NICHOLAUS SAMWEL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA CIVIL CASE NO. 15 OF 2022 NICHOLAUS SAM WE L......................................................................... 1stPLAINTIFF KIHILA WILLIAM............................................................................... 2ndPLAINTIFF MACHIBURA KARWINZE.................................................................... 3rdPLAINTIFF SENI KASHINJE.................................................................................. 4thPLAINTIFF MATHIAS MASAGANYA MAYALA........................................................ 5thPLAINTIFF PHILIPO MWENDESHA...................................................................... 6thPLAINTIFF DEUSEDRIT KASHANGAKI SIMON............ ..................... 7th PLAINTIFF TUMA SHITUNGURU AND 813 OTHERS........................8th PLAAINTIFF VERSUS NATIONAL RANCHING COMPANY LIMITED................. 1st DEFENDANT MINISTRY OF LIVESTOCK AND FISHERIES (Wizara ya Mifugo na Uvuvi)................... 2nd DEFENDANT THE ATTORNEY GENERAL............................................ 3rd DEFENDANT JUDGMENT 11/09/2024 & 10/10/2024 KIWONDE, J.: The plaintiffs instituted this representative suit praying for judgment and decree against the defendants for the reliefs below: (i) A declaration that the plaintiffs are the lawful owners of the pieces of land in dispute situated at Kitongojicha Rwenzige in i Kiteme Village within Kasharunga ward and kitongoji cha Nyakabingo in Nyamiland village, Kitongoji cha Nyamitundu and Butela in Kisana village within Kyebitembe ward in Muleba District in Kagera Region. (ii) A declaration that the defendants illegally trespassed (sic) into the plaintiffs' pieces of land (iii) A declaration that the establishment of Mwisa 2 project onto the plaintiffs' land is illegal and contrary to the law. (iv) Payment of punitive general damages as the honourable court may assess. (v) Payment of general damages as the court may assess. (vi) Cost of the suit. (vii) Any other reliefs this honourable court may deem fit to award. The defendants filed written statement of defence refuting the claims raised by the plaintiffs. During hearing of the suit, the plaintiffs had a legal service of Mr. Geofrey Kalaka and Fredy Gervas, learned counsels while the defendants were represented by Mr. Lameck Buntuntu, Senior State Attorney, Saidi Seni, Principal State Attorney and Victor Joseph Mhana, State Attorney. 2 In order to prove their case, the plaintiffs managed to bring six (6) witnesses. Where, PW1, one Seni Kashinje said the suit is instituted representing 831 residents of Kiteme village and leave to file representative suit was granted by this court vide Miscellaneous Land Application No. 47 of 2022; the ruling was admitted in evidence as exhibit Pl. According to this witness, the first defendant trespassed into the plaintiffs' land since 2017 as the land belongs to the plaintiffs. He said the suit land covers the Butela, Kisana, Nyakabingo and Kiteme villages and the latter was registered in 1978. The certificate of registration was admitted in evidence as exhibit P2, while the 90 days' notice of intention to sue was admitted as exhibit P3. Apart from that, PW1 testified that the first defendant allocated the land to the investors by dividing it in plots/blocks for grazing cattle. He said according to the Land use Plan 2019, the land was for residential, agricultural, mixed animal keeping, grazing land, forestry reserve and other social services. The Land use Plan was admitted as exhibit P4. Also, this witness said he has been on the suit land at Kiteme village since 2009 and they used it peacefully until 2017 when the first defendant started to disturb them. He added that in 2022 the families (kaya) found 3 in the MWISA-II project land were listed to show that they were eligible to be compensated for they were true owners of the land. He asked this court to order the land be returned to the villagers for them to enjoy it. When he was cross-examined by the State Attorneys, PW1 replied that he did not know the size of the land covered by Mwisa-II project and that his piece of land is not within the project land but he was affected by the project as the grazing land decreased. The witness acknowledged that the first defendant promised to allocate six (6) acres of land to each villager. According to PW2, Machibura Karwinze, he was born and lived in Kiteme village since 1952; however, he said he did not know how his parents acquired the land but he knew the family land was 50 hectares. This witness said that Kiteme village was registered in 1978 and the National Ranching Company (NARCO) encroached into their land in 2019 claiming that the land belonged to it. The witness said even the District Commissioner said the land belonged to NARCO. He said they were not compensated. As to the reliefs, the witness asked for NARCO to be evicted and the land be declared the villagers' property and cost of the suit be paid by the defendants. 