IN THE HIGH COURT OF TANZANIA

(LAND DIVISION)

AT DAR ES SALAAM

LAND CASE NO. 104 OF 2015

PETER PETER JUNIOR & 17 OTHERS........................PLAINTIFF

VERSUS

MOHAMED AKIBAL.................................................. 1st DEFENDANT

THE CHAIRMAN KIFUMANGAO VILLAGE................... 2nd DEFENDANT

JUDGMENT

6/3/2018 & 11/5/2018

MZUNA, J

The above mentioned plaintiffs are claiming among others for a declaratory
order that they are lawful owners of various pieces of land measuring about 200
acres at the shower of Indian Ocean at Tengeni Hamlet which was allocated to
the 1st defendant with assistance of the 2nd defendant. They alleges that he
trespassed and then fixed beacons without their consent.

Apparently the said plaintiffs are residents within Kifumangao Village

whereby in the year 2014 the second defendant allocated 600 acres of land to the
first defendant along the beach area out of the applied 1000 acres. The dispute
centers on the fact that the first defendant was allocated same without first
allocation alternative plots to the affected plaintiffs. Even where they were
allocated alternative plots it was re allocated to the first defendant. Worse still,

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they allege that they were not paid compensation as earlier on anticipated. They
pray for restoration of their suit plots.

On their part, the first and second defendant says the allocation of land
followed all the required procedure including convening the Village General
Assembly and minutes recorded as evidenced by Exhibit Dl. That it was
unanimously agreed that the first defendant should create employment jobs,
rehabilitate road and build a Dispensary. So, they contend that the second
defendant legally allocated it to him.

The plaintiffs were unrepresented. They called in 16 witnesses namely; Peter

Peter Junior (PW1) Mussa Yusuph Mbulu (PW2) Juma Ally Mazoea (PW3), Said
Mfaume (PW4), Salum Ndama (PW5), Haji Masoud (PW6), Miraji Dikachike (PW7),
Juma Suleiman Mohamed PW8, Saidi Mtaly Jonga (PW9), Sultan Ahamed Ngunga
(10), Kassim Ally (PW11), Hamis Mbwela (PW12) Mohamed Matimbwa (PW13),
Mwanaidi Ally Ndambwe (14), Hassan Mkima (PW15) and Ramadhani Demba
(PW16).

Mr. Msemwa and Mr. Mtanga learned counsels represented the 1st
and 2nd defendant respectively. The 1st defendant called 2 witnesses namely
Abas Mohamed Juma (DW1) and Japo Ally Mkwawa (DW2). The 2nd
defendant called 2 witnesses; Salum Mbwana Matimbwa (DW3) and Abas
Omari Ndambwe (DW4).

Issues for adjudication are:-

1. Whether the 1st Defendant with the assistance o f the 2nd Defendant
trespassed to the Plaintiff's land and surveyed it?
2. To what reliefs are the parties entitled thereto?
 Let me start with the first issue which deals with the question as to
whether there was trespass by the first defendant?

Reading the evidence from PW1 to PW 16, they alleged that in total
they claim 200 acres of land as follows:- PW1 (25 acres), PW4 (7 acres),
PW5 (5 acres), PW6 (9 acres), PW7 (4 acres), PW9 (9 acres), PW7 (4
acres), PW9 (7 acres out of his 12 acres), PW11 (10 acres), PW14 (2 acres),
PW15 (12 acres) but admitted to have been given Tshs 300,000/- as
compensation. That makes a total of 81 acres.

Some of the plaintiffs like Mohamed Ngwele (7th plaintiff), Jabir

Mpondi (PW16) and Shaban Ngasukia (18th plaintiff) did not give evidence
in court. It was held in the case of Jela Kalinga v. Omari Karumwana
[1991] TLR 67 (CA) that:-

"One o f the defences against an action for trespass is a claim...that

he had a right to the possession o f the land at the time o f the
alleged trespass or that he acted under the authority o f some
person having such a right" (Underscoring mine).

In this case, trespass is central and therefore requires proof of one's

possession of land.

