mussa ndoloma ndulamiye vs the regional manager of tanesco rukwa 2023 tzhc 17790 2 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA DISTRICT REGISTRY AT SUMBAWANGA LAND APPEAL NO. 16 OF 2021 (Originating from District Land and Housing Tribunal at Rukwa in Application No. 22/2015) MUSSA NDOLOMA N DU LAMI YE APPELLANT VERSUS' WWx REGIONAL MANAGER TANESCO RUKWA RESPONDENT .■Si;.... „’^k. X..- JUDGMENT If 25/05/2023 & 02/06/2023 ~ MWENEMP^Zlf The appellant herein is aggrieyeci by the judgment of the District Land and XX./.. Housing. Tribunal Tor' Rukwa dated 11/06/2021 (Hon. F. Chinuku, Chairperson) whereby the application by the appellant was dismissed and each party was condemned to bear his or her own cost. The appellant has filed three grounds of appeal as follows: 1. That the trial chairperson erred in law and fact in deciding the matter in favour of the respondent without properly analyzing the evidence thereby given. 2. That the chairperson erred in law and fact in holding that the respondent was not liable for trespass that he<was permitted by the village council to do so, the fact which was not at all proved during trial. -T.. % 3. That the trial tribunal erred in law and fact to dismiss the appellant's application on a point of non - joinder of a necessary party the fact which was an afterthought defence of the respondent. The appellant has prayed that the appeal be allowed, judgment of the tribunal be quashed and decree set aside. At the hearing of the appeal the appellant was being represented by Mr. Baltazar Chambi, Learned Advocate and the Respondent was being represented by/M.s/ Frida Swalo, Learned State Attorney. Mr. Balrazar Chambi, Advocate for the appellant informed this Court that he will submit on the grounds of appeal seriatim as appearing in the memorandum of appeal. 2 On first ground of appeal the appellant faults the District Land and Housing Tribunal for failure to evaluate the evidence which was tendered in Court. The counsel narrated a history of the dispute and the struggle by the appellant to resolve. The situation was such that the respondent trespassed into the dispute land, a farm and caused loss to the appellant. According to the appellant, he bought the dispute land and processed a customary right of occupancy whose proof was tendered in court as Exhibit Pl. The farm was . developed by planting avocado trees. What the respondent did is to trespass 'i ; ; ' if--: ■>- -'f' '• '• - into the dispute land, destroy the avocado trees and erect electrical polls, .v •; f - F.y r : -f/: 7W.• k.. j- .. According to section 110 of the Tanzania’ Evidence Act, [Cap 6 R.E 2019] it is the duty of the applicant to prove .the allegations leveled against the respondent. It was tiJe submission by the counsel for the appellant that the appellant tendered"and 6’Radd.uced evidence including the evidence of the Government valuer. The content of the Evidence included on how he acquired the..dispute land, how he registered the same and obtained a customary right of occupancy (exhibit Pl). The appellant also testified on the development of the farm which he had made on the land, which he testified that he has planted avocado and: also how the respondent trespassed and destroyed avocado trees and erected electrical polls. 3 In a bid to remedy the situation, the appellant informed the respondent. The same was done by a notice, whose copy was received in Court as exhibit P2. All efforts were not responded to by the respondent. The appellant filed an application in the trial tribunal claiming for damages but the respondent never answered and filed a written statement of defence until on October, 2015. In defence the respondent advanced two reasons. One,.that the project did not require compensation and; two, that; have had been ' V. ■- ■ 4 .. allowed by the Singiwe Village government to proceed with what she did in the appellant's farm, though no proof was.tendered. The appellant also tendered a valuation report; exhibit P3. which demonstrated the extent of loss caused. In further details it was shown that the farm is four acres and the respondent trespassed and caused damage to two and half acres (2.5 acres), The counsel submitted further on the ground that, the respondent in defence did not tender any cogent evidence. Two witnesses were called to testify; one, is the person who identified himself as village chairman who testified that the village assembly had authorized the respondent. The witness did 4 not tender the minutes of the village assembly nor proof that he was indeed a village chairman. Second witness is Said Mremi who did not tender any documentary evidence to prove what he had testified. The counsel concluded that it is their view that the District Land and Housing Tribunal did not evaluate properly the evidence