EMMANUEL NGATARA

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA LAND CASE NO.68 OF 2022 EMMANUEL NGATARA LAIZER COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS ENJORO VILLAGE COUNCIL& 3 OTHER RESPONDENT / DEFENDANT JUDGMENT BADE,J, 06/09/202 & 30/09/2024 BADE,J. This is a case of a presumptuous bonafide claim of right where the Plaintiff sued the Defendants praying for the following orders: a) A declaration that Plaintiff is the lawful owner of the property in dispute. b) A declaration that the 1st Defendant is a trespasser to the plaintiffs property. c) An order permanently restraining the Defendants, their agents, assignees, workmen and whoever is working on their directions or orders from interfering the plaintiff in his peaceful possession of his properties. d) Prompt Fair and adequate compensation to the Plaintiff after taking his landed property measuring 12 acres, putting beacons and cultivating it without his consent or compensation. e) General Damages as may be assessed by this Court. 0 Costs of this suit be borne by the Defendants. g) Any other reliefs this court may deem fit and equitable to grant. To prove its claim the Plaintiff brought in court 3 witnesses, while the Defendants resisted the claim and paraded two witnesses, all of which testified on oath. Hitherto in the Plaint, the claim is stated to have been based on a parcel of land measuring.12 acres situated at Enjoro Village in Laroi Ward Arusha District, within the Arusha Region after it was allocated to him by the Arumeru District Council on Different dates and time. The Plaintiff acquired seven acres in 2000 from Land Allocation Committee of the Arumeru District Council and a further allocation of 5 acres in 2007 from Laroi Village Council with the following boundaries East Gody Ngatara Laizer, West- Mbasey Ngatara Laizer, North — Kispani Sebaya and Ngaki Leseng’ere, South - Road and Emmanuel Ngatara Laizer. The Defendants vigorously resisted these claims by the Plaintiff pleading that it was the Plaintiff who illegally invaded the suit land, while the 1 st Defendant took measures to stop the Plaintiff from encroaching on the suit land that was not allocated to him by the Laroi Village. They further averred that Plaintiff was the one who ti'espassed into the public land and the 1 st Defendant had the duty to protect public properties. On February 28, 2024 the following issues were agreed upon by the parties and framed by the court for determination: 1. Whether the Plaintiff is the lawful owner of the disputed land 2. Whether the Plaintiff was allocated the land in dispute or any part of the land in dispute by Arumeru District Council and Laroi Village Council 3. Whether the 1st and 2nd Defendants allocated the land in dispute or any part of it to the Plaintiff 4. Relief entitled to parties During the hearing of the case, Ms. Edna Mndeme, advocate represented the Plaintiff whereas Mr. Leani Mbise, Muhidin Jonas, and Ms. Christabella Madembwe, State Attorneys represented the Defendants respectively. This case was heard through a new TTS audio recording. Due to some challenges with the said court system, the audio files became corrupted, and the notes of the proceedings had to be reconstiiicted by the court with the help of both counsel from each side, for which the court is grateftil. The Plaintiffs first witness was Justine Medoti Model who testified as PWl. He testified to the effect that he was the then VEO of Oljoro hamlet in 1985, stating that he understood the dispute to be about NAFCO properties and that the house in dispute particularly belonged to NAFCO. The Plaintiff had gone to complain at the offices of the village that some people were making trouble and wanting to vandalize the properties he was asked to guard by NAFCO. He claimed the Plaintiff was in these properties since 1985, so the village authorities encouraged him to continue being in the properties to guard against vandalization until NAFCO or the investor is back so he can be compensated for his service. He stated he knows the Plaintiff was never paid his dues for watching over the properties, but denied knowing how the Plaintiff came to guard the said properties since the instructions to guard the house were communicated directly to the Plaintiff himself, and he was not there. On being cross-examined, he could not ascertain in which way nor at what amount was the Plaintiff going to be compensated for guarding the properties. He also denied knowing a village called Laroi or Enjoro, only Oljoro. About the properties in dispute, he claimed there were 5 buildings all belonging to NAFCO, which was fanning 3000 acres of farmland. He also confirmed that people came to the disputed area including the Plaintiff from Oldonyo Sambu and were given parcels for fanning in the year 2000. Paraded next was Elias Kisioki Mollel who testified as PW2. It was his testimony that the Plaintiff was amongst his village members in Laroi and Enjoro when he was the Village Executive Officer. He confirmed his knowledge that undisputably these properties belonged to NAFCO as well as the fact that in 2018, the Plaintiff was at Enjoro and had worked as a guard for these properties, especially the house, so that it would not be vandalized. He stated his understanding that the community members demanded that the Plaintiff