JULIUS KWEBA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA SUB REGISTRY) AT MWANZA LAND APPEAL NO. 22 OF 2023 (Arising from Ukerewe District Land and Housing Tribunal in Land Application No. 10 of 2010 dated 20/07/2022) JULIUS KWEBA................................................................... 1st APPLELLANT MASUMBUKO KALULU......................................................... 2nd APPELLANT MAKAO HERMAN.................................................................. 3rd APPELLANT VERSUS THE REGISTERED TRUSTEES OF SEVENTH DAY ADVENTIST CHURCH................................................ 1st RESPONDENT UKEREWE DISTRICT COUNCIL.........................................2nd RESPONDENT ELFAZI TUNDALI WILLIAM (Administrator of the estate of the late KWEBA CHILYA)................................. 3rd RESPONDENT MUNGWE PAULO.............................................................. 4th RESPONDENT KINJO MSIRIKALE MUYANJA........................................... 5th RESPONDENT ALOYCE BARTAZARY MAKAKA (Administrator of the estate of the late BARTAZARY MAKAKA........................... 6th RESPONDENT REGINA HERMAN (Administrator of the estate Of the late HERMAN MANUMBU).................................... 7th RESPONDENT JUDGMENT 19h August & 1st November, 2024 A. MATUMA, J. In the District Land and Housing Tribunal for Ukerewe, the first Respondent herein sued the Appellants and the rest respondents for land ownership at Nakatunguru Ukerewe. She alleged that she was allocated the suit plot by the 2nd Respondent way back in 1997 after she had applied for a piece of land. According to her, she was required to pay compensation to the indigenous who resided in that land namely Kweba Chilya (3rd Respondent), Mungwe Paulo (4th Respondent), Bartazary Makaka (6th Respondent) and Herman Manumbu (7th Respondent). That she paid the requisite compensation but the said natives refused to vacate and instead invited the rest respondents to trespass into the suit land. After the full trial the trial tribunal adjudged in favour of the first respondent herein by declaring her as the lawful owner of the suit land and ordered vacant possession against the appellants among others. The appellants were aggrieved with such decision hence this appeal with a total of four grounds whose complaints are to the effect; i. That the evidential weight of the appellants was not properly considered. ii. That the nature, quality and entire evidence was not properly analysed leading to deciare the 1st Respondent as the owner of the suit land. Hi. That the 1st Respondent was wrongly given right to the suit land which she does not deserve. iv. That it was wrongly adjudged that the appellants were paid compensation without evidence Pothat effect. 2 At the hearing of this appeal, Mr. Frank Obed Kabula learned advocate represented all appellants. The 1st and 3rd appellants were also present. Mr. Elias Hezron learned advocate appeared for the 1st Respondent. The 3rd, 6th and 7th Respondents were present in person while the 2nd, 4th and 5th Respondents were absent without any notice. Mr. Frank Obed Kabula learned advocate submitted the four grounds together arguing that it was wrong for the trial tribunal to order the appellants to vacate the suit land on the ground that they were paid compensation while there was no evidence to that effect. He added that according to the evidence on record the 1st respondent paid the money Tshs. 2,817,517/= to the 2nd respondent vide check no. 003157044 on 13/10/2005 but no evidence was given to the effect that the appellants who own the suit land were paid such compensation. Mr. Elias Hezron learned advocate on his part, argued that the requisite compensation was paid to the 2nd respondent as the law requires and such payment was acknowledged by the 2nd respondent through receipt exhibit SDA3. The learned advocate further argued that in accordance to the evidence of DW2 the officer from Ukerewe District Council only the 3rd, 4th, 6th and 7th respondents were on the suit land prior to the reallocation and they are the one who deserved to be paid-cdmpensation. In that respect he 3 argued that the appellants were not paid compensation because they were not owners of the suit land. I paused an issue to the learned advocate on whether the issue of ownership was drawn and determined during trial overruling the appellants to the effect that they did not deserve compensation because they were not owners of the suit land. The learned advocate respondent that such issue was not drawn nor determined and as such he prayed to abandon his arguments that the appellants were not paid and changed the arguments to reflect that they were paid the due compensation. The 3rd, 6th and 7th respondents on their part submitted in support of the appeal adding that even themselves were not paid compensations to their respective lands. In his rejoinder, the learned advocate for the appellants argued that since the first respondent was the applicant in the trial tribunal, she was duty bound to prove that the appellants were dully paid the requisite compensation but did not discharge such duty. Having heard the parties for and against this appeal, I find that during trial there was no dispute as to whether the appellants among other respondents at the trial had interest in the Suit land. That is why the issue 4 of ownership was not drawn nor determined. The issues framed only intended to determine whether the 1st respondent had a duty to compensate the appellants and their fellows and whether she fulfilled such duty and thus entitled to vacant possession. The trial tribunal in its judgment at page 13 determined the first issue in the affirmative that the first respondent was duty bound to pay compensation