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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUB REGISTRY MOROGORO) AT MOROGORO CIVIL CASE NO.01 OF 2022 HAMISI MOHAMED 1"' PLAINTIFF EDWARD MGAYA 2"^° PLAINTIFF MPETENI ABDALLAH PLAINTIFF HASHIMU ALLY 4™ PLAINTIFF APATAE ABDALLAH 5™ PLAINTIFF JUMA SEIF MSIMBE 6™ PLAINTIFF 3UMANNE MOHAMED 7^" PLAINTIFF ABASI HOSSENI 8™ PLAINTIFF HERI MWALE 9™ PLAINTIFF OMARI NASORO 1°™ PLAINTIFF SAID REGINALD KOMBA PLAINTIFF OMARI MOHAMEDI 12^" PLAINTIFF NASIBU MALILA 13™ PLAINTFF HAMISI MANZI 14™ PLAINTFF AMIMU SADIKI 13™ PLAINTIFF ABDALLAH IDDI 16™ PLAINTIFF SAFARI ABDALLAH - 1^™ PLAINTIFF KAZI ABDALLAH 18™ PLAINTIFF MAUWA ABDALLAH 1®™ PLAINTIFF NURU WAZIRI ^6™ PLAINTIFF Page 1 of 38 3UMANNE ISUMAILI 21^^ PLAINTIFF MICHAEL A. LUANDA 22^° PLAINTIFF MAGARI SELEMANI KINGOMILE 23'"' PLAINTIFF ISUMAILI MASALAWILA 24™ PLAINTIFF DIMOSO SALUM 25™ PLAINTIFF VERSUS THE PERMANENT SECRETARY MINISTRY OF DEFENCE & NATIONAL SERVICE DEFENDANT MZINGA CORPORATION 2^° DEFENDANT THE HONOURABLE ATTORNEY GENERAL 3"^ DEFENDANT Date of Last Order: 12. 04. 2024 Date of Judgement: 07. 06. 2024 JUDGEMENT MAGOIGA,J. The plaintiffs, Hamisi Mohamed, Edward Mgaya, Mpeteni Abdailah, Hashimu Ally, Apatae Abdallah, Juma Sefu Msimbe, Jumanne Mohamedi, Abasi Hosseni, Heri Mwale, Omari Nasoro, Saidi Reginald Komba, Omari Mohamedi, Nasibu Malila, Hamisi Manzi, Amimu Sadiki, Abdallah Idd,Safari Abdallah, Kazi Abdallah, Mauwa Abdallah, Nuru Waziri, Jumanne Isumaili, Michael A. Luanda, Magari Selemani Kingomile,Isumaili Masalawila and Dimoso Salum Instituted the instant suit against the above named defendants jointly and Page 2 of 38 m severally praying for judgement and decree In the foiiowing orders; namely: a. payment of Tshs.500,000,000/- as per paragraph 4 ofthe plaint; b. interest on the amount claimed at the rate of22% per annum from the date offiling to the date ofJudgement; c. interest on the decretal amount at the rate of7% per annum from the date ofjudgement tiii the date of fuii and final satisfaction of the decree; d. that the first defendant be ordered to vacate from the piece ofiand trespassed; e. costs ofand incidental to the suit; and, f any other reliefs this court may deem fit. Just and equitable to grant. Upon being served with the plaintiffs' plaint, the defendants filed a joint written statement of defence disputing ail the plaintiffs' claims. According to the defendants, plaintiffs have no cause of action whatsoever against the them because the 2"^^ defendant is the rightful owner of the alleged 25 acres in dispute, hence, prayed for the dismissal of this suit with costs. The facts of this suit as gathered from the pleadings are not complicated. The plaintiffs alleged to be residents of Kauzeni village within Morogoro Page 3 of 38 0 district in Morogoro region. It is further aiieged and disputed by the defendants that, on 17^ March, 2019, the 2"^^ defendant uniawfuily trespassed into 25 acres of iand iawfui owned by the piaintiffs iocated at Kauzeni viiiage and destroyed the piaintiffs' pianted crops, fruit trees and seasonai crops found in their farm. In the circumstances, the piaintiff after issuing 90 days' notice to the defendant and upon it expiration instituted the present suit praying for judgement and decree against the defendants jointiy and severaily, hence, this judgement after hearing parties on merits. The piaintiff at aii materiai time of this suit have been enjoying the iegai services of Mr. Andrew Job Kanonyeie, iearned advocates; whereas the defendants had at aii materiai time the iegai services of Mr. Xavery Ndaiahwa, iearned Senior State Attorney, Messrs. F. Kaganga and Mbwambo and Ms. Witness Tarimo, iearned State Attorneys. Before hearing started, the foiiowing issues were framed, agreed and recorded by this Court for the determination of this suit, nameiy: 1. Who is the lawful owner ofthe parcel ofland In dispute. 2. Whether the defendants have trespassed the plaintiffs parcel of land. Page 4 of 38 o A 0 3. What are the reliefs the parties are entitled to. This suit was partiaiiy heard by my iearned brother Chaba, Judge and partiaiiy by me, following his transfer to another station and myself transferred to this station. In proof of the plaintiff's case, twenty-three (23) witness testified and tendered several exhibits. The first witness for the plaintiff was 3UMANNE ISMAIL WAZIRI (to be referred in these proceedings as 'PWl'). PWl under affirmation told the court that he used to live at Mzinga village from 1958 to 1969. According to PWl,following the establishment of Mzinga Corporation- the defendant herein ail residents of Mzinga village were relocated to Kauzeni village. PWl went on telling the court that, he and fellow villagers lived peacefully at Kauzeni village until 1992-1993 when the 2"^ defendant invaded their village land despite of having clear demarcations evidenced by several beacons planted in 1970 between Kauzeni village and 2"^ defendant's area and the said dispute was resolved. PWl continued telling the court that, in 2002 the 2"^ defendant also invaded a portion of the Kauzeni village, surveyed it and incorporated the same in their area. Page 5 of 38 9 I PWl further testified that the 2"^ defendant continued to trespass into their viiiage iand where in the years 2014, 2017 up to 2018 siashed aii crops and fruit trees. PWl toid the court that since 2017 up 2022 when this case was instituted in Court he has not invoived in any agricuiturai activities because his area is occupied by the 2"^ defendant. PWl aiso expressed to have suffered damages due to the reaiity, his crops were aii destroyed by the defendants. Finaiiy, PWl piaced his prayers that the defendants