RAMADHANI KIHIGA FUNDIKIRA Sale Agriment to prove ownership

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA LAND CASE NO.13 OF 2023 RAMADHANI KIHIGA FUNDIKIRA (Administrator of the Estate of the late (Kihiga Ramadhan Fundikira) ……………………………..….……PLAINTIFF VERSUS BANDARI VILLAGE COUNCIL………………………..1ST DEFENDANT THE ATTORNEY GENERAL………………….…………2ND DEFENDANT MSALALA DISTRICT COUNCIL……………………...3RD DEFENDANT JUDGMENT 9th July & 30th August, 2024. Massam, J:. The plaintiff herein being an administrator of the Estate of the late Kihiga Ramdhan Fundikira claims against the defendants for permanent injunction and restraining the defendants from interfering with the plaintiff’s peaceful enjoyment of his land and a declaration order that the plaintiff is a lawfully owner of the disputed land measuring three acres, situated along the main road at Bandari Village within Isaka Ward, Msalala District, Shinyanga Region, being rounded by tree fence commonly known as ‘’Minyaa’’ and ‘’Miarubaini”. It was further alleged 1 that on 5th November 2004 the late Kihiga Ramadhan Fundikira bought the suit land from Swalehe Aljabry for the sum of Tshs. 1,200,000/= and in 2006 the deceased erected a residential house where the plaintiff resides up to date. Moreover, in the year 2017, the plaintiff started the process of having the suit premises surveyed so as to obtain right of occupancy from 3rd defendant, where his efforts was smudged by resistance from 1st defendant claiming that the suit land has designated by the village council as village bus stand area, the designation which the plaintiff has never aware of and never been consulted. He complained to the Msalala District Executive Director for trespass on his land by 1st defendant with vain. He then decided to file the instant matter before this Court. Basing on the above facts, the plaintiffs claim for the following reliefs jointly and severally against the defendants for the following reliefs; i. The declaration that the plaintiff is the lawful owner of the suit premises. 2 ii. The declaration that the defendants are the trespasser on the suit land premises. iii. An order of permanent injunction restraining the defendants and any other person of whichever description acting under their instructions from trespassing on the suit land permanently. iv. General damages as to be assessed by this Honorable Court v. Costs of this suit vi. Any other reliefs this honorable Court may deem fit and just to grant. At the hearing of this case, the plaintiff was represented by Mr. Siraji Kwikwima learned advocate while the respondents enjoyed legal service of Mr. Kalenda George and Mr. Musa Mpogole learned state Attorneys. Three issues for court determination of this suit were framed namely; i. Who is the lawful owner of the disputed land ii. What will be the compensation to other party to the development if any made in the disputed land 3 iii. To what reliefs each party are entitled to In the side of plaintiff’s case, he had a total of two witnesses namely; Saidi Hamadi Said (PW1) and Ramadhani Kihiga Fundikira (PW2). For the defendants’ case had also two witnesses namely; Samsoni Samwel Mwandu (DW1) and Yustine Dotto Akuziwe (DW2). PW1, Saidi Hamadi Saidi, testified that on 2004, he was hamlet chairman of Isaka Station currently known as Bandari Village, Mkoroshoni hamlet. He added that there is a dispute of land between the family of Fundikira and Bandari village council. He added that he witnessed the sale agreement dated on 5/11/2004 between Swalehe Aljabry and Kihiga Ramadhani Fundikira and the same was admitted as exhibit P1 with no objection in its tendering. PW2, Ramadhani Kihiga Fundikira, testified that he is an administrator of the estate of Kihiga Ramadhani Fundikira and the disputed land is located at Isaka, Bandari Village, Isaka Ward, Msalala District Council, at the North, there is a road from Tinde to Kahama, at South had neighboring of Mama Nuru, Fatuma Nyangema and Swalehe Aljabiry, East side with Mzee Mandwa, and West side with one Gavana. He added by saying that his father bought the suit land in 2004 from 4 one Swalehe Aljabiry, which was divided into three pieces and they decided to plant “Minyaa” and “Miarubaini” trees in the boundaries. Also, PW2 said that in 2006 his father built a family house, where they are living there to date and some areas were used for cultivation. On 2017, they rent piece of land for car wash, garage, and a person who was conducting brick business. Moreover, PW2 added that after his father died on 2017, he started to look for title deed of the said land. He went to the office of Msalala District Council and he was informed that said area belonged to bandari village which they planned to build bus stand. He wrote a letter dated on 21/8/2017 to the office of Director of Msalala which was admitted as exhibit P ”2”. On the side of the defendants, refuted the claims by the plaintiff and stated as follows; DW1 Saimoni Samweli Mwandu testified that he is chairman of Bandari village and the disputed land belongs to Bandari village which has a size of 70 x 50, the neighboring with Ramadhani Fundikira, Fatuma Nyengena and others. Also, it neighbored with Baptist church and main road of Kahama Shinyanga. He added that he knows that facts since 1984 because from 2004 to 2014 he was hamlet 5 chairman of that area but from 2015 to date he is a village chairman of bandari village. DW1 added that Bandari village got the said land from village operation for village uses, like roads and “Machinjio”. Also, he said that on 2017 they got a letter from Kahama Council told them to submit exhibits to prove ownership of that land and they replied that the land belongs to them and not plaintiff, but the plaintiff trespassed and built the car wash at the same time defendant-built village office which is unfinished. Lastly DW1 stated that, the disputed land belonged to the Government and they had some minutes dated on 20/1/2015 which has handover agenda and was admitted as exhibit ‘’D1’’ while the title of registration of Bandari village was admitted as exhibit ‘’D2.’’ DW2, Yustine Dotto Akuziwe testified that in 1984 was employed as agricultural field officer grade 1 by Kahama District Council and his duty station was “Machinjioni” (slaughter house) and for pastoralist and the same belonged to District Council and had 8 acres however now days there are some houses of trespassers, the disputed land had 50x70 which are inside of those 8 acres. He added that he was shown the 6 boundaries of the disputed land. DW2 stated that the place where the village built its office is inside of the slaughtering house. Also, he admitted that he knows Kihiga Ramadhani Fundikira, who bought his land from Aljabry, but he don’t remember the year but what he knows is that the disputed land and the land which Kihiga Ramadhani bought it from Aljabry is different. Having heard both parties on merit and going through the final submission of the defendants, I have now to determine this suit basing on evidence before this Court. In my determination of the matter, I shall be guided by the following principles of law. One, is that in civil cases, the burden of proof lies on the person who alleges anything in his favor as founded in section 110 of the Evidence Act. Two, is that the burden of proof envisaged above is on the balance of probabilities. See Section 3 (2) b, of the Tanzania Evidence Act and as stated in various decisions, including Anthony Masanga v. Penina Mama Mgesi and Another, Civil Appeal No. 118 of 2014 and Hamza Byarumshengo vs. Fulgencia Manya and 4 Others, Civil Appeal No. 33 of 2017 (both unreported). 7 Starting with the first issue that Who is the lawful owner of the disputed land I have scanned the evidence of both sides; indeed, the evidence of PW1 provides that on 5th November 2004 the late Kihiga Ramadhani Fundikira bought the suit land from Swalehe Aljabry for the sum Tshs. 1,200,000/= Also the evidence of PW2 shows that the late Kihiga Ramadhani bought the suit land from Swalehe Aljabry and 2006, the late Fundikira erected the residential house on the suit land, where the plaintiff resides till now. Again the evidence of PW2 revealed that he planted the “Minyaa and Miarubaini”. Additionally, the testimony of PW2 shows that in 2017 he started the process of having the suit premises surveyed so as to obtain the right of occupancy but he was informed by the 3rd defendant that the suit land belonged to the 1st Defendant and then he decided to file complains to Msalala District Executive Officer as exhibits P2 shows but in vain and hence this case. Notably, defendants claimed that the suit land is a property of the 1st defendant who acquired the same during ‘’Operation “vijiji’’, it was planned area and allocated for public specifically for livestock passageway to “’Mnadani” and slaughter house, however there was no evidence to prove the same, even the exhibit admitted D1 and D2 does 8 entails how the defendants came into possession of the suit land but also does not prove the ownership. Again, defendant failed to bring any witness from Msalala District Council or any exhibit from their officer to prove that the said land belonged to them. Apparently, the evidence showed the plaintiff rented the suit land for the car wash and brick business but the defendants remain silent without take any action to them. This entails many on the side of defendant. In a close digest of the case at hand and the legal principle cherished in the case of Hemed Saidi V Mohamed Mbilu [1984] T.L.R 113 at page 116 that a person whose evidence is heavier than that of the other is the one who must win. That being the position, the plaintiff has in balance of probability been able to establish the claims against the defendants because the evidence showed that the late Kihiga Ramadhan Fundikira bought the suit land on 5th November 2004 from Swalehe Aljabry and it was witnessed by the hamlet chairman as exhibit P1 shows. However, the defendants claimed that they acquired the land through “Operation Vijiji” but there was no exhibit to prove the same, even the exhibits tendered by defendants (D1 and D2) does not prove the ownership. 9 In the circumstances, the plaintiff is declared the lawful owner of the disputed land. Responding to the second issue What will be the compensation to other party to the development if any made in the disputed land. It is a cardinal principle of the law that every person is entitled to own property and to the protection of the same in accordance with the law. In the case of Ntiyahela Boneka vs Kijiji cha Ujamaa Mutala (1988) TLR 156 it was held that; “a person is entitled to compensation for improvements effected on the land provided that a time of carrying out such improvement he had apparent jurisdiction for doing so…. The law does not sanction seizure of an individual’s property in the absence of any enabling written law and without adequate compensation”. See also the case of Lalata Msangawale vs. Henry Mwamlima [1979] LRT No .3 Notably, the plaintiff is lawful owner of the disputed land and defendants are trespassers and on the suit land there is residential 10 house, planted “’Minyaa” and ‘’Miarubaini’’ and there is car wash and brick business. However, the evidence showed that the defendant has built the village council office (unfinished) without plaintiff’s consent or being compensated and if they defendants are interested to use the land suit for the public interest, the plaintiff must be fairly and adequately compensated as required under Article 24 (2) of the Constitution of United Republic of Tanzania 1977. Lastly, looking to the last issue as to what reliefs each party are entitled to. This issue should not detain me much to discuss as I have keenly answered it when discussing issues No. 1 and 2. Therefore, the suit land is the property of the late Kihiga Ramadhan Fundikira. The defendants are trespassers on the suit land. However, defendants have to compensate the plaintiff on acquired suit land according to the law but failure to do, the Defendants are hereby restrained from trespassing on the suit land and defendants be evicted from the suit land and left free enjoyment of the suit land by the plaintiff. 11 In regard of the nature of the case and the parties no order to the costs. It so ordered. DATED at SHINYANGA this 30th day of August, 2024. R.B Massam JUDGE 12