exaud gabriel mmari vs elirehema yona as legal representative of the estate of the late lazaro seti akyo 12 others 2023 tzhc 22835 13 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA LAND CASE NO 26 OF 2012 EXAUD GABRIEL MMARI (As Legal representative of the estate of the late Gabriel Barabas Mmari).................. PLAINTIFF VERSUS ELIREHEMA YONA (As legal representative of the estate of the late Lazaro Seti Akyo)............................ .....1st DEFENDANT DR. FRANK LAZARO SETI (As legal representative of the estate of the late Lazaro Seti Akyo)................. 2nd DEFENDANT WILLIAM LULUNGE......................................... 3rd DEFENDANT SOORI ROBERT KITOMARI (As legal representative of the estate of the late Robert Ndoombo Kitomari).... ........ 4th DEFENDANT EMMANUEL ANDREA SIKAWA........................5th DEFENDANT ZAKARIA NDESARIO KAAYA.......................... 6th DEFENDANT FRIDA KISAWARI NANYARO (As legal representative of the estate of the late Emmanuel Stephano Kaaya)................ ..7th DEFENDANT JANETH JOSEPH LEMILIA (As legal representative of the estate of the late Josephat Lemilia)................................... 8th DEFENDANT JOHNSON AMINIEL SAMA (As legal representative of the estate of the late Aminiel John Sama)......... ..................... 9th DEFENDANT THE MALULA VILLAGE COUNCIL.....................10th DEFENDANT THE ARUSHA REGIONAL ADMINISTRATIVE SECRETARY............................................ 11™DEFENDANT THE MERU DISTRICT COUNCIL............................................ 12™DEFENDANT THE HONOURABLE ATTORNEY GENERAL....... 13™ DEFENDANT JUDGMENT 21st August & 13th November, 2023 KAMUZORA, J. Hearing of this suit was ordered to commence afresh after the judgment and decree of this court issued on 20th September, 2019 was quashed and set aside by the Court of Appeal in Civil Appeal No. 91 of 2021. After the order by the Court of Appeal, this suit was remitted back for trial but it went through several amendments of the pleadings due to unexpected demise of six Defendants at different times. Briefly, the Plaintiff, Exaud Gabriel Mmari instituted this suit as a legal representative of the Estate of the late Gabriel Barnabas Mmari. The Plaintiff claims against the Defendants, the land measuring 980 acres allegedly constituting part of the estate of the late Gabriel Mmari. It was alleged that the land in question was acquired by the late Gabriel Mmari between 1960 and 1961 by clearing virgin land and doing cultivation activities in the suit land. That, the Defendants under misrepresentation that they were allocated parcels of land during operation vijiji did trespass into Plaintiff's land locate at Malula village which was prior part of King'ori village. That, the 1st, 2nd, 3rd and 4th Defendants invaded, trespassed and allocated themselves 100 acres each. That, the 5th Defendant invaded and trespassed into 200 acres while the 6th, 7th, 8th and 9th Defendants trespassed and invaded 330 acres and the 10th Defendant invaded and trespassed into 50 acres. That, the 11th, 12th and 13th Defendants illegally allocated land to other Defendants. The Plaintiff claimed that, he later learnt that Malula village was not covered by operation vijiji and for that, he discovered that the Defendants made a fraudulent misrepresentation that the land was allocated to the 10th Defendant during operation vijiji and that, the 11th Defendant allocated the suit land to the 1st to 10th Defendants following directives by the then Arusha Regional Commissioner. Believing that the Page 3 of 29 Regional Commissioner had no mandate to take over his land and allocate the same to other people, the Plaintiff preferred this suit praying for judgment and decree against the Defendants jointly and severally on the following reliefs: - i. A declaration that the disputed parcels of land measuring 980 acres belongs and or is part of the estate of the /ate Gabriel Mmari. ii. An order for vacant possession against the Defendants. Alternatively. Hi. A declaration that the decision by the Arusha Regional Authorities siting under the chairmanship of the regional Commissioner to take over the land owned by the Plaintiff and allocate the same to the first to tenth Defendants is illegal. iv. A declaration that the eleventh Defendant had no mandate to forcefully take over the disputed land from the Plaintiff and allocate the same to the Defendants v. An order for compensation by way of payment of the value of the disputed land in the sum of shillings 30,538,662,000/= vi. General damages for trespass to be assessed by the court. vii. Costs of the suit viii. Interest in items (v) and (vi) from the date ofjudgment to the date ofpayment at 18% per annum. ix. Any other relief which the court may deem fit to grant. In defending the suit, the 1st to 9th Defendants filed a joint written statement of defence disputing the Plaintiff's allegations. They claim that Page 4 of 29 they were lawfully allocated the suit land by relevant authorities way back in 1974 and they have been using the said land to cultivate seasonal crops since then. Some of the Defendants also denied the size of land mentioned by the Plaintiff as allegedly occupied by them. The 1st to 9th Defendants prays for the suit to be dismissed with costs. The 10th to 13th Defendants also filed their joint written statement of defence disputing the Plaintiff's claim on account that he has never been the owner of the suit land. They claimed that the 10th Defendant has been the lawful owner of the suit land since 1969 by operation vijiji. That, after the said suit land was allocated to the 10th Defendant, sometimes in 1974 the land measuring 800 square meters was designated to be a Game Controlled Area known as Sanya-Lelatema through Government Gazzette No. 269 of 1974. That, while planning on how to best utilise the said land, the government through the local authorities divided the entire land into blocks and temporarily allowed the villagers surrounding the area to cultivate seasonal crops while assessing its plan to construct a dry port to facilitate trade and economic activities from Tanga port to the northern Region of Tanzania. That, the late Gabriel Mmari was among villagers allocated land for cultivation at block 22 thus, he never owned that land as he was a mere invitee. The Page 5 of 29 10th to 13th Defendants denied the Plaintiff's allegation that the suit land was allocated by the 11th Defendant following decision of the regional commissioner. That, there was never been any revocation or re­ allocation as the land was owned by the 10th Defendant since inception of operation vijiji in 1969. When the matter was called for hearing, the following were raised as issues to guide the court in determination of this matter; 1. Whether the late Gabriel Mmari did acquire the disputed land measuring 980 acres lawfully between 1960 and 1961, 2. Whether, in 1974 the /ate Gabriel Mmari was dispossessed of the suit land by the 11th and 12th Defendants on allegation of operation vijiji, 3. If issue No. 2 is in affirmative, whether the 11th and 12th Defendants has authority and mandate to take over the suit land and allocate the same to 1st to lCfh Defendants, 4. If issue No. 3 is in affirmative, whether the 1st to l(fh Defendants are trespassers, 5. Who is the lawful owner of the disputed land, 6. To what reliefs are parties entitled. Parties opted to proceed with hearing by presenting witness statements and the witnesses were called in court for cross examination and re-examination. In proving his case, the Plaintiff presented 6 Witnesses while the defence side presented 7 witnesses. As matter of Page 6 of 29 legal representation, Senior counsel Mr. Elvason Maro assisted by Mr. Abdallah Issa, leaned counsel ably represented the Plaintiff while Mr. Kelvin Kwagilwa, Senior Counsel represented the 1st to 9th Defendants and Mr. Peter Mseti, learned Senior State Attorney appeared for the 10th to 13th Defendants being assisted by Ms. Zamaradi Johanes, learned State Attorney. PW1, Exaud Gabriel Mmary is legal representative of the late Gabriel Barnas Mmari who was the original Plaintiff in this case. He testified that his father, the late Gabriel Barnas Mmari acquired the suit land by clearing the virgin land in between 1960 to 1961. That, he used tractors in cultivating the farm and planted different crops and he was assisted by people. PW1 and claimed to have participated in farm activities together with his brother Amos Gabriel Mmari. That, there was a time the late Gabriel Mmari worked in the farm in collaboration with other different companies including Manyara Estate, Van der Ploger, TFA, Arusha Cooperative Union, Tanga Sim, Vohora Sluis Brothers and others. That, as the need increased, he purchased more tractors for farming activities. PW1 also testified that, in 1966 there was a conflict between Gabriel and Maasai community over the suit land which was resolved at Page 7 of 29 ward level and one Gabriel Barnabas Mmari was confirmed to be the lawful owner of 1000 acres of land and it was also approved by the district executive officer. That, he was issued letters to that effect. That, in 1974, the then reginal commissioner called for a meeting with King'ori community that was also attended by the Plaintiff