MAWEMERU CASE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LAND CASE NO. 28 OF 2023 MAWEMERU VILLAGE COUNCIL...................... 1st p l a i n t i f f ATTORNEY GENERAL........................................ 2nd PLAINTIFF VERSUS SELESTINE M LELA............................................ ... DEFENDANT JUDGMENT 4 /11/2024 & 29 / 11/2024 ROBERT. J:- The Plaintiffs, Mawemeru Village Council (first Plaintiff) and the Attorney General (second Plaintiff), instituted this suit seeking a declaration of ownership over 0.98 acres of unregistered land (disputed land) land which they claim to be part of the first Plaintiff's land measuring 11.21 acres located at Mawemeru Village, Geita District. The Plaintiffs allege that the Defendant, Selestine Mlela, unlawfully encroached on the disputed land. The Defendant denied the claims, asserting that he has never encroached the area alleged to measure 0.98 acres insisting that he has neither extended nor exceeded the borders of his land. The Plaintiffs' case is premised on their claim that the disputed land was historically a water dam ("Lambo la Mzungu") used during the colonial period. Post-independence, the land reverted to the 1st Plaintiff's ownership and served l as a communal water resource for various village activities. From 1995, the land was used for leasing gold-washing operations, and by 2005, many people were resettled around the area due to environmental concerns at Kangeme. The Defendant allegedly began encroaching on the land in 2010, placing red marks and interfering with mining activities. In 2016, the Defendant purportedly extended his claimed area, erected beacons, and demanded rent from miners operating on the land. The Court framed three issues for the determination of this matter. One, Whether the Plaintiffs are the lawful owners of unregistered piece of land measuring 0.98 acres (3983 sqm) located at Mawemeru Village, Geita District. Two, Whether the Defendant trespassed into the disputed land. Three, what reliefs are the parties entitled to. Parties in this dispute were represented by Mr. Lameck Merumba, Senior State Attorney representing the Plaintiffs and Messrs. Fabian Kulwa and Steven Muhoja, learned counsel representing the Defendant. Starting with the first issue, whether the Plaintiffs are the lawful owners of the disputed land. The Plaintiffs' case rests primarily on testimony of witnesses (PW1 to PW4) and the documents tendered as Exhibit PI (Minutes of the Village Economic Committee Meeting) Exhibit P2 (a complaint letter from mining 2 investors), Exhibit P3 (a notice to sue), Exhibit P4 (a reply to the notice), and Exhibit P5 (minutes of a village assembly meeting). The Plaintiff's case opened with the testimony from PW1, Charles Peter Inyarara, the Village Executive Officer (VEO) of Mawemeru Village, who testified that the disputed land, measuring 0.98 acres, is part of 11.21 acres of village land formerly known as Lambo la Mkoloni. The disputed land is bordered by a cow stall to the east, Village land to the west and north, a road from Geita to Nyarugusu to the south. He confirmed knowledge of the land's size based on a map prepared by the Land Survey Department of Geita District Council. However, the map was not admitted as evidence due to insufficient authentication. PW1 recounted that the dispute began in 2010 when the Defendant, Selestine Mlela, demanded rent from licensed miners operating on the land, who reported this to the village government. In response, the Economic Committee of the Village held a meeting (Exhibit PI), deciding that: The Defendant should cease disturbing the license holders and he could apply for land use rights through official channels if he is interested. Despite the Economic Committee's resolution, the Defendant allegedly marked the land with beacons in 2010, leading the license holders to write a letter (Exhibit P2) to warn him against interfering. 3 In 2016, the Defendant issued a demand notice (Exhibit P3), claiming ownership of the disputed land. The village government responded (Exhibit P4), affirming the land belonged to the village council. A general assembly meeting was held on 24/6/2020 (Exhibit P5), where it was resolved that the land belongs to the village government and not the defendant. PW1 concluded by asserting that the disputed land is under the ownership of the village government and has been used to collect revenue from licensed miners. PW2, Mlindwa Maganga Bwire, a former chairman of Mawemeru Village (2014-2019), corroborated P W l's account, adding that Mawemeru Village was established in 2009, inheriting land from Nyarugusu Village, including an area known as Lambo la Mkoloni. The disputed area, measuring 0.98 acres, is part of this larger area. He stated that, the Defendant threatened licensed tenants who were conducting their activities in the area and placed beacons on the land after receiving a response to his demand notice. PW2 emphasized that the disputed land has historically belonged to the village government and continues to be under its ownership. Both PW3 and PW4 testified that the disputed land was historically part of Nyarugusu Village before being transferred to Mawemeru Village in 2009. PW3 4 emphasized that the disputed land forms part of village land used for community purposes. PW4 detailed his operations on the land since 2002 under an arrangement with the village government, although no formal documentation was tendered. The Defendant, through DW1 (Venancia Martin), asserted that the disputed land is distinct from his own property, which he acquired during the subdivision of Nyarugusu Village. She testified that her husband, the Defendant, initially used his land for farming before leasing it to miners. Exhibit D l, a lease agreement with miners, was admitted into evidence but failed to describe or establish ownership of the disputed land. DW1 further stated that the Defendant's land is located uphill, while the disputed land, historically referred to as Lambo la Mzungu, is situated downhill. Under Section 110(1) of the Evidence Act, Cap. 6 R.E. 2022, the burden of proof lies on the party asserting ownership. Ownership of land is typically established through: 1. Documentary evidence, such as title deeds or certificates of occupancy. 2. Cogent and consistent oral testimonies supported by credible documentation. In this case, neither party provided sufficient evidence to establish ownership of the disputed land. The Plaintiffs' reliance on minutes, complaint letters, and oral 5 testimonies was inadequate to prove ownership. The Defendant, on the other hand, expressly denied ownership of the disputed land and failed to produce evidence linking the land described in Exhibit D1 to the area in dispute. Accordingly, the Court finds that the Plaintiffs have failed to prove ownership of the disputed land. To avert future disputes, Mawemeru Village Council is advised to undertake a formal survey of the disputed land and regularize its ownership in accordance with the law. The second issue seek to establish whether the Defendant trespassed on the disputed land. To establish trespass, the Plaintiffs must demonstrate: 1. That they were in lawful possession of the disputed land. 2. That the Defendant unlawfully entered or interfered with their possession. As established under the first issue above, the Plaintiffs failed to prove possession or ownership of the disputed land. Consequently, the claim of trespass cannot succeed. The Defendant's denial of encroachment, coupled with the absence of evidence proving unlawful entry, renders the Plaintiffs' allegations of trespass unsubstantiated. Having resolved the first two issues against the Plaintiffs, this Court finds that the reliefs sought by the Plaintiffs cannot be granted. Similarly, the Defendant's 6 denial and lack of evidence of ownership of the 0.98 acres precludes any affirmative relief in his favour. The Plaintiffs' suit is hereby dismissed for failure to prove ownership or trespass. The Court makes no finding of ownership in favour of either party. Each party shall bear their own costs. It is so ordered. 7