tendered in Court. On the second ground of appeal, the counsel submitted that the. chairman erred to hold that the respondent was not liable for trespass arid that he had permission by the village Council to do whatTeSid. Article 24(1) of the Constitution of the United Republic of Tanzania pf 1977 provides for the right to own property. The counsel-siibinittechthat permission of the village counsel cannot override the Constitution of the United Republic of Tanzania iVws’ of 1977. Also; under section 3(1) (f) and (g) of the Land Act, [Cap 113] an interest in land has value. Any transaction must take into consideration that interest. "T It was thus the argument by the learned counsel for the appellant that the Honourable Chairperson of the District Land and housing Tribunal contravened the laws of the land. Thus, the appeal should be allowed with costs. 5 on the third point, the counsel argued that the Honourable chairperson erred in law and fact by dismissing the application by the appellant on the reason of nonjoinder of a necessary party. Order I of the Civil Procedure Code, [Cap 33 R.E] provides for the course to be taken. There is. no option for dismissal of the suit for nonjoinder of a party. In the case of Juliana 'Wj.. Francis Nkwabi Vs. Rolence Chimwaga, Ciyil Appeal No. 513 of flU :;W/- 2020, Court of Appeal of Tanzania at Dodoma, the Court;'of Appeal issued directives on how to deal with /nonjoinder dfra party. The Court defined a necessary party being a person who If the judgment is delivered it "fl, flfl cannot be enforced. fl w flfl •■s;''?-1:. In this case Singiwe Council is not a necessary party as there is no evidence 'flfl linking, the village council; oyer all if the judgment is delivered it can be "fl flv executedorenforced. "'flfl., W- flfl.. W&''Sk flflfl Even if it would be found that the village counsel was necessary party to be fl? joined, the application could not be dismissed. The tribunal ought to have made an order to join a party who has not been joined. In this case the counsel referred to the holding in the case of Juliana Francis Nkwabi Vs. Rolence Chimwaga (supra). It is observed at Page 11 of the cited 6 judgment, the High Court may remit back the file for joinder of a necessary party and the hearing proceed from there. The counsel invited this Court to assess the evidence tendered and decide on the issue concerned. The council prayed the appeal to be allowed. In reply to the submission by the counsel for the appeiilpt. Ms. Frida Swalo, learned state attorney who was representing the respondent submitted in reply on the first point that the Honourable/chairnhan made' ana lysis on the evidence tendered and looking at the complaint made by the appellant, the W. same had no merit as the respondent had. permission from the Village Council and Village Assembly. The Village Government issued a permit that electricity can pass at SingiWe Village. The counsel for respondent argued that the project is owned by.the Government thus there is no need for ' "Wk compensation. . According'to her that was clearly testified by DW2. The counsel submitted that at the land owned by the appellant there are two electrical pdlds^ywhen the poles were being erected there was no any property, trees as alleged by the counsel for the appellant. Also, no complaints were made since the time of erection of the said poles until when PW1 retired from office. Then, the appellant came up with the Complaints. 7 In her opinion, the chairman made analysis which was the foundation of the decision. The decision was objective she prayed the ground be dismissed. On the second ground of appeal, the counsel for the respondent argued that the holding that there was no trespass was based on evidence of DW1, Tito Michael Simwenda. The respondent followed all the procedures and no any destruction was caused at the dispute land. 45, The appellant failed to prove that .there was trespass. Therefore, the .... '^4. Mk. chairman was right when she found there wasno'any trespass on the land belonging to the appellant;'fofo for, V'-",' "'.for- On the third ground of appeal, the counsel submitted that the issue of non- joinder of parties was not part of the defence of the respondent. It was raised swp mofo by the chairperson based on the claim by the appellant. In their view, the village Government would be a necessary party in this case. ’44 r££i-_ W The reason is that Singiwe village council was responsible In authorizing TANESCO in installation of electricity in the Singiwe village she cited the case of Shalubu Salum Hoza Vs. Helana Mhacha, (Civil Appeal No. 7/2012) [2016] TZCA 776 (4 March, 2016) where the Court held that joining Dar es salaam City council was necessary in the land dispute. The pleadings had 8 the fact that the dispute land was allocated