IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(LAND DIVISION)
AT PAR ES SALAAM
LAND CASE NO. 34 OF 2016

SHEILA ELANGWA SHAIDI.................... PLAINTIFF

VERSUS

1. ABRAHAM KILINDO

2. paulo wilfred mdogo

3. MOHAMEDI SALUM MSULWA ............................... DEFENDANTS

4. EMMANUEL LAKATI

5. JOHN IGNAS LASWAI

3UDGMENT

S.M KALUNDE, J:

On the 10th February, 2016, SHEILA ELANGWA SHAIDI, the

plaintiff herein, filed a suit praying against the defendants seeking
for, inter alia, a declaration that the plaintiff is the lawful owner of
33 acres of land identified as Farm Number 3319, situated at
Sungwi, Kisarawe with the title No. 77990 ("the disputed land");
that the defendants be declared as trespassers into the disputed
land; an order of perpetual injunction against the defendants; an
order that the defendants demolish their structures elected into the
disputed land; general damages ano costs of the suit.

In accordance with the pleadings, the disputed land was part

of the land previously owned by the late ELANGWA SHAIDI
("the deceased"}, who passed away in 1984. Upon his demise

i
one HAWA ELANGWA SHAIDI ("the widow"} was appointed
as the administratix. Upon distribution of the assets of the late
Elangwa Shaidi, in 1987 the plaintiff was allocated the disputed land
as one of the heirs to the deceased. After being allocated with the
said land,, the plaintiff applied to the village government and was
allocated the farm together with her siblings. She later applied to
have the farm surveyed and obtained a Certificate of Title (C.T) No.
77990, which was issued on 18th August, 2007. She complained
that around 201u she noticed that the farm had been trespassed
by the defendants who had erected structures and were growing
various food crops into the disputed land.

Through their joint written statement of defence (WSD) filed

to this Court on 17th Match, 2016, the defendants denied that the
plaintiff was the lawful owner of the disputed land. The defendants
pleaded that the 1st defendant was the lawful owner of
approximately 10 acres which he acquired in 1985 upon application
and allocation by the Sungwi village government. He alleged that
ever since then he had enjoyed peaceful occupation of the piece of
land until around 2007 and 2008 when the plaintiff started
surveying the land. The 2nd and 3rd defendants claimed to have
inherited their land from their parents, that is the late Wilfred
Mdogo and Mohamed Msulwa respectively. It was pleaded further
that the 2nd defendant was the one who sold a portion to the 4th
defendant. On his part the 5th defendant pleaded that he came into
possession of the land after buying it from Adam Kumtoni, who

2
inherited it from his (ate father, on Mzee Matete. The defendants
requested the dismissal of the suit with costs for being devoid of
merits.

Together with the WSD, and based on the same set of facts,
the defendants filed a counter claim against the Plaintiff, SHEILA
ELANGWA SHAIDI (the plaintiff) and his brother HUSSEIN
ELANGWA SHAIDI. In the counterclaim the defendants, jointly
and severally, prayed for judgement and decree against the
defendants as follows: (a) a declamation that the defendants were
trespassers into the plaintiff farms; (b) nullification of CT No.
77990; (c) a declaration that the late Elangwa Shaidi only owned
40 acres at Sungwi village; (d) a declaration that the defendants
disobeyed a lawful order issued by the Kisarawe Ward Tribunal and
Sungwi Village Land Council; (e) a permanent injunction against
the defendants; (f) payment of Tshs. 50,000,000 for trespass; and
(g) costs of the suit.

The defendants to the counterclaim filed their joint written

statement of defence on 26th May, 2016, the effect of which was to
deny the allegations raised by the plaintiff and a prayer that the
counter claim be dismissed with costs.

On 31st May, 2018, at the Final Pre-Trial and Scheduling

Conference, the following issues were agreed by the parties and
framed by the Court for determination:

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 (1) . Among the parties, who is the
lawful owner of the suit property;
(2) . Who has trespassed into the suit
property;
(3) . What reliefs, if any, are the parties
entitled to

Throughout the hearing the plaintiff was represented by Mr.

Dickson Ngowi, learned advocate and the defendants' retained
the legal services of Mr. Hassan Ruhwanya, learned counsel.

The counsel for the Plaintiff led evidence through three (3)
witnesses who exhibited nine (9) exhibits in support of their
testimony. The list of exhibits tendered and admitted for the
plaintiff case included:

1. Exhibit P.l: Minutes of Sungwi Village

Council dated 15/12/1988;

2. Exhibit P.2: A letter with reference No.

KSW/2062/A/73 dated 04/11/2006 titled
"Survey of Farm at Sungwi Kisarawe
District";

3. Exhibit P.3: a certified copy of Certificate

of Title No. 77990; L.O No. 198957 for Farm
No. 3319 at Sungwi Kisarawe District;

4. Exhibit P.4: Two letters dated 07/10/2014

both from "Ofisiya Mtendaji Kata ya Masaki"
to the 1st, 2nd and 3rd defendants; and
another to the Plaintiff;

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 5. Exhibit P.5: A copy of a letter from District
Executive Director Kisarawe titled "Kufafua
Mipaka ya Shamba Na. 3319 Sungwi "dated
27/03/2015; and "Mkataba wa Kufufua
Mipaka Shamba Na. 3319 Sungwi Kisarawe"
dated 13/04/2015;

6. Exhibit P.6: A copy of a letter titled

"Maombi ya Kupimiwa na Kumiiikishwa
Ardhi Eneo Li/iko Kimba/aganje, Kijiji cna
Sungwi"dated 01st February, 2005;

7. Exhibit P.7: A copy of a letter titled

"NDUGU MGENI J. MGENI" from Kisarawe
District Council to the High Court Land
Division, dated 04th April, 2016;

8. Exhibit P.8: Land Form No. 35 for transfer

of a Right of Occupancy from Raymond
Elangwa Shaid; to Emmanuel Kija Kamba
and Kate Sylvia Kamba;

9. Exhibit P.9: A certified copy of Certificate

of Title No. 101448; L.O No. 198909, LD No.
251529 at Sungwi Kisarawe District;

The first to the stands was the plaintiff, SHEILA ELANGWA

SHAIDI, she testified as PW1. In her testimony in chief she said
that her late father owned a farm measuring approximately 400
acres located at Sungwi village in Kisarawe District in Coast region.
She added upon the demise of her father in 1984 the farm was
distributed to the heirs and she was allocated about 12 hectors
(approximately 28 acres). She added tnat after distribution of the

5
farm, his brother Raymond Elangwa Shaidi, on behalf of the family,
applied to Sungwi village for allocation of the respective farms. The
village council convened and allegedly allocated the farms to family
members including her. She tendered Exh P.l as confirmation of
the allocation.

