20160510 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA ATMBEYA' LAND APPEAL NO. 7 OF 2013 (From the Decision of the District Land and Housing Tribunal of Rungwe District at Rungwe, In Land Case No. 14 of2012) ISUMAIL ASUMWISYE ASUMWISYE PANGISYAGA5...... .... APPELLANT VERSUS SERIKALI YA KIJIJI CHA SHINA LA IBANDA .....RESPONDENT JUDGMENT Date of last Order:06/04/2016 Date of Judgment: 10/0512016 A.F. NGWALA, J. The two Appellants Isumail Asumwisye and Asumwisye Pangisyaga are unpresented in this Appeal. Ms. Joyce Kasebwa, the learned Advocate is representing the Respondent known as Serikali ya Kijiji cha Shina la Ibanda. The Appeal is a result of the decision of the District Land and Housing Tribunal for Rungwe at Tukuyu. The learned Chairman of the said Tribunal had delivered the Judgment for Application No. 14 of 2012 involving the parties on 21/12/2012. The Appellants being dissatisfied with the said decision have appealed to this court. 1 The 1st Appellant submitted that they were dissatisfied with the ( decision of the District Land and Housing Tribunal of Rungwe because the case was heard on one side. They were surprised to hear that they had lost the case. He further submitted that the trees in the disputed land are being used by the ten cell leader Tubuke Emmanuel who has he cut down the trees while he is not a Chairman. The trees in the disputed land belong to them and that they have used them since their child hood. The Appellants insisted that they were surprised to see the ten-cell leader cutting the trees while the appeal is still pending in this court. The 2nd Appellant contended that he had appealed because he was told he had lost the case. The Respondent who is Emmanuel is a very young man to him because he planted the said trees with their grand father. He further said that he was surprised to see the said Emmanuel cutting down the trees while the appeal is still pending before this court. Ms. Joyce Kasebwa, the learned Advocate submitted that the Respondent was the winner in the case. The decision by the District Land and Housing Tribunal had never been overruled by any court, so the Respondent had the right to cut the trees. She argued that Emmanuel being the ten-cell leader was not the issue of the position. She further submitted that the Appellants had never submitted regarding the grounds of Appeal. The Appellants had only submitted on the 1st ground of Appeal, that they were not allowed to call witnesses but the Respondent did so. She prayed to 2 reply on the only ground of Appeal submitted by the Appellant. She ( went on submitting that the 1st ground of Appeal was not true because the Appellants were given a chance to call witnesses but they said that they had no witnesses besides their documents. In respect of the 2nd ground of Appeal, the learned Counsel submitted to the effect that none of the parties prayed that the area of the dispute should be visited. Miss Joyce Kasebwa further submitted that the 3rd ground of Appeal by the Appellants is not true, because they never said that they were given the disputed land by the "Mafumu" - the village leaders. She added that the witness Isack Mwashitete and Andalwisye Kasiba said that they were the ones who planted the trees for the Respondents (now Appellants). This was according to page 2 of the Judgment of the District Land and Housing Tribunal of Rungwe, together with page 3 of the proceedings of which were not challenged, she submitted. Ms. Kasebwa strongly submitted that the Primary Court had no jurisdiction on who was the owner of the disputed land. On the fourth ground of Appeal, Ms. Kasebwa contended that the evidence of both sides was considered. On the 5th ground of Appeal, the counsel submitted that the Judgments of the Primary and the District Courts were not considered because those cases did not determine ownership. They were only criminal cases; they never determined the issue of ownership that is why the Appellants won the cases. She further submitted that those Judgments did not 3 state who was the owner of the disputed land, and hence the c Appellants cannot say who was the owner of the suit land. She prayed for the appeal to be dismissed with costs. In rejoinder the 1st Appellant argued that they were the owners of the said land and that is why they were sued in criminal cases and they used those trees for a long time. It was their shamba. They never trespassed into their shamba/land. The 1st Appellant stated that it was them who charged his father. He further submitted that his father was threatened by the Respondent and charged them. The trees belonged and they belong to the 2' Appellant. The 2nd Appellant further stated that he was surprised to hear the decision; it is when he complained to them, the Chairman called all the ten-cell leaders who were cutting his trees, then before hearing the case. They charged them for their right. He