Andrea Anaclet vs Felista Colonery ((PC) Civil Appeal No. 188 of 1993) [1999] TZHC 494 (25 February 1999)

I , -. ,··---1 . -J ,.. < t t '\ .I . "' "' IN THE HIGH GOUR~ OF TANZANIA AT MWANZJt . . (PC)° CIVI'I>APPEAL NO. 1'88 OF 1993 . . ti'! . . .. .. . .: · ... ...:... .. _ .. - ·-·· ... - ••.• FROM THE DlSTRICT COURT OF MULEBA DISTRICT AT MULEBA. IN {IVIL APPEAL NO. 14 OF 1993 BEFORE I.N."B. -JIEMELA .Esq, .. SENIOR.-P..JSTRJ;CT MAGISTRATE. ORIGINAL CIVIL CASE .: . . ...... . NO. 68/92. OF 'I},. PRIMARY COURT .OF MULEBA AT RUKINDO .. . . ·•. . - ,.. . ANDREA ANACLET APPELLANT .Vrs .... FELISTA COLONERY 0000••••0•0•••0•••0•••0 RESPONDENT .. . . . ... ,. NCHALLA, J 0 0 r-- 'This is. an old appeal qf 1993 which was filed here by· one Andrea Anlet against the decision of the appellate Dii1trict Cturt of Muleba in its Civil Appeal Noo 14/93· which ,reversed the decision , r the trial primary court at Muleba which- had declar the appe-. llant as the rightful owner of the shamba in dii5pute.· Rweyemamu and Company, Advoctes are representing· the appellant in this appeal, and Mr. Rugaimkaμru, learned advocate fli'omthat Firm appeared and argued the appeal. The rspondent an old lady timer, and evidently ailing, appeared in person and.resisted.the appeal • . , . Mr. RugaimKamu, learned advocate argued six grounds of appeal. He firstly submitted that the appellate District Curt erred in reversing the_ deqision of the trial primary court, whch decision . ' . . . . - ~ . . . . ~ . was well fpunded and was based on the available evidenceo ... Mr, Rugaimkamu argued that.while the respondent had claimed tha't · the. shamba in dispute was sold tt.t her in 1986 _by one Kakuru , ·• ., Butondiga, i transpired, however,· that the said Kakuru Butondoiga had _sold his ~iece ,f land to the daughter of the respondent ~ne Eresi Col,nery, who died long before the original suit was instituted /··· ..... . .

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2 ... by the respondent. Mr. Rugaimkarim argued that the respondent 11ad no r 1,cμ,s standi in the case as she did not prve to be the administra- . • tr:i;x ~ the late Eris Colonery, her daughtere Mr• Rugaimkamu argued that thre· is evidence on record which shws that the respondent was sold a piece of land by one Ferdinand Kaijage@ Ferdinand Rutegano, which piece of land is close to the suit -land. That -sale was -effected in 1991. Moreover, there is available evidence t&,the effect that when Ferdinand Kaijage sold his parcel of land t,. -the respondent in 1991, there was already a decisin af the court declaring the ownership of that parcel a~ land to the appellant. Which means that Ferdinand Kaijage had no preperty in the parcel of land which he could validly transf.er-"fo···the respondent :: ,· in: 191 as he purported to do •. The ·HeciSfori of Lukin'dn Primary -- • 'ceμrt in its Civil case No.67/1992' is releva.rit on tfliS point. Further, Mr. Ruga:i:mkamu' su.brri'itted that there Hf ·evidence en recera: which Shews that this land disputl"had l:ien'.eferre'd to the . Customary I.,and Tribunal which had· adjudicated. oh the dspue and declared. the _appellant to ,be the· lawful owner ofthe suitland. . ' . ".'. . . Alse,;,the Vμl.age Counc.il of Butare Buganguzi in Muleba where the . • "• . • • - . • • , t • • •• suitlai s situte, ,twice e~tertained this dispute and_found in . favour ;f the· appellant, first against' the Respondent,.,in ,1990, and

• • • • • • > • • , • < ~ • > • > L • • sec•dly against Gervas But9ndoiga in 1_992 •. Both t,he respondent and Gerv'as ButNl.diga had alleged that the appella,nt ·had trespassed r,n . . -. . : . :• .... :·.. . ... to the- suitid which each claimed.to_ belong· to _him and he:r respe- ; ctiveiy~ ',"! ·1·1 The.fidings and decisions f the Viiige Council in , question wre tendered t lle· trial before the i,;.imy· Curt, and .. the same were marked as exhibits D1 and -D2 respectiveiy •. Those !'I ·decisions· are authentic,'they pvide-very 0 useful evidence as to the 'real aiia. true·owner of the land in.disp;1i; .',.t ..... , ,. •.. /3. ✓ , '

