Misc

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBANGAWA MISC. LAND APPLICATION NO. 6194 OF 2024 (Arising from Execution No. 3 of 2018 between Nguvu kazi Group vs JiHa Mayunga and 35 Others and, Land Case No. 1 of 2016 between Nguvu kazi Group vs Julia Mayunga and 35 Others) BETWEEN THE ATTORNEY GENERAL...................................................... 1st APPLICANT KABAGE VILLAGE COUNCIL................................................... 2nd APPLICANT THE DISTRICT EXECUTIVE DIRECTOR OF MPANDA DISTRICT COUNCIL.............................................................3rd APPLICANT VERSUS NGUVUKAZI GROUP......................................................... 1st RESPONDENT MARK XAVIER MSILU...................................................... 2nd RESPONDENT JILIA MAYUNGA................................................................ 3rd RESPONDENT SWEDI HAMIS SWEDI....................................................... 4th RESPONDENT MALIMI JUMANNE............................................................. 5th RESPONDENT ELIAS IGAGABALE............................................................. 6th RESPONDENT 1 HAMISI MASHINE 7TH RESPONDENT MADIRISHA NGANGA......................................................... 8th RESPONDENT MOTO BIKINYENGE............................................................ 9th RESPONDENT TOGONAMBA................................................................... 10th RESPONDENT LWELWE MANGAJO.......................................................... 11th RESPONDENT KUNGURUME JAMES....................................................... 12th RESPONDENT ILUNDA NIGELA 13th RESPONDENT LIBUNGA MATANGALO.................................................... 14th RESPONDENT YAYA NDALENGWA.......................................................... 15th RESPONDENT MAGINE KWILASA 16th RESPONDENT MASANJA BULUBA 17TH RESPONDENT HENULE WALESI... ..18TH RESPONDENT KULWA MAKENZI.. 19TH RESPONDENT JERRY ILUNDA................................................................ 20TH RESPONDENT HAMISI KAZINZA............................................................ 21ST RESPONDENT MATANGA HULAHULA..................................................... 22ND RESPONDENT KWILASA SALIDA. 23RD RESPONDENT DEO MSABILA... 24TH RESPONDENT JOSEPH MAGADULA 25TH RESPONDENT 2 MADUMA KITUGULU 26TH RESPONDENT MANGULA KULWA............................................................ 27TH RESPONDENT MIGULA MAKENZI............................................................ 28th RESPONDENT JOSEPH SHIMBI............................................................... 29th RESPONDENT LUHENDE ZAKARIA.......................................................... 30th RESPONDENT JOHN MAGADULA............................................................. 31st RESPONDENT MIHAMBO WAMIHAMBO................................................... 2nd RESPONDENT MASHALIA PUZI.............................................................. 33rd RESPONDENT MHOJA............................................................................. 34th RESPONDENT BUKIGURI BUKENYENGE .35th RESPONDENT CHINASA MABIRIKA...... 36TH RESPONDENT SINGU LUHENDE............ .37TH RESPONDENT LUKUBANJA SHEMELI.... 38TH RESPONDENT RULING 29t October & 21s November, 2024 MRISHA, J. Through the enabling provisions of the law including Order XXI, Rule 57 (1) (2) and 58 of the Civil Procedure Code, Cap 33 R.E. 2019 (the CPC), the applicants herein filed with the court a Chamber Summons supported by an 3 affidavit of Kulwa Nkwabi Mahinda, a Village Chairperson of Kabage Village Council seeking, among other things, for the orders that: 1. This honourable court be pleased to investigate and release from attachment the 360 hectors disputed land located at Kabage Village in Tanganyika District, Katavi Region, a land which is owned by the 2nd Applicant. 2. That, this court be pleased to take judicial notice on its previous decisions in Civil Application No. 32 of 2022 that, the 1st Respondent had no legal capacity at the time he instituted Land Case No. 1 of 2016 and its subsequent Execution No. 3 of 2018 hence, the decree in Land Case No. 1 of 2016 is unenforceable for being vacuous. 3. Costs of this Application be provided. 