concluded by saying that the decision by District Land and Housing Tribunal was wrong because the trees belong to him. Having heard the arguments from the parties in this Appeal together with the grounds of Appeal and the Reply thereto, this court is enjoined to determine one issue. That is who is the rightful owner of the said suit land? The record reveals that the Respondent in this Appeal "Serikali ya Kijiji cha Shina la Ibanda" owned the land in dispute since 1980 until when the dispute arose. From that time the village used the said land. The dispute pertaining to this land started in 2011 when 4 the 1st Appellant cut trees in the suit land. In all other years before 2011 there were no disputes. The Appellants are residents of Kinyala and their grandfather resided at Kinyala Ward. The proceedings of Rungwe District Land and Housing Tribunal further reveals that the Respondent had harvested the trees in the suit land for a quite number of years. The Appellants witnessed the same. The dispute arose when the trees were cut down by the first Appellant (supra). It is due to the incident the Respondents requested to settle the matter amicably and they (the Appellants) prayed to pay Tshs. 100,000/= as compensation to the damaged trees. There was a letter dated 2/4/2011 headed; "YAJ-I: KESI YA KUKATA MITI YA SHINA LA IBANDA". The said letter.reads:- "Ndugu Asumwiye Pangisyagya amekubali kulipa pesa Tzs. 100,000/= (shilingi laki moja tuu), ambayo ameahidi kulipa 9/4/2011 Jumamosi, ameahidi kulipa mbele ya Wajumbe wafuatao: - Emanuel Kitubi Atupale Mwaitulo Mali Kasendo SabeliMakitete S. A. Kanibo A. Kaseba A. Mwakanyamale I. Mwaitete K. Kanali 5 - - 41 Sahihi ya Mlipaji . Sahihi ya Balozi ........................ Sahihi ya Katibu ....................... During trial at the District Land and Housing Tribunal this letter was received by the tribunal and the same was not objected by the Appellants. Also the Respondents produced a minute of the meeting which was set in 1980 on 14th March, showing that Shina la Ibanda Kitongoji cha Igembe Kijiji cha Isumba - Kibole of which among other things, the Agenda was to plant trees as the project of the "Shiria", who is the Respondent in the instant Appeal. The same minute was tendered and received by the Rungwe District Land and Housing Tribunal, the same was not objected by the Appellants. They stated to have known nothing on the said minute, however Joyce Kasebwa, Advocate responded that the same was attached in the Application which was served to them. Isack Mwaitete, (AW2) testified before the Rungwe District Land and Housing Tribunal that the Respondent owned the said suit land since 1980. The Appellant invaded the land by cutting trees and burning them. He further testified that the Respondent started planting trees in the suit land in 1980. The minutes were prepared in 1980 in order to show the people who planted trees in that area. This testimony was also collaborated by that of AW4 Lenald Mwaikanja who testified that the suit land belonged to the respondent. He further stated that he purchased the trees from the Respondent in 2004 and 2006. They were sold by the ten - cell leader. There was no any reaction from the 2nd Respondent. He ( added that the second appellant owned a farm near the suit land which is approximated to be 1.5 acres. This fact was never disputed by the appellants. In the defence, Ismail Asumwisye (RW1) stated that the trees belong to his father the 2nd Appellant. He had used the trees for a long period of time. They were stopped to use the trees by the ten - cell leader. The 2nd Appellant had nothing to tell the tribunal, he rather told the tribunal that he had nothing to add from what had been stated/testified by his son (RW1). In short that is what transpired in the District Land and Housing Tribunal. In his dispute, it is not known whether the disputed land was the village land or the land used by individual family or group of persons under customary law. It is crystal clear that village land is governed by the Village Land Act of 1995, Act No. 5 of 1999 in which all it issues pertaining to the ownership and the use of the land are provided for under Section 7 of the Village Land Act. This is the Land within the boundaries of a' Village registered in accordance with the provisions of Section 22 of the Local Government (District Authorities) Act. The disputed land is alleged to be of the "Serikali ya Kijiji cha Shina la Ibanda". If the disputed land belonged to the said village, then it ought to have appeared before this court as a village, since that 7 village land is all vested to the Village Council. Section 14 of the Village Land Act provides for lands which is or may be held for customary rights of occupancy to be any village land and general land occupied by persons who immediately before the coming into operation of the Village Land Act, held that land under