edward daudi malila 8 others vs tanzania national road agency 2 others 2023 tzhc 19730 30 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF MWANZA)

AT MWANZA LAND CASE NO. 05 OF 2019 EDWARD DAUDI MALILA............................................................................. 1stPLAINTIFF VANDLUCK JUMA OBOTE.......................................................... 2nd PLAINTIFF ALLY A. MAGUMBA....................................................................................... 3rdPLAINTIFF IDDI RASHID MGALULA.............................................................................. 4thPLAINTIFF MOSJI KAMATA BUYUNGE........................................................................... 5thPLAINTIFF KHADIJA HASSAN KILALA........................................................................... 6™PLAINTIFF SHELA TWAHA SHABANI.............................................................................. 7™PLAINTIFF GAUDENCIA MADUKA SAHANI................................................. 8th PLAINTIFF JOSHUA DAUDI MANAMBA.......................................................................... 9thPLAINTIFF

VERSUS TANZANIA NATIONAL ROAD AGENCY........................................................ 1stDEFENDANT ILEMELA MUNICIPAL COUNCIL.................................................................. 2ndDEFENDANT HON. ATTORNEY GENERAL......................................................................... 3rdDEFENDANT

JUDGMENT 26/5/2023 & 30/6/2023 ROBERT, J:- This matter involves a legal action brought by the Plaintiffs against the Defendants, alleging the demolition of their fixtures located at Majengo Mapya area, Mahango C Street, Nyakato ward, along Buswelu corner-VETA road section within Ilemela Municipality in Mwanza region, i The Plaintiffs seek a declaration that they were legally occupying their respective pieces of land within the area and are entitled to adequate compensation based on a valuation conducted by the 1st Defendant between 20th and 22nd October 2017, estimated at Tanzanian Shillings 379,500,000/=. They also pray for interest on the claimed sum and costs of the suit. The Defendants, in their Written Statement of Defence, assert that the original inhabitants of the disputed area were already compensated, and the area was legally acquired by the 2nd Defendant in 1979. During the hearing of this matter, the Plaintiffs were represented by Mr. Deocles M.S. Rutahindurwa, learned counsel whereas the Defendants were represented by Ms. Subira Mwandambo, Senior State Attorney as well as Saad Rashid and Patrick Mhere, State Attorneys. The following issues were framed for determination of this matter (1) Whether at the time when the first defendant demolished the Plaintiffs' structures, the letter was legally occupying their respective pieces of land or they were trespassers to the

road reserve. (2) Whether the demolition by the 1st defendant was legal and justifiable (3) What relief(s) the parties are entitled too 7 Starting with the first issue, whether at the time when the first Defendant demolished the plaintiffs' structures, the latter were legally occupying their respective pieces of land or they were trespassers to the road reserve, the Plaintiffs alleged at paragraphs 6 and 7 of their Plaint that in different periods of their lifetime they acquired their respective plots through inheritance from their ancestors and/or predecessors in titles and made several developments including construction of permanent residential houses. That the plaintiffs or/and their ancestors/predecessors in titles had settled at the respective pieces of land since 1950s and were continuing with peaceful enjoyment of their occupancy undisturbed until October, 2017. The Plaintiffs presented evidence through nine witnesses (PW1 to PW9) who testified regarding their occupancy of the disputed land, inheritance from their ancestors, and developments made on the land. They claimed to have peacefully enjoyed their occupancy until the demolition took place. However, none of the Plaintiffs provided documentary proof of their ownership. PW1, Mr. Edward Daudi Malila, claimed that he inherited the land in 1974 from his parents but he had no I documentary proof of ownership or

information on compensation. PW2, Vandluck Odette, claimed inheritance based on an oral will from his father, lacking documentary proof allegedly due to the area not being surveyed. 3 PW3, Ally Abdallah Magumba, claimed to have inherited the plot in 1984 from his parents. PW4, Idd Rashid Mgalula, received the land as a gift from his father in 1970. PW5, Moshi Kamata Buyunge, resided in the area with his parents who passed away leaving him at the disputed land until the time of the said land survey in 2017. PW6, Khadija Hassani Kilala, claimed to have been given the land by her father orally and traditionally. PW7, Shela Twaha Shaban, also claimed to have inherited the land from her parents. PW8, Gaudensia Sahani, claimed customary inheritance from her father and grandfather. PW9, Joshua Daudi Manamba, asserted sole ownership from his late mother without documentary evidence. On the other hand, the defendants called two witnesses, Hermes Stanslaus Tegambwa (DW1) and Ramadhan Hassan Majaliwa (DW2). DW1, a Land Surveyor, testified about the history of the disputed area, its classification as an industrial area in the 1960s, and the subsequent survey plans showing the road reserve. He also presented exhibit D6, indicating compensation paid in 1979 for crops in the area. DW2, a Civil Engineer with the first defendant, testified about the demolition process, indicating that the area

was already compensated in 1979. After a careful consideration of the evidence and submissions, the court finds that the plaintiffs failed to provide sufficient evidence to establish how they legally acquired the disputed land. Although they 4 claimed to have inherited the land from their ancestors, none of them produced probate or any documentation to support this claim. The plaintiffs’ claim of inheritance and gift lacked supporting documents or witnesses, making it difficult to determine the legality of their occupation. In contrast, the defendants provided evidence, including survey plans (exhibits D2, D3, and D5) and testimony from a land surveyor (DW1), indicating that the disputed area was part of the road reserve, which was already compensated in 1979. The defendants also argued that the plaintiffs' structures were within the 30-meter road reserve. The Defendants presented exhibit D6, which indicates compensation paid in 1979 for crops in the disputed area. This documentary evidence supports the Defendants' contention that the area was already compensated before the road construction in 2017. Furthermore, DWl's testimony established that the disputed area was designated as an industrial area in the 1960s and that survey plans were prepared, showing the road reserve and the plots allocated to VETA. Based on the evidence presented, the court finds that the

plaintiffs' occupation of the disputed land was illegal, as they failed to prove lawful ownership or occupation rights. Consequently, the court rules that the plaintiffs were trespassers to the road reserve at the time of the demolition. 5 The second issue seek to determine whether the demolition by the 1st defendant was legal and justifiable. Given the court's finding in the first issue that the plaintiffs were trespassers to the road reserve, the demolition of their structures by the 1st defendant was legal and justifiable. The 1st defendant had the right to clear the road reserve and remove any illegal structures to facilitate the construction of the road. Therefore, the court rules that the demolition was lawful and justifiable. Considering the court's findings on the first and second issues, the plaintiffs are not entitled to any relief, as they are found to be trespassers and their structures were legally demolished. The defendants successfully defended the plaintiffs' claims, and no compensation is due to the plaintiffs. In conclusion, the court finds in favour of the defendants and dismisses the plaintiffs' claims in their entirety. The plaintiffs are not entitled to any compensation or relief. Considering the circumstances of this matter, each party shall bear its own costs of the suit. It is so ordered. 30/6/2023 6