FIKIRA SHABANI vs RUSABA AND NDOHA VILLAGE COUNCILS LAND CASE NO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND CASE NO. 1 OF 2023 FIKIRA SHABANI .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS RUSABA AND NDOHA VILLAGE COUNCILS... .............................. RESPONDENT / DEFENDANT JUDGMENT RWIZILE, J, All 9 plaintiffs are residents of the Rusaba and Ndoha villages situated at Buhigwe District in Kigoma Region. Before 2010, Ndoha was part of Rusaba village until when Buhigwe was formed into a district and split from Kasulu Rural. Topographically, the district is characterised of fertile soil and favourable climatic conditions, thereby attracting farming activities of maize, beans, cassava and coffee to mention a few. This state of affairs attracts land disputes mainly for small hold farming and animal grazing. In 2018 or immediately thereafter, the 1st and 2nd defendants happened to be in a tag-of war with the plaintiffs. The bone of contention is the farmland measuring by estimate of 8 acres, which the plaintiffs, severally claim to own a portion of a farmland out of the whole disputed land, having either purchased it from fellow villagers or inherited from the parents, who are said to have acquired it before the 1973 operation Vijiji. The 1st and 2nd defendants alleging to have been in possession of that land after operation vijiji, planned to build Kavumu Primary school in 2021 in the same land. The plaintiffs therefore who were alleged to have trespassed into it, were asked to vacate the land but disputed. The village and government machinery intervened and forced them out. When they could not settle the dispute amicably, this case was filed before this court. The plaintiffs are claiming for judgement and decree from the defendants for the following reliefs; 1. The plaintiffs be declared lawful owners of the disputed property 8 acres located at Rusaba and Ndoha villages within Buhigwe district council 2. Costs o the case and, 3. Any other relief the honourable court deems just and fit to grant. The plaintiffs who were in the services of Mr. Michael Mwangati learned advocate all testified, while Mr. George Kalenda learned senior stated attorney and Mr. Anold Simeo learned state attorney appeared for the defendants. Three issues were agreed upon at the first hearing of the case as follows; Page. 1 1. Whether the suit land is owned by the plaintiffs 2. Whether the defendants are trespassers into the suit land 3. To what reliefs are the parties entitled to? In their attempt to prove the case, the plaintiffs testified and each of them stated the amount of land claimed from the defendants, its boundaries and neighbours and the manner in which it was acquired. First plaintiff- Fikira Shaban (Pw3) testified that her land is one and a quarter of an acre, that neighbours Ezekiel Niyibuha, Alex Juma, Emmanuel Balelula. She further said, she got it from her father before passing on in 1995, and that she has consistently used it until 2018 when the defendants initiated a process to take it from her. The 2nd plaintiff Adolfu Juma’s (Pw7) evidence is not anything different. Pw7 claimed, he got it from his parents and there is his grandfather's grave and coffee trees. The land according to Pw7 is half of an acre which is in conflict. It’s borders according to him are by Siron Myonga on the norther, west is Issa Sabaga, south is Julius Mpuyeko. Osirida Tegera(Pw4), who is the 3rd plaintiff, told this court that she got her 2 acre farming land from the village government in 1966. She added, borders are, the west with Ezikiel and Fikira Shaban, east with Beda Gaspar, North is a road to Nyarubanda and south is her other land where she planted trees. On the side of Abeli Salamba (Pw5), the 4th plaintiff, it was testified that he had in possession a quarter of an acre left by his father who lived there and cultivated land until he died, and then, he took over and planted pine trees which have grown into a considerable height. His land, he added is bordered by Cele, and the road, Mshigwa Kaloza and Adriano. The 5th plaintiff, Epifania Mafipa (Pw6), his evidence was that she owns a quarter of one acre which she bought from Merchades Juma in 2011. She further testified, she has lived in the village since 1974. Describing her land, she said, in the east there is a road to Nyarubanda village, west is Yunu Kahwata, North is Seleman Juma and South is one Mlelema Juma. The sale was witnessed by Gerald Mafipa, Merchades Juma Hassan Katasha and Aloyce Mafipa. On his part, Adriano Nyamwita (Pw9)- 6th plaintiff, testified that as resident of Rusaba since his birth, he bought one quarter of an acre of land, from Maholo Kimilankwale in 1978. It was through witness of the cell leader and that there was no written agreement. About its borders, he said, on the east is a road to Nyarubanda, North is Adolfu Juma, Abeli Salamba, Alex Juma, and Moses Josephat. Alex Juma (Pw1) is the 7th plaintiff. He testified that he was born in 1954 and raised in the same village. The land in dispute according to him has been used even before the death of his father. He said, he used it in his adulthood until the