4. Any other relief (s) as this Honourable Court may deem fit and just to grant. On the adversary side, the 1st respondent filed a counter affidavit aiming at disputing the averments of the applicants, as stated at paragraphs 2 to 16 of the Applicants’ Joint Affidavit. The application was heard orally, and while the applicants enjoyed the legal services of Mr. Mkama Msalam, Mr. Siyumu Shaban and Mr. Erasto Balua, learned State Attorneys, the 1st respondent was represented, though not legally, by Mr. Ramadhan Kasonso who is her 4 secretary, whereas due to their absenteeism and subject to the order of this court, the matter was ex parte against the 2nd and all the remaining 37 respondents. Submitting on the first prayer as indicated in the Applicants’ Chamber Summons, the applicants’ counsel had it that the second applicant has an interest and is the owner of the disputed land, hence; the first respondent is not entitled to be given the said land. He also argued that the first respondent failed to prove that she was allocated the disputed land by the second applicant for she did not tender any legal document to show that she was allocated the said land by the second applicant. It was also the submission of the applicants’ counsel that in law, the second applicant being a village council, cannot allocate and grant more than 50 acres to an applicant of land, as per Regulation 76 of The Village Land Regulations, G.N. No. 86 of 2001. Apart from that, the learned counsel submitted that the first, second and third applicants were not parties to the Land Case No. 1 of 2016 and the execution proceedings that followed from it, but since the second applicant has an interest on the disputed land and her fellow applicants are necessary parties to this application, they are entitled to file objection proceedings against the 5 pending execution proceedings in relation to the disputed land, as per Order XXI, Rule 57 (1) (2), 58 and 59 of the CPC. Further, the learned counsel for the applicants submitted that based on the Ruling of Mruma, J. in Misc. Civil Application No. 32 of 2022, it is obvious that the first respondent has no locus standi to sue the DED (3rd Applicant) for being a non-existing party. Besides, it was his submission that the disputed land which is in the process of being executed by the second respondent, is within the administration of the second applicant, hence not subject to attachment in execution of the court orders, as per section 48 (2) (d) of the CPC which disallow that land to be attached or sold. Thus, based on the above submissions and reasons, the learned applicants’ counsel humbly submitted that the court be pleased to grant the instant application. On his part, the first respondent’s representative had several points to show his disgruntlement with the submission of the applicants’ counsel. First, he submitted that the first respondent is the owner of the disputed land, a fact which is in the knowledge of the Government agencies including, the Attorney General, the PCCB Head Quoters and The Tanzania Police Force. 6 Secondly, he submitted that there will be no irreparable loss to the residents or villagers in the disputed land because the same is wet and does not have even a single house. Thus, he brushed off the averment contained in paragraph 13 of the applicants’ joint affidavit. Thirdly, the first respondent’s representative submitted that the second applicant acknowledged the disputed land through its letter dated 19.10.2023. Also, he submitted that the District Council of Tanganyika and the third applicant are the ones who received some payments for the said land and, the third applicant is the one who registered the first respondent and, later deregister her, then registered her by another name of Nguvukazi Kilimo Sibwesa. He however, argued that both Nguvukazi Group and Nguvukazi Kilimo Sibwesa are the same. Hence, he urged the court not to follow the Ruling of Mruma, J. which he said, has already been appealed against. Fourthly, through her representative, the first respondent submitted that when the second applicant registered the disputed land in 2012, the Village Council of Sibwesa had already allocated the disputed land to the first respondent by the name of Nguvukazi Group whom she issued with the allocation letter and the minutes of the Village Assembly together with receipts and that is what makes him confident to stand and argue that the disputed land is the property of the first respondent. 7 Fifthly, he submitted that the Government has no interest in all suits relating to the first respondent and the applicants because those cases were not involving the Government, but individuals. He cited the cases of Lazaro Bajuta and 18 Others vs Daniel Awet Tewa, Misc. Land Application No. 97 of 2021 and Attorney General vs Kang’wina Matinde and 22 Others, Misc. Land Application No. 3 of 2022, to fortify his argument. Thus, based on above arguments, the first respondent urged the court to dismiss the present application with costs so that the decision of the court which led to this application, can remain to be honoured. In rejoinder, the applicants’ counsel contended that the two cases cited by the first respondent’s representative, are distinguishable to the circumstances of the present case because in Lazaro Bajuta’s case (supra), the application was about setting aside the ex parte judgement which is not the case in the instant case, and that in the case