4 In cross-examination, PW2 replied that the land belonged to his parents and it is the village land. Leave that alone, PW3 one Mathias Masagaya testified that he is the resident of Kiteme village since 03/02/1973 and he inherited the land from his parents. He said he is the hamlet chairman of Rwenzige hamlet. This witness said that in 2021 NARCO surfaced and wanted to survey the land accompanied by the Kiteme village chairman and the Village Executive officer. He said they were told that NARCO owned the suit land since 1974 but the area had villagers' houses. Moreover, PW3 told the court that when they had a meeting with the District Executive Director (DED), the Land Officers confirmed that the land in dispute belonged to NARCO and there were 844 residential houses but he did not know the actual size of the hamlet land. The evidence of PW4, Kihila William was to the effect that he has been in Rwenzige hamlet within Kitemi village since 2008. He formally applied and allocated land by the village authority about 40 acres for residential and agricultural purposes. The witness said he paid for it at TZS 5, 000/= but he had no receipts for they were burnt down when they were chased from the land by NARCO in 2021. 5 The witness said the village land was not acquired, not valuated and they were not compensated. The village authority gave them a certificate of its registration. When he was cross-examined, the witness replied that he did not know the boundaries of the village land but he just believed the village chairman that the land was a lawful village land. He said there were no village meeting minutes to show that the authority lawfully allocated them land but he was recognized by the District Authority. He said further that he was fighting for the village land. The witness, PW4 said he did not describe and specify the land in dispute and that it is the village which is suing the defendants in court. Besides that, PW5 Deusderit Simon Kashangaki told the court that he is residing in Kisana village within Kyebitembe Ward but at first, he lived in Nyakitori village. He said in 1969 he shifted to the other side of the land as they were told that the land was a Game Reserve now Burigi-Chato National Park. He said he owned 35 acres of land for cultivation and animal keeping. The witness said they paid for the said land but their documents were destroyed and that they were not compensated. When he was cross-examined, he replied that he knew only his land. 6 Furthermore, PW6, one Nicholaus Samwel said he went to Kiteme village in 2013 and allocated land by the village council the same year about 12 acres. He said he paid for it at TZS 20, 000/= but the receipts were burnt down when they were chased out by the first defendant. He said he claims for the land taken by Mwisa-II project for they were not compensated. The witness said they are shifted to Mashekulo street near the lake. The witness, PW6 said they are shifted to another place and Kiteme village was registered in 1978. But the witness said he does not know the size of the village land. During his cross-examination, PW6 replied that he did not inquire about the reserved land so he did not know if the land in dispute is a National Park. He said he did not describe the land and did not know if there was another owner. In re-examination, PW6 said NARCO was registered in 2021, so, the Kiteme village existed before NARCO. In defence, DW1, Kamugisha Mutagwaba said he was an employee of the Ministry of Livestock and a coordinator of the ranches. According to this defence witness, the land in dispute belongs to NARCO for he lived there for a long time until his retirement. He said the Government decided that 7 all land from North Mabale to the end of Burigi is reserved for animal keeping. The witness told the court that Mwisa-I project started from 1975 when he was to clear the bush and eradicate tsetse flies so that they could keep animals therein. He took over the office in 1983 but the activities of the project were interrupted by Kagera War and so, the policy changed to allow able individuals to run the ranches blocks within the Government land. The witness said further that some people from Sukuma Land and Ngote, between 2008 and 2009 trespassed into the land, strove for it for cultivating paddy. When he was cross-examined, he replied that the suit land was reserved for National Ranches since 1975 but the project implementation started in 1973 by transporting heavy equipment from Tanga. He said even if individuals were allowed to run commercial ranches, the land remained to be of NARCO but seven villages encroached onto it. He had no documents to that effect. Also, the defence witness said NARCO was issued with a Certificate of Occupancy on 4th January 2021 but the project started before such grant. In re-examination, DW1 said part of the project land was set apart to give to people not to continue trespassing into the land. 8 The defence evidence of DW2, Bwire Kafumu Mwijarubi is that he is an employee of NARCO as Operations and Production Manager dealing with infrastructure management and production. He said Mwisa-II is the lawful owner of the suit land as it started in 1973 through 1975 where phase I involved Kipulula, Kagoma and Mabale Ranches followed by phase II, the Mwisa-II project. The witness said that the project started by eradicating tsetse flies but the project activities were interrupted by Kagera war and the Government resumed the project in 2017 and there were some drawings of the area, division of blocks and allocation of the land to NARCO in 2021. The witness went on to say that before the land was surveyed, the villages were involved and 11,772 hectares were given to the identified needy families with no land while the bordering villages such as Kiteme, Nyamilanda and Kisana remained separate. The needy families were given six (6) acres each. The witness said, however, some people sued the defendants claiming that they were evicted from their original land while the land belongs to the government. He tendered NARCO Certificate of Occupancy which was admitted as exhibit