should let the house he occupies be used as a Health Center. He produced in court a letter purported to have allocated the land to the Plaintiff and the same was received in court as Exh PI. On being further examined on Exh PI, despite being the VEO for Laroi and Enjoro Village at two different period, he could not confirm which village council handed the properties to the Plaintiff as both villages did not claim the buildings, neither could he confirm what else had been given to Plaintiff other than the said farm, or if he was given only the house. He also could not confimi the size of the farm as he denied any knowledge of its measurement, claiming to have only stated what he was told. On cross-examination by Mr. Mbise, the witness faltered and could not remember who was the village chairman despite his claim that he was the VEO for the area. Also, despite producing Exh PI, he disclaimed to know the specific area given to the Plaintiff in 2007 or the specifics on timeline. He claimed to know the person whose signature was on Exh PI and that he affixed his stamp on the letter that was sent to the Plaintiff, as the VEO for the area, but was quite unsure which area specifically. On a surprise turn, he claimed that there was another letter that allocated the land to the Plaintiff, but he did not bring this particular letter to court, refuting that it is the same letter as Exh PI. He claimed that Plaintiff was given the land on the village meeting that took place on 06/07/2008, but he was not there when this happened, and the information was only relayed to him as to what had happened. As the VEO, the witness testified that he knew that the properties belonged to NAFCO and the investors, but could not establish who relayed this infomiation to him, insisting that they all knew it that way. On re-examination, he confirmed the buildings were never officially handed over to him, and that he only saw the buildings and the properties in 2016, at which time one Melaisi was the village chainnan. Next on the stand was Emmanuel Ngatara Laizer who testified as PW3. He complained bitterly in testimony that the village council was being unfair to him because they had trespassed over his land and farm, in Enjoro Village in Laroi, within the Arusha District Council. He claimed that his farmland is 12 acres as of now. It was his testimony that all of the land including the one he is claiming used to belong to NAFCO. He claimed that he initially had taken for himself 30 acres. Now he only remained with 12 acres. He also stated that to his knowledge, NAFCO was an investor. It owned the land and the buildings as an estate farm. Then another investor came in and took over from NAFCO. On being asked how could he be given something that he already had, he testified in response that the village forced him to take it since the council forcefiilly took over the said land from him and re-allocated only 12 acres back to him, against the 30 acres which he had previously. His further testimony was that he was left to guard the properties of NAFCO after they left the farni and the buildings in it never to come back since 1983. Further, and quite obliquely, the village council had asked him to look after the properties so that they would not be vandalized. He claimed to have been doing this work without any paperwork to prove this engagement, claiming that he was just asked to look after it and he obliged. He further claimed that NAFCO left him there when tliey left, where the farm was known as Fann No. 2. His further testimony was that it was convenient for the village to ask him to guard it as he was already there, where he simply took the land that was left and fanned it, which he insisted was 30 acres. Testifying further, he denied having been sold the land by NAFCO nor it being given to him by the said NAFCO, but insisted that the same used to belong to NAFCO. His further claim was that the dispute arose out of politics as they fought over the boundaries of the land, after which they had given him the land on paper to end the dispute. On what sounded like a regress, the witness claimed in testimony that NAFCO left the faim under him, and since nobody paid him. as he undertook to look after it, he took the land to recompense himself. He claimed that some other people also came as investors, and then they left. He also testified that Enjoro as a village started quite recently, but the property was given to him by the investor, certainly not by Enjoro village council. On being asked who was the investor that gave him the disputed farmland or what was its name, the witness did not want to address this question and evaded replying to it. Testifying further, he claimed that in 1983, he was given the house in writing by the village council and that by the time he was given the land, he could not know how big was the fann. Again, he claimed in testimony that the land did not belong to the village. NAFCO owned it, and then the investor who came after NAFCO, and as a matter of fact, he was the one who gave the land to the village. When asked if he had any documents to prove his claim, he responded that he only had photocopies of the documents he obtained from the village as they troubled him and refused to cooperate with him or give him the original papers. He also claimed that he