LAND CASE NO

THE JUDICIA RY OFT ANZAN IA IN THE HIGH COURT OF UNIT ED REPUBLI C OF TANZANIA AT KIGOMA (CORAM : HON. AUGUSTI NE RW IZILE) LAND CASE NO. 28 OF 2023 IB RA HIM KA YABA @ NT A YOM BELA COM PLAINANT I APPELLANT I APPLICANT / PLAINTIFF VERSUS MACHAZO VILLAGE COUNCIL & 2 OTHERS RESPONDENT/ DEFENDANT JUDGMENT Fly Notes Facts Ratio Decidendi 27th of August 2024 Hon. RWIZILE.: The plaintiff is the resident of Machazo village in Kigoma region. Like other villagers, he owns land along the Simbo-Ilagala-Kalya Road. In 2020, the first defendant initiated a road cleaning and paving project. The same was effect by the contractor under the sponsorship and supervision of the 2nd defendant. It is alleged that at the premises owned by the plaintiff, in the construction process, party of his land measuring 15 feet in terms of the plaint (15 metres in terms of evidence) was trespassed into. It was arbitrarily paved causing destruction of three residential houses- built in one plot, 25 five trees worth TZS 1,005,056.00, heaps of sand and stones, 8978 burnt bricks and a good number of passion fruit plants. The plaintiff was not happy with the wrongdoing and because the defendants were adamant to compensate the loss, he filed this case claiming for the fallowing reliefs. I. Declaratory judgment and decree that the 1st and the 2nd defendants' act of trespassing to the plaintiffs land was unlawful, 2. The 1st and the 2nddefendants be declared to be trespassers into the plaintiffs suit land, Page. 1 Hon. AUGUSTINE RWIZILE 3. The 1st and the 2nd defendants be ordered to pay a compensation of TZS 20,000,000.00 for the act of trespass into the plaintiffs suit land demolishing plaintiffs three residential houses, removing 25 trees from the suit land, destruction of burnt bricks, ten trips of sand and ten trips of stones during establishment of a path or road without payment of compensation to the plaintiff, 4. The same to be paid at a court rate of 7% from the date of judgment to the date of when it will be paid in full, 5. Costs of this suit and, 6. Any other relief deemed fit to be granted to the plaintiff. The respondents in protest, filed a written statement of defence insisting that the plaintiff trespassed into a road reserve and therefore has no colour of right over the land in dispute. Mr. Damas Sogomba, learned advocate who appeared for the plaintiff tendered one witness- the plaintiff. The defendants on the other side led by Mr. Celestine Ngailo, learned state attorney tendered 4 witnesses in defence. In an effort to best deal with the dispute two issues were framed. 1. Whether the defendants trespassed into 15 feet piece of land property of the plaintiff. 2. To what reliefs are the parties entitled to. At the hearing, the plaintiff, Ibrahim Kayaba @Ntayombela, testified and had no other witnesses to support his case. On the defence side, Juma Philipa Sakise (Dwl), Anania Costa Kobali (Dw2), Oliva Alphonce Kandala (Dw3) and Augustina Masenene Magerre (Dw4), testified. First issue. Whether the defendants trespassed into 15 feet piece of the land property of the plaintiff. Going by evidence, the plaintiff testified that in 2020, there was trespass into his residence due to road construction. He said, it was the 1st and 2nd defendants who did so without his involvement. He said, his residence was destroyed. Three houses, bricks that were collected, stones and sand, 10 track trips, trees for tunber and fruits. According to him, the tractor passed by and pushed sand and stones to the house, which led to damaging them. They all were pushed from where they were to the back yard. The size of the land, he added is l 5metres long and it is 10 metres wide. Each house according to Pw 1 was built by bricks. The plaintiff further testified that after damages to his property, on top of that, he was arrested and charged but was acquitted in terms of exhibit P 1 which is the judgement of the court. It was his point that since he was acquitted by the competent court, he was the rightful owner of the suit land. He testified; he owned land in dispute before the defendants planned for a road construction. He said, he occupied the land since 1982, while the village ofMachazo was established in 2020. As to how he acquired it, he said, it was through inheritance from his deceased father. Based on this evidence, it is clear to me and to the parties that the plaintiff is resident of Machazo village. It is not disputed that road construction passed through the land where the plaintiff lives and some of his properties were bushed to the backyard. It was the defendants' case that the plaintiff built and planted trees in the road reserve. Page. 2 Hon. AUGUSTINE RWIZILE It was the evidence of Dw 1 and Dw2 who resided in the village since 1982. They said, the plaintiff planted trees in the disputed land which is a road reserve. Their evidence was supported by Dw3, the village executive officer, who said, upon agreement, by the village council and the village meeting those roads be pavement, it was directed that those who built in the road reserve should clean the areas at their own costs. The plaintiff, it was stated did not, that is why they had to deal with him accordingly and paved the road and removed what was trespassing into, as exhibit DI and D2 which were tendered by Dw2. Dw4 is the civil engineer working with the 2nd defendant. His evidence was that he worked