johnson nicholaus mahagura vs tanzania roads agency tanroads 3 others 2023 tzhc 21108 21 september 2023

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA LAND CASE NO. 09 OF 2021 JOHNSON NICHOLAUS MAHAGURA.................................................. PLAINTIFF (The administrator of the estates of the late NICHOLAUS MUHONI MAHAGURA) VERSUS TANZANIA ROADS AGENCY (TANROADS)................. 1st DEFENDANT CHINA RAILWAY SEVENT GROUP (CRSG).................................................... 2ndDEFENDANT NYIBEREKIRA VILLAGE................................................................................ 3rdDEFENDANT THE ATTORNEY GENERAL.............................................................................. 4thDEFENDANT JUDGMENT 05® g, 21« September, 2023 M, L. KOMBA. J.; JOHNSON NICHOLAUS MAHAGURA, the plaintiff and administrator of the estate of his late father Mzee NICHOLAUS MUHONI MAHAGURA is claiming for sum of Tanzanian Shillings Nineteen Million (19,000,000/=) as a compensation for the unpaid 5,892.43 square meters of the land. The claimed land according to pleading comprises more than 100 trees of different species natural and planted. Uncompensated natural trees which are 150 worth 15,000,000/ and uncompensated land worth 4,000,000/. It Page 1 of 15 is from pleading that, defendants did valuation of the land measured 4,184 and paid compensation to Daniel Nicholaus Mahagura but the evaluated land is part of what the late Mzee Nicholaus Muhoni Mahagura owns. 3rd Defendant claims to own the land measured 5,892.43 square meters and benefited from compensation action which is complained of the plaintiff. The plaintiff pray for judgement and order as follows; (i) That this Honourable Court be pleased to declare that the acquired land by the first and second defendants for the road construction purposes is the property of the late NICHOLAUS MUHONI MAHAGURA under the administration of the plaintiff. (ii) That this Honourable Court be pleased to declare that the third defendant has no any colour of right and ownership over the disputed piece ofland. (Hi) That the defendants jointly and severally be ordered to pay the plaintiffa principal sum Tanzania shilling Nineteen Million (TZS. 19,000,000/=) for uncompensated crops and piece of land measuring 5,892.43meter squares. (iv) That the defendants be ordered to pay genera! damges to the plaintiff at the assessment made by this Honorable Court. (v) That the defendantsjointly and severally Zze ordered to bear the costs of this suit. Page 2 of 15 (vi) Any other reliefs this Honorable Court deems Just and fit to grant. Defendants on their side had different stories and were grouped into two. The 1st, 3rd and 4th defendants filed joint Written Statement of Defence (WSD) where they said plaintiff's land was compensated and the 3rd defendant was also compensated on her own land and therefore, the 1st defendant has discharged her duty of paying compensation. On the other hand, the 2nd defendant in his WSD started that he is employees of the 1st defendant and has no duty of paying compensation to anybody. All defendants prayed this court to dismiss plaintiff's claim with costs. Following antipathy among them, parties have agreed on two issues to be proved in determining the matter; 1. Who is the rightful owner of the disputed land. 2. What reliefs) Ifany the rightful owner is entitled. During hearing of the suit, plaintiff had a legal service of Mr. Viane Mbuya, an advocate, 2nd defendant was represented by Mr. Emmanuel Mtumbuka, Human Resource Officer and the 1st, 3rd and 4th defendant were represented by Ms. Neema Mwaipyana, Mr. Kitia Toroke, Mr. Anesius Stewart Kamugisha and Mr. Abdalah Makulo all being State Attorneys. Page 3 of 15 Plaintiff was the first to testify as PW1 who under oath, informed this court that he is administrator of the estate of his late father Mzee NICHOLAUS MUHONI MAHAGURA as evidenced by Exhibit Pl (Letter of appointment of administrator of the estates) and that his father owned a piece of land measure 2.5 acres which he was given by the late Mzee Mboye Mwanche way back in 1971. According to him, 1st defendant (TANROAD) valuated only 1.0 acre and compensated the family member via one of the family members (Daniel Nicholaus Mahangura). Being an administrator, the plaintiff made follow-up of the estate of his farther and discovered that they were compensated only 1.0 acre and the remaining 1.5 acres was claimed by the 3rd defendant (Nyiberekira Village) to be her property. He testified that the family has been in the disputed land for almost 49 years and they planted trees and used water for domestic purposes and they offer to the