Further to that, PW1, gave evidence that in 2015 she applied

to Kisarawe District for resurvey of the disputed land. Upon
application, the estimates for the survey were issued and an
arrangement was entered between the plaintiff and Land Officers
from Kisarawe Land Office to carry out the survey.

PW1 testified that, through Exh. P2. The District Council

informed her that a survey had being conducted and the result had

been forwarded at regional and the Ministerial level for approval.

Later in 2007 she was invited to collect her Certificate of Title at
the Ministry's office. She tendered the certificate of Title, Exh. P.3
as evidence for allocation of and ownership of the suit property.

The witness added that on being granted with the certificate,

she cleared the farm and stated cultivating cassava. She recounted
on or about 2010, some trespassers invaded her farm, alienated
some piece of land, started cultivating and built houses. She
identified the trespassers as the 1st, 2nd, 3rd, 4th and 5th
defendants. She reported the matter to the Sungwi village
Government. The village leaders invited parties to present their
ownership documents, she presented her title. The defendants did

6
not produce any document and as a result, the village government
allowed him to develop the farm. She tendered Exh. P4 as
evidence of the efforts made by the village government to resolve
the dispute.

PW1 went on to state that, the trespassers removed the

beacons fixed during the survey and as a result she had to apply
for resurvey of the farm for purposes of reinstatement of the
boundaries and of her application for resurvey and fixation of
boundaries. Subsequently the beacons were restored, however,
the defendants refused to vacate from the farm and hence she
resorted to the present suit.

The witness added that, she complied with all the procedures
required for allocation of a certificate of Title. Upon compliance
with the procedure she was issued a certificate of Title. PW1 added
that she has never alienated or sold any piece of the farm and
hence she remains the lawful owner of the same. She complained
that, as a result of the actions of the trespassers, she failed to
develop the farm for 9 years. She concluded with a prayer that she
be compensated for loss of use of the farm and costs of the suit
she also insisted that the Court makes a visit to the locus in quo.

In cross-examination PW1 said she inherited the 28 acres from

her father. She added that upon the demise of her father in 1984,
her mother was appointed as the administratix. As an administratix,
she distributed the farm to the Children. PW1 further stated that,

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the distribution of the farm to heirs was done in 1988, the point
when the family applied to the village Council for allocation of the
respective plots to family members. She added that, since her
mother was sick, her brother Hussein Elagwa, was the one who
applied to the village Council on behalf of other family members.
She also admitted that the Minutes did not indicate that Hussein
Elangwa was acting for the family.

In further cross - examination the witness admitted that only

Hussein Elangwa is mentioned in the minutes, but went on to say
that, the minutes appended a letter with the names of the Children.
However, she said that the alleged letter was not presented in
court. She also said that, Exh. Pl was minutes of "Serikali ya
Kijiji" and that she has not presented minutes of the Village
General Meeting.

In her further cross-examination she said that initially there

were three (3) trespassers; and that by the time the suit was
instituted they had reached five (5). She claimed to have reported
the matter to Sungwi village and then to the District Authorities.
When cross examined in relation to Exh. P5 "Mkataba wa
Kufufua Mipaka" she said the process was done to replant the
beacons which were uprooted by the trespassers. She added that
the resurvey was conducted in 2014 whilst the original survey was
carried in 2007.

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 In re-examination the witness stated that, Exh. P.l intended
the farm to be derided between the Children of Elagwa Shaidi. She
said the names of the children were enumerated in a letter
submitted to the district authorities she also said Mzee Chauka, who
participated in the surveys knew all the boundaries as he was
directed by their late father.

PW2, RAYMOND ELANGWA SHAIDI, also known as

Hussein Elangwa Shaidi and brother to the plaintiff, stated that the
defendants trespassed into his sister's farm around 2010 and 2011.
PW2 said the suit property was part of his father's farm, Mr.
Elangwa Shaidi, a former IGP, who owned an equivalent 400 acres
land which he acquired in 1958. In his further testimony, he said
that his father passed away in 1984 and his mother was appointed
as an administrator of the estate of his father. His mother
introduced him to the village leaders at Sungwi for purposes of
facilitating inheritance of the farm by the heirs of Elangwa Shaidi.

According to PW2, his parents were blessed with eleven (11)

children. He went on to say that the allocation of the estate of
Elangwa Shaidi was made to only five children, that is Sheila
Elangwa Shaidi, Elangwa Mcharo, Richard Elangwa Shaidi, Magreth
Elangwa Shaidi, and him. He said the remaining children were not
included in the division of the farm because they are residents of
the USA and in accordance with the law, foreigners are not allowed
to own land.

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 PW2 recounted that, in the process of formalization ner mother
introduced him to the "Serikali ya Kijiji" which prepared minutes
for allocation of land and forwarded them to the Kisarawe District
Land Office. On receipt of minutes, the Land Officer inspected the
farm and issued a permanent to survey the farm He then wrote a
letter for survey and allocation of the farm at Kimbalaganje, Sungwi
in K sarawe. He tendered a copy of the letter which was admitted
as Exh. P.6 with a note that its weight will be considered in
composition of Judgment.

The witness said, in the letter he applied for himself and follow
relatives as indicated in the letter. In accordance with PW2, upon
receipt of the application, the Land Officer, in company of village
leaders, his mother and one Charles Kilenga Chauka, inspected the
farm ano issued costs of survey Payments were made a survey
was conducted and five titles were accordingly issued.

Further to that, PW3 informed the Court that his father

employed several people in the farm including Mzee Charles Kilenga

Chuka. He alienated 50 acres of his land and gave it to Mzee
Chauka who was living with the 1st and 2nd defendants who were
his relative The two relatives came from "upareni" and continued
to trespass beyond Mzee Chauka's farm to the plaintiff's plot.

