20170328 TZHC Mbeya2

IN THE HIGH COURT OF MBEYA AT MBEYA LAND APPEAL NO. 26 OF 2016 (Arising from Rungwe District Land and Housing Tribunal, Land Application No. 1012014) MWAIKIMBA K.ASEBW1A ........................................... APPELLANT VERSUS MWENYEKITI SERIKALI YA KIJIJI KANDETE .... RESPONDENT JUDGMENT Date of last Order: 2310212017 Date of Judgment: 2810312017 A.F. NGWALA, J. The thirteen points in the Memorandum of Appeal by the appellant are contesting the Judgment and Decree of the District Land and Housing Tribunal for Rungwe dated 04/02/2016. The said points in the said Memorandum revolve around three grounds of appeal namely; one lack of proof of evidence that the disputed land or suit land is in Kandete Township or it is the landed property of the respondent. Secondly the opinion of assessors was notrecorded or considered at all as required by law and lastly compensation to the original owner Page lof 13 of the suit land was not effected as the suit land was illegally acquired. At the hearing of the Appeal the appellant who was unrepresented wondered if the chairperson was centered with power to grant the land of the appellant to the District Council of Busokelo without following the relevant laws of this country which require the District Council to compensate the appellant before acquiring the disputed land. The appellant went on contending that there was no document or title to prove that the area of Kandete Village or Kandete Village Council falls within the Busokelo Township or Busokelo District Council which was tendered in court to prove their claims. The appellant argued that there was no order or directive of the Land Commissioner which declared the Village Council of Kandete to destroy the crops in the farm of the appellant. The Chairman did not record or put in the proceedings the observations at the scene, when the tribunal visited the disputed land on 02/10/2015. He insisted that in 1968 the Busokelo District Council had not been established, but the respondent claimed that the disputed land was surveyed, while it was the Rungwe District Council which was the incharge of the affairs in that area following the years the appellant had been using the land without any interference from the Rungwe District Council. For these reasons the appellant prayed the decision of the District Land and Housing Tribunal for Rungwe to be set aside and hç be given his right. Page 2 of 13 The respondent who was represented by Mr. Salama the District ) Solicitor submitted in reply that Kandete is a planned area since 1968. It was revived in 1995. It was declared to be a planned area in 2006. All the documents were tendered in the trial tribunal to prove this fact. On the argument that the document which is the map of the Township planning that was not tendered and ought to have been tendered Mr. Salama prayed for leave to produce the same in this court. Regarding the issue of notice as contended by the appellant, the respondent's Counsel argued that the same was serve to all the people who had encroached the road reserve. These included the appellant. As regards the visit to locus in quo, he agreed that the visit was conducted on 02/10 / 2015. The Counsel however was not sure if the proceedings indicate that because he was not in possession of the copy of the tribunal's proceedings. Mr. Salama conceded the fact that the Busokelo District Council was not established in 1968. He argued that the same was not a matter in issue as the dispute was over trespass to land. The tribunal framed the issue that concerned who was the owner of the disputed land. Mr. Salama submitted that there was no destruction of the appellant's crops in the disputed land. He argued further that if the villagers land had been taken then the Land Acquisition Act would have been followed. The disputed land was a Public land for the intended project which Page 3 of 13 - was also for the benefit of the appellant. According to Mr. Salama, if the District Land and Housing Tribunal would have decided in favour of the appellant, it would have been gross injustice because a number of other villagers were affected by clearance of the their lands. For these reasons he prayed the Village Council the respondent should be allowed to proceed with their programme of clearing the disputed land. The appellant in his rejoinder insisted that the exhibits tendered were not correct. The incident took place on 29/07/2013 while the notice was written on 23/11/2013. It was after the expiry of four months after the respondent had destructed and destroyed the crops in the disputed land that the same was issued. The map which the respondent's Counsel contends was the proposed one was not approved and registered. The document on attendance of the village meeting which was tendered as exhibit was also forged, as the names were not clearly indicated. The appellant reiterated that it was not true that everybody had his land cleared. Otherwise they could not have filed the claim before the tribunal. In view of the submissions for and against this appeal, this court is enjoined to resolve the following grounds:- Whether or not the disputed land belonged to the appellant? Whether or not the respondent was entitled to acquire the disputed land and declare it as a road reserve? Page 4 of 13 3. Whether or not the appellant is entitled to compensation ) where the land is declared as a surveyed area as claimed? Regarding the first ground, it is in record that the Kandete area was surveyed in 1995. The appellant and his family had stayed on the disputed land from 1960's. The survey of 1967 as alleged by DW1 Philimon Mwakivone the Town and Regional Planning Officer of Busokelo District