nyamhanga ngarare vs kemange village council and 2 others 2012 tzhclandd 119 28 september 2012

IN THE HIGH COURT OF TAN ZAN IA IN THE DISTRICT REGISTRY OF M W ANZA AT MWANZA LAND APPEAL No. 93 OF 2008 [Originating from District Land and Housing Tribunal of Tarime in Land Appeal No 2of 2 0 0 8 ] NYAM HANGA N G’A R A R E ...........................APPELLANT VERSUS 1.KEM ANGE VILLAGE C O U N C IL ...... ^ 2.M ASIAGA CHACHA M ATINYI................ ^RESPONDENTS 3. ELIASI M ATIKO CHACHA MATINYI. j JUDGMENT MRUMA, J. The ap p ellant N yam ahanga Ng’a ra re instituted a land suit before the District Land and Housing Tribunal of Tarime seeking for a declaration that he was the law fully owner of a piece of land measuring 1.5 acres which is situated at Kem ange V illag e in Tarime District. He also p rayed for general dam ages for trespass at the tune of T.shs 5 ,0 0 0 ,0 0 0 / = and costs of the suit. The respondents a re the Kemange V illa g e Council, M asiag a M atinyi and Elias M atiko Chacha M atinyi respectively. After hearing both parties the District Tribunal ruled in Respondents’ favour. In its Judgment the District Land and Housing Tribunal held that the Kem ange V illa g e Council being a trustees and V illag e Land Allocating Authority and after adhering to all due process had all legal power and had law fully allocated the suit land to _ <4 _ the 3 rd Respondent Elias Matiko Chacha M atinyi. The trial tribunal directed that the appellant Nymhanga N g’a ra re should accept compensation from the 3 rd respondent for his 1 6 0 0 trees found in the suit land and an alternative land from the l s1 respondent. The 2 nd Respondent M asiga Chacha M atinyi w as said to have no liability. It is this decision which aggrieved the ap p ellant and has decided to come to this court armed with four grounds of a p p e a l. In his first ground of a p p eal the app ellant is complaining that the District Tribunal erred in law and in facts in not declaring him to be the law fully owner of the suit land. The second complaint is that the District Tribunal erred in law and in facts in declaring the 3rd respondent the owner of the land despite the fact that the appellant w as in occupation of the land for over 2 0 ye a rs. In his third ground, the appellant states that the District Tribunal erred in law and in facts in refusing to consider the respondents evidence i.e. the minutes of the Kam ange V illag e council which w ere not signed by members And fin ally that the District Tribunal erred in law in declaring the 3 rd respondent Elias Matiko Chacha M atinyi the law fully owner of the suit land despite the fact that there w as no any pending application before the Ministry of Education for starting a secondary school in Kemange villag e . Arguing the a p p e a l before me, the ap p ellan t who w as not represented reiterated what is stated in his grounds of ap p eal and insisted that he lives in a house which is on the suit land and that he has developed the land by planting therein coffee trees, banana plantations, mango trees and a sisal fence. Mr. N kanda, learned advocate who advocated for all respondents submitted that in this matter there is no dispute that the app ellant w as occupying the land and had developed it by planting mango trees, coffee trees and banana plantations but the issue in this case should be whether or not the app ellant was ad eq uately compensated. The learned counsel stated that the judgment of the District Tribunal is ve ry cle ar that the appellant had refused to accept compensation o ffe re d . The counsel said that although the Judgment does not show what was the amount of compensation but it would a p p e a r that the value of the suit land w as T.shs 1 5m /= Finally, the learned counsel submitted that following his grant by the V illa g e Land Allocation Committee, the 3 rd respondent Elias M atiko Chacha M atinyi have a lre a d y acquired the Right of O ccupancy over the said land. He therefore invited this court to a p p ly the provisions of Section 33 of the Land Registration Act [C ap 3 3 4 R.E. 2 0 0 2 ] in determining the lawful owner of the much disputed piece of land. Those w ere the arguments for and against this a p p e a l. The back ground of this case is straight fo rw a rd . It shows that the ap p ellant is a resident of Kemange V illa g e and he lives there. The first respondent is the V illa g e Government of Kimange. The second respondent M asiag a Chacha M atinyi is also a resident of that V illag e and like the app ellant he lives there. The third respondent Elias Matiko Chacha M atinyi too is a resident of that Kimange V illag e. In his evidence before the Tribunal the app ellant told the trial tribunal that he was allocated the suit land by the V illag e Land Allocation Committee on 14th August 1 9 8 7 . He annexed to his application a letter of o ffer (annex N) and contended that despite the fact that he w as o fficially allocated the suit land