ DEFENDANT FATUMA ATHUMAN DEFENDANT ASHA SAIDI 52"° DEFENDANT KASSIM PERI:...... 53^° DEFENDANT LILA MUHARAMI 54™ DEFENDANT MUHARAMI ALLY 55™ DEFENDANT EMMANUEL KAZUNGU. 56™ DEFENDANT MUSAKAZUNGU ....,...»V........ 57™ DEFENDANT HAMISIMWENDASHAl;:»;;.L.i.i.;.;..^..^^;..;;;^ 58™ defendant NYAZARA-NTONDOPE .......i.;... 59™ DEFENDANT UK!I ATHUMANI 60™ DEFENDANT MOHAMED MANDAI .i...i»...v.:...L,.;...;.„., 61^ DEFENDANT SHUKURU RAMADHANI ..i............ BZ"" DEFENDANT AMOS LUTEMA ...............i............... 63"'' DEFENDANT ZAINABU SHOMVi 64™ DEFENDANT MARIAM SHABAN .;. 65™ DEFENDANT MAUA MUSA ..........i 66™ DEFENDANT JOSEPH PONSIAN 67™ DEFENDANT STELA LAZARO 68™ DEFENDANT cosMAs daNiel 69™ Defendant MASHUADA CHARLES 70™ DEFENDANT MKINA CHARLES 71^^ DEFENDANT YUSUF MKOI ......^.;..i....' 72'"> defendant SALOME JLiMA DEFENDANT SCHOLASTIKA JACKSON 74™,DEFENDANT ALi MRisHO ......;.;..........l 75™ Defendant DAMINA LAWENA .. 76™ DEFENDANT ABDALLA SHABANI 77™ DEFENDANT PERES LUTEMA 78™ DEFENDANT ENRINGiRISHA MOSHA 79™ DEFENDANT GEORGE MOSHA .............„^....L.............:;..^.v 8iO™ DEFENDANT, CONSOLATA OKELLO 81®^ DEFENDANt ' '-tv EUYA NDALU ..V...... 82*^° DEFENDANT HAMISI KA3IGIRI DEFENDANT ZIUPA KAJIGIR 84™ DEFENDANT REHEMA JUMA 85™ DEFENDANT HEKIMA ABDALLA 86™ DEFENDANT BIDA MUYA V— 87™ DEFENDANT KUMBA SAID ....;...........;.^.l 8iB™ DEFENDANT; GODFREY NG'UNGU 89™ DEFENDANT EDWARD A. NG'UNGU 90™ DEFENDANT AtHUMAN MGENI 91St DEFENDANT RAJABU MGENI gi"" DEFENDANT SARAH MSANGI 93'»'> DEFENDANT EMMANUEL CHALA 94™ DEFENDANT KASSIM SALUM 95™ DEFENDANT SALEHE SALUM ....;.....;. ;,.:.;......„i...v96™ DEFENDANT MRISHO lUMADHANI 97™.DEFENDANT RAMADHANI KABAVULA 98™ DEFENDANT FRAIDA MOHAMED 1 99™ bEFENDANT HAPPY RICHARD lop™ defendant SHABANI KATEMBO 101®^ DEFENDANT SALOMU MAWINE i 102"'' DEFENDANT NURDiN GWATO ,. lOS"^" DEFENDANT ASHA SAID ...;. 104™ DEFENDANT KAREN KASINDI 105™ DEFENDANT YUDA MBALIGA 106J" DEIrENDANT FRANCIS ODAHA 107™ DEFENDANT SOFIA LUA 108™ DEFENDANT MARIAM OMARI 109™ DEFENDANT EMMANUEL SAMWEL 110™ DEFENDANT ATHUMANI TIPO Ill™ DEFENDANT Date oflast Order: 06/12/2022 Date ofJudgment: 23/02/2023 ' . , ' .- JUDGMENT I. ARUFANI,J The plaintiffs herein filed the instant suit in this court against the defendants seeking for declaration of ownership of. the land with Plan No. E 393, Block "H" situated at Vikawe Shule Street, within Kihaha Town Council in Coast Region (hereinafter referred as the land in dispute) which they alleged was trespassed by the defendants. They are also praying for permanent injunction against the defendants from using ;the land in dispute order of demolishing whatever structure constructed by the defendants on 'the land in dispute, special damages of. Tshs. 1,000,000,000/=, interest of 7% per annum from the decretal amount until full payment and costs of the suit.. .6 After the defendants being, dully- served with the claims of the plaintiffs thel^^, 23*!^, 43^^, 89^^, SO^'^.and 98^:.defendants filed In the court their joint-written statement of defence. As,the rest of the defendants failed to appeared in the court'and,they didn't file their written statement of defence in the case, the court ordered the case to proceed ex parte against them. While the plaintiffs were represented in the case by Mr. Michael Mwambeta, learned,advocate, the defendants who appeared in the court to dispute the claims of. the. plaintiffs were represented by Mr. Fred Sanga, learned advocate. The issues framed for determination in the case are as follows; - 1. Who is the lawful owner ofthe Land In dispute. 2. Whether the Plaintiffs suffered damages. 3. To what reliefs are the parties entitled. . ^ In discharging their duty of establishing their claims, the plaintiffs brought to the court four witnesses namely;(1) Lupiana Michael Lupiana (PWl),(2) Focus Cosmas Chuwa,(PW2), Faustip Magai Luzapgi,(PW3) and (4) Costantino Egino Mbonde,(PW4). In their rebuttal the defendants who testified in the matter ~are Jeremiah Emmanuel Chaula who is 23''^ defendant and he testified as DWl, Dawa Donald Lugano who is 13^^ defendant and he testified as DW2 and Ramdhani Said who testified as DW3. While the plaintiffs tendered six documentary evidence to support their evidence, the defendants tendered no any documentary or physical evidence on their side. Focus Cosmas Chuwa,(PW2)and Costantino Egno Mbonde, (PW4).told the court they are members of the group known as "Natural Power Group"(hereinafter to be referred In short as NPG)which has about thirty members. PW2 told the court they acquired the land in dispute in 1994 after being allocated the same by the Government of Vikawe Shule Village. He said they applied.for three hundred acres of land from the mentioned Village Government after the Central Government required youths wanted to do ..agricultural activities to be given land for that purpose. They said after the Village Government considered their application, they were given the land in dispute which its size was three hundred acres by being measured by foots and required to pay compelnsation to the citizen who had permanent crpps on the land given to them. PW2 and ?