SHUWASA HUKUMU

IN THE HIGH COURT OF THE UNITED RE PUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA LAND CASE NO. 4 OF 2023 CASE REFERENCE NO. 20230403000489888 1. SHINYANGA WATER SUPPLY AND SANITATION AUTHORITY (SHUWASA) ................PLAINTIFFS 2. ATTORNEY GENERAL VERSUS 1. JILALA KASHANDAGO .....................................................DEFENDANT 2. MAGENI KASHANDAGO ………………………..……………….DEFENDANT 3. JUAKALI KASHANDAGO ………………………………………..DEFENDANT 4. JILALAKASHANDAGO (As administrator of the Estates of the Late Minza Kashandago) ………………….…………….……………..DEFENDANT 5. MOSHI KASHANDAGO ………………………….………………. DEFENDANT 6. JONAS KASHANDAGO …………………………………..………. DEFENDANT JUDGMENT 12th Sept & 31st October 2024 F.H. MAHIMBALI, J The plaintiffs in this case own land by the Granted Right of Occupancy on Plot No.39 and 40 Block A Mwalugoye with Certificate of title No. 2779 Land office No. 426440 and Title No.2780 land office No. 426439 respectively within Shinyanga Municipality. The said land is used 1 for Water Plant Projects for the purposes of Shinyanga Municipality. They have been in possession and occupation since early 1970s. In 2020 they had decided to conduct survey of their land for purposes obtaining granted right of occupancy. They did it successfully and ultimately obtained the certificates of occupancy: No. 2779 and No.2780 for Plot No. 40 and 39 respectively. The claims against the defendants is for vacant possession of Plot No.39 Block A Mwalugoye with Certificate of title No. 2779 Land office No. 426440 on the basis that they had trespassed to it. As to how the first plaintiff got the said land, it has been alleged that in the year 1972, persons who were living the suit land volunteered to vacate their land and shifted to Chibe Village to pave way to the big project of water supply for Shinyanga town where those people were all given another land for their use at Chibe village in substitution of the lands surrendered for the project. The said allocated land was not surveyed and is estimated to be 280 acres’ land size. Its boundaries are clear: On north is bordered by TPDF area and river Ning’wa, south there are farms, east there is a old Shinyanga road to Mwanza and on western there are farms. 2 In 2021 the plaintiffs surveyed the suit land granted with certificates of Occupancy. Thus, from 1972 the first plaintiff enjoyed the suit land without any interference from anyone until around 2018 where the first defendant without any justifiable cause trespassed the suit land by building thereon a temporary shed for milling machine and he continued occupying the disputed land the act which has prevented the plaintiffs from freely enjoying the suit land and hinder water project services to the people within Shinyanga Municipality. Being the case the plaintiff after all other necessary efforts had failed to reconcile the situation, filed this suit. Basing on the above facts, the plaintiffs claim for the judgement and decree against the defendants as follows; i. Declaration that the plaintiffs are the lawful owners of the disputed land and the defendants are trespassers. ii. Declaration and an order for the Defendants’ vacant possession over the disputed land. iii. An order for the demolish of the milling machine shed and the five mudded houses recently built. iv. General damages at the Court’s discretion. v. Costs of the suit 3 vi. Any other reliefs as the court may deem fit and just to grant for interests of justice. On the other hand, the defendants being all the issues of the late Kashandago Nkonu, dispute all the claims put by the Plaintiffs averring that the suit land is theirs as they were born there (others from colonial time) and others in early 1970s and that they grew there. They do not deny knowing the first plaintiff, but claim that she was their neighbour and that they had been co - living peacefully with her since her arrival there in early 1970s and later in her expansion project in 1980s. The plaintiff got a portion of land from one neighbour to them known as Ngwana Mandwa (northern part) and that to honour the project’s importance they too volunteered a place for their camp and later one acre. The rest of the area has remained theirs and there is nowhere that they had absconded from use save the fact that in 1974 following the government force operation vijiji they were re-located to Chibe not to pave way for the project but for that operation Vijiji. Thus, they dispute the claims that they were re-located for the project as they had been in active use of the said land since then despite their temporary re-location to Chibe for operation vijiji. 4 Thus, unless their land measuring 11 acres is legally acquired by the plaintiffs, it is still theirs and that they are not trespassers as alleged just by that process of survey and issuing of certificates of titles over their land as instigated by the plaintiffs as by itself does not illegalise their lawful possession of the alleged land. All in all, the legal stand on any legal claim before a court of law is this: Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts do exist. The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side. Thus, it is trite law that a burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact shall lie on any other person. That notwithstanding, in civil matters, a fact is said to be proved, if its existence is established by a preponderance of probability (see section 3(2) b, 110 and 112 of the Tanzanian Evidence Act, Cap 6, R.E 2022). A mere saying in court is not a proof of a fact and thus does not accord a litigant with a legal right but only when he or she establishes the existence of the said facts by a preponderance of probability. Only a party with 5 heavier evidence is to be pronounced a winner for a legal claim before a court of law. At the hearing of this case, the plaintiffs were represented by Mr. Musa Mpogole senior state attorney assisted by Amina Mkuya and Ms. Happy Richard learned State Attorneys. The defendants had legal representation of Ms. Glory Ikanda learned advocate. In determining the suit, three issues for court’s deliberation were framed namely; 1. Who is the lawful owner of the disputed land between the plaintiffs and the defendants. 