community. During cross examination he testified that he doesn't have evidence to prove that the land was offered to his father by Mzee Mboye Mwanche but he was present on that day. He confessed that they did not involve village leaders when they were given the said piece of land but he remembered some of their neighbours at the disputed land are Kisima cha Mhindi, Mr. Page 4 of 15 Chacha, Mr. Mayala, Mayinga Marwa and Mohamed Songambele. He further informed the court that family area was supervised by Mr. Daniel Mahagura and is used by Jackson Nicholaus Mahagura up to the year 2020 when taken by TANROAD and that Daniel participated in village meetings concerning compensation by that time he was not appointed as administrator. He confessed his claims are estimation as he is not a valuer and pray this court to award what he is entitled. Jackson Mahanya Mahangura was PW2 who testified that Nyiberekera Village council has trespassed to the estate of Mzee NICHOLAUS MUHONI MAHAGURA measures 1.5 acres which was part of 2.5 acres which was given to his farther by Mzee Mboye Mwanche although he doesn't remember in which year as he was born found his father in that land. According to this witness, the dispute arose in the year 2020 when the village council claim to own the disputed land which has two bow holes, fruit trees and seasonal crops. It was his further testimony that the areas were taken by the 1st defendant but it was the 2nd defendant who put her i structures over the said land. He informed this court that they started the legal process to appoint administrator of the estate who is Johnson Nicholaus Mahangura, his Page 5 of 15 brother and he was the last born in that family. He proceeded further that the disputed land which is 1.5 acre was valuated using the name of another person (village council). He also prayed this court to award what is their entitlement. In cross examination, this witness informed this court that he was informed that the area was given to his father by Mzee Mboye Mwanche and insisted that since he was born the family has been in use of the said land. He further informed this court that during evaluation leaders cut the family area into two pieces and identified only one piece to belong to the family. After paraded two witnesses the plaintiff prays to close his case and pave a way for defendants to defend. DW1 (Hamisi Machandi for the 1th, 3th, and ^Defendant) is a village chairperson of the Nyiberekera village since 2017. Under oath he informed this court that he has just heard the dispute while is in court but complainant (plaintiff) did not report to the village office over his claims. He came to know that plaintiff is complained of the compensation over a piece of land, the process which was supervised by the TANROAD. As a chairman he called a meeting and villagers were informed of the intention Page 6 of 15 of the TANROAD and all affected people participated in identification of their areas. This witness testified that among the area affected with valuation is owners of the areas which are found within 60 meters from the source of water and the village council benefited from that. The resolution to allow the 1st defendant to acquire land was done through the public meeting which was conducted on 13/09/2020 (Exh DI). He further testified that the head of the family of Mzee Muhoni Mahagura who is the brother of the plaintiff (Daniel Mahangura) participated in the familiarization meetings and identified their area with demarcations. He said the disputed part of the land is within 60 meters from natural spring and is owned by the public and trees planted in that area were planted and maintained by the community. DW1 acknowledged that plaintiff's family had a plot of land which is estimated to be one acre which was identified and they were paid. He said they never complained of and pray this court to disregard the claims as plaintiff never paraded neighbors to testify that the area belongs to their late father. During cross examination this witness informed the court that he reported in the said village in 2017 and found some trees on the disputed land and Page 7 of 15 other trees were planted after year 2017 while this witness was in power. He confessed he don't know who planted some of the trees but maintained that no human activities are allowed within 60 meters from the source of water. He confessed that the disputed land was valued and it was the village who benefited via village account. DW2 was Mr. Emmanuel Mtumbuka for the 2nd defendant testified that their company was employed by the 1st defendant under contract to construct a tarmac road from Sanzate to Nata area. He