Judgment Masatu

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CIVIL CASE NO. 51 OF 2023 OBEDI BAGAILE MASATU (As an administrator of the Estates of the Late MASATU KAZILAHABI ……...................... PLAINTIFF VERSUS GALU VILLAGE COUNCIL ……………………………………......…… 1ST DEFENDANT UKEREWE DISTRICT COMMISSIONER ……………….….…….…. 2ND DEFENDANT THE ATTORNEY GENERAL ………………………...…………..……… 3RD DEFENDANT BISEKO NGURUTI …………………………..…..……………………… 4TH DEFENDANT STANISLAUS BWIRE …………………….…...………………..…..….. 5TH DEFENDANT MATESO STANISLAUS ……………………...…………………………. 6TH DEFENDANT WILLIAM MAIGA …………………..………..…………………..……... 7TH DEFENDANT NDAGABWENE MAJURA …………………...……..……….…..……… 8TH DEFENDANT KUBOJA MLONGO ……………………...………..………………...…… 9TH DEFENDANT THOBIAS BISEKO ………………….…………………….………….…... 10 DEFENDANT NDAGABWENE NGULUTI …………………………….……………... 11TH DEFENDANT MASUMBUKO MALIMA ………………………..…………..………… 12TH DEFENDANT JUDGMENT 5th November & 16th December, 2024 CHUMA, J. The plaintiff, an administrator of the Estates of the late Masatu Kezilahabi (the deceased) who died on 9.9.2019, sued the defendants for a trespass over the deceased’s land of approximately 60 acres located at Gallu Village within Ukerewe District, Mwanza Region (hereinafter the suit land). pg. 1 According to the plaint, in 1992 there was a dispute concerning the disputed land between the deceased and the Village Chairman of Gallu village where vide Civil Case No. 31 of 1992, which was instituted before the Resident Magistrates’ Court of Mwanza, the deceased won the case. The plaintiff averred that the 2nd defendant dispossessed him the suit land and handed it to the 1st defendant who allocated part of it to the 4th to 12th defendants without the deceased consent. Unhappy with the situation, on 18.8.2022 the plaintiff wrote a letter to the 2nd defendant claiming ownership of the disputed land but in vain. On what had turned out, the plaintiff issued the 1st, 2nd, and 3rd defendants with a 90 days statutory notice and filed this suit praying for the following reliefs; 1. An order that the area in dispute measuring approximately 60 acres situates at Galu Village Ukerewe is lawfully property of the late Masatu Kazilahabi and form part and parcel of his estates; 2. A declaration that the area in dispute has never been lawfully revoked or acquired by defendants; 3. A declaration that 1st to 12th defendants have trespassed into the land of the late Masatu Kazilahabi 4. An order directing the defendants to return possession of the land to the plaintiff; 5. Payment of General damages 6. An order for the defendants to pay costs of this suit. pg. 2 On the other hand, the 1st to 3rd defendants in their joint written statement of defence disputed the plaintiff’s claims stating that the deceased was the legal owner of one acre only but the government handed him six more acres. They also asserted that through a Deed of Settlement, the deceased agreed to hand over 193 out of 200 acres to the Government of Galu village. At the outset, it should be noted that at the instance of the substituted service published in Mwananchi Newspaper dated 31.7.2023 for the 4th to 12th defendants, I ordered the matter to proceed ex parte against them. When the matter came for hearing, the plaintiff was represented by Masoud Mwanaupanga, learned advocate whereas the 1st, 2nd and 3rd defendants had the services of Lameck Merumba Senior State Attorney. The plaintiff was a lone witness in this case. He testified that his deceased who died on 9.9.2019 owned 60 acres at Galu Village which he acquired by clearing the bush. Describing the boundaries, PW1 said that the disputed land from the west and south borders Ukerewe District Council Forest, on the East side it borders a valley, on the North it is adjacent to the road and in North- East it borders Ilangala Secondary School. PW1 added that, through Criminal Case No. 8 of 1991 the deceased was prosecuted for pg. 3 criminal trespass but he was acquitted. In 1992 the deceased vide Civil Case No. 31 of 1992 before Resident Magistrate’s Court of Mwanza, sued Galu Village Chairman and District Secretary of Chama cha Mapinduzi (CCM) for declaration as lawful owner of the suit land. The judgment was entered in his favour and with the help of the court broker one Tryphon Kibanda, he was handed over the suit land. The disputed land was thereafter surveyed after he paid a fee in 2009 and he was given a map thereof. PW1 testified further that between 2019 and 2022 he and the deceased were arraigned in Criminal Case No. 14 of 2019 facing eight counts but the charges were later on withdrawn. However, the disputed land was taken by the District Commissioner of Ukerewe and given to Galu Village authorities which distributed it to other villagers. In support of his testimony, the plaintiff tendered, among others, a judgment in criminal case No. 8 of 1991 (exhibit PE2), judgment and decree in civil case No. 31 of 1992 (exhibit PE3 and PE4), a letter from the court broker dated 23.5.1995 (exhibit PE5), payment receipt dated 20.01.2009 (exhibit PE6), map of the disputed land (exhibit PE7), court order in criminal case No. 14 of 2019 dated 8.10.2009 (exhibit