\l\IA said that, the boundaries of the said land,were as follows; on one side there is Yusuph Ngorpro, another side there is Mafuta Street, on the other side there is Mpiji River, and the.other side there" is Madiba and Mpingo Farm. They said after paying compensation to the citizens who had permanent crops on the land allocated to them, they constructed a house, for shelter while doing the agricultural activities.on the land and started their agricultural activities. They said they continued with their agricultural activities" in the'farm while participating in all social activities occurred at the village.. They said they continued to possess the land until 1999 when they started seeing people trespassing onto their land. When they asked the said people as to why they were invading their land they told them they were employed by Michael Simon Lupiana who is the fifth,plaintiff in the matter to work on the land. Lupiana Michael Lupiana^ PWl told the court he is an administrator of the estate of the late Michael Sirnon Lupian and his letters of administration of the estate of the late Michael Simon -Lupiana was admitted in the case as exhibit-P6.'He said the deceased was-allocated the land measuring fifty acres by the Vikawe Shule Village Government. He tendered to the court the minutes of Vikawe Shule Village dated 28^^ February, 2002 which shows'the lateMichael Simon Lupiana was allocated the mentioned land by Vikawe Shule Village Government,and it was admitted in the case as exhibit PI. PWl said that, after the late Michael Luplana being allocated the land, the Vlkawe Shule street Jeader wrote'a letter authorizing him to survey the land allocated to him and the said letter was admitted in the. case-as exhibit P2. PWl went on saying that, when Michael Lupiana wanted to survey the land, a, dispute emerged ^between Michael Lupian and members of the NPG .who had been allocated the same land by Vikawe Shule Village Government. PWl,PW2 and PW4 said that, after their dispute being taken to the Street Government and told Michael Lupiana was given the land by the Street Government,and after the matter being taken to the District Land and Housing Tribunal, they decided to settie their dispute. PWl, PW2 and PW4 said after settling their dispute they made a memorandum of understanding which was signed byPWZ.as a representative of NPG, Vikawe Shule Street Government and the late Michael . Lupiana for the purpose of developing the land together. The stated, memorandum of understanding was admitted in the case as exhibit P3. . PW2 and PW4 said that, after agreeing to develop the land.together they applied from the Street Government and other Government Authorities permitted them to Survey the iarid. After obtaining the permit the work of surveying the land was given to.Faustine Magai Luzangi, 10 ■ PW3. PW3 said that, after being given the said work by the :NPG, he surveyed the land and divided- -the same into plots. He. said-to have prepared a sketch Plan of the concerned land which he tendered to the court and admitted in the matter as exhibit P4. He said before presenting exhibit P4 to the Director of Survey and Mapping.for.approval he received a letter from KIbahaTown Council which', stopped him from continuing with the work of surveying the land and he stopped the work. PW3 said that, later on'he heard there was a case between the persons gave him the work oft surveying the lahd and the people who were calling themselves as indigenous. PWl, PW2 and PW4 said the defendants filed land Case No."353 of2013 in'this court but later on they withdrew it from the court. ■ ' They said after the defendants withdrew the case from the court and after being asked by the Director of Kibaha Town Council through the letter which was admitted in the case as exhibit PS if they had any objection for the plaintiffs to.be allowed to proceed to survey the land in dispute and failed to respond to the stated letter, they filed the present suit in this court. When PW2 was cross examined'by the counsei for the defendants he,said their group is not registered. When he was asked if a village can allocate three hundred acres of land to a person, he said he doesn't-know. He said the house they built on.the land in.dispute was demolished by the. people invaded, theirdand who took their properties and setthe house on fire. ' ■ When PW3 was cross examined by the counsel for the defendants he said the land he was given a work of surveying it had a house, banana trees and cassava. He said part of the land was valley and other part was forest. He said he didn't involve the people who constructed the house on the land in his work of surveying the land because it was not his duty and said he was given a letter authorized the persons gave