ifakara

IN THE HIGH COURT OF TANZANIA (MOROGORO SUB - REGISTRY) AT IJC MOROGORO LAND CASE NO.02 OF 2022 RASHID ALLY KINDWIKU AND 86 OTHERS PLAINTIFFS VERSUS IFAKARA TOWN COUNCIL (FORMERLY KNOWN AS KILOMBERO DISTRICT COUNCIL) DEFENDANT HON.ATTORNEY GENERAL ...2'"' DEFENDANT JUDGEMENT 26**' of March,2024 MANSOOR,J. The plaintiffs filed a suit jointly and severally against the defendants over ownership of the suit land measuring 1120 acres located at the village of Kininglna Machipi Changanyikeni, at Ifakara Town in Kilombero District, Morogoro. According to the plaint, the plaintiffs being in possession and ownership of the land in dispute uninterruptedly for more than sixty consecutive years since 1960's peacefully enjoyed the possession of the same until in the year 2014 when the first defendant unlawfully trespassed into the said Page 1 of 15 land amounting to nine hundred and fifty acres by establishing a school named Ifakara Secondaty School. It was the plaintiffs'averment that, in the year 1975 they gave permission to the Government for 170 acres to be used for establishment of Ifakara Secondary School with a condition that compensation shall be paid to the plaintiffs. The gist of plaintiffs'complaints is that the compensation for the said 170 acres is yet to be paid to the plaintiffs to date and in addition to the 170 acres the defendants have also trespassed into other additional land owned by the plaintiffs measuring 950 acres. It is on that regard, the plaintiffs instituted the present suit praying for an order that the suit land measuring 950 acres belongs to the plaintiffs, a declaratory order that the defendants' act of issuing notice to stop the plaintiffs from using the suit land for residential and agricultural purpose without payment of compensation amounts to trespass, a declaratory order of permanent injunction restraining the defendants, their agents or workmen from disturbing in any manner the plaintiffs using the suit land for agricultural and residential purpose, in alternative payment of TZS 3,000,000,000/= as compensation by the defendants to the plaintiffs being the current market value of the suit land measuring about 950 acres, payment of TZS 500,000,000/= being the amount constituting Page 2of 15 unpaid compensation In respect of the 170 acres of land acquired by the defendants, payment of general damages and costs of the suit. The defendants vehemently disputed the plaintiffs' claims on their joint written statement of defence. They first disputed the plaintiffs'ownership ofthe suit land as they claimed on their pleading that the suit land belongs to Ifakara Secondary School which acquired the same during operation vijiji by the Government and that the school land covers 462.440 hectors including the land In dispute. They alleged further that, In order to determine the boundaries, the suit land was surveyed in 1991 In favour of the school. On that basis, the defendants prayed the suit be dismissed with costs, an order of permanent injunction against the plaintiffs from entering Into the land In dispute and any other rellef(s) this honourable court may deem fit and just to grant. After the pleadings were completed, on 25/10/2022 when the matter was set for the final pre-trial conference under Order VIII Rule 40 (1) of the CPC, three Issues were framed for determination namely; 1, Whether the plaintiffs were compensated for the land constituting 170 acres for establishment of Ifakara Secondary School. 2. Whether the defendants have trespassed to the plaintiffs' land of 950 acres. Page 3 of 15 3. What reliefs are the parties entitled to. During the hearing of this suit, the plaintiffs were represented by Mr. Fikiri Liganga, the learned advocate whereas the defendants had the services of Mr. Xavier Ndalahwa, Senior State Attorney assisted by Hemed S Mkomwa, Lightness Tarimo, Elifrida Mutashobya and Petro Ngogo, all State Attorneys. The plaintiffs in proving their case they fronted before the court three witnesses; Iddi Mohammed Tibenanga (PWl), Rashid Ally Kindwiku (PW2), Kassim Ramadhani Boma (PW3). Iddi Mohamed Tibenanga testified as PWl. He said that he customarily owns more than 15 acres on the 950 acres and that he has no claim on 170 acres. That, the 170 acres that were given to the council in 1975 for building a secondary school had some permanent crops which were registered and taken to the District Commissioner and that the Government promised to compensate them. He contended that in 2014 the District Council of Ifakara extended