IN THE HIGH COURT OF TANZANIA

(LAND DIVISION)

AT DAR ES SALAAM
LAND CASE NO.252 OF 2014
REGINALD MARTIN MUSHI ................................................................... PLAINTIFF

VERSUS

SIJALI JAFARI.............................................................................. 1ST DEFENDANT

JUMA DINTO................................................................................ 2nd DEFENDANT

RAMADHANI VPO....................................................................... 3rd DEFENDANT
HAMISI HARUNA...........................................................................4th DEFENDANT

HERIKI MREMA............................................................................. 5th DEFENDANT

SAIDI KITELEKO........................................................................... 6th DEFENDANT

MDINI KASIMU....................................................................................................... 7thDEFENDANT

HAJI SAIDI..............................................................................................................8thDEFENDANT

RAMADHANI JAFARI............................................................................................ 9thDEFENDANT

ABDALAH HUSENI....................................................................... 10th DEFENDANT

JOSEPH DATI................................................................................ 11th DEFENDANT

MSHAM MUSA.......................................................................................................12™DEFENDANT

HARUNA CHANDE................................................................................................ 13™DEFENDANT

HAMADI HADI........................................................................................................14™DEFENDANT

RAJABU ABUDALA.......................................................................15™ DEFENDANT

FELIKISI MRIGO.................................................................................................... 16™DEFENDANT

YASINI SILANDA................................................................................................... 17™DEFENDANT

MWANAISHA MOHAMEDI....................................................................................18™DEFENDANT

SALMA SHOMARI..................................... 19™ DEFENDANT

SAIDI MACHO........................... 20™ DEFENDANT

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SAIDI MBEGU ...........................................................21st DEFENDANT
NURU ALLY................................................................................. 22nd DEFENDANT

JUDGMENT

Date of the last Order: 17.11.2021

Date of Judgment: 24.11.2021

A.Z. MGEYEKWA, J

The Plaintiff, Reginald Martin Mushi, commenced this suit against

twenty-two Defendants, seeking to have the Defendant evicted and

permanently restrained from his parcel of land located at Kiaraka,

Tungutungu village within Bagamoyo District The Plaintiff prays for

judgment and decree against the Defendants jointly and severally as

follows:-

a) The declaration that the Plaintiff is the rightful and lawful owner

of the suit land.

b) Compensation for destroyed crops to be assessed by the Hon.

Court.

c) Demolition order of the structures erected by the Defendants.

d) Permanent order of injunction.

e) General damages.

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 f) Any other relief(s) as this Honourable Court may deem fair and

just to grant.

g) Cost.

The facts giving rise to this suit are not difficult to comprehend. The

facts, as can be deciphered from the pleadings and evidence on record

go thus: in 1999, the Plaintiff obtained two acres of land which is located

at Kiaraka/ Tungutungu village within Bagamoyo District through a sale

agreement between the Plaintiff and one Mohamed Dadi (deceased) at a

price of Tshs. 230,000/=. The Plaintiff developed the suit land by

cultivating permanent crops such as Mango trees, Citrus fruit trees,

cashew nut trees, banana plantation, cassava, and potatoes with a total

value of Tshs. 60,000,000/=.

Sometime in August, 2010, the Defendants invaded the Plaintiff’s plot

on account that they do not have land to utilize to earn their living. The

Defendants who formed a group of ‘Mungiki’ are alleged to have

trespassed the suit land and uprooted all developments made thereon.

The Defendants unlawfully developed and erected huts hatched with

grasses in the Plaintiff’s land.

Thereafter, the Plaintiff reported the matter to the Ward Tribunal of

Kerege then he lodged a case at the District Land and Housing Tribunal

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for Kibaha in Application No.87 of 2011, but the land value had

appreciated to the value above Tshs. 100,000,000/= hence the District

Land and Housing Tribunal had no jurisdiction to determine the matter.

Thus, the Plaintiff opted to institute the instant suit before this court.

