20160224 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA LAND CASE APPEAL NO. 16 OF 2013 (From the District Land and Housing Tn bunal for Rungwe at Tukuyu, Applicant No. 5 of 2010) PELES AMULIKE MWAIPOPO ..................................APPELLANT VERSUS ASUMILE MWAKYAMI .............................1 ST RESPONDENT AMANI MWAIKAMBO .............................. 2ND RESPONDENT JUSTIN KINDOLE ...................................3 RD RESPONDENT NAOMI W/O EMMANUEL ........................ 4TH RESPONDENT 5TH S. AMBOKILE EDWARD MWANDENUKA RESPONDENT 6. TERESIA NYAMDALI .............................. 6TH RESPONDENT JUDGMENT Date of last Order: 1611212015 Date of Judgment: 2410212016 A.F. NGWALA, J. The Appellant Pelesi Amulike Mwaipopo was the Applicant in Land Application No. 5 of 2010 of Rungwe District Land and Housing Tribunal for Rungwe at Tukuyu. He applied before the tribunal for an order for vacant possession of the disputed land occupied by the Respondents. The Appellant claimed the Respondents had trespassed into the suit land by building their houses. He also sought a demolition order of the houses built on the said disputed land and that the Respondents be compelled to pay general damages to a tune of Tshs.5,000,000/= (say five million shillings) for causing inconveniences to the Applicant. 1 At the conclusion of the trial, the tribunal declared the Respondents the lawful owners of their respective pieces of land. The claims by the Appellant were dismissed for failure to prove the case on balance of probabilities. Dissatisfied with the order of the tribunal, the Appellant has now come to this court by way of appeal through the services of Mwakolo and Company Advocates. The Respondents are represented by Mr. Msuta, learned Advocate. The findings of the District Land and Housing Tribunal are disputed on the grounds that the honourable trial tribunal erred both in points of law and facts when:- "1. It failed to analyze properly the evidence on records. It held that there were contradictions of evidence on the part of the prosecution side. It failed to visit the locus quo. It held that the Respondents had proved to be the lawful owners of the disputed land. S. It granted ownership of the surveyed disputed land to the Respondents." In their Joint Reply to the Memorandum of Appeal the Respondents opposed the said grounds of Appeal by stating that the Honourable Chairman of the District Land and Housing Tribunal for Rungwe clearly analyzed the evidence that was adduced and reached the right conclusion. The Chairman was legally and factually right to hold that there was contradictions in the evidence on the part of the 10 prosecution side which was bad to establish the present Appellant's claim that he was the lawful owner of the suit land. It is not a mandatory legal requirement of the law to visit the locus in quo. The Chairman was right to hold that the Respondents had proved on the balance of probabilities to be the lawful owners of the disputed land; and he did not grant ownership of the disputed land but only declared that the present Respondents were the lawful owners of the suit land. At the hearing of this Appeal, the Appellant's Counsel argued the 1st and 2d grounds of appeal only. He submitted that the tribunal failed to analyse properly the evidence on records. There were contradictions on evidence, as the appellant stated that he is the lawful owner of Plot No. 4 Block 'E.E' at Kyela. He tendered the title deeds as evidence of his ownership. His two witnesses being the previous owner of the disputed plot before the appellant came into ownership, and the third PW3 being the Land Development Officer of Kyela District Council. PW3 testified that the original owners were Wilson Gondwe who owned it in 1955. The 2nd one Fezi Niza Bhojani was given the disputed land on unknown year after buying it from Gondwe. Thereafter Fezi Niza Bhojani sold the land to Ruth Amulike. The last owner became Peles Amulike Mwaipopo who got it on 08/04/2004. The Certificate of Occupancy was issued to the Appellant. The learned Counsel submitted that there was improper evaluation of the evidence on the part of the Chairman. This led him to a 3 13 wrongful conclusion that the Appellant was not the owner of the disputed land. The Respondents together with their witnesses DW1 Sara Asumile - Mwakyami and DW8 Julius Minga Millambo had testified that the land in dispute belonged to the Appellant. On the issue of the size of the land which was said to be contradictory as indicated in the Judgment of District Land and Housing Tribunal, Miss Mwakolo submitted . that the same was a mere error which was cleared by the evidence of PW3. She argued that cannot impair the appellant's right over ownership of the land. Miss Mwakolo insisted that the Chairman failed to analyse the evidence on record and reached at unfair decision. On the third point, it was contended that the nature of the case, and the evidence adduced by the parties should have entitled the Chairman to visit the disputed landed property in order to satisfy himself on the reality on the ground. Miss Mwakolo submitted further that DW1 Sara Asumile Mwakyami gave a clear history of the disputed land which showed that the land that belonged to DW1 is different from that of the Appellant. The evidence of DW8 Julius. Winga Millambo established that the only dispute between the parties is the boundary. Under those circumstances Miss Mwakolo submitted that it was important for the District Land and Housing Tribunal to visit the disputed land to see the clear demarcations in order to determine which land belonged to the Applicant and that of the Respondents. 