of Attorney General vs Kang’wina Matinde (supra), the AG applied to be joined in that case as a necessary party while in the case at hand, the applicants instituted the objection proceedings against execution proceedings relating to the disputed land. Regarding the argument that the Government institutions and/or agencies acknowledge the fact that the first respondent is the owner of the disputed land, the learned counsel submitted that the alleged acknowledgement was in 8 relation to the Land Application No. 1 of 2010 before the District Land and Housing Tribunal for Rukwa at Sumbawanga which was however, challenged through the ruling of this court vide Misc. Civil Application No. 32 of 2022. He added that even the letters referred to by the said representative, reveal that the size of the disputed land is different from the one stated in the present application. That also, the parties to this application and those in Land Appeal No. 1 of 2010, are not the same. In addition to the above, the applicants’ counsel submitted that the applicants filed the objection proceedings with the court for the purpose of protecting the interests of the Government without infringing the rights of any person. Besides, the learned counsel submitted that the argument that the ruling of Mruma, J. has been appeal against and therefore, should not be entertained by this court, is an afterthought as it was not pleaded in the respondent’s counter affidavit. Hence, he urged the court to disregard that argument. He further submitted by emphasizing that Nguvukazi Group and Nguvukazi Kilimo Sibwesa are too different names, and added that according to the letter referred by the first respondent’s representative, the disputed land was allocated to the individuals, not to Nguvukazi Group, and it contain 360 hectors. 9 Finally, the applicants’ counsel submitted that one Mr. Ramadhan Kasonso did not state in his affidavit that he also represents other respondents in this application, which makes him to be unqualified person to represent the rest of the respondents. In winding up, the learned counsel for the applicants submitted that the applicants’ application has merit in accordance with Order XXI, Rule 57, 58 and 59 of the CPC. Hence, he implored the court to grant it as prayed. As indicated above, the applicants have among other things, moved the the court to investigate on their claim that the first respondent is not the owner of the disputed land, and be pleased to release the disputed land from attachment. Their application is mainly based under Order XXI, Rule 57 (1) (2) and 58 of the CPC. While Rule 57, CPC provides that the claim or objection against the attachment of the disputed property may be brought by any person, Rule 58 of Order XXI, CPC provides that: "The claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached” 10 What the above provision requires, is that for the claim brought under Rule 57 of the CPC to be established, the claimant or objector must lead the sufficient evidence which provides on the balance of probabilities, that at the time of attachment he had interest or was possessed of the property attached. Now, looking at the parties’ rival submissions, it appears that the applicants and the first respondent have locked horns on two major issues which are, whether the applicants have interest on the disputed land, and two, whether at the date of the attachment, the second applicant was possessed of, the disputed land (the attached property). Starting with the first issue, the counsel for the applicants has argued that although the proceedings in relation to Land Case No. 1 of 2016 and the execution proceedings to wit: Land Executions No. 3 of 2018 that followed from it, do not show that the applicants were party to those cases, they still have interests in the present application. His reason is that the second applicant being the Village Council, is the trustee of all village land situated within its area of administration, the disputed land being inclusive. Also, he has argued that the first applicant is responsible for protecting the interests of the Government which include the public land. Thirdly, according to the learned counsel, the third applicant is the guardian of the second applicant, thus; he has an interest in the instant application. 