JUDGEMENT VICENT NTAYOBA 9 OTHERS

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA CIVIL CASE NO. 5 OF 2023 VICENT NTAYOMBA AND OTHERS .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS UVINZA DISTRICT COUNCIL .............................. RESPONDENT / DEFENDANT JUDGMENT RWIZILE, J, The plaintiffs are natural persons and residents of Rukoma village. The defendants are alleged to have forcefully evicted them from their mother land. The disputed land, with unknown size, is alleged situated at Mjimwema. On 1st December 2022, the first defendant by the use of the police force and members of the people’s militia, trespassed into their land, demolished their houses, and destroyed their crops thereby forcing them out of their land without lawful cause, on grounds that the same place is the wildlife corridor connecting Katavi and Mahale game reserves. Despite their resistance, the 1st defendant did not let them stay. They therefore decided to file this action praying for the following orders; 1. A declaration that the 1st defendant’s act of forcefully vacating the plaintiffs from their land (Mjimwema hamlet) is unlawful. 2. The 1st defendant be permanently restrained from any further disturbance to the plaintiffs’ enjoyment of their land. 3. Costs of the suit and, 4. Any other relief deemed fit. The defendants disputed the claims stating the dispute land is general land, not part of the Rukoma village and cannot therefore be owned by the villagers. To prove their case, all plaintiffs, cast with the duty of proving their case, testified save the 4th, 6th, 7th and 10th plaintiffs who did not testify for the reasons best known to them. For the plaintiff, it was Page. 1 testified by the following; Vicent Ntayomba(Pw1), Daudi Machira Mashanga (Pw2), Justine Benjamin Mbatuka (Pw3), Japhet Ezekiel Mahandule (Pw4), Kisinza Lukelesha(Pw5), Omary Musa (Pw6), Patrick Gondwa(Pw7) and Fabian Kidaboma(Pw8). While on the defence side, the defence was mannered by Goodluck Cosmas Hezwa(Dw1) , William Daud Maswi (Dw2) and Ramadhan Juma Mlindwa(Dw3). At the first hearing of the case, only three issues were framed, to wit; 1. Whether the land in dispute is the plaintiffs’ land. 2. Whether eviction by the defendants from the disputed land was lawful. 3. To what reliefs are the parties entitled. The plaintiffs were represented by Mr. Daniel Lumenyela, learned advocate, while Mr. George Kalenda, learned state attorney, appeared for the defendants. According to Pw1, he is resident of the place since 1986 when he acquired 20 acres. Pw2 on his part, got his land in 1995, which is 36 acres. Kisinza Lukelesha (Pw5), got 35 acres in 2017 and bought some 50 and 40 acres later. Omary Musa (Pw6), in 2007 acquired 45 acres. Patrick Gondwa (Pw7) on his part, got 20 acres in 2014, while Fabian Kidaboma (Pw8) a is resident since 2001 and he acquired 50 acres. The only evidence tendered by Pw1, Pw2, Pw5, Pw6, Pw7 and Pw8 is they were issued with the receipts upon allocation of land from village authorities. The plaintiffs said, they have been subduing the land for farming activities, built houses, keep animals and chicken. The plaintiffs said, the land was for agriculture since 2006 under MEM project, it has never been a corridor for wildlife. It is therefore their land . Their evidence was supported by Pw3 Daudi Machira a former village chairman from 2019 to 2024. It was the evidence of Goodluck Cosmas Hezwa(Dw1) that the land in dispute is a wildlife corridor bordering 5 villages of Kashagulu, Lufubu and Ubanda in the South, while in the North are Rukoma and Rubalisi villages. His evidence was supported by a town planner of Uvinza, Dw2. In their evidence, it is alleged, the land is general land which belongs to DED Uvinza. According to their records, he testified that, the land in dispute is not part of Rukoma village, therefore, it could not feature in village plans. Dw2, tendered the maps showing the boundaries of the villages of Ikubulu, Rubalisi, Mgambazi and Rukoma, it is exhibit D1. The second map shows the village boundaries and the wildlife corridor, it is exhibit D2. Page. 2 He went on describing the disputed land that it is at the border to Rukoma and Rubalisi on the south from beacon KC 652 to Mgabogabo hill, the Nzega hill to the beacon NP1. He said further that, there is no any Kitongoji registered as Mjimwema in the said maps. The last witness, Dw3, Ramadhan Juma Mlindwa, a Village executive officer of Rukoma since 2022. He supported the evidence of Dw1 and Dw2. He also tendered minutes of the village meeting, exhibit D3 as proof to that effect. Having though briefly gone through the evidence, I have to say, it is common knowledge that in civil cases, it is the plaintiffs that are cast with the duty of proving the case. In order to do that, each plaintiff had to testify and prove his or her case. In their pleadings, none of the plaintiffs who stated the size of the land and its borders. The statement was generally made showing that the land was acquired in between 1986 to 2014. It was by allocation from the village council and some alleged bought part of that land from other people. In exhibits, D1 and D2, which are the maps, the survey of Rukoma, Lubalisi and Ikubulu villages in Uvinza District - Kigoma Region and a map showing Mahale National Park, Mahale East (General Land), village centers and village boundaries which were admitted without objection at the trial. It is clear to me that if the plaintiffs had evidence, good enough to prove ownership could have tendered the same. It was not enough for them to testify that the said land was acquired through allocation and purchase. The fact that their documents were burnt in the houses did not surface. It was not shown so in their pleadings, simply testifying so, may be taken as an afterthought which has no bearing in proving the dispute in court. Apart from the document, at the hearing, Daudi Machira Mashanga, Pw3, a plaintiffs’ witness said to have been a chairperson of Rukoma village since 2019 to 2024. The land in dispute, due to good use land plan of 2006, was set aside for farming activities, but he did not testify on how each of the plaintiffs acquired the disputed land. Still, the plaintiffs claimed, the same was for all purposes for residence and farming. To that end, it is clear to me that the plaintiffs did not prove the land belonged to them. Therefore, the first two issues are determined against the plaintiffs. It is clear to me that in absence of cogent evidence of how they got to possess that land, the plaintiffs are regarded as trespasser with no title to land. Therefore, evicting them was an inevitable encounter. I therefore enter judgement in favour of the defendants with costs. Page. 3 Dated at KIGOMA this 20th of March 2025 . A. K RWIZILE JUDGE OF THE HIGH COURT Page. 4