in 1 9 8 7 actually he had been occupying it since 1 9 7 1 . He called one witness Jam es Wambura Runanda PW2 (76 y e a rs), who introduced himself as a retired member of V illag e Land Allocation Committee who confirmed to the Tribunal that the suit land w as allocated to the appellant in 1 9 8 7 . W am b ura said that sometimes in 1 9 9 4 there was a dispute over boundaries of that land between the appellant and the 2 nd and 3 rd Respondents. The dispute w as not resolved. In its defence, the first Respondent the V illa g e Council of Kemange called one witness Stephen M ag ed a Cheche D W 2 (31 years), who w as its V illa g e Executive O ffice r at the time of the hearing of this matter before the District Tribunal to testify on its behalf. This witness denied the V illag e Council to have had ever allocated the disputed piece of land to the appellant. He however conceded that the appellant w as occupying that land from 1 9 7 1 . He didn’t tell up to when he w as occupying it. He however told the trial tribunal that the ap p ellant sold it (he didn’t disclose to whom it w as sold) and between 1 9 7 5 and 1 9 7 7 it was occupied by one N yagebu Tekelo. The said N yaregu Tekelo abandoned it and in 19 88 the 3 rd respondent app lied to the V illag e Council to be allocated that land for purposes of constructing a school thereon. The V illag e Land Allocation Committee g ave the 3 rd respondent some conditions to comply with before he could be allocated that land. According to this witness one of the conditions was to compensate the previous owners of that land. He said further that all the previous owners w ere compensated except the appellant and another person who refused compensation. Other evidence worth reviewing for purpose of this ap p eal is that of S ia g a M aricha D W 4 (78 years old) a peasant of Kemange V illa g e . In his testimony S ia g a M aricha (D W 4 ), said that he didn’t know why his name a p p e a re d in the minutes of the Committee which is said to have had allocated land to the appellant while at the m aterial time he w as a public officer working with the government hospital. He said he didn’t know any dispute involving the appellant and the Respondents. On the other hand Stephano M agesa Ib ag a D W 5, told the tribunal that in 1 9 9 4 when he was the V illa g e Executive O ffice r of Kemange V illa g e the third Respondent app lied for a land on which he could built a school. He (D W 5) convened a meeting of the Land Allocating Committee of the villag e which w as dully convened and allocated the suit land to the 3 rd Respondent on condition that he compensates the previous owners. Some of the owners w ere compensated but the appellant refused. N yigeg a M arw a D W 6 , told the District Tribunal that in 1 9 9 4 he w as the chairman of Kemange V illa g e Council. At that cap acity (as a V illa g e Chairm an), he w as informed by the V illag e Executive O ffice r that the 3 rd Respondent had bought land for purposes of constructing a school thereon and that he was applying for more land. He (D W 6) instructed the V illag e Executive O ffice r (VEO ) to convene a meeting of the V illag e Council. The V illa g e Council met and ag reed to allocate some more land to the 3 rd Respondent and it directed him to compensate previous owners of the land. That w as the evidence adduced at the trial. In its judgment the trial District Tribunal w as of the view that although the suit land was previously occupied by the appellant Nyam hanga N g’a ra re but it had been le g ally granted and re­ allocated to the 3 rd Respondent Elias Matiko Chacha M atinyi. The tribunal held that; “ .......................... Reading fhe pleadings, the testimonies o f the parties together with oral evidence of their respective witnesses, there is really undisputed [sic] that fhe land in dispute was previously occupied by the applicant Nyamhanga N g ’arare regardless o f whether he was issued with a paper o f owners” Further to that, the tribunal observed that; “ There is also no dispute that fhe 3 rd respondent was on 70 th August 1994 granted fhe suit land by the 1st Respondent fo r construction o f a secondary 10 school. That the 3 rd Respondent, Elias Matiko Chacha subsequently acquired a certificate of occupancy with title No 14 794 dated 0 2 nd March 2 0 0 4 registered on 2 4 th April 2 0 0 4 ” From the foregoing findings and orders of the trial tribunal, the first issue which I should resolve in this a p p e a l is whether on the evidence on record the 3rd Respondent w a s legally allocated the suit land by the the Village Land Allocation Committee. In arriving at its conclusion that the V illa g e Committee had leg ally allocated the suit land to the 3 rd respondent, the tribunal •* seems to be influenced by the evidence of D W 3 , D W 2 , and D W 1. In his evidence before the Tribunal the 3 rd Respondent Elias Matiko Chacha M atinyi who testified as D W 3 , told the trial tribunal