Paulo Mashala vs Nana Paulo ((PC) Civil Appeal No. 69 of 1991) [1998] TZHC 2036 (4 December 1998)

• ! • ••• . J /--:tN THE HIGH COURT OF T;NZOOA . } .. , . 1\PPELL,'\TE JDRISDICTION. . . , · ·:(Mwt:inza Registry) ' · · , ":; (PC) CIVIL P.PPE1'.L N0o i9 OF 191 oliom tie decis'ion of the Dist:rit Cou.d• oi Magu J)istric~. at Magu in Civil Appeal No. 71 of i989. .. " },?efo!~ j .. J. Machumu, - Esq •. . s•enior District Magistrate and Kongolo Pri.'T!ary Court. Original Civil Case No.6/89). ·.•.-- P •,TIT A r,M SH ',T . .. ,• .... · . . J1u,... 11. H.l..Jl:l. o o o • e • o o o o ci e o o ~ o o • o o o o o o. o o.• • o o • o 6 o o • • o I\PPELL!i.NT JUDG.BMENT -----=-=---- I MREMA, J, •. i j The appellant Paulo Mashala wes the plc:d.ntiff at Kongolo Primary Court in Magu J;.>istrict. and the respondent ns.na s/o Paulo was the:, defendant~·,· Paulo: Masha:J..a:'.-u9essfully sued' the rspondent for dedaratiori.· 'tt the ' suit land was his: ·as• W'aS. al]:ocated to him. by the VJJj_age· Development. :•· • . .. . . . :- .. ·. J • ' Council(VDC) of the area under whi.ch the suit lartd situ.ates. Tha-c· decision enraed ,the respondent Nnna-·.who appealed fron):,.thai; decision .to the District Court of Magu •.. The appeal,was allov?ed a~ the decision,·of ,.,,. the 'trial court overtur-ned and set aside. The latter decision·in•.turri ·.H 1 .: ~ · ... . - . . . . : .. ., .. _ :· . did not comfort the appellant, hence the present appealg ·· •From .the facts of .the c·aae_ .it ,is .ce>r_nmo.I1; g.'.!'.'od tha_t: t.M ,disp:u.td land was· .Il property of one BUZUKJ'.. s/o GULi-WWA (DW2) •. rt Wat:; not also contradicted at the .tr:i:: tp.at DW2 was face;d, with matrim'oni.al problem··,in. ~ 1986 and ,was forc!:!d to follow bis wife at her p_arents• place, .viz, ·Bulimao· · As his wife refused to::return to :'ner husband's viilage at t-tuJ.a··bW2: (Buzuka) re·turned· tb 'Itandula' and- entrusted his _landed-proper.ty to. the Village,_C(}ll :;Leadership and he''t:heii went back ,to Btilim· 'r·tii-Ja.sirt'q!t/'sb <-· :_:Y controverte·d in" evidence '-that the· respondent Nana i./-the ·son ·g;f Buz~a• s:. ·