PE8) and charge sheet in criminal case No. 14/2019 (exhibit PE9). pg. 4 In turn, the 1st 2nd, and 3rd defendants’ defence evidence was to the effect that, the deceased invaded the village land measuring 200 acres. Following the village meeting held on 3.9.2019, the dispute over the land ended as the deceased handed over 193 acres to the village council and remained with 7 acres which includes 1 acre that was previously owned by him and 6 acres given in the execution of the court decree. It was also the defendants’ evidence that the deceased and the village council signed an agreement on 5.9.2019. The witnesses tendered two documentary exhibits namely deed of settlement (exhibit DE1) and minutes of the village meeting dated 3.9.2019 (exhibit DE2). Having objectively considered the evidence adduced by both parties, it is now a right to examine whether the plaintiff was a lawful owner of the disputed land measuring 60 acres, whether the plaintiff consented to surrender part of the disputed land to the first defendant, and what reliefs are the parties entitled to. Before further ado, it is important to restate the position of the law articulated under sections 110 (1) and 111 of the Evidence Act, Cap. 6 that whoever desires any court to give judgment based on certain facts, is duty-bound to prove that those facts exist. It is also the law that the burden of proof in a suit pg. 5 proceeding lies on that person who would fail if no evidence at all were given on either side. The provisions have been subject to scrutiny in countless decisions including Dominicus Zimanimoto Makukula Vs. Dominica Dominicus Makukula & Others (Civil Appeal No.359 of 2020) [2022] TZCA 166 (31 March 2022) and Attorney General & Others Vs. Eligi Edward Massawe & Others, Civil Appeal No. 86 of 2002 (unreported), just to mention a few. Furthermore, it is trite law that the burden of proof never shifts to the adverse party until the party who alleges discharges his. In the case of Paulina Samson Ndawavya Vs. Theresia Thomas Madaha, Civil Appeal No 45 of 2017, the Court of Appeal stressed that: - "It is again trite that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his, and that the burden of proof is not diluted on account of the weaknesses of the opposite party's case." I will all along be guided by the above authorities. Starting with the first issue is the plaintiff’s assertion that the deceased owned 60 acres. The basis of such claim is the judgment and decree in Civil Case No. 31 of 1992 (exhibit PE3 and PE4), a letter of the Court Broker dated 23/5/1995 (exhibit PE5), payment receipt dated 20.1.2009 (exhibit PE6) and a Map of the disputed land (exhibit PE7). The evidence is also clear that the deceased and pg. 6 the plaintiff were unsuccessfully prosecuted over the suit land in criminal case No. 8 of 1991, criminal case No. 14 of 2019, and a charge sheet in criminal case No. 14/2019. This is evidenced by exhibits PE2, PE8 and PE9. Upon scrutiny of the evidence presented through the documentary exhibits as well as PW1’s oral account, it seems clear that the plaintiff’s claim of ownership over 60 acres was not proved on a balance of probability. The only evidence which suggests the size of the disputed land is the charge sheet in criminal case No. 14/2019 wherein the first count of Procuring Execution of Documents by False pretence contrary to section 344 of the Penal Code Cap. 16, the prosecution alleged that the plaintiff together with the deceased fraudulently caused the Land Officer to survey and set up beacons to 200 acres-feet land which belongs to other villagers. The charge sheet partly reads: - “That, Masatu s/o Kezilahabi and Obedi s/o Masatu are jointly and together charged on 22nd day of January 2007 at day time at Galu Vullage within Ukerewe District, in Mwanza Region, did falsely and fraudulently cause a Ward Executive officer one Fikiri s/o Kafugo to sign a letter of Ref. No. UDC/SK/GL/MW/6, dated January 22nd, 2007 which posted to a Land Officer, P.O. Box 41, Nansio purporting to procure a land officer to survey and pg. 7 set up beacons to their 200 acres-feet land farm where in fact they knew that the said land farm possessed by them are only two acres-feet and the remained land farm belonged to other” (emphasis added). The above excerpt talks on 200 acres contrary to what is claimed by the plaintiff in the plaint. As such, it is my considered view that there is no tangible evidence offered by the plaintiff to prove that he was the lawful owner of the land with a size of 60 acres which he was dispossessed by the defendants. I hold so because neither exhibit established the actual size of the deceased land to be of such size. The first issue is therefore answered in the negative. The second issue is whether the plaintiff consented to surrender part of the disputed land to the 1st defendant. According to plaintiff, the deceased never consented to surrender part of his land to Gallu Village Council and if there was such an agreement, the deceased was forced to do it. DW1 on the other hand testified that on 3.9.2029 the village meeting was convened to resolve the dispute and the agreement was