2. Whether the defendants are entitled to any unexhausted improvements to the disputed land. 3. To what reliefs are the parties entitled to. The plaintiffss’ case had a total of five witnesses namely; Denisy Samson Magele, (PW1), Josephat Peter Mushi (PW2), Kimbira Mtebe (PW3), Zakaria Yohana Mapya (PW4), and Dick Mmbikilwa (PW5). For the defendant’s case there were also five witnesses namely; Jilala Kashandago (DW1), Moshi Kashandago (DW2), Jonas Kashandago (DW3), James Mabala (DW4) and Charles Selestino Mwaniwe (DW5) 6 PW1 – Dick Mmbikilwa testified that he has been at Shinyanga since 1974. By that time, he was an employee with SHUWASA, he was employed as Senior Water Technician. He was charged amongst others to make sure that water project is with water all the time. His duty areas were Ning’wa dam, water plant project areas, Mwasele project. All these three areas are there since 1972. That these projects belong to SHUWASA and were built on open land owned by government. All these were built by the Ministry of Water. They include: treatment plant, employees’ residential houses, pump house for pumping water to water tanks reserves. In 1974, following the growing population, the project had to be expanded: treatment plants, employees’ residences, pump houses. It was the government itself that was doing all this. In 1978, there was further expansion of the project as per growing number of populations. In 1984, the government had brought a German contractor - by name of SAARBERG INTERPLAN for a further expansion of the project and built – a new project from the same source. In the said construction, they made a camp – on prefabricated house southern part of the former plant. They built a controlled sewage system for collecting all water. They then laid plumbs from the source to Mwasele. On eastern 7 part, had a road to old Shinyanga, on western part lies plain land to Chibe village. The northern part there is a small river receiving spiral, and the southern part there is road to Nida Dam. In 1989 he was transferred from Shinyaga to Bukoba. After he had retired from service, he returned to Shinyanga ubraba. In 1974, at the suit area he heard the names of Kashandago, he knows them because, he had employed some of them. He recalls amongst others were: Juakali Kashandago and Minzi whom he had employed them at various posts. They were living at Mwalugoye with their father called Mzee Kashandago. Apart from mwalugoye, he had not known another place. From the water plants to their land, it is about two kms. The suit land had been 280 acres land. He was employed in 1974. By that time, it was operation vijiji. The said area was plain and remained that plain. In essence it was a plain land with no graves. It was at Mwalugoye and Chibe villages that the said villagers were put. With the disputed land, to the best of his knowledge belongs to the government as none of the villagers had been there. From what he has disestablished, to the best of his knowledge, the suit land 8 belongs to the government. PW1 when was cross-examined stated that he arrived at Shinyanga in 1974. The water projects of 1971 and 1972 he was schooling at Agathon College in Nairobi but in his field time (1972 and 1974) he was attending field courses at Ning’wa dam Shinyanga. When he had finished his course, he was posted directly at Shinyanga. PW2, Zakaria Yohana Mapya, stated that he was employed by the Ministry responsible of Water as surveyor. His duties as surveyor were to survey the Ministry water projects, make drawings, residential/buildings offices. His duty station was at Shinyanga. He further testified that, he came to know the area as belonging to SHUWASA since in 1984 when employed by SHUWASA via various office documents also during expansion of the projects. Also, in the course of his supervision, he knew some boundaries of the SHUWASA. The said area, the Ministry had obtained from Shinyanga District Council following the lodged application by the Ministry. The said area by 1984, it was 280 acres’ size. The boundaries by then of the said 280 acres are as follows: Eastern part is Old Shinyanga road but extreme far there is Tanganyika Parkers and meat industry, on northern part is bordered by river then its extreme far is JWTZ area, western part was just a bush land area but extreme far, farms, southern part is bordered a road to Chibe village. 9 By that time, the said area was within Mwalugoye hamlet, Chibe Ward. Currently, the said land is in Mwalugoye in Chibe Ward, in Old Shinyanga division within Shinyanga District and Shinyanga region. By that time, Shinyanga was not a municipality but district council, that is why change of description. Until his retirement in 2023, the suit area covers only 33.5 acres. The size area has been reduced due to public invasion over land uses. Amongst the said invaders are Aron Mlaki (water engineer). He invaded the said land on the western and southern part by establishing a building foundation. From 2014, many other villagers/people started invading the said land including the family of Kashandago which had constructed the milling machine. The said milling machine is constructed by corrugated iron sheets and partly by bricks. These structures have been built closer to the plant, about 200 meters. Apart from these structures, there are houses of the invaders built closer to the water infrastructure, about 30 meters. The water plants are there since 1972. They are there since 1972 because of the existing structures and water tanks, employees’ residential house, the inauguration pads, etc. By the time of his employment, all the infrastructures were in order and high protection – inauguration pads. Thus, apart from these plumber 10 infrastructures, plants, etc there were inauguration pads. These citizens have invaded the water project, PW2 said. PW2 also stated that in 1984 when he was employed, there was project expansion. In 2015, there was public announcement that all government plots should be owned by issuance of certificate of titles. SHUWASA got the said certificate in 2021. By 2007, following high demand of water, the government introduced a big water scheme – KASHWASA, which then led to the plumbing (water infrastructure) along the suit land. In which the defendants were not there save the plaintiffs. The current invaders did it from 2011. It is now about 100 meters’ long from the current KASHWASA infrastructures to the suit land. To the best of his knowledge, the disputed area belongs to SHUWASA. Due to the facts that there were no permanent structures/identities such as houses, crops, graves, farming etc. During cross examination PW2 refuted the allegation that by 1972 there were indigenous at the suit premise. The truth is, the suit area had no occupants by that time as per documentation at the office. PW3 – Kambira Mtebe, averred that he was employed on 20th May 2013 as HR by SHUWASA. Further he fortified that as per documentary 11 evidence in office, the said invasion is by the family of Kashandago (defendants). As per documentation, the defendants have invaded the suit land by erecting mud houses and milling machine – by corrugated iron sheets. The suit land is owned by SHUWASA as per office documentation. They have title deeds granted in 2021. The suit land as per title deeds is not less than 30s acres. The said land is in Chibe – Mwalugoye. The invasion is after being granted right of occupancy in November 2021. The invaders started building mud houses and then milling machine. After the invasion, they had written a letter to Jilala Kashandago stopping him doing anything to the suit land (9th July 2021), the said letter was admitted