20161213 TZHC Mwanza2

IN THE HIGH COURT OF TANZANIA ATMWANZA LAND APPEAL NO. 79 OF 2015 1.' {From the Decision of the District Land and Housing Tribunal for Geita at Geita/ In Land l Application No. 26 of 2015} j J ·1 ! EDW.ARD MWITA MARWA .................................. APPELLANT VERSUS MANAGING DIRECTOR GEITA GOLD MINE ....... RESPONDENT l j I JUDGMENT OF THE COURT iI i I 4/8/2016 & 13/12/2016 Before I start writing the intended judgment, I feel compelled to sincerely apologize for my failure to deliver it within the scheduled date that is on 21/9/2016 and or within the required period, the purported delay was due to the fact that the file yvas not brought to my attention immediat~ly after the filing of the parties' written submissions and thereafter I was appointed to.join a short training on good practices for Judiciary in the ' adjudicating Terrorism Offences held in Dar- es" Salaam from 28/11/2016 1fifflW;: to 2/12/2016. 1 ,·i (.j '> . i"'I , ;; ·\, :,t, ,, Now coming to the judgment in question, the appellant, Edward Mwita ' \;.;,} Marwa unsuccessfully lodged a land dispute before Geita Land and Housing Tribunal for Geita at Geita (hereinafter to be referred to as the trial tribunal) against the respondent, Managing Director Geita Gold Mining (GGM). Before the trial tribunal, the appellant vide his amended application duly :J filed on 1. 11.2012 sought for following orders; firstly, order declaring j l him a legal owner and that the issued notice to vacate was illegal, secondly, permanent injunction restraining the respondent, their family members, or agents or otherwise whoever from entering or using the suit land, thirdly, damages at an amount to be deemed appropriate by the tribunal and fourthly, any other relief (s) deemed fit and just to grant by the tribunal. The brief facts of the case which were not in dispute according to the record were as follows; that the suit land is situated at Nyamalembo Village, at Mtakuja Ward, within Geita District in Geita Region and that the appellant was issued a notice (PE2) to vacate from the suit land on 5 th ti-Ht?-~~ i:cHI' June 2012 by the respondent. 2 It is also undisputed fact that the pieces of land (land properties) at Nyamalembo village were verified and valuated on 30th October 2004, the physical verification and valuation was conducted by Ardhi institute - Tabora for the purposes of the intended compensation to the respective owners who were to pave way for the Mining activities and indeed the previous owners of the verified and valuated pieces of land given to the respondent since 1999 vide Mining License No. 45 of 1999 were compensated by the respondent vide Exhibit DE 1. After hearing by the trial court, it was decided that the applicant was a j ·1 f trespasser to the suit land measuring approximately sixteen acres allocated to the respondent by the Government of Tanzania and eventually the appellant's suit was entirely dismissed with costs. Aggrieved by the trial tribunal decision, the appellant filed a memorandum of appeal which he wrongly marked it_as petition of appeal, faulting the judgment of the ·1earned trial chairperson, the appellant advanced nine grounds of appeal 1. That, the Honourable Chairman of the District and Housing Tribunal erred in law and fact to hold that PE7 (Muhtasari wa 1Jllf} 3 Kikao cha Maendeleo WDC Kata ya Mtakuja kilifanyika shule ya u Msingi Nyamalembo) was a forged document. 2. That, the Honourable Chairman of the District and Housing Tribunal erred in law and fact to hold that PE1 and PES are not genuine documents and failing to consider the authenticity of the said documents which confirmed by the evidence of PW3 and PW4 the authors and custodians of the said public documents respectively. 3. That, the Honourable Chairman of the District and Housing Tribunal erred in law and fact by not considering the fact that the appellant herein became a lawful owner of the disputed land after the long and uninterrupted occupation over 12 years since 1994. 4. That, the Honourable Chairman of the District and Housing Tribunal erred in law and fact to hold that the so Called KAMAT! YA UGAWAJI MASHAMBA was not the land allocation authority of Nyamalembo Cillage. · 5. That, the Honourable Chairman of the District and Housing Tribunal erred in law and fact to hold that the disputed land was ' ) ~ compensated to the tune of 311, 034,856/= 4 6. That, the Honourable Chairman of the District and Housing Tribunal erred in law and fact b considering the evidence of defence witnesses which were full of vacuum and not water tight. 7. That, the Honourable Chairman of the District and Housing Tribunal erred in law and fact by not considering the evidence of PWl, PW2, PW3 and PW4 which corroborate the prosecution exhibits, PEl and PES 8. That, the Honourable Chairman of the District and Housing Tribunal erred in law and fact by not considering that the disputed land was owned by the appellant customarily and the neighbors were identified by the appellant. 