Salum Ally Denge

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO LAND CASE NO. 17 OF 2023 SALUM ALLY DENGE PLAINTIFF EMMANUEL RAPHAEL 2^"^ PLAINTIFF SHABANI HAMISI 3^° PLAINTIFF VERSUS MINGO VILLAGE COUNCIL DEFENDANT THE ATTORNEY GENERAL 2^° DEFENDANT Date of Last Order: 24/10/2024 Date of Judgment: 22/11/2024 JUDGEMENT MAGOIGA,J. The plaintiffs, SALUM ALLY DENGE, EMMANUEL RAPHAEL, and SHABANI HAMISI by way of a plaint instituted the instant landed suit against the abovenamed respondents claiming the following reliefs, to wit: - 1. The declaratory order that the plaintiffs are the iawful owner of 51 acres of farm iocated at Mingo Viilage, Mnazi Mmoja Hamlet separated by beacon, road, and sisal. Page 1 of 20 2. Permanent injunctive orders to the defendants against using the disputed land. 3. Any other relief(s) this honourable court may deem fit to grant. 4. Costs of this suit. Upon being served with the plaint, the defendants filed a written statement of defense disputing all plaintiffs' claim as baseless and averred that, the disputed land (51 acres) belongs to the 1^^ defendant as a natural forest reserve. Consequently, the defendants prayed that this honourable court be pleased, among others, to dismiss of the instant suit with costs for lack of legal merit. The facts of this suit as gathered from the pleadings are not complicated. It is alleged that the plaintiffs inherited 51 acres of the disputed land located at Mingo Village, Mnazi Mmoja Hamlet, from their grandfather, known as MASOUD, who owned the same under customary right of occupancy. The said land is separated by beacon, road, and sisal and bordered by several neighbors, such as Lukuki, Fatma Mwasa, Mkata Ranch, Rama Mganga, Davin Shio, and Dr. Mifugo. : iJ\-.: Page 2 of 20, It was alleged further that the plaintiffs have been using the disputed land for cultivating season crops without problem until 2021, when the first defendant, without notices and legal justification, declared the same as forest reserve and until now has taken possession of it. This triggered this dispute, and eventually the plaintiffs knocked the door of this fountain of justice for reliefs as contained in the plaint. And the defendants remained adamant that the disputed land Is a natural forest reserve thereto; hence, this judgement after hearing parties on merits. At all material time the plaintiffs were enjoying the legal services of Mr. Jackson Liwewa, learned advocate and the respondents had the legal Services of Ms. Emma Ambonisye and Mr. Abdallah Makulo, learned State Attorneys. This suit went on well with ^11 legal procedures up to the final pre-trial conference. During Final pre-trial conference, the following issues were proposed by the court, agreed between parties and recorded for the determination of this suit, to wit: - ^ , 1. Whether the plaintiffs are the lawful owner of the land in dispute. 2. To what reliefs are parties entitled to. rPage'3 of 20rC' ' In proof of their case, the plaintiffs' side called and testified through five witnesses(PWl,PW2,PW3, PVy4, and PW5).The defendants in disprove of the plaintiffs' claim called and testified through two witnesses(DWl and PW2)and tendered exhibits Dl, 02, and P3. In a bid to establish claims of the plaintiffs' side the first witness was SALUM ALLY DENGE (to be referred as 'PWl'). PWl under affirmation r ; ^nd through his witness statement adopted as his testimony in chjef told the court that, he a is resident of Mingo Village, farmer and aged 32 years. According to PWl, in 2012 he was gifted 17 acres from his mother, Tausi Hamisi Salehe, who was also gifted from her father, Masoud Mfundo. PWl further testimony was that since then he, has been using the said land for cultivation of sesame and sunfloyver until 2020, when the first defendant with unlawful justification declared the same to be forest reserve. Under cross examination by. Ms. Arnbonisye, PWl told the court that he didn't bring evidence that his mother gave him 17 acres, but he stands that the land was given to him by his mother. PWl told the court that in the plaint he never stated that his mo|:her gave him a piece of land comprised of 17 acres. PWl, after being shown paragraph 6 of the plaint he said that Page 4 of 20 cause of action arose in 2020 and not 2021 as pleaded. PWl stated that they opened the instant suit in 2021 and he had no written evidence for ;.. getting the land measuring 17 acrps. Under