and his father the late Gabriel Mmari. That, they were informed of operation vijiji and the intention to allocate them to other areas. That, such operation did not take place as all people owning land there continued with farming activities except that, the Plaintiff was the only person who was ordered to vacate the land by the ward executive officer. That, in 1975, the Plaintiff was forcefully evicted from the suit land and his huts were burnt down on allegation that they were executing the operation vijiji resolution and they came up with a chart for block allocation. PW1 further testified that among big farms in that village, only two farms were repossessed one belonging to the Plaintiff and another to the late Ahmed Okash. PW1 believes that their farms were repossessed because they were not originally resident of that village. That, believing that there was a valid operation vijiji policy, the Plaintiff also applied for land and was allocated only 20 acres. That, the Plaintiff came to learn later on 2011 through the district commissioner that there was no record Page 8 of 29 for operation vijiji in the year 1975. That, came to learn such fact after the district executive officer announced compensation to people owning land at Malula village as they wanted the land to be allocated to Export Processing Zone Authority (EPZA). That, upon discovering that he was deceived on the fact that the land was repossessed in execution of operation vijiji policy, the Plaintiff decided to claim his land back hence, instituted a suit before this court. PW1 again testified that when this case was first heard before this court, the Defendant called a witness who was the land officer and acting district executive director. That, his evidence reveals that the allocation of land in 1972 to 1974 was done by the district council under the direction of the regional commissioner. That, his evidence also revealed that the allocated block was already cleared and cultivated and for those whom their land was not yet cleared, they were not compensated. That, the evidence also revealed that Malula village was not covered in operation vijiji and that the complaint arose after EPZA applied for land at Malula village. In other words, PW1 believes that the allocation of land at Malula village was illegitimately done under the umbrella of operation vijiji which never took place at Malula village. That, since the late Gabriel Page 9 of 29 Mmari was deceived and his land taken by the regional and district authority which had no mandate to recover land. That, his ownership over the land was for more than 14 years and was never revoked by a proper authority responsible to land and that he was never compensated for his land. PW1 acknowledge the fact that through GN No.269 of 1974 the government declared all area of King'ori to Boma Ng'ombe to be Game Controlled Area and the suit land fall within declared controlled area. He however claimed that such declaration did not revoke ownership to people with residence and agricultural activities in that area and for that, the Plaintiff ownership over 1000 acres was never revoked. That, there are other developments in the same area that was declared as Game Controlled Area and the same were done after 1974 and before 2020 when the said GN 269/1974 was repealed by GN No. 427 of 2020. PW1 believes that the suit land was properly acquired by the late Gabriel Barnas Mmari and his ownership was never revoked by any proper authority. He therefore prays for this court to declare the order by the regional office and allocation exercise by the district council as illegal. That, if this court this court finds that the allocation was proper and the 1st to 10th Defendants are bonafide occupier, the 11th, 12th and 13th Page 10 of 29 Defendant be ordered to compensate the Plaintiff in lieu of the suit land the amount of 8,725,332,000/=which is computed based on current price of land, 2,200/= per square metre. PW1 also prays this court to award general damage, interest at 18% and costs of the suit. PW2 Amos Gabriel Mmari supported the PWl's testimony on the acquisition of the suit land and the fact that they participated in clearing the land. He also supported the evidence on the Plaintiff's eviction from the suit land and allocation of the same to other people and 20 acres to the Plaintiff. He also supported the evidence that the Plaintiff was deceived on the existence of operation vijiji leading to recovering of the suit land from the Plaintiff. He added my mentioning tractor drivers who worked for them in the farm as Aminiel Ndetaulo, Ndekelwa Zablon and Zephemia Seiyale (Abjan). PW3 