LAND CASE NO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA (CORAM: HON. AUGUSTINE RWIZILE) LAND CASE NO. 12 OF 2023 MAHONA JOEL MAGEMBE ......... COMPLAINANT ! APPELLANT ! APPLICANT / PLAINTIFF VERSUS LAKE TANGANYIKA BASIN WATER BOARD RESPONDENT!DEFENDANT JUDGMENT Fly Notes Facts Ratio Decidendi 20th of August 2024 Hon. RWIZILE.: The plaintiffs are natural persons residing in two different villages of Mpeta and Mliabibi in Uvinza district of Kigoma Region. Seemingly, they have been apart from doing other things, growing different cereal crops along Malagalasi River and have claims of ownership over pieces of land through purchase and succession. It was alleged, the plaintiffs peacefully enjoined the fruits of their land until when the first defendant in 2022, acting under the Lake Tanganyika basin, appeared and started to fix beacons in the protected river basin. In doing so, it was alleged, she went beyond sixty meters required by the law and therefore trespassed into their farm lands. Therefore, the plaintiffs initiated this action against the Lake Tanganyika Basin Water Board, Mpeta village Council, Uvinza District Council and the Hon. Attorney General, jointly and severally praying for the judgment and decree in the following terms: - 1. A declaratory order that the plaintiffs are lawful owners o f theirfarm lands. 2. A declaratory order that the 1st and the 2nd defendants trespassed into the plaintiff farms exceeding sixty (60) meters into plaintiffs 'farms. 3. An order fo r adjustment o f the planted beacons to sixty meters back towards the riverbank and from the plaintifffarms. Page. 1 Hon. AUGUSTINE RWIZILE 4. Subject to any law into force perpetual injunction restraining the defendants from further trespass. 5. General damages to be commensurably assessed by this Hon. Court. 6. An orderfor costs of this suit. The defendants resisted the claim contending that the plaintiffs trespassed into the Lake Tanganyika water basin. And that they were not legally allocated the suit lands and therefore have no better title in the alleged land. At the first hearing, three issues were framed by the court and agreed by the parties as follows; I. Whether the plaintiffs are the lawful owners of the suit land. 2. Whether the defendants trespassed into the suit premises 3. To what relief are the parties entitled to. When the same was due for hearing, the plaintiffs’ case was mannered by 6 witnesses, namely, Mahona Joel Magembe (Pwl), Norbert Mande Mchele (Pw2), Kulilo Kulola Nyamgenda (Pw3), Laurent Mahepa Mkonongo (Pw4), Sumaku Matogolo (Pw5) and Balele Sumaku Matogolo (Pw6). On the side of the defendants, it was Ally Juma Kisila (Dwl), Elia Nassoro Kaswiza (Dw2), Erasto Daudi (Dw3), Stanslaus Othiambo (Dw4) and Odemba Cornel Ododa(Dw5) who testified. The plaintiffs were represented by Mr. Sadiki Aliki learned advocate, while the defendants were under the services of Mr. Arnold Simeo learned state attorney. After the hearing, there were closing submissions filed in time by both parties. It is pertinent to note that the submissions have dealt with issues of law and facts, and I commend the learned attorneys for their helpful submissions which I will refer along with the evidence by the witnesses mentioned above. First issue. Whether the plaintiffs are the lawful owners of the suit land. To prove the plaintiffs are lawful owners of the suit land, is a matter of evidence. In short Pwl is the 1st plaintiff who testified that, he acquired land at Mawasiliano Mpeta that measured 36 acres by purchase from the 2nd plaintiff, Pw3. Pw2 testified to that effect and therefore supported the evidence of Pwl and Pw3. Pw2 said, witnessed the purchase of 38 acres from Pw3. It was the evidence of Pwl further, that the beacons were fixed in his land for more than 60 metres from riverbank, part of his 16 acres of his farmland was invaded. According to him beacons were fixed at a distance measuring from 250, 270 and 333 metres. Pw3 is the 2nd plaintiff, who also alleged sold land to Pwl. He claims his land is 77 acres located at Mawasiliano kitongoji. According to him, the beacons were fixed 250 metres beyond 60 metres from the riverbank which is allowed by law. It is his evidence that he acquired