re-examination by Mr. Liwewa, PWl told the court that he was given the land by his mother, although he had no written evidence for being i. iQiven the land in dispute. PWl stated that the dispute started in 2020, and: in the plaint, they claimed all 51 acres each; when divided to three, it brings 17 acres for each. The next witness for the plaintiff was EMMANUEL RAPHAEL (to be referred as "PW2"). PW2 under oath and through his witness statement adopted as his testimony in chief, told the court that he is a resident of Mingo viiiage, aged 48 years and a farmer. According to PW2, in 2014 he was gifted 17 acres from his mother, Regina Masoud, who was also gifted from her 5 vJk--',' father, Masoud Mfundo who acquired it by splitting forest during the colonial era. PW2 further testimony was that since then he has been using the said land for cultivation of sunflower and millet until 2020, when the first defendant with unlawful justification declared the same to be forest reserve. ' ' "■ ■ ■ " ■ . ' ■ . ; kvih ■ ■ ■■/•'V0 ■ • 0 ■' ., -fia ' aid. . - fa. ' Page 5 of 20 T'"' ■ PW2 insisted that he was the iawful owner of 17 acres among the disputed land, which bordered with Mameo and Devina, and it has been identified through beacon, sisal, and Mikutapila as boundaries. Under cross examination by Ms. Ambonisye, PW2 told the court that he had no written evidence to prove the ownership of the said 17 acres of land after getting the same from his mother Regina Masoud. PW2 told the court that nowhere in the plaint stated he got the farm from his mother, Regina Masoud, who got it from her father. On re-examination by Mr. Liwewa, PW2 stated that the ownership of the disputed land was given under the customarily and no written document was written down. Next witness was SHABANI HAMISI MATONGO (to be referred as "PW3"). PW3, under affirmation and through his witness statement adopted as his testimony in chief told the court that in 1980's in the presence of his father, he was gifted 17 acres by his grandfather, known as Masoud Mfundo, vyho acquired it through splitting the forest during the colonial era. PW3 testified further that his farm is adjacent to some neighbors as Devina Shio Rage 6 of 20. and Maneno Yusufu, and he used it for cultivating maize, miiiet, and mbaazi (peas). According to PW3, he has been enjoyjng the possession and use of the - ^disputed land until 2020, when the Mingo Village declared the same as a forest reserve. Under cross-examination by Ms. Ambonisye, PW3 told the court that he got the farm in 1980 as a reward, but he never stated in the plaint that he was given it in 1980. Pressed with cross examination, PW3 told the court that he had no written evidence to prove the djsputed land belongs to him. PW3 stated that the dispute arose in 2020, but in the plaint, they stated it was in 2021. • V. On re-examination by Mr. Liwewa, PW3 told the court by reiterated that he got the 17 acres of the disputed land from his grandfather. Next witness was TAUSI HAMIS SALEHE (to be referred as PW4"). PW4 under affirrnation and through her witness statement adopted as testimony her in chief, told the court that she knew the plaintiffs with their farms since operation Vijiji vya Ujamaa. -i " \ , , '•''' "• ;:Page7of20 ^ ! " PW4 told the court that the disputed land belonged to her grandfather, ■ ■■ ■ Masoud Mfundo, which was gift^ to her by her mother, and later on she gifted the same to her son, Salum Ally Denge,for a total of 17 acres. Further, PW4 told the court that she was born on that land, and before it was gifted :% to her son, she used that land for cultivating maize, rice, and millet. The farm is adjacent to some neighbors known as Kiswili, Ranchi, and Mzee Furahisha. ' . . d;;:;'. "Ha? ;;a:UK"r; ^ j ■■■V Under cross-examination by Ms. Ambonisye, PW4 told the court that the disputed farm is over at Mingo village, and she doesn't remember the date when her grandfather gave it to her mother because it is a long time. PW4 told the court that she was giiven the land in 1972, and she gave the same to her son in 2020, and she doesn't remember when the conflict started. PW4 corrected her assertion by telling the court that she gave her son the land in 2012 and not 2020; then, she is the one who said the truth. Pyy4 ad-;::. ended by telling the court that she had no answer as to when the allocation was going from person to person. Under re-examination by Mr, Liwewa, PW4 stated