11 On the other side, the first respondent’s representative has argued that none of the applicants have interest on the matter at hand because the same is originated from the land case which was between individuals and not between individuals and the government. To bolster his argument, he has referred the court to the cases of Lazaro Bajuta & Others vs Daniel Tewa, Misc. Land Application of 97 of 2021 and Attorney General vs Kang’wina Matinde & 228 Others. It is obvious that neither the first applicant, nor the second and third applicants were among the parties to Land Case No. 1 of 2016 and the execution proceedings which preceded that suit. However, under Rule 57 (1) of the CPC, read together with Rule 58 of the CPC, it is apparent that any interested party may be allowed to file a claim or objection against the attached property if he establishes that he has interest or was possessed of the attached property at the time of its attachment. The applicants in this case have, in my view led the sufficient evidence to show that they have interest on the present application. More so, I have gone through the cases cited by the first respondent’s representative and observed that the same are distinguishable with the circumstances of this case, as rightly argued by the counsel for the applicants. 12 This is because in those cases, there were no claims or objections against the attached property. Hence, I find and hold that the applicants in this case have proved to have interests on the matter at hand. This makes the first issue to be answered in the affirmative. I now turn to the second issue which is whether at the date of the attachment, the second applicant was possessed of, the disputed land (the attached property), it is important to note that due to the nature of the present application, the scope of jurisdiction of this court is to investigate on the claim brought by the applicants and to decide whether or not to release the disputed land from attachment, as it has been prayed by the applicants. The above court’s position is supported by the decision of the Court of Appeal in Katibu Mkuu Amani Fresh Sports Club Vs Dodo Umbwa Mamboya and Another [2004] TLR 326 in which it was held that: ".......... where a claim is preferred or an objection made to the attachment of any property the Court is bound to investigate the claim or objection” One of the areas of investigation in this application, is on the ownership of the disputed property as stated in the applicants’ chamber summons and oral submissions through their counsel who has maintained that at the date of 13 attachment of the disputed land, the second application was possessed of the said land. His argument in that aspect, appears to be supported by a number of reasons. One, the second applicant had never allocated the disputed land to any person and that even if it is to be called upon to do so, the law requires that the Village Council (the second applicant) should not grant the amount of land which is more than 50 acres to an individual unless it gets the consent of the District Council, as per Regulation 76 of the Village Land Regulations GN. No. 86 of 2001 (the Village Land Regulations, 2001). In addition to the above, the learned trained mind has argued that the disputed land whose amount is 360 hectares, falls under the hands of the second applicant and, as a matter of fact, the said applicant had never allocated the said land to the first respondent and, it is beyond the threshold allowed by the law for the second applicant to allocate that amount of village land, hence, it is not subject to attachment in execution of court’s orders. Secondly; the applicants’ counsel has argued that the first respondent was not granted the disputed land because the letters referred by her representative reveal that the land was allocated to individuals and not the so called Nguvukazi Group. 14 On her side, the first respondent has through her representative, contended that the disputed land is belonged to her, as exhibited by Annexures R1 and R2 which forms part of her counter affidavit and, that the second applicant recognized her occupation of that land through its letter dated 19.10.2012 and attached with the first respondent’s counter affidavit as Annexure R5. In determining the above issue, I find it pertinent to reproduce some of the relevant provisions of the law in order to get the proper position of the law as far as legality of first respondent’s ownership of the disputed land is concerned. Section 8 (1) of the Village Land Act, Cap 114 R.E. 2019 (The Village Land Act) provides that: "The village council shall, subject to the provisions of this Act, be responsible for the management of al village land” The above provision of the law entails that the village land is in law, under the management of the village council. This in my view, means that it is the village council which is mandated to manage and allocate the village land to the applicant (s) of the grant of customary or derivative rights of occupancy in a particular village. 