Mugozi Ndagije vs Athanas Ndakinisha (PC Civil Appeal No. 10 of 1999) [1999] TZHC 286 (11 November 1999)

., : ~ a·• ' IN THE HIGH COURT OF TANZANIA AT TAB9RA (PC) CIVIL APPEAL NO. 10 OF 199, (b~iginal Civil Case Noe 3 ·of 1997 of Kibondo Urban Primary Court and Civil Appeal No.·8 of 1997 and Kibondo District Court) MUGOZI NDAGIJE •• •• 0.' •• •• ••

• APPELLANT • ATHANli.S NDAKINISHi. MASlu'\JCHE.,_2 • : VERSUS 00 ••· •• 0 JUDGMENT eo ••
• RESPONDENT The 8.ppellant Mugozi Ndar:;ije was sued in the Primary Court of Kibondo in Civil Case No. 3 of 1997, by Athanas s/o Ndakinishaci This Athanas Ndakinisha had asserted that the appellant had taken over a piece of land measuring sor:1e two acres - a pieo2 of shamba that he (the defendant now appellant) Mugozi Ndagije had been given to cultiv§.te tenporarily. Athanas lost the case. He appealed to the District Court before Mr. Maum.ba Distrif>t Magistrate of the District Court of Kibondo. Here Athanas has wen the caseo Now Mutsozi appeals to this Court. The facts mf ·:nhe case can be simply stated as follows: The respondent had a father whose name I could not get. This old man wa.s ectually, the owner of the She.nba in question. The respondent bein5 a son had been away Rt the tine the oldnan gave the sha □ ba to the appellant for temporBry cultivation. The story that the appellont was given the piece of ~.'. · · ,._ land to cultivate tempororily was given by two persons 9 the wife of the olc1mnn, who is now clee,d, The wife is called.

.., 1PE~.a dL o £.e.a Po W. 2 and another persQn called .Q.¥~~.c.e Nc,j~~sha P.W. 3, the brother of the respondent. r These, told the Court that the appellruit was siven to cultivate the place temporarily. They elso asserted thot the shanba, which is the ,·:;l...:-t su"bject natter of this case is, actually, a .lli£ land. The appelle.nt, on the other hond, ge1ve r.. different story. He told the Primary Court, and e..ctually convince?d the Primary Court that he was sold the piece of lnnd. by the old □ an himself. The appellant told the Primary Court') how he came to acquire possession of the sha.Bba. This story which he gave-is, •in fact interesting, encl I will nc;-w tel1 it: It is so.id that the · appellant .hc,d arrived in the village in July 1984e He hD~ been tronsferred from Dar es Salaam to Kibondo o itfnen he arrived at i.the village he went tot.he oldman,the father of the respondent ond asked him for o. piece of lo.nd to cultivate. The old De.n gave hi □ the two res to cultivsteo He said th'::t it is true at the beginning he undorstoocl. tho.t he ·we.s beinr::; given the piece of land to rultivate tempor8rily. As time went by, one day, the oldn1an told the respondent thot if he ( the respondent) was interested to cultivflte the piece of land, perno.nently 1 he (respondent) shoulc1 just offer him. some local brew (ponbe). It is ssid that the respondent agree(l, e.ncl i:g.decd, sent th2 old.m:::.n to a I2.,UB,, where he ( the old.nan), was e;i ven soDe 2½ pots full of the local drink, for his na.le c;uests o.nd some other 2}' pots full of the s2me stuff for ihe female guests. There was 2.. lot of F:erry lllc.'1king nnrl the day encled. Later still, the sane old.man CEtme to the responclent and asked for sor,le' ac1c1.i tione.l things II He asked for "pombe" as wellaE"salt 11 • J~na., on the last occasion,whenthe olcl.rnari

3 was given locF1l brew• lt is said he became so happy that he and said · turned to on lookers there:(_ ani wangapi Himewapa ard.hi bila kunipa chochote, ito.kuwa. hu;yu aliyet::;a pombe? 11 ., 1.I·hen it is said that after that c1rinking bout, before they dispersed, the old nan asked the respondent, for none for the roacl 11 ~ ond indeed the olcl..ra2n was given one f0r t .he road. This story of how the resp0ndent got the piece of land permanently, it appears really impres&1'd the assessors. Orie of the assessors is reportec1 to he.ve sai&while giving verdict for the respondent: He said: "Naungana nc mo.oni ya r1shauri wa kwenza,. Mdaiwa alikoroga pombe oars. i kvJ:ci. babe. wa mdai"' Baba wc1 □ clai waknti anar:1pa shanba alisisitiza asinyang 1 onywe na yeyote, r:1daiwa alianzn kulir:12, muda nrefu bilo. me.tatiz.o 11 • The other assessor snid this: "Mdniwa katika ushahidi wake alie;Leza ku1"ft+ c1.lipewa shnmba moja kwa ooja ba.ac1a 1,a · kukoroe5a por,1be nn kuton Shs .. 5000/ kwa wa mdai. 11 As I said before, the judsrr'.ent of the Princ.ry Court has been reversed by the District Court. 'fhere are DMY thinc;s, to my mincl., which can be said to show tht the respondent ouc;ht to have won the case in the Primary Court. Sc,me of the reasons e.re given by the first appellti.'ttU ·Court. So □ e are not within that judgr:ient: Firstly, it is true, n ccarcling to the evic1ence, that the appellant ·was given tc cultivate the 11:m.d tec-porarily. The two witnesses who g2,ve evidence on be.half of Athn.nas Ndakinisha should have been believed. And, if that was the positiqn, then the appellant w2-s "· at law an J_p.vit§=~•

4- The law has it what invitees never oust their hostso Jm. invitee will never oust a host even if he stays on the piece of ., land f!: 1 r dec3des. In fact even limiteticm period is not availe.6. to such people (see cnes Muk,yll .. }fil.9--o '.phadeq_ v: J!EJ-.rn (1972) H.C.D~ no~ 4-; ~~~he YJ ~-~im (1972)H.C.Do 14-0

• these two cc1.ses are quoted. with approval in th~ cc.se 1990 Mwanza; H.c.n. 204-). Mkakofia Meri2nonP-.'G. v: Msha Nd.isia ------- .. -.-.--- ::•..,.--';.. ...... __ .._. :.:,,,--=--- (1969) The second thing to be said about the present case is this: The shambc,, evidence sugr!'ests, is o ~lon ..blP-.£:• 'I'he lo.w with re 5 ard. to a clan land is that it cannot be sold 0.wa._y by n

cl311 person without the VJTi tten consent of the other clnn rn:?mbers o So, much e..s the s.ppcllant 0 ot the shnnba easily by inebriating the oln. rnan, the olc't nan cJuld not sell it alone or give it away even freely without th2 ccnsent of the other members. Thirdly, ns pointed out by Mr. Mtaki for the res1"londent, people just dont sell shr.rnbo..s c.t pubs. The olcl.1:1cn was obv::..,../Lt.sly not hir:1s elf when he purpoted tn part with this shmnbG after being given loc2l brew. After saying all tk··t I c7-isoiss this BJ?I?.§?...:':1.l with costs~ .,,..-·• / : ... t ,, ' \ f'-. I ) ~ J e E. c.. M.ABANCRE, JU]?_GE. 11.T TABORA. 11th Noveober, 1999. t!R..! }f.AYAGA: For appellnnt. MRe MTAKI: For Respondentu -----·-----