When referred to Exh. D.l, PW2 said the minutes were forged
as they had the stamp of the Chairperson instead of the Secretary.
He also added that minutes included the Secretary ano Treasury as

10
members of the village Council which is not the appropriate
procedure. He also pointed out that the minutes were not
submitted to the District Land Office. Further to that, he said,
pointed that the minutes dated 26/06/1985 included Mgeni Mgeni
as a representative of Kisarawe District Council whilst the said
Mgeni Mgeni arrived in Kisarawe in 2005 as a Ward Executive
Officer. He presented a letter from Kisarawe District Commissioners
Office to support the argument that the said Mgeni Mgeni was not
around by 1985. The letter was tentatively admitted and marked
as Exh. P.7 with a note that its admissibility and weight will be
discussed in the composition of the Judgment.

In addition to that, PW2 said they have never been summoned

to any Court. He also added that the suit property was properly
acquired upon compliance with the required conditions and
issuance of certificate of title by the Ministry. He said he sold his
land to Mr. Emmanuel Kija Kamba and Kata Kamba. He tendered a
copy Form No. 35 and Certificate Title No. 1014448 and the two
documents were admitted as Exh. P.8 and Exh. P. 9 respectively.
He said since the property was his, he had the right to sell it.
Further to that, he said the plaintiff was properly allocated with the
said farm and has been paying rent. He said they were not
trespassers and that it was the defendants who were trespassing
into the plaintiff's land. He prayed that an order of vacant
possession be issued against the defendants.

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 During cross-examination PW2 said he was the one who
notified the plaintiff about the trespassers. He said Sheila owned
the farm through inheriting from her father who bought it in 1958.

He said, he did not know how his father bought the land. He said,
it was their mother who distributed the farm as an administratix.
He admitted that he had never produced the letters of
administration as evidence.

In further cross examination, PW2 stated that, his other

relatives were not allocated plots because they lived in the USA and
hence could not own land in Tanzania. He also informed the Court
that his father's farm was distributed to five children and five titles
were issued. He concluded that the farm was lawfully allocated to
Sheila.

In re--examination he said that the suit property was bordered

by his farm. The late Chauka's farm, the farm belonging to Elangwa
Mcharo and Richard Elangwa. He also referred to Exh. P6 and said
he was the fifth applicant. As a result of the application five titles
were issued to him four of his siblings.

PW3, JUMANNE SAMSON MWAMPASHE, a Land Officer

from Kisarawe District Council. He outlined the procedure for
allocating of village. He said that for an individual to be allocated
land, one has to apply to the respective village or local government.
After discussion and allocation, the application is then forwarded to

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the District Land Offices. At the district level the application is
processed, and ownership documents are prepared.

PW3 testified that in accordance with the records available at

the District Land Officer, the plaintiff is the rightful owner of Farm
No. 3319 located at Sungwi village in Kisarawe. He said that in the
process of application for allocation of the said farm the plaintiff
was introduced by the village Council through its decision
envisaged in the minutes which were prepared and forwarded to
the District Land Office, and a copy of which was admitted as Exh.
Pl. The witness said that in accordance with procedure applicable
before 1999, when the Land Act, Cap. 113 R.E 2019 and
Village Land Act, Cap. 113 R.E 2019 (herein referred to as "the
1999 Acts") come into operation, CCM members were involved in
discussion for allocation of village land. The witness added that in
the minutes the meeting resolved that the said land had no
ownership dispute and thus should be allocated to the plaintiff.

He testified that according to the available records the plaintiff

was granted with a certificate of Title on 22/08/2007. He identified
Exh. P.3 as the title issued to the plaintiff upon completion of the
process of application. When he was referred to Exh. DI, PW3 said
the minutes did not relate to allocation of land because the agenda
of the meeting did not include allocation of land. He also said some
of the members, example the treasury, were not involved in land
allocation. In addition to that, he said the minutes included Mgeni
Mgeni who was not present at the time the meeting was conducted.

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Further to that he said it was wrong for the applicant. Abraham
Kilindo to be part of the meeting as ordinarily it was not a procedure
for the applicant to be present in a meeting discussing his
application.

He also added that the 1980 minutes were not stamped whilst
the 1985 minutes were signed by the Chairperson, which was not
the procedure applicable pre 1999. He also said that, even post
1999 the stamps applicable were not those of the chairperson. It
was his testimony that, before 1999, there was no requirement for
the allocation to be passed oy "Mkutano Mkuu wa Kijiji".

When he was referred to Exh. D.2, he said that the forms were
wrong as the Village Government was not responsible for
management of farms since in accordance with tne Land Act, farms
forms pa*l of General Land and not Village Land, hence they were
under the purview of the commissioner for land. He also said that,
none of the individuals written in the said forms was registered in
by the village as owners of farms in Sungwi village.

In his further testimony, PW3 said that it was not possible for
a survey to be conducted over an already surveyed farm. He said
that all records of surveyed farm are properly kept and any attempt
to resurvey or conduct another survey would be futiie. She
concluded that the plaintiff was the lawful owner of the suit
property having paid rent dues up to 2020.

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 During cross examination PW3, said that neighbors were
involved during the survey and fixing of poles. He added that
neighbors were required to fill survey form No. 92. He admitted
that the said form was not tendered in Court. He also said that the
minutes used to allocate land to the plaintiff were titled "Serika/i ya
Kijiji"as the law at the time recognized "Serika/i ya Kijiji"as the
authority for allocating iand.

In relation to the minutes, PW3 said the minutes considered

are those related to land allocation. He also said there is only one
meeting for allocation of each piece of land and added tnat a
meeting cannot allocated the same piece of land twice, not even to
a single person, imploring that his office considered the first
minutes. When asked on whether the issuance of tne title to the
plaintiff breached the 1999 Acts, PW3 said, although the title was
issued in 2007, the procedure applicable was pre - 1999 as the
process had started since 1988 He said the 1999 Acts did not stop
the process of allocation that land commenced before 1999. As for
the minutes he said that tne minutes should contain iand allocation
as a clear agenda.

His re-examination was brief, he said although there was no

standard formats, minutes should contain at least a title, date a iist
of attendances, discussion and Resolutions

On their part, the defence exhibited six (6) witness and

tendered five (5) exhibits. Of the five defendants, three testified

is
and called three more witnesses. The 3rd and 5th defendants did not
testify in court.