15 But again, sub section (5) of section 8 to the Village Land Act which was cited by the applicants’ learned counsel, provides that: “(5) A village council shall not allocate land or grant a customary right of occupancy without a prior approval ofthe village assembly.” Flowing from the above provisions of the law, it does not need a fork lift to find that the law forbids the village land to allocate or grant customary right of occupancy in relation of the village land without a prior approval of the village assembly. In her submission against the present application, the first respondent has not led any evidence leave alone tendered any documentary evidence, which indicates that prior to allocation of the disputed land to Mr. Ramadhan Kasonso and his colleagues, the Sibwesa Village Counsel obtained the approval of the village Assembly of Sibwesa. Also, the contents of paragraphs 1 to 17 of the first respondent’s counter affidavit are silent on that aspect. This means, that the allocation of the disputed land to the first respondent was in contravention of the law, as stated above. In other words, it can safely be said with certainty that the said allocation was invalid as it was contrary to the mandatory requirements of the law, as stipulated under section 8 (5) of the Village Land Act. Conversely, under Regulation 76 (1) of the Village Land Regulations, 2001, it is inter alia, provided that: 16 “...no village council may grant or agree to grant or agree to a disposition ofa customary right of occupancy or create or agree to the creation of a derivative right in village land or out of a customary right of occupancy which exceeds twenty hectares or which would result in a villager occupying land in excess of twenty hectares or the maximum amount of land held by a villager in that village whichever is the lesser amount without the consent of the District Council or the Commissioner as is provided for by his regulation. "[mmpfiaiis suppled] One of the applicants’ counsel’s arguments is that the disputed land being 360 hectares, was above the threshold required for the village counsel to allocate land to an individual, thus making the disputed land not to be subject of attachment. It is unfortunate that in her submissions, the first respondent did not lead any documentary evidence to show that the second applicant allocated the disputed land to her. What appears from the first respondent’s counter affidavit and oral submission by her representative, is that the disputed land was allocated to individuals, including Mr. Ramadhan Kasonso who is said to be the secretary of the first respondent. Even annexure R6 which appears to be the Survey Plan, does not bear the official stamp of the third applicant. Nor is it supported by the official letter of the third applicant 17 showing that the disputed land was allocated to the so called Nguvukazi Group. Nevertheless, the question which comes to the focus, is whether despite the fact that some of the documents attached with the first respondent’s counter affidavit which include the Judgment of this court in Land Case No. 1 of 2016 reveal that the disputed land is belonged to the first respondent, the same was properly allocated to the first respondent. Without wasting the precious time of this court and probably of the parties to this suit, I would answer that question in the negative. This is so, because looking at the judgment of this court in Land Case No. 1 of 2016, it appears that the first respondent was allocated with 360 hectares. Also, looking at the Agenda No. 7 of Sibwesa Village Council’s minutes which forms part of Annexure R1 and the Government receipts with Nos. 24520 (issued to Mr. Ramadhan Kasonso), 24521 (issued to Mr. Huseni Kasonso) and 24533 (issued to Mr. Shija Magoso) which have been attached with the first respondent’s counter affidavit, it appears that those documents unveil a number of infractions committed by the Sibwesa Village council. First, in agenda No. 7 it is revealed that each of the above individuals applied to be allocated with 30 hectares by the Sibwesa Village Council and, in the 18 course of responding to the land allocation applications by above individuals, the village council resolved as hereunder: “UAMUZI Wajumbe kwa pamoja walikubaliana kwamba wapewe hekta 30 kwa (sic) mjibu wa Sheria ya Ardhi ya Kjji No. 5 ya mwaka 1999 sawa na hekari 50 tu” However, looking at the receipt issued to Mr. Ramadhani Kasonso, it appears that he paid a total of Tshs. 100,000/= for allocation of 50 acres. Also, looking at the receipt issued to Mr. Huseni Kasonso, it appears that he paid the same amount as the one paid by Mr. Kasonso for allocation of 50 acres and, looking at the receipt issued to Mr. Shija Magoso, it appears that he paid Tshs. 120,000/= for allocation of 60 acres by the abovenamed village council. The nagging question is whether 30 hectares are equal to 50 acres as stated in the minutes of Sibwesa Village Council. By simple mathematics, one hectare is equal to 2.5 acres which is equivalent to 10,000/= squire meters of the land. (Also, see: Cambridge Advanced Learner’s Dictionary, 4th Edition, at page 724). In other words, a