Since it is now a settled law that where the claim is on land each
claimant must adduce evidence to prove his/her ownership. It is also not
proper for someone to adduce evidence representing another. The Court of
Appeal in the case of Haruna Mpangaos and 932 others v. Tanzania
Portland Cement C. Ltd, Civil Appeal No. 129 of 2008 (unreported),

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quoted with approval the case of Nafco v. Mulbadaw Village and
Others [1985] TLR 88 and held that:

"Since the land is not jointly owned all the appellants and since it
is them in their individual capacities who claimed to have a better
title than the respondents and as that is one o f the issues raised in
the suit, in terms o f O. XVIII Rule 3 o f the Civil Procedure Code
Cap. 33 it was the duty o f each appellant and not someone
else to testify and prove on balance o f probabilities that
the disputed land belonged to each individual. That was not
done. Only 13 gave evidence. In actual fact even those 13
appellants did not testify for and on behalf o f 920 which is not
proper either, if they had happened to do that."

So, I hold and find that plaintiff's numbers:- 7, 16 and 18 (above referred)
have totally failed to establish their claim. It is hereby dismissed.

Similarly, other plaintiffs' No. 3, 10, 12 and 13 never disclosed the

size of plots they own which was trespassed. They have failed to prove that
they "...had a right to the possession o f the land at the time o f the alleged
trespass"in view of what was held in the case of Jela Kalinga v. Omari
Karumwana (supra). So even the above plaintiffs have failed to prove
their claims. It is equally dismissed.

What about other plaintiffs? Some of the plaintiffs like PW1 alleged
that they lodged a complaint letter to the District Executive Director but
never tendered such letter as proof thereof. It seems clear according to
PW8 who was the Member of the Village Government for Kifumangao that
there was a joint meeting between the Village Executive Officer, Village
Chairman, members of the Government and Councillor of Magawa Ward.
That after that meeting then in 2014, the Investor, was granted 600 acres
subject to giving to the affected Villagers alternative plots. That, contrary
to the agreement, the new plots were allocated to the investor.

DW1 further testified that the plot belonged to one Mr. Mohamed Ikbar
1st defendant. The witness maintained that Plaintiffs were all compensated,
and it was paid to individual separately not that it was paid to the village
Government. However this witness never tendered evidence as proof of
such compensation. Suffice to say that it was also an error on the defence
side for their failure to call the said Mohamed Ikbar. His claim cannot be
proved by DW1 Abas Mohamed Juma who posed as the supervisor of the
work of the first defendant. He gave hearsay evidence because when he
was cross examined by PW10 he said that he met the plot already allocated
to Mohamed Ikbar. So the allegation that the plaintiffs owned huts along
the shore as mere fishermen did not disentitle them right for compensation
if they had established possession.

Similarly, the allegation by DW2 that some of the plaintiffs were not
Villagers of Kifumangao is also subject to proof that their possession was
unlawful.

DW3 who happened to be a member of the Village council then the

Chairman of the street in 2005, testified that the 1st defendant applied for
a plot and there was convened the village General Assembly. He clarified
that the village council through the General assembly, which grant right of
occupancy allocated 1000 acres to the first defendant. He never paid money
but promised to build a dispensary and periodic maintenance of a road.
 That evidence was given support by DW4 who said that the 1st defendant
was given the plot after a consent of the General Village Assembly. He
tendered the minutes showing "Kukubaliwa maombi yenu ya
kuwekeza"which was admitted as Exhibit Dl. The relevant parts of the
contents of Exhibits D l reads

"YAH: kukubaliwa kwa maombi yenu ya kuwekeza eneo ia kando

ya bahari na juu katika kijiji cha Kifumangao

Hii ni rejea ya barua yako ambayo iiieieza maombi ya meneo ya

fukwe pamoja na ya juu kwa ajiii ya shughuli za maendeieo kwa
njia ya uwekezaji.

Napenda kuchukua nafasi hii kukuarifu rasmi maombi yenu

yamekubaiiwa katika mkutano Mkuu maaiumu uiiofanyika tarehe
11/01/2011.

Mkutano uliazimia kwamba mnapofanya shughuli zenu mja/i pia

masiahi ya kijiji kama vile ajira kwa wanakijiji kwa zile kazi
ambazo haziitaji utaa/amu.