Mingarana Ngalesoni testified that he was employed by Ahmed Okashi as tractor driver. That, he knew the late Gabriel Mmari as he was a friend to Okash and they assisted each other farming activities. He supported PWl's testimony that Gabriel Mmari was forcefully evicted from the suit land and his house burnt down. He added that he was also the victim to operation vijiji as his farm was repossessed and he was allocated to another area. Page 11 of 29 P\N4, Aminiel Ndetaulo testified that he was employed by the late Gabriel Mmari at his farm located at Malula village. That, he was later trained to drive tractors and he started working as tractor driver. That, he was working with other drivers including Ndekirwa Zablon and Zephania Seiyale (Abijan). That in 1975 Gabriel Mmari's farm was invaded by the ward leaders and the councillor on allegation that there was operation vjiji. That, Gabriel was forcefully evicted and his huts and stores burnt down. PW5 Gabriel Ndiki Malee Laizer testified that his father the late Ndiki Malee Laizer worked with Lazaro Memandoi Laizer and Elifasi Ndesaulo Kaaya to clear land at Malula and cultivated that land until 1974 when his father passed away. After, his father's death PW5 took over his position and continued working in that farm which was bordered to Ahmed Okash and Gabriel Mmari. That, in 1974, the farms belonging to Ahmed Okash and Gabriel Mmari were repossessed by the government on allegation that they were executing operation vijiji. That, the same was divided into blocks and allocated to other people. PW6 Timoth Paul Ndiuni testified that the late Gabriel Mmari was a friend to PW6's father and their neighbour the late Ahmed Okash. That his father worked in the farm of Ahmed Okash which was near 1000 Page 12 of 29 acres farm of the late Gabriel Mmari. That, PW1 worked for Ahmed Okash from 1973 to 1974 when Ahmed Okash was evicted from the farm. That, in 1975 he visited the farm of Gabriel Mmari and witnessed the ward executive officer and police officers forcefully evicting them from the farm and burning down huts built in the farm. That, 10 Defendants were allocated the Plaintiff's land. That, in 1999, Gabriel Mmari and his family asked for his assistance in preparing the sketch map of their farm and he assisted them by visiting the farm and preparing the same. On the defence side, Sooli Robert Kitomari who is the legal representative of his late father Roberth Ndoombo Kitomari and 4th Defendant in this case testified as DW1. He testified that his late father and other people were allocated land at Malula village for them to cultivate seasonal crops. That, it is on 1972 when the regional commissioner asked people to joining groups for them to be allocated land and cultivation activities started in 1974. That his father and other people were allocated 20 acres each in block 21 while the late Gabriel Mmari and other people were allocated 20 acres each in block 22. That, after such allocation there was no dispute until 2012 when they were sued by Gabriel Mmari who claimed to be the owner of 980 acres of Page 13 of 29 land. DW1 pray for this court to dismiss the Plaintiff's claim on ground that his father was legally allocated land for cultivating food crops for their upkeep. DW2, William Lulunge Mbise, the third Defendant herein testified that in 1974 he was allocated 20 acres land at Malula which was prior part of King'ori village. That, the allocation was done following a meeting convened in 1972 by the regional commissioner in which people were asked to join groups so that they could be allocated land for farming activities. That, he joined a group of 13 people and they were allocated 200 acres at block 21 jointly. That, after sometimes other dropped from farming activities and the remained occupied the whole land and continued with farming. That Gabriel Mmari was among people allocated 20 acres land at block 22. DW2 denied to have trespassed into 980 acres of land claimed by the Plaintiff. He also denied the claim that there was discrimination of other people who were not from Meru tribe. DW2 further testified that the Plaintiff instituted a suit when the government through EPZ (Export Porcess Zone) disclosed that it intended to use the land they were using in farming for special operation. DW2 was of the view that the Plaintiff's claim is cooked intending for undeserving compensation. That, he knows that other Page 14 of 29 people listed in the plaint do not own land in the disputed area. That, Block 1 to 10 was left unallocated for grazing purpose. DW2 dispute the Plaintiff's claim and prays for the suit to be dismissed with costs. DW3 