4 The visit could determine whether the Appellant's land had been ( trespassed by the Respondent. The other ground of Appeal is based on the fact that the land in dispute is a surveyed land, with Title Deed No. 11637 - MBYLR issued to the Appellant for Plot No. 4 Block 'E. E.' Kyela area. According to Miss Mwakolo the same was proved by the evidence of PW3 one Charles Nzowa, the Land Development Officer of Kyela District Council, who indicated that during the survey of the plots, the original owners were compensated. For these reasons she prayed the Appeal to be allowed with costs. In reply, Mr. Msuta the learned Advocate submitted that the Chairman of District Land and Housing Tribunal clearly analysed the evidence that was before him and the documents that were tendered as exhibit before it. The learned Chairman clearly stated that the Appellant's evidence and that of his witness was too weak to be compared with that of Respondents. The evidence was contradictory. PW1, Joel Gidion Mwaipopo, the witness of the Appellant stated that, he bought part of the disputed land from one Nizar in 2002, however during cross examination PWI stated that it was the sister of the Appellant who bought the disputed land from Nizar Bhojan in the year 2001. The second witness of the appellant stated that he bought the disputed land through Public auction. Here there was contradiction in the history by PW1 and PW2. Concerning the evidence of PW3 and PW1, Mr. Msuta submitted further that there was a contradiction regarding the size. PW2 said 5 that it was 11,600 square metres while PW3 said the disputed land had the size of 2400 square metres. Mr. Msuta, argued further that there was however no contradiction in the analysis of the evidence of the Respondents. On the third ground of Appeal Mr. Msuta contended that there is no law that compels the tribunal to visit the locus in quo. It is in the discretion of the tribunal that it has to visit the locus in quo as held the case of Nizar M. H. Ladak vs. Gullamali Fazal Jan Mohammed (1980) T.L.R. page 29. The Court of Appeal of Tanzania stated that, "it is in special circumstances that the court can visit the locus in quo. And in doing so, the court may find itself being a witness instead of an adjudicator." Mr. Msuta insisted that there were no such special circumstances to visit the locus in quo. It was fortunate that all the parties who were represented by the learned Counsels, that is the Appellant who was represented by Mr. Mwakolo, Advocate and the Respondents who were represented by Mr. Mshokorwa, did not tell the tribunal that they wanted to visit the locus in quo. As they did not do so the matter cannot be canvassed at the appellate stage. Regarding the 4th ground of Appeal, the learned counsel repeated that the District Land and Housing Tribunal clearly analysed each and every evidence before it. The dispute was determined on the balance of probabilities in arriving at a decision that the land belonged to the Respondents. 51 Regarding who was the owner before the survey of the said land. It is clear from the evidence that the owners were the Respondents. They alleged that they never saw anybody surveying the land. If there were people to be compensated then it was the Respondents who were never compensated. PW3 had testified that it was Wilson Gondwe who was the original owner who was compensated. He did not bring any evidence regarding the evaluation of the disputed land and how much Wilson Gondwe was compensated. Regarding whether or not the disputed land was surveyed, this was not disputed. The respondents argued that they had to be compensated in terms of article 24 (1) and (2) of the Constitution of the United Republic of Tanzania. For this reason they prayed that the appeal be dismissed. An order that the disputed land belongs to the respondents be issued. Further the Appellant be ordered to pay the costs and any other relief (s) the court deems fit to grant. In rejoinder, Miss Mwakolo argued that PW3 Charles Nzowa clearly stated that the land was surveyed in 1980 and approved in 1981. The original owner was Wilson Gondwe who was also compensated by the District Council. The records do not show that the Respondents were original owners of the disputed plots. The Respondents bought their respective pieces of land from different persons. For instance PW1 bought from Nsubiri Mwakyonja in 1990, but during his testimony he produced a sale agreement of 1989. Their ownership of the disputed land is 7 questionable. The documents were produced after the case was instituted before the tribunal. For those reasons she prayed the appeal to be allowed with costs. In view of the submissions of the parties the main issue that needs to be determined is whether the disputed plot of land was surveyed? and if the owners of the said land were compensated? This court shall also determine whether the right of occupancy granted over the land held under customary law, distinguishes the right over land held under customary law? and whether the land held under customary law, once the land held under Customary Law is declared a planning area, the holder of that land under Customary Law becomes automatically a squatter? In the records of this appeal, both the parties contest that the suit land belongs to each one of them. The Appellant has tendered a Certificate of Occupancy No. 11637 to prove his ownership. The Respondents on their part who are in occupation of the land as clearly shown in the Application form by the Appellant for an order of vacant possession of the disputed land and in the defence by the Respondents. The Respondents own the said plot under customary law, and that they are in occupation of the land. It is trite law that once the land is declared a planned area, such land ceases to be owned under Customary Law by virtue of the granted right of occupancy. This however does not make a person who owned such a land under Customary Law to loose his or her rights over such a land. 8 The persons who owned that land under Customary Law does not ( automatically become a squatter. In the case of Methusela P. Nyagaswa vs. Christopher Mbote Nyirabu (1985) T.L.R. 103, the Court of Appeal of Tanzania stated inter alia that, "A holder of a right of occupancy under native law and customs does not automatically become a squatter when an area is declared a planning area." In view of the cited case, it is obvious