• _ .. , .... · 3 - .... Di'her reply on appeal before me the respondent adm.itteti that the land in dispute was not in fact sold to her by Gervas Butwdoiga, but the same was so.ld t~ ·her daughter Eresi. So, the sale agreement in respect of the· suitland which.was tendered in-evidence c;l.t the trial . : . . . : ,,·; . ' ' - :i ,. .., .. and_ rparked EXh W 1 B" was not a true· document ·representing ·sale of the ..... . --~:;·-··, ·.- ; sui tland in 1991 by Gervas ·But··doia io··; the·: '.t-~~potid-n't•Ii:e lister Colonery. The respondent conceded that··:li'e. e v:/as falsely entered in that document. The respondent also c··oc~:d~ci':'·t11at she:.was· not .. ·:· -: ... . appointed administratrix of her late daughfef'. Eresf:•'.Q.foaery. ·... . . --. ··. : . . ,. - ..... . . ·.· .. On the·.,p_repo1;1.dJ;'anGe based on th.§3 _ available avidence ~ I am satis- . ·: •. -fied· that -the..land,. in dispute belongs to the appellant. The respo- . . .. .•, . .. • ·. 411 ·-:-~ ':·. ·• ~ ... · ·. •. ; • · • nde·n_t -.did-· -not. :establis:ti_ her ewner.qhip over the said land in· d·ispute. . . . ; ' : ·.: ... ,-: - Fr.m her own mouth she concedes that the suitland was not sold to her n 1986 by. Gervas Kakulu @ Kaijge J.utondo":i.ga. . The same was . . .. . . sold tf' her-daughter Eresi •. This evidence raises a legal issue which suggeststhat the respondent has neither locus standi nor·any cause of action .·ih this matter. Pa:r,ticμlarly so when she cencedes that .------ ... · she was not ap}:90ii1ed administratri~ f"f her diiughter Eresi who is , alleged ·to have been. sold the land. in disp_ut~ ,_by Gervas Kak:ulu @ Kaijage ·,:Butondaoiga. Moreove·r, from th~ dcisions of the Village Council .. . ... ;. exhibits D1 and D2 which I have-referred te above,. the ownership of the suitland·is that of .the appellt. s, it is my finding that ·the decision .of the-tral primary ~curt was _well founded on the · available evidence;;·· ·r restorE.l that decision. On the contrary I find that the decision of the District court was erroneous, the same is set aside •. The apllarrt' ;i's' declared to b_e the rightful owner of the land in disput~ and the respondent and his agents or relatives and employees are hereby restrained from interfe~ing with the peaceful ,·· ...... ,,. ..

• . • .•. -·---···-- . ·:.\ .ccupation •~ possession of the same by the appellant. The appeal . ii.•· .:. r: ,

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has.merit the same is allow13d entirely with_ coots. It is so ordered. 13/1/99 Date : 25th February, 1999 .e . . '.f•r· Appellant: . R'.>'!eyernamu Advocate ... Absent not served· •r·· . R'spondent: Absent . Bench clerk: Mr.. J.O.R 0 Makandege C•urt: _ Judgment delivered in court at Mwanza in the absence~·e.f the -., . -•· parties who appear not to have been served due to the negligent · .omission by the civil Registry clerks at this court who had been duly instructed by me to .ntify the !"parties to attend at the deli yery of this judgment, this the 25th day of February, 199, .• .-. ,, Right of appeal explained. 25/2/1999 .,; .·. ... ... . ORDER: I charge the DR. to call Mr. Rugaimuka!nu, learned advi,c.ate . . for the appllant and.hand a &epy of this judgment for his action. The· jU:dgrrient be typed 6n steru;:il,cyclestyled, and ....... .• :- 'flt· PY of it tog;ther with the records of the lower courts, be ·.flt" sent back to the District Magistrate at Muleba .who should call the respondent, read and interpret this judgment to her, and thereafter issue to her a copy of the judgment ::,n payment of\h···:requisite t'a:e-s,.. Order .8.CC◊rd.iue;ly •. Kr MWANZA 25/2/99 i 1 V"®1t~· M.D. NCHALLA JUDGE .. I • < ) -- _../