jointly and severely be ordered to compensate him for damages of destructing his crops. PWl aiso prayed for declaratory orders restricting the defendants from interfering with their farming iand. Under cross examination by Mr. Ndaiahwa, PWl toid the court he was allocated two acres, but he has no documentary evidence to prove the same. Being probed with a question on whether he understand the claims before the court, PWl testified that though he signed the plaint before being filed in this Court, he doesn't know exactly what is written in and its content. PWl said that what he knows is that himself and his fellow 24 viiiage has instituted the present case against the defendants claiming for damages of invading their 25 acres and destroying their crops. Page 6 of 38 Under re-examination by Mr. Kannonyeie, PWl told the court that their disputed area is within Kauzeni village. He also told the court he is claiming against the defendants in his personal capacity as normal villager and not as a village leader. He also admitted that he has no any documentary evidence to show that he owns the land. Next was Mr. MAGARl SELEMANI KINGOMILE to be referred herein as «PW2". Under affirmation, PW2 told the court that he is a resident of Kauzeni village but born in Mzinga village. PWl testified that way back 1969 they were informed, by then, Tanganyika Government to shift from Mzinga village to Kauzeni village after establishing Mzinga Corporation. In the process, they were compensated by the Government. PWl told the court that when he reached 18 years, he was allocated an area for farming and they continued farming until 2015 up to 2016 when the 2"^^ defendant invaded their area. PWl further told the court that he and his wife were allocated 2 acres and he was given one acre to own. PWl told the court that the 2"^^ defendant has unlawfully used force to occupy his land and continued to uproot every crop and destroyed fruit trees therein. According to PW2, following that unlawful act, he and his fellow villagers who suffered in the same way, decided to institute this case before this court Page 7 of 38 seeking for payment of compensations for the destructions caused by the defendants. PWl also prayed for declaratory order restraining the defendants from trespassing Into the plaintiff's land. During cross-examination, PW2 told the court that he has no documentary evidence to prove the claimed two or one acre alleged to have trespassed by the defendants. In re-examlnatlon, PW2 told the court that he stopped cultivating maize since 2015-2016. PW2 Insisted and told the court that If the defendants real want plaintiffs land, they should follow the procedure and be compensated. Next witness was 3UMA SEIF MSIMBE(to be referred In these proceedings ''PW3"). PW3 under affirmation testified that he resides at KauzenI village and he and his fellow 24 villagers have filed the Instant case against the defendants because the 2"^ defendant have trespassed Into their land and destroyed their crops and fruit trees. PW3 told the court that his family Is affected by the defendants conduct of Invading their area where they depended on agricultural activities to run his family. PW3 further told the court that what he does now Is simple job to feed his family because his two acres has been taken by the 2"^^ defendants by force. PW3 also prayed that Jtil Page 8 of 38 8 ^ h if the defendants want their farm, they shouid foiiow the procedure of acquiring the areas and costs of this case. Under cross-examination, PW3 testified that he was aiiocated two acres by the Kauzeni village. Pressed with questions, PW3 admitted that, he has no evidence to prove the ownership or allocation of the two acres. PW3 further responded that he planted permanent crops including mango trees and other seasonal crops. PW3 testified that his parcel of land was invaded by the 2"^^ defendant in 2016-2017. Under re-examination, PW3 testified that there was no one issued with any documentary evidence to prove the ownership or allocation from the village. Next was Mr. MPELENI ABDALLAH (to be referred as "PW4"). Under affirmation, PW4 testified that he resides at Kauzeni village and he used to own three(3) acres of land. PW4 further told this court that he and his fellow villagers sued the defendants for unlawful trespassing into their land which is located at Kauzeni village. PW4 told the court that the 2"^ defendant acquired 350 hectors including their residential areas. PW4 continued to testify that, however, he is not certain about the size of the area that were used by for agricultural activities. PW4further told the the court that, the 2"^ Page 9 of 38 9 > 4 defendants have destroyed his sugar cane, banana trees and other seasonal crops. PW4 also testified that he has no document to prove ownership of his three acres which was allocated by the village authority. PW4 also told the court that he has suffered damages because he has failed sending her children to school due to lack of money, as currently, he has no place to conduct his farming activities. PW4 prayed that the defendants be ordered to vacate from his land and compelled to pay compensation for damages caused. Under cross-examination, PW4 testified that he is claiming only three acres from the 2"^ defendant. Pressed with question, PW4 admitted that the disputed land is owned by Kauzeni village authority and has no document showing that they legally own the parcel of land at Kauzeni village. PW4 admitted that the parcel of land was allocated to him in the year 1981. Under re-examination, PW4 told the court that the said 3 acres are his own lawful properties which is part of 350 acres from the village authority. Next was