James Mwalusepo vs Francis Kapondania (PC Civil Case No. 1 of 1997) [1999] TZHC 359 (24 September 1999)

i'·10SHI 1 . J • ·--- ... c :: ~ :e./1.?1~~ . . ~ . AT ;~EY1 ... - .... ·f··'~~ .(i'ro famgwe )jist:dct Court at Tukuyu ·civil --'P.Peal Noo13 f 19cd, Original Tukuyu. Urban;, Court Civil Case Noo 1 of 1997 .. · .: .;. . : .·· ·- .... ·- " .Beu.re: D.D. Komb'-' - District Ma.stratet •. • . ~ . o,J,. • ___ .,,. ••. JAKES MWALUSEPO 0 .> ... u f o O O O O w " o O ~ 0 0 0 0 O . APPELI4NT . Ver.st.LS

• . • F.ii.ANCIS. KAPONDANIA :.:ooooo"ooooooocoo RF,SPONDENT --------------- -- ·--- JUDGMENT .: .. •, ,., . .- The sul;}..ie matter in this case 'l'QS et. two acres .sharii'Sa which was allocated .,-("",: to the appellant, James Mwalusepo, b;f Kalal.a ".Jiliage authorities .. in 1959. From .. ':·:~ de,i,elopment standpoint, the shamba had two more· or· hss· equal parts to which I shall hereinafter r-efer as §e ffr! and the sec2_nd -~~:-· The appellant occupid the land and planted the first pa--:-. with such permanent· ;;:::-ops like tea and ban.arias, The eecond part he reservecl for, ;-;.:·.d cultivated, .such·sea,;mal crops l,ike maize and b.eanso In sum. not an inch of the la..'1d was left idle. In 1968 the a.ppellant and his family left for hbozi for eyes treatment He notifieci village authoritieso 'rhe chairman of the•"vi:!.lage building construction committee, Anyisisy9 Mafwenga ( SM2) 1 said so. rie also ndhfied celi level leader- ship.. A cell leader, J1.dam Masisi (,SU3), and Angumbwike fo·1aJ.r.2..,".iyelng<? (SU4), · said so.. With r_e~peet to Nr. :'!UShoJ.wrwa.! learned advocate for the respondent:· therefore, it was not tr:ue that the-·appellant left the village without informing the village leadership. The appellant did not leave the shamba unattended. ·He left the shamba under the care of cell leadership. SU3 ·said .:Shamba linalogombaniwa na wadaawa ·na1ifahamu . - . ni mali ya James Nwalusepo, mwaka 1968 alipah-,a na matatizo ya ugonj\ ✓ a ,a macl10 1 . . Balozi wetu al-ikuwa l'~wapoJ.olo Kikwita, alituita Balozi Mwapolalo akasema kwamba mwenzetu huyu James· Mwalusepo ni mgonjwa, anataka kwenda 1·ibozi k.utibiwa ·hivyo · anataka kutuachia shamba tu;ntun.iie P:.si wanauba.lozi 1 na sisi wanaubalozi tulikubali c a o o o .., o o • /2

..... r l.eaders of three cells were taking care of the sha,nba :for the appellant _ who .were: Mwapololc;. Kitwika, Merere Sonciamuno and Mwakatefuo SU3 thenii-went on ,;Mwapololo

• . alin.iachia. uhalozi ndelea k_,_;;.;:,.:...::1za aha.lY:ba. la Bwana }1walusepo. .s:::2.mba liliendel.ezwa a u.chuma.j:. na up.::w:>iaji wa chai na ku.lima na lmpanda mahindi na maza<l mengine ya nafaka.,; 'l'he sec,:etary of the village ·auildin:g constructin committee• BartQn NgurnQUke (SU2) 1 was also loo:cin -after the s1:ianba for the appal~~ The e for tne appel'.ent wa.s ·:hat he did not abandon his shamba when he left for Hbozie Un the evidence, I would, with respect, uphold the . , .... -·-· submissi~ y his. lea;rne<l p.dvoc_ate ,_ ;,;,r ... JJwngo.:Le, that; the, appellant a;i.ci not_ , .:~ In 19;9 the village authorit :Les decided to build a village gcidow~ oi the seeand. part o! the appellant 9 s'ian-d.· - ffhe'i:i.-f;pellant was·-s-cill aw·ay ~d he hi:tci not __ ·a·
• . authorized it. Anyieisye (SM2) ar;d :Garton (SU2) of the village bilding - cotuction cennnitt~~ were involved. :lso' in"cl ved ,:,as the respondent, 1'):ancis · Kapori.dania who was, th~ 1'illage chairman. 'l'he goC:.ovn1 later became the vil:age and CCH 'o:fficeo But the remaining ax-ea of part two as well as U.1e whole of part orie were reserved· ·for the appe,llant, SM2, SU2, SU3 and.Sli'i+ said soo In 1995 the appellant instr-ucted Barton (GU2) by a ·letter to sell thEf,,;hole of .hi~ land, that is, parts one a:.1c~ t\10. The ixdce 1as sh.s200,006/::-.:~ - ·,rhe news ' '\etas ann~unQed.. 'l'he three cell leaders summoned. a meeting of the .;illagers under them and told them that the appell21t was selling his land for shs .'200, 000/::::; SU2 1 SU3 and SU4 said .so. :l!iven SE2 and SH3 said so. Unly the res·pondent claill1ed he was not ~Wiedo 'l'he meeting wi'IB called by cell leader Exwck i' 1 lwalukomo who was. overall incharge ef the team looking after the shamba for E'-ppellant. SU2 and SU3, for inatanee,• said ;;sharnba liliuzwa chini ya ubalozi wa Enock Mwalukomoo ;, . SU2 found a buyer, Michael Kerra 1 a teacher. 'I'he cell leader again summoned the villagers _and trud them. 3U2 then said ·,;Ndipo alilipa (mnuxmzi) shs., lald mbili nikakabidl1iwa m"aele ya ubalozi wote, nikatoa shs.20,000/, kwa ajili ya ushuru wa _ kij ij i, alizipakea Balo.:z.i,. tuliandi:dana mbele ya Balozi 1 tuk.aondoka kwenda kwenye

