James Mwalusepo vs Francis Kapondania (PC Civil Appeal No. 61 of 1998) [1999] TZHC 417 (24 September 1999)

, !~:.1;4gp. JI! Cl ;I C :: lJQSHit.. f '(PC) CIVIL ff.PEAL NO. 61. OF 1998 Ciro. nu:ngwe 1-ist. .::t. Court at Tukuyu Civil al. No,13 of 19cd, Original Tukuyu Urban Court Civil Case No .. · 1 of .1997 j AMES MWALUSEPO 0.J-.•UOOOOQ01,1"QOQOOOQO lU:PJ:ii.LLANT Versu FANCIS KAPDNDANIA - o o o .e o ~ ~ o o o o o o o a o RF,SPCNNT JUDGMETT ,,:·:. ,,·. . ' . ':. rh9" sueet mater in this G?:· ., 1 1,~ .f: two acres .sharnba which was allocated ::; ;. . . )/·-· .... : .t ... t'.:t:'" "-. ~ ; t·o the appellant t James Mwalusapo \ by Kalalo village aut}<:{ift'As in 1959 •. From de'lel-opment standpoint, the shamba had two more or less equal parts to-which I ~hall hereinafter fer es !l2,e f.i:r:.:!. and tl}e second ;e~~ 'l,,ne appellaht occupied ,,,'.• .',., ... I. the land and planted the first part with such permanent crops like tea and bananas. ' : :· .. ~ 4 ~ .. ·The eecond part he reser'\ied for, c:.::.d cultivated, .such .seasonal crops like maize and he.ans. In~ not an inch of the .a11d was left idle. In 1968 the a.ppella.'1t an-::. h::.E family left for hbozi for eyes ·treatment. He notified villagg authorities., 'rhe chairman of the village building construction committee, Anyisisye Hafwenga (.SM2); said soo rie also notified cli .level leader- ship.. A cell leader, .4dam Masisi (,SU3), and Angurnbwike Viwaka,7.yelngo ·csu4), said ··so. \rJi th repect to Mr o i!UShokorwa 1 learned advocate for the respond~nt. therefore, it was not true that the appellant left the village without informing the village leadership. ·,... :.. The appellant did not leave the shamba unattended. He left the s 1 :1amba under ~. ~ .. ·... • 'l_ ·. the care of cell leadership. .SU3 said ,;shamba linalogombaniwa na wadaawa nalifahamu ni mali ya Ja11es Mwalusepo, mwaka 1968 alipatwa na matatizo ya ugonjwa wa macho, Balozi wetu alikuwa 1'1wapololo Kikwita, alituita Balozi Hwapolalo akasema kwamba mwenzetu huyu James Hwalusepo ni .. rngonjwa, anataka kwenda !"ibozi ko.tibiwa hivyo anataka kutuachia sha.nba tumtunzie sisi wanaub&.lozi, na sisi v.1anaubclozi tulikubali 0 0 "' • 0 I,) 0 0 • /2

su3 .explained that t~ . . ........ _. .• . -·· l.ead8rl5 of three celle were ta.kine; ·care of the shamha for the appellant who .were: MwapololQ Kitwilta,. Me.rere Sondamu...vio and Mwakatefuo SU3 -hen..s 1 :.1ent on ,;t-iiwapololo alinia.chia uhal:ozi, $aehclelea Js;"'.;;.,uiza .shamba la Bwana r<walusepo.. Sha1nba liliendelezwa a 1,1.chumaj i na upa::,,iaj i wa cha.i na kulirna na kupanda mahindi na . . . ... .... ,· ' mazao mengine ya nafaka.·' The see,r·eary of the villD..ge building constructitm committee,. Bar Ne. (SU2), '.ff;.S also looking after the shamba for the appeJ Jan¼ '1 1 he @ !Dar L1.e appellant was that he did not abandon his shamba . when he left for r:ibi. · On the ;:7"idence, I would, with respect, -phol:d: the- submissiQ.U "by his learned a,dvocato. :-,:r. r'Iwa..'1.gole, that the appellant did not ..... In 19';9 the·· village_ authorit'Las. d.ecided to. buil9- 8: 'Tillage godown on the . . ........ '' . .• . ·, .. -,. ·. '. ·-' . ,' . secd part of the. appellant~ s lancL The 'aj_pell,t was still away; and he had not .,·: .. . ;.. . -·)· :,/ •/t:,.. :- ' '. authorized it. Anyi$isy& (SH2) 'ar,;i Barton- (SU2)._of .t-eiv:;_llag;~~~ilding constructio . - . ·1 - committee were involVed.. Also inv~ lved was the respon_dent 7 Fra...11cis Kapondania 1 who was th~ 1'illage chairman. ;l;he goc::,-..,,.::-1 l&ter became the village and CCM office. But the remaining area ef part two as wi::,:_l as ·c).1e whole of part one we1e reserved for the appellrort,· SM2, SU2, su3 and sJL~ .said so. · In 1995 the appellant instr1.:c";ed. Barton. (;3D2) by a letter to sell the whole of hie;. land, that is, parts one anc. two. 'l'he price was shs.,2.00,000/:,;. 'l'he news was announced~ The three cell lead.::-,rs summoned. a meeting of the villagers under them and t.old thr;;m that the appellc.,:'.'.lt was selling his lane for shs.200 ,000/=• SU2 1 SU} and SU~ said so. Even St-12 .and S1"13 said so. Only the respondent claimed he was not ntt:i.fied. The meeting wDE called by cell leader Enock :'1wa.lukomo who was overall incharg~ ef the team looking after the shamba fo1• appellant. SU2 and SU3 1 for ins.t.an,ca, said ;;shamba liliuzwa. chini ya ubalozi wa Enock Hwalukomoo;, SU2 found a buyer, Hichael Kerra, a teacher. The cell leader again swnmoned the villagers and told them. 1 SU2 t}1en ,said :;Ndipo alilipa (mnunuzi) ·shs. lald mbili nikakabidhiwa mbele ya ubalozi wote, nik.atoa. shs.20,000/,. kwa aj:i.li ya ushuru wa kijiji, alizif!Okea Balo.zi~ tuliandi:dane. mhele ya Balozi, tukaondoka kwenda kwenye