said their duty is to construct road and that all properties belonged to TANROAD. It was his further testimony that the company was allocated land for construction purposes and they are still in contract as they are yet to handover the project. He found plaintiff has no cause of action against the second defendant. During cross examination by plaintiff's counsel, he elaborated that buildings which are found in the disputed land belong to TANROAD and that the second defendant was just allocated with the area for office construction. He clarified that the relationship between the second defendant and the first defendant are an employee and employer relationship. Page 8 of 15 After this court finalize hearing of witnesses, Mr. Kitia, State Attorney prayed to file final submission, the prayer was supported by the counsel for the plaintiff. This court granted time for the parties to file final written submission. After the summary of testimony of witnesses, it is now time to deliberate on issues. The first issue for deliberation is who is the rightful owner of the disputed land. The principle is the same that who alleges must prove and this being the civil case, standard is to the balance of probability. See section 3 (2) (b) of the Evidence Act, Cap 6 [R.E 2022] and the case of Ikizu Secondary School vs Sarawe Village Council (Civil Appeal 163 of 2016) [2018] TZCA 387 (13 December 2018). From pleading and submission, the second defendant submitted that he is employed by the 1st defendant and was given land for temporary occupation as they perform their construction duties. I find plaintiff has no cause of action against the second defendant. PW1 testified that the land was given to his late father by Mzee Mboye Mwanche since 1971, although plaintiff did not parade any witness who was present during the said offering, defendants did not deny neither Page 9 of 15 disputed the said fact. In their final submission plaintiff submitted that the area has been occupied and developed by the plaintiff's family for more than 50 years and it is trite that whoever being in possession or otherwise use of a specific landed property undisturbed for a consecutive of twelve years becomes the right owner of the said landed property under the adverse possession principle. This principle is clearly incorporated in our laws stating the limitation of time in a suit to recover land is twelve (12) years as provided for under Item 22, Part I of the First Schedule of the Law of Limitation Act [Cap.89 R.E. 2019]. Being in possession for more than 50 years entitle them to be owners although there was no proof of handing over the land from Mzee Mboyi, as said the fact was not disputed. Both plaintiff's witnesses had similar story, the PW2 testified that since he was born he found the family using the disputed land and other land the total of 2.5 acres. Claiming ownership, DW1 who testified for the 1, 3 and 4th defendant testified that the affected area during evaluation was the area which has source of water as the law forbid human activities within 60 meters so the areas according to him must be owned by the village council and it was the village who benefited from compensation. In their final submission the 1st, Page 10 of 15 3rd and 4th defendant adduced that disputed area is protected under section 57 (1) of the Environment Management Act of 2004 because it is within 60 meters. Furthermore, they submitted that under section 10 of the Water Resources Management Act No.ll of 2009 ownership and management of water resources is vested in state and therefore, the plaintiff can neither claim ownership of the suit land nor compensation. This was the base of defendants defence. I had time to read the Environment Management Act, the act was enacted in 2004 but its application date was to be determined by the Minister as per section 2. In normal circumstances its application shall be prior to its enactment. To satisfy myself on that, I have read the Objects and Reasons for enactment as prepared and read during enactment, there is nowhere legislature were notified that the Act will operate retrospective. Upon such confirmation then, this court finds that both legislations were enacted and found Mzee Nicholaus Muhoni Mahangura in possession of the disputed piece of land. Is the disputed land have a source of water? Plaintiff testified that the two bow holes were drilled by the family. Defendant maintains that there is a source of water that no human activities is allowed within 60 meters. When 1st defendant has an activity, she was allowed to acquire land and pay Page 11 of 15 compensation and it was the 3rd defendant who was compensated. The