and marked as exhibit PE1. Despite this warning, the defendant defiled it and proceeded with the invasion by erecting some structures. On 5th April 2022 they had written a reminder letter on what they had earlier demanded them (July 2021). The referred letter was admitted and marked exhibit PE2. Despite the reminder and warning in this second letter, yet the family of Kashandago continued with the said trespassing of the plaintiff’s land. They kept on using the said land. He also recalls that they had gone to the site as there was an invitation from the Solicitor General’s office of the need of meeting with the defendants’ family members at Mwalugoye. In their 12 dialogue/discussion, the defendants had nothing to show on their ownership of the said land against title deed. But them, had pointed out their existing beacons as per their title deed over the suit land. After that, they had concluded the discussion by insisting the defendants to demolish their erected buildings/structures for the welfare of the project. Thereafter, as they denied the said demand notice, they had decided to refer the dispute to the Court of law for deliberation. When cross examined, PW3 stated that there are no other trespassers save these defendants. PW4 – Josephat Peter Mushi, testified that he is a government employee, Ministry of Lands as Senior Land Officer – stationed at Shinyanga Municipal Council. He further alluded that these plots no. 39 and 40, Block A – Mwalugoye which are in dispute were allocated to SHUWASA and accordingly granted right of occupancy. With the present dispute, in 2021, they had received a letter from SHUWASA requesting survey and grant of certificates of right of occupancy in respect of their owned areas. After they had received the said letter, the process of granting the right of occupancy had commenced. Land Form no. 19 (application of right of occupancy, then they prepared the provisional certificate of right of occupancy in which they get their signatures and 13 office seals, after the said signing and seal, they proceeded with the internal works for deed plan and upon all being clear, they forwarded all the necessary documents mentioned above to the Commissioner for Lands for his satisfaction and issuance of the Certificate of Right of Occupancy. When all this is scrutinized, the Commissioner for lands issued the said Certificate of Right of Occupancy and sent it to the Registrar of Titles for his registration. After all this was over, the applicant then issued with his certificate of right of occupancy for his own uses and custody. The SHUWASA’s application in his memory had commenced in 2021. The process is not a one-month process as it involves several procedures and offices. The said plots 39 and 40 Block A are located at Mwalugoye. It is the property of SHUWASA. The said Certificates of Title No. 2779 Land Office No: 426440 for Plot No. 39 Block A AT MWALUGOYE is dated 24th Nov 2021 for SHINYANGA URBAN WATER SUPPLY AND SEWARAGE AUTHORITY (SHUWASA) of P.O.BOX 298 SHINYANGA was admitted and marked exhibit PE3 and Certificate of Title No. 2780 Land Office No: 426439 for Plot No. 40 Block AT MWALUGOYE dated 24th Nov 2021 for SHINYANGA URBAN WATER SUPPLY AND SEWARAGE AUTHORITY (SHUWASA) of P.O.BOX 298 SHINYANGA was admitted and marked exhibit PE4. 14 With Plot No. 39 Block A – Mwalugoye its land size is SQM 112,700 designed for public works while Plot No. 40 is for housing estates. Later, they had received complaints from SHUWASA that there were trespassers to the said land. They had built in that land. So, in law that is trespassing. As a matter of law, a trespasser does not deserve any compensation as per law. His obligation is to quit or be evicted. As per certificates of Titles PE3 & PE4, both were issued in 2021. PW5 – Denisy Samson Magele stated that he is a government employee – Ministry of Lands employed in 2010. In this dispute, he knows that there are plots No. 39 and 40 Block A- Mwalugoye area, in which they are owned by SHUWASA. These plots are in land survey as prepared in 2020. By 2020 when they went for survey, there were SHUWASA various buildings and other structures and water infrastructure of SHUWASA. He also saw some inauguration pads of 1980s of the said projects. By the time of survey, they had been accompanied by various staffs of SHUWASA such as HR – Mtebe (PW3), Mapya – technician (PW2) also one villager – resident of the area. On the southern part there is a minor road/pass and some residents, Eastern part is the Old Shinyanga road. On the northern part, there is a river crossing and after the river is TPDF area. On the western part, there 15 is farm (Chenge’s farm). The land size of the whole area (Plant and housing estates) is 33.33 acres. After the said survey, he has not returned to the said area. The certified copy of Survey of Plot No. 39 & 40 Block A – Mwalugoye, registered plan number no. 122360 bearing survey plan number E18/370/76 was admitted and marked exhibit PE.5. The survey plan is of 2020 because of the directives by the government issued in 2015/2016 that all government institutions owning land must make sure that they have certificate of titles in their ownership, secondly might be their wishes doing that. During cross examination PW5 stated that the surveyed land is in Mwalugoye area, during the survey, they had involved the local leaders of the area. They had involved the Chairperson by signing the said form for survey. On the side of the defendants’ case DW1, Jilala Kashandago, averred that he was born on 28/7/1951 at Mwalugoye – Chibe. From when he was born up to now, he is living there at Mwalugoye – Chibe. On the plaintiff’s claims that he has invaded into their land is not true. The truth is, he was born there since 1951. He has been living there since then. He contended that the alleged invaded land, had got it from his parents: Mzee Kashandago. The said parents had got it by clearing the bush since colonial era. That they cleared it, he was informed by his father himself. 