defendants trespassed into it. He said, part of that land has been shared by family members, buried his father in the same land and sold part of it to Mwalimu Ezekiel Nayibuha, 8th plaintiff. He said, Alex Muyenga, Julius Huyeko and Issa Sabaga are the neighbours. Page. 2 The 8th plaintiff is Ezekiel Nayibuha (Pw2), who alleged owns 1 acre and a quarter, which he bought from Pw1, the 7th plaintiff Alex Juma in April 2009, at the cost of TZS 250,000.00. The land, he said has been consistently used for planting crops and trees. His neighbours include Fikira Shaban on the North, South is Alex Juma, West is Moses Josephat and there is a road on the East side. The last plaintiff is Moses Josephat (Pw8) who also is peasant of Rusaba. He lives there and cultivates coffee and does gardening. His land, he testified is half of one acre with neighbours, in the east- Ezekiel Nayibuha, west, north and south is Alex Juma. He testified further that he bought it from Alex Juma in 2009 for TZS 100,000.00. According to him, the purchase agreement was orally made, in the presence of Barnaba Sylivesto, his little father and Adriano Nyawita and Alex Juma. The last witness is Patrick Mudini(Pw10). His evidence supports Ezekiel Nayibuha the 8th plaintiff. He said he witnessed him purchase land from Alex Juma -7th plaintiff in 2009. He further said, the agreement was oral and it was purchased at sum of TZS 250,000.00 But on the side of the defence, three witnesses were tendered namely Zakaria Buhulula(Dw1), Samson Yohana Mukuyu(Dw2) and Nia Philemon Gwanko (Dw3). In his evidence Dw1 once a member of the village government of Rusaba until 2006 knows well the dispute. According to him, in 1973 when villages were formed, people came from where they lived to that village. He said, the land they left where they became property of the government. In this case therefore, the land in dispute was not property of the plaintiffs’ that is why the government planned to build a school therein. His evidence was indeed supported by Dw2 who said, was a member of the school committee. They were shown by the village government the land planned for school building which is now in dispute. Lastly is Dw3 who is a village executive officer of the same village. Her evidence is that, she was told the disputed land was planned for building of Kavumu Primary School and the village offices. She said, she was told the disputed land, therefore belong to Kavumu primary school which was given by the village government. She was informed that the land was encroached by the plaintiffs who planted trees. Having gone through the evidence of parties in brief, it is clear to me that this land dispute like many other is surrounded by ineptness of the local government authorities to keep land registries clean. The 1st and 2nd defendants for instances, have not established when the two villages were formed and registered. It remains in the minds of the witnesses that the land in dispute was owned by the village and or the plaintiffs since operation vijiji. It is to my mind that operation Vijiji (Operation Villagisation) was an exercise carried out in post-colonial Tanzania as testified in 1973. The operation involved the voluntary relocation in its early phase but, sometimes forced many thousands of rural Tanzanians to Ujamaa villages in order to facilitate communal farming and common services. The project was, and still is, controversial and was abandoned in the 1980s.This case therefore is among many remnants of people who then attempted to return to their former lands they owned, leading to widespread land disputes. Page. 3 Dw1 who said witnessed the same is good to that. He told this court therefore that, the land in dispute was formerly owned by the plaintiffs’ personally or from their parents before the villagization process got gain. As they attempted to returned, they found land already property of the government. This according to him, does not entitle them ownership of the land. It is clear from Dw1 that therefore the plaintiffs were owners of the said before operation Vijiji. It is as well clear to me that, the plaintiffs’ have established that the land was property of their parents and so inherited the same or was purchased from others as the evidence I have narrated has shown. In order to show, the plaintiffs’ trespassed or encroached the land in question, there must be evidence from the defence showing how, it was once in control of the said land. The defendant did not call any documentary evidence to show at least at some point in time, they were in control of that land. If, as it has testified by the plaintiffs which is not controverted that the some of the plaintiffs used the same since there childhood and took possession from their parents and went as far as burying their parents there, it follows therefore that the village government if indeed was in possession which has not been proved, acquiesced to the plaintiffs’ possession. Dw3 who is the VEO of the village in question and therefore the custodian of documents of the village council and minutes of the village did not tender any document to prove there has ever been such a plan