JAPHAT NDAKAMAZE 11 OTHERS vs KASULU TOWN COUNCIUL AND ANOTHER LAND CASE NO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND CASE NO. 40 OF 2023 JAPHAT NDAKAMAZE AND 11 OTHERS .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS KASULU TOWN COUNCIUL AND ANOTHER .............................. RESPONDENT / DEFENDANT JUDGMENT RWIZILE, J, The 12 plaintiffs, instituted this case against Kasulu Town Council. Their dispute centres on the pieces of land allegedly owned by the plaintiffs located in Luhita ward in Nyamiyumbu street of Kasulu. It was alleged by the plaintiffs that before 2020 they peacefully enjoyed the use of their respective lands, which they acquired by purchase and or inheritance from their parents, since the 1960s, until when the 1st defendant instructed them to give vacant possession, on pretext that the land belongs to the government. This case was therefore filed claiming for the following orders; 1. That the plaintiffs be declared rightful owners of their landed property 2. That from the effect of the orders from the local government, the plaintiffs be compensated 3. Costs of the case and, 4. Any other reliefs the honourable court deems just and fit to grant At the hearing, which was conducted by witness statements in terms of Order XVIII Rule 2 of the Civil Procedure Code, all parties were duly represented. The plaintiffs were represented by Mr. Michael Mwangati learned counsel, while Mr. Celestine Ngailo learned State Attorney appeared for the defendants. It was agreed that, this court determines three jots, namely, first, who is the rightful owner of the suit land? Second , if the plaintiffs are entitled to any compensation and, third to what reliefs are the parties entitled to? To be able to determine, these three key questions, each of the plaintiffs, cast with the onus of proving the rightful ownership testified except the 9th plaintiff. Based on the nature of the case, and the manner in which the trial was conducted, this court will for sake of clarity and reference, go through the evidence of the plaintiffs albert brief. Page. 1 Japhet Ndakamaze (Pw1) is the 1st plaintiff. He claims 10 acres of land in two plots which were acquired by inheritance from his father, a plot of 5 acres said was bought from Mvumbagu in 1987. He said Mvumbagu had acquired it in 1964 by clearing the land and taking possession. As to the land he inherited from his father, it was his evidence that his father bought it from Mzee Bihogora, who also had acquired it in 1964 by clearing the forest and taking possession. The land, he testified, is neighbouring Elias Nilukilo in the North, on the East is Shaban Goma, on the West is William Madibu, while on the South-East is Kasindi Bidaga’s Family. In the land, he planted Mangoes and other crops which are over 20 years now. To prove the land is his property he tendered an agreement approved by the street leader when he used to rent part of his land to the farmers from Bukoba. It was admitted as P1. Image not found or type unknown Image not found or type unknown Image not found or type unknown Image not found or type unknown Image not found or type unknown Mashaka Rashid (Pw2) is the 2nd plaintiff. His evidence is that, he owns 30 acres, he got from his brother who as well got it from his brother Kurubone Mwete Gaponda after he relocated to Shinyanga in 1999. The said Kurubone, he testified, cleared the forest and took possession in 1974. Its neighbouring land is property of Mzee Madilu, Kasimbi Bidaga, Japhet Ndakamaze,Sokoloza Moyonyele on the East, Sesilia Rukoma and Mbondo College on the West, Agnes Binyungu on the North and Ezrom Mwengo on the South. And that he has been using that land since then until asked to vacate. Sesilia Rumoka -Pw3, is the 3rd plaintiff. In her witness statement she testified that, her land which is 32 acres was inherited from her father, who acquired by clearing the bush/forest and then took possession in 1964. She said, therefore, that the land was used since she was born 1969 and that they have planted all sorts of crops. She said, it is bordered by Ezrom Mashaka on the south side, Nadundi on the North part, the road from Ruhita to Mbondo University of Agriculture on the East and Zuka on the West. Upon her father’s death a meeting was held by family Page. 2 members which is admitted as exhibit P2. And a letter from the street executive officer to TANESCO approving her for compensation after part of her land was taken by the National Grid. It was admitted and marked P3. Kasumari Mayogera, Pw4 is the 6th plaintiff. His evidence was that the land in dispute is 6.5 acres which he bought