and in accordance with a Deemed Right of Occupancy. In the instant case the Appellants strongly argued that they were the owners of the disputed land and that is why they were sued by the Respondent, "Serikali ya Kijiji cha Shiria la Ibanda" in Application No. 14/2012. They used the same for along period of time. It seems therefore that they owned the said land under a Deemed Right of Occupancy. The Respondents too are claiming the same. The Appellants are strongly disputing the legality of the documents tendered by the Respondent. They submitted that they are forged as they do not bear the rubber - stamp of the Village Office. There is no signature of the Chairman. The Appellants avers that there were no such meetings and after all there is no Igembe Village Council. This moved this court to peruse in the said minutes. Upon perusal I have realized that it is true that there is no Igembe Village Council. The said land is the so called "KitongojL" and there is a document in record bearing the stamp of "Kitongoji cha Igembe". This is the document relied upon by the Rungwe District Land and Housing Tribunal which was neither signed by the Chairman of the said village nor is there the stamp of the village in order to show its genuiness. This creates doubt to as to the authenticity of the document relied in respect of the ownership by the disputed land by the Respondent. It is clear that the Village Land is divided into three main areas as per Section 12 of the Village Land Act. And all those must be known to the Village Land Council. That is the land occupied and used or available for occupation and use on community and public basis as it known as communal village land the land which may be made available for communal or individual occupation and use by any person through a grant of individual customary right of occupancy, or land which may be made available for commercial or individual occupation and use through allocation by the Village Council. In the instant case it is not known in which category the Respondent purported to have acquired such a land in the village of which it is not known by the village authority. Worse, there was no village leader, be it the village Chairman or the Village Executive Officer who was called by the Respondent be to testify before the Rungwe District Land and Housing Tribunal on the ownership of the said land by the Respondent. It is stated in the records that Emmanuel Mbombaga is not a Chairman of the Village. He is rather a ten - cell leader. Therefore it is not known if the said Emanuel Mbombaga is a member of the Village Council who has capacity to say about known the ownership of the disputed land. This court is of the view that if the Respondent owned the suit land since that time, then its ownership would have been determined by the Village Council. There should have been an Application or I record to the Village Council in order to determine that it posses or owns the said land, as it is required by the Village Land Act under ( Section 23 (2) (e) (i) which is to the effect that:- 23 (2) in determining to grant a customary right of occupancy, the village council shall:- (e) Where the Application is from a person or group of persons ordinarily resident in the village have regard to- (i) Where the Applicant already occupies village land under a customary right of occupancy whether the allocation of additional land under a customary right of occupancy would cause that Applicant to exceed the prescribed amount of land which a person or group of persons may occupy in that village. The Respondent in the instant appeal ought to have complied with this provision of the law as it alleges to have owned the disputed land since 1980. Again the disputed land is not found in the Village Land Register as required by Section 21 of the Village Land Act. The same provides that it shall be maintained by the Village Council. In the instant appeal the Respondent avers to have owned the disputed land, while the same is not found in the Village Land Register to indicate that the Respondent owned the same customarily. 10 ( Having seen the irregularities and none compliance with the cited provisions law governing land in villages, I hold that the Respondent in this Appeal is not and has never been the owner of the suit land. It is only by unknown or illegal ways that he wants to own the said land which belonges to the Appellants. Consequently this appeal is allowed with costs. It is so ordered. 4~jw ` A.F. NGWALA JUDGE 10/05/2016 11 Date: 10/05/2016 ( Coram: A. F. Ngwala, J. 1" Appellant: Present 2nd Appellant: Absent (sick) Respondent: Emmanuel Bombagu For the Respondent: Mr. Chapa Alfred (Advocate) Court: Judgment delivered as the presence of the 1st Appellant and Mr. Chapa Advocate for the Respondent. Court: Right of Appeal to the Court of Appeal of Tanzania explained. WI' A.F. NGWALA L-i JUDGE 10/05/2016 1' I,- 12