Council was never tendered in the trial tribunal as exhibit. In the proceedings of the tribunal there in nothing to indicate that the said survey was conducted as it is not in the record. It is only the map of that survey of the year 1995 that was tendered before the tribunal as exhibit "D2" and Tom Planning as exhibit "D1" but they are not in the records that is. It is a trite principle that the exhibit which was never admitted, tested or tendered as exhibit cannot be relied by the court in the Judgment. The District Solicitor for Busokelo argued in support of the averment but the record does not reveal the same. It seems the learned Chairman of the District Land and Housing Tribunal relied on extraneous matters that did not form part of the evidence adduced by the parties to the case. The Court of Appeal of Tanzania stated the consequences of the courts to rely on documents not tendered and admitted in evidence in the case of Shemsa Khalifa and two others v. Suleiman Hemed Abdallah, Civil Appeal No. 82 of 2012 which this court also adopted in the case of Mwanaharusi Sadick v. Mary Jumanne, PC. Criminal Appeal No. 22 of 2014 at Mwanza (both unreported):- Page 5 of 13 - "At this juncture, we think our main task is to examine whether it was proper for the trial court and other subsequent courts in appeal to rely upon, in their Judgments, the said document which was not tendered and admitted in court. we out rightly are of the considered opinion that it was improper and substantial error for the High Court and all other courts below in this case, to have relied on a document which was neither admitted in court as exhibit. We hold that this led to a grave miscarriage of justice." There is no doubt that the appellant's crops were destroyed. This is evidently shown by DW2 who stated that his land also was taken by the respondent for the purpose of clearing the road but he did not complain anywhere. Not only this but also the counsel for the respondent in his submission to this court on the very point stated:- "... it would be injustice because a number of villagers were affected by clearance of their lands" This statement plainly reveals that it is true that the appellant's crops were destroyed as alleged. Consequently this court holds that the appellant owned the disputed land. More so it is in the record that DW1 at page 10 of the typed proceedings of the District Land and Housing Tribunal for Rungwe conceded that he went to inspect the suit land, and found that the appellant had planted permanent crops thereat. But he being the Land Officer never disclosed the fact that it was the appellant who had trespassed into the disputed Page 6 of 13 land. Again, at page 11 in paragraph 3 of the said proceedings DW1 stated:- "In the year 1967 the Village Government was the owner of the land. There were Villagers in 1967 but the Villagers were under Chiefs." This statement corroborates with the testimony of PW 1 and PW2 who testified that they were born and have been living in that area from 1960's. They have been using the land in dispute. All these show that the disputed area was owned and used by the appellant even before the establishment of Busokelo District Council and the alleged surveys and plans. Though the Counsel for the respondent argued that the villager's land had been taken, then the Land Acquisition Act would have been followed however in the trial tribunal it was testified that even before 1968 there were Villagers in Kandete area which was occupied by the Villagers. This court takes judicial notice that the disputed area was then under the Rungwe District even before the villagization policy. People lived together in a community because this is one of the densely populated areas in Tanzania where people owned land under the Nyakyusa customary land tenure. The acquisition of any land from the original owner or inhabitant land owners must follow the provisions of the Land Acquisition Act as it was stated in the case of Mulbadaw Village and 67 others v. NAFCO (1984) T. L. R. 15. In which it was held inter alia that:- Page 7 of 13 "Land Acquisition Act No. 47 of 1967 applies also to land held under customary tenure. The provisions of the Land Act (No. 47 of 1967) were not followed in acquiring land belonging to Mulbadaw Village Council and Mulbadaw Villagers and therefore such acquisition was unlawful. When someone is in lawful occupation of land no valid right of occupancy can be offered to anyone else over the same land unless the provisions of the Land Acquisition Act (No. 47 of 1967) have been complied with." It follows therefore that if the respondent wanted to acquire the disputed land for the road then she out to follow the proper procedures in the acquisition. The essence and purpose follows in the meaning of Public interest as defined in the case of A. G. V. Sisi Enterprises Ltd, Civil Appeal No. 30 of 2004 the Court of Appeal of Tanzania at Dar es Salaam (unreported). It is known as we all know that all lands in our Country belongs to the President of the United Republic of Tanzania. So he who acquires any land that is needed for the Public interest, can acquire it after he had exhausted all the remedies to the previous owner including payment of compensation. In the instant case it is alleged that the Village Council had taken the disputed land for the purposes of road and it started to clear it. Here the issue is whether, in the land located in the Village, the Village Chairman has power to reallocate the land which is owned by a villager? The answer is crystal clear that the village land is entrusted to the Village Council as per Section 8 of the Village Land CAP. 114 R. E. 2002. So all matters Page 8 of 13 relating to