LAND CASE 27515 OF 2023 WILSON MAYANI VS KASULU TOWN COUNCIL

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND CASE NO. 000027515 OF 2023 WILSON MAYANI BAGUMYA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS KASULU TOWN COUNCIL .............................. RESPONDENT / DEFENDANT JUDGMENT J. NKWABI, J, 18/10 & 26/11/2024 In this land case, the plaintiff is claiming for a plot of land which is Plot No. 39 measuring about 1.5 acre at Mtumba area, Nyansha ward within Kasulu town council which is in Kigoma region. The suit land is bordered by; East – Nyantare Secondary school, West – Mbangai Kalova, North – Yona Balibusa while on the south side, it is bordered by a piece of land of Eliasi Mpenda. He asserts that the piece of land was cleared by his late father Maliyatabu Bagumwa in 1982 and it was given to him by his father as a gift in the year 1994. The conflict arose in 2016 when the 1st defendant trespassed into the piece of land vide the head master of Nyantare secondary school who banned the plaintiff from using the plot arguing to be owner. In that suit, the plaintiff is pushing for the reliefs thus: 1. A declaratory order that the suit plot is the lawful property of the plaintiff. 2. An order against the 1st defendant for vacant possession of the suit plot. 3. Permanent injunction to the 1st defendant, agents and representatives from entering into the suit land. 4. General damages against the defendants for the trespass committed. 5. Costs be provided for. 6. Any other relief(s) this honourable Court may deem fit and just to grant. The joint written statement of defence of the defendants denied the claim and alleged that the plaintiff’s father was given different plots by the then village land council which are plots No. 25, 31 block “K” and plot No. 109 block “C” according to the sketch map of the village and were situated in residence land and stated that that land claimed is a service land and added that that piece of land belongs to Nyantare Secondary school. The defendants prayed the suit be dismissed with costs. Page. 1 Prior to the hearing of the case, this Court drew the issues of the case as demonstrated below: 1. Who is the lawful owner of the disputed land. 2. Whether the defendants have trespassed into the disputed land. 3. What reliefs are parties entitled to. I will start to consider and determine the 1st issue which is who is the lawful owner of the disputed land. On this issue the evidence that is available is that the plaintiff testified that in the year 1994, the village council surveyed the land at one acre each and handed his father with receipts No. 36, 37 and 39. He avowed that his father planted various seasonal and permanent crops. There are trees which were planted since the year 1994. Since then, his father gave the piece of land to the plaintiff. He further testified that in the year 2021, when he proceeded with developing the piece of land, he was stopped by a teacher of a school, their neighbour who told him that the piece of land is the property of a school. The plaintiff made a complaint in the office of the director of the town council until the year 2023 when they started cultivating in the plaintiff’s piece of land is when he decided make follow-up. In the year 2024 the street administration council started distributing the pieces of land and others to civilians/residents including the pieces of land he has mentioned. He mentioned the boundaries to be; in the North the plot is bordered by Yona Balibusa, in the south it is bordered by Elias Mpenda, in the East, it is bordered by Phares Mnyenge, in the west it is bordered by Mbanga Skarole. The plaintiff, however, gave contradictory evidence about his obtaining the piece of land as he claimed that he was given the piece of land as a gift by his late father but still stated that, the same piece of land was mentioned in the discussion of the estate of the deceased. Even PW.2 stressed on the same when he stated that the school trespassed into the land of the deceased Mayani Bagumya, but currently it is under the supervision of the plaintiff Wilson. The evidence of PW.2 complicates the case of the plaintiff. On the defence side, it was stated that the deceased Mayani Bagumya was allocated other pieces of land (plots) and not the suit land. Page. 2 The plaintiff is asking this Court to declare him lawful owner of the disputed plot. Because of the contradiction and discrepancy in the evidence of the plaintiff it is dangerous for this Court to declare the plaintiff the owner of the disputed plot. No doubt courts of law have emphasized on certainty of parties before them. I exemplify the case of Unilife Group Investment v. Biafra Secondary School & Another, Civil Appeal No. 144 (B) of 2008, (unreported) where it was stated that: “The reason why parties to court proceedings must be adequately identified is that, court proceedings are a very vital process through which litigants’ rights are determined. They result to two possibilities, i.e. winning a case or losing it. It follows therefore that, courts must be certain of the parties before them so that if a party wins the case, then the court must be assured that the right goes to a proper person entitled to it. The same way if a party loses a case the court must be sure that the liability goes to the proper person who is liable, hence the significance to the properly describe the capacities and identities of the parties in the pleadings and adequately demonstrate the same in the evidence during the trial.” The plaintiff appears to be not confident over the ownership of the land In the like situation in Masumbuko Kowolesya Mtabazi v. Dotto Salum Chande Mbega, Civil Appeal No. 44 of 2013, CAT it was observed that: “Be that as it may, this argument only serves to cement the fact that the appellant is not confident about his ownership of the disputed land. It also strengthens the respondent’s case which was supported by proprietary documents including the offer of the right of occupancy as well as the certificate of title to the disputed land.” Even assuming that the plaintiff is administrator of the estate of his late father, which however, he neither alleged nor proved, still he is not owner of the property of his late father. This Court has on a number of occasions pronounced so in clear terms. One of such occasion is the case of Tausi Hassani & Another v. Salum Hassani [2014] T.L.R. 617 HC “Being administratrix does not mean that the property is hers. An administrator’s duty is to administer the estate and distribute it to the deceased’s lawful heirs and not to use them for his/her personal benefit.” In fine, the plaintiff has failed to prove that he is owner of the disputed piece of land. His push for over the piece of land (plot) is rejected. In the circumstances, the 1st issue is answered in the negative against the plaintiff because he has failed to prove that he is the lawful owner of the disputed piece of land. Next, I deal with the 2nd issue which is whether the defendants have trespassed into the disputed land. Since, the plaintiff has failed to prove that he is owner of the disputed piece of land, it is impossible for this Court to say that the defendants trespassed into the disputed piece of land. All I can say is that the plaintiff has failed to prove that the defendants trespassed into the disputed piece of land. The 2nd issue is answered in the negative. Page. 3 Finally, I consider the 3rd issue which is what reliefs are parties entitled to. Flowing from the above discussion, the parties are entitled to reliefs that the suit is dismissed with costs. It is so ordered. Dated at KIGOMA ZONE this 26th of November 2024. J. . NKWABI, J JUDGE OF THE HIGH COURT Page. 4