that she gifted the farm to her son. ; Page 8 of 20^ . d ' The last witness for the plaintiffs was SHOMARIYUSUPH HALFANI (to be referred as "PW5"). PW5 through the witness statement adopted as_ her testimony In chief, PW5 told the court that he was a chairperson In ; 'B' before the Inception: pf established MIngo village, and he knew ^ the plaintiffs and their farms since the operation vljljl vya ujamaa. PW5 told the court further that the disputed land was owned by Mzee Masoud Mfundo and was used for cultivation. PW5 told the court that Mzee Masoud Mfundo had owned 227 acres of ■ ■ ■■ ■ iHi'V > '. j . • . ' l;'J ;')C ; farm at KIruka Halmet, which he apqulred by splitting forest; hence, he gifted some to the plaintiffs, who started to sell It to the Investor called Devin Shio. i ;; . ; \ ■ ;■ ^ Under cross-examination by Ms. Ambonlsye, PW5 stated that the operation Vljljl was In 1974 and It was not In 1970 when he knew Mzee : Masoud when he was only 7 years old. PW5 stated that he was a village ■ leader since 2009 to 2014, and he knew the case of the three families whose land has been demarcated as a forest reserve for claiming 30 acres, and they ; ^ to court. PW5 told the court that the plaintiffs got the disputed land from their grandfather, which Denge got In 10 acres, Raphael got IQ acres, and Shaban Hamis got 10 acres. PW5 said he was not present when the •' K : Page 9 of 20 plaintiffs given the said iand, but he witnessed when they soid, and no document was issued to them. On re-examination by Mr. Liwewa, PW5 stated that the farm belonged to their grandfather and some sojcl it to Happy National Buses. PW5 stated: that for what he knew, the plaintiffs had 30 acres. This marked the end of th^ piaintiffs case, and the same was marked cio^ed. On the part of defence, there were two witnesses. The first witness was RASHID ATHMAN KIBUKILA (to be referred as "DWl"). Under affirrnation and through his witness statement be adopted as his testimony ; I chief, DWl toid the court that, in 2014, he was eiected as Mingo Hamlet chairperson and served in that position untii 2016. DWl stated that in 2016, :i ; when Mingo Hamlet was upgraded to be a village, he was elected again to serve the same position untii 2024. ^ u pwi told the court that the Mingp village was registered on 01®^July, ® it obtained its certificate of registration on OB*"^ July, 2020. DWl went on telling the court that since then, Mingo village was registered and : iV the disp land was a reserved as forest, and even after its registration, the area had not been ailocated to anyone. To evidence the same, a ^ ^ J iPiagelOofZO certificate of registration of Mingo viliage was tendered by DWl in the court as evidence and marked as exhibit DEl,^ DWl went on testifying that the reserved forest is about 104 acres, including the disputed land, and in 2020, the plaintiffs trespassed in and planted artificial trees. DWl stated that for the plaintiffs' unlawful acts, the Mingo village convened the meeting on O?^'^ July, 2020, among the discussed agendas was the invasion of the village land by the plaintiffs, hence, the eviction order was declared against them. The minutes of the village meeting dated 07^^ day of July, 2020 were tendered and admitted in evidence and marked exhibit DE2. DWl told the court that not only that, but also on 23'"^ September, 2020, another meeting was convened by the village council in which, among Qthers, discussed issues was the land use pjan of the village. The minutes of the viliage meeting that sat on that date were admitted in evidence and marked as exhibit DE3. It was further testimony of DWl that, in 2021, the plaintiffs instituted a case at the Ward Tribunal against the first respondent, who claimed that Page 11 of 20' they were lawful owners of the disputed land, which was in vain, and they appealed at the District Land and Housing Tribunal, which declared that the Ward Tribunal had no jurisdiction, so the instant case. Under cross-examination by Mr. Liwewa, DWl told the court that. It was true the Mingo village started in 2015 and before that was a hamlet within Lubungo village. DWl, upon shown a paper, admitted that on 04/04/2016 he was in the meeting in which Deven Shayo was given 110 acres of land as an investor. DWl stated further that the forrner chairman, called Kasele, was removed from office because he abused his position on land. DWl conceded that he knew the plaintiffs as the