Shuguda s/o Mahega vs Salu s/o Kalomo (Civil Appeal No 26/99; Civil Case No 9/99; PC Civil Appeal No 25/2000) [2000] TZHC 366 (28 September 2000)

IN THE HIGH COURT OF TANZANIA JT TABORA c CIVIL APPEAL NO 2512000 (0RG,, CIVIL CASE NO• 9/99 ?MANDOYA ) (PRIMARY COURT & CIVIL APPEAL NO 26/99 MATU D/COURT) SHUGUDA Sb MAHEGA a .. .• ., ,, APPELLANT VERSUS SALU SIO KALOMO .. • " a . i • s '... p RESPONDENT JUDGMENT MASANCHE J. The appellant Shuguda Nahega is on a second appeal. He was sued by Salu Kalomo in the primary Court f Mwaneya, Meatu, for a return of 31 acres .f land, He alleged that some 30 acres which were being occupied by the present resp.ndent had belonged to him. Shuguda Kal.rn. (then plaintiff) won the case, but was only awarded half the amount of acres. In other w'erds he was only awarded fifteen acres. The learned district magistrate on first appeal has commented that it was a "solornonic justice. On appeal to the District Court, the learned district magistrate has dismissed the appeal, but has 'dered that Salu Ka1mo he an outright winner, In .ther word, he should get all the 30 acres. Shuguda is ag'eved and now appeals to this Court. The facts that emerged at the trial were not quite clear: I suspect something was being hidden there. But after a deciphering of the evidence, these are the facts: These twi persons are related to each ether, Salu Kalémo, the present respondent, was 2f , yrs old in 1959 when his parents moved to the village of Mwankoli from Gambasingu in Bariadi Districti Indeed they arrived there and cleared a bush. The bush covered some 30 acres,

pC.CIVIL APPEAL N0.25/2000 - 2 - Then, in 1971, some 12 years later, the eldest person at the v±llhge died The others then decided to move away from the place. It is said that the custom of the peOple in the area is to abandon a home when the eldest person there dles4 Soi they moved awattS a place called LongaJ.onhinga. Now, something happened here, a thing which I think is being hidden, the present appellant ShuidaMahega came to the place and, It would appear, occupied it, Indeed, It -appears.. he occupied what could have been understood to be a no mans land. The present appellant, it appears, paid nothing for this acquisition, although he himself asserts that he paid something like 8 cattle. He says that was in 1989. In other words the appellant is saying that he moved to that place and occupied it some 20 years ago (by 1999). The issue which troubled the trial Court and the first appellate. Court was this: Did the respndent abandon the land or did he go back periodically to inspect, thus asserting a continuous ownership?. In other words, was there an animus revertendl? The Courts here held that there was. I have closely examined the evidence, I have come to find out that if any.ne (let alone Salu Kalomo) went back to the place to inspect, it was in 198? - some 16 years later. Now getting away from a piece of land and staying away for 16 years just demonstrates abandonment. The appellant, for those 16 years, did a lot of inrovement and is still in occupation of the land. He should .t,

c CI' IL N0.25/200r at this moment, be dispossesed.ofthe'land. I allow' the appeal. The whole land in dispute (30 acres) hel.ngs to S1nguda Mahega. In other, words I have differed with the two Courts below. I am aware of the law' that on zec.nd ppel, I may not disturb the concurrent findings of incts of two Courts unless athere has been a misapprehension of evidence, a miscarriage of justice or violation Of some principle of Iw or procedure (Anu"atlal Damodar and another v A.H. Jariwalla C19801 T.L.P. 32). ankly speakig,'I see some misapprehension of evidence. As I say, the appeal is allowed. It is allowed with costs. S , J.E.C. MAEANCHE. JUDGE At Tabora 28th September, 2000 •, Appellant: present Pespondent: present.