had experienced a flood during the last Rain which destroyed all the documents he had. He produced in court a letter from Laroi Village dated 24/01/1999 addressed to himself and had it admitted as Exh P2. Also, he produced and admitted in evidence Exh P3 which was the 90-day notice that he had issued the government of his intention to sue, as well as Exh P4 and Exh P5 all of which were communication between the Plaintiff and the DED for Arusha District Council. On being cross-examined by Mr. Jonas Muhidin, the witness denied knowing the distinction as to who owned the land between Halmashauri (District Council), NAFCO, or the investor. He claimed he only knew the land was given to him as the truth, but he was unsure if it was 12, 7, or 5 acres, failing to explain it as he didn’t know how big it was. He also denied knowing the existence of the Committee for Land Allocation. On being shown Exh P2, and asked to describe the land he denied knowing this land. Similarly, while cross-examined based on Exh P3 as he was made to read Para 1 - that the village had allocated him 5 acres — clarifying as to who should be believed,PW3 responded that the village did not write the said letter. On the employment issues, PW3 disowned his witness offering that his witness was only repeating what he heard, admitting that it was all hearsay and that he would not know as he was not there. In its stead, he reiterated his claim on the land ownership, that the land was his establishing that he was bound on the WEST- by Mbasey Ngatara Laizer, and that he was the one who gave the land to the village, but did not do so on authority of any letter or document or witnesses. On being made to read Exh P2, he confinned his knowledge that both NAFCO and Halmashauri owned the land at different times. While cross-examined based on the contents of Exh P4, after being made to read para 2, he denied ever having any meeting with Enjoro, despite what is being said in the Letter Exh P4, once again disclaiming what his witnesses have testified, confirming the fact that they do not know about how he got the house or the farmland. On being shown Exh PS, and being made to read the same, he feigned uncertainty of its contents as well as knowing the letter denying to know which letter he was responding to. In further testimony against the said exhibit, he explained that he is unsure if the letter is dated 25/02/or 28/02, disputing it to be incorrect in its content, or the date in it and that because he was forced to give away the land, that is why the date is also incorrect, and once again denying his witness who was PW2 to not know what he was saying as all what he said was only hearsay. He claimed to be the one who knows everything regarding the farmland and the house. On being cross-examined by Mr. Mbise, the witness stated that the village council had confirmed that he was given the land by NAFCO, but denied having seen or known ifNAFCO had any lease, or being handed with the NAFCO lease or i f it was passed on to him in any way. Similarly, he denied having had any knowledge about a lease, or if their lease was extinguished or expired. He testified that he took the land in place of his payment as he had guarded the properties. Further, the 12-acre parcel he is claiming is not the subject of any written document, nor had he any proof of whether it was 12 acres or 7 acres, or 5 acres, and he admits to not knowing the size because he did not measure it by any surveyors, still insisting however, that it is 12 acres. He claimed further that it is fair that he should take the land as he had been looking after it, and that he was paid the house and the land despite not having any proof of how he was engaged or how much he was to be paid for his service for looking after the land since he did not do it for free. Now looking at the Defendant’s case, from the pleadings to the final summation as filed by the defence side, their stance has been that the village council is the body entrusted with the business in the village and the approval by the village General Assembly is necessary for authenticating any land transaction, including sealing land sale contracts and setting up the boundaries of the land, which goes to show that the Plaintiff occupation of the land in dispute has never gained the approval of the village General Assembly. Rather, they insist that they do not recognize the documents regarding the allocation of the disputed five acres parcel. On their part, the Defendants mounted their defence through the testimony of two witnesses including Loning’o Moyo Laizer who testified as DWl. It was his testimony that he is the current VEO of Laroi since 2000. He related how there was a specific initiative for land allocation. The farm in dispute was taken by the government in 1997 when the late Honorable Edward Lowassa was the Minister for Lands. Laroi village was created in 1994 and found the Plaintiff on NAFCO properties which is no longer in existence. NAFCO existed since 1983, and when the government took it over, it was redistributed to 10 hamlets, of which Laroi village came out of them, and that it was redistributed to members of the public who lacked enough land. He testifies that they were allocating 5 acres per person, while letting the persons who we already found on the site to stay even