SLIVANUS SEHEYE vs MWAYAYA VILLAGE COUNCIL AND 3 OTHERS LAND CASE NO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND CASE NO. 32 OF 2023 SLIVANUS SEHEYE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS MWAYAYA VILLAGE COUNCIL AND 3 OTHERS .............................. RESPONDENT / DEFENDANT JUDGMENT RWIZILE, J, Mwayaya is an administrative ward in Buhigwe District of Kigoma Region. It is in this ward, lies the village of Mwayaya situated at least 60 km or so from Kigoma Municipality. This court was not availed information on when the same village was established. Seemingly, the available pleading has it that, the village may have existed before operation vijiji allegedly done in 1973. In dispute, here is a land measuring by estimate three quarters of an acre situated in the same village. It is sharing the border with rest house, an Anglican Church, Castus Kabhohe and Gabriel Madebo. Planted in it are eucalyptus trees and old coffee trees and others crops. The plaintiff’s father is said to have peacefully enjoyed the land which it is alleged was acquired during colonial era, until his demise in 2010. About two years following his demise, the first and third defendants trespassed into it. Whereas the first defendant claimed it belonged to her, the 3rd defendant cut and sold 96 mature trees on pretext that the same belong to his parents. The plaintiff’s family was therefore asked to vacate the land, which they resisted. The plaintiff, a retired teacher and an elder son of the deceased Stanslaus Seheye Kikwaya started this action fighting for the rights of his family in 2013. It is since then that parties have been locked in this legal battle for the land. Unfortunately, the 3rd defendant did not appear to defend his case, despite due service through publication in the Nipashe News paper, issue No. 0581682 dated 20th May 2024 on page 18 and so the case is exparte against him. The plaintiff’s claim against the defendants is styled as follows; 1. That, the 1st and 3rd defendants be permanently restrained from interfering with the plaintiffs' use and occupation of the suit land. 2. That, the defendants jointly and severally be ordered to compensate the plaintiff with TZS 24,000,000.00 for some 96 matured trees unlawfully harvested from the suit land in accordance with paragraph 8 of the plaint. Page. 1 3. That, the defendants be jointly ordered to pay TZS 10 million or any other sum as may be dully assessed by the honourable Court as general damages. 4. Interest on the decreed sum at court and bank rates on the claimed amount since 2012 to the date of judgment and from the date of judgment to the date of full execution respectively and 5. Costs of the suit Mr. Ignatius Kagashe learned advocate appeared for the plaintiff, while Mr. George Kalenda Senior state attorney and Mr. Celestine Ngailo state attorney appeared for the 1st and 2nd defendants. For the plaintiff three witnesses testified namely: Sylivanus Seheye(Pw1), Deodatus Mpenda (Pw2) and Castus Sinkazi(Pw3), while the 2nd and 3rd defendants called one witness who is called Jacob Gideon Mitekalo (Dw1). At the first hearing of this case, three issues were framed; 1. Who is the lawful owner of the suit land 2. Whether the plaintiff is entitled to compensation of claimed amount under paragraph 4 of the plaint (24,000,000.00) 3. To what reliefs are the parties entitled. My determination on the first issue is as follows; I think I have to say here that the plaintiff who is cast with the duty of proving the case, told this court that, the land, measuring three quarters of an acre was acquired by his father since colonial rule. It must be noted, history has it that for at least a period of nearly 80 years, Tanzania was under the colonial rule which passed through two phases 1880s until 1919 and 1919 to 1961, under German and British respectively. According to Pw1, therefore, his father may have acquired the dispute land in between the 1880s to 1961. He unfortunately did not provide any sufficient evidence to show exactly when was that done. According to him, he grew up and found his father using the land and that it has been used for burial as well. His evidence, I consider has been consistent with the same made by Pw2. Pw2, is a native of the same village born and raised there. He said since his childhood, the disputed land which is in the neighbourhood, saw and knew it belonged to the plaintiff’s father. He further said even when in the village government as a member in between 1995 to 2000, and the chairman in 2005 knew the disputed land to belong to the plaintiff’s father. The boundaries as well were well known to him. Pw3 on the other hand makes nearly the same utterance. He said, in support of the two witnesses that he was born in 1966 and raised in the same village witnessing all that time the plaintiff’s father using the