9. That, the Honourable Chairman of the District and Housing Tribunal erred in law and fact in totality to hold that the appellant is a trespasser onto the disputed 1a·nd. Before this Court, the appellant and respondent were represented by Mr. Msegu and Mr. Galati respectively as was the case before the trial tribunal; both representatives are the learned advocates. The appellant's appeal was argued by way of written submission and that was so after the consensus from the parties' advocates and grant of the ~ 5 leave to that effect by this court, the representatives of the parties complied with the court schedule dated 16th day of June 2016 by filing their respective written submissions. l ,l In the written submissions, the advocates for the parties, appellant's 1 counsel in particular had split grounds of appeal into four groups on reason that some of the grounds are inter-related, these are; ground 1 and 2 together, ground 3 and 4, 5 th and ground 6, 7, 8 and 9 were together argued, the same trend was according responded by the respondent's counsel. In determining the appellant's grounds of appeal, I shall respectfully take into account of the submissions filed in court without undue regard to the evidence on record. Otherwise I feel compelled to heartedly thank the learned advocates for their fruitful efforts and contributions towards preparation of this judgment. As to the· 1st and 2 nd ground of appeal, it is lucidly" clear that the trial tribunal held as complained by the appellant that the exhibits PEl, PES and PE7 were not genuine, hence not evidentially considered though they were admitted, according to the trial tribunal that was so due to the jt~ 6 following reasons, PE1' and PE 5 were found of no legal weight due to reason that they did no bear official seals of Nyamalembo village as well as the so called Kamati ya Ugawaji Mashamba was said to have no authority to allocate land. The appellant's counsel submitted that since the documents were certified documents and were tendered by competent person by virtue of provision of section 85 of the Law of Evidence Act, the trial tribunal therefore had no reason to disbelief them. It is observed from the PEl dated 25 th October 1994 that there is neither the seal of Nyamalembo village nor signatures of the said five members of the farm allocating committee equally was no seal in the letter allocating the said six acres allegedly sold to the appellant by one Haji Mzengumbali (PW2) vide sale agreement dated 10th June 2005 bearing no stamp duty as rightly found by the trial tribunal and correctly submitted by· Mr. Galati for the respondent. It is generally the practice or the requirement for allocation of public land by a Public Official to bear an official seal, in our instant matter that was not the case in the alleged transactions, if truly the allocation of ten acres'~ 7 of land was procedurally allocated to the appellant by the so called kamati 0 ya ugawaji wa Mashamba ya Kijiji cha Nyamalembo it was therefore certainly mandatory for the alleged allocation letter to be signed by its members and the same to be sealed by an official seal, as it is, no prudent man under the circumstances can find with certainty that the said ten acres were allocated to the appellant. However, it is clear as rightly complained by the appellant's counsel that the allocation of land prior to the enactment of new land pieces of legislation was not done by the village council but village land committee, thus the Village land allocation committee was responsible before newly enacted Land Laws. I am of the considered view that it was not justifiable in absence of the evidence to the contrary to hold that the documents were forged ones; trial tribunal was yet bound to look at the evidence adduced before it in its totality and make obj_ective analysis thereof. In the ground 3 and ground 4, it is observed that it is not undisputed that the respondent was granted a Mining Licence since 1999 vide Mining License No. 45 of 1999, now this court has to ascertain if the appellant's ~~ · . t..., ~ 8 suit was time barred as found by the trial tribunal, the appellant is complaining in his memorandum of appeal that the time started accruing against him immediately after he was issued with notice to vacate on 5 th June 2012 by the respondent. It is clear however that the respondent had been in lawful possession of the disputed piece of landed properties situated at Katoma village and Nyamalembo village and it is abundantly observed also on record that the appellant was aware of the purported allocation and valuation thereof for instance the letter dated 2 nd August 2009 written by the appellant addressed to village authority and the letter written by the Ward Executive Officer dated 8 th August 2009 addressed to Geita District Commissioner (DC), the appellant, to my considered view and for the reason stated above, is legally estopped from asserting that he became aware on 5 th ·June 2012 of the purported valuation and compensation to previous owners when he was served with notice to vacate (PE2). To my settled view, sub section 2 of section 9 of the Law of Limitation Act, Cap 89, R. E, 2002 does not exempt the appellant's accrual of action, for easy of reference section 9 (2) is herein below quoted: ~1~ 9 ::1 ~ :iti I ._. . • .! ·i "Where the person who institutes a suit to re~over land, or some person through whom he claims, has been in possession of and has, while entitled to the land, been dispossessed or has discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance". The wordings of the provision of the law cited