Mathew Kiwayo vs Yusuf Mzimba (Misc. Civil Appeal No. 73 of 1999) [2000] TZHC 59 (23 October 2000)

IN THE HIGH COUTIT OF TANZANIA AT DAR ES SALAAM MISC. CIVIL APPEAL NO,. 73 OF 1999 i MATHE-/ KI:Ji'..YO ooooooOoootiOooo•oooooo•eo VERSUS YUSUF' MZIMBA 0•0000000000000000000000• JUDGMENT APPELLANT RESPOJ:IDEN'l' This is an appeal by Mathew Kiwayo against the decision of the Bagamoyo district court which allowed the appeal by the respondent, one Yusuph Mzimbao Before I proceed with the judgment, I should first state the faits and nature of the case, as to what is the dispute about. The dispute is over a piec·e of land situated at a place called Chalinze, in Bagc:imoyo district, alone; a highway. The fact of the case is that along the highway; there is a road ·reserve area which belongs to nobody. It is reserved for the purpose of any adjustment of the roado However¼ the people have found it proper to make use of that area and the village authority had been allocating some pieces of plots along the road side for business purposes. The appellant said that one person by the name of Charles Mwanjala had sold him a piece of land way l bai thin 1985 for a consideration of shs. 10 ,OOO/=~ The sale is said to have been \·1itnessed by village authority. The said piece of land sold to the_ appellant had a hut like structure known as :anda:t a where the appellant \ia selling roasted meat. The appellant didn 1 t know how the said Charles acquirnd that piece of land he bought 2.nd Charles hiself was not cc.lled by the appellant to testify in the court as to how he d the piece of land which he sold. The respondent told the court ·that ·:-1. had been allocated that piece -! land by the village authority in Scptcmoer, 1994 ori a olc.1t:--, nnned:a.;.l•: .;_. nding .• ••••·• ••oo•2••

2 that he should not erect any permanent structure there as the place is kept as a road reserve.. So he starte·d building his 'l 1 .1t or temporary structure for the purpose he wanted, that is to say small business. The said hut like structure was ere.ted infront of that one owned by the appellant· and then that is why the appellant sued the respondent and needed an order for demolition. The fF. C ·,s which are corrc,t CG:'0 tl1ctt- :;.1eith;;J:: Ghttii'ec n::-f :\in.y :_-other person has a riesht of ownership of that land reserved for the ~oetd..l. What one can own is any developments e~~~~ on the piece of land, which is subject to demotlition without compensation when the need by the authority responsible with the ro'ad would need the place. Therefore then, Charles M,·1anj ala, had only the right to sell his :;Kibanda;• and not the sorounding areas as he never owned it. It was public land d every ne at Chalinzo knows Sbo Unfortunately, Charles Mwanjc.la did not go to the court to testify whether he sold both his hut (kibanda) and the sorrounding areas he did not possess or sold only his kibanda::. Failure by Charles Mwanjala to go to court and testify·is fatal to tho appellants case. The evidence by the appell2.nt t:,ot · Charles M'mnjnla was given the plot by the Chairman of the building committee is nothing but hearsay as the appellant was not prose.nt. It is only Charles Mwanjala who could tell tho court as to who had allocated that piece of la."1.c' to him In his typed judgment, the Primary court magistrate at page 3 said that after consultation with the two assessors present, the two assessors ruled that th< piece of land in dispute belonged to the respondent/defendant at the Primctry court. The opinion of the assessors read in Kiswahili nrc that. 11 Baa.da ya kushauriana na washauri wote wawili '.va.i.iona eneo hilo ni la mdaiwa, kwa vile sehemu hiyo ni ya barabara haihusiki na mtu yeye kuw.::.a rndaiwa alipewa kwa kikao k.\va muda. Usbahidi wa md.ai unashangaza kwa vile Charles hal<uja kutoa ushahidi, cinamini ushaidi wa -Jale mashaicli wake. Si kweli kuW'a amembana. i:

, ... · Besides that uncXmimous opnmion of the two assessors, the trial Primary Court Magistrate entered judgment for the plainti_ff/appellan'I?'• That judgment was revers0d by the district magistrnte, though_ for other reasons..; Just at th this moment, I would like to say that the trial primary court M::;istrate was ·: wrong to / enter judgment for the pla.intiff/nppellnnt as he was bound by the majority opinion of the assessors. This is in accordance to the magistrates court Act No. 2/1984 section, 7 ( 2) which provides e .. s follows g i•All matters in t'h;e :Primary court incluiing a finding in any issue, the question of ndjcll11inG the:· h"'o.r:i:n"' -h· -:,- .. ~ 1 .. :.c ·::t' ·::, :·:· .:· · · .• ··

• Gt o..n o.p~ ica ion for bail, a question of quilt or innocence of any accused person the•••·•• 0 C> 0 0 o ditermination of sentence, the ass0ssment of xny monitcry awm.d and all questions and issues whatsoever shall 1 in the evcmt of diffirence bchJCcm a magistro.te and the assessors or any of then, be decided by the votes of the. majority of the magistrates nnd nssc- ssors present •• o o ••••••• ;; After the illesal decision of the Primary court, then the respondent appen.led to the district court whereby the district court ruled that the respondent was lawfully allowed to put a temporary business structure nearly a bus stand \·1ithin road reseure area. The appellant was dissati- sfied by that judgment and hence ecppealed to this court. His e;rounds of appeal are all alike, chc.-ulcrtg.i-n6

the decision of tho district court mngistr,:·:te and finn.lly said that in another civil case no. 85/1994 he ! was declnred the proper person owning that piece df lnndi The summary of the opinion of the court assessors . wl1ich I have reproduced in Kiswahili above clearly meets the end of justice. The appellant lbiC'Jue}lt the Hkibando.ii belonc;ine; to the said Charles Mwanjalao That is alright Charles M.va.njala could not have sold the other empty space of the road rescrv0. because it did not belone; to him. That was a Public land termed ,iroacl reserve :t area so nobody could legally sell what does not belong to him. One can gues that was the reason why Charles r-'11:Jnnjala did not come to testify in the court and that is why the Primary court assessors said that they never trusted the appellants witnesses. I a,erec with the pinion of the two gentlemen assessors. o•••o•o••o4••

On the issue of the original Civil case Nao 85/94, the district magistrate is not bound to follow: it., Otherwise, it is the primary court which is bound in law to follow the dedision of the district courto · In the final analysis, I conclude that the decision of the Primary court magistrate was illegal for v:i.cltion of section 7 ( 2 of the Magistra- tes courts Act No .. 2/1984 and that the assessors opinion was pro].J:)rlygiven. Secondly that the .decision of the aistrict court was cor:ro,ct.l.;j arriv~~l at and that the appellant could not have bought a piece of land.from sonebody who had no right of ownership. What he boui;t1t legally is the r'bandail belonging· to Charles Mv,anjala and not the lest of the plot, the respondent was pro:rorly9.llowed/allocated the plot where he?irrGctor~::,s ter.1porary busines_s premises near the bus stand area. The appeal is there- fore dismissed 1·1i th costso '§_f.10/2000 Coram Manento, J. JUDCilE 23/10/c!D00 JJ.J.l present in Fo:t the. Appellant . person For the Respondent CC Lwan5a Curt: The judgment is read in the presence of the·. _paition. JUDGE . 23/10/c5J00