The Defendants; legal persons, were served with the amended Plaint

and through the services of Mr. Daudi Malima, learned Advocate filed a

Written Statement of Defence. The Defendants disputed the Plaintiff’s

claims.

It is imperative at the outset to point out that, this matter has also gone

through the hands of my brother; Hon. Kente, J and my sister, Hon.

Mtungi, J, who conducted the 1st Pre-Trial Conference and Mediation

respectively. I thank my predecessors for keeping the records well and on

track. I thus heard the testimonies of the witnesses for the parties and now

have to evaluate the evidence adduced by the witnesses to determine and

decide on the aforementioned issues.

During the hearing of the case, the Plaintiff was represented by Ms.

Wivina Karoli, learned Advocate, while the Defendants were represented

by Ms. Dominicus Nkwera, learned counsel.

Upon completion of all preliminaries, the Final - Pre Trial Conference

was conducted and the following issues were framed by this Court:-

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 1) Whether or not the Plaintiff is the rightful and lawful owner of the

suit premises.

2) Whether the Defendants are trespassers on the suit property.

3) To what reliefs are the parties entitled.

In his effort to prove this case the Plaintiff who paddled his own canoe

in this matter summoned one witness - Jubilent Benjamin Mushi (PW2)

to testify in support of his case. The Plaintiff testified on oath, testified that

he is a businessman residing in Sinza. He went on to testify to the effect

that that the Defendants have trespassed his piece of land and he wants

them to vacate from the suit land. He said that he followed the process of

buying the plot which is located ya Kiaraka in Bagamoyo. Thereafter an

agreement was entered between him and one Mohamed Dadi and the

same was witnessed by the seller's wife, Executive Officer, Ten cell

leaders, Chairman and Secretary of Kiaraka Ward. He testified that the

suit land was e developed whereby cashew nuts, banana plantations, and

mangoes trees. To substantiate his submission, he tendered a sale

agreement (Exh.P1).

In 2010, the Plaintiff noted that Defendants invaded his plot and he

was informed that ‘Mungiki’ group trespassed his plot and threatened to

harm him. They wanted to pay him Tshs. 130,000/= to buy the plot, but he

refused. One citizen reported the matter to the police station then the

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Plaintiff decided to lodge a case before the District Land and Housing

Tribunal but the tribunal had no jurisdiction to determine the case. Then

in 2014, the Plaintiff lodged the instant case before this court praying for

this court to order the Defendants to vacate the suit land. In 1993, PW1

received a letter from Kipande Village Executive Officer claiming that he

has trespassed into the land of Kilangala Mission.

When cross-examined by the 3rd defendant, he testified that in 1999

the village Chairman and Secretary were in place but he did not know if

the Wards were divided. He testified that parties signed the sale

agreement before the leaders in the Village Executive Office. The Plaintiff

testified that his witnesses passed away and the leader who witness the

sale agreement is no longer residing in the said Ward.

The 2nd defendant was Mr. Jubileti Benjamin, the relative of the Plaintiff.

He had not much to say. PW2 testified that the Plaintiff owns a plot located

at Kiaraka within Bagamoyo District. He testified to the effect that the

Plaintiff occupied the suit land for more than 10 years. He claimed that the

Defendants invaded the Plaintiff’s plot. PW2 stated that he did not witness

the sale agreement and added that He prayed for this court to order the

invaders to return the Plaintiff’s plot.

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 During the hearing of the defence case, some of the Defendants

testified in court whereas five of them; Ramadhani Upo (DW2), Juma

Joseph (DW3) Said Kiteleko (DW4), Mussa Ramadhani Lukido (DW13)

and Abdallah Hussein (DW14) testified to the effect that they bought the

suit land from one Tilya. Their evidence was to the effect that Florian Tilya

entered into an agreement with the village council that he has freely

agreed to transfer his plot to the villagers residing at Tungutungu village

within Bagamoyo District.