16 The said Kashandago is now dead. He died in 1985. The boundaries of their area are this: Western part there is a road (Old shinyanga road – From Shinyanga to Mwanza). On western side, there are farms. On Northern part there are SHUWASA water plants and river ning’wa. On the southern part, there are farms and SHUWASA residential buildings. Their total land i.e from SHUWASA plants is 9 acres (suit land). They are using it for residential, livestock, farming and business – milling machine. The milling machine belongs to him – Jilala Kashandago. Historically, he stated that in 1974, SHUWASA had come to them, requesting for safe keeping of their water plant equipment. The said water plants were to be set at Mwalugoye – Chibe. From their home to the plant areas is on the northern part/side. The said place where SHUWASA was installing their water plant equipment was belonging to one old woman by name of MWANAMANDWA who was their neighbour. The said project was being supervised by one John Basu who is now deceased. So, after they had asked for a place to keep their plant equipment, they allowed them, and they had kept for some time. By that time, they had a peaceful stay with them as they were going to site and return. They had been staying at their compound (father’s land). In the same 1974, there was operation vijiji, they were shifted to another place – Mwalugoye closer to 17 their land. They were re-allocated following the government’s directives that citizens in rural should not live isolated life for the provision of better services. They had stayed there until 1977, when they had returned to their original land for agricultural, residential, livestock and business activities. From 1977 up to now, they are living at Mwalugoye. Their mode of living at the suit premises was by living there on residential, agricultural and livestock duties. In 2021, he had received a letter from SHUWASA accusing him that he had invaded into the SHUWASA infrastructure. He was shocked, what invasion is this as the said suit land is theirs’ since their fore fathers. He had then replied them that the said land belongs to him as they were gifted by their parents and that if they have any interests with the said land, they should do it as per law. After that reply, they had decided to communicate with the local leadership (Street Chairperson) that they indigenous should stop using their land. After he had got the said letter, the chairperson convened the meeting wanting the SHUWASA leadership and the family of KASHANDAGO to attend. In the said meeting, they were interrogated on their invasion into suit area purportedly belonging to the SHUWASA. After their explanations on ownership of the said land as they had got it from their parents and that they are born there. It is SHUWASA 18 which had met them there. As per these explanations, the chairperson admitted that he is a guest to that area. And that upon perusal to various office documents, he wanted them to make reply to their letter. Thereafter, in June 2023, he received court summons from the High Court of Tanzania – Shinyanga sub registry to answer these present claims. According to him he stated that to the best of his knowledge, the southern part of the suit land was in 1984 a site expansion of the water plant project. SHUWASA had hired one contractor by name of SARBERRG who were shown the said site and were required to make a Camp. In that project, they had wanted a camp site. They had asked their father to give them a place for a temporal camp. They were shown the said place for a temporary camp and had then built temporal structures and enclosed it for their security. Currently, the said camp site has SHUWASA residential quarters. Their land is not 33.33 acres but only 9 acres, the same is not part of 33.33 acres but the 9 acres. As between KASHANDAGO’s family and SHUWASA it is KASHANDAGO’s family that had preceded the SHUWASA. SHUWASA is just an invitee to that suit land. Similarly, he testified that being an administrator of the estate of the late MINZA KASHANDAGO who is now deceased and that he is his sibling who 19 was born in 1964 but died in 1986. In his life time, Minza was living at Mwalugoye. He concluded that claims of invasion/trespass is not founded, thus this court should make a finding that the suit land is the property of the late Kashandago. During cross examination, DW1 stated that the said milling machine is there since 2018. During operation Vijiji, he was 23 years (counting from 1951 to 1974). During the operation Vijiji, it was not an optional order but mandatory. When they left to Chibe, they left their houses and farms there. The old houses are of 1977, they are four in total. This testimony of Jilala Kashandago is almost replica to the testimony of his siblings (DW2 and DW3). In addition, they testified that the said area is divided into shares of the six children of the late KASHANDAGO: Jilala, Mageni, Juakali, children of Minza, Moshi and himself. DW4 – James Mabala, testified that, he was born in 1948 at Seke – Kishapu. He knows the family of Kashandago as they live in one village. The said village is called Chibe – Mwalugoye. He well described the boundaries of the disputed. He stated that, to him since 1967 the disputed 20 area has been under the use and control of Kashandago’s family. They were using it for agricultural and livestock. In 1974, during operation Vijiji, the Kashandago family was also affected by it as it was amongst other families. They were shifted/re-allocated by the government. They were sent to Mwalugoye area. The disputed land is at Mwalugoye. Apart from the operation in 1974, also SHUWASA had come. They had come and met one woman by name of Mwanamandwa who welcomed them there at an area nearer the river ning’wa. In 1977, the Kashandago family had returned to their original farm – at Mwalugoye, the government had reached this decision infight against sufficient land as it seemed to be no pastures there. From there on, they re-occupied their land. DW5 – Charles Selestino Mwaniwe, a villager of Mwalugoye who was also a street chairperson since 2019. He knows the family of Kashandago. He also knows SHUWASA as their water project situates in his area of jurisdiction. As street chairperson, he happened to know the dispute between SHUWASA and the defendants (Kashandagu family). He knew this, especially when he got a letter from SHUWASA to serve them for purposes of peaceful eviction and demolition. That was in 2023. 21 So, he had decided to reconcile the parties by calling vide his letter to his office. The said Director came and with his delegation for a discussion. After they had come and talked, the SHUWASA management promised that they would work on it and would brief on the way forward. After the said reply, they had closed the meeting. From that meeting, there was nothing further done up to now. He clarified that from 2019, the said land is owned by the family of Kashandago. The said land is used for mixed uses: residence, farming and livestock, and the milling machine for grains. As chairperson of the area, if there is any survey being done, as chairperson he normally gets notification from the land office by telephone or by letter. After getting the said notification, he too informs his civilians. After, that the survey process begins as between the owners and the land surveyor including the local leader. Normally the meeting is peaceful. Then after all these preliminaries, the survey process begins. In this matter, as local chairperson of the area, he says he was not involved in anyhow. At the closure of defense’s case, and upon an agreement by the parties, the Court made a visit to the locus quo and the following was the finding at the visit of the locus in quo: 22 The whole area as per survey plan is divided into four major portions: Firstly, it is on the southern part, where old SHUWASA