2 wife and that Nana was left living in a house situated on the suit land. But then came a situation that turned· to be unhappy, be it to the appellant or respondent. .·•! ,, : i rt was claimed at the trl.al court by the appellant (PWl) to the effect that th~, ownr ,ff the s¢t :L&nd (Buzuka Gi.tl.amiwa) havi:pg shifted to Bulima ip 1986; the Village Coun6:t:J.: rJ-a11ocated, Buzuka' s · land/sharnba .. · ·. •. ·. .. . .. to the neey'.villagers : upon ·application., PWl stated that he was one of the allottees after he submitted his applicationo The allotment was on 5-9-86. Two paddt plots ( 11 majarball) were given to PWl and these pieces of land, according .,to the appellant, ,had some .sugar-canes grown thereon. PWl did not utilize the said land until 1988 when the sugar- canes were harvested or removed. The appellant planted paddy seedlings on the two plots but while doing so the respondent enchroachec:i/·01/·to the .shamba and repeated exactly what PWl and his family were doing. This exercise created unhappy situation which led PWl to refer the -dispute to the local authorities and when it faiied to be reconciled the appellant referredthe matter to court. The appellant-plaintiff was supported by one Martin Madebe. (J?W2) ·. who stated in evi:dence that he was the then se'cretary of the Land •'Allocation Committee in the Village. This viitness affirmed that he 1,,;as in the committee that distributed the land left behind by nwf to the applicants, including the one in dispute. The latter, he said,' was re-allocated to the appellant-plaintiff,·, But in cross-examination PW2 denie·d knowledge 1 as whether the. allotment was on petfuanent or temporary l ·· . . • ·• . . . ~ ' •hasis,. . . , .The ,respondent• s case was to. the effect that after' he ensured:. ~ ··- ~ tha,t his ptit;:.ti ve father (:bW2) was sett-led- 'at Bul:i:ma he returried to :rtandula Village to ca.re '.for· the sham bas lr/ft · bhind by DW2. ' All, ·;save . ., for PWl; whom had' been allowed b'j the Villa'ge gover':tinent to till the '· iii-and 'returned DW2' s :pieces :o:f' land.to th respondent' •. · DW2 ·ga~e' stiong

;•.>-;· .... __ .... :. -~ .-·~ ·, 'J evidence to support DWl (respondent) f for he categorically stated , ••• • ' • •• • ·.: .. • j-' • that when he went to Bulima his piect:s of shamba wre left under CCM ••. · t" ., , : .. .) . . leadership. While at Bulima he received information that all his landed property was temporarily given to some villagers to make use of the land. Later when he returned he found a.11:, hi land hd · been ;.eturned to his ,sn: (DW+) ·except the piece of land .in dispute which the app·eilant refused to surrender. Then DW1. and DW2 had to go to court to demand I· for.' their legal right~- ! : - .... The evidence of -1.bel Maseni (DW3) was not also controverted. ' Accor.ding to this witnei;,s ,he .affirmed that DWl put on record,in the . ~ :· Village office, all his pieces of shamba he owned there and promised that - he would· ·be back within a period of fi ye years. Further that during that period DW2 would consult hi_s children to find out if they,. , , or any oi:ie of them, would prefer remaining at rtandula; a,nd should that, ,~ , "t ·t - .... . - r .- • - • '." •,•;: ;;;:'. •. :•. • ' happen· then the_· land should not be re-allocated to any. one._ As it turned . ·out,· however.., the proprietor of the .disputed land· (DW2) returned to his •• l '•• • • • homestec,id, l_et alone the fact that lris • cliildren we;e · not interested in moving O¥t from their original land. . • .·. ....;--:r:. J. I ··now --c·onsider .tlie grounds of -appeal. There· are four grounds . -: : which• can-convip.int];y be dealt with generally. . . . - ' . : .. :·. ::.. ~ .: . . . ~ ' ; . ,'.s the Learned Senior ... District Magistrate Mr>. Mnchumu, as he then was, correctly observed, the ,. .... _f": • .• ' ·, di'sp:uted property .belqnged _- to DW2. The ppllant laimea:.-at :the trial -· ·. . ' . . a ir( his memorp.J?d:um of 6.ppeal that the ·respondent: was not: ·.the- -son of· DW2 and, on .that. ncco:qnt he (Dwi) 1as· not entitled to iriheri t -DW2 1 :s,property. ·. ; ~ ... ·. . . . .. : I find i;i.othing legal qr ,factual from the· appellan-if1•$Jpifoposi ti'<m'··beca:use . ·. . . the. dispute be.tween· :the parties had nothi to dp' w:tth .. · the -·quest;i·on\o( · .. - • . . · :. · .. -· , .. ' . . . ·-.1·. · f) U: · , . : .. ,,, inheritance. The- occupruit of the land in quesi-on··.(DW2) was not de'E!,d and there is not an iota f ev:ideni-· iic:{i~: tht D_ W2_. had abandocf i ~ ." ids pieces. of shamba. .,;IP my: 6penioi· kd te occupier o/. nr.);ltend~d . - . : ~·. ; . ' . .. ' . : ,\ . . .. .;.