reached where the deceased agreed to return 193 acres out of 200 acres to the Village Council. The agreement was followed by a Deed of Settlement which was voluntarily signed by the deceased on one hand and his counterparty, the Village Council pg. 8 on the other hand. The evidence of DW1 was corroborated by DW2 and DW3. I have carefully examined exhibits DEI (the Deed of Settlement) and DE2 (Minutes of Village Meeting). With exhibit DE2, there is no doubt that there was a village meeting chaired by DW2 aimed at discussing the escalating land dispute between the deceased and the Village Council/villagers. The minutes further show that the deceased agreed to hand over 193 acres and remained with 7 acres out of 200 acres. Part of the minutes, in particular page 7, shades the light that: - “Mzee Masatu Kezilahabi alipouizwa kama ameridhika na uamuzi huo alisema amekubaliana nao” Further, page 8 of the minutes discloses who would be signatories upon agreement to settle the dispute. It says: - “Mhe, Mkuu wa Wilaya alisema kuwa utasainiwa Mkataba wa Makubaliano ya mgawanyo wa Shamba hilo utakaosainiwa na Mzee Masatu, Kijana wake, M/kiti wa Kijiji, M/kiti Mstaafu, VEO na Mwanasheria ambapo ni kama ifuatavyo. i) MASATU KAZILAHABI ii) OBEDI MASATU iii) BULEMO MAGUMBA pg. 9 iv) MAGELE KIBERENGE v) DAMAS M. RAMADHAN vi) MWANASHERIA WA KUJITEGEMEA” I have gone through the list of 146 persons who attended that meeting and signed, surprisingly the name of the deceased is missing. Looking at the end of the minutes, it shows clearly that it was signed by the Village Executive Officer (VEO) Damas M. Ramadhani and the Chairman, PW3, without more. Gathered from such facts, it appears the assertion that through the minutes the appellant consented to surrender part of his landed property is farfetched. I am therefore inclined to hold that exhibit DE2 is of less weight to prove that the deceased attended the village meeting. There is also exhibit DE1, deed of settlement. This was the aftermath after the minutes taken from the Village meeting. It was resolved that the agreement would be signed by five persons present before an advocate who were, Masatu Kazilahabi, Obedi Masatu, Bulemo Magumba, Magele Kiberenge (retired Village Charman-PW2), and Damas M. Ramadhan (Village Executive Officer). In compliance with what was agreed in the meeting, it is evident that a deed of settlement was prepared and signed by Masatu Kazilahabi (the deceased), Magele Kiberenge (retired Village Chairman), Damas M. Ramadhan (VEO) and Bulemo Magumba signed as the Village pg. 10 Chairman. The Plaintiff countered that the deceased had never signed any documents as a sign of surrender to the disputed land. Impliedly, it is as if the plaintiff was trying to infer that the signature contained in exhibit DE1 is not of deceased and therefore was forged. The law on allegations and proof of fraud is well settled. In the case of Omary Yusuf Vs. Rahma Ahmed Abdulkadir [1987] TLR. 169, and many others, the Court of Appeal has reiterated that where an allegation of fraud or forgery arises in civil proceedings, the same has to be proved in a standard which is above the balance of probabilities. It is common knowledge that the plaintiff failed to discharge such duty. Furthermore, sections 61 and 101 of the Evidence Act stipulate the circumstances where oral evidence may be excluded. It is provided that all facts except the contents of the document, may be proved by oral evidence. The law goes further envisaging that when the terms of a contract have been reduced into writing, no oral evidence may be admitted, between the parties to contradict, vary, add to, or subtract from its terms. In Tanzania Ports Authority & Another Vs. Kabeza Multi Scrapper Ltd & Another (Civil Appeal No. 72 of 2022) [2023] TZCA 17322 (12 June 2023), the Court had pg. 11 an opportunity of interpreting section 61 and 101 of the Evidence Act in the following words: - “Our interpretation of the cited provisions is that, oral evidence cannot be used to prove, vary, contradict, subtract or add the contents of matter which is documented”. Guided by the foregoing legal position and based on the available evidence, I am of the respective view that exhibits DE1 cannot be contradicted by the plaintiff’s oral account that it was not signed by the deceased. Since there is no other documentary evidence suggesting otherwise, through exhibit DE1, it is clear that the deceased surrendered 193 out of 200 acres to the Village Council. And so, he was left with only 7 acres. In the final analysis and based on what I have endeavored to state herein above, it is clear that the plaintiff failed to prove on the balance of probability that he is the lawful owner of the 60 acres. The determination of the last issue has been rendered superfluous. Thus, the suit is hereby dismissed with costs. It is so ordered. pg. 12 DATED at MWANZA this 16th day of December, 2024. W.M. CHUMA JUDGE pg. 13 The judgment delivered virtually in attendance of Mr. Mwanaupanga advocate and Mr. Allen Mbuya SA for the plaintiff and the respondents respectively this 16th day of December 2024. J. MUSAROCHE DEPUTY REGISTRAR pg. 14