the land from 170 acres to 950 acres without their consent and that the school have planted crops like bananas on the land. He said the operation vijiji was conducted in 1974 and their village was not affected. Page 4 of 15 Iddi Rashid Ally Kindwiku (PW2)told the court that, he owns 10 acres on the 950 acres trespassed by the Ifakara Municipal Council. He elaborated further that, he and other plaintiffs convened a meeting with the District Commissioner and it was resolved that the whole land of 950 acres be retained for the villagers. He added that the villagers were not compensated on the 170 acres given to Ifakara Municipal council and also that operation vijiji didn't affect their village. Kasimu Ramadhan Boma the ward secretary of CCM at Michenga Village since 2002 to date testified as PW3. He produced Exhibit P (l)(a)(b)(c) which was the letters dated 28/04/1977,14/05/1977 and 22/04/1977, to prove that the land was acquired from the villagers for the purpose of building the school and the villagers were entitled to compensation. He said all the letters were directed to the Ward Secretary, however, he didn't find any response to them, he said all the claimants were never paid compensation to date and thus they are still owners of the suit land. That was all from the plaintiffs. On their part, the defendants had three witnesses, Omary Twaduguru (DWl), Kiangi Mbonea Mchome(DW2)and Shukuru Hussein (DW3), Omary Twaduguru, the survey and planning officer at Ifakara testified that the land in dispute is surveyed and tendered exhibit D1 the survey Page 5 of 15 Plan No.29877 dated 15 January,1991, proving that the land In dispute which comprises of 1142 acres Is within the land allocated for construction of Ifakara Secondary School. He said the land which is not In dispute comprises only 200 acres where there are school buildings. He confirmed further that, the Government acquired the land from the villagers through operation Vljljl conducted countrywide on 1972-1975 and he also stated that there were no Issues of compensation by that time and thus the villagers were relocated. KlangI Mbonea Mchome working at Ifakara department of Secondary Education since 2008 who testified as DW2 said, Ifakara Secondary School was among the four school built by the assistance from Cuba Government. He confirmed to lack knowledge on how the Government acquired the land. He also confirmed that the villagers are still trespassing on the land and that the matter has been reported by the school to the relevant authorities. ShukuranI HassanI who Is among the residents who were on the land In dispute In 1975 testified that, the Government told the villagers to give the land for school construction. He said many of the villagers were relocated to Kinlnglna village and he mentioned Ally KIndlkwu the father of 1^ plaintiff to be among of them. He said he gave to the Government Page 6 of 15 15 acres but he was relocated only 1 acre like other villagers. He confirmed also that the Government promised to pay them for their crops and yet they have never been paid. Having heard both parties, I now turn to consider and determine the framed Issues in light of the pleadings, evidence adduced at the trial as well as the final submissions made by the parties in this suit. I will begin with the first issue as to whether from the evidence presented In court; the plaintiffs were compensated for the land constituting 170 acres for establishment of Ifakara secondary school. It is the common knowledge that under section 110 and 111 of the Evidence Act Cap 6, R. E. 2002 he who alleges has a burden of proving his allegation. [See also the case of Bakari Mhando Swanga v. Mzee Mohamed Shelukindo & Others, Civil Appeal 389 of 2019 at page 7 to 8]. It follows that, in the case at hand, the burden of proof lies on the plaintiffs to prove by cogent evidence that they were not compensated. Considering the adduced evidence by the plaintiffs in relation to the issue, in order to determine the weight of evidence tendered by the plaintiffs, the concentration of this court will be on the evidence of PWl, PW2 and PW3 the only fronted witnesses on the plaintiffs'side. PWl at the outset, testified to have an interest in the land of 170 acres, owning more than Page 7 of 15 15 acres with his family. He further claimed that they planted permanent crops in the said land which were registered to the District Commissioner for compensation,and that the same were not yet paid to date. However, during cross-examination PWl