Sijali Jafari (DW5), Felix Mligo (DW9), Salma Shomari (DW10),

Mwaanisha Mohamed (DW11), testified that bought the suit land from

Hatibu Mpembe % acre each. Said Hatibu Mpembu (DW12) testified that

he had a piece of land that he received from his late father Hatibu

Mpembe. DW12 said that he gave his sister in law one Mwanaisha

Mohamed a piece of land. The Defendants called Florian Tilya (DW1),

who testified to the effect that his plot was divided to 10 Defendants out

through the village leadership. DW1 testified that he bought the suit plot

from his brother’s driver.

When he was cross-examined by Ms. Winnie DW1 testified that there

was no any sale agreement between him and the said drive.

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 Another witness who was called to testify for the Defendants was Haruna

Hemedi (DW6), he testified that he was Street Chairman of Tungutungu

at Bagamoyo, Mapinga Ward from 2009/ 2010 to 2014. He said that the

villagers asked for plots from one Tilya. Then an agreement was prepared

between Tilya and the village council. The village council divided the said

plots into 30 - 50 people. He said he did not know Mohamed Dadi.

Another witness who was called to testify for the Defendants was Bakari

Selemani (DW7). He is a residence of Mapinga village. Kiaraka Street at

Bagamoyo. He testified that he was a Chairman from 1985 to 2000,

among his duties was to survey the village land, solving citizens’ disputes

including land disputes and he was also signing sale agreements as a

witness. He testified that the sale agreements bear witnesses' name and

their signatures. DW7 testified that he did not know Mohamed Dadi. He

said that his Secretary was Said Mumbi. He testified that by that when one

wants to buy a piece of land he must involve the village council since it

was supervising the sale of village lands. DW7 testified that Tilya was

among the buyer of the village land he bought from his brother's driver.

He knew Mohamed Totoro as a resident of Mapinga village at Kiaraka

Street.

Also, Frateli Leonard Mtega (DW8) was called to testify for the

Defendants. He testified to the effect that he witnessed the sale

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agreement between Hatibu Mbengu and Mohamed. In his testimony, he

said that Hatibu Mbengu bought 3 acres plot. He tendered a sale

agreement between Hatibu Mbengu and Mohamed (Exh.D2).

Juma Hashim (DW15) testified that he was a village chairman of

Tungutungu Street from 2014 to 2019 and was appointed once again in

2019 and his tenure is until 2024. He testified that he was aware that the

villagers requested pieces of land from one Tilya. He said that Tilya,

Mohamed Totoro, Jafari Kitita acquired the land from the village council.

He claimed that exhibit P1 does not show the location of the plot. He

stated that PW1 claimed that he had a plot at Kiaraka but they did not see

him.

When he was cross-examined he testified to the effect that he handled

the sale process. He said that Tilya acquired the plot from his brother's

driver. He did not see the documents to prove that Tilya bought the suit

land from his brother's driver.

Before determining the framed issues, I will first address the law on the

burden of proof in civil cases. The burden of proof lies with the person who

instituted the suit. Section 110 (1) of the Law of Evidence Act, Cap. 6 [R.E

2019] states categorically to whom the burden of proof lies, as follows:

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 “Whoever desires any court to give judgment as to any legal right or

liability dependent on the existence of facts which he asserts must

prove that those facts exist. ”

The proof is on the balance of probabilities, burden lies to a party who

alleged the existence of that fact. Section 110 (2) the Law of Evidence

Act, Cap. 6 [R.E 2019] states:-

“When a person is bound to prove the existence of any fact it is

said that the burden lies on that person”.

Regarding the first and second issues, which I wish to consolidate, the

Plaintiff is the one who filed this suit before this Court. He is the one who

is required to show that he was the lawful owner of the disputed land and

the Defendants are trespassers.

