20170623 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA LAND CASE NUMBER 33 OF 2014 CHRISTOPHER GISI RI .......... I ••••••••• ••••• PLAINTIFF VERSUS MKURUGENZI WA HALMASHAURI}·····RESPONDENT YA MJI WA SERENGETI JUDGMENT 23. 05.2017&23.06.2017 Matupa, J. In this case, the plaintiff has filed a claim for compensation from the respondent in respect of certain tortuous breaches on the land of the late plaintiff. The substance of the claim is that, an employee of the defendant invaded and trespassed onto the land of the plaintiff, damaged crops planted thereon and built a dispensary on the land. 1 The demand note was sent to the Director of Serengeti District Council, Mugumu. This director was not privy to the ., plaint, it transpired that he did not enter appearance. The employee is not privy to these proceedings. Unfortunately, this issue eluded the attention of the court. The matter proceeded to trial, ex parte against the Director of the town council. At the conclusion of the pleadings, and given that the matter proceeded ex parte, the following three issues were framed. 1. Whether the DED of Serengeti District invaded a piece of land measuring six acres. 2. Whether the land in dispute belonged to the plaintiff. 3. To what reliefs are the parties entitled. The plaintiff was represented by Mr Makunja Advocate. Sometimes in the cause of the trial, the plaintiff passed away. His son one Mohere Christopher who was the successor in title, took over after he was dully appointed to administer the estate of the deceased father. The claimant lined up three witnesses to 2 establish the claim. Their evidence was substantially the same. All the three witnesses had more or less the same testimony. The first issue of ·whether the DED of Serengeti District invaded a piece of land measuring six acres, it was drawn from the pleadings as contained in the following four paragraphs of the plaint. 6.That the cause of this misunderstanding started h1 or about 2008 during the era of the retired Honorable Member of parliament James Wanyancha, when after being requested by the headmaster of Kambarage Secondary one Majige, to assist acqu1nng a school dispensary, a positive response was expressed for the provision of a total 159 corrrugated sheets were specifically for thatching of a school dispen_sary. 7. That Kambarage school management offered its premises upon which to build a (sic) dispensary. 8. That on the 10th March, 2014 the Ward Executive Secretary of Gesamo accompanied by approximately 120 villagers invaded four land property (sic) worth more than Tshs 30 mimon 3 belonging to the plaintiff and proceeded to uproot about 360 different trees valued at shillings 40,000 /- each ,; 9. That on 10 may, 2014 the said Ward 1Executh1e Officer again and invaded another land about two acres worth Tshs 30 million All the three witnesses testified on this issue. Muhere Christopher Gisiri, PWl recalled that on the 10th March, 2014 the ward executive officer called John Mbota accompanied by a group of people, about 120 of them, invaded the land in dispute and cut down trees and the fencing sisal. Thereafter, his father went about to complain Ito various offices of the government, he was branded as anti-developmental. He attempted to produce a letter purportedly written to the father, following the complaint. However, the same was not admitted in evidence as the letter did not qualify as good evidence. This witness complained that in every office his .father went to complain, the ward executive officer would block him· branding 4 him an anti developmental element. He claimed further that, the estate of his father be compensated the land which was acquired ., from the late father without following the procedure. The same evidence was recounted by PW2 Daudi Waisiko Gati. It was his testimony that, the land was acquired at the instance of the Ward Executive officer of Getasamo Ward, which has since been re-designated as Matare Ward. The witness contained that the ward executive officer claimed that same was village land, and decided to build on it a dispensary. This witness though, described the land as a six acres piece of land. There was no mention by the witness, of the fact that the land was acquired in two lots as was contended in the pleadings. PW3 Emanuel GisirJ Gimonti also testified to the same effect. His only addition was the element of the history of the acquisition. It was his testimony that the idea to build the dispensary for the Secondary school came from the Member of 5 Parliament one James Wanyancha. The school Head Teacher allocated land at the school premises for the purpose. And also, the MP contributed roofing sheets for that purpose. The witness averred that the school is located to the west of the land in dispute, and it is separated by a center. This location of the dispensary at the school did not please the WEO. He decided to dispossess the late plaintiff of the land, and cleared it. It is not apparent from the testimony of all the witnesses if the project took off from the ground. From the pleadings and the evidence, it is apparent that the project was mooted by the Member of Parliament and the school leadership. This decision was taken over by the ward executive officer. It is not apparent if the council was appraised of the project. This could not be made apparent, precisely because the plaintiff did not wish to join the teacher and the WEO as co- defendants. Neither of the two were called to testify in court on 6 i I '' the mandate they had from the council. The omission was fatal, because there is no evidence which would link the decision of the · WEO and with the Defendant. I asked