Alen Sose vs Upendo Malambughi ((PC) Civil Appeal No. 82 of 1998) [1999] TZHC 59 (15 October 1999)

MMMI .IT! 1IIGH COURT OF TANZANIA AT NBEYA (PC) CIVIL APPEAL NO. 82 OF 1998 (From the decision of the District Court of Rüngwe at Thkuyu in Civil P.ppeaJ. No. 23 of 1998 Before: D.D. Komba — District Nagistrt'e) AIENSOSE ,.. .. .. , a o a a a a a a a a a a a APPELLANT Versus - - UPNDOMAIBUGHI .... an.aa PEONDENT ' JUDGi'1ENT OSH This is a second appeal. A piece of land' planted with milongoti. tress worth shs.30,000/= was the subject matter of the disput -e between the. parties. The respondent, Upendo d/o. Malambtghi, clained the land and the tress fom. the.. appellant, Alen s/o Seso, before the priñiary court of Ki'wira. 'I"he primary court unanimously decided in favour of the respondent holding. that .the land and the tress were her property, . The decision aggrieved the apellant who preferred his first appeal to the district court .of Rungwe at Tukuyu.' The district court dismissed the appeal holding that 'the land and the tress, except 8tress, belonged to the respondent. The district court held that the 8 tr'es,. aged 3. years at the time of the suit, belonged to the appellant although grown on the lnd of the respondent, and reserved those tress for harvest by the appellant when fully grown up. The decision still aggrieved the appellant, hence this second appeal in which both parties entered appearances and told this court that they abided by the contents of the memorandum of appeal and those of the written reply to it, respectively. The case for the respondent was that her deceased husband, Andambike Malambughi, bought the shamba in dispute with the tress on it from Mwatija Nwakilema ($142) on 28.9.92 for shs.11,•0001=. The sale was in writing (Ext A) and it. was witnesed by four witnesses among them their cell leader, Edward Nwasemele. According to the respondent and SM2 the appellant did not plant any tress on that shainba. In 1997 the appellant trespassed into that shamba, culti- vated art of it, and cut' down some tress. Hence the suit filed on 15912.97. ,eoo..000a6a,. /2

The appellant'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, h.wever, plant tress on the land until 1995 when he engaged Israel Kajamba (SU2) to clear the land and then plaflted some trees which became three years old at the time of the suit. In December 1997 the respondent filed the suit claiming that he trespassed into her land and cut down some tress. He denied to have either grown trees in the shamba 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 respondents, 'claim, 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 court awarding 8 trees to the, appellant has, however, caused me considerable anxiety,' There appears to have been no justification whatsoever for excluding the 8 trees from the ownershipof the respondent. The trees were on the land of the respondent. This was not ifl dispute. The appellant denied to have planted them there. Fven then it would have been the work of a trespasser. The award, therefore, was utterly underservirL even as a gift in the circumstances. In ccnaequence, the award to the appellant of the 8 trees planted on the land of the respondent is set aside. In the event, this second appeal stands dismissed in its entirety with costs here pvid 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 dispute inclusive of all the trees planted on it. Jj B.P. MOSHI AT iBEYA. / k 15 October 1999,

• For tppellant sent, For Respondent ent. I CIFI ThN2 THIS 1$ A TRUE COPY OF THE ORIGINAL. DIStTCT REGISTRAR.