residential quarters situate. There are several houses more than 10 in number. Secondly, on the extreme west, there other residential quarters – about three houses where also big water pipes infrastructure from Ning’wa dam through water plants are mounted in between. Thirdly, is on the northern part which situate the water plants’ project bordering river Ning’wa. The same is enjoined with the old water plant. This new water plant commenced its construction in 1982 by Serberg Germany Company. Fourthly, is the large area covering about 10.4 acres. It looks plain land with a recently developed mudded structures. It borders the water plants area on the northern part which in between is separated by a narrow path. On the southern part borders with the old SHUWASA residential quarters. On its eastern part, borders the main road – Old Shinyanga road. On its western part, borders the big water pipes infrastructure. The said area is demarcated into six equal portions divided to six defendants starting with the most junior on the extreme north to the most senior on the southern part sequentially as follows: Jona, Moshi, Minza, Juakali, Mageni, Jilala. There are recently developed mudded houses almost in each division. Between the old SHUWASA quarters and Jilala Kashandago, there lies two septic pits old built as sewage system of the residential quarters. 23 After this finding, respective counsels were invited to address the court, whereby Mr. Mpogole recalled Mr. Dennisy Magere (PW5) for his further testimony, who clarified that the survey process started in 2020. The visible borders were –Old Shinyanga Road on the Eastern, River Ning’wa on the northern part, residential houses on the southern part and Farm on the western part. After the survey, they had established survey plan. In all border points they mounted beacons. Within the survey plan, there were water plant projects on the northern part, residential houses – quarters on the southern part, the big water pipes on the western part. Apart from SHUWASA properties, there were nothing of the buildings which are seen today. It was a mere plain land area. After their survey, they submitted it to the Ministry responsible for Lands for approval. Similarly, PW4 – Mr. Josephat Mushi was also recalled, on his part he stated that the land plots were two: No. 39 and 40. They had received an application from SHUWASA for the grant of Right of Occupancy. The deed plan is extracted from the survey plan. He pointed Plot No. 40 to be the one with Housing Estate Residential area at the southern part. He pointed Plot No.39 to be at the public work – Water plant projects extending up to the unfenced area in which situates the disputed land currently occupied by the defendants. He also contended 24 that apart from SHUWASA, they had not granted any right of occupancy to any other applicant. Thus, any development done by an intruder in the surveyed area (GRO) is trespassing. Further, Mr. Mpogole recalled PW2 – Mr. Zacharia Mapya, who testified that the first water project was of 1974. Its infrastructure has passed at the middle of the suit land currently occupied by the defendants – west extending to the most south. The northern part is water plants. There are two plants: old and current ones. The old plants are no longer in use but the latter ones. The expansion project was between 1982 and 1987. There is a foundation stone officiated by H.E Ali Hassan Mwinyi, the then president of URT on 13/04 1987, The contractor was Serberg Company. The western northern part there are SHUWASA quarters also on the southern part. The Water Pipes are on the western part of the site. At the extreme west, there are big water pipes of 2007. At the middle of the suit land lies big water pipes of 1984 water project expansion. Currently, the whole of SHUWASA area lies mounted beacons. By the time of survey in 2020, there were no current existing structures of the defendants. These have just been mounted recently - a year ago. In this area, there are three fences: Two in the residential areas and one into water plant projects. The land which has been trespassed, 25 was not fenced. The fencing on residential and water project area was necessary because of security demands to the residents and the project itself. This area which has been trespassed has not been fenced is because of financial budget and that it was not threatening its use. On the side of the defendants’ case Ms. Glory at loqus in quo recalled DW1 who is Mr. Jilala Kashandago who pointed the eastern part road which is Old Shinyanga road and the southern part road of his area. It divides between the SHUWASA quarters and their plot. The northern road to their plot is the project road, established since the 1984 expansion after Serberg contractor company had made it as their way to their other quarter. This area in between (Water plant and southern quarters) had remained with them and was never given to SHUWASA as claimed. It remained with the KASHANDAGO family since then. The southern quarters belonged to their father too. He donated it to SHUWASA by then. The frames and houses in the extreme south belong to their two siblings in which they don’t fall part of the division of the central area of the dispute. The suit area is divided by the remaining six siblings from the youngest to the oldest as follows: Jonas, Moshi, Minza (deceased), Juakali, Mageni and myself (Jilala Kashandago). The septic pits though belonged to SERBERG Company but extended to their land. 26 The old houses (made by trees) were built in the middle. That was in 1970s. Those old houses had fallen down due to old hood. The milling machine here, was constructed in 2018 and started using it in 2019. So, it is not true that there was nothing of structures as claimed, DW1 said. Lastly DW3 – Mr. Jonas Kashandago was invited for cross examination where he clarified that his farm is the first one from the north after SHUWASA water plants. Their house was at the center. Having heard both parties on merit, I have now to determine this suit based 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 favour 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 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 v. Fulgencia Manya and 4 Others, Civil Appeal No. 33 of 2017 (both unreported). 