the counsel for the plaintiff if it was not necessary to join the WEO as a co defendant or as a party, he said that it was not necessary. The procedure for the acquisition of land by urban authorities is provided under section 60 of the Local Governments (Urban Authorities) Act, cap 288 of the 2002 revised edition of the Laws if Tanzania which provides as follows (1)An urban authority may, by agreement and with the prior approval of the .minister, acquire any land or right over or to the use of any land within or without its area of jurisdiction, for the purposes of any of its functions. (2) For the purposes of any of its functions under this Act or any other written law, any urban authority may with the prior approval of the minister (a) Request the president to exercise the powers to acquire land conferred on him under the Land Acquisition Act, 1967 in respect of any land 7 whether within or without the area of ~ts jurisdiction (b)(Not applicable) (3) ( not applicable) ( 4) all expenses and compensation incurred in respect of acquisition of any land by the President or the revocation of any occupancy under this section shaU be paid by the President, the urban Authority concerned shall pay to the president such sum of money as the President shall determine; and the !and so acquired shall be granted to that authorEty on s:;uch terms and conditions as the president shaU determine. These provisions are replicated in section 118 of the Local Governments (District Authorities) Act cap 287. Three things have further confounded the dain1. These are One, from the foregoing provisions of the law, the acquisition of the land could only be done by the authority, and not without the knowledge or approval of the Minister. Two, the miscreant official was not impleaded and Three, the defendant was inaccurately described. 8 .• .ft~• -v .. From the evidence on the record, the claim in· this case is against the ward executive officer. There was no effort to procure the attendance of the said officer in court as a party, or even as a witness. Yet, the plaintiff conducted the case accusing the officer. The absence of the officer has denied the claimant the vital link between the person who committed the wrong and the Authority. As such, in this case, the officer was the proper party. Without him, the suit cannot be disposed of against the Authority, which could only be linked to the claim through the ·purported employee. This position is made even more difficult from the pleadings; together with the evidence of PW3, who attributed the project to the Member of Parliament. It is not in evidence that the project went through the approval of the council. It is also not in evidence that when the Member of Parliament committed himself to the project, if at all it was sanctioned by the Council. 9 More still, it is in evidence that the school availed the land upon which the dispensary would be built. There is no good account if at all the project was ever relocated to the land in dispute. This evidence would have been easily obtained from the head teacher of the school and the cloud would have been cleared. This key witness was conveniently avoided, Still, the testimony of the three witnesses is silent on how the WEO decided to relocate the dispensary to the land in dispute. Since the plaintiff did not see it proper even to call the head teacher to provide a picture of the project, we are left in the dark, as to the decision of the WEO to move to the land if it was ever associated with the project. To cap it all, the evidence only provides that the land was invaded by the officer of the District Council. The and there was no evidence that would suggest that he was not acting on the frolics of his own errands. Lastly, the plaintiff does not even know 10 who they sued. The plaint describes the defendant as the "Halmashauri ya Mji wa Serengeti,, ·(Serengeti Town Council), which I doubt if at all it exists, and yet, all the evidence is against the Serengeti District Council. From all the foregoing, it is my holding that it has not been shown that the land and plants were squandered by the alleged official on behalf of the Defendant or at all. If anything, as the evidence does not attribute trespass and the destruction to the defendant, but to the person who was most probably acting on his personal capacity, this shows that from the facts of the case, the officer could as well be sued in his own name. On the other hand, the defendant could not be sued without impleading the purportedly miscreant officer. In the result, I will hold the first issue in the negative. · Having held the first issue in the negative, there cannot be the need to proceed to the remaining issues. In the result, this 11 suit is hereby dismissed. Since the matter proceeded ex parte, I will not make an order as to costs. ~~---·· S.$-~M-:G. Matupa, Judge. 12 .Date: 23.06.2017 Coram: Hon. Matupa, J PI a -i n t i ff: J o h n Ed w a rd ho I d i n g b r ref f o r M r. M a k u n j a for the plaintiff who is present in person. Defendant: Maganiko Musabi for the defendant B/C: Kaijage John Edward: The case is set for judgment, we are ready for judgment. Court: The judgment of the case is delivered in chambers i n the pr-es enc e of M r. Joh n Ed w a rd Advocate ho Id i n g brief for Mr. Makunja Advocate for the plaintiff and in the presence of the plaintiff Mr. Maganiko Musabi for the defendant this 23 rd day of June, 2017. Right of appeal fully explained. 119.~ S.B/IYl-:G:-Matupa, Judge AtMwanza 2fd June, 2017 I HEREBY CERTli;v Tl-iAT THE FOREGOiNG IS A TRUE AND CORRECT COPY OF THE ORIGINAL 15 ···············o1strl~i-1.[q t>•r+ High Court of Tanzania, ~wanza