above, to my view, entails that the time shall accrue when an occupier is dispossessed or discontinued from possessing the same. In our case as earlier pointed out, the appellant was aware of the grant of the Mining License (DE2) as well as evidenced by other documentary evidence (letters of complaints). The villagers enlisted in the Valuation Report were dispossessed since 1999 when the Mining License was granted to the respondent, particularly when the verification and valuation was conducted that is in 2004 and compensation thereof, if the appellant was sick as alleged he could tender necessary documents as a proof that, he was actually sick and admitted, yet his correspondences letters of 2009 and others (admitted collectively as PE1) prior to 2009 as evidenced by the appellant's letter dated 26 th March 2012 addressed to Public Relation Officer~ GGM is an· indication of his awareness of the grant and its consequences prior to 2009, (See the appellant's letters of complaints dated 2/8/2009 ~ 10 addressed to village chairperson of Nyamalembo village. For better understanding part of the appellant's letter letter is reproduced: ".Naomba Halimashauri ya kijiji kuyatambua na kuthibitisha iii kuepuka usurnbufu utakaojitokeza hapo baaadae nisije poteza haki zangu za rnsingi hapo baadae kadri GGM anavyoendeleza maeneo wanayoyachukua". I ·! I Even when the appellant was cross examined by Mr. Galati during trial the ' he replied that he was sick from 2003 August up to 2005 January when he came back ,meaning that he was made aware of the valuation purportedly performed by the Tabora Ardhi Institute. 1 J According to item 22 of the Part 1 of the 1st schedule of the Law of Limitation Act a person has a right to claim recovery of a piece of land within 12 years from the accrual date unless during trial he proved that he was enlisted in the Physical Verification and Valuation Report of Farm/ Landed properties (DE1) which is obviously on record not so, and therefore entitled for compensation. Go1ng through the document, exhibit DE1 there is no name of the appellant enlisted therein out of 169 previous land owners of the land now granted to the respondent for mining activities, worse still the appellant's names are not among the ten (10) ) ~ 11 persons of Nyamalembo village who were said either declined to have their properties valuated or their properties were not preferred by the respondent for the Mining (DE6). j 1 In John Cornel v A. Grevo (T) limited, Civil Case No. 70 of 1998, High j Court at Dar es salaam (Kalegeya, J as he then was) where it was rightly held that: "It may be for the plaintiff, the Law of Limitation, on actions, knows no sympathy or equity or it is merciless sword that cut across and deep in all those who get caught in its web". Since there is no evidence to justify this court to find that the appellant was among Nyamalembo villagers eligible for compensation and or subsequent delay of payment of compensation by the respondent or any other authorized person, the time therefore started accruing against the appellant since 2004-2005 if. not since 2009 and therefore his act of instituting a case in 2012 was already time barred as twelve (12) years had already elapsed. The law of Law Limitation Act, (Cap 89 R. E, 2002) is very unambiguous on a remedy for a suit/application filed out of time and the legal position has been consistently stressed in a chain of judicial decisions, for instance i n ~ . 12 ,,,,,,,,~ . . •· - ' Stephen Masato Wasira v Joseph Sinde Warioba ( 1999) T. L. R at page 335, where the Court of Appeal held inter alia: "Having held that the application before it is time barred, the High Court had, under section 3 (1) of the Law of Limitation Act, 1971, only the power to dismiss it" Regarding ground 5, I have carefully looked at the submissions of the ...'i ·' advocates for both parties and documents so admitted by the trial tribunal, I have observed that the agreement entered between Geita District Council and Geita Gold Mining Ltd, respondent dated 27th December 2011 was for those declined to have their land properties verified and '·l j valuated (see DES dated 27th Dec. 2011) for compensation and found that the appellant was among nine (9) Katoma villageers ('Katoma Families') whose properties were not formerly valuated but I have noted that his names were not enlisted among ten (10) pe_ople from Nyamalembo Village ('Nyamalembo Families DE4)', thus it is very hard or difficult to believe that he was possessing the land alone at Nyamalembo Village being part of the land granted to the respondent for Mining purposes even if one looks at the Special Mining License No. SML No. 45 of 1999 and its annexture (DE4 and DES) yet he cannot find the ) ) ~ 13 . .J ·-ti~ ,. .. j . •· - . n appellant's names. However his names are found eligible for compensation '·1 ;I t0 ·r! at Nyamalembo Village in the judgment and decree of Geita District Land and Housing Tribunal dated 15th August 2012 and letter written by James Binua and Stanley Laurent addressed to OED Geita where it was ., I .! ;l decreed that the appellant and the said James Binua and Stanley Laurent I I J were owners of farm No. LD/GT /FK/30 where there were five houses ' built and variety of trees which were planted and it was further ordered that the farm