that land in the 198O’s from his parents who used the land for agricultural activities and keeping livestock. Like Pwl and Pw2, it was his evidence that he sold 38 acres of land to Pwl and that it is Pw2 who witnessed. To prove his case, he tendered exhibits P2, P3 and P4. The 3rd Plaintiff, Sumaku Matogolo (Pw5), according to him, he owns 200 acres which he acquired in 1992 by clearing it and taking possession. He said, the land is near river Malagarasi. According to his evidence, he owns 50 Page. 2 Hon. AUGUSTINE RWIZILE acres because the rest was divided to his children. He tendered the village council minutes, exhibit P5 collectively, and P6 which is payment upon acquiring that land along with, P7 showing deposits of cash when paying for same land in 2016. Pw4 supported the evidence of Pwl, Pw2 and Pw3 as to how land was acquired. Pw6 supported the evidence of his father-Pw5 and stated that they have been using that land since he was a child to date, he referred to exhibits P5, P6, P7 and P8. He added that part of that land has been given to him and his other siblings. He was therefore clear that trespass was made by the defendants after having fixed beacons in their land up to 900 metres. It was submitted for the plaintiffs that every witness is entitled to credence unless there is a good ground to disbelieve him/her as decided in the case of GOODLUCK KYANDO v. R [2006] TLR 363. According to the counsel for the plaintiffs’, evidence has been procured to prove that the plaintiffs acquired the land and therefore rightful owners of the same land. For the defence, it was testified by Dwl, Dw2 and Dw3 who are local government leaders, they are village executive leader of Mpeta, the chairman of Mpeta and chairman of Malagalasi village respectively. They told the court that they are conversant with the land ownership and custodians of important documents in respect of the land ownership. According to them, the land in dispute does not belong to the plaintiffs. The defence witnesses alleged, the land in dispute is the general land owned by tire council and therefore cannot be owned by the plaintiffs as it is a protected land. Dw4 works with Tanzania Wildlife Management Authority (TAWA) as a game warden. He testified that, the land in dispute is reseive land and it is governed by the RAMSAR Convention which Tanzania is party. He said, the RAMSAR cite is 32,500 square Kilometres covering the districts of Buhigwe, Kibondo, Kahama, Kaliua, Sikonge.Kasulu and Mpanda. He said in that area, there is no private ownership of land in those premises. He said, it has been protected since 2001. There is land use plan which identifies the area and its use. It was his evidence further that, the land covers north-west of the Kikwete bridge, Mpeta and Malagalasi villages. The last defence witness is Dw5, he is a civil and water Engineer working with Lake Tanganyika water basin. According to him, the land is protected since it a source of water. He said, the disputed land is among 9 water basins gazetted in 1989, under the Water Utilities Act 1974. He said, the disputed land cannot be owned, they are water sources, and village land owned by the district council. He said, in 2022, before fixing beacons in terms of section 33,34,37 of the Water Resources Managment Act and sections 54 to 57 of the Environment Act people were educated. He said, the law allows them to put beacons in 60 metres or so, depending on the highest point of flood mark and it should be a reasonable distance. In this case, he said, the beacons were fixed up to 400 metres This testimony was supported by the submission of the state attorney, that at law, it is trite that he who alleges has a burden of proof as per section 110 of the Evidence Act, Cap. 6 [R. E. 2022] as held in the case of Crescent Impex (T) Limited versus Mtibwa Sugar Estates Limited, Civil Appeal No. 455 OF 2020. In the view of the learned attorney the plaintiffs had to prove land is their property because they legally own, it which they have failed to do. Having heard the evidence and submissions of the parties. It is trite that the case must be proved at the balance of probability. But since the plaintiffs’ alleged are owners of the land in dispute, they are