mayugwa

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY ATTABORA LAND CASE NO. 1 OF 2022 DAUDI MANGA MAYUNGWA....................... ........ ..PLAINTIFF VERSUS IMANI RAMADHANI KATURUMLA.............1st DEFENDANT LUCAS YOHANA KATYEGA........................ ......2nd DEFENDANT RASHIDI SAID SAMBALY................. ...............3rd DEFENDANT RAMADHANI HASAN KITUNDU......... ......... ...... .....4™ DEFENDANT ANTHONY LAZARO................... ..5th DEFENDANT ALLY MWINYI.... ......................................... ...........6th DEFENDANT LAMECK EZEKIEL KAVENGA........... ....................... .7™ DEFENDANT DEODAT DENIS MREMA................... ..8th DEFENDANT YOHANA JOSEPH....... ......................... ...... .............9th DEFENDANT HAMRI RAMADHANI................. ................ ..10™ DEFENDANT MUSSA MABINA KAARABU..... ............................11™ DEFENDANT BERNARD MARTIN FRANCIS....... .......................12™ DEFENDANT SAFI SELEMANI KASSIM.....................................13™ DEFENDANT ABDALLAH HAMISI MALIPO.................. ...14™ DEFENDANT EMMANUEL SHIJA MSAFIRI........ .............. ..........15™ DEFENDANT ASHA FUNDI.... ................... ...............................16th DEFENDANT YAHAYA SELEMANI...... .................. ....17th DEFENDANT MWENDA IBRAHIM KIMATHI....... .....................18th DEFENDANT KALEKWA IBRAHIM KIMATHI.............................19th DEFENDANT MOTHER FRANCIS JACKSON...... ....... ...21st DEFENDANT JUMAMFUPA........ .............................................22 HD DEFENDANT HAMIDU MGAWE................................. 23R0 DEFENDANT SELEMANI MKANGARA.............................. .........24™ DEFENDANT AMRI RAMADHANI ........... 25™ DEFENDANT JUDGEMENT Last order: 22/05/2024 Judgement date: 15/08/2024 MANGO, J The Plaintiff instituted this case contesting ownership of a piece of land located at Milembembela Ward, Uyui District in Tabora Region, estimated to be 33 acres in size. He alleged that he acquired ownership over the land in dispute by purchasing the same from Jibola Mponiwatulo on 16th October 2010. The Plaintiff's allegations are vehemently disputed by the Defendants who also allege to be lawful owners of small pieces of land forming part of the land allegedly owned by the Plaintiff. After a failed mediation, the Court proceeded with a trial. 2 During trial, the Plaintiff was represented by Emmanuel Musyani learned advocate while the Defendants were represented by Kanani Chombala learned advocate. In his efforts to prove his ownership over the suit land, he paraded three witnesses. The Defendants also had six witness. The Plaintiff's witnesses include, the Plaintiff himself who testified as PW1, Ham is Hussein (PW2) and Job Francis Mwakijale who testified as PW3, According to the Plaintiff and his witnesses, the land in dispute belongs to the Plaintiff and he purchased the same from Jibola Mponiwatulo. The Plaintiff tendered sale agreements dated 16th October 2012 and 25th October 2010 which were executed by Jibola Mponiwatulo and Daudi M, Mayugwa, the plaintiff in this matter. The documents were admitted and marked as Exhibit Pl. The agreements were witnessed by Hamis Ramadhani and Kashindye Mlabala. The Plaintiff also testified on a long history of disputes pertaining to the land. The disputes over the disputed land, as per the Plaintiff's testimony, started in 2014 by a suit instituted by Ramadhani Ngumizi before the Uyui Ward Tribunal which was registered as Land Case No. 12 of 2014 and its subsequent appeal, Land Appeal No. 70 of 2014. Ngumizi claimed ownership of the land in dispute. He alleged that the land in dispute belonged to his father. The case ended in favour of the Plaintiff and the appeal preferred by Ngumizi was also unsuccessful. In the course of execution of the decision of the Tribunal, the District Land and Housing Tribunal for Tabora appointed Kumepambazuka General Business Enterprises Company Limited to execute the decision of the Tribunal by evicting all trespassers from the land and handling the disputed land to the Plaintiff. 