DW1, ABRAHAM KILENGA KILINDO testimony in chief

was that he was born in Hedaru, Same in Kilimanjaro region and

moved to Sungwi Village in 1972 in search of life. On his arrival he
found Mpanda Kirumbi who was also the chairperson of the village
at the time. His claim was that, he owned ten (10) acre of land at
Kimbalaganje, Sungwi Village, which was given to him during
Ujamaa villages in 1970. He said that during the time he was
handed over the said piece of land through a "Bega kwa Bega",
that is side by side land allocation. He added that there was no
document to prove that was indeed allocated the said land through
"Bega kwa Bega"

He recalled that, on being allocated the said land, he cleared

it and planted mango trees and cultivated food crops. He also built
a residential house. In his testimony in chief DW1 said his neighbors
were Elangwa Shaidi to the East Mohamed Salum Mauwa to the
North, Wilfred Mdogo to the West and Matete to the South. He
added that Elangwa Shaidi had never complained about his
presence.

DW1 testified that in 1985 he applied to the village

government to have his land surveyed so as he can secure a loan.
A meeting was convened, he was interviewed, and minutes were
prepared, the minutes of the said meeting which sat on 26/06/1985

16
were admitted as Exh. DI. DW1 said in further development of his
farm, he grew Cashewnut, mangoes, oranges and other crops.

It was DW1 further testimony that, in 2008 the plaintiff came

to elect poles in his 40 acres farm, to his surprise the poles
extended to his farm and those of others. The matter was reported
to the village land council. The plaintiff was summoned but refused
to appear. The village Land Council allegedly visited the locus in
quo and ordered DW1 to continue his occupation of the Land, he
tendered Exh. D2 to witness the decision of the land Council.
Subsequently, DW1 filed a suit at the Masaki Ward Tribunal, the
plaintiff was summoned, again he did not appear.

DW1 stated that in 2012 he was issued with a form to show

Land Ownership. He filled it and returned it to the village
government. The form showed the size of his farm and neighbors.
He prayed that he be declared the lawful owner of his plot and
insisted on being compensated for costs.

In cross-examination he said he was invited to the village by

his brother Wilfred Mdogo and admitted that on his arrival he found
Chauka Charles Kilenga both of whom were from Hedaru. He also
admitted that Elangwa Shaidi owned a farm at Sungwi Village and
said he did not acquire it from the "Bega kwa Bega" System. He
said he knew Hussein Elangwa Shaidi and said he had not
trespassed into his land. In his further cross-examination he
recalled that the dispute at the Village Council was against

17
 ----- q

"Familia ya Elangwa" and admitted that Exh. D2 did not mention

the plaintiff.

When cross-examined on the content of the WSD, the witness

said he was not aware of its contents as they were drafted in
English. Further to that he argued that, he had a village title but
admitted he had never produced it in Court. Further to that he
admitted that Exh. DI was not signed and stamped by secretary
and that before 1999 there was a requirement to involve a party
representative. In his re-amination, DW1 said that, at the Village
Council they sued the whole family of Elangwa because they were
many and all had invaded their farms.

DW2, PAULO WILFRED MDOGO, testified in Chief that, he

own a portion of land at Sungwi village after being given by his
father in 1983. He said between 1983 - 2015 he developed the
land undisturbed by cultivating cashew trees, mangoes and
oranges. He said that in 2015 the plaintiff invaded his plot and
started electing beacons. They reported the matter to the
Permanent Secretary Ministry of Land and Human Settlements. He
tendered Exh. D.3 a letter to the permanent Secretary. In his
further testimony, DW2 said in 2012 the Village Government
required him to fill out a form to register his land. He tendered a
"Fomu ya Usajili wa Shamba", Exh. D.4. DW2 concluded with
a prayer that the Court declares him lawful owner of his farm and
declaration that the plaintiff is a trespasser. He also pressed for
costs.

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 In cross examination DW2 said that in 2008 a leave way was
cleared between his farm and that of the plaintiff. He also said by
1983 he found the farm owned by Hussein Elangwa. He said he did
not inherit the farm but rather he was given by his father. In re­
examination DW2 said his farm was out of the plaintiff's farm and
wondered why he has been sued.

DW3, EMMANUEL JOSEPH LAKATI, the 4th defendant said

he owned two (2) acres of land at Kimbalanganje, Sungwi Village
in Kisarawe District. He said he bought his plot from the 2nd
defendant. To prove his argument, he tendered a copy of "Hati ya
Mauziano ya Shamba” which was tentatively admitted as Exh.
D5 subject to compliance with section 47 of the Stamp Duty Act,
Cap. 189, the requirement was subsequently complied with on
28/08/2020. In identifying his plot, DW3 said his plot was bordered
by Kisadeko to the East and South, and Ignas Laswai to the North.
He said his plot is not bordered by the plaintiff farm and that the
plot was not within the plaintiff farm. He also claimed that he was
not a trespasser and wanted to be compensated for costs.

During cross examination he said he is not aware where the

2nd defendant got his land but admitted that, it was the 2nd
defendant who sold the form to him. He said it was Ignas Laswai,
who bordered the plaintiff. He was not re-examined.

DW4, WILFRED MDOGO MMASA a father to the 2nd

defendant testified in chief that he was given a piece of land by the

19
"Serikali ya Kijiji" in 1983 and subsequently gave it to his son,
the 2nd defendant He said he knew Elagwa Shaidi and added that
the plaintiff farm is bordered by a farm belonging to the 1st
defendant. He added that his son was not a trespasser because his
farm is not bordered by the plaintiff farm. In cross examination tie
admitted that there was no document to show that he was given
the farm by "Serikali ya Kijiji" He also admitted on his arrival, he
found Elagwa Shaidi already there. He also admitted that Elangwa
Sha.di had cnildren, but he said he only knew Hussein Elagwa and
Richard Elangwa. In reexamination he saio when the "Serikali ya
Kijiji", gave him the farm, he was only shown his boundaries and
limits.