cast with the onus of proving their alleged ownership. The point to determine is if they have discharged that duty. The plaint shows Page. 3 Hon. AUGUSTINE RWIZILE the plaintiffs claimed 16, 77, 200, 70, and 16 acres for the 1st, 2nd, 3rd, 4th and Sth plaintiffs respectively. However, the 4th and Sth plaintiffs did not testify and therefore there is no evidence in support of their case. In the absence of such evidence, there is no case proved. It is just dismissed as against them. The first three plaintiff clearly pointed out that land came into their possession through purchase and succession. Pwl as his evidence goes, he bought land from Pw3. He however did not tender any document such as purchase agreement. His evidence was supported by that of Pw2 and Pw3 but none of them tendered any document either. The 2nd plaintiff, Pw3 tendered exhibit P2 which was an answer to his complaint in respect of piece of land from the Kigoma Regional commissioner’s officer. It is followed by exhibit P3 which states as hereunder, "Barua yako Kiimb. Na. CD. 131/133/01K/85 ya tarehe 6/3/2015 ikiwa na kichwa cha hcbari hapo juu yahiisika. Nimefanya uchunguzi wa kutosha ikiwa ni pamoja na kutembelea eneo la mlalamikaji tukiwa na mlalamikaji mwenyewe na mtaalam. Nilichobaini ni icwamba eneo la Bw. Kulilo lipo, anachohitaji kutoka kwetu ni ufafantizi wa kitaalam, ambao ameishaupata. Michoro inayoonyesha mpangilio wa mashamba katdca maeneo yote yajitmla likiwemo la Bw. Kulilo inaandaliwa. Upimaji ukikamilika atatayarishiwa hati yake na iaiwa na umiliki wa kisheria'’ This letter was from Uvinza District Council in response to exhibit P2, in respect to the land of the plaintiff. It was acknowledged that after investigation including visiting the dispute area, with Pw3 and an exped, his land was identified and was given an expert explanation. It was further stated in the letter that the sketch shows the shambas in the general land include that of the 2nd plaintiff. The letter concluded that after surveying the land, he will be given a title to his land. This was in August 20215. Further, he tendered exhibit P4 which is a letter showing one Mathias Sali hired from him 40 acres of land to cultivate paddy and it was witnessed by the secretary of Mawasiliano. This was in August 2022. On part of the 3rd plaintiff, exhibit P5 which is the minutes of the meeting of the village council of October 2016, where the land 200 acres was approved by the village council to the 3rd plaintiff and other 3 people, the minutes was sent to the District Council of Uvinza. He also tendered exhibit P6, which states as follows; "Barua yako ya tarehe 1/2/2016yenye kichwa cha habari hapo jmi yahusika. Baada ya serikaliya Kijiji kupitLsha maombi hayo, waombaji wamepata haki ya kisheria kumilikishwa mashamba hayo. Gharama za upimaji zitakuwa Tshs. 200,000/= kila shamba. Jumla zitakuwa Tshs. 800,000/=, fedha hizi zilipwe katika akaunti ya Amana NMB Kigoma DED Uvinza Na. 51610003366. Baada ya kulipa fedha hizo watakuja oflsini na bank slip Hi kupata risiti. " In it, the District Council directed on 18th March 2016 the village of Malagalasi after it had approved the requests made to it, they had acquired legal rights under the law and were to pay fees for survey, which was paid as per exhibit P7 and P8 which specifically stated, he was paying for land at Malagalasi. Dwl who is said is the VEO of Mpeta village said, the plaintiffs are trespassers since they have legally applied and acquired the land. He said he saw them doing farm activities in the area. Dw2 said, they do not own land in the premises because it belongs to the district council. Dw3 told the court that at least Sumaku Matogolo owns land at Malagalasi but does not know the size. According to him, there has been applications for land that is outside the river basin. In terms of Dw4, he said the land in dispute is a protected land and his evidence is supported, as I have Page. 4 Hon. AUGUSTINE RWIZILE shown by Dw5. Dw5, among others, he said, land in dispute has water sources and the village land based on the information he got from the district council. But Dw5 is the person who affixed beacons. He does not know specifically if the plaintiff own land but what is clear about