him the work to survey the land. In their defence,Jeremiah Emmanuel Chaula, Dawa Donald Lugano and Ramadhani Said who testified as DW1/DW2 and DW3 respectively-told the court they are residents of Vikawe Shule Street and their evidence was almost similar. They said they know the first,.second, third and fourth, plaintiffs who together with other people have their organization known as "Natural'Power Group". They said the mentioned plaintiffs went to their village in 1993 when their area was under village authority and was known as Vikawe Shule Village seeking for land to cultivate. They said the mentioned group of people were seeking for 300 acres of land for the agriculture they wanted to conduct in their village. ■ They said the leaders of their. Village told the mentioned ,plaintiffs that the-village had no land as the land was. under the ownership-of.the villagers. They ,said the village authority told them to wait so that the leaders of the village could have talk to the villagers and see If they would have agreed to give them their land. They went,on.'saying that, after the villagers being requested to glve. their land to the NPG, the people who had big lands agreed to give their land to them on conditions that they would have been paid compensation for the permanehts crops they had planted on their 'land which were coconut trees, cashevy nut^ trees and mango trees. ' ■ ' ' DWl, DW2 and DW3 said that, It was agreed the compensation would have been paid.after valuation of their crops being done by the Government Valuer. They said in 1994 the village authority called the mentioned plaintiffs and told them the land had been obtained but they were required to pay compensation to the people,who would have .given them,their land for the permanent crops.they had planted on the land which, was Intended to be glven to them. They went on saying that, the NPG people agreed to pay the stated compensation and. after being ,shown the land they .built there on temporaiy shelters for use while working on the land given,to them. DWl ■ r "13 r said after two months the'NPG people departed from the land given to thern and ,they didn't see them agaim DWl said that, in 1996 some of the villagers whose land was given to the NPG people started to return to their land as the mentioned group of people left the land given to them without developing the same. They went on saying that, in 1997 Michaeh Simon Lupiana who is the fifth plaintiff in the matter went to their yillage authority to request for a land of keeping his animals. He requested to be given fifty acres of land and he was told by the village'authority.that the village had no land as the land belonged to the villagers. He said after the villagers being informed about the.request of the fifth plaintiff, they agreed to give their land to him on condition that'the fifth plaintiff would have built a.house, in their village for their school teacher as.they had.no school teacher's house at their .village. They said the fifth plaintiff agreed to fulfill the stated condition and he,was given fifty acres.of land out of the.iand which had been given to the NPG people. He said after the fifth plaintiff being given the said land, he built the school teacher's house up'to the stage of linter. They said after the house reached to'the stated stage it developed cracks. They said the complaint was taken to the District,Commissioner, who went to the • 14 • house while, accompanied , by the. members of the District Security Committee and after seeing, the-, condition^, of the 'house,ahe,.-District Commissioner ordered the house be demolished. They went on saying that, after the house being demolished the fifth plaintiff did not construct another house for the school teacher. They said between 2006 and 2007 the citizens told the .Village Council that they wanted to return to their land because the fifth plaintiff had hot fulfilled the condition of being giveh the land which was to build the school teacher's house. They said after changes of the Village Authority to the Street,Government, in 2010 the Street Government said as.the fifth plaintiff had failed to fulfiij the condition of being given the land, the citizens had a right to return to their land. They said the Street Government requested the citizens.who were the owner of the land given to the fifth plaintiff to.give part of their land to the citizen who had no land as there were many people who had no land and the said citizens agreed. They said the Committee for supervising distribution-of land to the citizens was formulated and the land was distributed to the citizens and each citizen was given a quarter (1/4) of an acre of land..They said when the exercise of distributing the land was going on the fifth plaintiff claimed 15 '• his properties had been damaged and flied a.case in the-Primary Court against the leaders of the Street Government. They said when the case was continuing, they heard