DW5, MAULID KHALFAN MADENGE, said he was a

member of the village Council between 1982 up to 1986. He
recounted that tne 2nd defendant was allocated a piece of land by
the village Council at K mbalaganje. He also said that Elangwa
Shaidi was also allocated a piece of land at Kimbalaganje. He said
the 2nd defendant had not trespassed into the plaintiff land
because each one of them had their own farms. He said he was a
member of the Village Council on account of a being a village
accountant

In cross examination he said his education was standard

seven, but he added he acquired knowledge of accounts from
Kisarawe Social Development College. He claimed he knew Eiangwa

20
Shaidi farm and recalled that other people were given farms
bordering it. He was not re-examined.

DW6, PHILIPO JOHN MTUMWINYI, his evidence was

brief. He recalled that his father, John Mtumwinyi, used to grand
Elangwa Shaidi's farm. He said the 2nd defendant was a neighbor
to the Elangwa Shaidi. He said he left the farm in 1993 upon the
demise of his father. He recalled that the 2nd defendants farm and
plaintiff farm were separated by a road. In cross examination he
said he has never seen Elangwa Shaidi and that ever since he left
he never knew what was happening on the farm. He was not re­
examined. This concluded hearing of evidence.

Upon deliberating on the evidence available on record and

hearing oral argument; and following prayers by the Plaintiff, PW1
and the 4th defendant, DW3, I noted it was important to conduct
an inspection to the locus in quo.

The rationale in calling for the inspection were to establish two

issues, which were disputed in evidence, but are significant to the
proper resolution of this matter. Firstly, whether the 2nd
defendant's farm was outside the plaintiff's land as demarcated
under the certificate of title. Secondly, whether the 4th defendant's
plot was outside the plaintiff's land. The two complaints were raised
during evidence with a suggestion that, through the suit, the
plaintiff intended to, unlawfully and unjustifiably, annex the 2nd and
4th defendants' farms.

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 The position of the law in our jurisdiction, in relation to site
visit is that, though there is no law compelling the Court to conduct
a visit at the locus in quo, such visit may be conducted at the
discretion of the Court depending on circumstances of each case.
This view was stated in Sikuzan Saidi Magambo & Another vs
Mohamed Roble (Civil Appeal No. 197 of 2018) [2019] TZCA 322;
(01 October 2019TANZLII)

"ZIs for the first issue, we need to start by

stating that, we are mindful of the fact that
there is no law which forcefully and mandatory
requires the court or tribunal to conduct a visit
at the locus in quo, as the same is done at
the discretion of the court or the tribunal
particularly when it is necessary to verify
evidence adduced by the parties during trial.
However, when the court or the tribunal
decides to conduct such a visit, there are
certain guidelines and procedures which
should be observed to ensure fair trial."
[Emphasis added]

However, when a site visit is conducted certain guidelines must

be complied with. The said procedures and guidelines were laid
down in Nizar M.H. v. Guianiali Faza Jan Mohamed [1980J TLR
29, where the Court, inter aiia stated that: -

"When a visit to a locus in quo is necessary or

appropriate, and as we have said, this should
only be necessary in exceptional cases, the
court should attend with the parties and
their advocates, if any, and with much each
witnesses as may have to testify in that

22
 particular matter... When the court re­
assembles in the court room, all such
notes should be readout to the parties
and their advocates, and comments,
amendments, or objections called for
and if necessary incorporated Witnesses
then have to give evidence of all those
facts, if they are relevant, and the court only
refers to the notes in order to understand, or
relate to the evidence if) court given by
witnesses. We trust that this procedure will be
adopted by the courts in future [Emphasis
added]."

Perhdps the most elaborate procedure is to be found in a

rather persuasive autnority in the decision of Owole vs. Owole &
2 Others (CIVIL APPEAL No. 0040 OF 2014) |2017] UGHCLD 1 (10
January 2017:ULII); where the High Court of Uganda identified the
applicable law in the Republic of Uganda. It held:

The procedures to be followed upon the trial

court's visit to a locus in quo have further been
outlined in Practice Direction No. 1 of2007, para
3, as follows; -
1 Ensure that all the parties, their
witnesses, and advocates (if any)
are present.
2 Allow the parties and their
witnesses to adduce evidence at
the locus in quo.
3 Allow cross-examination by either
party, or his/her counsel.
4 Record all the proceedings at the
locus in quo.

23
 5 Record any observation, view,
opinion or conclusion of the
court, including drawing a sketch
plan, if necessary."

Mindful of the above position of law and guidance, on the 04th

November, 2020, with the assistance of the parties, their advocates
and witnesses, a visit to the locus in quo was conducted. At the
site, PW2, DW1 and DW4, assisted with the identification of the
beacons affixed in the plaintiff's farm. The identification of the
beacons was guided by the Registered Survey Plan No. 45400
appended to the Certificate of Title, Exh. P.3. DW1 took us to his
compound and identified his farm. A similar exercise was carried
out by the 2nd and 4th defendants.

The evidence collected during the inspection also showed that

the entire areas claimed by the 2nd and 4th defendants were outside
of Exh. P.3. Specifically, the following observations were made:

(a) That, the farm belonging to the 4th defendant

drifted westwards of beacons marked by
points ZBF896 and ZBF888, and therefore
outside the plaintiff's farm which was drifting
northwards from the identified points;

(b) That, the 2nd defendants plot was also

outside the plaintiff's farm, running westward
and northward from beacons marked by
points ZBF891, ZBF894 through to ZBF887. It

24
 was also evidenced by a leave way which was
still in existence, separating the plaintiff's
farm to the east and DW2 to the west;

(c) Part of the area claimed by DW1, the 1st

defendant was located within the plaintiff's
farm demarcated under the Certificate of
Title, Exh. P.3. According to DW1 testimony,
of the 10 acres he owned, seven (7) acres
were within the plaintiff's allegedly title (Exh.
P.3), and three (3) were outside the plot. It
was also evident that DW1 lived within the
plaintiff's farm;

(d) The disputed land and the farms claimed by

the defendants did not form part of the land
allocated to PW2 (the 2nd defendant to the
counter claim); and

(e) Further to that, evidence at the inspection

revealed that almost the entire farms
belonging to the 3rd and 5th defendants were

within the plaintiff's farm. Both the 3rd and 5th

defendants did not testify in Court.

Having in mind the above extrapolation of facts and evidence,

I will now address my mind to the determination of the issues as
agreed by the parties. However, before delving into the

25
determination of the issues, I think it would be prudent at this stage
to consider tne admissibility of Exhibits P.6 and P.7 which were
tendered by PW2 and tentatively admitted during trial. The practice
to tentatively is not a new innovation. It has adopted by this Court
in situations requiring acceleration of trials. See M/S East West
(1991) Investment Company Limited vs. Kappesh Sangar
& Others (Land Case No. 54 of 2015) [2018] TZHC 136; (29 July
2018).