his evidence is that, since he is responsible for protection of the Lake Tanganyika water basin, he only marked the area that is protected. From the foregoing, it goes without saying therefore, the defence did not prove that the land alleged owned by the plaintiffs is protected land and therefore cannot be owed. The 1st plaintiff in my view did not prove he owns any land. His evidence did not pass the standard of proof required in a civil suit. The second plaintiff has proved he owns the 77 acres but sold 38 to Pwl, he cannot therefore sell 38 acres and yet remain with 77, while the 3rd plaintiff has also proved, was approved 50 acres, not 200 acres he claimed. Therefore, the first issue is partly in the affirmative. Second issue Whether the defendants trespassed into the suit premises This is purely a legal issue. It is governed by the fact that the first defendant’s has powers to protect the Lake Tanganyika water basin. It has been testified by Dw4 and Dw5 that the disputed land is a protected area. In terms Dw4, he said it is governed by the RAMSAR Convention which he said, Tanzania is party. According to Mr. Sadiki for the plaintiffs’ the convention did not justify the action of the defendant to affix beacons in the plaintiffs’ land beyond 60 metres. According to him, the international conventions have no automatic application in Tanzania as held in the case of Reliance Insurance Company(T) Ltd vs CMA CGM Societe Anoyme and Another, Civil Appeal No. 179 of 2020 on page 12. On the other side, it was submitted that the disputed land is protected under tlie Lake Tanganyika basin water board which was gazetted in 1989 as per the Water Utilities Act, 1974 which was repealed and replaced by Water Resources Management Act, No. 11 of 2009. It was further submitted that under section 34 of the Act and section 57 of the Environment Management Act, the minister may by order published in the Government Gazette prohibit activities to be conducted beyond sixty meters from the water dam, reservoir or water source. It was submitted that given the importance of the area, the beacons were fixed between 60 to 300 metres. It is not disputed by the parties that the Lake Tanganyika Basin is among 9 of such basins as per GN No. 2 of 13th January 1989. But all done and said, there is no evidence oral or documentary showing the extent to which the river Malagarasi is protected. There is evidence that human activities are conducted along the river, and it was for the defendants to specifically do its duty to make sure the protected area is well demarcated and those trespassing into are removed by all means. The Convention on Wetlands of International Importance (the Ramsar Convention) was signed in Ramsar, Iran on 2 February 1971. The Ramsar Convention aims to halt the worldwide loss of all wetlands and to conserve, through wise use and management, those that remain. It is clear therefore that any such interference in the protected zone has to safeguarded. The defendants did not specify how 60 metres is measured. The only evidence is that it is measured from the highest point of flood mark. It is well known that rivers do not flow in a straight line. Therefore, Page. 5 Hon, AUGUSTINE RWIZILE by all standard the 60 metres cannot be same throughout the catchment area. This is as testified by Dw4 and Dw5 that fixing the beacons depended entirely on the nature of the river itself and where there is a highest point of flood mark. In all, there is no evidence proving that the first defendant exceeded the points stated. Therefore, the second issue is in the negative. Lastly, is to what reliefs are the parties entitled to. Having considered the evidence and submissions, judgement is partly entered as hereunder; 1. The 2nd and 3rd plaintiffs, have successfully proved land ownership in the disputed area which is 39 and 50 acres respectively 2. That the first, fourth and fifth, their case is dismissed 3. That there is no trespass proved to occur in the plaintiffs’ because beacons were fixed is protected land which cannot be owned by the plaintiffs. 4. That each party to bear its own costs. Dated at KIGOMA ZONE this 20th of August 2024. AUGUSTINE RWIZILE JUDGE OF THE HIGH COURT Page. 6 Hon. AUGUSTINE RWIZILE