27 Now, starting with the first issue as “who is the lawful owner of the disputed land between the plaintiffs and the defendants”. It is the plaintiff’s evidence that the suit land was allocated to her in the early 1974 for water supply project. Thus made several improvements over the suit land. Originally it was testified that the suit land was owned by people but according to their wishes volunteered and left the suit land paving way for plaintiff’s activity. The aforementioned people were allocated with other parcel of land near village -Chibe. It is testimonies of PW1, PW2 and PW3 that since the land was allocated to them by the authority remained in occupation for various uses. They also testified that on 1974 there was operation vijiji many people residing over the suit land were moved to other areas, including Kashandago family who later returned to their land in 1977. In 2021 the first plaintiff was issued with Certificates No.39 and 40, (exhibits PE2 and PE3).In 2018 the defendants trespassed the suit land and claimed to be theirs. On the part of the defence evidence was on the testimonies that the suit land was gifted by their father in his life time who was lawfully owner. They further contended that their father had cleared the virgin land in 28 1970’s and remained in occupation. In 1974, their father invited the first plaintiff in the suit land for temporal activities. They also agree that during operation vijiji they were moved from the suit land and allocated to other areas, but later they returned to their land. Similarly, they also averred that they had been in possession of the suit land from that period to date and they had done several improvements including building houses without interference from any one. It is only in 2018 when they were served with a letter form the plaintiff to have invaded the suit land, the claims which is unfounded. I think it is prudent to discuss some of ways in which citizens can obtain land in Tanzania. These are; by allocation, clearing of virgin forest, purchase, and gift. See Rashid bin Ali vs Bakari bin Kayanda, (1941) Governor’s Appeal No.31, Silanga Kimenanga vs Mevongori Mosoni, 1962, James R.Wand Fimbo G.M, pp. 299 -300, Leonance Mutalindwa vs. Mariadina Edward (1987) TZHC 23 (10 August 1987). Bartholomew Ndyanabo vs Petronida Ndyamukama, (1968) HCD 339. In 1975, the Ujamaa Villages (Registration, Designation and Administration) Act, was enacted. Although the Act did not contain provision of land tenure such provision was included in subsidiary 29 legislation (GN No.25 of 1974) as directives. In the Directives, functions of allocating land to villages and Ujamaa villages was assigned to the District Development Council, see Directive 5 and 9. The village council then allocated farmland to households according to need and ability to develop it. Mindful neither District Development Council nor the Village Council were land allocating authority under either in customary law or under land statutes. Thus, such land could not be held under customary law. The village Council of the Ujamaa Village was required to acquire rights of occupancy in respect of land within the limits of the village and no other person had customary tenure. See Directives (2). The land was acquired as granted right of occupancy and not customary right of occupancy. Therefore, the bulk of land some of it was allocated to peasant residents therein for carrying on husbandly to meet domestic requirements. In the case at hand, it is undisputed that the suit land has been under the active use by the first plaintiff since 1972. There has not been any controversy on her use since then. On it, she made several improvements including residential housing for her employees, water plants and the water infrastructure system at the middle of the disputed area where the defendants claim ownership. The occupation of land by 30 first plaintiff is proved by continuity uses of the suit land at the whole period, as per testimonies of PW1, PW2 and PW3. However, the defendants had failed to prove the existence of continuity use of the suit land by them from that period of 1974’s. There is no permanent feature to prove such occupation as alleged by DW1. Even the milling machine shed he claims was only erected in 2018 but evidence of DW2 and DW3 establish a different story that it was not but in 2021. The mentioned mudded houses just by free eyes one need even wear a binocular a have microscopic eye to establish recentness of the constructed twin mudded houses, new as they look. Therefore, it may be concluded that the defendants abandoned the alleged land if at all they had any interest. With abandonment as defined in the case of Alimohammed Adamji vs. Punja Gudka (1953) 20 EACA 78 by Sir Barclay Nihill (P) to mean the caser of occupation without animus revertendi. Abandonment involves two (2) distinct elements; mental element and physical element. Mental element consists of the intention to abandon all rights in the land while physical consists of the external fact of leaving the land. 31 Both elements should be there to construe abandonment, one can leave the land but she/he having an intention to return, example, by frequently visiting the area / plot of land or by placing a care-taker of the land. Where a person has remained out of possession of land for such an unreasonable length of time that raises a presumption of abandonment, the onus is on him to establish an animus revertendi (intention to return); this is a Common law Principle, that, whoever asserts something must prove, that, the burden of proving that thing asserted by him lies on him. It has to be noted that, abandonment does not pass title but destroy title, that is, the original grantor’s title can be revived upon fulfillment of some conditions. However, in Rashid bin Ali vs. Bakari bin Kayanda (1941) Governor’s Appeal no. 31, it was held that, occupation and cultivation of land gives the occupier rights tantamount to those of an owner. Land Acts on Abandonment with the enactment of the Land Acts, the position of abandonment has been settled and it is now more certain. Position of the Land Act over the land held for a right of occupancy shall be taken to have been abandoned where one or more of the following factors appear, that; 32 i. The occupier owes any rent, taxes or dues in respect of the land and has continued to owe such rent, taxes or dues or any portion of them for not less than five years from the date on which any rent, taxes or dues or any portion thereof first fell to be paid; ii. The occupier has left the country without making any arrangement for any person to be responsible for the land and for ensuring that the conditions subject to which the right of occupancy was granted are complied with and that occupier has not given any appropriate notification to the Commissioner; iii. Any building on the land has failed into a state of such disrepair that it has become a danger to the health and safety of any person occupying that building for any lawful purpose or a neighbour to the occupier; iv. Persons with no apparent lawful title so to do are occupying or using the land or any buildings on the land and one or more of those persons or a person from a community which contains one or more such persons have so occupied or used the land or any building on the land for a period of not less than two years immediately preceding the date on which in accordance with this section. 