though they knew these people had invaded the same. He testified that this is how the Plaintiff was left on the parcel of land that he was occupying. His further testimony is that the Plaintiff did contribute 500 blocks and 10 bags of cement, basing on which, the Village Assembly let the Plaintiff retain the land he was occupying. While cross-examined by the Plaintiffs counsel, DWl confirmed that the village retook the land that was left with the Plaintiff as the community members were complaining that he was holding the area that was set aside for seiwice to the community. He also confirms that each community member including the Plaintiff was allocated a 5- acre parcel and that as of now, the area left to the Plaintiff is about 70 X 37, which is clearly demarcated as it has some plants around it (michongoma), which were planted a long time ago since 1998, confirming that even he found it there as is. It was his further testimony that while there as the Village Executive Officer, he found the Plaintiff had invaded the area and claimed he was guarding the property belonging to NAFCO. As the VEO of the area he admitted to not know the terms of the said engagement, nor the existence of the letter that allocated the house to the Plaintiff by reason of his long occupation, which it is said to have been signed by the Village Authorities. The Plaintiff did apply to be granted the use of the house and the area around the house that the community members were asking so it can be used for service delivery particularly a health center, and in its stead, he contributed the 10 bags of cement and the 500 blocks. The last witness for the defence was Amon Wavi Mollel, who testified as DW2. His testimony was to the effect that he is the current Chairperson of Enjoro Village, a position he took in 2020. He testified that he found the Plaintiff on the land in dispute. There was a dispute between the Plaintiff and his neighbor one Kisivan Savayo who bound his land from the Northen side, where he had to resolve the said dispute on 30 November 2020. Also on the western side, he was bound by Simon Ngatara. He stated that he had asked the Plaintiff to leave the area as the community members were complaining that he was occupying the land allocated for community service, especially after seeing that he did not have any document authorizing the Plaintiff to be in the area. His further testimony is that he had seen the documents at the office and found that the Plaintiff was only allocated the house, not the adjoining land, and that is why he heeded to the complaint by the community members to ask him to vacate the land he had invaded, as per Exh D1 which shows how the Plaintiff was allocated the land. While being cross-examined by the Counsel for the Plaintiff, he confirmed that he had found the Plaintiff on the land when he got to Enjoro Village, and was guided by the documents he had found at the office to heed to the community demands for the Plaintiff to vacate the community land. He also stated that he was part of the persons who went to allocate the half-acre land to the Plaintiff accompanied by the conunittee members of Enjoro, which came out of the NAFCO farm that is no longer in existence. He also testified that they were demanding the whole of the area occupied by the plaintiff which is the suit land since the Plaintiff was not allocated this land for his sole use. Having summarized the evidence from both sides, I shall now look at the issues as enlisted above for determination. But before I start, 1 must note that the Plaintiffs counsel has put herself in a disadvantage for not addressing herself to the specific issues drawn by the court at the commencement of the trial as she made her final case summation filed in court in July 22, 2024. Be that as it may, I shall address the first issue separately and the two issues (2nd and 3rd) in unison because they are intertwined, in making the court’s findings. The 1st issue is whether the Plaintiff is the lawful owner of the disputed land. In my considered view, this issue is of mixed law and fact since how one acquires a parcel of land in our jurisdiction is a matter regulated by the law. But then again, we have evidence on the facts as they happened. According to PW3, his acquisition of the landed property and the parcel which was initially in excess of the 12 acres now in dispute is by invasion to the said property since he simply found it and started occupying. PWl testified that the farm was a NAFCO property, and that people came to the area as they were moved from Oldonyo Sambu. This fact is also corroborated by PW3 himself. Obviously, in this regard, it is clear to me that such acquisition can only be made by allocation. In his testimony, PW3 claimed that he was guarding the properties having andved there before anybody else from the members of the village community. After a while when the farm was being redistributed to the wananchi and the new villages were being formed, he proceeded to become an owner defacto as the person who was found there. This testimony contradicts his claims as pleaded in the amended plaint that he was allocated the said land measuring 12-acres. As gathered from the evidence of all the witnesses, the allocation to members of the community was 5-acre parcels, which the Plaintiff also