In his testimony, PW2 sought to tender Exh. P6, a copy of the

of the application letter dated 01st February, 2005 directed to Land
Office Kisarawe District, requesting for processing of titles over tne
suit property. Following the prayer, Mr. Ruhanywa, learned counsel
for the defendants objected to the tendering of the same on the
ground that the document was secondary evidence and no notice
had been issued in terms of section 68 of the Evidence Act, Cap.
6 R.E. 2019. Mr. Ngowi, counsel for the plaintiff insisted that the
document was an original copy and should be admitted. I will not
be detained much on tnis issue, I think, Mr. Ruhanywa's objection
is meritorious. It is very clear that, on the face of it, the document
is a photocopy, and no notice was issued in terms of section 68 of
Cap. 6. Mr. Ngowi understands that, where a party intends to rely
on secondary evidence a notice must be issued in terms of section
68. Being aware of that requirement, on 03rd October, 2019 the
counsel filed a notice to produce and to rely on secondary evidence
in relation to Exh. P 3, a certificate of title over the suit property. If

26
the counsel really intended to rely on the said exhibit, he should
have complied with the requirements of the law, or at least
demonstrated that the requirement for issuance of the notice in
relation to the document is excluded under section 68 of Cap. 6. In
that respect the document is not admissible and shall not be given
consideration in determination of the present matter.

I will next consider the admissibility of exhibit P.7, a copy of

the letter from Kisarawe District Council to this Court on the where
abouts of Mgeni J. Mgeni, a former employee of the Council. It is
on record that, when PW2 sought to tender the letter, Mr.
Ruhanywa objected to the tendering on the ground that the witness
was not a competent person to tender the document. Admittedly,
the letter purports to be directed to the High Court Land Division,
however, no record or background on the letter or order requesting
the explanations from Kisarawe District Council was presented
before the Court. Further to that, it appears that, the letter was
addressed to the Court and no copy was addressed to PW2. It
therefore clear that, the witness (PW2) was not the author or
addressee of the said letter and neither did he establish in evidence

the circumstances in which he came into possession of the

document. He was, therefore, not a qualified person to tender the
document. On that account, the objection raised by Mr. Ruhanywa
is sustained and Exh. P.7 is expunged from the records.

In the first issue I am being asked to determine the question,

as between the parties, who is the lawful owner of the suit

27
property- It is the trite law that in land matters where the land in
dispute is a registered land the prima fade evidence to prove
ownership is the title deed and the person vested with the duty to
prove ownership is the registered owner. Under section 2 of the
Land Registration Act, Cap. 334 R.E. 2019 the term "owner":
"Means, in relation to any estate or interests the person for the
time oeing m whose name that estate or interest is registered".

It is also trite that, the onus of proving that the land in dispute
is a registered land is imposed on tne plaintiff. This position was
stated in Godfrey Sayi vs Anna Siame as Legal
Representative of the Late Mary Mndofwa, Civil Appeal No.
114 of 2014 (CAT) (unreported) and Salum Mateyo vs.
Mohamed Mateyo [1987] T.L.R 111. In Godfrey Sayi vs Anna
Siame (supra) the Court of Appeal Stated:

"It is cherished principle of law that, generally,

in civil cases, the burden of proof lies on
the party who alleges anything in his
favour. We are fortified in our view by the
provision of section 110 and ill of the Law of
Evidence Act [Cap. 6 R.E. 2002] which among
other things states:

110. Whoever desire any court to

give judgment as to any legal
right or liability depend on
existence of facts which he
asserts must prove that those
facts exist

28
 111. The burden of proof in a suit lies
on that person who would fail
if no evidence at all were given
on either side."

Through the plaint and counterclaim, it is clear that, the

Plaintiff and defendants have competing interests on the suit land,
>n that respect the person with a certificate of title will therefore be
considered to be the lawful owner of the said property unless it is
established in evidence that the said certificate was not acquired
lawfully. This position was stated n Amina Maulid Ambali &
Others vs Ramadhani Juma (Civil Appeal No.35 of 2019) [2020]
TZCA 19; (25 February 2020) where the Court of Appeal, Mwarija
J .A stated that:

"In our considered view, when two persons

have competing interests tn a landed property,
the person with a certificate thereof will
always be taken to be a lawful owner unless it
is proved that the certificate was not lawfully
obtained."

Further to that in Leopold Mutembei vs. Principal

Assistant Registrar of Titles, Ministry of Lands, Housing &
Urban Development and the Attorney General, (Civil Appeal
No.57 of 2017) [2018] TZCA 213; (11 October 2018) the Court of
Appeal, Ndika J.A, cited with approval the following excerpt from
the book titled Conveyancing and Disposition of Land in
Tanzania by Dr. R.W. Tenga and Dr. SJ. Mramba, Law Africa,
Dar es Salaam, 2017 at page 330: -

29
 "... tne registration under a tana titles system
is more than the mere entry in a public
register; it is authentication of the ownership
of, or a legal interest in, a parcel of land. The
act of registration confirms transaction that
confer, affect or terminate that ownership or
interest. Once the registration process is
completed, no search behind the register is
needed to establish a chain of titles to the
property, for the register itself is conclusive
proof of the title. "[Emphasis supplied]

In the present case, through the testimony of PW1, PW2 and

PW3, the plaintiff explained a chronology of events leading up to
the issuance of the certificate of title. PW1 and PW2 testified that
the suit property was part of their fathers' estate which was
distributed the heirs upon his demise. It was their testimony that,
the suit property was allocated to the plaintiff. Through Exh. P.l
the Sungwi village council allocated the farm to the plaintiff, and
other plots to his siblings. After the allocation, an application for
survey and allocation was made to the Kisarawe District Council for
survey and allocation of the suit property. A survey was conducted
and upon its completion the applicant, PW1, was notified by a letter
dated 04th November, 2006 (Exh. P.2). The survey was forwarded
to the Ministry of Land for processing the titles. On 18th August,
2007, the title Exh. P.3, was issued to the plaintiff. The plaintiff's
testimony on how she acquired her title was not shaken in
evidence.

30
 In view of the above analysis, I am satisfied that the plaintiff
has been able to adduce the chronology of ownership of the
disputed land and confirmed that the registration of her title was
faultless and hence she was the lawful owner. I say so because the
plaintiff has been able to establish, in evidence the state of
ownership over the disputed land by presenting Exh. P.3, the
certificate of title. See Leopold Mutembei (supra) at page 17.
The plaintiff did not stop there, she went to provide evidence of the
underlaying transaction and process that conferred her title to the
suit land.