on the road construction in the dispute land. It was his evidence that, before construction was done, they had told the people who had trees in the road reserve/ road corridor to remove them because there was no compensation. He testified further that the disputed road is a network of community roads. Its reserve according to him, must be 25 meters in total divided into two, from the center of the road making it 12.5 meters on each side. There is a road corridor which is 8 meters which was left. The same is from the center of the road divided by two which is 4 meters each side of the road. In the disputed area, he testified they found five big trees which were removed by the contractor. In his evidence, he added, there was no destruction of trees, sand, stones or houses as claimed by the plaintiff. Having shown albeit brief, the evidence of the parties, I think, I have to say, in mainland Tanzania, roads are categorized into two, that is National and district roads, in terms of section 12(1) and (2) of the Roads Act, No. 13 of 2007. While national roads include trunk and reginal roads, district roads are classified into three; collector, feeder and community roads as per section 12(3) of the same Act. Width of the community road is 3.1 metres, while its reserve is 12.5 metres in each side measured from the centreline of the roadway in terms of regulation 29 of Roads Management Regulations 2009, GN No. 21 of2009 According to evidence, road construction subject of this case is Simbo-Ilagala-Kalya Road and in terms of Dw4 it is a community road. In the classes of roads, a road within a village or that which connects a village to another, is, in terms of subsection 3(c) of section 12 a community road. The size or width of the road may by order of the minister, be published in the gazette. The defendants did not after all show if the same sizes were published by the minister and if so when the same was done. But all in all, Dw4 only said, in 8 meters which is the road corridor five (5) trees were found planted by the plaintiff and an order was made that the same be removed. The contractor did so. Now, there is one thing that need be put clear, if the its the plaintiff that trespassed into the road reserve or it is the defendants. The available evidence is that the plaintiff was in the village since 1982 and the village in question according to him was established in 2020. It means there was no designated roads which he trespassed into. His evidence gets gain from Dw4, who said, the Simbo-Ilagala-Kalya Road was first paved by the 2nd defendant. This means never before was it paved. Who then can be called a trespasser between the two. It was, I think, the duty of the defendants to prove that the plaintiff trespassed. The exhibits tendered for the defence include D l and D2 (para 5, last lines) did not show the plaintiff trespassed into the road, but was directing those who may have trespassed by planting trees or that trees have extended their leaves into the public road to be removed. I think, these exhibits may have been enforcing powers of the road authority given under section 20 of the Act, where it may enter and Page. 3 Hon. AUGUSTINE RWIZILE remove trees in a public road which overhangs or otherwise obstructs smooth use of the public road. It is clear therefore to me that, there is no evidence showing that the plaintiff trespassed into the road reserved and the extent he so did. But still it was the duty of the plaintiff to prove, the defendants trespassed in his land, with respect, that evidence is lacking. He did not even kn ow the size of the land he inherited apart from knowing the size of the road reserve. Throughout his evidence, the plaintiff did not show the extent of actual damage caused. He pleaded 15 feet and, in his evidence, claimed it is 15 meters. It should be noted that the size of the road reserve is by law 25 meters and if the land taken was 15 meters it means the road reserve in question is 10 meters, including 3.1 meters which is width of the road, I think it is not proper. But exhibit P3 shows, 25 trees were cut which are Grevillea robusta and croton Mega! carpus 'worth the sum of TZS 1,005,056.00. The exhibit did not disclose who cut the trees and did not say, it was in relation to road pavement or constru ction. At the end of the report, it says if compensated he may be given free advice on how to plant other trees in the area where the same were cut. In my view this statement of the district forest officer suggests that trees should be planted in the area where they were uprooted. I doubt if the same are related to the subject matter. The plaintiff, I think had to bring evidence from at least other people who exactly know how he got that land and if indeed, the action of the defendants amounted to trespass into his own land. The forest officer who valuated his cut tree was not called to testify as well. I think, in the first issue, it has not been proved that the defendants trespassed into the plaintiffs land. Having determ ined the first issue in that manner, the next issue is to what reliefs are the parties entitled to. Since the plaintiff has not proved his case, it is therefore dismissed. Based on the nature of this case, I make no order as to cots. AUGUSTINE RWIZILE JUDGE OF THE HIGH COURT Dated at KIGOMA ZONE this 27th of August 2024. AUGUSTINE RWIZILE JUDGE OF THE HIGH COURT Page.4 Hon. AUGUSTINE RWIZILE