John Stephen Kitwika vs Aggrey Lazaro (DC Civil Appeal No. 30 of 1996) [1998] TZHC 2485 (25 November 1998)
Judgment
a
MWIPOEO, J.,:
!N THE HIGH COUR'tC ' OF· TANZANIA
AT MBEYA
(DC) CIVIL APPEAL NO. 30 OF ,1996
(From the decision · of the District Court of
Mbeya at Mbeya in Civi1 Case· No. 34 of 1995}
JOHN STEPHEN KITWIKA •••••••••••••••••• APPElLANT
Versus
AGGREY .LAZARO
························
RESPC 'DENT
REASONS R)R THE JUDGEMf
JOHN STEPHEN KITWIKA the present appellant• sued .AGGREY LAZJUC
. . . R.M's .
MWAKAJILA the present respondent in the ·· .. : .. , Court over a 8.6 Hfc ares
Chunk of land in Nditu Village Rungwe District which, is a survey;(
of
No. 315 under a title ·, 1 :J; .,:~ .:i.1 deed of a rightt~·occupancy owned i,rc
of , · · · i
namet_and prouced inccourt by the respondent as exhibit D4.
Farm
· -the
The claim
1
r the appellant upon the land in diESpute, he testiLt. d,
to have origit· ted from their._.local Chief Mw;;eka s/o Mwakalikwa :) .·
who gave the
I
ea ':. to him in 195({year)out,L which he· gave ( th 1
year of 1968) :5 acres to Andelile Mwakingwe when so requ.estd
by their village elders. The same 5 acres he later on ~~~ tC?Jtnov-- ·hat· .:.-
they had be·en incorporated.into the. .surveyed and titled. land of Farn 315,
of the Respondent which made the District Land Officer of Rungwe
District refuse to re-survey it. and de-regi.StE,:, it from' the respondwt so as. to
:·P.C-register it in his name when he applied to, , do so ent committee,
•.•••••• /2n 1978.
On the -~~r hand, the respondent testified to have bought the ed :,re
'-.
·•· ...
8,63 hectares of land from-La.:ts.qn Mwakingwe in 1987 the boundaries oJ
which were confirmed by the Village·.Government of Nditu who ·gave him
permission to survey and register it and he .got .. -the -right ofo occuparic:1,
certificat.e .in 1991 iJl his name after the survey. and beaconing of the l'md,
· of ·
in dispute was·· done by the Ministry · Land officials in the open • and
pres of the vill.a.gi ,g
. ::. . ; ....
... , ·2
The key witness of the appellant .was,. one· Andulile Tom Mwakingwe
the person ' ·
wham tha:Awell.ant-tMsWied to have been -~ <. to whom he gave in
1978- tht 5 acres piece of land. out of sheer bnevolence on request
. .
from. the village elders• · At the. time-,.of _the trial thes'. sa.ine .. Andulili Tom
BUt '... .,··••,
t
Mwakingw.e had already di.ad.·.- \ c the adroj ni s.traor of his estate one ·
lat,son ..Mwakin@Me testified as DW.5 that the clan of Andulile ·(11. Mwakingw.e
after his death- una.nim.o.us¼' decided to sell the surveyad land.--:.•>
part of . · ; ·. ·
constilut,j.ngpann 31.5 to,·· one Philipo Mwak..ubambaki .who too t,.;1; t.estifie-d
as- DW.2._ that .he..s-oJ.d it -1-987 to the_ respondent,. '
l
T . ~ . , :. ·. Weir~ to iUlct)aile 14w<lp·. . ;
- .the ap.f!ellant-.canc.edes to ~ given_ in 1978. out. of his
own will will and. good . samaritanfsm, part of h: owifr!t fu.;·195.5
. 'tch j.& :::•.di.s,J,uted )20rlion of
-- ........... _ '.'!'-"=···--. -···- ---- -d .no1or falling within and inside the surveyed Fn,iμ Zl5 e appeUant
disposed that land to .A.ndulile Mwakingwe until , __ ; 19 June 1995 when
this suit was filed in court for a <:ontinous period of 17 years which
falls outside the 12 years time limit within which the appellant could
.. ,.,,_ ..,the
·1 .•.•
.respondent, the same land disposition transferre.d for ever h;ls pr1r:rious
it to
ownership of i (. ·t,_ Andulile Mwakingwe.
In law, a disposition of property includine land out of sheer love
or good neighbourliness transfers good title from th;e donor to the donee
with immediate effec:t
1
He cannot therefore go back to retake it back
....
from the inheritors of buyers of it after the same Andulile Mwakingwe
had died. Moreover, the same donee named Andulile Mwakingwe and. his
estates inherit¼g clan of DW,5 and their two succeeding buyers DW,? a.rid
' ',' . , .• • ·:-·< ... . \ ; ·t:-. ·;.. .
DW.1 ,have been in .su.ccess.ive oership of it from 1978 when t-·- --.-- ---::'."""'~ .. , '!'."'"' ":•-•.-; '' 14.;1~ •• i .-. •,,.,. .,;..,..,.,. ... ,"=',
possibly have redeemed or recovered back his ld on showing goo<;l caus.e
such as having been fra.uduJ.ently disposed of it. to the late
Mwakingwe thereby eliminating any.possibility of ~raud. The possibility of
the late Mwakingwe to have been iriv:i,ted to the land in dispute is also non
•••••• /3r on establishment, of the
respondent
I
s/ .possession of the land as h2ving · bee.n · on a\mere invitation
!' • . .
relationship only. All these two possibilities don't_ exist here, for the
appellant himself testified to have freely relinished i
.... .. ,
- a -
exi,sumt for he-used it .with pe~t occ.upation .. with.out ..the.appellant's.
. .
abjection .
d at his death the appellant did not reel.aim it hack- a.ft-er whi¢h it was sold twice without the appellant's objection. The appell.ant trensfd owne.rship of the plot in dispute many years ag_o .and he desperately failed to prove his residue rights o,i.ertin the trial?resent in person. ,Q<;urj.:. . Reasons for J1,1dgment are delivered in the presence of both parties. JUDGE 25.u.98ourt which made a lawful andc correct deciilion that . I he had no longer any valid claim over the .land in· dispute. That is why I dislllissoo...hi.&Aggrey Lazaropeal. ·with costs. Coram: Hon, E.,K 1 .Mwj.popo, J •. \ E.L.K. MWIPOPO ' JUDGE 25.11.98 Far AppellantJ.- Mr. Naali, Advocate .. Pl'esept, ii Respondent: B/C: Kossam. John Stephen Kitwika • Present in perso