Joseph Opiyo Orege vs Ariyo Oyoo (PC Civil Appeal No. 42 of 1999) [2000] TZHC 460 (17 August 2000)

IN THE HIGH COURT CF TANZANIA AT MwANZA PC CIVIl, APPEAL NOo 42 CF 1999 (Fr0m the decisirm 0f the District C'"'urt 0f Tarime District at Tarime in Civil Appeal Nn. 89 0f 1998 and Original Civil Casa Noo 1°53/97 of Ryagnro primary c.-:,urt) JCS:BPH OPIYO OREGE ••oooooo•oooo~oeooao,:,ooooe• APPELLANT Versus ARIYC' OYOO O O e e • O Io·• I o I e O O O o o O I• a O O O • O O O O O • O I> 0 ,t. RESPONDENT JUDGI'1ENT NCH.ALLA, Jo The part:~es in this appeal b0th 0f whom belr:mg to the Jaluo tribe resident in Tarime District, are disputing over 0wnership of a parcel land nf . measuring 210 X 150 paces 0 The appellant J("•Seph Opiy0 Orege sued ~ the resp0ndent Ariyo Oy00 in the trial primary court at Riagoro in respect nf tht parcel nf land in questinn, and was declared the lawful 0wner 0f that parcel 0f land. The resp0ndent appealed to the District Court against the decisinn of the trial primary cnurtt and he won on appenl. The present appellant was dissatisfied with the decisinn nf the appellate District Court, hence this appeal, I heard the ap_-Jeal in the presence of the parties, and each made a statement in appeal. I alsn had ample time t0 study the evidence 0n rec0rd. There is ample evidence that the appellant was allncated the suit land since 1975 during Operation Vijiji_ 1 and he

. . 2 has been in occupati0n nf that land since that time, To be clear, the piece 0f land in dispute is cnmprised within'q large piece of land which shares a commmi bcundary with the piece 0f land owned by the respnndent. What the respondent did is simply encr0ached over appellant's land by chopping off the piece nf land measuring 210 X 150 paces~ so, in fact the resp0ndent still occupies his 0wn land which is distinct from the appellant's lando The resp0ndent capitalizes nn the fact that n 1997 the Village Auth0rity decided tn allocate tn him the piece r,f_land which is still effectively 0v1ned and used by the appellant. As tp.e trial primary court rightly found, the Village Authnri ty has n0 p0wers in law tn reaJ.J.ncate and land which is in a valid, L-' effective occupation and use by annther member nf the village, that is, the appellant" I took the occasinn to examine the respnndent at the hearing of this appeal 0n the fact that the appellant was allC'cated the suit land in 1975 and that since then he has been in occupatir-n 0f the same. The respondent c0nceded to that fact 0 However, the respondent was bold tri reply as fl"'llows, and I qunte, '·'But it was n!')ne r.f my business to investigae why the Village Authnrity decide~ tn sispossess the appellant nf the suit land and inste3.d allocated the same to me.a (,n the availab1e evidence, the decisi0n 0f the trial primary court was quite sound and valid~ the same is restored and affirmed. On the contrary the decisi0n 0f the appellate District c0urt was agais,the weight ' . . :i, .. "•i \

nf the av2J.lable evidence; that decisinn is quashed., The appeal has merit, I allow the same with cr:-sts here and in the tw0 counts bel0w • 0 .Jlppeal allowed., JUDGE 10.,8,,2000 17/8/2000 Coram: Mo D ~ N•:;halla 11 J., · ,. . I • . F0r Appellant·; present in pers0n F0r Resprndent: Present in pe.rsrm CeC:- R3sti..tuta Court: Judgme1t delivered in cnurt at Mwanzc1 in parties, this the 17th day of Augusti 20000 Right nf appeal explained,) . AT MvJii.NZi-1. 17/8/2000 JUDGE