the'NRG peopie had sued the fifth plaintiff but they don't know what was the outcome of their case. They said ,the street leaders were convicted by the, Primary Court but later on:Were acquitted by the District Court. They continued to say that, thereafter they were told by,the Lawyer from, the Town Council that there was an exercise of surveying the land including the land in dispute and told the citizens to'vacate from the land In dispute to pave chance for the'stated exercise. They said the citizens refused to vacate from the land and requested the Town Council Lawyer to stop the exercise of surveying the land as the land was in dispute. They said they took their complaint to the District Executiye Officer who wrote a,letter of stopping the exercise of surveying the land In dispute until when the dispute would have been resolved. They said that, when they were continuing to find solution of their dispute, they heard the NPG people had.gone to the land in dispute and destroyed their crops and demolished the buildings they had constructed on the land in dispute. They said when the NPG people were asked by the Street Government as to why they were doing so they said the citizens . ■ 16 - . had trespassed onto their land. They said thereafter they.filed the case In the court against the NPG people but later on they were advised by their advocate to withdraw the case"from the court.as it had some defects and they agreed to withdraw their case from the court. They said they stayed until 2016 and after seeing the NPG were disturbing them, they took the matter to the District Commissioner where the meeting involving the citizens, people from NPG, fifth plaintiff and the Street Government leaders. They said the District Commissioner said the citizens were on the land legally and he cannot deny the NPG people and the fifth, plaintiff have right to own the land. He told the-NPG people to bring the list of their members and their Constitution so that each of them can be given an acre of a land but they didn't'comply with the stated directives. . , * They -said the District Cornmissioner told the fifth plaintiff If he wanted land for keeping animals, he was ready to find the land for him somewhere else out of the town as he was not allowed to keep animals in the town. They said later on they heard the, plaintiffs, had fi]ed the present suit In the court. They.said,the NPG departed from the land in dispute from.1994 and stayed until ,2011 is-when..they returned to the •17 • land. They said for the whole perjod they did not do anything to develop the land; ' ■" When they were cross examined by the counsel for the plaintiffs, DWl said when the fifth plaintiff was building'the house for the school teacher, he was.using the land given to him, DWl and DW2 said the land distributed to the citizens was three hundred acres and each citizen was given a quarter (1/4) of the land by the Committee formulated by the Street Government.' After hearing the evidence" from both sides, the counsel for the parties prayed and allowed to file in the court their final submissions. The counsel for the plaintiffs stated in his submission in relation to all issues framed for determination in this suit how ownership of land-in dispute is proved. He argued the .plaintiffs are praying ,the court to declare them lawful owner of the land measuring 200 acres situated at Vikawe Shule area within Kibaha Township in Coast region which has been unlawful invaded by the defendants. He submitted the plaintiffs have managed to prove their case as. required by section 110 (1) and (2) of the Evidence Act, Cap 6, R.E 2019 that the" land in dispute was first allocated-to the members of the NPG people by Vikawe Shule Village in 1994. He stated thereafter.the fifth • 18 . plaintiff was allocated fifty acres of the'land by the Village Cpuricil in 1997.- He'.stated the defendants gave, a, mere words in their evidence and their evidence has sorrie contradictions because while some of them said the plaintiffs went to.their village in 1990, others said they wept in 1993 and stayed there for one and a half month and then left. - He argued the defendants have not proved the plaintiffs and other members of the NPG were ever notified their land had- been taken by Vikawe Shule Government and reallocated to the defendants apart from mere words. He said there is no any minutes from the mentioned Government Authority tendered in the court to prove the land of the. plaintiffs.was taken and distributed to the defendants.by the mentioned Government Authorities. He submitted the evidence given.by the plaintiffs' witnesses' is watertight-and pra.yed the court to find the reliefs prayed in the plaint are meritorious. On his part the counsel for the defendants stated the evidence given by PWl and the exhibit-tendered in -the court shows the late Michael Simon Lupiana did not meet the condition required him to build .a house, for their school teacher. He stated what was built by the mentioned plaintiff was bellow the required standard and not suitable for person to live In and the District Commissioner ordered the same to be demolished. 