LAND CASE NO

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA LAND CASE NO. 11 OF 2023 REFERENCE NO. 20230505000495680 BETWEEN MARWA MASIAGA......................................................................... PLAINTIFF VERSUS MARWA MATIKO MAHUCHANI.................................................... DEFENDANT JUDGMENT 13th August & 12th September, 2024 M. L, KOMBA, J.: The plaintiff in this case complaining that defendant herein has encroached over his piece of land located at Miliminsi hamlet, Mrito Village, Kemambo Ward, Tarime District, within Mara Region. According to pleadings, sometimes in 2017 defendant started mining operations and activities in the plaintiff's land without permission and without paying prompt, adequate, just and fair compensation neither disturbance allowance to the plaintiff. Defendant claim to be a primary Mining license holder who was permitted by village authorities to enter into the disputed land and conduct mining activities therein. While claiming a Page 1 of 20 lawful owner of the suit land, plaintiff is claiming for the following court's orders; a) Declaration that he is a legal owner and that the defendant has unlawful acquired the disputed land hence a trespasser. b) The declaration that defendant have not paid prompt, adequate, full, Just and fair compensation to the plaintiff based on all un exhausted improvements and permanent affixed to the plaintiffs land at the time of commencement of mining activities. c) An order compelling defendant to pay the plaintiff punitive damage at the sum of TZS 600,000,000/ for trespass into the plaintiffs land. d) An order compelling defendant to pay the plaintiff general damage at the sum of TZS 600,000,000/ for inconvenience and hardship suffered by the plaintiff as a result of direct consequence of the defendant's action and unlawful acquisition of the plaintiffs private piece of land and without compensation. e) Compensation for the loss of interest in and use of land by Including the value of the land and unexhausted Improvement made on the land. f) Payment of interest at the court's rate of 7% on the decretal sum per annum from the date ofjudgment to the date of final payment of decretal sum. g) Costs of the suit be paid by the defendant. Page 2 of 20 h) Any other re!ief(s) that this court may deem fit and just to grant. On other hand, defendant claim to own mining license over the suit land, he disputes the claim that the plaintiff if ever owned the said alleged land as claimed. To counter the plaintiff's claims, the defendant, Marwa Matiko Mahuchani claimed that he has a mining right over the land situated in Mrito village but he did not recognize plaintiff's position as he was allocated with the village authority on account that plaintiff failed to prove ownership of the said land and pray the suit be dismissed, declare defendant has never trespass to plaintiff land and order permanent injunction to plaintiff from interfering defendant from peaceful enjoyment of the land. As per contest of the parties in the suit, three issues were framed in order to determine the rights of the parties: 1. Who is the lawful owner of the disputed piece of land. 2. Whether the defendant legally acquired the disputed piece of land. 3. If no. 2 is in affirmative, whether fair, adequate and prompt compensation was made by the defendant. Page 3 of 20 During hearing of the case, the plaintiff hired the legal service of Mr. Daudi Mahemba while defendant has a service of Mr. Ernest Mhagama both advocates. It was the plaintiff who started to prove his allegation before this court who testified as PW1 and informed this court that he married a cousin of the defendant and therefore he is his relative but the defendant has trespassed to plaintiff's land with the measurement of 21 acres by uprooted trees, making roads, dig holes, building houses and put crasher over the said land. He informed this court that he reported the matter to Village Executive Officer who called the meeting and resolved that defendant has to compensate him, upon failure, village council introduced plaintiff to ward tribunal for the hearing of the parties. Ward tribunal was found to have no jurisdiction and even the District Land and Housing Tribunal that's why he filed his case at this court. Explaining the activities done by defendant he said in 2017 defendant build four houses and created a dam within the disputed land and carry on mining activities. He informed this court that the land belongs to him since 1997 where he cleared virgin land and in the year 1998, he established home therein and he was keeping cows in a huge grazing land. In 1999 he Page 4 of 20 requested and was confirmed the owner of land by the Village land Committee via Exh Pl that plaintiff is the owner of the land and the defined land use was for residential, agriculture, grazing and reserve. He