testified to have no any claim on the 170 acres. While I am fully aware of a trite law as enunciated in the case of GOODLUCK KYANDO v. R-, Criminal Appeal No. 118 of 2003 (unreported) that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness, I think this is a case fit to apply the exception to that general rule. I say so because, at this point it is crystal clear that there is confusion on the evidence of PWl as to whether his claims over entitlement to compensation of his 15 acres of land within the 170 acres were valid or not. In my view such a confusion is a material discrepancy going to the root of the issue before the court hence corroding his credibility and rendering his evidence regarding the instant Issue unreliable and the court hereby rejects it.[see the case of Bahati Makeja vs Republic, Criminal Appeal 118 of 2006 (Unreported) at page 14,15] PW2 claimed that he was not compensated for the 5 acres he surrendered to the Government. However, I have noted that his evidence was not Page 8 of 15 direct as he testified during cross examination that every evidence concerning his ownership of 5 acres on the 170 acres and non compensation was from his father and thus it cannot be admissible in court basing on principle underscored numerous decisions in our jurisdiction such as in the case of Vumi Liapenda Mushi v. Republic, Criminal Appeal No. 327 of 2016(unreported)],thus the court also rejects It. The only evidence remaining worthy of consideration by the court is the evidence of PW3 who tendered exhibit PI the letters dated 28/04/1977, 14/05/1977 and 22/04/1977 on proving that the plaintiffs were not compensated on the 170 acres. I took pain to pass through all the letters and what I grasped from its content is the correspondence between the office of the District Commissioner of Kilombero and the Ward Secretary of Lumemo regarding compensation to the person whose crops were damaged during the construction of Ifakara Secondary School. According to exhibit PI the purported compensation was for the crops damaged in course of construction of Ifakara Secondary School and no more; nothing in the letters suggest that the purported compensation was In exchange of the surrendered 170 acres of land. Page 9 of 15 Even if I consider the purported compensation was in exchange to the 170 acres of land surrendered; there is no proof forth coming from the plaintiffs' evidence which substantiate exhibit PI as none of the plaintiffs' witness has proved to the required standard to have valid claim for compensation which are not yet paid on 170 acres. Further, I am of the view that, as that the documents indicate the claims of compensation to be dated way back in 1977 while there is no current document tendered in court by the plaintiff to indicate that the plaintiffs were still adamant for their unpaid compensation, the same indicates that the plaintiffs slept over their right for over 40 years far beyond 12 years'time limitation for instituting a dispute over ownership of land or one year for a claim of compensation. Under these circumstances the exhibit does not only needs corroboration to substantiate plaintiffs' claims but also it proves that the plaintiffs' claims are time barred as rightly submitted by the defendant counsel on their final submission (See, item 1 and 22 to the schedule of the Law of Limitation Act, Cap 89 R.E 2019). With that being observed as such, I am convinced that the document, exhibit PI by itself does not substantiate plaintiffs' claims. Basing on the observation above it goes without saying that the Plaintiffs herein, have failed to prove and satisfy the Court, on a balance of Page 10 of 15 probabilities that, that they are entitled for compensation from the defendants or that the compensation was not yet paid. Regarding the second Issue as to whether the defendants have trespassed to the plaintiffs'land of950 acres, I will start with what the court of Appeal held in the case of Sheikh Muhammed Lubowa versus Kitara Enterprises Ltd CA No. 4 of 1987 that In order to succeed for trespass, one must prove; 1. That the disputed land belonged to the Plaintiff. 