Lupindula s/o Bonda vs Saimon s/o Daud (PC Civil Appeal No 4 of 2000) [2000] TZHC 361 (5 September 2000)

Ilk IN THE 1GH COURT OFTANZAA AT TABORA. (Pc). CIVIL APPEAL NO • LI. r1' 2000 (Arising out of Igunga District Court Civil Appeal No. 12 of 1998, and original Igun.ga Primary Court Civil Case N3. 237 6f 1998) LUPINDULA S/O BONDA •0 S. 4* — APWEILANT V E R S U S SAlMON 8/0 DAUD Q lk on 0 10 V Is — RESPONDENT J U DG M E N T MASANCHE I This is a seccnd appeal. The appellant has lost in the two Courts below and now seeks to appeal to this Court, on a second appeal The appellant Lupindula onda scems to be an elderly mane The proceedings say that by 1998 he was aged 78 He should now be 80, years0 He sent his case to the Primary Court of Igunga claiming that the respondent had taken up his (appellants) land measuring 15 acres. But his testimony was really brief' 0 It wnt on like this:- "Naxnfahsay mdaiwa anais hi Imal anguzu, wakati 7 ule baba Wa Taif a Nyerere aliitawala, nilifyeka pori ekari 175 na nilihama pale na kuacha nyumba na watoto. Naye mke wanga alifariki dunia kwa vile kuna kijana aliyekuwa amebakia kwa bahati mbaya akapatikana na hatia na kufungwa jela, nab sharnba lilibaki pekee tu. Naye mdaiwa akaliingilia shamba na kuli1ima. Yangu ni hayo tur,' At the end of the day s th Primary Court was satisfied that he went away to Iramba, leaving behind the area which

Civ.Ap.4/2QC0. - 2 - turned into a "pan" way baøk in 195, about 25 bars age. And, indeed he went to Iramba car'ying with him his cattle. He never went back to visit his "old" home. By 1990 even the wife he had left behind died 0 His son (called so in the preceedings) one Costantines/o ma jjLa got into criminal problems in 1990 and got jailed. So by this time (1990) the ' t poni" was beeing distributed to other people, who included the respondent The respondent, it would appear, started acquiring the land in 1989. Progressively he increased the acrerage. Some of the lend he was given by the village Committee and some of the land, he beught, There is no doubt to the present moment the respQndent is in effective occupation of the land. The two Courts below have hela that the respondent cannot be dispossessed of the land now. Indeed all indications show that the appellant )ad abandoned it, The law has it that a vil1'e Committee or Council can allocate land to anyone if that land lies idle and there is no indication that anyone Is possibly coming back to "peep" at the 1and If the appellant was coming back to "peep 17 at the land, we would probably say that there was an animus revertendi. There was no such thing. Mind you also: This is a second appeal: There have been concurrent findings of facts of two Courts below 4 I must have good seasons for disagreeing with these concurrent findings of fact of the two Court I agree with Mr. Boaz that the appellant abandoned the area0 The appeal is dismissed with costs0 At Tabora0 5th Septembe"r, 2000. I ) k J E. C. MASANCHF JUDGE. Mr. Mtaki for appellant. Mr. Bcaz for the respondent.