19 He argued that, the court should take note-that the first to fourth Plaintiffs are-natural persons-and they have sued,the defendants,by using their personal names. He argued exhibit P3. which,is a .memorandum of understanding shows the first'Plaintiff, Focus Cosmas Ghuwa signed the same as a.representative of Natural Power Group. He argued paragraph 4 of the plaint shows the plaintiffs admitted that the ,NPG is unregistered group, hence it does have legal capacity to enter into an agreement. He submitted.that, the evidence of DWl, DW2 and DW3 shows the first to fourth plaintiffs were given the land in .dispute in 1-994 but they abandoned the same without developing the sarhe .until, 2010 which is a period of about 16 years is when they returned to the land in dispute. He submitted the principle of adverse possession apply to defendants and referred the court to the case of the Registered Trustees-of the Holy Spirit Sisters of Tanzania V. January Kamili Shayo & 136 Others, Land Case No. 11 of 2012, HG at NIoshi (unreported)'where the'stated principle was considered. He also referred the court to the case of Nitin Coffee Estate Ltd, V. United Engineering Works Ltd, [1988] TLR 203 and Abualy Alibhai Azizi V. Bhatia Brothers Ltd,[2000]TLR 288 which discussed the position of .the right of.occupancy vis a vis the customary right of 20 occupancy." At the end he prayed the court to declare the defendants are ■ lawful owners of the land in dispute as they,were given the sarrie by the Street Government and prayed the court to find the, plaintiffs, have failed to prove any,damages they have suffered. The court.has carefully considered the eviderice frorn both sides and keenly considered the final submissions filed in the/court by the counsel for the parties. The court has found before going to" determination of the issues framed in the suit at hand it is proper'to.state at this juncture that, as rightly submitted by the counsel for the plaintiffs the position,of the lavy as provided under sections 110 (1) and (2) and liz of the Evidence Act is very clearly that, whoever desires a court to giye judgment in his or her favour is required to prove the facts he has alleged are in existence. The stated position of the law was emphasized by the Court of Appeal in the case of Abdul Karim Haji V.JRaymond Nchimbi Alois & Another, Civil Appear No. 99"of 2004(unreported) where it was stated it. is an eieme.ntary principle of the law that he who alleges is the one responsible to prove his allegations. It was also stated by the Court of Appeal in the case of Anthony M. Masanga V. Penina (Mama Gesi) & Another, Civil Appeal Np. 118.of 2014 (unreported) that, a party with legal burden also bears the evidential, burden of proying'the,case on the • 21 - . . . ; balance of probabilities. That being'the position-of the law the court has found the pjaintiffs have a burden to prove they are.entitled to the reliefs sought In their plaint. Starting with the-first issue which asks-who is the lawful.owner of the,land in. dispute, the court has found the plaintiffs have alleged they are lawful owners of the land in dispute. The first to fourth plaintiffs averred the land in dispute was first allocated to them in 1994 by Vikawe Shule" Village as members of the NPG for conducting their agricultural activities., It was further;averred that,.-in 1997 part of the said land measuring fifty acres was allocated to the fifth'defendant by the same village authority for the purpose .of keeping.and pasturing his animals. The court has found the defendants have'not disputed the plaintiffs were given the land in dispute for the stated purposes. The evidence from the defendants' witnesses and the argument from their advocate is that the land in dispute was. returned to the previous owners who had agreed their land be given to the plaintiffs after seeing the plaintiffs-had failed to meet the conditions given to them,for being-the land in dispute. The defendants',witnesses told the court-that, when the plaintiffs were .given the land in diispute, there was a condition that the NPG people would have compensated the previous owners who volunteered to give .them their land because the land had some permanent crops like cashew nuts, mango trees and orange trees. ^ ' It was said by the defendants' witnesses that the NPG people failed to compensate the ^previous"owners of the land given'fo-them and the fifth defendant who was.also given part of the land in dispute on condition, that he would have built a house for the school teacher, failed to:meet the stated condition as he built the house which was demolished by the District Commissioner after being found it was" built below .the required standard. The defendants' witnesses stated after the