from Anderson James in 2003. He further testified that, Anderson James bought it from Stephano Karabwe who had cleared the forest and took possession in 1964. He said, the sale agreement was lost. To prove that the agreement was lost, he tendered a loss report exhibit P4. He said his neighbours are Mzee Mnazi, Ndundanyi and Abel William on the Noth, Kasase and Rukoma on the West, CCI church plots and Ruhita P/School on the East, while Ruhita river is on the West. He also tendered a letter/call from the WEO who forced him to vacant his land. Gervas Ndalengwa(Pw5) is the 11th plaintiff. He testified that he obtained 2.5 acres of land in 1964 by clearing the forest and has been using it since then. His land which is asked to vacate is bordered by Mboza on the East, John Kilala and Chuo Cha Kilimo on the West, on the south is Ezekiel Ndijuaye and Ziki, and on the North is Patrick Shikiye. On his Part, Patrick Shikiye (Pw6) who is 4th plaintiff testified that, he inherited 6 acres of land from his father who had cleared the forest and took possession in 1964. He said, his father died in 2011 and he peacefully used that land for all that time until 2019 when he was asked to vacate. The disputed land according to him, is bordering the Mbondo College on the North, Madumbi on the South, Mbondo to Ruhita raod on the West and River Nyamihongo on the East. Dominico Madumbi (Pw7) is the 8th plaintiff, whose evidence is that, his land 30 acres is his inheritance from his parents. He testified, he has used and is living there and his siblings throughout his life. He said his father took possession of it after by clearing the forest 1964. He testified, the land is surrounded by the following neighbours; South is Lumoko, East Patrick Shikiye, Kasulu road on the East and Alfred Nyanzanza on the west. Shedrack Sabukuru(Pw8), who is the 7th plaintiff also testified, he told this court in his witness statement that his 2.5 acres of land was purchased from Petro Njumbura (12th plaintiff) in 1990. It was an oral agreement, he testified. He also said, bought another 1.5 acres for his son Oraph Shadrack in 2019. All land belongs to his son Oraph Shadrack, but it is under his supervision. He tendered a purchase agreement exhibit P7 and supervision agreement from his son exhibit P6 and P5. He further testified that, Ezrom Mwengo borders him on the north, Petro Njumbura on the South, Ruhita River on the East and road from Ruhita to Mbondo Collage on the West. Ezrom Bwelu Mwengo (Pw9) is the 5th plaintiff. In this case he testified that, he owns 19 acres which he acquired through purchase, from one Nguvumali Tabula in 2003. The land which borders Shadrack Sabukuru on the southern side, the road from Kasulu to Ruhita on the north, western part, is Longo Nzogera, and on eastern side is Ruhita River. Eligence Barunguza(Pw10), the 10th plaintiff. His evidence is that he got the land equal to 1.5 acres as gift from Danford Zakaria Binobela in 2002, who also had acquired the same by clearing the forest in 1964 and took possession. That his land is bordered by Jackoni Makirio, in the southern side, Jeremia Kalokaza on north, west is Eliza Ntahindwa and east is Isaya Kasunga. Page. 3 Petro Njumbura(Pw11) who is the 12th plaintiff, whose evidence is that, his claim is 6 acres of land which he has been in possession for 60 years since 1964. He said in 1990, he sold party of it to Shadrack Sabukuru. According to him, his land is surrounded by Tabula Guvumali on the north, Shadrack Sabukuru on the west, Kasulu roa on the south and river Ruhita on the east. Last is Deus Kabibi Ntabhandi (Pw12). He said is the councillor of Ruhita since 2015. He testified that the land in dispute belong to the farmers and the government has refused to speak to them. Like the plaintiffs he asked this court to give judgement for the plaintiffs. The defence case was heard in a different way. Due to constraints of time to filed witnesses’ statement for the defence in compliance of the law, this court decided defence witnesses be heard orally. 