2. That the Defendant had entered upon It. 3. That entry was unlawful In that It was made without permission or that the Defendant had no claim or right or interest In the disputed land. In the instant matter, as to proof of ownership by the plaintiffs; PWl claimed to be legal owner of 15 acres on the disputed land by customary ownership while PW2 claimed ownership of 10 acres of the suit land on ground that he was given by his father. There was no proof whatsoever produced by PW2 and PW3 In court to prove that Indeed the disputed land belonged to his father and customary ownership respectively. These were mere words lacking proof. A party, who asserts a claim, must prove It. In my understanding of the law, when Page 11 of 15 a person is bound to prove the existence of any fact, the burden of proof lies on that person. The burden of proof in a suit or proceedings lies on that person who vyould fail if no evidence at all were given on either. I understand that the Village Land Act recognises those who have occupied lands for many years are entitled to customary rights of occupancy, but there must be proof that their late grandfather or father had occupied the land for many years and thus entitled to customary right of occupancy under the Village Land Act. The same was not proved in the case at hand. Further to that, only two plaintiffs gave evidence out of eighty-four (84) plaintiffs while it is plainly clear that the disputed land is notjointly owned by all the plaintiffs. It is common principle that all the plaintiffs had a duty to testify and prove on balance of probabilities that the disputed land belonged to each individual as it was insisted in the case of Nafco v Mulbadaw Village and Others [1985] TLR 88 this Court, held, inter alia, I quote. " In any event each villager had to prove his own case. Each claim Is different from the other. In terms of date of possession, ofacreage, ofthe method ofacquisition, and so Page 12 of 15 on. They were individual claims. A person may act and represent another person, but we know of no iaw or iegai enactment which can permitanotherperson to testifyin place ofanother". Considering the above authority to the Instant case, as there Is no evidence coming from 84 plaintiffs to assert their ownership over the land, it Is very difficult to sustain their claim.The Court cannot give right to any person in the absence of proof. In addition to that, during my perusal of the plaint, I have noted that there is also no proper and sufficient identification of the land in dispute. I am alive to the principle that proper and sufficient identification of the suit land enables the court to grant order on specific piece of land and not land at large which may affect unintended person who are not parties to the suit. It also intends to avoid fictitious claims and litigations. See (Joel Kondela Maduhu versus Siya Ndeja, Land Appeal No. 3 of 2021 (unreported) at page 8 where it was held that; "The two acres' claim was determined without defining its location and boundaries. It is a settled principle of the iaw Page 13 of 15 that, any claim of land should comprise a proper description of the suit land for definite and complete execution order". The plaintiffs in this case have described the suit land in terms of its size and location only as Indicated in paragraph 5 of the plaint; by saying that the defendant has unlawfully added 950 acres of land to the 170 acres they gave to them by establishing and operating a school named Ifakara Secondary School. Notably, one will not be able to understand from what direction of the 170 acres the 950 acres were added as the description does not specify the boundaries or even the neighbours to the suit land that would sufficiently identify and distinguish the suit land from other land. Apart from what is amiss in the pleadings, at the trial none of the witness on the plaintiffs' side managed to give any further description of the suit property. That being said and done it is fair at this stage to hold that there was also improper and insufficient identification of the suit land by the plaintiffs to enable this court to issue an effective decree which can effectively be executed. In the upshot, and for reasons stated hereinabove, it is my holding that, the plaintiffs have failed to prove their ownership on the land and thus I find it unnecessary to dwell on testing the remaining elements to prove Page 14 of 15 trespass. Consequently, I find the second issue to be answered in negative. Regarding the reliefs that parties entitled to the parties, basing on the fact that the plaintiff case was not supported by any evidence to discharge their burden of proving the facts they alleged in their plaint, I hereby dismiss the instant suit, with costs. It is so ordered. DATED AND DELIVERED AT MOROGORO THIS 26^^ DAY OF M RC 2024 Of O 4/ O -9 (L. MANSOOR,J.) > LU JUDGE •5:. m 26.03.2024. Page 15 of 15