plaintiffs, failed to meet the conditions given to them, the Government of the Vikawe Street decided to distribute the "land to some of the citizens who are now defendants in the present suit. After considering the stated ,evidence the court has'found there is a clear "and undisputed evidence -that the land in dispute was given to the plaintiffs. The court has found.the stated evidence is also supported by exhibit PI- which is the minutes of Vikawe Shule Hamlet which shows the fifth plaintiff was given fifty acres of the land in dispute..The court has considered the averments and the evidence adduced by.the defendants' witnesses that the land was taken from the plaintiffs after failing to meet the conditions for being given- the stated land and distributed to the citizens of Vikawe Shule Hamlet but find the;stated evidence has not been able to satisfy the court the plaihtiffs-arenot the lawful owners of the land in dispute. , The court has come to the stated finding after seeing that, although the defendants stated the plaintiffs failed to meet the .conditions.given to them for the land given to them'but PW2 and PVy4 said they paid the compensation they were required to pay to.the citizens who,agreed to give their land to them. PW2 said they used the land given,to them 'and they were: participating in the social activihes conducted at the village. The court has found even the fifth plaintiff whose condition was to build a house for the school teacher he fulfilled the stated condition though DWl, DW2 and DW3 said the house built by the fifth plaintiff was demolished .by the District Commissioner after being found.it was below ■the required standard. To'the view of this court^ the stated evidence ,of the defendants' witnesses has not managed to satisfy the court that it has outweighed the evidence of the plaintiffs' witnesses that the plaintiffs failed to,fulfill the condi.tions of owning the land in dispute .given to them. The argument that the plaintiffs failed to fulfill, the conditions given to them was- supposed to be supported by evidence from either the Government of the ■ 24 • - • ' ' ' Vikawe Shule Street or evidence from the District Commissioner's office or Town" Council-Government to establish the plaintiffs failed to rrieet the conditions given to'them for owning the land^ iii'dispute and the land In dispute was lawfully taken from them .and distributed,to the citizens of Vikawe Shule Street. The court has also found there is no. person whose land was taken and given to the plaintiffs appeared in the court to prove" he was not paid compensation for the land given to the plaintiffs. The court has been of the view that, even if it will be said the plaintiffs failed to meet the conditions/given to them as stated by the defendants'witnesses, and the Government Authority.found ..there was a justifiable reason for taking.the land from the plaintiffs and distribute the same to. the defendants butas'rightly submitted by the counsel for the plaintiffs the stated exercise would have not been done without informing the plaintiffs that the land given to them was being taken from them as they failed to meet the conditions given , to them and It was being distributed to the citizens. The court has come to the stated view after seeing it was.stated in the case of Edwin Paul Mhede & Another V, Shose K. Ngowo (Administratrix of.the Estate of the.late Constansia S. Ngowo, Land- Appeal No; 97 of 2021, HC Land Div-.at DSM (unreported) that, after a 25 • land being given to a person it should not be taken from-him and given to...another. -person without following, the. required.procedures., of reallocating the land already allocated to the another person. To do so will be the source of unnecessary conflicts arid disputes to the people and .will make ownership.and use of it iri our.'country to^be uncertain. The above, view of this court is getting support from the case of Nyamhanga Ng'arare V, Kemange Village Council & two Others, [2012] TLR 280 where it was;stated that: - . ; "7776 Village Council had no right and power, to allocate or reallocate.land to a villager which wasin possession ofanother vHiager without the consent ofthat villager: A village Council which allocates land \which is aiready under deveiopment and in the possession of another person wouid. not dniy bring iawiessness and anarchy to the viiiagers but would aiso retard the development ofthe viiiagers." Since it has not been stated anywhere in the evidence adduced in the court that the plaintiffs were informed the land given to them was being returned to the original owners or was being taken and distributed to the citizen as they .failed to meet the conditions given to,them, the court'has found taking of the land already given to the plaintiffs without informing them-and distribute the same.to the defendants was not proper. 