Mr. HAMISI MOHAMED HAMISI (to be referred as rPW5"). Under affirmation, PW5 testified that he lives at Kauzeni Village since 1969. Like the previous witness, PW5 testified that he has decided to sue the Page 10 of 38 3> 4 9 defendants because the 2"^ defendant have trespassed his 2 acres of parcel of land which he uses to cultivate different crops like maize and paddy. PW5 told the court that he Is affected by the act of the 2"^ defendant. Under cross examination, PW5 told the court that he owns 2 acres but he has no any documentary evidence to prove his ownership. Pressed with questions, PW5 responded that he does not claim 25 acres but he only claims his two acres. PW5 continued to respond that, the court should note that plaintiffs claim a total of 300 acres and not 25 acres. DIMOSO SALUM MDOGWA (to referred as C'PW6"). Under affirmation, PW6 testified that lives KauzenI village since 1964. PW6 testified that he and co-plalntlff sued the defendants In this Court because the 2"*^ defendant Invaded his parcel of land measuring 2 acres located at KauzenI village which was allocated by the village authority In way back 1992. PW6 further testified that he used to cultivate different crops at his land but the 2"^ defendant has unlawfully trespassed and coerced him to vacate the area without justifiable grounds. PW6 continued to testify that the two acres were at different places; the first one was used for cultivation of paddy and the second one was used for cultivation of maize crops. MUk -iP\ Page 11 of 38 Under cross examination, PW6 testified that he doesn't recali weii the boundaries and he didn't visit the disputed area, when there was a visiting of the iocus in quo. PW6 continued to teii the court that his disputed area is iocated at Kauzeni village and he is not cultivating anything since the same was invaded by the 2"^^ defendant. According to PW6, the and 2"^ defendant took their land by force. PW6 prayed for the court to order the defendants to pay compensation for damages caused to him and be restrained from entering the plaintiffs land and costs of this suit be paid by the defendants. PW6 further told the court that he personally prays to be compensated Tshs.25,000,000/= and continued to testify that though the plaint does not indicate the amount he claims, what he knows is that they jointly claim a total of Tshs.1,000,000,000/= (say One billion). But PW6 later told this court that it should not concentrate with testimony but rather with the plaint which indicates that they claim Tshs.500,000,000/=. Further, PW6 told the court that they are claiming a total of 300 acres and told the Court that he was only guessing. jp re-examination, PW6 told the court that his two acres is situated at 300 acres and not within 25 acres and that he only claims two acres. Page 12 of 38 9 HAMIMU SADIKI KAZEMBE (to be referred as CPW7"). Under affirmation, PW7 testified that he is daiming against the 2"^ defendant for trespassing his farm located Kauzeni village and destroyed/cut down all properties including fruit trees. PW7 told the court further that the 2 defendant invaded his four acres iocated at Kauzeni. PW7 continued to teii the court that he planted several crops/ fruit trees inciuding- permanent trees 600(mltikiti) mango tress 55, orange trees 15, iimon trees 10 and 6 trees of over-cardo. PW7 continued to testify that the 2"^^ defendant invaded his farm which had banana trees without following formai procedures of acquiring the land. Under cross-examination, PW7 testified that he has no documentary evidence to prove the ownership of his farm aiieged to have invaded by the 2"^ defendant. PW7 testified that he prays to be paid Tshs.300,000,000/= as compensation and continued to testify that in their plaint they claimed a total of Tshs.1.5 billion. PW7 further responded that he signed the piaint but not the value of the money and told the Court to ignore the figure of Tshs.500,000,000/= which is reflected in the plaint. PW7 aiso told the court that all plaintiffs jointiy claim a total of 300 acres and not 25 acres. PW7 further when cross-examined,told the court that the plaint should be ignored Page 13 of 38 by thG court becausG it Is not rGallstic and that hG has no formal documont to show that hG owns thG dIsputGd land. UndGr rG-Gxamlnatlon, PW7 told thG court that hG Is GxpGctIng to bG paid Tshs.300,000,000/= and that hG doGsn't know othGr plaintiffs' claims. PW7 continued to toll the court that no one was Issued with any document to prove the ownership of their village land. MAUA ABDALLAH SALEHE (to be referred as CPW8). Under affirmation, PW8 testified that she Is a resident of KauzenI village and she has Instituted the suit jointly against the defendants because the 2"^ defendant Invaded her parcel of land measuring two acres. PW8 continued to testify that she was allocated the two plots of land by then village authority way back In 1989. PW8 further told the court that the conduct of the defendants has caused her a significance loss hence prayed for payment of Tshs.100,000,000/= being compensations for damages caused by the 2"^ defendant. PW8 also prayed for an order of vacant possession against the 2"^^ defendant and In alternative prayed for the court to direct the 2"^ defendant to follow a peaceful and legal procedure of acquiring the land. Page 14 of 38 Under cross-examination, PW8 testified that the daim of 25 acres in the plaint is not true as they aii claims more than 300 acres. PW8 told the court to ignore the 25 acres and take into consideration the claim of more than 300 acres. PW8 on the same line admitted that the one who wrote 25 acres knows much better than her. PW8 further told the court that she is claiming