Elirehema Yona is the legal representative of the late Yona Seti Akyoo and the 1st Defendant herein. He testified that his late father Yona Seti Akyoo was allocated land at Block 21 together with other people and Gabriel Barnas Mmari was among people allocated land at block 22. That, they were instructed to use the allocated 20 acres of land in farming activities until further directives. That, they have been using the said land without any dispute until 2012 when Barnas instated a case against them. To him, the Plaintiff's claim is baseless and the Defendant are not trespasser as they were legally allocated the said land. DW4 Dr. Frank Lazaro Akyoo stands as legal representative of the late Lazaro Seti Akyoo and the 2nd Defendant herein. He testified that his late father was allocated 20 acres land by the government at Malula for farming activities to grow seasonal crops. That, Gabriel Mmari and other people were allocated land at Block 22. That they used land without any dispute until 2012 when they were sued by the Plaintiff claiming to be the owner of 980 acres. DW4 dispute the Plaintiff's claim and prays this Page 15 of 29 court to declare that the Defendant are not trespassers but were legally allocated the land. DW5 Emmanuel Andrea Sikawa, the 5th Defendant herein testified that he is the owner of 220 at Malula village in which, he purchased 20 acres from Ndekirwa Abia and 200 acres from Emmanuel Mbeyani Mbise in 2003. That, Mbeya sold the land to him after he won a case on the dispute over the said land at the Court of Appeal. That, he has been using the suit land for farming activities since 2006 without any dispute. That his land is bordered to Block 22 which the Plaintiff was allocated jointly with other people. He prays this court to declare him a lawful owner of the land he is occupying for he is a bonafide purchaser of the same. DW6, Leonard Rutabasibwa Mpanju is the head of land department of Meru District. He testified that the suit land is part of the land owned by the government at Malula village through operation vijiji operation which started in 1969. That, the land was registered in 1977 as property of Malula village. That, in 1974 part of the land measuring 800 acres was declared by the government to be Game Controlled Area (Sanya Lelatema Game Controlled Area) through GN No. 269 of 1974. That by that time there was no any activities being conducted in that Page 16 of 29 area as it was before, it was just a reserved forest with wild animals reserved under the law of Fauna Conservation Cap 302 of 1951 and it was known as Sanya-Plains- Lelatema Mountains Controlled, Moshi and Maasai District. DW6 further testified that the government had a special plan for the use of the suit land hence in 1974 it allowed people to only grow seasonal crops. That it divided the land into blocks and allocate the same to people for farming activities. That, the Plaintiff was among the people allocated land at Block 22. DW6 added that the government through the Arusha Regional Commissioner's officer coordinated the survey of 4000 acres of land at Malula village for purpose of planning to set small scales and large scales industries and its infrastructures. That, after the land was declared to be Game Controlled Area in 1974, no one complained until 2022 when the 10th to 13th Defendants were joined as parties to the suit. DW7, Johnson Aminiel Sama is the legal representative of the late Aminel John Sama and the 9th Defendant herein. He testified that his father and other people were allocated 20 acres of land each at Malula Block 24 for cultivating seasonal crops. That, being the deceased's son DW7 is still using the said land for farming activities. DW7 claimed that Page 17 of 29 he never knew about Gabriel Mmari but he knew through the record that Gabriel Mmari was among people allocated land at Block 22. That, the said land is currently used by Gabriel's sons; Tumsifu Gabriel and Barnabas Mmari @ Jitu. I have considered evidence of both parties in totality, the exhibits tendered and the closing submissions by the counsel for the parties. Starting with the first issue on whether the late Gabriel Mmari did acquire the disputed land measuring 980 acres lawfully between 1960 and 1961, the Plaintiff alleged that he acquired the suit land by clearing virgin land and his historical background of acquisition of land was supported by his witnesses PW2 to PW6 and number of exhibits. I understand the concept of acquiring land by clearing virgin land as well addressed by the counsel for the Plaintiff in his closing submission. I clearly assessed the evidence in which all Plaintiff's