26 The counsel for the defendants raised in his "submission the issue of adverse possession,of the land in dispute. After considering the evidence adduced in the matter; by^ both sides the court has found, the stated principle.is not applicable in the matter at hand. ■ , . The court has come to the stated finding after seeing that, although it is-stated the first to fourth plaintiffs were allocated the land in dispute' in 1994 and abandoned the same until when part of it was given to the fifth plaintiff in 1997, but the limitatio.n.bf timeTprthe principle of adverse possession is counted from when the person,claiming tp.be the owner of the land under the stated, principle entered, in the land until when the actual owner started to claim for the same. That is provided so clearly under section 33(1) of the Law of Limitation Act Cap 6 R.E 2019'where it is stated that: - "A right ofaction to recover iand shaii not accrue,uniess . the land isin possession ofsome person in whosefavour the period oflimitation can run (which possession is in this Act referred to as "adverse possession"J and, where on the.date on which the.right of action to recover any iand ■ accrues and no person is in adverse possession of the land, a right of action shall not accrue unless and until some person takes adverse possession ofthe /i3/7d''[Ernph'asis added]" 27 From the wording of the-above quoted provision of. the law and specifically the bolded part it is . crystal -clear that the right of action to recover land possessed by anpther person under the principle of adverse possession is required to accrue from the-date on which the person claiming to be the.owner of the stated land under the stated, principle, started be in possession of the land. As provided under item 22 of the Part I of the Schedule to the Law of Limitation Act the limitation period for claiming ownership of a land is twelve years. - ^ : That being the position ofthe law the court has found that/ as the defendants' witnesses stated "the land in dispute was distributed to the defendants iri 2010 and before filing of the present case in the court the defendants filed in the court another case which, was Land Case No. 353 of 2013 claiming for the same.,)and and later on. it was withdrawn by the defendants, it cannot be.said in 2021 when the current suit was filed in the court the period of time for claiming the ownership of the land in dispute had passed against the plaintiffs and the defendants are entitled to be found are owners of the iand in dispute under the".stated principle of adverse possession. That is because the law requires that, in order for the principle of adverse possession of a land to be invoked, a person is 28 required to be in possession of the stated land for more than^^elve years without interruption. . ^ .. ' The above finding makes the court to see the position of the law stated in the case of Registered trustees of the Holy Spirit Sisters of Tanzania (supra) is distinguishable to the present case. The court has also found the position of the law stated in the cases of Nitin Coffee Estate Ltd and Abualy Alibhai Azizi (supra) which discussed the position of the value or superiority of the right of occupancy vis a vis.the customary right of occupancyjs not applicable to the circumstances of the present suit;. The court has found the counsel for the defendants has raised in his final submission a point that the first to fourth,plaintiffs have filed the case in the court'in their personal capacity instead of filing the same through the name of their group. The court-has been of the view that the stated point was supposed to be raised at the beginning of the case so that the plaintiffs could have been given a chance of responding to the same and not at this stage of final submission where they will have no chance of responding to the same. The court has also found the stated'point has no merit because,as stated by PW2 and PW4"their organization, is not registered so that I can ■ 29" ■ -be said it has power to sue as a legal person! Since DWl DW2, and DW3 did not dispute the. land in dispute vyas allocated to the plaintiffs Jn" the matter and other, merhbers-of their.group-the court has found there is nothing which can make it to find the stated plaintiffs could-have not filed the case in the court by suing their names to claim for the land in dispute. As for the argument that the Vikawe Shule Village had nb power to allocate three hundred acres of land to the plaintiffs the court has found the evidence adduced in the matter shows the land given to the plaintiffs was not a. village land but a land which'was owned by the villagers who volunteered their land to be given to the plaintiffs on condition that they would have been paid compensation for their permanent crops. All that shows the points raised by the counsel for the defendants have nothing meritorious to make the court to find , the case before the-.court is not tenable. From the above analysis,of the evidence adduced j.n the case by both sides and the submissions