DI. 9 The defence witness asked this court to declare that NARCO under the Ministry of Livestock and Fisheries owns the land, that the plaintiffs are trespassers and be ordered to vacate from the land. When he was cross-examined, he replied that in 1973 to 1977 the project started by eradicating tsetse flies and constructing firebreaks. He stressed that the declaration of the reserved land can be orally by the leader or sending it to the cabinet; but he did not remember if it was gazetted. Apart from that, he said the Government land used to have no certificates of occupancy and that there are 5000 acres are not yet allocated to needy people for they refused to accept six (6) acres. In re-examination, the defence witness said compensation is made if the Government acquires the land, which was not so in this suit. The other defence witness, DW3 Adolf Mutalemwa who told the court that he was employed by Muleba District Council as Land Surveyor. He said Mwisa project is the Government one since 1974 and the land in dispute was reserved by the Government. The project stopped in 1978-1979 due to Kagera war and resumed in 2017. Also, the witness said there was a team for educating villagers surrounding the project land and the team found people encroached the project land. The witness said they identified 2000 plus families. The 10 minutes of 18/02/2021 meeting was admitted as exhibit D2. Then NARCO was issued with certificate of occupancy; while six (6) acres of land out of 11, 000 hectares were given to needy families each. Some accepted but some refused. When the defence case was closed, the counsels and the State Attorneys asked the court to allow them to file final written submissions. Only the defendants did so. In nutshell, the defendants' final written submissions are to the effect that Mwisa project started in 1973 to 1975 but its implementation was hindered by inadequate fund due to Kagera war of 1978 where there was a National economic Depression and so Mwisa-II project was postponed. In arguing issue one, the State Attorneys said the priority principle of law is that where there are two or more competing interests on the land, the one who came first in occupation of it prevails citing the case of Gasper Albert Komoro Versus Mushi Said Mkumba, Miscellaneous Land Appeal No. 110 of 2021 [2022] TZHC Land D716 (25th July 2022) TanzLii in which it was held inter alia that the first to come into possession of land has superior interest in land and all defence witnesses, DW1-DW3 said Mwisa project was the first to occupy such land in dispute. ii Besides that, the defendants said the plaintiffs failed to prove that they occupied the land before independence and PW1 said the land belonged to his parents but it was not proved if he was bequeathed with the same in the absence of the Probate Cause which appointed him administrator. They said the plaintiffs said they were allocated land in different years without proof of minutes of the authority and no receipts were brought to court. In addressing the second issue, the defendants said the plaintiffs failed to prove the case at the balance of probability as their testimonies were full of discrepancies. In law, he who alleges must prove. Every one alleged to own his specific land which required proof. The certificate of registration of the village, exhibit Pl proves nothing and that the Land Use Plan did not prevent Mwisa project. Leave that alone, the defendants said the giving of six (6) aces of land to needy families was not a compensation but according to local content principle that every project has to ensure the surrounding society benefits from it. As to adverse possession, the defendants said the principle does not apply to Government land under section 38 of the Law of Limitations Act, cap 89 (R. E 2019). 12 Finally, as to issue three, the defendants said the suit be dismissed. The first defendant acquired land by Tanganyika Order in Council 1920 and the Land tenure ordinance, 1923 declared all land, whether occupied or not, a public land. The issues framed by the court with the assistance of the counsels for the plaintiffs and the State Attorneys at the final pre-trial conference are: i. Whether the suit land is a declared agricultural land (for farming only). ii. If the answer to the first issue is affirmative, whether the suit land belongs to the plaintiffs. iii. Reliefs each party is entitled to. In determining the first issue, there is no evidence to prove that the suit land was declared agricultural land (for farming only). Even in exhibit P4, the Kiteme village Land Use plan 2019, the village land was planned for residential purposes, agriculture, animal husbandry, mixed land use, grazing, village forest reserve and other social services. This is supported by the plaintiffs' evidence that they carried on such activities on the land. Also, the suit is not only about a single Kiteme village, it involves other villages such as Nyamilanda and Kisana. Thus, the plaintiffs had to lead evidence to prove the first issue that the suit land as declared to be solely 13 for agriculture only. Therefore, in the absence of evidence, it cannot be certainly said that the suit land was declared for farming only. The first issue is answered negatively. Concerning the second issue, that is, whether the suit land belongs to the plaintiffs, I concur with the defence that in civil cases the burden of proving the suit lies on the plaintiffs and the case has to be proved at the balance of probability. In the suit at hand, the plaintiffs failed