further informed this court that the allocated land was approximately 100 acres while the defendant has trespassed to 21 acres. He knows the size which was trespassed when it was measured with intention to allocate it to defendant but, he said when the village land committee noted the land was owned by plaintiff, they did not allocate to defendant rather advice parties to settle. It was the testimony of plaintiff that defendant said he was allocated the land by the village council. Upon the denial by the defendant, witness said he complained to District Mineral Officer who later on prepared a letter to Mrito village council. He prayed this court to pronounce that defendant is a trespasser and him be paid as he claimed in the plaint. During cross examination he confirmed he did not conduct valuation but defendant is the one disturbing him that's why he pray to be compensated. He insisted that measurements of the disputed land were done by Land officer and village council but insisted they did not allocate land to defendant. Page 5 of 20 Magaigwa Muroni Werema appeared as PW2 and testified that he was a village council member from 1993 to 1999. He informed this court that the disputed land measure 21 acres belongs to the plaintiff who was allocated the land by the village land committee whom he was a member. They visited the area, called and listen to neighbors, they make measurements before they allocate the said land to plaintiff. He identified Exh P2 and informed this court that the land had different size in each side due to basin and that it was measured by footsteps. When cross examined this witness confirmed that Zephania was leader when dispute arose, Beatus was Agricultural Officer. He provides for a procedure if any person wanted to be allocated with land at village level that he must write a letter to village council whom then sent land committee to visit the land. He identified Muroni Masero that was a member for a long time. He knew Ghati who was a member by that time and currently has a title at Kemambo ward. He confirmed the village do not issue appointment letter, the election by villager is enough. In their tenure they usually issue a letter (minutes) just as seen in Exh P2. Page 6 of 20 PW3 was Mwita Marwa Masera who is a hamlet leader since 2014. He identified the disputed land is located at Miliminsi village. He explained the dispute that in 2017 defendant went to the village with a letter which show he has six (6) plots of land with mining rights. He went on testifying that the land was owned by three people who are Marwa Masiaga, Marwa Muroni and Matiko Nyamagwa. Leaders called a village meeting on 26/7/2017 and advised the mineral right holder to negotiate with the land owner, then the intended area was measured by the village council in collaboration with District council. He went on testifying that on 12/9/2017 the land committee convened a village assemble and was resolved that Marwa Matiko (defendant) to communicate/negotiate with Marwa Masiaga (plaintiff) on how to use the land and they were told if possible one person to compensate the other as they have different rights over the disputed land but they did not reach into agreement/compromise. When cross examined, PW3 clarified that defendant have mineral rights on six (6) plots but one of them is owned by Marwa Masiaga, the plaintiff. Due to that fact, he further testified that village council recognized mineral right conferred to Marwa Matiko, the defendant and the two were advised to negotiate over the use of land, he went on testified that village leaders Page 7 of 20 invite land officer to take measurement in order to simplify negotiation as they both have rights. He informed this court that minutes of the meeting is kept by village chairman in the office. Being a leader, he has never heard Marwa Matiko was given land by village meeting. PW4 Masero Marwa Masero was Kyegati hamlet chairman, the hamlet is bordered Nyambeho hamlet which was led by Mwita Masicho. He testified that when Mwita Masicho died, he was acting chairman of Nyambeho Hamlet which nowadays is known as Miliminsi. On that position he informed this court that he came to know the land owned by Marwa Masiaga as he used to complain over the land when people cut his trees. He visited the disputed land to solve minor problems with villagers. He confirms the land was owned by the plaintiff till 2017 when the dispute arose whereby the defendant started mining activities, he builds houses and install crasher. Witness is aware that Marwa Matiko applied ownership of the land through village meeting but the land was already owned by the plaintiff. In cross examination PW4 elaborated that people were informed in the meeting that Marwa Matiko applied for the land, he confirmed he did not tender any minutes of the meeting as he was not a leader. He clarified that Page 8 of 20 