3 When the Court Broker was executing the decisions of the two tribunals, Stella Ngofira emerged and claimed to be the lawful owner of the disputed land. She unsuccessfully filed Misc. Land Application No. 42 of 2019 before the District Land and Housing Tribunal for Ta bora. After determination of Misc. Land Application No. 42 of 2019, Stella Ngofira did not take any action to challenge it. Later Nine persons also emerged claiming ownership over the disputed land. The nine persons were Iman Ramadhan Katurumla, Lucas Yohana Katyega, Rashid Said Sambaly, Ramadhani Hassan Kitundu, Anthony Lazaro, Ally Mwihyi, Lameck Ezekiel Kavenga, Deodat Denis Mrema. They alleged to have purchased pieces of land forming part of the disputed land from either Ramadhani Ngumizi, Stellah Ngofira or Asha Fundi. Unfortunately they have never tendered any evidence to prove their alleged purchase of land from either of the three mentioned vendors. In their desire to contest ownership over parts of the disputed they unsuccessfully instituted Application No. 213 of 2019 before the District Land and Housing Tribunal for Tabora. On 3rd October 2020, eleven persons after noting that they purchased parts of the disputed land from persons who are not lawful owners of the land, they entered into agreements to purchase the land from the Plaintiff. The Plaintiff mentioned those persons to be Hamidu Mgawe (22nd Defendant), Lameck E. Kavenga (7th Defendant), Selemani A. Mkangala (23rd Defendant), Safi Selemani Kassim(13'h Defendant), Abdallah Ha mis Malipo (14thDefendant), Bernard Martin Francis (12th Defendant), Amri Ramadhan (24th Defendant) and Hasani Kitunda(4th Defendant). The Plaintiff tendered the agreements and they were admitted as Exhibit P3. In brief, the Plaintiff's 4 testimony was centred on how he acquired the land and disputes that arose against his ownership over the disputed land and how the said disputes were dealt upon. PW2 Hamis Hussein Magubiko, ex hamlet chairman of the area at which the disputed land is located testified on how Mponiwatulo, the Plaintiff's vendor acquired ownership over the disputed land. Although his testimony was merely verbal, he testified to the effect that the land dispute measures 33 acres and it was allocated to Mponiwatulo in the year 1994 following the Village Council's decision to have forests around the area cleared for security reasons. He understands that the land was later purchased by the Plaintiff who cleared the entire land and improved the same by constructing two wells, a house. PW3, Job Francis Mwakijale testified on the manner he participated in execution of the decision of the tribunal in the year 2020. He stated that, in 2019 he was the village chairman of Uyui Village. The Plaintiff approached Uyui Ward Offices with his documents that indicate that he won a case over the land in dispute and he was declared to be the owner of the land. By that time the Plaintiff was in the process of executing the decision. He showed them the land and the same was handled to the Plaintiff as per the decisions he had. He also witnessed the agreements, exhibit P3. He testified to the effect that the agreements were voluntary executed by the parties. That was all from the Plaintiff. The Defendants paraded six witnesses. DW1 Iman Ramadhani Katurumla testified to the effect that he purchased his land measuring 30 steps by 50 steps from Martha Francis in the year 2014. As to the dispute at hand, he 5 stated that his house is also subject of execution process. He stated further that, in the course of contesting the Plaintiff's execution process over the land, persons who were affected by the process approached Regional Commissioners office and they were advised to institute a suit before a Court of law but they didn't file any case. He also alleged that the agreement P3 was executed out of coercion as his wife was threatened to have their house broken if she will not sign the agreement. DW2 Mariam Haruna Kaombwe testified on how his husband was threatened before signing the agreement. She stated that her husband was asked to choose either to sign the agreement or have the house demolished. She stated that, her husband, Ramadhan Hassan Kitundu did not even sign the agreement, it was the lady who had the agreements on her hands that signed the agreements by inserting the names of her husband. It was her testimony that the persons who came to demolish houses in the disputed land, managed to demolish 12 unfinished houses and 3 finished houses. Her testimony was centred at disputing voluntariness of her husband at the time of signing the agreement which is among the agreements admitted as P3. DW3 Safi Selemani testimony is also centred at disputing her voluntariness when she signed an agreement to purchase the land from the Plaintiff. She alleged that she was merely informed that her house is being demolished and when she arrived at the locus in quo she found the persons who were demolishing houses at the disputed land