hectare is just over twice the size of an acre of land. Thus, in order to know how many acres are there in 30 hectares, one has to multiply 19 30 hectares by 2.5 acre (i.e. 50 x 2.5). Obviously, the answer to such calculation will be 75 acres, and not 50 acres which are stated in Agenda No. 7 of the minutes of the Sibwesa Village Council. This means therefore, that by allocating 30 hectares of the village land to each of the above individuals being among the rest, who applied for the allocation of the village land before it, the Sibwesa Village Council went beyond the threshold stipulated under Regulation 76 (1) of the Village Land Regulations, 2001 which prohibits the village council to grant a derivative right in village land or out of a customary right of occupancy which exceeds twenty hectares, as stated above. Besides, assuming that by stating that, "...wapewe hekta 30”, the said village council intended that all the abovenamed individuals had to share only the 30 hectares allocated to them. If that was the case, then it means each of them would have got 10 hectares which are equivalent to 25 acres. That being the case, one would have expected each of them to furnish payment which is commensurate with the exact number of hectares or acres allocated to him. However, looking at the receipts issued to Mr. Ramadhani Kasonso and his colleagues, it is apparent that the three paid more than the amount of land allocated to them. 20 Again, looking at the receipt issued to Mr. Shija Magoso, the same depicts that the said person paid for allocation of sixty (60) acres to him, which is above the amount of 30 hectares of land by the village council, assuming that was the amount of land allocated to him. This is another infraction committed by the said village council. That was just an example to show how the whole process of allocating land to those individuals by the said village council, was not in accordance with the law governing allocation of village land, but even when one looks at Agenda No. 10 of Sibwesa Village Council minutes, it appears that it allocated 50 hectares to one G. Chiwango which again, is beyond the threshold required for the village council to allocate the village land to an individual, save where it gets the consent of the District Council or the Commissioner, as stated under Regulation 76 (1) of the Village Land Regulations, 2001 which consent was not obtained by the said village council. Besides, it has been submitted by the adversary party that the fact that the disputed land belongs to the first respondent, is in the knowledge of almost all the Government agencies as shown in a number of documents attached with the first respondent’s counter affidavit which incudes the judgement in respect of Land Case No. 1 of 2016. 21 However, none of those documents reveal if the infractions mentioned above, came to the knowledge of those agencies and, the court while dealing with Land Case No. 1 of 2016. It is through the investigation conducted by this court under Order XXI, Rule 57 (1) (2) and 58 of the CPC, that the same have been unveiled. In other words, had those agencies been properly guided and/or addressed on the procedural irregularities committed by the abovenamed village council in the course of allocating the disputed land to several individuals including Mr. Ramadhani Kasonso, they would have realized that the disputed land was illegally allocated and therefore not subject to attachment in execution of court orders, as I have tried to clarify above. The totality of the foregoing reasons, indicates that the said individuals acquired more than what they were supposed to acquire under the eyes of the law, which indicates that the whole process of allocating land to them, was invalid. Consequently, that makes the attached property the subject of this application, not to be subject of attachment, as rightly argued by the counsel for the first, second and third applicants. Having deliberated as above, I am accord with the submission of the counsel for the applicants that considering the flaws appearing in the whole process of allocating land to individuals who are alleged to be the members of the first 22 respondent, the disputed land cannot be said to be the property of the first respondent, rather it is remains to be under the administration of the second applicant, unless the first respondent if she so desires, will apply for allocation of the village land, and the village council will follow the proper legal procedures of allocating land to individuals or groups of individuals. In the premise, the present application is granted with costs and, the disputed land is hereby released from attachment, under Rule 59 of Order XXI of the CPC. It is so ordered. A.A. MRISHA JUDGE 21.11.2024 DATED at SUMBAWANGA this 21st day of November, 2024 A.A. MRISHA JUDGE 21.11.2024 23