Tshs.100,000,000/= even if it is not written anywhere in the plaint. Other evidence of PW8 was that it is not true that they are claiming a total of Tshs.500,000,000/= HAMISl MANZI MOHAMED (to be referred as Q'P}N9"). Under affirmation, PW9 testified that he is living at Kauzeni. According to PW9, he was allocated six acres way back in 1991 by the village authority but his land has been unlawfully invaded by the 2"^^ defendant who uses force to acquire the land. PW9 told the Court that no formal document was issued to show that they were allocated the parcel of land in question. PW3 further testified that the three acres was planted 150 "mitiki" and 100 mango tress and the remaining three acres were planted maize and paddy. Under cross-examination, PW9 told the court that he is claiming six acres but he had no any evidence to prove his ownership. PW9 testified that the whole area covers about 300 acres. Probed with the question on the claim Page 15 of 38 of the size of land as per the plaint, PW9 told the court that though the plaint shows that they are claiming jointly a total of 25 acres, the court should take that the exactly claim for the Invaded land Is more than 300 acres and therefore prayed the court to Ignore the rest In the plaint. PW9 told the court that he prays Tshs.400,000,000/= and he Is aware that the plaint Is silent as the claimed money was not pleaded. Continuing to respond to questions from the defendants, PW9 told the court that he has never tendered any evidence to justify that he was earning 15 bags of mango and 30 bags of paddy. PW9 also testified that he had no evidence to prove that he lawfully owns the six acres. Under re-examlnatlon, PW9 told the court that he never anticipated what happened and was not given any document of what he claims. MR.SAFARI ABDALLAH KUNAMBI(to be referred as C PWIO"). Under affirmation, PWIO testified that he Is living at KauzenI Village and owns Vi an acre (half an acre). PWIO told the court that his land was Invaded by the 2^^ defendant without any justifiable cause. Like the previous witnesses he testified that he planted various fruit trees and seasonal crops Including, maize, mango trees. PWIO testified that he used to harvest and sell Tshs.5000/= per day and that per year he used to sell 1 bag of maize for Page 16 of 38 m Tshs.150,000/= each 20 kg for Tshs.15,000/=. PWIO finally claimed Tshs.70,000,000/= as payment for compensation of damages caused to him. Under cross-examination, PWIO testified that he had not tendered any evidence to prove that he harvests a certain portion of maize. PWIO also told the court that they jointly claim against the defendants more than 900 acres of land. PWIO told the Court that though the Plaint shows that they are claiming 25 acres but the Court should record that they are claiming 900 plus acres. Under re-examlnatlon, PWIO told the court that he Is claiming Vh acres from the defendants. PWIO also told the court that he has never measured the size of the disputed land. JUMANNE MOHAMED (to be referred as fPWll"). Under affirmation, PWll testified that he lives at KauzenI village for many years. PWll further testified that the defendants particularly the 2"^ defendant unlawfully Invaded his parcel of land In 2016 that was allocated to him by the KauzenI village authority since 1985. PWll told the court that he planted different kinds of crops In his farm Including mango trees and he used to rent for between Tshs.300,000/= and Tshs.400,000/= PWll continued to testified Jk Page 17 of 38 that he has suffered damages because the defendants have destroyed his crops including fruit trees. PWll prayed for vacant possessions or payment of compensation ofTshs. 50,000,000/= Under cross examination, PWll told the court that he was not given any document to prove ownership of the disputed land from the village authority. PWll also told the court that he and his colleague were appointed to represent other villagers, PWll also admitted to have not tendered any evidence to prove that he harvested or cultivated a certain number of crops and sold the same as alleged in his evidence. PWll responded that he admitted that his claims of 1 Vi acres is not reflected anywhere in the plaint. PWll also admitted that he had no any evidence to back up his claim of Tshs.50,000,000/= Under re-examination, the PWll told the court that the claim of Tshs.50,000,000/= is just an estimation of the costs of his crops that were uprooted by the 2"^ defendant. NURU WAZIRI KIBWANA (to be referred as CPW12"). Under affirmation, PW12testified that she lives and used to own a farm measuring at 2 Vi acres located at Kauzeni Village. PW12 told the could that she and Jik Page 18 of 38 fellow colleague have decided to institute this suit against the 2"^ defendant because their land Is invaded by the defendants. PW12 testified further that she was allocated the disputed parcel of land since 1990 and used to cultivate different crops thereon without any Interference; the crops Included maize and paddy. Like PWll, the witness continued to testify that during cultivation he she always harvests 10 bags of paddy and 15 bags of maize. PW12 told the court that his general revenues per year used to range between Tshs.500,000/= which she claims as compensation. Under cross examination, PW12 told the court that she was not aware that they claim Tshs.500,000,000/= as payment for compensation and 25 acres. PW12 told the court that she admits that she signed the plaint but the claim of Tshs.500,000,000/= was unknown to her. PW12 also told the court that she cannot give the details on how she arrived to an amount of Tshs.300,000,000/= but she only estimated according to the situations based