that the disputed land was a declared a planning area as it was surveyed way back 1980 and 1981 as deponed by PW3. If that area was declared a planning area, and the land was owned under Customary Law, what is the remedy or what should be done to the owners who owned the same before being declared a planning area as per Methuselah's case (supra) as these people are recognized in law. Both Section 3 (1) (h) of the Village Land Act [Cap. 114 R.E.20021 and Section 3 (1) (g) provide for a Right to pay full, fair and prompt compensation to any person whose Right of Occupancy or recognized Long Standing occupation or customary use of the land is revoked or other wise interfered with to their (sic) detriment by the State under this Act or is acquired under the Land Acquisition Act (Cap. 118). All these provisions require that any land that has been developed or built or owned under customary law or under the Right of Occupancy once it is taken by any person, the owners must be compensated. In this appeal, the evidence does not reveal that the owners of the land in dispute were compensated when the area at Kyela was surveyed and declared a planning area. The testimony of PW3 who testified that the owners were paid compensation did not produce evidence or proof to that effect. There is no document besides the sweeping statement that the owners of the disputed land were paid compensation was shown. PW3 who was the Land Officer at Kyela District Council was expected to resolve the doubt by producing evidence to prove how compensation to the original owners of the land was effected. In return, there was an argument during trial that ownership of the said suit land or disputed land had problems as the respondents bought pieces of land at different times and from different people. This argument has no bearing in the appeal. It is true that the Respondents bought their respective plots and went on developing their respective plots under customary rights. The law requires that once the land is at taken or declared a planning area the owners of the same must be compensated. This must to be shown in order to establish the true ownership of the said plot in question. It is a trite law of this country on land issues, specifically under ownership of land under customary law and under the Right of Occupancy; the law is open that the customary right of occupancy has equal status as the granted Right of Occupancy. Section 18 (1) of the Village Land Act [CAP. 114 R. E. 2002] is clear on this as it provided in the case of Methusela Paul Nyagaswa that 10 the granted Right of Occupancy does not distinguish the title held ( under customary law. When reading the provisions of Section 34 (3)(b) of the Land Act, Cap. 33 R. E. 2002 it states, "Where a right of occupancy includes land which is occupied by persons under customary law, it shall be a condition of that right of occupancy that those customary rights shall be recognized and those persons so occupying the land shall be moved or relocated only:- ........................................... In accordance with due process and principles of fair administration, being given :- Not less than hundred and eighty day's notice of any requirement to move; and The opportunity to reap crops shown before any notice to move was given to those persons; and The right to continue to use water which those persons had a right to use before being given notice to move; and Prompt payment of full compensation for loss or any interest in the land any other losses that incurred due to any, make or any other interference with their occupation or use of the land." This provision of the law portrays nothing rather than giving the right to due process of the law and principles of fair administration by giving a one eighty days (180) notice to vacate and fair, full or adequate composition. More so it provides for the right to give 11 alternatiVe that if the land owned by them or under customary law ( once it is about to be taken, then the owners have to be treated with two things, one being compensated fully but the other being relocated to other areas. From the record it seems the appellant purchased the land from Niza Bhojan in 2002 before occupying the land or being shown or allocated the land by way of an offer. It is also not known if the disputed area which is a surveyed land is part of the Kyela Township authority as the evidence of DW8 is clear that the Kyela Township was established in 2010. My perusal of records also reveals that the Right of Occupancy was granted to the Appellant on 23rd November, 2007 and registered on 24th October, 2007. In the circumstances, by tracing the origin of the title and what is on the ground from the facts that have been adduced, it is clear that this is a long time dispute between the parties that originates from the survey that was conducted on 02/07/1981 without compensation to the original owners. It is really hard from the facts in the record to establish the "defacto occupants" and the holder of a title as to who is a real rightful owner of the disputed land given the circumstances of this case. The respondents in this appeal ought to have been fully compensated or the District Council of Kyela out to have relocated them in order to survey and acquire the land and use for grant it to other persons under the Right of Occupancy as it did to the Appellant. 12 Having carefully considered the grounds of Appeal and analysed the ( arguments by both the learned Counsels for the parties, this court is convinced of the findings of the District Land and Housing Tribunal that the Respondents are not trespassers but lawful owners of their respective pieces of land. Therefore that decision cannot be faulted. Hence there is no basis for this court to upset or disturb the decision of the said tribunal which refused to grant the reliefs claimed. Accordingly the Appeal is dismissed. In the circumstances, as aforesaid I make no orders as to costs. That is each party shall bear his or her own costs. A.F. NGWALA JUDGE 24/02/2016 13