Tukusekela Sangwale vs Raphael Mwankemwa (PC Civil Appeal No. 45 of 1997) [1999] TZHC 424 (3 December 1999)

l MOSHI J. --:tt--•--'--M---- JJ'/? , - /fr4. !N Ill~ H!GH ecu~ e:I!' 'l'ANZANIA AT MBEYA (PC) CIVIL APPEAL NO. 45 OF 1997 (From the decision of the District Court of Rungwe at Tukuyu in Civil Appeal No.18/1997 Before: F.N. Matogolo - District ·Magistrate) TUKUSEICELA SANGWALE • • • • • • • • • • • APPELLANT Versus RAPHAEL MWANKEMWA RESPONDENT. JUDGMENT 'rhe parties were in dispute over ownership of a piece of clan lando The respondent, Raphael Mwankemwa, lost in his claim for it from the appellant, Tukusekela d/o Sangwale, before Ikama primary court. He felt aggrieved and pref~rred an appeal to the district court of. Rungwe district at Tukuyu which . . _allowed the appeal. The appellant, in turn, felt aggrieved, and her learned advocate, Mro Mbise, preferred and argued this appeal which. was resisted by Mr. Mwakolo, learned advocate for the respondent.·. · These material facts came out from the proceedings 6f the trial court and district court. The respondent left for Njombe in 1946 leaving the land in dispute in the hands of his uncle, Mbabala Mwasanguti. His father was Kitangalala Mwasanguti who was the eldest in the family of Mwankemwa. Mbabala was second in that family and Edomu Mwasanguti was the last. Mbabala was married to Tamika d/o Ipyesi (PW4), while the appellant was married to Edornu •. The respondent ,,,. ' returned. ·· 1n 1982 but left the land in the hands of Mbabala. In 1984 Mbabala died and the land passed on to the use of his young brother Edomu who stayed on the land with his wife (appellant) and children. One. of the children was Edwini Mwasanguti (SU2) aged 30 years at the time of the suite In 1995 Edomu died appellant her leaving the land with the · ,· < and · children (SU2). After the death of Edomu the respondent felt that he was entitled to the _land as the son of the : •.•..•• ~ /2.

' :"' 2 - eldest member in the family. According to Ahobokile Masanguti (SM2) the matter was taken before area leaders who decided that the appellant and SU2 were entitled to the use of the lando 'l'he respondent felt unsatisfied 1 hence ·the suit he filed The case for the appellant was that she inherited the land from her husband Edomu .f?r her and her childreno Her son (SU2) supported hero The respondent for his part claimed that he was entitled to the land as the son of the eldest member in the family. Re summoned the wife of Mbabala (SM4) who told. the trial court that the appellant and childre.n of Edomu were entitled to the land which had passed on to Edomu upon the death of her husband, The primary court unanimously decided in favour of the appellant holding that 4 the appellant and her children were.entitled to the land. The district court, however, reversed that decision holding that the land in dispute, being clan land, could not be possessed and owhed by the appellant and her children at the exclusion of other clan members who were to be considered as well and that the respondent as the son of the elde_st brother of Edomu was the. right person to possess it for the clan. The decision aggrieved the appellant, hence this appeal I Mr. Mbise preferred five grou?ds of appeat which were: 1 o Th,e learned District Magistrate erred on reversing sound judgment of the trial Primary Court on points of fact, when the trial court is the best court on matters of facto 2o The learned District Magistrate erred on holding the appellant has no right over the.land in-dispute while she adduced sufficient evidence to establish that she is the lawful owner of the land in disputeo 3 0 The learned District Magistrate did not consider the f<?-ct that the respondent I s suit was time-barred, in that the appellant was in effective occupation of the land in dispute from 1946, while the case was commence~ in 1996. 4 0 The learned District Magistrate did not put into consideration the fact that the respondent does not own property (-unexhausted_ improvements) over the said land. /3

5o 'rhe learned District Magistrate erred in his re-assessment of evidence on record, and this led him to a wrong conclusion. With respect, I find some merit in this appealo I would agree with Mr. Mhise that the decision of the trial court was improperly impugned by the district court •. Firstly, tp.~ respondent's story that he had possessed the land before Mbabala was not true. The story was unsubstantiated. He did not explain how he had come by that land. For over twelve years before the death of M:t,abala he made no effort to repossess the land after his return. Besides, the land passed on to Edomu on the death of Mbabala without any protestations from the respondent who let Edornu occupy it peacefully for over twelve years before hi.a . death. The land, therefore, had never been in the hands of the respondent. It I was clan land which had, with consent of the clan, ·passed hds from Mbabala . · appellant her to Edomu and finally to ~ · and children according to custom. In any event, the twelve years period of its recovery from Mbabala and Edomu in terms of item 6 of the Schedule to the Customary Law (Limitation of Proceedings) Rules 1963 had long·passed. Secondly, I am satisfied that the trial court and SM4 were right in that the appellant and her children were entitled to-continued occupation of the land after the death of Edomu. The area leaders were also right. They had occupied the land with Edomu for over twelve yers before his death. The clan had sanctioned it. It was their homesteado It would have been unfair and unrealistic for the respondent to have dispossessed them in the circumstances of this case. With respect to Mro Mwakolo, it was not the question of the ownership of the land as such which was involved here. It was rather the question of possession or occupation of the land for shelter and useo In point of principle, ownership of clan land is held by the clan as·a whole. This would account for the fact that if clan land is, for.instance, sold outside the clan, each and every member of the clan has the right to redeem the land,from the purchaser upon payment of the purchase price, and subject, of ·ceurse, to the law of limitationo Individual clan members and .their familiE;)S hold the land in trust for their descendants in the clan, and eeoee•O /4

they are allowed to occupy the land on condition that they effectively occupy and develop it. In all the circumstances of this case, therefore, I am satisfied that the interference by the district cou:rt was unjustified and unsound, and that the decision of the trial court was justified and sound. I accordingly allow the appeal with costs, quash and set aside the district court's decision, and hereby restore the judgment of the primary ' . court. AT r-_m_E_y • ...!. 3 December 1999. For Appellant: , Hr.- Mbisee For Respondent: Mr. Mwakoio. • " ., ' B.F. MOSHI ,JUDGE. l