3 . ,· .· ~ .lililO\Z.Wa 1yesha _mipru<:a I akaonyesh~a mipaka yote. ya snba lake The point her~ is that ·at the ti:,1e ,)f the sale the shamba :was- s't'.ill ·the property of the appellant I and as rie;htly submitted by jV'ir • Viwa.ngole, the· ·payment • of the --· villaga tax or ushuru was indicative of the recognition 1J;-_; the· village· 'leadership of the appellant I s ownership of t'.1e shambao The respondent, however, cL,i.med that te shamba had become the r·_- operty of tbe village when the aI?pellant lert the village and th1;1t when he heard. about the 15al.e he instituted the suit against the appellant before the Urban p::-imary court ✓ of Tukuyu • eJ,..aimin.g the land back 0;1 'behalf of the villagerso In a well reasoned judgment/the prim"ary unanimously found for the appellant holding that the land in disputQ was the prQperty oLthe appellant and dismissed the. stii't v,ith costso The respondent felt aggrieved and _oreferred an appal to the ·d:i.stric:t c0urt of

• Rungwe district at Tukuyuo The di strict court partly allovd the appeal holding_ :that the first part of the sha.mba ·)elonged. to the appell1t _ _-whilst the second part wQ.Q the property of the vill··,,;8,- The district court -eaJ,.le-ti the second pari; space·•• ··an empty·l The deciaion aggriev c:. the appellavit, hence t:<1is. second a.ppoal. Mr 1 Mwangole prefe:i:;'.'sd ±'ow..' , ;:,01mds of 8.Fr..!eal, w1_1icb. uerE! : __ 1 o That the subordinate cou;.·ts erred in law in entert~iri"ingithis suit as the reGpondent h&s r..o .oc1s standio

2. That the learned Di.s;rict ; :c<;;istrate totally erreC:. in hold.in:.,< that the appellant abc. 1 .nd:.ned tb.E: suit sha;nba in 196U. 3o That the first appellate court grossly erred in lau and lJoint of faet.s in subdividing the suit shambao
3. That the learned District nagistrc4te totally failed to evaluate the evidence on record. I have already dispo.sed of g.7.'ounds two and four of appea.. 1'.he appellant had not abandoned the land on leaving for i'-fuozi~. Be had left t.ie lanrl ", .. -::::e hands, and under the care, i,f very able persons after he had occupied and. developed it for almost nine. yeB:rs. He was therefore in law still -in effe,..tivE. occupation of the land, his physical absence nohvithstanding. Not even the second part of the land was lying idle. Indeed it ap_:pea.rs that· it was the village authorities who had unjustifiably encroached into ·che land in 19790 'l'hey. reallocated the land to

the CfilJ..ag~;. Thi~ coUl:'t has coi:,sistently held that wher~-, lan4 is already ,t)ccupied, th.a.re mw;;t be very strong rea.sor.s for its• reallocation - SEE, for insta,nce, 122; It becomes cear in the circw,1stances, tnerefore 1 that in reallocating the land to the village, the villag:; authorities bad acted on wrong ru:id irregular principle. The village author:.,, i ":f:. had acted in clear contravention of the appellantqs .established. rights the la11c'i.. The district court clearly t,r9nt astray in subdividing the shamba in dispute. It was an error in law and on the facts o 'l'he land was the property of the appellant as a whole• and the .land was put; anc being put, to use as a wholeo This disposes of ground three jf appeal. I aTi. in consequence, satisfied that the decision of the . primary cowt .i'JaS justAfied on F•,i evidence and sound in law and that it was impr:perly impugned by the district courtg There iEi • finally, the firs:t: r;rond of appeal to consider. Both advocates are agreed that there was an irr0:;ularity in the. way the respondent filed the suit. He filed it in hi,s nameo :-le ou 2 (: f: w have indicated· that he was acting on behalf of th·e village council which was the proper plaintiff• . But as rightly submitted by fir. Hushokorwa, this irregula:::!+;y· was curable under Section 37 (2) of the Magistrates I Court. Act 190 1 t.. It carne out clearly fror;1 the p:coceedings 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 lando So the irregularity did not occasion any failure of justi~e4 I accordingly allow the appeal, quash and set aside the decision of the district court, and hereby fully restore the judgment of the primary courte The (•,' ' appellant t6 have .his. costs her-e :md in both courts helow. AT MBEYA.' / .,...,..=--..- / For Appellant: Mr. Mwangole, advocate. For Respbndent; Mr. l,l'ushokorv-.'"', ':ldvoca'te. ~ ~.~~ I.,; (•.. ,':,::~~-- ~:-::_ ~- - : BoPo MOSHI J-UDG.