Muhonzu Dotto vs Shadrack Sagalani and Others (PC Civil Appeal No. 125 of 1994) [2000] TZHC 45 (14 November 2000)

IN THE HIGH COURT OF TANZANIA AT MWANZA PC CIVIL APPEAL NO. 125 OF 1994 (hem Sengerema District Court Civil Appeal Noo?0./94 Original Urban Primary Ct Sengerema Civil Case No. 71/93) MUHONZU DOTTO 0 • 0. 0 • " . .. APPELLANT Versus SHADRACK SAGALANI A!\TO 7 OTIIBRS •• . ., • • • • • 0 RESPONDENT JUDGMENT NCHALIA, J. This iA a second appeal in a suit which aroe in the trial urban primary court at lengerema in which the preent appellant one Mhonzu Doto sued the respondents jointly for poses.sion and owner-ship of a shamba measuring 28 acres situated in Sengerema District anci which is held under cur::tomary law•. Thi.e. being a second appeal -in, a case in which the two lower courts gave concurrent deci-. sions, this appellate court will confine its decision on points of law only, as all matters of fact have been considered and decided upon by the tw.o lower courts. I heard the appeal in the presence of the parties except the 2nd respondent one Shadrack Sagalani who is rep1rted dead, he died sometime before the date of hearing~ · Ho1.-,ever, at the hearine; of this appeal, deceased 1 s 2nd respondent's youngbrotber one Daudi Sagalani repres.ented him. At ~viy rate under section 4 MCA, 8l this court has jurisdiction to hear and determine an appeal in the absence of a party where his attendance can."1.ot be secured without unreasonable delayo The appellant appeared in person at the hearing of this appeal but had nothi..vig to add to hi2 grounds of appeal. He jw.t reiterated that the suitland was clan-land, so he had a right to

• • 2 reclaim it from the respondl:lnts. • •-1•.:•. :-:•::•••• I •. ;• •••• \•. •.:• •. ,.:, seven in number, appeared personally, :'but informe(i the coUJ;t that· ;·_' ."',J .·:,1 .·- .. .. .. they had nothing to state on appearbfore .this court. . rr.-: .):i Th~- told the court to proceed_ determin:yig the apP,al on the basie of. ,. , .-·· ';_ • :-:V•.<::'.:. ·•. . ' the available· evidence and on t:he .law relevant to; the determination •,:·· ·. . ·. . ... j ; of the dispute• I have thoroughly consider,e~ the_ ppllant.'.s grounds of appeal. His main contention is that the su_i:!;land __ originally belonged to hiS ·.. . '. . ' . '• grandfather who passed it over to appe:llaJJ.t's father • . ·:1:· .... i; Appellant's father used that shamba for sometime: but.then shifted to another village far from the shamba. The app~_llant· states. that the shamba •' • • -. : I _. .. ; , ; • - , '. • was later bequeathed to him jointly_ with his sister.·. Ho1r1ever; . ··, :•,·- -. . sometime in the seveies t- ppellaqt went ._to, Kenya to sehool and • ,• • I • ' • '. •• : returned in 1991 and found the respondents cultivating the s.J:ia-mba .. r in question. The appellant asked the esponde.nts,.:tio:vacate·to him the said shamba, alternatively;··give )h~~'..~,;-ortion of the shamba to .: ... ·. ' ',t : -::: ;. • .! ': •. ,', .•• cultivate but they refused. Theμ __ i 1 .199?)1e decided to sue the respo- ndents for tht:· recovery of possession.:or· the suitlarid but he lost in the trial primary c,,urt o He appealed to>'tne·\J5fstrict Court but once again lost, hence this appeal, ··: .,,. On the basis of the available evide.ncet,• I ,am .of; the· conide,;:e.d ·/·• ,:,. ·"'•:view that this appeal ought to have _:l)en :summarily r_ejecte·d 'vJith costs. I have the following reasonr-; :to support my finding. · Firtt . • 1 ' • :: • ' . • •. . • • · • .., the. respt.ncl.ents e-ntered'·on th ,suitland ·without any fore~ _or intrigue, They·ezitered that laricCcitietly but wi;th \ihe-n_o,:,19:~~ oj the,.appe- . • ,., ) : .:-:.1 ..• - .' .· . . . , ·. . •. : . . . . .-.,: '. l . . . llnt•· parents w1. had bandoned. that land.,,:::Late!'. -in 1974 ·that land :-: :.,i.·:··: •,,": :·:, .. :i': ··:.· :·, . • ; . was taken over by the village Council when the respondents and other fellow villagers were re~~t.tled -~ · 0°tl:l.r ;v;illag;es during operation . . . . ,·I.-: ,,. ' I Vijijio However, the respondents'·later applied to the Village Authority for allocation to them of the suitland"ancf indeed they were al;19at~d.- . of that land• This was in 1976. . · ..... •. Since then the respondents ~ave been /

. . . ) ..

3 . .:, in posse$sion •f the'suitlandc That is a period of 24years ago. So, as a second reason the appellant' s1;suit which he. filed in 1993 ' ·I. ' : • • ~ ~ • ; J :. • to· rec•ver possession and o':'mership of ,,th~ .suitland'\1i:is t_imebarred as over .12 y_ears lirhi,tation period had elapsed.· Thirdly, -t;h.e respo~ · ' .. ;.'.· ndents were allocgted:· t_he land in· isei.ie by the Villige·:•Council which -·, i.; I .. . . . .. ·. :-=, ·, was ,a.nd.,.,s_till is the general owner or trustee of that/land. Since· the suit1and fell under the qontrol of the Village Authority uncl.er opra.;;.: :, . tion Vtjiji in 1974, the said land was by operation of ;Law remove'd ·· .. 1 from the status'of clan,land, and the appellant could not and cannot re.l,¥1,im that land under the title of c,lc1.nland. In the circum2tancee I find this appeal lacking merit and substance, I dism:i,ss it entirely .• ·.'.!" .· with costs here and ,in. the two courts below. The concurrent dei'."iona i ;·:, ·., _( .f., ·. ''l f'lf. the two lower courtk are tiell fouhdec:1 I ai'-fit=m them.. Order ccordingly. Appeal dis•missd. _ [(',, j'·- .. /··.. T · , , . . ·. w.»:kHV:CA , MoD~ N'CHALμ JUDGE .. •. 12/11/2000 14/11/2000 c,,ram .: M oD o Nchalla, J • , .Appellant .:. :A:bsent with notice .Respondents - present in person C .c. Restituta Court: Judgment d.elivered in open cour,t at Mwanza in the presence of the respondents only, and ir the absenceof the appellant who h;as d~faulted' his appearance 11,ri th· d,ue not ice. This the 11+.th day of November, - 2000. Right of· ap_peal explained • T i1WANZA '14/11/2000 ... - .. , ··l ,i I"//. / .. /;>: : i ff {i.' .,, .if ' ,··yJJ' ! ' I ! ~ •i J,v V't,,. i,:r . J/) 1/l,/v{ / ,., L..-1-. ~1 M .D •. NCR.I\LLA. . JUDGE ·_.' '. . (.""\ ,:--