witnesses supported the fact that the Plaintiff cleared the land from 1960 to 1961 and on 1974 the same was forcefully taken by ward authority and the Plaintiff evicted therefrom. Their evidence however does not justify the fact that the Plaintiff cleared 1000 acres for the period of two years. The Plaintiff tendered Exhibit PE2 which is a letter from the retired WEO of King'ori. The said letter indicate that the Page 18 of 29 Plaintiff requested to be furnished with letters which were confirming his owner to the suit land. However, such a letter was from a retired WEO who in my view, at the time of writing the same had no administration mandate for he had already retired. One would ask how he came to be in possession of official documents while he was already retired. When cross examined, the Plaintiff admitted that the said letter was personal letter but he believed that the record he was requesting could be found at the office or from individual person. This court is of the view that, since the said letter was from an individual person, the contents of the letter does not justify the existence of official record of the ward. The letters/records allegedly issued to the Plaintiff through exhibit PE2 were never tendered as exhibits to verify the Plaintiff's allegation that he was officially acknowledged as owner of 1000 acres of land at Malula village by the ward office through letters referred in exhibit PE2. However, the Plaintiff tendered minutes for the meeting convened on 6th June 1966 between clan elders/ leaders of King'ori Street Meru (Wazee na washiri Mtaa wa King'ori Meru), Exhibit PE3. In their submission the counsel for the Plaintiff insisted that such exhibit support evidence of acquisition by the Plaintiff. In my view, that the minutes Page 19 of 29 shows that the surrounding community knew that the land was used by the Plaintiff but it does not indicate how the Plaintiff acquired the same. I agree with the submission by the Plaintiff's counsel that Exhibit PE4 which is a letter dated 16th July 1966 from the then executive officer of Arusha/Meru District recognised the Plaintiff as owner of 1000 acres of land at Malula. That letter justify that the Plaintiff acquired and was in use of the disputed land. The claim by the defence witnesses DW6 that before 1974 there was no any activities being conducted in that area as it was a forest reserved under the law of Fauna Conservation Cap 302 of 1951 is unfounded and unsupported with evidence. He was unable to tender evidence showing that no activity in all or part of suit land was going on at that time. He was unable to prove that the suit land was a forest reserved as Sanya-Plains-Lelatema Mountains Controlled, Moshi and Maasai District. If he was able to tender GN No 269 of 1974 declaring Sanya Lelatema Game Controlled Area, it was expected for him to submit documents proving that the same was a reserved forest under the law. Since no evidence to that effect, this court is convincing to believe that the late Gabriel Mmari acquired land at Malula village. This is well supported by introverted exhibit PE4. Page 20 of 29 The question that follows is whether the late Gabriel Mmari was dispossessed of the suit land by the 11th and 12th Defendants on allegation of operation vijiji. The Plaintiff claimed to have acquired land by occupying and clearing virgin land and his evidence together with that of his witnesses reveals that his occupation took place between 1960 and 1961. The defence evidence reveal that the said land was put under ownership of the 10th Defendant through operation vijiji scheme that took place in 1969 but nothing was brought to court to prove that the same took place in that year. Apart from DW6 who claimed that villagisation took place in 1969, other defence witnesses did not state the time when villagisation took place rather, mentioned that they were allocated land in 1974. The exhibits tendered by DW6 reveals that all correspondence took place in 1974 and registration took place in 1977. No correspondence that was tendered for the year 1969 thus suggesting the Plaintiff claim that the alleged operation vijiji took place in 1974. Therefore, if we agree that operation vijiji took place in 1974, the ownership claimed under exhibit PE3 and exhibit PE4 which were executed in 1966, ceased in 1974 when the land was put under operation vijiji scheme thus, exhibit PE3 and PE4 becomes ineffectual. Page 21 of 29 The defence evidence also reveals that, in 1974 the land measuring 800 acres was declared by the government to be Game Controlled Area (Sanya Lelatema Game Controlled Area) through GN No. 269 of 