which involved planning for the said land to include school building. She only said, the minutes were destroyed by wind but did not even show when that happened and where was it so documented. In all his evidence was based on hearsay information which has no bearing at law. The effects of hearsay evidence, was stated in the case of Vumi Liapenda Mushi vs The Republic, (CAT), Criminal Appeal No. 327 of 2016 at page 6 that;- “Hearsay evidence is of no evidential value. The same must be discredited.” Therefore, the evidence of Dw3 is unreliable. Dw2 as well had nothing material to add value in the defence case. His evidence that when he was a school committee member was shown by the village leaders that the land now in dispute was planned for school building. That alone does mean the village owned the land. It takes me to the last point that which shows, Pw7 who is 74 years old said used it since his childhood, Pw8 bought in 2009, Pw9 bought in 1978, Pw6 bought in 2011, Pw5 used it since death of his father in 1979 and Pw4 who said acquired in 1966. I have no reason to believe these plaintiffs are not saying what indeed happened. The defendant I think, had to adduce evidence that has more weight given the fact that they are in better position to keep documents or solicit information that at least who prove wrong the plaintiffs' case. And in so doing, I am not shifting the burden to the defendants, all I have is that, at the balance of probability this case is proved. For the forgoing reasons, I hold, the first and second issues are determined in the affirmative. Before, I conclude, I think I have to address the point raised under paragraph 9 of the amended written statement of defence. It is the issue about a 90 days' notice to sue the government. The defendants claimed had never been served with the copy of the notice which is in contravention of section 6(1) and (2) of the Government Proceedings Acts. The law cited here states “No suit against the Government shall be instituted, and heard unless the Page. 4 claimant previously submits to the Government Minister, Department or officer concerned a notice of not less that ninety days of his intention to sue the Government, specifying the basis of his claim against the Government, and he shall send a copy of his claim to the Attorney General and the Solicitor General.” The proceedings dated 24th October 2023, shows, the same point was brought as an objection in the then Written statement of defence, and was withdrawn. Withdrawing the same in my view, meant, the defence had made its mind that the same was served in compliance of the law and there was no need for the same to waste time of the court. That was done away with. But about one year later, on 1st October 2024, when filing the amended wsd, it is shown that the notice was not issued to the defendants. I do not think this is right. I think the defence attorney raised this point again by design. I think he wishes to use the 90 days' notice issue for the reasons not intendent by the framers of the law which was succinctly expressed by this court in the case of Musanga Ngandwa v. Chief Japhet Wanzagi & 8 Others, [2006] TLR 351 (HC), where it was held that; “...The object of the Notice contemplated ... is to give the concerned Government and Public Officer opportunity to consider the legal position and make amends or settle the claim if so, advised without litigation. The Legislative intention behind that section is that public money and time should not be wasted on unnecessary litigation and the Government, and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigation. The provisions ... are not intended to be used as booby traps against ignorant and illiterate persons...” All said and done, if the spirit of the law was to be respected, it cannot be said, since January 2023 when this case was filed, the first and second defendants who have now filed a defence, went through mediation process and brought witnesses to defend the case, may still need proof of the notice of 90 days, to inform them that has been in their eyes and ears all that long. Still, the Attorney general and solicitor General were duly informed of the case. The law says, “a copy of the claim shall be sent to the Attorney General and the Solicitor General.”. It should be noted that since they did not design a specific form through which a notice should be, it is enough in my view, for the claimant to send a plaint to both the AG and SG. I think, this is enough to deal with paragraph 9 of the wsd in the absence of the plaintiffs’ proof of the same. Last is to what reliefs are the parties entitled to; 1. The plaintiffs are declared lawful owners of the respective disputed land measuring 8 acres located at Rusaba and Ndoha villages within Buhigwe district council 2. That each plaintiff has proved ownership of a pieces of land stated in the evidence 3. That the defendants may either compensate the plaintiffs according to market value of their land or give them alternative land and 4. Costs of the case to follow the event. Page. 5 Dated at KIGOMA this 13th of December 2024 . A. K RWIZILE JUDGE OF THE HIGH COURT Page. 6