Fyata Fikile vs Simon Malakalinga (PC Criminal Appeal No. 15 of 1998) [2000] TZHC 245 (24 July 2000)

LA IN H CGURT OF NANI. AT 1 YA .. : RIMI1ALkPAL NO.:015.'i998 j , RO DISTRICT COl SRICT'AT 0 000 0050 S TtflC CR1111 NAL APPEAL.NO... Q 1998 TUKUYU URBAN PRIMARY COURT CRIMINAL CAS NO, 2470F 1997) • S 'FYA IIi :.:.'. ... 0 . . . . . . . . . . . . . . . . . . . . . . ... . .-.SAPP2LLAI\ 1 T . 1RSUb sInuN ILKALIA. ...... NT JUDTNT KAIJA, J. The record of proceedings of the trial pr.unary court and that of the appellate District Court show, that the litigants have not been at peace with each other. Bad blood between t3em has '- beei the ause of litigation and cr1 iinal proceedirs. The forerunner to this appeal is Giv1 Case No.23 of 1991 which was instituted at Kiwira Primary Cort in wh.ch Simon M1akalinga, the pre sent respondent, was the defn1at. The trial ws about trespass in which the then plaintiff sqiht ai order ((S 0 ) tht he defendant do cut ,4own and remove trees from the plaintiff s an Both litigants inhereted their respective prce1s of land from their làté fathers. At the end of the trial the defendant was ordered to reiiiove the trees from the plaintiff's land. The defend&nt did. not appeal ncr he comply with the order. So the plainIaff instituted criranal proceedings aa.iimt the defenaaat for his reIual to coiiply with the trial courts order. 11hen the a.cused pe±son, originally the defendant before the trial court, was called upon -to make hi defence and to call witnesses,if he ha any he 0 tiis:— 00• .00 .. 0 00 .... . ....... 0 S•• /2 : • T •0

1 "IIht; Sina la kujieleza na wala ama shahmdi'. The acc.sed. neither offerred. a defence nor had. he any witneses to call. At the end of the trial, the trial c,ourt unanimously found lum guilty of contempt of court, convicted him and sentenced him to a fine of shs,10,000400 or six iiionths in de'fault. Having been ggrmeved by the conviction, and sentence .-S,imon Nalakalinga appealed to the District Court of Rungv District at Tulttt-yui, lie succéedd in his appeal becauset according to the first a&illate court the trees vre not jlanted by him but by his late father 4 Wel. maj be the learned District Magistrte was right. if that is 'so th r e natual result flowmn fz,om his decision i's that Fyata Fikile Will never exercise 1u proprae -tory rights over his land while Simon Plakalinga's tI'ees stand on it. It is my view that those trees, even though vie planted by his father, Simon flalakalinga cannot be allowed to inherit only assets an,d leav his late father's obligations unattended to. It is in that context that I can understand the trial court's order which gave rise to thc criminal proceedings. • Let me now say that it is trite law that what grows on land belongs to the owner of that lahd. Since, therefore, the ..repondent's father trespassed on the -ppellant's landi t1 law presumes that the s treb, the ubact of these proceedings, al belong to theapellant. In that context the appellant was entitled to seek, a declaration that the trees on his land belong to him, a decmin whibh wou1 have forever taken away anr risidual right6 Simon 1aka1inga has in' tl,!iqmt Hov'er, since lhat relief was not sought this Court anhbt graht it to Vkaita Fikile. Having considered the e'idnoe and the fact that tth respondent- is the successor to his late father's estate, he did take it with alihe encumbrances, one of which are the trees on the appellant's land. II is in that view that I hold that the trial court reached ...

• 3 a just de'isioh when it convicted the respondent before me In the result the appeal is allovd. The decision of the appellate District Court is set aside. •Oonsequently the decision of the trial primary c.urt is restored. It is ordered that Simon Malakalinga do cut down and remove the trees.' his late father planted on the Pyata Fikile's.land on .before 31st July, 2000. Delivered in the presence of the parties.,. jZ o7 -' I/-. i:• ': •y.. z J.i. MAGKANJA C' JUDGE 24.7.2000