The Plaintiff had to lead evidence to show that the Defendants entered

or invaded his piece of land located at Kiaraka/Tungutungu. As a result,

he suffered a loss of his improved properties. The Plaintiff claims against

the Defendants is for vacant possession of the suit land measuring two

acres. He testified to the effect that he acquired the suit land from

Mohamed Dida. To substantiate his submission he tendered a sale

agreement dated 13th November, 1999 issued by Kiaraka/Tungutungu

village authority. The Plaintiff complained that the Defendants invaded his

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suit land and uproot his crops. On the other hand, the Defendants strongly

denied having trespassed and destroyed the Plaintiff’s crops. Instead,

they testified that one Frolian Tilya gave them 3 acres of land through the

village leadership. In his submission, the learned counsel for the

Defendants contended that the Plaintiff's contract did not meet the

essential ingredients of a valid contract. He claimed that exhibit P1 did not

bear the official names of witnesses including the Chairman of Kiaraka

Street.

As correctly prefaced by the Plaintiffs Advocate in her final submission

and, as gathered from the testimony of the disputants, it is clear that the

Plaintiff and Mohamed Dadi entered into an agreement and a Sale of

Agreement was prepared. The Sale of Agreement bears the names of the

parties and they signed the contract. It was witnessed by both parties’

witnesses who appended their signatures and dates and bears a stamp

of Kitongoji cha Kiharaka. The Law of Contract Act, Cap. 345 [R. E. 2019]

precisely sections 10, 11 and 12 defines a contract and persons

competent to contract. Section 10 of the Law of Contract Act Cap.345 [R.E

2019] state that:-

“ All agreements are contracts if they are made by the free

consent of parties competent to contract, for a lawful

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 consideration and with a lawful object, and are not hereby expressly

declared to be void, ”

Additionally, validity of any contract depend not only on its form and

content but also on factors attributed to the parties. If validity made, an

agreement must meet the basic legal requirements of the rights and

obligations created thereunder are to be enforced.

From the above provision of the law, and analyses it is my view that all

the ingredients of a legal contract has been fulfilled; as there was an offer

and acceptance of consideration which here is the sale of landed property.

I have considered that the Sale Agreement (Exh.P1) had undergone all

stages of the Contract to its finality to make it binding. Therefore, there

was a legality to the contract between the Plaintiff and one Mohamed Dadi.

Consequently, it is my view that the said Sale Agreement (Exh.P1) is a

valid contract in the eyes of the law.

The Defendants' Advocate claims that the exhibit P1 is not a valid

contract because the village leaders did not sign the contract. He also

claims that Plaintiff’s Sale of agreement does not state the size of the

disputed plot. I am in accord with the learned counsel for the Defendants

that the names of Kiaraka village leaders were not stated but they signed

the contract and a village stamp was appended. The issue of size does

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not invalidity the sale agreement since transaction was effected. However,

the sale agreements needs to be corroborated by other evidence such as

witnesses who signed the said Sale Agreement.

Gleaning from the pleadings it comes out, it is unfortunate that there is

no source of the sale of the suit land to the Plaintiff. The Plaintiff’s

evidence establish that one Mohamed Dadi sold him 2 acres of the suit

land. The Plaintiff is trying to convince this court that the suit land was

transferred from Mohamed Dadi (the seller) to him (the buyer). However,

the Plaintiff did not bring evidence to show how the suit land was

transferred to Mohamed Dadi. In the Plaint, the Plaintiff stated that

Mohamed Dadi passed away. I was expecting more proof from PW1 at

least to call witnesses who could testify how Mohamed Dadi acquired the

said suit land. It was crucial to have some witnesses who could establish

how Mohamed Dadi acquired the suit land or how the suit land was

transferred to Mohamed Dadi. Taking to account that the suit land is part

of the village land.

The question to ask is whether Mohamed Dadi had a better title to pass

to the Plaintiff? In the case of Farah Mohamed v Fatuma Abdallah

[1992] TLR 205 it was held that:-

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 ”... He who doesn't have the legal title to land cannot pass good title

over the same to another

It was important for this court to determine the source of acquisition of

the disputed land and find out if there was a legal title that enabled

Mohamed Dadi to transfer the said suit land. That evidence could

substantiate the proper acquisition of village land which entitled the first

seller to transfer the landed property to Mohamed Dadi and then the

Plaintiff.