In his defence, the 1st defendant (DW1) testified that his plot
was allocated to him in 1985 by the village council. He said the farm
was equivalent to 10 acres. To support his claim, he tendered Exh.
D.l, a copy of minutes of the village council allocating him the suit
land. Upon being allocated, he continued to enjoy possession until
the intrusion by the plaintiff which resulted in filing a complaint with
the village council. He tendered Exh. D.2, a copy of the decision
of the village council. DW1 relied on Exh. D.l and D.2 to insist that
he was a lawful owner of the portion of the suit land.

Upon review of Exh. D.l, I have noted several issues. One,

the minutes do not indicate that they were issued by the Sungwi
Village Council because there is no title indicating the respective
village to which they apply. Second/ throughout the minutes it is
not clear on the location or description of the land being discussed
of being allocated, as such it is not clear whether the minutes

31
applied to the suit land. Third, the minutes were not signed by the
secretary to the meeting who is the author. As such it could not be
affirmed with certainty on the authenticity of tne minutes. Four, a
closer look of the minute shows that DvVl, the applicant, was also
part of the meeting. This is contrary to an ordinary practice where
the applicant is not part or a member of a meeting tnat discusses
his application. This raises aoubts on the validity of the meeting.
Five, DW1 admitted that, during the period when the minutes
were prepared it was necessary to have a party representative in
the council. He also admitted that Exh. D.l did not include the name
of paity representative. In absence of a party representative in the
list of attendees the validity of the minutes becomes questionable
Six, the said minutes remained with DW1 for all the years, and he
did not suomit them to the District Land Authorities to process the
title. In essence, the minutes are meant to be forwarded to the
district for records and processing titles. Considering the above
shortcomings, I am not convinced that this Court can rely on Exh
D.l co establish DW1 ownership over his portion of the suit
property.

I have also carefully examined the contents of Exh. D.2, the

decision of the Village Land Council, dated 14th January, 2009, that
purportedly confirmed DW1 ownership over the suit land. There are
also several issues in placing reliance on the document. In the first
place, the decision was issued in 2009, by that time the plaintiff
had already been issued with a certificate of title over the suit

32
property- With a certificate of title in place, the jurisdiction of the
village land council over the size and value of the of the suit
property becomes questionable. That was, in itself, sufficient to
disregard the document.

However, that is not the only shortcoming. It is in evidence

that the complaint before the village council appears to be against
the family of Elangwa Shaidi that is "Familia ya Elangwa" and it was
brought by DW1 together with other people families. It is not clear
whether the subject matter in the said complaint is analogous to
the one in the present suit, further to that, it is not even certain
what were the complaints for each of the complainant and what
exactly was awarded to them. There was also no proof that the
respondents in the said complain were summoned to defend

themselves. Even so, the decision of the village council is not final,
in terms of section 5, 6, 7 and 8 of the Land Disputes Court Act,
Cap. 216 R.E. 2019, the role of the village council is to mediate
the parties and an aggrieved party may prefer a suit to an
appropriate forum based on the value and location of the subject
matter. In the end, I do not think, Exh. D.2 is of any rescue to
DW1.

During site visit it was observed that part of DW1 farm, an

estimated 7 acres were within the plaintiff's farm and three (3)
acres were outside the plaintiff land demarcated under the
approved site plan attached to the certificate of title (Exh. P.3). On
the basis of the above findings, without hesitant, I declare the

33
plaintiff to be the lawful owner of the suit property, occupied by
DW1, found within the demarcated area by coordinates marked in
the approved site plan attached to Exh. P.3. The uncontested area
outside Exh. P.3 is the property of DW1.

DW4 testified in chief that 1983 he was allocated a piece of

land by the Sungwi Village Government. In the same year he
apportioned a piece of his farm to his son Paulo Wilfred Mdogo
(DW2), the 2nd defendant. In his testimony DW2 testified that, in
2008 he sold a portion of his farm to Emmanuel Lakati herein
referred to as DW3 or 4th defendant. DW3 tendered a copy of the
sale agreement (Exh. D.5) he executed with DW2 over his portion
of land. As observed during site visit, the farms or portions of land
belonging to the 2nd and 4th defendants were located outside the
demarcations and beacons marked in the approved survey plan
attached to Exh. P.3. On the weight of evidence presented before
the court, I am satisfied that the farms belonging to the DW2 and
DW4 are outside the plaintiff's farm to the extent that they are
outside the approved survey plan. The plots are thus the properties
of 2nd and 4th defendants respectively.

As intimated above, the areas claimed by the 3rd and 5th

defendants were located within the survey plan attached to Exh.
P.3. Both, 3rd and 5th defendants did not appear in court to explain
their claim of right or ownership over the suit land, in the
circumstances the court was not presented with any material to
gauge their defence. The only plausible explanation of their

34
absence in court was lack of legal claim over the property. Given
that their areas are located with the plaintiff's land, I have no
alternative than declaring the plaintiff a lawful owner over the
respective areas.

In their counter claim filed together tne WSD the defendants

prayed for nullification of CT No. 77990. However, having ruled that
the plaintiff has been able to prove that she is the lawful owner of
the suit, I am unmoved by tne defendant's contention that the
plaintiff's title was fraudulently obtained. Further to that I am of
the view that, if tne defendants really intended to challenge the
lawfulness of CT No. 77990 they should have joined tne relevant
authority which was responsible for registration of the plot in the
name of the plaintiff. See Amina Mauhd Am ba I i (supra),

All said and done, tnis court is satisfied that, in comparison

with the defendant's evidence, the plaintiff's account of her
ownership of the suit land is more cogent. I find the first issue in
favour of the plaintiff to the extent explained above.

