nyamhanga ngarare vs kemange village council other 2012 tzhc 138 28 august 2012

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MWANZA AT MWANZA LAND APPEAL No. 93 OF 2008 [O riginating from Districf Land and Housing Tribunal of Tarime in Land Appeal No 2 of 2 0 0 8 ] NYAM HANGA NG’A R A R E.......................... APPELLANT VERSUS 1.KEMANGE VILLAGE C O U N C IL ........... ^ 2.M ASIAGA CHACHA M ATINYI................^RESPONDENTS 3. ELIASI M ATIKO CHACHA M ATINYI...., JUDGMENT MRUMA. J. The appellant 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 lawfully owner of a piece of land measuring 1.5 acres which is situated at Kemange Village in Tarime District. He also prayed 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 are the Kemange V illag e Council, M asiaga ♦ Matinyi and Elias Matiko Chacha Matinyi respectively. After hearing both parties the District Tribunal ruled in Respondents’ favour. In its Judgment the District Land and Housing Tribunal held that the Kemange V illag e Council being a trustees and V illage Land Allocating Authority and a fter adhering to all due process had all legal power and had lawfully allocated the suit land to the 3 rd Respondent Elias Matiko Chacha M atinyi. The trial tribunal directed that the app ellant 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 1st respondent. The 2nd Respondent Masiga Chacha Matinyi was said to 'have no liability. It is this decision which aggrieved the appellant and has <, decided to come to this court armed with four grounds of appeal. In his first ground of ap p eal the appellant 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 was in occupation of the land for over 20 years. 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 Village council which w ere not signed by members 3 And finally that the District Tribunal erred in law . in declaring the 3 rd respondent Elias Matiko Chacha Matinyi the lawfully owner of the suit land despite the fact that there w as no s 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 app ellant who w as not represented reiterated what is stated in his grounds of a p p e a l 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 appellant was 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 appellant was adequately compensated. Tjjp learned counsel stated that the judgment of the District Tribunal is very clear that the appellant had refused to accept compensation offered. 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 was T.shs 15m /= Finally, the learned counsel submitted that following his grant by the V illag e Land Allocation Committee, the 3 rd respondent Elias Matiko Chacha Matinyi have a lre a d y acquired the Right of Occupancy over the said land. He therefore invited this court to a p p ly the provisions of Section 33 of the Land Registration Act [Cap 334 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 ard . It shows that the appellant is a resident of Kemange V illag e and he lives there. The first respondent is the V illag e G overnm ent of Kimange. The second respondent M asiaga Chacha Matinyi is also a resident of that V illage and like the appellant he lives there. The third respondent Elias Matiko Chacha Matinyi too is a resident of that Kimange Villag e. In his evidence before the Tribunal the appellant told the trial tribunal that he was allocated the suit land by the V illage 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 was o fficially allocated the suit land in 19 8 7 actually he had been occupying it since 1 9 7 1 . He called one witness Jam es Wambura Runanda PW2 (76 years), who introduced himself as a retired member of Villag e Land Allocation Committee who confirmed to the Tribunal that the suit land was allocated to the app ellant in 1 9 8 7 . W am bura said that sometimes in 1 9 9 4 there was a dispute over boundaries of thqt land between the appellant and the 2nd and 3 rd Respondents. The dispute was not resolved. In its defence, the first Respondent the V illage Council of Kemange called one witness Stephen M ageda Cheche D W 2 (31 years), who was its V illag e Executive O fficer 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 was occupying that land from 1971. He didn’t tell up to when he was occupying it. He however told the trial tribunal that the appellant sold it (he didn’t disclose to whom it was sold) and between 1975 and 1 9 7 7 it was occupied by one N yagebu Tekelo. The said N yaregu Tekelo abandoned it and in 1988 the 3 rd respondent applied to the Village Council to be allocated that land for purposes of constructing a school thereon. The V illage Land Allocation Committee gave 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 were 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 illag e . In his testimony Siag a M aricha (D W 4), said that he didn’t know why his name ap p eared 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 app ellant and the Respondents. On the other hand Stephano M agesa Ib ag a D W 5, told the tribunal that in 1994 when he w as the V illag e Executive O fficer of vKemange V illag e the third Respondent applied for a land on which he could built a school. He (DW 5) convened a meeting of the Land Allocating Committee of the village which was dully convened and allocated the suit land to the 3 rd Respondent on condition that he compensates the previous owners. Some of the owners were compensated but the appellant refused. N yigega M arw a D W 6 , told the District Tribunal that in 1 994 he was the chairman of Kemange V illag e Council. At that capacity (as a V illag e Chairm an), he w as informed by the Village 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 illag 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 was the evidence adduced at the trial. In its judgment the trial District Tribunal was of the view that although the suit land was previously occupied by the appellant Nyamhanga Ng’a ra re but it had been legally granted and re­ allocated to the 3 rd Respondent Elias Matiko Chacha M atinyi. The tribunal held that; “..........Reading the pleadings, the testimonies o f the parties together with oral evidence of their respective witnesses, there is really undisputed [sic] that the land in dispute was previously occupied by * the applicant Nyamhanga N g’arare regardless of whether he was issued with a paper o f owners” Further to that, the tribunal observed that; “ There is also no dispute that the 3rd respondent was on 10th