Kantati Kasakula vs Nassoro Kipala (PC Civil Appeal No. 23 of 1999) [2000] TZHC 472 (28 September 2000)

IN THE HIGH COURT OF TANZANIA AT TABORA--·· (PC) CIVIL APPEAL NO. 23 OF 199, (Original Civil Case No. 15 of 1997 of Kasulu Urban Court and Civil Appeal No. 55 ef 1997 of Kasulu District Court). KANTATI KASAKULA •• •• .. . ... •• APPELLANT VERSUS · NASSORO KIP.ALA •• •• •• •• • • RESPCNDENT JU D .GM EN· T MASA1!CHE 2 J. : The appellant Kantati Kasakula and the respondent Nassoro Kipala someh<>w haye .family ties., The appellant is married to the sister of the respondent. In hort, he calls the respondent, a brother in law. The appellant sent his case·to the Primary Court of Kasulu at Kasulu, alleging that it was time the respondent quit from the shamba, as h(appellant) had given the respQndent to cultivate the shamba temporqrily. The respondent refused that assertion in the Primary Court. Rather, he maintained that he bought a sizeable ptμ>t of the shamba a.nd another part of it was sold to him. Indeed, the respondent argued that he had planted permanent crops in there. He argued that he had planted the permanent ~rops at the!' nose of the appellant. The shamba now looks beautiful with permanent crops like palm oil trees, oranges, bananas etc., he said. The respondent argued that the appellant was just eying the good shamba that he now has. Quite a sizeable number of witnesses testified in the Primary Court. At the end of the day, the Court agreed with the assertion that the respondent was lent the shamba. He ,, - should give it ba.ck. But, the Primary Court ordered the

2 I. appellant to pay the respondent Shs.350,000/= asc compensation I ,. ,I for the unxhausted improvement done to the land. The respondent appealed to tlie District Court of Kasulu. I I I He was aggrieved at the decision of the Primary Court telling him to quit. Ni,w the District Court has. allowed the appeal of '> I the respondent Nit?.£.,9~.!j.J?_~+..§;• Karj.tati, is no'\f1 an appeal to this Court. ·I These two persons appeared before me here. The appellant I . I truly agreed that he is married to:the sister of the respondent. case: i ;I After my reading the :.'il · file, thes-e are the facts of the \· ' The appellant, ~tually, truly, had lived in the area for :1 I quite a long time. I get the date of 1960 to be the time the appellant pi,ssibly arrived there. the:n, in 1974, the respondent . I was invited to the area. ,The appellant gnve him 2¼ a.cres on ., which to cultivate. It appears there were no conditions given. •I There is nothing to suggest that the resp-?ndent was given the :l : , ,, Ii area to cultivate tenworarily. Indeed, one would tend to suggest the.tit was natural that tfie·respondent would be given ' . the land to o"J.ltivate without conditions. The a.ppellqnt had i ;j married the sister of the respondent.

So, the respondent went into; te shamba an.d started 11 cul ti ve.ting it - that 1974. IncidentalJ:y, one other thing: It is s13id that the appellant took·away or accepted Shso450/= from the respondent, at this same time when the .] respondent was given the land., This ':was the money that ' . gcmerated arguement in the Primary: Court. The respondent is now saying that it wo.s purchased price. The appellant agrees . 1 . ' tl i! to have received this money and proudly tg,J.ks of using it with 'I the sister of the respondent. Now, 23 years later, the opp&lont hes sou~ht to need back ;· the 2¼ acres; which they all agree'• is plnnted with permanent

• crops. After evaluating the evidence in the file, I do agree that the appellant should be the loser. He did !!:o!, give to the respondent that piece of land to cultivate temporarily. In other words, I do not agree with the Primary Court when it says that the land was given out for a temporary cultivation. Their family ties would seE11! to seal the fact that a.ppellant ·gave to his brother-inylaw the 2¼ acre a for permanent cultivation. That is why even at the time the respondent started planting permanent crops, the a.ppellant said nothing. The appeal is dismissed. For avoidance of doubt, I sa:y categorically that the respondent remains on his 2¼ acre farm undisturbed. The order of the Primary Court which says that the appellant should get the shambn a.fter compensating the respondent Shs.350,000/=, is also set aside. The respondent is declared the owner of the piece of land in disputei The appeal is dismissed ·with costs. AT TABORAo 28th September, 2000~ Appellant: present. Respondent: presento j J.E. c. MASANCHE, JUD@.