Alen Sose vs Upendo Malambughi (PC Civil Appeal No. 82 of 1998) [1999] TZHC 364 (15 October 1999)

.. NO.SHI J. ---- IN THE HIGH COUI?r CJF TANZANIA A'r MBEYA (PC) CIVIL APPEJ\L NO. 82 OF 1998 (:F'rom the decision of the District Court of Hungwe at Tukuyu in Civil Appeal I·l;o 23 of 1998 Before: DoD: Komba - District Magistrat·e) ALEN SOSE •• $ .•• " ••••••. " •••• , • • • • • • • AFPfilLANT Versus • UPENDO MALAMBUGHI ••• "° ••• , , •••••• '• REiS.PONDENT JUbGML.'l, 1'his is a second appeal. · A piece of land 'planted with milongoti tress · . . ! . . worth shs.3(),000/= was the subject matter of the dispute betweezi t!'le parties. The respondent, Upendo .d/o Malamhi, claimed the larid and the tress from 'the appellant, .Alen s/o .Seeio, before the ,Primary court of Kiwira.. 'l'he :primary cot.U't · unanimously decided in favour of the respondent holding that the land and ·the· tl'.'€s.S were her property. The decision aggrie-va<f the appellant who-preferred his first appeal to the district· court of Rungwe at 'l'ukuyu~ 'I'he district court dismissed ·the appe·al ' holding that the land and the tress, except 8 tress, belonged to the respondent. The district court held that the 8 tress, aged 3 years at the time of the suit, . ' belonged to the appellant although grown on ,the land of the rEis.pondent 1 and reserved • those tress for harvest by the, appellant when fully grown upo 'l'he decision .still · entered . aggrieved the appellant, henc~ this -second appeal in·which both parties appearances and told this court that they abided by the contents of the memorandum of appeal and those of the written reply to it, rspectively. The case for the respondent was that her deceased husband, Andnbike Malambughi, bought the sh,amba in dispute with the tress on it from Mwatija Mwakilema (51'12) on 28.9.92 for shs.11.,600/=• · The sale was in .;iting (Ext A) and it was witnessed by four witnesses among them their cell leade1~; ·Edward Mwasemele. Accordirig to the respondent and SM2 the appellant did not plant any tress on that shamba. In 1997' the appellant trespassed. into that shamba·, culti- vated part of it, and cut down some tress. Hence the suit filed on 15.1~.97.. /2

• 2 - · 1 rhe appellant 1 s version of the matter was that he was given a piece of land by the sultan in 1953 for planting tress. He did not, hawever, plant tress on the land until 1995 when he engaged Israel Y..ajamba (SU2) tn clear the land1and then planted some trees which became three years old at the time of the suit. In December 1997 the respond.ent filed the suit claiming that he trespassed into her land and cut down some tress. He.denied to'have either grown· trees in the-sharnba of the respondent or to have cut down her trees. I find this second appeal devoid of merit. On the evidence and in the circumstances the respondent's clan of ownership over the land in dispute and all the trees on it stood established on the balance of probabilities. The respondent had her own land and trees just like the appellant had his own land and trees. The order made by the.district cburt awarding 8 trees to the appellant has., however, caused· me considerable anxiety o There appears to have been no . . justification watsoever for excuding the trees from the ownership of the respondent. 'l'he trees were on the land of the respondent. · This was not in ....... ·• dispute. The appellt denied to have planted them thre. E.\ren then it would have been the work of a trespasser. even as a gift•· in the circumstances. The award, therefore, was utterly underservir, 5 I , In consequence, the award to the appellant_ of the 8 trees planted on the land of the respondent is set a.Side. In the event, this second appeal stands dismissed in its entirety with " costs here and. in both courts below. For the avoidance of doubt, the respondent is hereby declared to be, and to have been, the lawful owner of the land in A'l' MBEYA. 15 October 1999. For Appellant: Present. I CERTIFY THitr T'.dIS IB A TRUE COPY OF 'rHE B.P. MOSHI. JUDGE.