to the appellants who were found in the suit land. It even named the names of those who deserved compensation. Just to quote the said judgment; "Nikianza na kiini cha kwanza cha mgogoro kinachosema kwamba Je Mdai alikuwa na kazi ya ku/ipa fidia kwa wadaiwa? Ninaona kiini hiki cha mgogoro kinajibiwa ndio kwa sababu mdai alikuwa na jukumu ia kuiipa fidia kwa Herman Manumbu mdaiwa na. 8, Mungwe Paul mdaiwa na. 4, Masumbuko Kakuiu mdaiwa na. 7, Bartazar Makaka mdaiwa na. 5 na Julius Kweba mdaiwa na. 3 ambao ndio waiiokutwa kwenye eneo ia mgogoro kuiingana na Ushahidi uliotolewa na mdai". The first and second appellants are named as among those who deserved compensation. The 3rd appellant is not named there although there was no issue drawn as to whether he was on the suit land prior to the alleged reallocation. In that respect he was denied hjs right to be heard and adduce evidence to that effect. In the circumstances I include him to the list of those who deserved compensation and thus making all the three appellants to have deserved such compensation. The only issue to rest this appeal is therefore whether the appellants were paid the requisite compensation. While the appellants maintained that they were not paid the first respondent maintain that she paid such compensation. The evidence brought and which had no dispute is that the first respondent having applied for land for her religious activities she was allocated the suit land which was in occupation by the appellants and their fellows. The first respondent was required to pay them compensation in which the valuation was made. She paid the money in accordance to the valuation Tshs. 2,817,517/= to the 2nd respondent and not to the appellants themselves. That was wrong because it was not a question of land acquisition by the government so that the government pays due compensation. It was a private need of land by the first respondent who ought to have consulted the owners of the land and acquire such land from them peacefully. Instead, she consulted the second respondent who also allocated her the appellants' land without their prior consultation and consent. 6 In the case of Village Chairman - KCU Mateka v. Anthony Hyera [1988] TLR188 Mms court (Kazimoto, J.) made a lucid decision which I fully subscribe in the instant matter in that; common sense and equity forbids the land allocating authority to re-allocate land within its jurisdiction which is under the possession and development of another without prior consultation to the person in possession of the said land. My learned brethren Kazimoto, J. as he then was further held that allocation of land which is in possession of others would not only bring lawlessness and anarchy in the society but would also retard the developments of the society. Not only that but also in the case of Judith Yoas & 15 others v. Kibaha Housing Cooperative Society Limited (KIHOCOSO), Land Appeal No. 19 of 2017(HC land Division-Dar es salaam), this court condemned the characteristics of colonialism among them land degradation; ",..... to grab one citizen a land and give it to the other without justifiable cause, the same amounts not only to discrimination but also to oppression, land degradation and humiliation which were among the characteristics of colonialism". In the instant matter, the second respondent arbitrarily allocated the 1st Respondent to the suit land which was under possession of the appellants 7 among others and directed valuation and payment of compensation but yet the valuation made and the amount paid were not paid to the relevant people, the appellants. It was paid to the second respondent and no evidence was given during trial to establish that such payment was finally given to the appellants. Since the appellants were not given the requisite compensation, I find that the first respondent is not entitled to acquire their respective pieces of land. The appellants have legal right to enjoy their respective lands and develop them. The first respondent is ordered not to harass the appellants and if she is still in need of such land, she must use the available legal mechanism in acquisition of land which is possessed by another. Government institutions should not be used as a tool to grab land from individuals for private interests of other individuals or institutions as it was held in the case of Agro Industries Limited vs. Attorney General [1994] TLR 43 in which the court of Appeal of Tanzania held against arbitrary decision of those in authority to deprive land from one person for interests of another person which is not in the public interest. It held that the subsequent person in the allocation becomes a trespasser be it a public enterprise, a private enterprise or an individual. In the instant suit the allocation of the suit land to the 1st Respondent which was in occupation of the appellants-was not done for Public interest 8 but it was done for interests of a trespassing private institution. It is upon such unbearable actions of land authorities, the Court of Appeal in the above-named case (Agro -industries) held that; "Public interest requires that legal property rights should be protected against trespassers...." With such guidance I am obliged to protect the property rights of the appellants against the first Respondent who is a trespasser thereat. Having said all these, I do hereby allow this appeal with costs. To that effect the trial tribunal's judgment is hereby quashed and the decree thereof set aside. This judgment is however restricted to the appellants who have appealed in this appeal. Those who did not appeal are not favoured by this decision as rightly argued by Mr. Elias Hezron in that in case this court finds merits in this appeal it should not extend to those 9