The second issued is who has trespassed into the suit

property. The question stems from the fact that the plaintiff alleged
that the defendants have trespassed into ner land. Similarly, in tneir
counter claim the defendants sought for a declaratory order that
the plaintiff and PW2, her co-defendant to the counterclaim, were
trespassers and hence they are liable for payment of Tshs.
50,000,000

35
 In Jela Kalinga vs. Omari Karumwana ( ) [1991] TZCA 7;
39 May 1991 TANZLII) the Court of Appeal stated that:

"The foundation of an action for trespass

to land is possession. It was decided in
Delaney v T. P. Smith Ltd. [1946] 2 AH E.R 23
that to maintain trespass against a wrongdoer it
is not necessary that the plaintiff's possession
should be lawful."
"The case of Thompson / Ward
[1953] 1 AH E.R 1169 supports the
proposition that anyone who was in
possession or who is deemed to have
been in possession at the time of the
trespass could bring an action for
trespass. ... However, one of the
defences against an action for
trespass is a claim by the defendant
that he had a right to the possession
of the land at the time of the alleged
trespass or that he acted under the
authority of some person having
such a right (Halsbury's Law
England 3rd. Ed. Vol. 38 at page
749 paragraph 1226)." [Emphasis
added]

After examining the circumstances under which a claim of

trespass may be maintained, the Court went on provide a general
meaning of trespass. Specifically, the Court stated:

"... a person is liable for trespass if he acts

voluntarily knowing the nature and the quality of
his act even though he does not know the act to
be wrongful (See Moriss v Marsden and
Another [1952] 1 AH ER. 925)."

36
 Further to that in Frank Safara Mchuna vs. Shaibu Ally
Shemdolwa [1998] T.L.R No. 279 this Court defined "trespass to
mean:

"Intrusion upon land in the possession of

another and the Defendant did intrude upon the
land of the Plaintiff who under common law was
in possession of the land. At common law there
is a presumption that possession is always
attendant to title and as the Plaintiff had title to
the land it is presumed that he was in
possession."

The Court went on to say that:

"The Defendant moved into the land and started

development thereon after the accrual of the
right of the Plaintiff over the land."

In the present case it was alleged that the defendants

trespassed into the plaintiff farm in 2010. By this date the plaintiff
had been issued with the Certificate of Title over the suit property.
During evidence in court, which was confirmed during site visit, the
1st defendant farm was partly within the plaintiff's property.
Similarly, it is in evidence that the 3rd and 5th defendants farm were
completely withing the plaintiff's property, it was also evident that
the respective defendants have cultivated crops within the
plaintiff's farm. Consequently, in terms of the guiding principles in
Jela Kalinga vs. Omari Karumwana (supra) and Frank Safara
Mchuna vs. Shaibu Ally Shemdolwa (supra) and considering
the above set facts, I find that Sheila Elangwa had possession of

37
the suit land and the 1st, 4th and 5th defendants are trespassers into
the plaintiff's farm.

On a similar note, I am convinced that the 2nd and 4th

defendants are not trespassers over the suit land. Their portion of
land had all along been in their possession and has never been in
the plaintiff's possession. The 2nd and 4th defendants also proved to
the satisfaction of the Court that the plaintiff invaded their farms
and destroyed some crops. Their evidence was not shaken at any
point. On the basis of that evidence, I am prepared to hold that the
plaintiff trespassed into the 2nd and 4th defendants' farms.

For that matter, the counter claim by the defendants partly

succeeds to the extent that the 2nd and 4th defendants are declared
to be lawful owners of their respective pieces of land. Otherwise,
the remaining claims in the counter claim are dismissed.

The final issue is to what reliefs are the parties entitled to. The
plaintiff prayed for general damages; they did state a specific
amount. In her testimony, PW1, stated prayed for compensation
for being disallowed to develop her farm for 9 years by the
defendant's occupation. She also prayed for compensation resulting
from the defendant's trespass. Through their counterclaim,
defendants prayed for Tshs. 50,000,000.00 compensation for
trespass. It was not established in evidence how the defendants
arrived at the above-mentioned amount. In their testimony and
evidence, the 2nd and 4th defendants complained that the plaintiff

38
destroyed their crops. However, the cost and extent of destruction
was not well established in evidence.

The law is clear that, this Court has discretion in awarding

compensation or damages. In exercise of this discretion the court
is enjoined to consider all the relevant factors and circumstances of
each case. This view was stated in Cooper Motor Corporation
Limited vs Moshi Arusha Occupational Health Services
(1990) TLR 96- I am aware that trespass is actionable per se. I
have considered the testimony presented during trial and the
duration of intrusion made by tne respective trespassers in the
present suit. I have aiso considered tne observations made during
site visit as to the extent of cultivation made on the plaintiff's farm.
It apparent that the plaintiff as well as the 2nd and 4th defendants
have incurred some losses from the respective alleged invasion of
their respective farms. Certainly, there are some forms of loss
incurred because of the alleged trespass by the 1st, 3rd, and 5th
defendants, as well as Dy the plaintiff, onto the 2nd and 4th
defendants' farm. In the circumstances, I ward the plaintiff a
minimal amount of Tshs. 10,000,000.00 in compensation as against
the 1st, 3rd, and 5th defendants. In similar vein, the 2nd and 4th
defendants are awarded a compensation to the tune of Tshs.
4,000,000.00.

In the final analysis, and for the reasons which I have

endeavored to state above, I make tne following orders:

39
(a) Tnat, the plaintiff is declared a lawful owner of
a piece of land I identified under Certificate of
Title No, 77990; L 0 No. 198957 for Farm No.
3319 located at Sungwi Kisarawe District;

(b) That, the 1st, 3rd and 5th defendants are

declared as a trespasser to the land belonging
to the plaintiff;

(c) Consequently, the 1st, 3'd and 5th defendants

is ordered to yield up vacant possession of the
farm forming part of the suit property to the
plaintiff;

(d) That, the 1st defendant is also ordered to

demolish all structures elected in the plaintiff's
property;

(e) That claims of trespass against tne 2nd and 4th

defendants have not been proved;

(f) Consequently, the 2nd ano 4th defendants are

declared as lawful owners of tneir respective
farms; and

(g) The 1st, 3rd and 5th defendants shall pay the
plaintiff compensation to the tune of Tshs.
10,000,000.00; and

40
 (h) The plaintiff shall pay the 2nd and 4th
defendants compensation to the tune of Tshs.
4,000,000.00.

In relation to costs, since the plaintiff succeeded in proving

the case against the 1st, 3rd, and 5th defendants, I award her half
of the costs as against the 1st, 3rd, and 5th defendants. In relation
to the Counterclaim, the 2nd and 4th defendants are also awarded
half of the costs.

It is so ordered.

DATED at DAR ES SALAAM this 30th day of APRIL,

2021.

41