1974. However, the government allowed people to cultivate seasonal crops as evidenced by exhibits DE2, DE3 and DE4 which include letter confirming names of people who applied to be allocated land for farming and directives from the district authority to the ward authority on proper allocation of the land to people for farming. Exhibit DEI indicate that the suit land was part of the land registered in 1977 as property of Malula village. The Plaintiff does not dispute the fact that he was informed over the operation vijiji save that, he claimed the same to take place in 1974 and not 1969. He tendered judgments of King'ori Primary court, in Civil Case No. 15 of 1994, exhibit PE6 and Court of Appeal in Civil Appeal No 30 of 1996 exhibit PE7 to verify the fact that operation vijiji took place in 1974. I however find that what was referred by the Plaintiff in those judgments is the narration of fact and evidence by the courts and not conclusion for the period operation vijiji took place. The judgment of the Court of Appeal pointed out the fact which reveal that the allocation of Page 22 of 29 land to people took place in 1974 thus confirming the defence evidence over allocation. As well depicted above, 1974 is the period the Defendant claim that the land was declared a Game Controlled Area and then surveyed into blocks and allocated people to cultivate seasonal crops. Exhibit PE5 tendered by the Plaintiff is the block allocation document showing blocks and people allocated land to those blocks. For that reason, since the said land was put under operation vijiji and later declared a Game Controlled Area before and then registered as property of Malula village, no one could legally claim ownership of the same without proving that he was allocated the same by proper authority responsible for allocating the village land. Thus, the claim by the Plaintiff that the declaration of the Game Controlled Area did not revoke his right over the land is unfounded. There is ample evidence from the defence witnesses that the suit land was never allocated permanently to anyone rather, it was allocated to people for temporary farming activities. The Plaintiff claimed that there was misrepresentation from the ward authority as he was made to believe that the land was acquired by the 10th Defendant during operation vijiji while the said operation vijiji Page 23 of 29 never took place at Malula village. He claimed to have learnt that fact from the district commissioner's office but he was unable to justify such allegation with evidence. He presented no letter from the DC confirming that there never existed operation vijiji at Malula village. His own witnesses, PW3 confirmed the existence of operation vijiji and he was among people who were affected by the said operation. Thus, the contention that operation vijiji never took place is unfounded. If the Plaintiff admit that he was informed that operation vijiji was taking place and PW3 confirm that it took place at his village and he was evicted from the land he was occupying, this court is convinced that the defence evidence proves that operation vijiji took place at Malula village as well. The Plaintiff tendered the previous proceedings of this court in this case (exhibit PEI 1) that was nullified by the Court of Appeal in need to show that the then land officer admitted that operation vijiji never covered Malula village. Since those proceedings were nullified, they stand as inexistent proceedings and cannot used in any way to impeach the witnesses who did not even testify in those proceedings. That being the case, I find that the Plaintiff was still under duty to prove that operation vijiji never took place at Malula village. Page 24 of 29 The Plaintiff also tendered a letter dated 31st March 1994 exhibit PE8 in which, the office of district commissioner was directing the WEO of Kingo'ri to work on a complaint raised by Mzee Emmanuel Mbise over 200 acres of land located at Malula. During cross examination PW1 claimed that the land referred in exhibit PE8 was part of the suit land in this matter. For purpose of clarity, I will reproduce the contents of the said letter; "YAH: MALAIAMIKO YA MZEEEMMANUEL M. MBISE Pamoja na barua hii nakutumia nakala haiisi ya barua ya Ndugu Emmauel Mbise kwa Mkuu wa Mkoa yenye tarehe 7Machi, 1994, inajieleza yenyewe. Ndugu Mbise ameeiekezwa kwa mkuu wa wiaiaya na amefika na maiamiko ya nyongeza kuwa: - 1. Umemshitaki Mahakamani Malula kuhusu shamaba ii/i/o huko, 2. Umemzuia kupanda na kupatiHa wakati muda unapita Kama ni kweii ardhi aiiyokuwa anendeieza kabia ya operation vijiji yenye ekari mia mbiii waiikabidhiwa wanakijiji wa