confirms to so be and claims to have received. How then he became the owner of 12 acres land which he now claims it is being trespassed upon is unclear. The Plaintiff has not presented in court any evidence to show how he became involved in the land, which himself and all the other witnesses that testified in court were loudly clear that it belonged to NAFCO. He has not been able to prove that he was engaged by the defunct NAFCO or any successor of NAFCO despite referring to a ‘mwekezaji’, with an unknown name. In my considered view, even if the Plaintiff would have managed to prove that he was lawfully engaged by NAFCO or its successor to guard the properties, this fact in itself would have not entitled him to the ownership of the properties as he claimed, but rather, he would have been only an invitee. Considering the testimony of PWl who was then then VEO, he explained how the Plaintiff went to complain about the property being threatened to be vandalized, and that he was asked to remain in the property and keep watching over it. Now when did this status change for the Plaintiff to become an owner is not established by any evidence in court. While being cross- examined by Mr. Mbise the counsel for Defendant, Plaintiff confirmed to not know if the lease of NAFCO was ever extinguished, or that the title to this farm has passed or was going to pass to his good self, which means he acknowledged the ownership of the farm to be with the defunct NAFCO,and not himself. It is thus my finding that the Plaintiff was an invitee who was let to stay in the property after first invading it. The question then becomes what is the status of an invitee? The Court of Appeal had the occasion of pronouncing itself in such issue in the case ofMaigu E.M. Magenda vs Arbogast Mango Magenda (Civil Appeal 218 of 2017) [2018] TZCA 214 (04 October 2018); Media neutral citation [2018] TZCA 214 in the circumstances where an Appellant insisted he had been using and occupying a disputed land for over 18 years before the Respondent raised his claim of ownership, and that had also been up to date with paying the land rent to the Govemment. Respectively the Court finnly held that: '■ although the appellant has argued that he had exclusive ownership for over eighteen years before the respondent staked his clam of ownership in 2012, we do not think continuous use of land as an invitee, or by building a permanent house on another person's land or even paying land rent to the City Council ofMwanza in his own name would amount to an assumption ofownership of the disputed plot ofland by the appellant." This naturally brings me to the next point that in supposition to the fact that the Plaintiff was lawfully engaged to guard the properties, and it was his own testimony and that of the PWl that he was never recompensed for this service, how can the amount of compensation (if any) be established in the absence of any testimony regarding his engagement or how much did his service cost so the amount of compensation be ascertained. So even by some stretch of imagination, it cannot be said that the Plaintiffs claim on the land is based on some form of claim of right arising from the fact that he was engaged to guard the properties. In any case, I am quite mindful of the nale in the law of Evidence under Section 119 of the Evidence Act, Cap 6 RE 2002 that: “When the question is whether any person is the owner of anything to which he is shown to be in possession, the burden ofproving that he is not the owner is on the person who asserts that he is not the owner. ” Embodying the well-known principle that possession is prima facie evidence of ownership presuming people generally own the property they possess (See Sarkar On Evidence 17th Ed, 2003). But in the present circumstances, the Plaintiff by his testimony has relinquished ownership of the property to the defunct NAFCO. This is to say, I am finnly of the view that on the balance of probabilities which is the standard of proof for civil claims like the one before me, the Plaintiff has not been able to prove that he is the lawful owner of the property in dispute. Now to the 2nd and 3rd issues, whether the Plaintiff was allocated the land in dispute or any part of the land in dispute by Arumeru District Council and Laroi Village Council, or the 1st and 2nd Defendants, that is Arusha District Council and Enjoro Village Council. Among other things, this court had gone to visit the locus in quo on July 2, 2024. This was in lie of the fact that the Plaintiff had requested to have the court verify what he was claiming. At the locus in quo, PW3 together with DWl and DW2 were amongst the witnesses, and they testified in verification of the location of the land in dispute. The starting point on this issue is still the undisputed fact that the land at issue previously belonged to the defunct National Agricultural and Food Corporation Limited commonly known by its acronym NAFCO. A parastatal 100% owned by the government of the United Republic of Tanzania, established in 1969 and collapsed in 1996. So teclinically, and undoubtedly legally in that sense, the said land is the property of the Government of the United Republic of Tanzania as surely any residual property after a collapse of an organization would revert to its original owner. Also, it is worth noting that the former properties that were owned by the defunct parastatal were divested to other state bodies including the local government authorities.