on the economic life in the country. Under re-examination, PW12 told the court that ever since she was given the land In dispute, she has never been disturbed at all. Page 19 of 38 NASSIBU ALLY MALILA (to be referred as CP13"). Under oath testified that he used to cuitivate his farm at Kauzeni viiiage which was not exceeding 3 acres. PW13 testified that he was aiiocated the said farm in 1988 and continued to cuitivate cassava, maize and paddy. Through his agricuiturai activities, PW13 told the court that he managed to manage and run his family by selling products direct from the farm. PW13 testified further that the 2"^^ defendant has unlawfully trespassed to his land and destroyed everything causing him hardship. PW13 prayed against the defendants jointly and severely, payment of Tshs.65,000,000/= and Tshs.70,000,000/= as compensations for destructions caused and later being general damages. Under cross- examination, PW13 admitted to have signed the plaint and understand that they ail claim a total of more than 800 plus acres but admitted that he is aware in the plaint they claimed only 25 acres. PW13 also told the court that they all pray a total of Ibiiiion (Tshs.1,000,000,000/=) but admits that in the plaint they jointly claimed a total of Tshs.500,000,000/=. PW13 equally admitted to have no document to prove and support his testimony. Under re-examination, PW13 told the court that they jointly sued ail defendants. Page 20 of 38 m ISMAIL MASALAWILA (to be referred as C'PW14"). Under affirmation, PW14 testified that he is a peasant iiving at Kauzeni viiiage conducting agricuiturai activities. PW14 continued to testify that he was aiiocated four (4) acres of iand by the viiiage for agricuiturai purposes where two acres he used to cuitivate maize. PW14 testified further that the said viiiage did not issue to any individuai any document to show ownership. PW14 aiso told the court that they have sued the defendants because the 2"^^ defendant has unlawfully invaded his parcel of iand and destroyed ail crops that were found in the farm. Following the defendants' act, PW14 told the court that he has suffered irreparably as he has no any place to cuitivate crops for food and businesses for his family. PW14 prayed compensation of Tshs.100,000,000/= for damages caused to him by the 2"^^ defendant. Under cross-examination, PW14 told the court he was compensated only Tshs.700/= by the 2"^ defendant and when asked on the claimed amount of money, PW14 told the court that the claimed amount has no evidence but it is from the estimations of the destruction caused and general damages. PW14 aiso admitted that he signed the plaint but he did not mention any size of land he claims in court. Page 21 of 38 •r ABDALLAHIDD MRISHO(to be referred as fPWlS"). Under affirmation, PW15 testified that he is iiving at Kauzeni viiiage for quite many years, and remembered that was aiiocated five (5) of iand by the Kauzeni viiiage authority and has been using them peacefuiiy untii in 1990-2020. PW14 continued to testify that aii five acres were iocated in one area where he used to cuitivate cassava and maize aiso permanent fruits iike mango trees. PW14 further toid the court that aii crops were destroyed by the defendants daiming to be iawfui owners of the disputed iand. Under cross-examination, PW15 testified that the area invaded is 350 acres and continued teil the court that he denies the daim of Tshs.500,000,000/= as compensations for aii piaintiffs and PW15 further toid the court that he does not daim 25 acres and feiiow piaintiff. SAID REGINALD KOMBA(to be referred as C'PW16"). Under affirmation, PW16 testified that he iives at Kauzeni Viiiage and he was aiiocated in 1994 by the viiiage authority three (3) of iand. PW16 further testified that the 2"^" defendant invaded his land in 2017 and unlawfully continued to occupy it without any justifiable ground. Like other witnesses, PW16 toid the court that he had been growing maize, paddy and mangoes in his iand and earned 15 maize bags, and 15 paddy bags. PW16 prayed payment of Page 22 of 38 m Tshs.300,000,000/= as compensation for destroying his crops and taking off his land. Under cross examination, PW16 admitted that the calculations made does not reflect the amount claimed of Tshs.300,000,000/=. PW16 also admitted that in the plaint he didn't indicate that he is claiming a certain amount of land and money. Furthermore, PW16 told the court that he and his colleagues are claiming more than 300 acres. In further cross-examination, PW16 stated that it is not true that himself and fellow colleagues were claiming a total of 25 acres as per paragraph 8 of the plaint. PW16 told the court that, the plaint shows that they claim a total of Tshs.500,000,000/= and 25 acres but he denies the above figure and size of land. Finally, PW16 responded that the plaint is out of his mind. Under re-examination, PW16 told the court that he is not in agreement with Tshs.500,000,000/= and 25 acres as indicated in the plaint. Next was Mr. OMARI NASSORO (to be referred as C'PW17"). Under affirmation, PW17 testified that he is a peasant living at Kauzeni village. According to PWl, he was allocated 3.5 acres of land by the Kauzeni village authority in 1980 but the same has been trespassed by 2^^ defendant and Page 23 of 38 m destroyed every crops. PW17 prayed for payment of compensation of Tshs.25,000,000/=. Under cross-examination, PW17 admitted that he has no document to prove ownership of the acres he is claiming and by 1980 was under age. Further quizzed, PW17 admitted to have no any proof of Tshs.25,000,000/- he is claiming and that even in the plaint nowhere he stated so. Under re-examination, PW17 told the court that