4 witnesses were called to testify. They are Japhet Luhande Gwakila (Dw1), Madwidwi Nikela (Dw2), Herman Kiledya Mpihigwa, and Managwa Boaz Josia (Dw4). In all the first three defence witnesses lived in the village for decades. They told the court that the plaintiff are not owners of the land in disputed because it belongs to the village. They said not doubt the land in dispute was trespassed into by the plaintiff and some have sold the same to the rich people from Kasulu. But originally, they said the same was left for grazing and cemeteries. Dw4 is the ward executive officer who attended a general meeting of the village held on 25th April 2023, chaired by the Kasulu Town director admitted as D1. It was according to him that , it was resolved by evidence that the land in dispute has never been property of private individuals. He asked this court to dismiss the case. Upon having gone through the evidence of both sides. I have to say, a long-standing common-law principle that he who alleges must proves applies in all civil case as this one. It is plain therefore that the plaintiffs are cast with the duty to prove that the land in dispute belongs to them. The plaintiffs filed one case, but there is no pleading showing that they owned the land jointly, neither do they claim so in their evidence. Each plaintiff therefore is cast with the duty to prove his or her own case. The record has it that, 12 plaintiffs filed one plaint. They are all represented by Mr. Mwangati learned advocate. It is clear that not all 12 plaintiffs testified. The 9th plaintiff did appear to testify. There is no evidence whatsoever even in the pleadings that state anything about his claims. His witness statement was filed but struck out due to his absent. It follows therefore that his case is dismissed for want of evidence. Tracking evidence of the plaintiffs, one by one, I have to say, prima facie, the, 5th (Pw9), 7th (Pw8) and 10th (Pw10) plaintiffs did not have evidence to show they have a good case. 5th plaintiff-Ezrom Mwengo simply said, he bought land from Nguvumali Tabula, he did not call the same to testify or even tender any document to prove so. Eligence Barunguza-10th plaintiff said, he bought land from Danford Zakaria Binonela in 2002. He too, did not call him or any other witness to testify, and did not tender any document. Shadrack Sabukuru on his party said, the land was bought by him from different people and given to his son. However, he did not hold powers of attorney to claim for the land that belongs to his son on his behalf. Exhibits he Page. 4 tendered showed how it bought and that he holds it, in the instructions of his son, but none of exhibits P5, P6 and P7 is the power of attorney. He did not even sue as a next of keen, if his son is minor. But worse still he did not disclose the age of his son. The rest of the plaintiff testified and there is evidence that raises important things to be analysed in comparison with the defence case. The common thing among plaintiffs’ evidence is that all of them alleged got land from inheritance, purchase or as a gift. But all got the same land in 1964 upon their fathers, cleared the forest and took possession. I think this is not most likely that all plaintiffs are connected to that land in dispute that way. Pw1 said, he bought land from Mvumbagu in 1987 and Bihoroga who had acquired it in 1964 by clearing the forest. Pw2 said got it from his brother Kurubone Mwete but did not call him to testify or call any other person in support. Pw3 said, she got from her father who had cleared the forest and took possession in 1964. Pw4 said, he bought from Anderson James, who cleared the forest and took possession in 1964. Pw5 and Pw6 also alleged got their pieces of land in 1964. While Pw5 was clearing the bush and taking possession, Pw6 just inherited it from his father who too cleared and took possession. The same also applies to Pw7, Pw10 and Pw11. In terms of the defence case, Dw1, Dw2 and Dw3 also residents of the same village disputed that fact that the land in dispute was ever occupied by any person. It was their evidence that the land dispute borders the college and it has never been allocated to any person. It is therefore a general land right from those years of operation. To support their evidence Dw4 tendered the minutes of the village general meeting showing deliberations of the residents. In the same minutes which is detailing how the village land was allocated to individuals and the general land that remained. It is shown and agreed that the same land was property of the village. Those present in the same land went in by deceit, they trespassed into. The land according to them which is allocated for agriculture is close to the river and there is farming activities taking place. Based on the evidence as shown I do not think; the plaintiffs have adduced sufficient evidence to prove ownership of the said disputed land. It is for this reason, I hold this case must be dismissed as hereby do for failure to have it proved. Based on the nature of the parties I find this a fit case to order each party to bear its own costs Dated at KIGOMA this 13th of December 2024 . A. K RWIZILE JUDGE OF THE HIGH COURT Page. 5