have reached her house and they are about to demolish it. She shouted to them not to demolish the house 6 and they asked her if she can purchase the land again. She had to sign the agreement out of distress and fear of having her house demolished. DW4 Masengo Ibrahim had a similar piece of evidence as DW3. According to her, she signed the agreement because she was afraid her house will be demolished. DW5 Salehe Rajab Kamchape confirmed that, the land in dispute was purchased by the Plaintiff from Mponiwatulo. He witnessed the sale, participated in showing boundaries of the land, identifying the vendor and he is among the witnesses to the agreement executed to that effect. According to him, the land was not measured at the time the sale transaction was concluded. By his estimation the land was 12 to 15 acres. DW6, Mwenda Ibrahim Kimathi, stated that he owns land in the disputed land. His land measures one acre and he was given the land by his father. He has a house in the disputed land and his house was among those identified as being constructed in the Plaintiff's land but it was not demolished. He did not sign any agreement with the Plaintiff however, he witnessed the manner the agreements were signed. He alleged that the agreements were not signed voluntarily. He testified also about the efforts made by the persons whose pieces of land were demarcated as forming part of the disputed land during execution. He tendered the report titled Taarifa ya malalamiko ya wananchi wa Kidatu B kuvunjiwa nyumba na Daudi Mayugwa which was admitted as exhibit DI. According to the report, the residents of Kidatu B who complained of demolition of their houses by Daudi Mayugwa were advised to institute formal suits to contest their alleged rights over the land. 7 At the close of the Plaintiff and the Defendants' case, parties were granted leave to file final submissions, I am grateful to advocate Emmanuel Musyani for filing his final submission as ordered by the Court, I will not reproduce the submission, however reference will made to the contents of the submission in the course of determining issued drawn by the Court for proper determination of this suit. After I have considered evidence adduced by both sides, I can now determine this matter by disposing the issues drawn by the Court. The main issues that were drawn by the Court with assistance from advocates for both parties were as follows: i. Whether the suit land or part of it was ever litigated in land dispute No. 6 of 2014 at Uyui Ward Tribunal and Land Application No. 42 of 2019 of the District Land and Housing tribunal for Tabora ii. Whether the Defendants were parties to land dispute No. 6 of 2014 and Application 42 of 2019 iii. Defending to issue No. (i) and (ii) supra, whether the defendants are by law affected by whatever decisions reached in Land Case No. 6 of 2014 at Uyui Ward Tribunal and in Land Dispute No. 42 before the District Land and Housing Tribunal for Tabora. iv. On evidence to be adduced by the parties who is the lawful owner of the suit land between parties herein v. To what reliefs are parties entitled to On the first issue the Response is in affirmative because evidence adduced by the Plaintiff regarding the description of the land in dispute especially the sale agreement through which the Plaintiff acquired ownership over the land 8 in dispute establishes that the land in dispute in this matter and in Land Case No. 6 of 2014 is the same. Land Case No. 6 of 2014 was instituted by Ngumizi Ramadhani Igagila before Uyui Ward Tribunal against the Plaintiff together with four persons namely John Mlag.ulwa, Mussa Yohana, Mwenda Ibrahim and Rajabu Ndalusanze were sued by Ngumizi Ramadhani Igagila. After full trial the Tribunal found the Plaintiff and his co- Respondents to be lawful owners of the suit land and allowed them to continue with their activities. This is evident also from the testimonies of Defence witnesses who stated clearly that, their plots of land were identified to be forming part of the Plaintiff's land during execution of the decree issued by the Tribunal in favour of the Plaintiff, With such undisputed facts, then the land in dispute was litigated and a court decision declaring the Plaintiff to be the lawful owner of the suit land was issued by the Tribunal in Land Case No. 6 of 2014 before Uyui Ward Tribunal. The only challenge that I have noted is that, in Land Case No. 6 of 2014 before Uyui Ward Tribunal and its subsequent Execution Application Misc. Land Application No. Ill of 2015, the land