Aidha mushiriki katika shughuli mbalimbali za maendeieo

zitakazofanyika hapa kijijini kwa hali na mali pamoja na kutoa
michango mbalimbaliitakayohitajika kwa ajiliya maendeieo."

DW4 further testified that the village council can grant from one acre to
50 acres of land, therefore a Village cannot grant more than 50 acres unless
they are more applicants. That, they allowed 1st defendant to be given 1000
acres because he was representing others. The 1st defendant was allocated
50 acres while others had their respective plots/acres making a total of
1000 acres.

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 A court witness one Moshi Salum Mkinda (CTW1), testified that the
dispute is on part of the plot which was given to the investors alleged to
belong to the villagers. He said that currently the disputed plot of land is a
bare land and undeveloped.

Reading from the above evidence, it is clear that even the defence
evidence has also some shortfalls. DW4 says was the then Village Executive
officer, who supervised during the convening of the Village General
Assembly meeting and signed minutes (Exhibit Dl). Though he said there
was a unanimous resolutions, however the tendered document (exhibit Dl)
has some members who did not sign like Mwishehe Mkokwa (23), Mariam
Mapande (64), Fatma Ame (78), Zuhura Omari (79), Asia Omari (80),
Fatuma Mpogo (81), Mariam Omari (82), Kurusumu Ally (83), Salima
Athuman (84), Hadija Omari (85), Amina Mtulia (86), Hassani Ripiti (106),

Mwakisu (110), Aziza Juma (125), Mariam Sultan (126). That makes a total
of 15 Villagers who did not sign out of 133 members. Even DW4 admitted
this fact. It came out that even some of the plaintiffs were not made aware
of such meeting.

I find and hold that the resolution reached thereon was not from the
Village General Assembly otherwise all members ought to have signed. This
defect would mean that the grant of land to the defendant No.l never
followed the procedure and is hereby nullified with a direction that another
meeting be convened.

This finding finds further support from the fact that there were other
applicants apart from the first defendant whose names are unknown and
never testified in court.

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 Taking one's land must go hand in hand with payment of
compensation. The defence has never disproved that the plaintiffs were not
paid compensation except the 15th defendant who admitted to have
received Tshs 300,000/-. If as DW1 said the investor built a dispensary at
the lintel level that did not rule out the issue of being paid alternative plots
and or compensation as the case may be. Actually even the said DW4 Abas
Omari Ndambwe, a witness for Kifumangao Village said that up to 2009,
when he left as the VEO of Kifumangao, the plaintiffs were not paid
compensation.

There is a dispute as well on the installed beacons. It was not improper

and contrary to law to install beacons or resurvey the area without involving
all parties to the dispute. That was held in the case of Obed Mtei v. Rukia
Omari [1989] TLR 111 (CAT).

Based on the above evidence, I cannot grant ownership even to other

plaintiffs because they merely alleged to possess land without proof that
indeed there was a blessing from the Village leaders. They never tendered
documents which granted them such possession.

The first issue is partly allowed as the plaintiffs were not involved in
granting land to the first defendant and subsequent installation of beacons,
there was also no payment of adequate compensation and or alternative
plots.

Lastly on the reliefs. I desist from declaring the 1st defendant to be a

trespasser nor are the plaintiffs lawful owners. I hereby direct that the
dispute be referred back to the Village Officers of Kifumangao who should
work in collaboration with the District leaders to have this dispute resolved
amicably. This does not cover plaintiffs Nos. 3,7,10,12,13,16 and 18 whom
I have dismissed their claims.

I say so because though the defence alleges the first defendant was
allocated 1000 acres, it became apparent that the said acres are far beyond
the powers of the Village General Assembly. Further, it was also established
that when the surveyors came, it was found that the area could not cover
such 1000 acres but only 600 acres.

I am aware that proof in civil cases is on the balance of probabilities.

From the above analysis of the evidence, I find that the suit is partly allowed
and partly dismissed. Each party to bear its own costs.

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11/05/2018

Coram - Hon. J. C. Tiganga DR

For Plaintiffs: present in person

For 1st Defendant: 1absent

For 2nd Defendant:

C/C: Bukuku

ORDER:

Judgment delivered in open chambers in the presence of the parties as to

per coram.
c^VjaJu^
J. C. TTganga ~
DEPUTY REGISTRAR
11/05/2018

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