members of the Mingp yillage, and they dealt with agriculture on their other land. DWl told the court,that the remaining land was for village forest reserve. Under re-examinatiori by Mr. Makulo, DWl told the court that the village acres were 214 and the Investor was given 110, and the rest are reserved as forest, and he stated that this matter does not concern Shayo :;SS . ?t all. ' '' ' '^ ■ UC; ■ , L' ■ ■ ■■ ' .i Page 12 of 20 ■ ■ 'i:V' \ Nr 'aijr,. ..F . The last witness for defence side was IMANI FIDELIS MALOKO (to be referred as "DW2"). DW2 under affirmation and through his witness statement adopted as his testimony in chief, told the court that he was born in 1984 at Mingo hamlet, now Mingo village, and in 2019 he was elected as chairperson of Mnazi mmoja hamlet, which is under the Mingo village up to now. DW2 testified that the disputed land is about 51 acres, which is adjacent to his hamlet in which he is a leader, and what he knew, the Mingo reserved forest is about 104, including the acres in dispute, which is owned by the Mingo village. DW2 told the court that the plaintiffs unlawfully trespassed onto the disputed land in 2020,,starting with planting the artificial trees. The act led the village council to convene a meeting, which declared the plaintiffs to be evicted. Under cross-examination by Mr. Liwewa, DW2 told the court that he was born at Lubungo village, which gave birth to Mingo village, and he knevy the plaintiffs as his fellow residents in Mingo village. DW2 contended that he didn't know the one called Masoud. )Page 13 of 20. DW2 conceded that he knew Deveen Shiyo as an investor near the disputed iand who bought a piece of iand from the viilage, and the plaintiffs have their own lands in different areas of the village. On re-examination by Mr. Machunde, DW2 told the court that Deven Shiyo had no quarrel with the village at all. Having dispassionately considered the pleadings, the oral testimonies of the parties' witnesses, and the documentary exhibits tendered, now I embark on considering the matter according to the issues as framed and agreed to by the parties and evidence on record. However, I noted that there are some facts not in dispute between parties. These are: It is not disputed that the plaintiffs are residents of Mingo Village where the cause of action arose and it is also not disputable that the plaintiffs sued defendants on allegations that the first defendant unlawful declared the disputed land reserved forest and took possession of it. Back to the first issue; whether the plaintiffs are the iawfui owner of the iand in dispute. Parties are at issue as to who are rightful owners of the disputed iand. The plaintiffs clairp to be gifted and the defendant denies CPage 14 of 20 ;' ;■ : the same to reserved land as forest. It is trite law In our jurisdiction under 111 of the Evidence Act, [cap 6 R.E 2022] that he who alleges must prove that a certain fact exists. This stance was emphasized in the case of Lamshore Limited & another vs. Bazanje K.U.D K,[1999]T.L.R 330, the court held: - "The duty to prove the alleged facts Is on the party alleging Its existence" Though in civil cases a burden of proving is on balance of probabilities but due to the above provisions cast such duty on plaintiffs who alleged that they were lawful owner of the land in dispute acquired by way oVgift Inter vivos'from their grandfather Mzee Masoud. To substantiate their case, the Plaintiffs produced background on how they acquired the disputed land which originally owned by their grandfather called Masoud Mfundo who acqqired it by way of clearing the land during the colonial ere. The plaintiff managed to ipvite PW4 and PW5 as witnesses to support of their assertions. The plaintiffs testified as PWl, PW2, and PW3 told the court that in different times each one was gifted 17 acres of disputed land allocated at 'V 15 of izff ^ 'l::! J r,. Mingo village from their parents (Tausi Hamisi Salehe, Regina Masoud, and PW3's grandfather). Each plaintiff, at his statement of witness, toid the court that since was given such land, he used for cultivation until 2020 when the ;first respondent declared their land as forest reserve. The defence witnesses, through DWl and DW2, who are the local leaders of the Mingo village, on their testimonies contested the assertions by plaintiffs by stating that their viiiaqe was registered on 01^^ July 2015, and it obtained its certificate of