acquired land is now utilized by the 1st defendant who make structures which are used by the 2nd defendant. To my understanding, a source of water has to be maintained so that community could benefit from that water. Further, no activities are allowed within 60 meters just as submitted by defendants. But the 2nd defendant has made permanent structures. If at all the area had a spring or well or any source of water which defendants did not mention, it could not be possible for the 2nd defendant to make structures and permanently acquire it. I am not saying source of water should not be protected but the disputed piece of land has no source of water by meaning of the Environment Management Act that's why it was acquired by the 1st defendant instead of being protected. The 1st, 3rd and 4th defendants had new submissions in the final written submission, that plaintiff failed to call material witness who witnessed when the late Mzee Nicholaus was given land permanently by Mzee Mboye Mwanche and Daniel Nicholaus, the brother of the plaintiff who received compensation before the appointment of the administrator. Further, about the size, description and location of the disputed land. They submitted that the description of the disputed land is provided under paragraph 6 of the Page 12 of 15 plaint which has been mentioned to be 5,892.43 square meters out of 10,077.03 square meters but the location and the boundaries is not known as per the plaint which is contrary to the legal requirement for the disclosure of the location of the disputed land as the court will not be informed exactly of the disputed land and cited the case of Simon T. Mwanibanza vs. Amins Mwakalukwa, HC Land Appeal No. 74 of 2021 at Mbeya (unreported). I have said the 1st, 3rd and 4th defendants raised new submission due to the fact that in their WSD defendants were claiming the disputed area is protected as it has source of water. The story has been re-iterated in five paragraphs out of ten and none of them was about boundaries. This is afterthought. However, this court finds that, circumstance of this case does not demand location as the valuation has already been done and all affected people managed to identify their areas even the disputed land had been identified, so I find the issue of boundaries and demarcations are immaterial at this juncture. As defendants kept on justify ownership of land as it has the source of water and all of the paraded witnesses admit that they acquired the disputed land as it has source of water, I read the Environment Page 13 of 15 Management Act and find it started to operate on 2004 which means when the law was enacted the late Mzee Nicholaus was in possession of the said land. He was supposed to be compensated and alienate him from the source of water which was not done by the defendants till in 2020 when the issue of compensation arises. From pleading and submissions, the disputed land was occupied by the plaintiff's family till 2020. So far as the cited law regarding protecting water source came into operation 33 years after Mzee Nicholaus possess the land, this court finds the Plaintiff has genuine claims that he is the rightful owner of the disputed land. If the defendants found the area had a source of water, then in 2004 could have notified the plaintiff and inter into possession as the law dictates but they did not. From the above analysis, I find the plaintiff is the rightful owner of the disputed land. This is the position regarding the first issue. Now, what reliefs does parties entitled, plaintiff is claiming for the compensation of family area measured one and a half hectors equivalent to 5,892.43 square meters which had various trees. So far as the area was identified, land and crops (trees) were valued and the 3rd defendant benefited, and so far as the plaintiff prayer during hearing of the suit was Page 14 of 15 to be compensated what they are entitled, it is the finding of this court that the plaintiff to be paid the same amount paid to the 3rd defendant. Being done with issues now this court orders as follows; 1. The plaintiff is the rightful owner of the disputed land, that is the property of the late Mzee Nicholaus Muhoni Mahagura. 2. The 1st, 3rd and 4th defendants to pay plaintiff the value of the land acquired to the tune of Tsh.13,003,175/= as indicated in the part of valuation as submitted by them. 3. The 1st, 3rd and 4th defendants to pay interest on decretal sum of 7% from the date of judgment till when the decree is fully satisfied. 4. The 1st, 3rd and 4th defendants to pay costs of the suit. It is so ordered. DATED in MUSOMA on this 21st September, 2023. M. L. KOMBA JUDGE Page 15 of 15