minutes are kept by Village Executive officer and the meetings were chaired by Village Chairman, by then Chairman was Zephania. He further testified that it is possible to know each land owned by who at the village level and insisted that Marwa Masiaga (plaintiff) own big size of land which he estimated to be 100 acres. When plaintiff's case was closed, then it was the defendant turn to rebut what was claimed by the plaintiff. Defendant had two witnesses to build his defence. DW1 was defendant himself, Marwa Matiko Mahuchani a mineral dealer who extract mineral since 2017 in Mrito village which is located at Miliminsi hamlet. This witness owned Primary Mining License PML001228LEZ with 10 hectares which was admitted without objection as Exh DI. He testified that he applied for ownership of the land to village leader and was found the land was free as Marwa Masiaga, the plaintiff was not issued that land but he cleared. He went on testifying that after satisfied nobody had a proof of ownership among three people who objected, he said the village council allocated him 30 acres which upon measurement it was confirmed to be 21 acres. The land allocated to him was for mining activities and insisted that Page 9 of 20 he did not trespass to anybody land. He insisted the plaintiff was not issued the land but he cleared the bush. When cross examined, he testified that he applied for land at the village but did not tender application letter. He further testified that village meetings set three times to discuss his application and confirm he has no minutes of ail meetings. He further testified he did not buy the disputed land but he paid allowance to land committee who then gave him permit to extract mineral under the leadership of Zephania as a Village Chairman. This witness confirm he is not a resident of Mrito Miliminsi rather he resides at Nyabichune Zephania Mahati Chacha testified as DW2 and informed this court that he was a village chairman in Mrito village in 2014 up to 2019. He knows both plaintiff and defendant and informed this court that Marwa Masiaga was a villager and Marwa Matiko Mahuchani (Matiko) applied for a land in the village that's why he knows him. Matiko applied for land for extraction of minerals. He said they visited the targeted area and there emerge three people claiming ownership, one of them is plaintiff. Upon inquiry he testified that plaintiff informed them he cleared the land. Thereafter upon analysis village leaders decided to issue land to Matiko to Page 10 of 20 proceed with mining activity. They gave Matiko Exh D2 which was a letter allowing him to proceed with mining activities. He went on testify that they received a complaint form District Mineral Officer over the land which Matiko has mineral rights that it was owned by another person. He said he replied that letter by informing the Mineral Officer that the land in dispute was issued to Matiko. He went on testifying that he informed the Mineral officer that the letter owned by the plaintiff is forged as a person cannot own 100 acres as it is against the law and cannot be allocated to one person. During cross examination by Mr. Mahemba this witness testified that the village allocate the disputed land to Mahuchani. When asked how they gave the land he said the letter (Exh D2) allowed Matiko to proceed with mining activities and insisted that was allocation of land. He explained further that in his tenure as a chairman he was not allowed to allocate more than 50 acres to one person. He went on informed this court that his reply to the Mineral Officer was as per law in 2017 and he doesn't know position of the law by the year 1999. When he was asked if there is any step taken by the village when discover the letter owned by plaintiff was forged, he said he called all people who participated and refused to go to Page 11 of 20 the village office and he, the witness who was a village chairman decided to leave the matter as it was. Witness further confirm he did not tender minutes which show application by the Matiko was discussed in the meeting and there was a resolution. He informed this court that plaintiff is living near the disputed land but plaintiff is owning different land it does not overlap to the land owned by defendant. He recognized the position of Magwaiga Mroni, a secretary of land allocating committee in 1999 and Masero Marwa as a member of committee and confirmed in the disputed land there is two building and one machine. That makes the end of testimonies by witnesses. The dispute is based on ownership of land and rights to use. While the plaintiff claims to be lawful owner of the land, defendant claim to hold Primary Mineral Rights license under the Mining Act, Cap 123 R. E. 2019 (the Act) and also to be owner of the disputed land. Section 96 and 97 are relevant to the case at hand which provides; 96.