The location of the suit land was not stated in the Sale Agreement,

thus, it is difficult for this court to determine whether the suit land is the

one in dispute or not. Considering that the Tungutungu village leaders

testified to the effect that Mohamed Dadi and the Plaintiff are not familiar

or known by villagers.

Additionally, the issue of size of the suit plot was required to be

corroborated by evidence of people who witnessed the Sale Agreement

but in the instant case, there was no evidence from any witness who

witnessed the signing of the Sale of Agreement (Exh.P1) that means the

documentary evidence alone cannot justify that the Plaintiff was a lawful

owner.

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 Moreover, the evidence of PW2 is silent regarding the existence of any

agreement between the Mohamed Dadi and the original owner. It was

important for the Plaintiff to discharge the burden of proof concerning that

the village council does not recognize the Plaintiff. The issue that he

bought the suit land in 1999 as per the exhibit P1 does not suffice to prove

his ownership over a suit land. Therefore PW2 evidence cannot support

the Plaintiff’s claims of land ownership.

The Plaintiff claimed that the respondents destroyed his crops but there

is no any documentary evidence to prove his allegations, therefore his

mere statement alone cannot prove the that the Defendants or Munguki

group destroyed the Plaintiffs crops. Besides, the Plaintiff did not report

the matter to the police to prove that the Defendants destroyed his crops.

In these circumstances, proof by tendering the documentary evidence

was of paramount importance.

On the other hand, the fact that Defendants who claimed that Frolian

Tilya gave them the suit land through the village council is not disputed

since the sale agreement is in place. However, it was not proved if the title

passed from the said unknown driver to Frolian Tilya (DW1). Therefore

even on the side of the Defendants the information as to how Frolian Tilya

acquired and occupied the suit land was not disclosed.

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 Next for consideration is the second issue, whether the Defendants

were trespassers or not. The Plaintiff testified to the effect that the

Defendants actions on his land amounted to trespass. The Defendants

actions were said to amount to trespass because it constituted an

unjustifiable intrusion by the one person upon the land in the possession

of another. I take the view that determination of this issue is consequential

and are dependent on the holding in the first issue. As held earlier on, the

Plaintiff did not prove that he is the lawful owner of the suit land, therefore,

it is hard to prove that the Defendants are trespassers.

I also take into account the testimony of village leaders and all other

defence witnesses who were unanimous that the Plaintiff was not a legal

owner. The village leaders claimed that the Defendants are not

trespassers, they are the lawful owners of the suit land. Although as

explained earlier, the evidence on record does not favour the Defendants

claims since they have failed to prove whether Tilya had a good title to

pass to them. Would had it been that the Plaintiff has proved his ownership

then Defendants could have lost their case.

Having read the evidence of the Plaintiff as a whole, the conclusion I

draw is that the Plaintiff has failed to prove his case on the balance of

probabilities that he owned a piece of land, thus it is not proved that the

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Defendants were trespassers. On this premise, issues number one and

two are answered in negative.

On the third issue, the reliefs’ claims cannot be awarded since the

Plaintiff did not prove his case to the standard required by the law.

For these reasons, the Plaintiff’s claim is absolutely rejected for the

above-stated reason.

In the upshot, the suit is hereby dismissed without costs.

Order accordingly.

Dated at Dar es Salaam this date 24th November, 2021.

A.Z.MGEYEKWA
JUDGE
24.11.2021
* '■*» -'</;• • . *

Judgment delivered on 24th November, 2021 in the presence of Ms.

Wivina Kaloli, learned counsel for the Plaintiff, Plaintiffin personal and Ms.

Hadija Zuberi, learned Advocate holding brief for Mr. Dominicus Nkwera,

learned counsel for the Defendants.

: >
:
.. .
•> . -
■ >■> A.Z.MGEYEKWA
U

JUDGE
\ 24.11.2021
Right to appeal fully explained.

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