same land as his. This witness claimed went to school in the same village and his primary school classes in 1977 were taken in the old building and ruins of the rest house. Throughout that time, until 2009 to 2014 when he was the chairman of the Kitongoji never witnessed any dispute of ownership of the same land. The plaintiff’s he added, was in enjoying it. Dw1 disputed all the evidence of the three witnesses for the plaintiff. His version of the truth is quite apart from the plaintiff’s. He said, he too was born and raised in the village and was elected a village chairperson between 2020 to 2024. He had not handed the office to a new chairperson recently elected. His evidence was plain, that in 1978, he Page. 2 saw JWTZ soldiers camp in the area for military activities. That time he believed when cross-examined that he was 3 or 4 years old. I do not think; his evidence is plausible. The reason he believes the land belong to the village is that it was allocated to the village. He did not say at what time and who actually allocated it to the village. But the other reasons, is that, it is close to the rest house, which there is no doubt is the property of the village government. But still he believes the ownership is the village’s because it was used for military drills and range in 1978 when he was of tender age. But above all, he said, when there was a dispute between the plaintiff’s father and the 3rd defendant upon cutting trees, the plaintiff’s father complained in the village, witnesses were called and the witnesses of the 3rd defendant said the land belonged to the village government. He was not able to call or even name those witnesses. But worse still, he said, the village owns the land but not trees therein. He did not therefore establish when the trees were planted and who planted them. It is therefore clear to me that the plaintiff being born in 1953 as he said in cross examination, may be in the better position to have witnessed events that are decisive to this case. He is now over 70 years. His evidence as supported by Pw2 and Pw3 does not seem inconsistent with the normal plausible cause within which cases are decided. It is clear to me that there is not other stronger evidence showing Pw1 to have stated what is not likely to have happened. If he saw his father cultivate and using the land until that period, one would question if indeed the land belonged to the village. Why did it wait until passing away of the plaintiff’s father to claim ownership of the said land? The time and reasons for doing so are not apparent in the pleadings and proceedings as well as in evidence in defence. At the balance of these probabilities, as the principle stated in the case of Hemed Said vs. Mohamed Mbilu [1984] TLR 113, the court held:- "The person whose evidence is heavier than that of the other is the one who must win”. Therefore, I am bound to hold that the plaintiff’s evidence has weight. I therefore determine the first issue in favour of the plaintiff. This means therefore the judgement is entered in the favour of the plaintiff. The second issue is on compensation. He has testified that 96 trees were cut and sold. There is no evidence establishing the size of the trees and off course the actual number of trees. The fact that the plaintiff claims, the same were worth TZS 24,000,000.00 makes me believe, he ought to bring evidence to actually prove the value. This may be equated to general damages which can be assessed by the court. As held in the case of Alfred Fundi vs Geled Mango and 2 Others ,(CAT), Civil Appeal No. 49 of 2017 on pages 7-8 that; “The law is settled that general damages are awarded by the trial judge after consideration and deliberation on the evidence on record able to justify the award. The court must be guided by some evidence for that matter. Little evidence is in place. Dw1 who stood for the defence does not dispute that trees were cut by the 3rd defendant. He only distanced his office with the so doing and declined to comment on the size, value and therefore his evidence did not shed some light on the same issue. I Page. 3 think, I take it that trees that were planted in the 1950s or sometimes thereafter and that had attained a status of being called a forest may have been of substantial value. Based on that estimated, this court may only award an amount that does not exceed TZS 5,000,000.00. This therefore determines the second issue in that extent. Last, having entered judgement in favour of the plaintiff he is entitled to the following reliefs; 1. That, plaintiff is the right owner of the suit land. 2. That, the 3rd defendant is condemned to pay the plaintiff the sum of TZS 5 million being general damages for the loss of trees 3. Costs of the suit to follow the event. Dated at KIGOMA this 13th of December 2024 . A. K RWIZILE JUDGE OF THE HIGH COURT Page. 4