was jointly owned by the said persons and the appellant, the proceeds of valuation be divided when the cheque is matured. Seemingly, the appellant was not satisfied with DLHT's decision dated 15th August 2012, vide Land Application No 11 of 2012 and therefore preferred to file an appeal to this court however the appellant evidently seen to have entered into agreement dated 12th December 2013 and he subsequently received Tshs. 311,034, 865/ =on 2ih December 2013 where he signed thereon. The appellant via his counsel's written submission referred to section 100 · (1) of the Evidence Act to mean that there is no documentary evidence in respect-of the alleged made payment of Tshs. 311,034, 865/ = Upon examination of the said document (DE7) and found that it is more 14 probable that the appellant was compensated on 27/12/2013 in respect of farm No. LD/GT /FK/30 situated at Nyamalembo village than not j ·, since it was the decree of the DLHT that the appellant to have his ,.·i j respective share after the compensation is paid in respect of the said farm ! fl in the sum of Tshs. 311,034, 865/= and since there is document regarding the paid compensation to the tune of Tshs. 311,034, 865/ = was admitted as exhibit DE7, the submission that the appellant was not .! , I ·i compensated or the respondent has failed to establish the payment of Tshs. 311,034, 865/ =is not backed with the trial tribunal record and therefore unfounded. In Siraj Din v Ali Mohamed Khan [1957] 1 EA 25, it was correctly held that: "The quantum of proof ordinarily required in civil litigation is not such as resolves all doubt whatsoever but such as establishes a · preponderance of probability in favour of one party or the other". Assuming that the appellant had been in possession of pieces of land measuring 16 acres within the same village ·which is different from Farm · No. LD/GT /FK/30 at Nyamalembo village as per his contention yet the trial tribunal would not have been justified to grant relief of compensation as the same was not prayed for in the appellant's pleadings, it is 15 i • established principle· that no relief can be granted if the same is not '..:j ·0 ,J pleaded, in Makori Wassaga v Joshua Mwaikambo and Another ;J ·-~j ,l 1987 TLR 88 (CA) t1 . j j In general, and this is I think elementary, party is bound by his pleadings and can only succeed according to what he has averred in 1 .•l l his plaint and proved in evidence; he is not permitted to set up a B - new case. And in reference to appeals, it is also trite to observe that this Court cannot entertain a new ground of appeal if no supplementary record of appeal has been lodged or no application for leave to amend the memorandum has been made and granted". · See also Enshenchnder Singh v Shamachurn Bhutto 20 E. R where it was correctly held that as a rule of practice relief not founded on pleadings will not be given and Captain Harry Gandy v. Gaspar Air Charters Limited, East African Court of Appeal decision vide Civil Appeal No_. 7 of 1955 ~t page 139 which followed the former decision. Coming to the last ground but not least grounds of appeal (ground 6, 7, 8 and 9), following the above findings while I am in agreement with the appellant's counsel that it was the duty of the respondent to establish to the required standard that the appellant was compensated as required for under section 119 of the Evidence Act and as stressed in the case ~ · · . 16 ,, Hemnedi Said v. Mohamed Mbilu (1984) TLR 113 rightly referred by Mr. Galati however as earlier inter alia stated, the appellant did not seek or plead compensation in his pleadings. Further I am not justified in J II holding that he was not compensated since the judgment and decree of Geita Land and Housing Tribunal speak themselves. At this juncture it suffices to say that the last grounds of appeal jointly argued by the parties' advocates need not curtail me as the determination of the former grounds of appeal are capable of disposing this appeal.. Having considerably taken into account that the appellant did not plead compensation in his pleadings (amended application duly filed on 1. 11.2012), he cannot therefore be granted compensation not pleaded, if he had pleaded yet the Law of Limitation would have negatively applied onto him as indicated above and if the appellant was not time barred still he could not successfully pursue his case against the respondent alone as the land in question was compulsorily acquired by the Government, key players during the exercise being local Government (village authority) and Central Government. f~_ !!,i,,,,,,~ 17 ,_,. .:; 0 In the final event, this appeal is devoid of merit, it is consequently dismissed entirely with costs the trial tribunal decision is accordingly upheld. It is so ordered. •, . M. -·· JUDGE 13/12/2016 Right of Appeal fully explained. M. ~ ' JUg~ 13/12/2016 Court: Judgment delivered in the chambers in the presence of Mr. Gwakisa, the learned advocate for the respondent and appellant who appeared in person. JUDGE 13/12/2016 Court: Copies of the judgment, decree and proceedings of this court are collectable by 14~~- December 2016 subject to adherence to necessary .r;--~.~-tr:,_,_ court's procedcires··· ·-,.:· , · • < •. • • _.:. ·'.····.: _!_~---. '·,~- ~· .. j ' \ •.: ·,,: <>.' :, '. M. JUDG 13/12/2016 18