4 _ .... 'to abandon them he would not have entr'tl$ted them to the ccM village lead:ership. DW3 was· o're of them in t:he 1e'adership who tE)stified st/brlgiy for DWl and DW2 ••. Anc;l as such, 'bf my considered openion, as long as DW2 had not abandoned or surrendered his landed p;r:-operty t9 the-'village government there is no law that preyented him from not allocating part of his shamba to DWl even if the latter was not blood relative of DW:2'o::: Only the children of DW2 ,;or ?lose relgi,ti ves of DW2 1:,1ho could compla:L:n against their fi:tthe 7 t s property_ and not the appellant who was not· in any way connected with DW2. Yet, there is evidence on record,_ a fact ad.mi tted by the appellant, to the effoct that the respondent vas the son of DW2' s wife. If that was a correct Statement it would mean tru:.r.e.fore,~ that DW2 11-1a~ undoY'.:btedly DW1 1 s putative father. And I am not aware. of any Law that_ ,says that a putative r-iither canrtot pass some of his property to a putativE¼, son or a depedant. The primary .. ,court did, not cite cmy law to justify their statem,ent that nyeye (respondent) h hale$ yoyote k:ishera la kuritbi ma./:,h11ba au kitu chochot.r cha M:zee Ba 11 o C ·-.,:,,-·' As to the position of V.D 0 C., I n.gree with the Learned appe;i..;;t.ate on MagiqJrate that the council was n0t justified in Law, orlany factual ground, to dispossess the respondent' s father the land whic'h. ,he had not ,, vacated permanently, and particularly when he still ·had intention to return. The ti.ppel,lant claimed that al though the disputed land was al.located to· him on . 5/9/86 he was unable to work on the land because the :'same ::iad sugar-cane plants. He· never said :tn evidence who planted.,, those plants. The dispute then started in the same yar (1988) • Fran .•· this piece of evidence it tends to show that the appellant had not had physical control_ of \he' :·1onct between 1986 and 1988 (inclusive), hence an inference that i:h.o 13uit · land wo.s stil), :tn the possession of> the original owner ut tl.hder trw care of CCM leadershiJ2• ··i:) Be that. it mii:fr, eyn if it is a'.imitted for the sake of it that t~. v.n.c d_id re.Jhl1'6cat~:. the su;it'''lat;ld to the appellant, and not as a L ., '

.. 5 licencee at the will of the original occupant, it is crystal. clear that ' ·\ . the re-allocation of the land was illegal and amounted to abuse of power by the Village Council - a similar situation happened in CHRISTINA NDEGE -f; • - ~ '. • -~ .. - . .. . ·. v. D,/.lJDI JJhNKJ'.NY.,,· (1968) ·1rcD, N~• .. , 255; r also the situation in the· ii:J.stant . case was different from what was obse.bied. by this court in NY,'\SOBRo·· ._,.... -·. ~ . .. . . GIN3.J vs, .. CH!YGHA G~\Sf.Yf' .. , (i968) HC~, No-~ that the appellant· h'aci left .her lot of la1:,cl 'for teri yes· without developing or world.ng on i -· and wnt to. live in another area at a considerable distqnce therefrom, though she l:;lad left standing on the lnnd. a hut of n of no great value"• - Though : .. she. won the suit· in the primary C(?urt, Nyamwaga, the District Court · . . . . .. . . reversed.th~ decision arid gttve judgement to.1?,e .respondent.· The lady- • . . . •. ! •_],:.,.:.. ••. ·. ·' ' pl'.3-in-i,ff, ( appeiia.nt) appeled to this court. pd HDmlyn, J, as he theii • !·_1 __ , ••• w,., hd ,the, following .. to say (dismissing.the. cippal): . , .: :, i9:ft w~~ld b3 neither good law nor in acc·ordance with ;public' p6i:i.cy to allow a plot holder to depart from the land for suqh a nwnber of_years i . . with the result that.'the land:may:1:ie'fallow or .. t-eyet" to bush. Once it ha comas established ( as in the instant case) that there has b.aen_ no ral . . . . . - - : "• .. animus revertendi,., everi'ihough a hut remains therE!on, the land merges in the· c·ommo~· po61 of ·pioperty ,av~lable for distribution to '·members of the" public seeking proparty to developii • . In the instant case the evidence strongly shows that, thnt was not the case, as it happened to Ny ago bro (supra),- for it is in evidenc.e _ that when ••••-M • the holder of the land went away sometime in 1985 the respondent moved on:

