David S/O Mgogo vs Kayange S/O Mtonde (PC Civil Appeal No. 21 of 1994) [1999] TZHC 488 (12 March 1999)

MOSHI, J.

IN THE HIGH COURI' OF TANZANr.A AT MBEYA (PC) CIVIL APPEAL NO. 21 OF 1994 (From the decision of the District Court of Mbozi at Vwawa in Civil Appeal No. 32 of 1993 I Before: J.L. Lupenza - District Magistrate) DAVID s/o MGOGO •••••••••••••• ~ APPELLANT Versus KAYANGE S/O MTONDE ••••••oooeoo RESPONDENT JUDGMENT -·- ... ---- ....... This· is a second appeal •. The dispute between the parties entred on a piece of land measuring acres. The appellant, David Mgogo, claimed that land from the respondent, Kayange Mtonde, before the primary court of Mlowo, and lost. His first appeal to the district court of Mbozi was dismissed, and he preferred this second appeal in which he repeated his assertion of ownership over the land. Both parties sort and obtained services of learned advocates, in this appeal; Mr. Naali for the appellant, and Mr. Mkumbe for 'the respondent. The facts established in evidence were straight forward and undisputed. The appellant and his family had several acres of land the appellant had inherited from his father. In 1964 they left for Zambia leaving the land idle. While they were away the village government took over that land and reallocated it to several persons who we.re _in need. It was in 1974, and the respon«ent was allocated 2}2 acres of it· which is the land in dispute. The appellant returned from Zambia in 1990, and claimed the land from the respondent despite that the village government allocated to him 12 acres of land .elsewhere·whieh he still occupies. With respect, I find this second appeal devoid of merit. !1!!.t, there was clear and undisputed evidence that the appellant committed acts which amounted to waiver of his rights over the land in dispute. ·He aband9ned the land for about twenty six years and left it. idle. Land should not be left to lie idle •••••••••••• / 2 -----'-'

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• 2 - for such a long period simply because there is someone claiming ownership. After all, there is no land ownership as such in this country. The National Policy on land is that the present generation holds it in trust for their descendants. Individuals or groups are allowed to truce possession and occupy on condition that their occupation should be-effective and that they should develop the land th~y possess. The reallocation of the land to the respondent by the village government, therefore, was justified in the circumstances. Second, the court has been reluctant to disturb persons who have occupied land and developed it over a long period- SEE Shabani Nassoro v. ~ajabu Simba (1967) HCD 233. In this case the respondent had been in continuous and undisturbed occupation of the land for about sixteen years which was quite a long time, and, as rightly submitted by Mr. Mkumbe, it would have been unfair to disturb his occupation. For the foregoing ~reasons, I am satisfied, as were both courts below, . that the respondent is the lawful occupier of the land in dispute and that he I should continue to occupy and to develop it. This second appeal, in consequenee 9 stands dismissed with costs. ' AT MBEYA. 12 March 1999. For Appellant: Mr. Naali, advocate. For Respondent: Mr. Mkumbe, advocate. B.P. MOSHI T