33 v. By reason of the neglect of the land, the land is no longer capable, without significant expenditure and remedial work, of being used for productive purposes; or suffering serious environmental damage. See section 51 (1) of the Land Act. Glaring the principles above particularly roman IV -V, in relation to the case at hand, it is vividly clear that the defendants had abandoned use on the suit land. The land left without any use, no title over the land and thus have neglected for that period and recently came back and claim the suit land to be theirs. This is not correct. With the Ujamaa Operation Vijiji, it is alleged the Kashandago family was forced to move from the suit area and were allocated land at Chibe but later in 1977 they returned to their land. Here, I would like to draw insistence that during operation vijiji, the land re-allocated to new comer villagers aimed to make them acquire land for their subsistence to new villages. The former land from which they were shifted did not remain theirs on abandonment unless one continued using it. Otherwise, people allocated land during such period had acquired right occupancy over the land and thus they enjoyed derivative right. The former land was no longer theirs unless one continued using it by other 34 means or in addition to that new allocated land. That Mzee Kashandago had returned to his former land as alleged is a question of fact in which it has not been established to the required standard. Otherwise there is no good evidence in record that the defendants and the first plaintiff co- existed in the same area or co-occupied the disputed land. Apparently, it has been advanced that the first plaintiff had taken initiatives of registering the suit land and thus had been granted with Certificates of right of occupancy being Exhibit PE2 & PE3. But all these were possible after the suit land had been surveyed, reference is made to exhibit PE1. With all these proof, rightful owner of the disputed land is the first plaintiff. The defence evidence is on resistance, arguing that the survey and grant of certificates of occupancy did not involve the indigenous including themselves. That, it was erroneous procured. Prudently, I have referred the Land Survey Act, as to whether provides for prerequisite requirements of involvement of indigenous before survey is taken. Section 6 of the Survey Act provides none of that requirement instead places the duty to a surveyor before surveying the area to inform the Director of Lands and Survey on the intention of survey except on cadastral area which is not the case here requires persons to be informed for them not to hinder the survey process. See section 7 of 35 the Act. Therefore, looking the argument of the defendants and that of DW5 this Court finds as well to be misplaced. Now, in the case at hand the suit property is a surveyed land and has been registered pursuant to the provisions of the Land Registration Act [Cap.334 RE 2019]. The question of who is the owner of a registered piece of land can easily be answered by the definition of the word "owner" as provided under section 2 of the Land Registration Act. The word "owner" has been defined thus: - "...in relation to any estate or interest, the person for the time being in whose name that estate or interest is registered.” (Emphasis added) Upon registration, the person whose name has been entered into the register is issued with the certificate of title pursuant to section 35 of the Land Registration Act, as evidence of ownership. It provides thus: "The owner of an estate in any parcel shall be entitled to receive a certificate of title under the seal of the certificate land registry in respect thereof, showing the subsisting memorials in the land register relating thereto... " 36 From the above quoted provisions, registration is of no doubt a prima facie proof that the one whose name is in the land register and who is in a possession of a certificate of title is the owner of the piece of land to which such person is registered. This position was taken by this Court in Salum Mateyo v. Mohamed Mateyo, [1987] T.L.R 111, where Mroso, J stated thus; proof of ownership is by one whose name is registered. Additionally, the Court of Appeal in Nack Esther Nyange vs Mihayo Marijani Wilmore and another, Civil Appeal No.1017 of 2019 held that; "...the certificate of Title is a conclusive proof of ownership of land.” The above notwithstanding the decision of the Court of Appeal of Tanzania in Attorney General Vs Lohay Akonaay and Joseph Lohay, Civil Appeal No.31 of (1994) where the Court observed the following: Customary or deemed rights of occupancy in land though by their nature are nothing but rights to occupy and use the land, are nevertheless real property protected by the provisions of Article 24 of the Constitution of the United Republic of Tanzania. The deprivation of a customary or deemed right of 37 occupancy without fair compensation is prohibited by the Constitution. Similar position was also taken by the same Court in Rashid Baranyisa Vs Hussein Ally (2001) TLR 471, where it was stated: The mere act of designating the area a trading center and surveying it did not have the effect of extinguishing the holder of his deemed right of occupancy over the land and reducing him into a squatter. Borrowing a leaf from the above decision, even if the alleged survey and grant of right of occupancy by the first respondent would have been proved (of which it is not the case in the instant appeal), the same would have not as by itself extinguished the defendants’ rights in the suit land had they established lawful and continuous possession and occupation over the suit land. In the fine, it has to be noted that a customary right of occupancy is in every respect of equal status and effect to a granted right of occupancy, as per section 18 (1) of the Village Land Act Cap 114 RE 2002. Since prior to the alleged allocation of the disputed land, the plaintiff was already in long use and occupation of the disputed piece of land and had already constructed a massive water infrastructure system in it, the defendants’ latter intervention over the same land cannot override the former’s rights them having shifted to Chibe and long lived there. In the absence of their further continuous use and occupation after their shift in 1974, their rights (if any) were automatically extinguished by 38 the former them having occupied continuously from 1974 todate and by the Commissioner of Land and Registrar of Titles’ acts of surveying, allocating and later registering it in the name of SHUWASA (first plaintiff), did not grab the defendants’ rights over the said area. Thus, the process of issuing of the granted right of occupancy to the plaintiff was lawful and adhered to the legal procedure. I hold that view because, first, there was neither allegation nor proof that the vesting of title or ownership of the dispute property in the respondent was illegal or it was procured by fraud or that the 33(1) (b) or (c) of the Land Registration Act [Cap 334 R.E. 2019] (The Land Registration Act) which provides that: 33.