land management, allocation, revocation, supervision and other activities are controlled by the Village Counsel. In the instant suit however it is not indicated whether the Kandete Village Council had sat for the revocation of the land in dispute. The record shows clearly that the Kandete Village had convened for a meeting organization on how they could clean the surveyed areas which was held on 22/07/20 13. In the said meeting the agendas discussed did not include to revoke the disputed land as required by the law. In the circumstances therefore the respondent had no power in law to declare the disputed land as a surveyed area. The second ground therefore is answered in negative, accordingly the ground of appeal has merit. Regarding the third ground the Counsel for the respondent contended that the disputed land was survey way back in 1967. In the already analysed evidence on this record, this fact was not clearly established in the trial tribunal. It is vivid that even if the land was declared a planned area and at the same time it was owned under customary law cannot automatically be rendered a squatter that can render the rights over the land of the original owner or customary owner to be lost. These words were elaborated in the case of Methusella Paul Nyagaswa v. Christopher Mbote Nyirabu (1985) T. L. R. 103 in the which the Court of Appeal of Tanzania held that:- "A holder of a right of occupancy under native law and custom does not automatically become a squatter when area is declared a planning area." Page 9 of 13 Again ownership of land in a planning area does not extinguish the deemed or Customary Right of Occupancy. The same is extinguished upon payment of compensation. In the instant case DW 1 at the trial tribunal at page 11 of the typed proceedings at paragraph 4 testified that:- I quote; "The normal procedure is that when the land is planned to be surveyed the owners ought to be notified and the valuation has to be done for the compensation purposes." These words were also stated in the land mark case of Suzana Kakubukubu v. Waiwa Joseph Kasubi (1988) T. L. R. 119 in which it was stated that:- "Payment of compensation to a holder of a deemed right of occupancy or to his agent or to his representatives extinguishes that right." In the instant case, the appellant argues that if those surveys were done, then the appellant who had not been compensated so that his rights over the land had to be extinguished. In the typed proceedings by the District Land and Housing Tribunal, DW1 testified that:- "There were Villagers even before independence. The dispute before this tribunal does not concern compensation but the crops which were planted by Mwaikimba, (the appellant), the applicant has no land or crops which are found at reserved area for certain purposes. That the usual procedure is that the one who Page 10 of 13 trespassed the land ought to be notified within 14 days in order to remove the crops or anything at the land." These words suggest that the appellant was never compensated as required by the law. There was no any other alternative taken by the respondent apart from compensation or re allocating another land to him if they seriously wanted his land for Public interest as they alleged. Worse his crops were destroyed or destructed. The Notice that is alleged to have been issued to the appellant is dated 23/11/2013. The meeting for that purpose was held on 22/07/20 13. This notice which was written after the expiry of four months does not indicate if the same was served to the appellant. The appellant also complains over the decision of the District Land and Housing Tribunal that offends the provisions of Section 24 of the Land Disputes Courts Act, 2002 as the same requires the learned Chairman to account to the opinion of the assessors. The led provision provides thus:- "24 in reaching decisions the Chairman shall take into account the opinion of the assessors but shall not be bound by it, except that the Chairman in the Judgment give reasons for differing with such opinion." In my perusal of the said Judgment and the proceedings, it is indicated that the learned Chairman never complied with this requirement. It must be understood that the provision uses the word "shall" which is a mandatory requirement. Under the Page 11 of 13 Interpretation of Laws Act [CAP. 1 R. E. 20021 the word "shalf' is C interpreted under Section 53 (2) of to mean:- "Where in a written law the word "shall" is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed." As this mandatory requirement was not complied by the Chairman, the omission is an incurable defect which affects the Judgment, Decree and all the orders arising there from. The District Land and Housing Tribunal ought to have complied with the requirements of the law/Act. The irregularities discussed in this appeal are fatal and they cannot afford an excuse because they have occasioned the failure of justice. All in all from the analysis made this appeal has merit. The appellant was the lawful owner of the disputed land. The respondent erroneously and illegally proceeded to destroy his crops. The respondent cannot acquire that area without following the proper land procedures in acquisition of the land which include prompt and fair compensation. Accordingly the appeal is allowed with costs. URT vzl Avxty A.F. Ngwala 1> WA Judge 28/03/2017 Page 12 of 13 4 - I Date: 28/03/2017 Coram: A. F. Ngwala, J. Appellant: Present For Appellant: unrepresented Respondent: Present For Respondent: Mr. Salama (Advocate) Court: Judgment delivered in Court in the presence of parties. Court: Right of Appeal to the Court of Appeal of Tanzania explained. -44", A.F. Ngwala Judge 28/03/2017 Page 13 of 13