no dispute that he owned the 3.5 acres and the amount he claimed of Tshs.25,000,000/- was his personal assessment. OMARl MOHAMED OMARI (to be referred as C'PWIS"). Under affirmation, PW18 testified that he was allocated 1.5 acres of land by Kauzeni village authority in 1992. PW18 testified that the 2"^ defendant invaded his land in 2015 and destroyed every crop and caused him damages to himself and to his family. PW18 testified further that, he prays for payment of compensation of Tshs.35,000,000/= as damages caused after destroying his crops. Under cross-examination, PW18 testified that he has no evidence to prove the amount claimed and ownership of 1.5 acres of land. Page 24 of 38 m Under re-examination PW18 told the court that the amount of Tshs.25,000,000/- was his own estimation. APATAE ABDALLAH (to be referred as CPW19")Under affirmation, PW19 testified that he lives at Kauzeni village and he was allocated one acre of land by the Kauzeni village authority in 1997 when he completed his primary education. PW19 continued to tell the court that the 2"^ defendant Invaded his land in 2015 and destroyed every crop in his farm, including tree fruits, maize. PW19 told the court that following the 2"^ defendant's unlawful action, he is living in a serious condition and prayed the court to grant him payment of compensation for his land or the defendants to vacate from his land. Under cross-examination, PW19 told the court that he is not aware of the claim of Tshs.500,000,000/= as compensations for all plaintiffs and in the plaint never stated that he claims one acre of land. Further pressed with questions, PW19 admitted to have no document proving his ownership of the one acre. Under re-examination, PW19 since 1997 to 2015 he enjoyed the use the land without interruptions. Page 25 of 38 . ■. i 0 KAZI ABDALLAH (to be referred as C^PW20"). Under affirmation, PW20 testified that he lives at Kauzeni village and he was allocated 1.5 acre of land by the village authority in 1984. PW20 continued to testify that he used to cultivate his farm by planting maize and cassava. PW20 testified further that the 2"^ defendant invaded his land in 2015 and forced him out using his farm until the filing of the suit before this court. PW20 told this court that he institutes this suit because he wants to be given his land or compensated by the defendant. Under cross-examination, PW20 told the court that he has no documentary evidence to prove ownership of the said 1.5 acre. PW20 also stated that he is not aware of the claim of Tshs.500,000,000/= which is stated in the plaint. Under re-examination, PW20 told this court that he has no any document to prove my ownership of the land in dispute because no dispute over his ownership since 1970. HERI PAULI MWALE (to be referred as CPW21"). Under affirmation, Pw21 testified that he lives at Dar es Salaam but prior, he was living at Kauzeni village. PW21 testified further that he was allocated 2 acres of land for agricultural activities by the Kauzeni village authority after completing his Page 26 of 38 e i ) Standard seven in 1994. PW21 continued to tell the court that he used to cultivate maize, paddy and sugar cane but the 2"^ defendant trespassed Into his land and proceeded to destroy all crops therein. PW21 further testified that the 2"^ defendant Invaded his land In 20215 and uprooted everything and caused serious Injuries to him. Under cross-examination, PW21 testified that he never stated the size of his plot and his complain Is on 2 acres and not on 25 acres as stated In the plaint. PW21 equally admitted to have no any document of ownership of the two acres he Is testifying about. Under re-examlnatlon, PW21 told the court that since 1994 to 2015 no dispute was there with the 2"^^ defendant HASHIM ALLY ISSA (to be referred as C'PW22"). Under affirmation, PW22 testified that he has been living at KauzenI and he was allocated 2.5 acres where he used to cultivate maize and sugar cane. PW22 told the court that the 2"^^ defendant Invaded his land In 2015 and prevented him from cultivation. PW22 further stated that If the defendants want his land, they should follow the procedure and pay him compensation for his land. PW22 concluded by praying the court that the defendants be ordered to pay Page 27 of 38 i compensation and vacate from his land after making formai evaluations on the destroyed crops. Under cross-examination, PW22 told the court that nowhere in the plaint mentioned that he claims 2.5 acres of land. PW22 further stated that he does not know the claim of Tshs.500,000,000/= which is stated in the plaint. ABBAS HUSSEIN (to be referred as rPW23"). Under affirmation, PW23 testified that he owns a land measuring 3 acres at KauzenI village which he was allocated by the village authority in 1996. PW23 testified that the 2"^^ defendant invaded his land in 2015 but before that he was occupying his land peacefully. PW23 testified further that he used cultivate his land where he cultivates maize, paddy and sugar cane. PW23 stated that he suffered damages where he used to get 15 bags of paddy and 10 bags of maize. PW23 testified that the prays the court to make an order for compensation after making valuation of his land. PW23 further prayed that If the defendants are not willing to compensate him, the court should order the defendants to vacate from his land. PW23 testified that KauzenI village is registered and prayed to tender the village registration certificate and it was admitted in evidence as ^^exhibit Page 28 of 38 » i 9 PEl". PW23 also tendered the 90 days' notice of Intention to sue the defendants, the same was admitted In evidence as ''exhibit PE-2". Under cross examination, PW23 testified that