-(l) The rights conferred by a mineral right shall be exercised reasonably and shall not be exercised so as to affect injuriously the Page 12 of 20 interest of any owner or occupier of the /and over which those rights extend. (2) The lawful occupier of land in a mining area shall not erect any building or structure in the area without the consent of the registered holder of the mineral rights concerned but if the Minister considers that the consent is being unreasonably withheld, he may give his consent to the lawful occupier to do so. (3) Where, in the course of prospecting or mining operations, any disturbance of the rights of the lawful occupier of any land or damage to any crops, trees, buildings, stock or works thereon is caused, the registered holder of the mineral right by virtue of which the operations are carried on, is liable to pay the lawful occupier fair and reasonable compensation in respect of the disturbance or damage according to the respective rights or interest of the lawful occupier in the property concerned. 97(1) Where the rights conferred by a mineral right cannot reasonably be exercised without affecting injuriously the interest of any owner or occupier of the land over which those rights extend as required under section 96, the mineral right holder shall - (b) submit a proposed plan on compensation, relocation and resettlement of the owner or occupier of the land as per the Land Act. Page 13 of 20 The general principle of the law as per section 3 and 110 of the Evidence Act, Cap 6 R. E 2022 is that, he who allege must prove. This being the civil suit, the standard is to the balance of probabilities. See Magambo J. Masato & Others vs Esther Amos Bulaya & Others (Civil Appeal No. 199 of 2016) [2017] TZCA 183 (28 July 2017) and Maria Amandus Kavishe vs Norah Waziri Mzeru (Administratrix of the Estate of the late Si Ivan us Mzeru) and Another (Civil Appeal No. 365 of 2019) [2023] TZCA 31 (20th February, 2023). Basing on contest of the parties in this suit, this court together with parties raised three issues as quoted previously. The issue now is whether the plaintiff has managed to prove his case. Starting with the first issue who is the lawful owner of the disputed land. Plaintiff who testified as PW1 informed this court that he cleared bush in the 1998 and establish his home. He chose that big area so that he can feed his livestock too. One year later, in 1999 he requested and was authorized by land allocating committee to own and use it as per Exh. Pl. Exhibit has shown neighbors/ boundaries which was also mentioned by plaintiff when testifying in court. It is in record that in 2017 defendant was registered as the Primary Mineral License holder over the land which Page 14 of 20 plaintiff claim to own. In his testimony he informed this court that plaintiff claim the ownership by clearing bush but he had no proof of ownership. It has to be remembered that plaintiff started to own the land way back 1998 before the reforms of Land laws. However, the Village Land Act 1999, Cap 114 RE 2019 under section 16 recognizes validity of allocations of land made by village councils since 1st January 1978 to commencement of the Village Land Act. The section reads; 16. For the avoidance of doubt and in order to facilitate security of tenure and contribute to the development of village land, the provisions of section 15, other than subsections (2) and (3), shall apply to any and every allocation of village land made by village council or by any other authority on and after the first day of January, 1978 until the date of the commencement of this Act as if for the dates referred to in subsection (1) of that section, there were substituted the dates between the first day of January, 1978 and the date of commencement of this Act 15.-(1) An allocation of land made to a person or a group of persons residing in or required to move to and reside in a village at Page 15 of 20 any time between first day of January, 1970 and the thirty first day of December,1977, whether made under and in pursuance of a law or contrary to or in disregard of any law, is hereby confirmed to be and to have always been a valid allocation capable of and in law giving rise to rights and obligations in the party to whom the allocation was made and extinguishing any rights and obligations vested in any person under any law which may have existed in that landprior to that allocation. That is to say, allocation of land done by the village council via village land committee prior to commencement of Cap 114 is recognized. Plaintiff acquired virgin land, he cleared and live in it. He then applied for recognition whereby it was done by the village land committee in 02nd January 1999 through Exh P 1. From the cited provisions, the allocation of land to plaintiff is recognized by law. Defendant claim to be allocated the same land in the year 2017 by the village