August 1994 granted the suit land by the 1st Respondent for construction o f a secondary 10 school. That the 3rd Respondent, Elias Matiko Chacha subsequently acquired a certificate of occupancy with title No 14794 dated 0 2 nd March 2004 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 eal is whether on the evidence on record the 3rd Respondent w as legally allocated the suit land by the the Village Land Allocation Committee. In arriving at its conclusion that the V illag e Committee had legally 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 applied to the V illag e Land Committee for the suit land on 2 2 nd J u ly 1994 and that on 10th A ugust 1994 the li suit land was 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 applied 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 was 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 July 1994 and that he was allocated and the suit *♦ land was 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. 12 This was un-procedural and it may suggest that the 3rd respondent had an access to the appellant’s land long time before the land was “form ally handed over to him” Secondly, this evidence is at variance with the testimony of M asiaga Chacha Matinyi D W 2 , his young brother who told the Tribunal that the suit land was surveyed under his supervision on 19th August 1998 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 ageda Cheche D W 1 , the V illa g e Executive O fficer (VEO) of Kemange V illag e who said that Nyagebu Tekelo abandoned that land in 1988 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 was 31 years old when he gave his evidence on 14th M ay 2 0 0 8 . This means that he was 1 1 13 years old in 1988 when Nyagebu Tekelo is said to have abandoned the suit land and the 3 rd Respondent applied for it. When the appellant is said to have sold the land in 1975 this witness was not yet born. He didn’t tell the Tribunal that he was testifying in his capacity as the VEO 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 was talking about otherwise what he said was 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 Matinyi is claiming to have had applied for the suit land. W hereas the evidence of DW1 is to the effect that it was in 19 8 8 , his own evidence is to the effect that it was in 1 9 9 4 . Another contradiction is on the date the suit land was surveyed. W hereas the 3 rd respondent says that it was surveyed on 2 7 th 14 April 1994, his witness M asiaga Chacha Matinyi (who is his young brother) said that the suit land was surveyed on 19th August 1998. These contradictions were never reconciled. The only conclusion that could be fairly against such evidence is that the alleged application and consequently allocation of the suit land to the 3 rd respondent was 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 illag e Executive O fficer (VEO) of Kemange V illag e and that in that capacity he convened a meeting of the V illag e Land Committee which allocated the suit land to the 3 rd Respondent and that of N yigega M arw a D W 6 , who said that in 1 9 9 4 he w as the Chairman of the Kemange V illage Council and that in that capacity he instructed the VEO 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 any1) 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 was form ally allocated the suit land by the V illage 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 Vs Antony Hyera (1988) TLR 188, a similar situation was discussed by this Court (Mrosso Jas he then was), and it was held that a village 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 Villagers but would also retard the development of the Villagers. In another case of Lucas Masirori Kateti Vs Sebeqe (1969) HCD n 11, this court warned V illag e Development Committees to use their powers justly and wisely instead of creating discontent among the inhabitants whom they are entrusted to look after. In that case the Respondent had alre 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 illage 17 leaders* W hat was done in this case was actually land grabbing * which cannot be endorsed by a court worth the name. If for instance we go by the 3 rd respondent’s own evidence he caused the ap p ellant’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 was done on 2 7 th April 1 9 9 4 and the application was submitted on 2 2 nd July 1 9 9 4 . The land was formally handed over to him on 10 th August 1 9 9 4 . Admittedly 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 66 years. Now, what would be the status of that grant in view of what has been observed above? M r. 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. 18 G enerally 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 fraud. [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 Matinyi was granted the Right of Occupancy over the suit land leg 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 illag e Council had no right and power to allocate 19 or re -a io ca te land to a villager which was in possession of another villager without the consent of that villag er. In the case a t hcnd the consent of the appellant was 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 illag e Council and was granted a right of occupancy by the village authority. Under the provision of Section 18(1) of the V illag e Land Act, a customary Right of Occupancy is in every respect of equal status and effect to a granted right of occupancy. Because his rights over the land had not been legally revoked or surrendered, the grant of the Right of Occupancy to 20 I the third respondent under Section 9 of the Land Ordinance was ineffectual as far as the suit land is concerned because the Village Council had no right and legal capacity to re-allocate the suit land to another person. In the event I allow the app eal and declare that the appellant is the lawfully 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 M w anza 28th September, 2012 21 Coram: Hon. A.R. Mruma,J. For Appellant: Present in perspn. For Respondents: 1st 2nd > Present in person 3rd B/C : Rose 2nd Respondent:- Our advocate is absent. W e p ray that our judgment be delivered despite his absence. A ppellant.- I have no objection. O rder:- Judgment delivered this 2 8 th day of September, 2 0 1 1 in presence of the Appellant and the 2nd and 3rd Respondent but in absence of the 1st Respondent and 2nd and 3 rd Respondents Advocate. Right of A p p eal Explained. At M wanza 28th September, 2012 23