to the appellant by the Dar es salaam City council The proceedings, judgment of the lower Courts were nullified and quashed. The reasoning was that the suit was unmaintainable without joining Dar es salaam City Council and joining the latter offered an opportunity to the Dar es salaam City Council to be hdard. The counsel submitted that basically the issue of joining village Government was an obiter dictum. The main issue was proved by,theTespondent during trial and tribunal held that there is no trespass. The counsel prayed the appeal to be dismissed with, costs. ; "'V.. In rejoinder, Mr. BaltazarCham bi;learned'Advocate for the appellant has submitted that the submission by the counsel for respondent has: no merit ‘ kW;<-. , and is not backed up by any law. The counsel for the respondent has generally argued on the. issue of non- joinder of the village Government while the claim is for trespass. The counsel for the respondent has also submitted that projects by REA are not subject of any compensation. No law has been cited. She has also submitted that there were no crops at the dispute land. She has also lied that there was no any complaint by the appellant. He 9 submitted that the appellant complained. The appellant also proved trespass. The first defence witness talked about authorization. The appellant proved trespass by oral evidence and documents. The village Government works on papers. He prayed that this Court reevaluates the evidence and make proper decision and allow the appeal with costs. .-ss- ■ I have read the record and also, I had an opportunity to.,hear and record the submission made by counsels for both parties.; The appeal before this Court emanates from the claims by the. appellant for trespass on his land by the respondent which caused him loss asaresultof destruction of crops in his property. Generally, so speaking, one and -half acre among the four acres were encroached during/theprojert of installation of electricity by the respondent in Singiwe Village.; The appellant made a complaint to the respondent when there was no response, he filed a complaint in the District Land and Housing Tribunal for Rukwa which was dismissed. Hence, the present appeal. In my opinion, the question to be answered is whether the appeal has merit. In order to arrive at the answer, the question, we need to go deeper and answer three or four sub questions. The first one is whether there was 10 trespass as it was alleged by the appellant? If the answer is affirmative, then whether the appellant should be compensated for destruction made by the trespasser. In arguing the appeal, the counsel for the appellant invited this Court to re- assess the evidence and come up with its own finding. I agree to that position, the same was well articulated in the case: of Armand Gueh Vs. Republic, Criminal Appeal No. 242 of 2010 the Cociijt; of Appeal,of Tanzania held that: . It "... Where circumstances may so demand, by the principle that this TA. .-jf> being the first appellate. Court; it has a-duty to reconsider and re - evaluate the evidence on record and-come up to its own conclusion bearing in mind that it never saw the witnesses as they testified" Therefore, it is the duty* of the first appellate Court to re-evaluate and re­ consider the. adduced evidence if the circumstances may so demand. In this appeal l am faced with the similar situation. The appellant was the applicant in the District Land and Housing Tribunal; he sought intervention of the Tribunal following the entrance of the Respondent into his farm, by a distance of 300 meters, dug holes and elected poles for wiring posts. The ii process was a confiscation of the land belonging to the appellant and used by the Respondent without complying to the laws. According to the appellant he owns a farm of the size of four (4). acres. Among them, 2V2 have been encroached by the respondent in disregard of the law. The appellant in his claims he testified that he is claimingfor Tshs. 8,500,000/= which includes the crops planted in the suit land;';; , In the evidence adduced by PW2 Florence Gasto Sinkala; he was the land valuation officer who conducted yaluat®d^te^yp:la^d, the valuation was based on comparative method of valuation and at the time one acre of land was valued at Tshs. 1,800,000/= toTshs.2,000,000/=. On crop they used the value of crops set forlocality. The defendant has their testimony clearly showing that they have a policy of announcing before implementation of the project that they will not be liable to pay compensation. In my understanding that entails that the pathway of the electricity line must be consented to by the owner or licensee of the land. In this case the village Government took responsibility of informing the villagers through "Mbiu ya Mgambo". I have understood that