that he ap p lied to the V illag e Land Committee for the suit land on 22nd Ju ly 1994 and that on 10th August 1994 the suit land w as form ally handed over to him with a direction that he should compensate previous owners of the land. It is his further evidence that because he app lied and the land was form ally handed over to him he had caused it to be surveyed on 27th April 1994. Consequently following the survey a certificate of the right of occupancy No 14794 in respect of Plot No 2 Block A LO No 1860471 w as issued in his favour Now starting with his own evidence, w hereas he told the Tribunal that he lodged his application to be allocate the suit land on 22nd Ju ly 1994 and that he w as allocated and the suit land w as form ally handed over to him on 10th August 1994, he said that he surveyed it on 27th April, 1994, which means that he caused it to be surveyed four (3) months before he had applied for the same land and four (4) months before the land was form ally allocated to him by the V illag e Council. This w as un-procedural and it m ay suggest that the 3 rd respondent had an access to the ap p ellan t’s land long time before the land w as “form ally handed over to him” Secondly, this evidence is at variance with the testimony of M asiag a Chacha M atinyi D W 2 , his young brother who told the Tribunal that the suit land w as surveyed under his supervision on 19 th August 19 98 in presence of the ten cell le ad e r and the applicant who showed them his trees. Another evidence which contradicts his testimony is the evidence of Steven M ag ed a Cheche D W 1 , the V illa g e Executive O ffice r (VEO ) of Kem ange V illag e who said that N yagebu Tekelo abandoned that land in 19 88 and the 3 rd Respondent applied for it. There can be no doubt that what this witness told the tribunal is what he heard from other people. He w as 31 ye a rs old when he g ave his evidence on 14 th M ay 2 0 0 8 . This means that he w as 11 years old in 1 9 8 8 when N yagebu Tekelo is said to have abandoned the suit land and the 3 rd Respondent applied for it. W hen the ap p ellant is said to have sold the land in 1 9 7 5 this witness w as not yet born. He didn’t tell the Tribunal that he was testifying in his cap acity as the V EO and that what he said it was according to the records in his office. Had he said so he was bound to produce the records he w as talking about otherwise what he said w as hearsay. Had the trial tribunal being keen in analysing the evidence adduced before it, it would have found that there w ere serious contradiction on the date(s) the third respondent Elias Matiko Chacha M atinyi is claiming to have had ap p lied for the suit land. W h ereas the evidence of DW1 is to the effect that it was in 1 9 8 8 , his own evidence is to the effect that it w as in 1 9 9 4 . Another contradiction is on the date the suit land w as surveyed. W h ereas the 3 rd respondent says that it w as surveyed on 2 7 th April 1 9 9 4 , his witness M asiag a Chacha M atinyi (who is his young brother) said that the suit land w as surveyed on 19 th August 1 9 9 8 . These contradictions w ere never reconciled. The only conclusion that could be fa irly against such evidence is that the alleged application and consequently allocation of the suit land to the 3 rd respondent w as not real. Now had the evidence of D W 1 , D W 2 and D W 3 been discredited by the trial tribunal as it ought to have been treated , the only evidence remaining about allocation of the suit land to the 3 rd Respondent would be that of D W 5 , Stephano M agesa Ibega who said that in 1 9 9 4 he was a V illa g e Executive O fficer (VEO ) of Kem ange V illa g e and that in that cap acity he convened a meeting of the V illa g e Land Committee which allocated the suit land to the 3 rd Respondent and that of N yig eg a M arw a D W 6 , who said that in 1 9 9 4 he was the Chairm an of the Kemange V illag e Council and that in that capacity he instructed the V EO to call a meeting which allocated the suit land to the 3 rd 15 Respondent. But there is no evidence whatsoever suggesting that in the alleged re-allocation, the V illag e Committee (if any) complied with the requirements of the and particularly Part IV and particularly Sections 12 (1)(b), 22(1 )(3)(a)and(b), 23 (1)(2) and (3) and/or Section 32 (1) and (2) of the Village Land Act [Cap 114 RE 2002] But even if there had been evidence to that effect and there was such allocation (which is not the case here), the next question would be whether a Village Council could law fully allocate land which is within its jurisdiction but which is under possession of another person who is developing it. This question is important in view of the evidence of the appellant which is supported by that of James W am b ura Runanda (P W 2 ), that he w as form ally allocated the suit land by the V illag e Council and that of M asiag a Chacha M atinyi (D W 2) and Elias Matiko Chacha M atinyi (D W 3) who adm