to discharge such duty. This is because the evidence of PW4 is that it is the village which is suing the defendants in court. He said he was fighting for the village land. But the said village is not made party to the suit, rather, individuals representing their fellows. Also, the villages are the local Government Authorities, if it was true that they fight for their land they would sue in their capacities. So, even reliance on the exhibit Pl, a certificate of registration of Kiteme village was immaterial. The available evidence shows that the witnesses of the plaintiffs' case each mentioned his own land at the trial. For instance, PW2 said the family land was 50 acres PW 4 said his land is 40 acres, PW5 had 35 acres and PW6 said he had 12 acres of land. Under paragraph 4 of the plaint, it was pleaded that every plaintiff owns land individually in the said hamlet and or villages. However, all witnesses said they did not describe such lands 14 to identify boundaries and they did not know the size of the land in dispute. This entails that they testified on the subject matter they did not know. For example, PW6 said he did not inquire if the land he was given was reserved land and he did not know if there was another owner. Apart from that, PW1 said his land is not within the project land but he is affected by it since the grazing land has decreased. This indicates that this party has no interest in the suit land so he cannot claim for it. Then PW2 said he did not know even how his parents got the land and PW3 said he inherited the land in dispute from his parents but there was no such evidence and PW4 said when he was allocated the land, he merely trusted the village chairman that the land legally belonged to the village. There were no minutes to show that the said allocation of land to this plaintiff was valid. Therefore, for those who went into the suit land in 2008, 2009 and 2013 must have been given the land belonging to another owner, the National Ranching Company (NARCO). Moreover, the evidence of PW5 is crucial. He said he started living in Kisana village, Kyebitembe Ward in 1972 but before that, he was in Nyakitori. By so saying, the witness was trying to show that he has been in the area before NARCO. However, the same witness said in 1969 it was 15 declared that the land was reserved for Game Reserve which is now Burigi- Chato National Park. He said the Wakungu (ten cell leaders) gave him 35 acres of land in another side. This supports the defence evidence that the land in dispute was reserved for government use. If they were not compensated at that time, they had to claim for it. The plaintiffs' claims for compensation today in this suit are misplaced. I am aware that in law, when the government acquires land from people it must ensure payment of fair and adequate compensation. If it violates the same, the parties are at liberty to sue the government for compensation but at the right time. It is shown in evidence that the land in dispute was left from 1978 and NARCO resumed the project in 2017. In the defendants'final submissions, it is argued that the plaintiffs could not acquire the land by adverse possession since it is a public land. I concur with the arguments because under section 38 (a) of the Law of Limitations Act, Cap 89 (R. E 2019), no person can claim interest in the public land by adverse possession. Thus, the principle does not apply under the circumstances of this suit. It is in evidence that NARCO started its Mwisa project since the year 1973 as phase I, in the suit land. It occupied it from then. Then Mwisa-II was revamped in 2017, when the land was surveyed and in 2021 the certificate 16 of occupancy was issued. The defence evidence shows that at first the government land had no titles that is why the project started by oral declaration of the reserved land. Therefore, the issuance of the certificate of occupancy to NARCO in the year 2021 had no bearing to affect his title over the land previously lawfully owned. That being not enough, the Government took more steps to identify the needy families which had no land and found to have trespassed into the land owned by NARCO and let 11,000 hectares to be given to these families six (6) acres each and that until now there are 5000 acres not yet given to those who refused them. Likewise, the evidence shows that the plaintiffs are given an alternative land of Mashekulo but they are claiming for the original suit land to be theirs. From the evidence analysed above, I find and hold that the plaintiffs failed to prove at the balance of probability that the suit land belong to them. The second issue is answered negatively. Finally, the third issue as to reliefs the parties are entitled to, the plaintiffs are not entitled to the claims they prayed for failure to prove the case at the required standard. The first defendant, National Ranching Company (NARCO) is the lawful owner of the suit land and the plaintiffs are trespassers therein. 17 Consequently, the suit is dismissed with cost for want of merits. Dated at Bukoba this 10th October 2024. JUDGE 10/10/2024 Court: Judgment is delivered in chamber in the presence of Mr. Said Seni, Principal State Attorney, Mr. Lameck Buntuntu, Senior State Attorney and Victor Joseph Mhana State Attorney for the defendants, Mr. Fredy Gervas counsel for the plaintiffs, the 1st, 2nd, 3rd, 5th, 7th plaintiffs and Grace Mutoka (RMA) but in the absence of the 4th, 6th and 8th plaintiffs this 10th October 2024 and the right of appeal is explained. rWW/7 F- H- KIWONDE JUDGE 10/10/2024 18