-(1) The owner of any estate shall, except in case of fraud, hold the same free from all estates and interests whatsoever, other than- (a) N/A b) the interest of any person in possession of the land whose interest is not registrable under the provisions of this Act; (c) any rights subsisting under any adverse possession or by reason of any law of prescription; (d) to (g) not applicable. In the absence of such evidence that the defendants were occupants of the registered land owned by the first plaintiff, it would entail a conclusion 39 that the plaintiff is an authentic holder of the entire dispute property free from all estates and interests whatsoever. A proper authority to justify that at the time the land was being granted to the plaintiff, did not have any subsisting third-party interests in terms of section 33(1) (b) or (c) of the Land Registration Act, above is the authority that granted it to the plaintiff (See Tanzania Railways Corporation (TRC) vs Gbp T. Ltd (Civil Appeal 218 of 2020) [2021] TZCA 198 (7 May 2021). Ownership of land is a question of fact. It must be strictly established. In the current facts of the case assuming that the said disputed land was actually once held by Mzee Kashandago as claimed, for the defendants to claim ownership over it since 1974 they had to establish continuous interests over it. Abandoning of land use for a certain period of time, the law gives no further recognition to it (see Registered Trustees of Holy Spirit Sisters Tanzania v. January Kamili Shayo & 136 Others (Civil Appeal No. 193 of 2016) [2018] TZCA 365 (6 August 2018) TanzLII and Idrissa Ramadhani Mbondera v. Allan Mbaruku and Another (Civil Appeal 176 of 2020) [2023] TZCA 204 (27 April 2023) TanzLII, to mention but a few). In the former case, the CAT subscribed to two English decisions in Moses v. Lovegrove 40 [1952] 2 QB 533 and Hughes v. Griffin [1969] 1 All ER 460 as well as the decision of our neighbouring jurisdiction of Kenya in Mbira v. Gachuhi[2002]1 EA 337; a decision of the High Court of Kenya to hold that a person seeking to acquire title to land by adverse possession must cumulatively prove the following: (a) That there had been absence of possession by the true owner through abandonment; (b) That the adverse possessor had been in actual possession of the piece of land; (c) That the adverse possessor had no colour of right to be there other than his entry and occupation; (d) That the adverse possessor had openly and without the consent of the true owner done acts which were inconsistent with the enjoyment by the true owner of land for purposes for which he intended to use it; (e) That there was a sufficient animus to dispossess and an animo possidendi; 41 (f) That the statutory period (in this case twelve years) had elapsed; (g) That there had been no interruption to the adverse possession throughout the aforesaid statutory period; and (h) That the nature of the property was such that, in the light of the foregoing, adverse possession would result." In the case at hand, the plaintiffs claimed ownership of the disputed land and brought oral and documentary proof which, according to her, substantiated ownership based on being given by the indigenous owners by then. Her being there was not therefore without a colour of right. It has also been held above that the limitation period of twelve years had long elapsed. In these circumstances, possession could never reverse back by principle of adverse possession (see also Herieth Kasidi vs Agustino Bushiri (Civil Appeal No. 480 of 2020) [2023] TZCA 17767 (23 October 2023). Notably, the first issue should not detain me that much, I must therefore conclude that the first plaintiff is the lawful owner of the suit land on the strength of the discussion above. 42 With the second issue “Whether the defendants are entitled to any unexhausted improvements to the disputed land” The defendants’ evidence had provided that the suit land being their property had continued living on it and improved the land by building houses in which they are living. DW1 had established milling machine shed he runs for his economic gain. This Court made visit to locus quo upon the parties’ request and keenly observed the whole area as stated above: that the suit area is divided into six equal portions for the six defendants starting with the most junior on the extreme north to the most senior on the southern part sequentially as follows: Jona, Moshi, Minza, Juakali, Mageni, Jilala. There are recently developed mudded houses almost in each division. Between the old SHUWASA quarters and Jilala Kashandago, there lies two septic pits old built as sewage system of the residential quarters. Cleary, from the findings all developments made by the defendants are of recent ones. Suggesting that they did so knowingly after they had trespassed with intent of getting compensation over the existence of the plotted land dispute. Prior we had been informed that survey/plan were done in the 2020 and that there was nothing of the existing structures 43 spotted during the survey process. The testimonies of DW1, DW2, and DW3 that their houses were built in 2018 could not defeat the sound evidence by the plaintiffs. By the way when asked by the Court at the locus in quo as to exactly when they had built those related mudded houses, four of them (Moshi, Minza, Juakali, Mageni) replied that they did so in 2021. Thus, signifies that after the plotting and projection of existence of the current land dispute, they then decided to construct houses as a means of getting a fatty monetary compensation. After all, closely scrutinizing the said mudded structures, there is no real life going on there but can just be construed as plotted assets “mali tegesha” for purposes of monetary compensation. On this, I will not accord any relief to the effect other than commenting that the defendants should blame themselves on their acts on their volenti non fit injuria. The effects of execution are in their own cause. This maxim is to the effect that a person who knowingly and voluntarily risks danger cannot recover for any resulting injury. See the cases of: Mohamed Enterprises Tanzania Ltd vs. Mussa Shabani Chekechea, Civil Appeal No.51 of 2018, Kevin’s General Auto Work Ltd vs. Mvomero District Council, Civil Appeal No.170 of 2020, Morris vs. Murray and Another (1991) 2 QB 6. 44 Last as to what reliefs are the parties entitled to. As well detailed when discussing issues No.1 the reliefs equitable to the plaintiffs is recovery of the suit land to the extent of trespass/encroachment. I therefore order that the defendants to voluntarily demolish their projected buildings in a period of 30 days from today for vacant possession. Short of which demolition by the plaintiffs be carried out forcefully. As per nature of this suit, parties shall bear their own costs. It so ordered. DATED at SHINYANGA this 31st day of October, 2024. F.H. Mahimbali Judge. 45 46