registration on OS""^ July 2020. To cement their assertations, DWl tendered a certificate.of village registration, which was pdmitted and marked as DEI with a title of"HATIYA USAJILIWA KIJI3I CHA MINGO" and "Namba ya Usajili MOR-129-09007272." Further, nC: ^ ;.:WV : .'".v' - they stated that Mingo village kept 104 acres for reserve, which was not allocated to any person or used for human activities, so without legal justification in 2020 the plaintiffs trespassed on the land about 51 acres and planted artificial trees. In the second place, another trite law worth of consideration in this suit is that parties are bound by their own pleadings. See the.case of Martin Fredrick Rajab Vs. Ilemela Municipal Council and another, Civij • Rage 16 of ZOl Appeal No.197 of 2019 at Tanzlii as [2022]TZCA434 in which it was held that: - is a cardinal principle of the law of Civil Procedure founded upon prudence that parties are bound by their pleadings, and thus, ho party is allowed to present a case contrary to the pleading." In this suit, the plaintiffs never pleaded that their mother gave them the disputed land. Their pleading was that they got the land from their grandfather one, Mzee Masoud but who was not called to testify and no explanation was offered of his whereabout. The witness, if any, to support their case was grandfather mzee Masoud and not their mother. In other words, the plaintiffs gave evidence which was at variance with their pleadings. In the case of Barclays Bank Tanzania Limited Vs. Jacob Muro, Civil Appeal No 357 of 2019 at Tanzlii [2020] TZCA 1875 it was held that: - We feel compelled at this point,to restate the time honoured principle of law that parties are bound by their pleadings and that any evidence produced by any of the parties which does 'Page 17 of 20 not support the pleaded facts or is at variance with pleaded facts must be ignored." Not only that but the plaintiffs never called the so-called neighbours to come and support their case. PW5 who was the chairman, talked of 10 acres to each, which evidence was as well at variance with the pleadings. In my considered opinion, a claim of ownership over a piece of land must be sufficiently proved and not by mere assertions that a certain person was given a piece of land by way of gift without reliable evidence. In my own considered opinion, the plaintiffs' evidence was largely doubtable; at Variance with the pleadings, and above all failed to tell the exact date when were given by grandfather Masoud. As that is not enough, even the evidence of PW4 and PW5 called as witnesses to support their case, failed to shovy that Masoud Mfundo as the first owner of the disputed land lived there and cultivated which crops instead, likewise simply they said Masoud had obtained it since the colonial era. The colonial era the plaintiffs were not yet born. On the other hand, PW5 told the court that when the plaintiffs were piyen the disputed land by 'Mzee Masoud Mfundo' he was not present but he knew that each plaintiff was given 10 acres. This piece of evidence was ;Pagel8of.20 not only supporting and advancing the plaintiffs' case but rather making it crambie. On the foregoing reasons, I am convinced that the plaintiffs utterly failed to prove on the balance of probabilities that the land in disputed is - their property. Therefore, I answer the first issue in the negative that the plaintiffs are not lawful owner of the disputed land measuring 51 acres situated at Mingo village. This takes me to the second issue couched that Yc what reliefs are parties entitied to?. Much as the first issue in this suit has failed, consequently, and without much ado, the second issue will not detain me much. Admittedly, the plaintiffs have failed to prove their ownership of th^ land in dispute. The defendants prayed that this court dismiss this suit with icosts for want of merits. Consequently, I dismiss the plaintiffs' case in its entirety with costs. It is so ordered. Dated at MOROGORO this 22'^''day of November, 2024 . ; v;\j Page 19 of 20 V S. M'. MAGOIGA JUDGE 22/11/2024 COURT: Judgement delivered in chambers In the presence of the plaintiffs and in the presence of Ms. Emma Ambonisye, learned State Attorney for the def te at Morogroro today 22"^ day of Novomber, 2024 CQ'JR"^ i-U > o X ■Vv :b. S. M. MAGOIGA ix!ft JUDGE 22/11/2024 • { COURT: Right of appeal fully explained Of o 4- C tO 0? X > lU m S. M. MAGOIGA JUDGE 221111202^ 1 Page 20 of 20