Nkoanekori, na hatimaye robo tatu (3/4) ya eneo hiio ikamegewa watu wawili(Ndelilio na Aseri), hiio haiikuwa iengo na msukumo wa operation vijiji. Pia kama ni kweii, kuwa kipindi cha 1974-1993 wanakijiji hawakuwa na matumizi yan robo eka (1/4) iiiyobaki, ni vyema suaia hili iiangaiiwe upya. Mkuu wa wiiaya ameagiza ushighuiikie suaia hili. Chunguza na thibitisha maiezo ya mzee Mbise, na chukua hatua zinazofaa na kutoa Page 25 of 29 taarifa kwake. Taarifa yako imfikie ndani ya siku saba kuanzia tarehe ya barua hii." From the above contents, whether the land referred in that exhibit was part of suit land or not, the letter in question does not justify anything. The contents of the letter do neither verify the owner of the suit land nor the claim on whether the acquisition was through operation vijiji or not. The contents are more suggestive than could be conclusive of any fact. The Plaintiff also tendered GN No. 427 of 2020 exhibit PE 13 which revoked GN No. 269 of 1974 which declared Sanya-Lelatema Game Controlled area in need to show that, even before its revocation, people were occupying and using the land in the game reserved area hence, he had right to own land in that area. It is true, and the evidence reveal that even after GN No. 269 of 1974 was issued, the land was surveyed and allocated to people for farming activities. The Plaintiff was among people allocated 20 acres and do not dispute using that land even to date. What he is disputing is that he never applied for allocation of the land. It is unfortunate that his name is also listed in the block allocation which indicated people who applied for land. The fact that he used and still using the land presupposes that he agreed with such allocation. Page 26 of 29 Thus, the submission by the Plaintiff's counsel that the Plaintiff never applied for land is baseless. Those claimed to be allocated land testified clearly that the application was sent as a group by listing their names. If the applicant's name appeared it means he was among the people who requested for land and that is why he continued using the same after being allocated. The contention by the Plaintiff that the regional authority had no mandate to allocate land is unfounded. The allocation done in the circumstance of this case did not pass ownership to anyone rather it was intended for temporary use of land hence, within the mandate of the authority that allocated the land. In my conclusion, I agree with the submission by the defence counsel that the circumstance of this case does not show if the dispossession was orchestrated or fraudulently arranged by the Defendants. The defence side was able to prove that operation vijiji took place at Malula village and the late Gabriel Mmari was properly dispossessed of the suit land through operation vijiji scheme. The second issue complements the 3rd issue on whether the 11th and 12th Defendants have authority and mandate to take over the suit land and allocate the same to 1st to 10th Defendants. As well discussed Page 27 of 29 above, the takeover of the land was done in implementing operation vijiji scheme. Defence evidence reveals that the land was allocated to them for purpose of cultivating seasonal crops meaning that its use is controlled. This indicate that the allocation of land to the 1st to 9th Defendants was an execution of temporary land use plan which is within the mandate of the 11th and 12th Defendants. In that regard, the 4th issue fail as there is no proof that the 1st to 10th Defendants are trespassers to the suit land. I agree with the submission by the defence counsel that the 1st to 9th Defendants are lawfully occupiers of the suit land by virtue of being allocated the same for cultivating seasonal crops. On the last two issues as to who is the owner of the suit land reliefs parties, this court finds that although DW5 claimed to have purchase the land from Emmanuel Mbeyani Mbise and Ndekirwa Abia, the said farm fall within the suit land which was allocated to the people he purchases from for the same purpose of cultivating seasonal crops. He therefore retains the same right which the vendor had over the suit land. With the evidence in record, and in considering the certificate of registration tendered before this court as exhibit DEI, Malula Village who Page 28 of 29 is the 10th Defendant herein, remains the lawful owner of the suit land and the 1st to 9th Defendants stands as lawful occupier of the suit land and retain their right over the use of the suit land. The suit is therefore devoid of merit hence, dismissed with costs. DATED at ARUSHA this 13th Day of November, 2023 MUZORA JUDGE Page 29 of 29