no formal 12 meeting was convened may be that is the reason of not tendering any minutes of the meeting of the village assembly. The question is should we take that to be enough for the purpose of consent to acquisition of the land and crop destruction? According to the village Land Act, Cap 114 section 3(1) :(g) interest in land has value and that value should be taken intd-^consideration in any transaction affecting that interest. Under section 3(1) (g) of the Village Land ActJ [Cap lift R.E 2019] full and fair compensation where the'land is acquired'-by the state is necessary. In this case, the village Government took responsibility to unanimously allow XM,.. ><x_6 land acquisition by :the respondent and utilize for the public service for supply of electricity, -%S;. I was asking myself whether that should mean the appellant should go JC ds- empty handed despite that he invested his money for the purchase of the land and developed as he testified in the trial tribunal. I think that won't be fair, He bought that land for his personal use, and the law, requires he be compensated. At this juncture I find that if it was necessary, the village council was required to either, seek for consent of the applicant and secure 13 it on papers or pay compensation or provide alternative land to the appellant upon securing his consent Otherwise, the act of assuming there was consent of all villagers is an arbitrary one, given the fact that the announcement was made to the villagers through 'mbiu ya mgambo'and there is no evidence that a resolution was passed at the village assembly. At this point I find that the Singiwe Village Council Was a necessary party to be joined so that they may address the issue to the land ^owners as was negotiated with the Respondent her^p^ES^Q. r^he counsel for the appellant has submitted thagthe District t-aijicl and 'Housing chairman was # 'Wk wrong to dismiss the application. Lsquarely subscribe to the position. The reasoning is simple ahd is -found in the two cases I am about to cite hereunder. One, tl^caseWPau’fe Roman Shikonyi Vs. Estomy A. Barakaandfourothers[2019]l T.L. R. 192 at 203 it was observed that: "The joinderiof a necessary party to suit is procedural in nature and, accordingly, the same ought to have been done at the time of trial, through the application of Order 1 Rule 10(2) which goes thus:- The court may, at any stage of the proceedings, either upon or without the application of either party and on such terms as may 14 appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions Involved in the suit, be added". Also, in the same decision the Court referred^, to the case of Tang Gas Distributors Ltd vs. Mohamed Salim Said and Two others, Civil Application for Revision No. 6 of2011,where th^dourt held that "failure to join a necessary party is, therefore ^l$dRhe^ourt considered as to whose duty is to make an application to? join a necessary party, in ?. • •, .< <-<. ■;yZ. *£ :Vijf ■J ■ < •<!?&•■?■- ' answering the question, it held that: Ms "Settled law isto the effect that once it is discovered that a necessarypartyhasnotbeen joined in the suit and neither party is ready to apply to have him added as a party, the Court has a separate and independent duty from the parties to have him added". Two, in the case of Juliana Francis Nkwabi Vs. Laurent Chimwaga, Civil Appeal No. 531 of 2020, Court of Appeal of Tanzania at Dodoma, the 15 Court of Appeal, discussed the way forward for an appellate Court where a necessary party was not joined by the trial Court, it held that: "...In our considered view that, upon making a determination that, a necessary party was notjoined in the suit, the learned High Court Judge was required to refer back the matter to the jqai Court with Wk,. the direction tha t a necessary party be joined and the suit proceed from there". Under the circumstances, it was wrong to dismiss the application. The wk -'tik '‘WfB kk % District Land and Housing^Tribunal, the trial Tribunal ought to have joined the Village Council of Singiyve so that they be heard on their position. Also, Wk. Wk I see another huddle, the. respondentbeing a Government entity, the law would make harder or impossible to enforce any decision if at all an order will be issued'in favour of the'appellant as there are processes which will be rendered impossible along the way to the enforcement. WW WL k I therefore quash the proceedings and judgment of the District Land and Housing Tribunal and direct that the case file be remitted back to the District Land and Housing Tribunal so that the village council is joined and hearing 16 proceed as required by law. In consideration of the circumstances of the case, I issue no order as to costs. It is ordered accordingly. Dated and Delivered at Sumbawanga this 02nd day of June, 2023.