he does not have any document to prove that he owns 3 acres of land and continued to admit that nowhere In the plaint explained that he owns 3 acres. PW23 further respondent that he does not understand the claim of Tshs.500,000,000/=. The learned advocate for the plaintiff prayed to withdraw a suit for the 2"^ and 22""^ plaintiffs because he had no contact with them since then, which prayer was not objected and was dully granted. This marked the end of the plaintiff's case and same was marked closed. The defence case was opened by SEBASTIAN BEBWA (to be referred herein as"DWl. Under oath, DWl told the court that before retirement, he was working within the Ministry of Defence and Security as a Head of Estate and Management Unit within the Ministry. DWl went on telling the court that the 2"^ defendant acquired the disputed land property In between 1968-1975 when the Government decided to establish a special factory for special production of firearms and ammunition. DWl further proceeded to testify Page 29 of 38 ♦ i that the process went until 1973 through GN. No. 161 of 1973 when Mzlnga Corporation was established. According to DWl,the defendant acquired the disputed landed property by following ail legal process including paying adequate compensation to the people who were found in their location. DWl told the court that in Morogoro, the defendant followed the procedure of acquiring ail land and there are evidences that prove the compliance. DWl prayed to tender the following documentary exhibits; (a), the communications between Regional Commissioner and other Regional Officials dated 18/10/1968, (b) Communication between AC to RAS on the same topic dated 25/02/1970, (c) Communication between CDF to RDD-Morogoro on compensation dated on 10/06/1975 on update of payment of compensation,(d). The evidence of payment of compensation of Nurdin Bandaii who was paid Tshs.427,567 and (e) Compensation scheduled of ail people paid and their values dated 22/01/1975. These documents were ail admitted in evidence as exhibit D1 a-e. DWl continued to testify that in 1986, the 2"^ defendant surveyed the whole area and the survey plan was approved and registered as Plan No. D169/39 with registration No. 22075 with 2118 hectares. DWl continued to testify Page 30 of 38 9 4- 1 ^ that after the survey, the 2"^ defendant continued using iand peacefully until the year 2001 where it was discovered that people have trespassed into that land. The villagers were from Kauzeni, Magadu and they decided to resolve the conflict by eliminating all areas that were already developed by the citizen and opted to resurvey the area. DWl told the court that after resurvey, they left behind ail areas that were developed by the citizen and found the disputed land was reduced 1800 hectares after giving Magadu 35 hectares, Kauzeni primary school got 7 hectares and KauzenI got more than 200 hectares and Tangeni got more than 7 hectares. DWl prayed to tender the survey plan dated in 2001 and the same was admitted in evidence as exhibit D2. DWl continued to testify that with exhibit D2, it is the plaintiffs who trespassed into the 2"^ defendant's land since 2014 and continued to testify that it was resolved that the plaintiff should stop doing the agricultural activities in the defendants' land. DWl finally prayed the court to dismiss the present suit for lack of merit. Under cross examination, PWl told the court that, the exercise of survey involved all people and beacons were put and the KauzenI village is one of the viilages which benefited by being given a land. According to DWl, what Page 31 of 38 1' they did was to restrict wananchi from entering the defendant land and no more. Next was witness for defence was MAJOR ELIHURUMA PAUL MWENYE (to be referred as DW2). Under oath, DW2 testified that he is a military commander of the 2^^ defendant. His evidence in respect of the disputed land was that it belongs to the 2"^ defendant. DW2 told the court that the 2"^ defendant land is divided into three plots which comprises of 4800 acres and that 2"^" defendant have three certificates of Tittle for both Plot No. 26/1, Plot No. 26/2 and Plot No. 26/3. DW2 shown the certificates of tittles for the three plots, he managed to identify them and continued to testify that Certificate of Tittle No. 4459 is of plot No. 26/1, Title No. 4460 is of Plot No. 26/2 and Title No. 4458 Is for Plot No. 26/3. DW2 prayed to tender the above tittle deeds as evidence and the same was admitted as exhibits DE3a-c. DW2 testified further that the disputed land is located on Plot No. 26/2 which is exhibit DE3 (b) where the plaintiffs' claims to own 25 acres as per their pleadings in the plaint. DW2 continued to testify that since the plaintiffs have trespassed into the 2""^ defendant's plot which Is legally owned, he prayed this court to dismiss the suit entirely for lack of merit. Page 32 of 38 i ') ix 0 Under cross examination, DW2 toid the court that the piaintiffs' daims are unfounded because 2"^ defendant's piot which was invaded by the piaintiffs is more than 25 acres. DW2 also testified that the claim of compensation of Tshs.500,000,000/= have not been proved and prayed for dismissal the suit for want of merits. This marked the end of the defence case and it was dully marked dosed. Having carefully gone through the pleadings, heard the parties' oral testimonies and the documentary exhibits admitted as evidence in this Court, then, the pertinent task at this point is to discuss the framed issues against the evidence on record. While performing this eminence job, it should be pointed from the outset of this judgment that, I will be guided by the long standing principle of law which states