council and was backed up by DW2 that, the disputed land was not owned by plaintiff because he had no proof that the disputed land was allocated to him. Further, both defense witnesses alleged forgery in the Exh Pl, I find that allegation has no weight on the sense that, the allegation of forgery was Page 16 of 20 based on the size of land. It has to be known that before Village Land Act Cap 114 R.E 2019 there was no limitation on allocation of village land. Introduction of Cap 114 has set a limitation on issuing land at village level. However, it is not making sense alleging the allocating letter to be forged while the village chairman in the 2017, who was DW2 recognized two out of four members who participated in the allocation of suit land to plaintiff. If at all there is a forgery on anything, DW2 was supposed to take legal action which he did not. The testimony on the ownership of land by the plaintiff (PW1) was supported by PW2 who was the secretary of the land committee which allocated the land to the plaintiff and further the testimony collaborated by the testimony of PW4 when he was consulted to solve minor problems over the disputed land. On the other side, DW2 tendered Exh DI which is a letter allowing defendant to continue with extraction of mineral. Neither defendant nor defence witness who tendered a document to prove ownership of the disputed land to defendant. So far as the allegation of forgery was not proved, I find the plaintiff managed to prove ownership of the disputed land. Page 17 of 20 The second issue is Whether the defendant legally acquired the disputed piece of land. From the analysis of the issue, the defendant via Exh D2 was allowed to use the land for extraction of mineral. There was no proof that defendant was allocated and own the disputed land. In mineral it is possible a person to own mineral license without owning the land as the two are different rights. In the case at hand, the defendant has mineral rights which are found beneath the surface while plaintiff own the surface of the land. Legislature knew that and drafting of section 96 reflect the expected disturbance by the registered holder of the mineral right by virtue of which the operations are carried on, is liable to pay the lawful occupier fair and reasonable compensation in respect of the disturbance or damage according to the respective rights or interest of the lawful occupier in the property concerned. It is not disputed that defendant has built two structures and planted a machine. That is not only a disturbance to owner but defendant has occupied the land without being authorized by the owner as per section 95 of Cap 123.1 find the defendant used the land which he is not owning and without consent of the lawful occupier although he has mineral rights over the land. Page 18 of 20 The third and last is, if the 2nd issue is answered in affirmative, whether fair, adequate and prompt compensation was made by the defendant. From testimony of parties and exhibits, no any payment or compensation was done to plaintiff. I shall now move to the way forward on what relief do parties entitled. It is undisputed that defendant has occupied the disputed land and has elected two houses and a plant, from the plaint, the plaintiff is complained of trespass by the defendant who did not compensate him. The defendant relied in Exh D2 that he was allowed by the village to use the land. Defendant confirmed that he is in occupation of the land which he is not the owner. In the cause of exercising the rights over the Primary Mineral License which he owns, defendant disturb the plaintiff as he (the plaintiff) can no longer continue with agriculture neither animal rearing. At this juncture, I wish to consult the relevant provision of law which is section 95, 96 and 97 of Cap 123 as reproduced earlier and rule that defendant is supposed to compensate the plaintiff in the 21 acres he is used for mining activities as required by law. After analysis of issues as raised I am now in a position to grant reliefs as follows; Page 19 of 20 1. I declare the plaintiff is lawful owner of the suit land which is 21 acres. 2. Defendant is a trespasser over 21 acres as he built houses, planted machine and make some infrastructure on the surface of the disputed land. 3. I order defendant to pay prompt, full, just, and fair compensation for affected piece of land over his mineral activities. 4. I order defendant to pay plaintiff a general damages to the tune of TZS 100,000,000/ for inconvenient and hardship suffered by the plaintiff as a result of direct defendant's action. 5. Payment of the interest of decretal sum at the BOT rate from the date of judgment to the date of final payment of the decretal sum. 6. Costs of the suit should be paid by defendant. It is so ordered. DATED at MUSOMA this 12th Day of September, 2024. k M. L. KOMBA Judge Page 20 of 20