' to the land. It is even admitted in evidence that DW2 left a hut to DW1 1 , though the case ·for . .the , !:1.ppellant is that DWl bol}t, the rru.t from DW2 • -· ✓ ;... "' - ' 11.pd 3-S. already stated ab()ve,, tl?-e appellant conf:irmed in evidence ;•• -/ I : , ~~. ;. :"," .• ' •i:-~ ;_ ~ • ..: - ,,: .;.· ·:. ••. , . . tr..ial that he was unable 'to 'i;,,ork' on'th piece of land ·be·eause of "•. \ .. . at the the sugar canes,.he found standing alive thereon th~ disputed plot. That he started ~-. . . ... working on the land in 1988 when those plants were removed, thus confirming J' ·,

6 ... that the land never went fallow• l\gain, in the present case the appell_ant and his witness (PW2) never produced aTJ.y tn$1lU.tes of VDC to establish, thi:i.t tho committee.-that

• .. ( .- ,-·- . . • '·.. . f' •, -- .. allf?;edly re-allocate.cl the s:=tc1. 0 land to th ap:pel;lUJ.t ,was properly __ constituted. Alse> there is no evidence confi+ming that the holder of the land surrendered, t; },and permanpntly to - the __ village government but to the contrary PW2 c,penly stated they!; he, would not __ re.member :Lf the holder:, thereof llad intei;rld to surrender the suit land permanently or temporaril;y:. As it was, stated, with my approyal, in LUKhS Mi,,SIRORI KNI'ETI v. CIL(') SEBEGE 1 (1969) HCD 1 No.;1.1,, th0t it i 9, μnju.stly a:Q.d. · ,. . . ~ . . ·-'' -' . ' ; . . -· .. ... . - ... unwise on the part of duly constituts=id council ,of members of, VDC t 1 0 ~ - .. -- 1~' 1 - ,, " ~ '• ,~ I ~ distribute a holder's land in hil3 a,bsence and when there, i-s no evidence : ( ,.' :, ·.:.:, (; ,, .... _ -:..,.L~. ) .. ·::·- :· · ~: -, / ; , ' • ·',: · 1 ; '.: •• : • • • ' •••• • • • • • • of n animus revertendi 0 • In the final result I am in full agreement with the decision of the L0arned appellate di 9 trict Magi;strate that the rtandula vil;t.age Land committee, assuming that 'it was properly constituted bμ:t whibh I_ doubt; , bprobcrly :ahd unjustly re-allcicated the disputed piec~ of Land to the appellant when t~~ holder thereof st1J_l had interest thereon and had not-effectively'surrender.:d the property to rtandula Vil],.9-g(:} Goveriiment'! , That said, i_ dismiss the appeal and affirm the judgeme:nt of the r.ippellate d}st:r;-ict-co111;'t, with costs in favour of the _respondent Nana pauloe 4/12/98 J;TJDGE - :- Order: - - As I i3tate·a: ~ the -parties ;-0n 3-9'.'."'98 jud~~rnent; pf this; · Court should, be certified to the , Primary Court of Kongolo, _;, , r ., • ·,•, • ' • •• , : • • JUDGE 4Tl2/98