declared to be owned by the Plaintiff was not well described. Evidence to that effect also appears in the testimony of PW3 who said, after the Plaintiff approached the Ward Offices in the course of execution of a decree issued in his favour, they asked the Plaintiff to show them the land and they later handled the same to him. Ordinarily, the Plaintiff would not have been asked to show the land declared to be his. The judgement and decree subject of execution ought to have indicated expressly the size and boundaries of the land. Failure to include clear description of the land in the judgement and decree makes the decree 9 incapable of being executed. See the case of Mwanahamisi Habibu & 7 Others vs Justin Ndunge Justine Lyatuu (Administratrix of the Estate of the Late Justine Aitalia Lyatuu) & 173 Others (Land Case 130 of 2018) [2021] TZHCLandD 6848 (13 December 2021). Despite noting challenges in executing the decree issued by the Tribunal, this Court cannot alter the decree in Land Case No. 6 of 2014 through this suit. The Court can only do so if a particular decree is challenged via correct court procedures. As correctly submitted by the counsel for the Plaintiff, once a court decision is made, however bad it is it will remain binding until when successfully challenged. The decision in Land Case No. 6 of 2014 shall remain binding until when successfully challenged. Thus, the Plaintiff cannot institute a fresh case contesting ownership over the same piece of land merely because he faced difficulties in executing the decision of the previous Court involving the same land. The second and third issue cannot be determined effectively since the Defendants opted not to produce any evidence regarding their alleged ownership of the plots of land identified to be subject of execution through Misc. Application No. 115 of 2015. In such circumstances, it is not easy to state clearly who among the Defendants, were party to the two cases because in making such a decision, the court need to trace the root of title claimed by the Defendants. In the same vein, it is also difficulty to determine, who among the defendants, is expressly bound by the decision in Land Case No. 6 of 2014 and Misc. Land Application No. 42 of 2017. Had the Defendants established to trace their title from the persons who have unsuccessfully litigated over the same land against the Plaintiff in the two cases, then this 10 matter, the second and third issue will have been answered in affirmative. What I can generally say, all those who trace their title from Ngumizi and Stella are bound by the decisions reached in the two cases. Those who do not trace their title from the two, are also affected by the decisions as long as the pieces of land claimed to be theirs forms part of the disputed land. Thus, they should, if they still claim to have any right over the said pieces of land, pursue their rights through proper legal procedure. The remedy for those persons is to file objection proceedings before the executing Court. With regard to the fourth issue which concerns who is the lawful owner of the suit land between the Defendants and the Plaintiffs, evidence on record made this Court incapable of determining the Plaintiff's ownership over the land due to existence of the decision on Land Case No. 6 of 2014. As on the part of the Defendant's, there is no single piece of evidence that establishes their ownership over the disputed land. The Defence witnesses did not tender any evidence regarding their alleged ownership over the disputed land. They directed much of their efforts in challenging voluntariness of the agreements tendered as Exhibit P3 which was not among the issues for determination in this matter. They also tabled long explanations as to how they challenged Plaintiff's execution of the decree in Land Case No. 6 of 2014 via the Executive arm of our state. In addition, defence witnesses conceded that, they never followed a very valid piece of advice given to them to have their dispute referred to Court for proper determination. All in all, since the land in dispute was litigated via Land Case No. 6 of 2014, this Court lacks jurisdiction to determine ownership of the same land in this suit. 11 For those reasons, I find the proper remedy for the parties in this suit is to have the suit dismissed. Given the fact that, parties to this matter will need to institute legal proceedings to have the decree in Land Case No. 6 of 2014 rectified, I award no costs. Dated at Tabora on this 15th August 2024 Z.D.MANGO JUDGE 12