(See the URT Presidential Commission of Inquiry into Land Matters of 1994/95) This factual account, in my considered view, ties in with the testimony of DWl, whose evidence highlighted the events thus stating the farm in dispute was taken by the government in 1997 when the late Honorable Edward Lowassa (who was then the Minister for Lands) made announcements to divest the said fann to the local ' authorities, to wit the Arusha District Council which further redistributed the land to several villages including Laroi village, which was created in 1994. He testified further that the farm was redistributed to 10 hamlets, of which the Laroi village came out of them allocating 5 acres per person. He also testified on his knowledge that the village council had let the persons who we already found on the site even though they knew they had invaded the same, confinning that this is how the Plaintiff was left on the house that he was occupying. On examining Exh PI, the said exhibit is making reference to Exh Dl, which purports to have granted the building on the land he was occupying to the Plaintiff. Meanwhile, Exh P2 acknowledges the fact that the Plaintiff was found on the building having been there by virtue of his service without compensation. At the locus in quo, DWl verified what he testified in court, that they allocated him the building which is clearly demarcated by the Michongoma plants, but not the land going all the way to where the Public Water Tanks were located, which the Plaintiff makes a claim. So while it is clear that the village council had let the Plaintiff continue his use of the land and building he was found to be occupying, they had not allocated the land accompanying it to the Plaintiff. In any case, it does not add up to the fact that a person who did not engage you in the first place would have plans to compensate you by letting you keep the land. The question that would naturally follow will be based on what terms and at what amount? There was no evidence from the Plaintiff worth answering these questions. The other issue that I have come to unpack is the contention on being given or allowed, by the village council, to have the use of the property. Throughout though, it seems all of the witness were clear as to who was the real owner of the property in dispute, which is the defunct NAFCO. Now the question is how does anybody gives what they don’t have?,In other words, the latin maxim contained in "nemo dal quod non habet” rule or principle takes precedence. Asked in the circumstances of the present case, the question is whether the Village Council, matters not that it is Enjoro or Laroi, purporting to give or sell the suit property to the Plaintiff, has a legal title or right to do so. I find the Village Council did not have any legal title or right to grant to the Plaintiff, as the property was not theirs to give particularly because they found the Plaintiff already occupying the property in question. So what does it mean then in tenns of the rights of each party? it means the Plaintiff had invaded on the land on which he was let to stay on as an invitee. It also means this act of invading the land had happened before the rights to this land were relegated to the Village Councils at the time. I have already made a finding that this land belonged to NAFCO, a parastatal 100% owned by the Government of the United Republic of Tanzania, and as the eminent domain, the land relegated back to the Government, which means to say the Villages had nothing to give as yet. This contention is fully supported by evidence before the court from both parties and all the witnesses. If that is the case, as I hold to so be, then the allocation, gift or transfer could not have taken effect and cannot be enforced. In such a situation, I think the transferor’s title becomes questionable the same way as the transferee’s title because the property is illegally held since the person possessed of the land is simply an invitee, or the property is stolen or looted, or acquired by fraud, or simply because of some error in the process of a prior acquisition, sale or transfer. In my considered view, and that is the position of the law as explained in Maugo Magenda’s case (supra), ‘the owner’s powers of a person entitled to be registered as the proprietor’ of an estate or landed property or charge depends on whether the person in question has acquired ownership at law of the estate or landed property or charge. If he has not done so, the principle that “a person cannot grant a greater interest than he or she possesses will apply in the absence of a statutory provision providing otherwise. In that regard, the 2nd and 3rd issue are answered in the negative. From what I have addressed and discussed hereinabove, I hold that the Plaintiff has failed to prove his case to the standard of law on which the suit was required to be proved, i.e. on the balance of probabilities. This means he is not entitled to any of the reliefs prayed in the Plaint. The suit is hereby dismissed with costs. It is so ordered. Dated at Arusha on November 22, 2024. Dated at ARUSHA this 22nd of November 2024 . A. Z BADE JUDGE OF THE HIGH COURT