filed in the court.by the counsel for the parties the court has found the plaintiffs have managed to establish to the standard required by the law as provided under section 110 (1) and (2) of the Evidence Act that they are the lawful,owner .of the land in dispute.' That is because the averment that the land in dispute was distributed to 30 • > the defendants after the-plaintiffs failed to rrieet the conditions given to them is not supported by-,any material eyidence from the defendants-and the procedure for taking and . distributing the land in dispute to the defendants did not abide to the requirement of the law. Consequently, the court has found the answer to th6 first issue framed for determination in this case deserve to be the plaintiffs are the lawful owners of the land in dispute. Coming to the second issue'which asks whether the Plaintiffs suffered'damages the court has found the plaintiffs, are praying to be granted an order of being paid Tshs. 1,000,000,000/= being specific damages. The court has found it is a trite law that claim of a specific damage is required to-be strictly proved. Jhe stated position pf the law has been emphasized by this court and the Court of Appeal in number of cases which one of them is the case of. MasoloSe General Agences V African Inland Church of Tanzania [1994] TLR 192 where it was stated that, once a claim for a specific item is made, that claim rhust be strictly proved. . ' - ■ While being guided by the stated position of the law the .court has found that, although PW2 and PW4 said they developed the land in dispute and they constructed a house on the land in dispute, the house 31 they averred it was demolished by the defendants after trespassed into their land and destroyed^their properties; but there is no any evidence adduced to'the court to show-the value of^ the house .averred was demolished by the defendants. In addition to that it was not stated which properties of the plaintiffs were destroyed-by the defendants and what is the value of the stated propertiesiso as to enable the court to gauge how much damages can be granted to the plaintiffs. The stated.finding caused- the court to come to the settled view that, the second issue has not been proved to the standard required by the law and deserve to be answered in negative. -■ ' ■ ■ ■ ■ ■: ■ As for the last issue which is about the reliefs the parties are entitled the court has found as stated at the outset of this judgrnent that, the plaintiffs are'claiming for various reliefs in the plaint. The reliefs they are claiming against the defendants included a declaratory order that they are the lawful owner of the land in dispute, they are praying for permanent injunction order to restrain the defendants from, interfering them In the use of the. land in dispute, an order of vacant possession and demolition of the structures erected by the defendants onto the land in dispute,' specific damages, interest and costs of the suit. ' , 32 ■ The court has found the evidence adduced by the plaintiffs' witness show the first-to fourth plaintiffs said in their evidence they were given three hundred acres of land but now they afe,claiming for two hundred acres of land in the reliefs they.are seeking,for against the defendants. The court has found that, as they are claiming for two hundred .acres of land the court will, grant then what they seeking from the codrt and not what they have not claimed for. ; As the court has been satisfied the evidence adduced by the plaintiffs' witnesses has managed "to-establish"the plaintiffs are the lawful owners of the land in dispute but,they have failed to establish they are entitled to any damage,,the judgment is hereby entered in favour of the plaintiffs and against the defendants as follows: - . 1. The plaintiffs are declared they are the rightful owner of the land in dispute measuring 200 acres situated at Vikawe Shule^Street in Kibaha Town Council and they have a right to survey the same in conformity with the Kibaha Town Planning Regulations. 2. The court is granting an order of permanent injunction to restrain- the defendants, their agents, and assignees from interfering with the plaintiffs' use of the land, developments and transaction of .whatsoever. • -33- - . * 'i 3. The defendants are ordered to give vacant possession of the land in dispute to the plaintiffs and demolish whatever structures they have erected onto the land in dispute and 4. The plaintiffs are awarded costs of the suit. It is so ordered. Dated at Dar es Salaam this 23'^ day of February, 2023. C5 I. Arufani 1 S: JUDGE ★ ★ 23/02/2023 DlV\^ Court: Judgment delivered today 23'^ day of February, 2023 in the presence of all plaintiffs in persons save for the fifth plaintiff and in the presence of the first and twenty third defendants in persons. The rest of the defendants are absent. Right of appeal to the Court of Appeal is fully explained. A C5 Oh- I. Arufani JUDGE ★ ★ 23/02/2023 DlV\ 34