ittedly testified that the appellant had developed the suit land by planting some 16 permanent and perennia I trees on it. In the case of Village Chairman KCU Mateka V s Antony Hyera (1988) TLR 188, a similar situation w as discussed by this Court (Mrosso Jas he then w as), and it w as held that a villag e government which allocated land which is a lre a d y under development and in the possession of another person would not only bring lawlessness and anarchy to the V illag ers but would also retard the development of the V illag ers. In another case of Lucas Masirori Kateti Vs Sebeae (1969) HCD n 11. this court warned V illa g e Development Committees to use their powers justly and w isely instead of creating discontent among the inhabitants whom they are entrusted to look a fte r. In that case the Respondent had a lre a d y been allocated land. The V illag e Committee re-allocated the same land to the appellant in that case. The Court held the second allocation void. I associate myself with the decisions in those two cases and give a stronger warning to Kimange V illag e leaders. W h a t w as done in this case w as actually land grabbing which cannot be endorsed by a court worth the name. If for instance w e go by the 3 rd respondent’s own evidence he caused the ap p ellan t’s land to be surveyed four months before he submitted his application to the V illag e Council for allocation of that land. The survey w as done on 2 7 th April 1 9 9 4 and the application w as submitted on 2 2 nd July 1 9 9 4 . The land was form ally handed over to him on 1 0 th August 1 9 9 4 . Adm ittedly he has now been issued with a certificate of the Right of Occupancy No 1 4 7 9 4 over plot No 2 Block A for a medium term of 6 6 ye ars. Now, what would be the status of that grant in view of what has been observed above? Mr. N kanda, learned counsel who advocated for the respondents has submitted that in such a situation, Section 33 of the Land Registration Act [Cap 334 RE 2002] comes into p lay. G e n e ra lly the provisions of Section 33(1) of the Land Registration Act [Cap 334 RE 2002], gives the registered owner of land paramount rights over unregistered owner. However, there are exceptions to that general rule. The first exception is that the grant and registration of the right of occupancy must be free of frau d . [See Section 33(1) of the Land Registration Act [Cap 334 R.E. 2002], Now the logical question that follows is; can we say boldly and without blinking our eyes that the 3 rd respondent Elias Matiko Chacha M atinyi w as granted the Right of Occupancy •* over the suit land le g ally and free of fraud? The answer to this question can be a difficult one and particularly so where the issue of fraud is involved. However, as I have a lre a d y held and in view of the decision of this Court in the case of Mateka Village Vs Antony Hyera (supra), the V illa g e Council had no right and power to allocate or re-oBocate land to a villag er which w as in possession of another villag e r without the consent of that villa g e r. In the case a t hand the consent of the appellant w as not obtained and the amount of compensation he is said to have refused is not disclosed. In other words it was left at the whims of the third respondent to decide how much he would p a y as compensation. There is evidence that the appellant w as in possession of the suit land since 1971 and that he held it under customary right. There is also unchallenged evidence that in 1 9 8 7 he form ally applied to the V illa g e Council and w as granted a right of occupancy by the villag e authority. Under the provision of Section 18(1) of the V illag e Land Act, a customary Right of Occupancy is in e very respect of equal status and effect to a granted right of occupancy. Because his rights over the land had not been leg ally revoked or surrendered, the grant of the Right of Occupancy to the third respondent under Section 9 of the Land O rdinance was ineffectual as far as the suit land is concerned because the V illag e Council had no right and legal cap acity to re-allocate the suit land to another person. In the event I allow the a p p e a l and d eclare that the appellant is the law fully owner of that part of land (suit land) 1. 5 acres which now form part of Plot No. 2 Block A which is registered under LO No. 1 8 6 0 4 7 1 . JUDGE At Mwanza 28,h September, 2012 D o le ; 2 8 th Septem ber, 201 2 Coram : Hon. A.R. M ru m aJ. For Appellant: Present in person. For Respondents: 1st 2nd V Present in person 3rd B/C : Rose 2nd Respondent:- Our advocate is absent. W e p ra y that our judgment be delivered despite his absence. A ppellant:- I have no objection. Order:- Judgment delivered this 2 8 th d a y of Septem ber, 2 0 1 2 in presence of the A p pellant and the 2 nd and 3 rd Respondent but in absence of the 1st Respondent and 2 nd and 3 rd Respondent’s Advocate. Right of A p p e al Explained. '■ 'w ^ ,5$ . JUDGE At Mwanza 28th September, 2012