that, who alleges must prove", and in civil case like the one at hand, ^'the standard of proof is only measured on balance of probability". For simplicity, the above guidance is in line with the decision of the Court of Appeal of Tanzania in the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal 45 of 2017)[2019] TZCA 453(11 December 2019), where the Court of Appeal of Tanzania at Mwanza at page 14 held categorically that; - Page 33 of 38 i .Ol "Itis trite iawandindeedeiementarythathe who aiieges hasa burden ofproofaspersection 110ofthe Evidence Act, Cap.6[R.E2002],Itisequaiiyeiementarythatsince the dispute was in civii case, the standard ofproof was on a baiance of probabiiities which simpiy means that the Court wiii sustain such evidence which is more credibie than the other on a particuiarfactto be proved" [Emphasize added] Squarely with the above settled principle, to prove the cases before this court, It is settled principle that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not support the pleaded facts or is at variance with the pleaded facts must be Ignored. This cardinal principle on pleadings was stated by the Court of Appeal of Tanzania in Barclays Bank (T) LTD Vs. Jacob Mure; Civil Appeal No. 357 of 2019 at Tanzlii)\N\\eve at page 11, the Court categorically held: - "We fee! compelled, at this point, to restate the time-honoured principle of law that parties are bound by their own pieadings and that any evidence produced by any ofthe parties which Page 34 of 38 «r does notsupport the pleaded facts or is at variance with the pleadedfacts must be ignored''.[Emphasize added] Having laid down the above principles of law, I turn now to discuss the issues raised in this suit. The first issue in this suit was couched that, ^who is the iawfui owner of the parcei ofiand in dispute?". As per the plaintiffs' plaint (pleadings) which was filed in this court, the parcel of land in dispute is twenty-five (25) acres located at Kauzeni village in Morogoro District. However, following the testimony of 23 plaintiffs, I noted that, all plaintiffs dearly testified that they don't occupy the 25 acres jointly but that each had his own number of acres as testified but not pleaded at ail. This state of affairs has adverse effect to the plaintiffs'suit and in answering issue number one because of the following reasons: One, much as each plaintiff as testified shows severally claims a distinct parcei of iand contrary to what was pleaded in their joint plaint filed in this court, then, ail their testimonies were at variance with the pleadings. Two, ail plaintiffs (PWl to PW23) none tendered any document to prove ownership or allocation of the parcei of iand each claimed. Three, none of the plaintiffs (PWl to PW23) call the Kauzeni village leaders to prove that they allocated the plaintiffs any parcel Page 35 of 38 4. 7 > 9( of land as claimed by each plaintiff. No reasons whatsoever was given why the leaders were not called to testify. The village leaders, in this suit, in my considered opinion, were material witnesses and as such failure to call them, I am restrained draw adverse inference to the plaintiffs. Four, most of the ■5 plaintiffs under cross examination denied the contents of plaint and claimed different pieces of land which was not pleaded at all and Is against the principle that parties are bound by their pleadings. In the circumstances, therefore, applying the princlpies in the case of Barclays Bank (T) LTD Vs. Jacob Muro (supra), I hereby Ignore the testimonies of plaintiffs PW1-PW23 which claims different parcel of land different from the pleaded 25 acres of land. The plaintiffs if wishes to claim more were to make an amendment to their pleadings. This was not done and is fatal to their claims. In other words, I find the plaintiffs utterly failed to prove ownership of 25 acres claimed In the plaint and by defendants tendering three Certificate of Tittles in respect of Plot No. 26/1; Plot No. 26/02 and Plot No. 26/03 which justifies their ownership as shown in exhibits DE-3a-c. With due respect to the plaintiffs, their evidence is wanting in respects to this suit to prove that they owned 25 acres daimed in the plaint. Page 36 of 38 Not only that but even If I were to say the plaintiffs owned 25 acres as testified but still their testimonies out of 23 plaintiffs brings to 60 acres when added together contrary to what was pleaded. That said and done and on the above reasons, I hereby answer the first issue that the 2"^ defendant is the rightful owner of the land in dispute. This takes me to the second issue which was couched that ^whether the defendants have trespassed the plaintiffs parcel ofland". This issue wiii not determine me much given the answer in the first issue. I am convinced to hold that the plaintiffs have no land which the defendants trespassed rather the plaintiffs trespassed the 2"'' defendants' land lawful owned. The last issue was couched that 'what are reliefs parties are entitled to?' The immediate reiiefs avaiiabie for the piaintiffs given my findings in issues one and two above, is to dismiss this suit. In the finai analysis, this suit dismissed in its entirety with costs for want of evidence. It is so ordered. Dated at Morogoro this 7^*^ day of May, 2024. Page 37 of 38 i o I M. MAGOIGA JUDGE 07/05/2024 Court: Judgement delivered under my hand and the Seal of this Court in Chambers this 7'^ day of May, 2024 in the presence of Kannonyeie, learned advocate for thejjiaintiffs and TMi^C!^.....\earr\e6 State Attorney for o the Defend,^'^! •</ I: h .MAGOIGA JUDGE 07/05/2024 Court: Rights of the parties to appeal to t fully explained. qVW OA c 7^ 2: ><3 S. M. MAGOIGA UJ X JUDGE 07/05/2024 Page 38 of 38