~ liJ:U~ kuonyesha mi:pw.2.~ eY...aonyesh,ra mi~ yote ye.. s~~?:aie·: .,; ·.. ~ The point here is·· th:i.t at the tLw :::>f the sale the shamba was stiil the property < I • of the appellant, and as rightly submitted by Mr. Hwangole, the payment of the village tax or ushuru as indicative· of. the recoe;:nit_ion by the village leadership ' . . - . of the appellant 1 & ownership of b·::l shamba. •.·.· ...... The respondent, howeyr 1 cl,.,imed that the shamba had become the .,.., .. _ operty of the. village when the etppellant le:i t the village and that when he heard about the !!ale he instituted the suit against the a:ppellant bfore the Urbm'l p:·:i_rnary court of Tukuyu· laiming the land back C,;l'l bel'lalf o:f the villagers_o In a well reasoned ' ' . judgment, the primary unanimously found for the ap_pcllan. holding that . the land •, in disput~ was the prQperty of the appellant and.dismissed the suit with costs. . . . .... •. ' The respondent felt aggrbved and ,:,ref erred an appeal to the district c, .. nu"t of Rungwe district· at Tukuyuo Tlie d 1 :,,tdct court partly allowe'2the appeal holding that the first part of the shamba ')elonged to the appell21t \·Jhilst. the second part "an ..... ... ,. Wa.G the property of t!1e vi11·,:..:r::, The district court called the sec·cfod part t spaC,;l" • d · · · th ~ 1 t ' t· . ' al emp y·/_ .._ 1e ec11on &ggriev, ·· . e e.ppe1.. .. a.."1 , nence .cas ··secona ap;)o • o

19 That the subordi..;1.ate co1..L ts E:rred in law in .entertaining this suit as the respondent h.:; ... , no J..OC:J.S standi. 2 1 That the learned District i.agistrate_totally e:crec. in holdins that the appellant a1x=mdoned the s:uit shamba in 1960. 3o That the first appellate court grossly erred in law and J>oint of · facts in subdividing the suit sham'oa. 4. That the learned District hagistr,de totally failed to evaluate the evidence on recoid. I have already disposed of grounds two and four of appeal. 'l'he appellant had not aba.'1doned the land on leaving for r·'ibozie He had left t 1~; lanrl ~ ,... ":1c::: hands, and under the care, i,f very able persons after he l'lad occupied and developed _it for almost nine years. He was therefore in law .still in ef::':!"+i.vt. occupation of the land, his physical absence notwithstanding. Not even the second part of the land was lying idle, Indeed it arpears that it was the village authorities who had unjustifiably encroached into ·c.he land in 1979. They reallocated t:'le land to

th& cl~~~ Thi& ..cmtrt has consistently held that where land is already occupied~ )\ 0 C O ' ' '• •\o O ' th.8re t be very strong reasons for its reallocation - SEE, for instance, ~~Ub,o"' Kar,a Vo Mc3;l"'!'f Ez.291!<:'. (1967) ECD L:-36, and~~~~ V Joel (1972) HCD 12.20 It becomes clear in the circumstances, tnerefc,re, that in reallocating the la.no. to the uillage, the village authorities had acted on wrong and irregular prin9iple. The village auth0r:.. .. ' s:.s had acted in clear contravention of the appellantts t.ahlishad rights .::-.' t::1e la.ndo The district court clearly \vent astray in subdividinz the shamba in dispute. It was an error in law and on the factso 'J:he land was the prope:.ty of the appellant as a whole, and the land was put: and being put, to use a.s a whole.. This disposes of ground three lf appeal .. I am in consequence, satisfied that the decision of the primary court was just,ified on t'·•: evidence and sound in law,_ and that it was impr(}perly impugned by the dis tr 5 ·.:-t - court$ There is• finally, the firs,· ;;ro1.g1d of appeal to coL.sider., Both advocates !'\ ... " ·, ~ :, ·--_ - · are agreed that. ther was an irrr.'sularity in the way the respondent filed the suit. He filed it in .his ,ne.me~ :-ie oug·':1 ;: to have indicated that he was acting on behalf -. of the village council which wa..s the proper plaintiff., But as rightly submitted by fifir.. Mushokorwa, this irregul~~• + :y was curable under Sect ion 37 (2) of the Magistrates l Court. Act 19Jl1- e It car,1e out clearly fro1] the proceedings that the respondent was suing for the land on behalf of the village, and even the statement of claim alleged that the subject matter was village land. Bo the irregularity did not occasion any failure of justice~ I accordingly allow the appeal, quash and .set aside the decision of the district court, and hereby fully restore the 4 appellant to have his costs her€ ;:-~d 'in both 24 September 1999. For Appellant: Mr. t·iwangole, advocate .. For Respondent: 111r. i•lushokorw:=i, -9.dvocate. judgment of the primary court. courts belowo The