Asulwike Kamwela vs Semu Mwazyunga (DC Civil Appeal No. 13 of 1997) [1998] TZHC 2418 (13 November 1998)

MOSHI J. -··- ..... - .. t- IN TR.~ P:IGi.i CCURT OF' T.4.NZANlf-1. AT MBEYA (DC CIVIL APPEAL NO. 13 OF 19'7 (From Original Civil Case ?fo. 66 of W95 o;ft the District Court of Hbeya District at, 1':l)eya Defore: M.So. twabutiti -~ District Magi*ate) ASULWIKE KAM 1 ;JLA . Versus Sfil\IU MWAZYllNGA •• t C JC •••• 0 • 0 • 0 0 0 0. Ri<!SP0~11)ENT <JUDGMENT 1, •• ~ .... _ .. ------·- ' The dispute b~ t~ parties centred an a 1.5 acre iJ1hamba at Ute?!.~~e Usongi.<fe village~· 'rhe .appellant,Asulwike Kamwela, claimed it fro~ t••tlSJ.'Ondent, Semu Mwazyunga._ before the d,istrict court of Mbeya, and lost., hence thi.&-am;>eal whicl1 was preferred.and arguQCi before μ1e by his learnad. advocate, !-!t-e Naali; and .resisted by the reepondent himself. Th\ following material fta were. eabli.sMd- v-'j,det. For leJ)y $- prw to the year 1979 the appelht O'Jmed ::i.nd •ccupied \orhat tn, trial eeur± ' termed a large por_tion_of la_nd :at 1!tengul€) Usongwe Villae.. re 1979 e-. viJ.lage coverrunent decided to ,reduce that 'large p.ortion f land by allQCating portions of it to other persons in need. It was itt the absence of the eppel, fnd,: the allocated pieces of land were' measuring 110 x J+o s'f;eps. l'he reia,onden• who had arrived from Iwambi was one o:f the per.pons allocated a plot o/ J.1-nd. It was the land in dispute. The vi\lage CY-.A"vi Chairman., Sinlol\ ta,ilgi (PW2), and the village Secretary, Ibrahim !'1,4aijumba (Ph'3), had _tjken PN't in the lt.nd allocation exercise. They measured 11<> x l+O steps and ■ et the boundary. bween ' : . \• t _,, . . . the shambas d:t the a.ppeJ.int and' that of the r•epondent.. •It was,- eommon ·"' .· 1.: . boundary. The case for· the a y:peJ.lan t _ was that upi,n hie i,eturn. to tht tU-i:oae in .... • 11 1981+ he register"ed a complaint with the villa._ge authoiti• ii,, conneation with the· allocation of -parts _of his sharnba in his absenceo He t'1en conti.t!ued to .. ,. . o O t • c,' • Cl o O e ♦ // 2

_ .. ,._ .. ,,· -: .t', .. ·-· 2 ;./.l:":• ·: _i-: {):7'L;;!>-:!!7·.~ -~ .. r-J /.f;: f -l 'tr. ::- ... j --:-:::i:\ ... C~- ;-:.•.j.iJ.f"r'{1.f I· ... !. 1 .. ,'j cultivate his shamba. .. That same year the respondent complained to the Village authorities that the plaintiff encroached onto his lando Village authorities . • . If.·. f." ."' ,..~:;.,.: "i.-1 went there a.d found that it was the respondent who ,had .encro-,ched onto the lanq. . . .-: · r :·· .'. '-' .:s .. ':4.t~ L~ .1 r , - of the appellant. The respondent made the same rer•rt to ·the police who.arrested . . :. - : .:· "1 .... ~ i•:;: ·.: '" ·::.~. · the plaintiff and charged him before a primary cm.1.rt with an offence.,.' r~~iYf, . • • ;• • I, trespass. He was convicted and sentenced to a fine of 'sh.6-,000/=_or_fou_r month§. ):· .• !J1J!j,-J..!J_i•: }t::; imprisonment in default .. conviction and set'aside the sentence., L1 consequence, the then learned Counsel i :it ·rj: (1/I.E.r {1dJ :::.}t. for the appellant, Hr. Ndibalema 9 preferred the stlit in September 19.9-?, which was c• J°..I, ') • .,~ ;-:'i·, £:,,.:~ . .:.; ',, ~•,J~~.r '; for: -:.:.:::·.~~-··:.:.:":{·- ;-;r-·,fi'r;, ,f:

1. a declaration_ th.at the appellant wa-. the lawful owner· '· ;,l•";•:: .• ;•, .• • f\ ••-1:::•.;.·•:· .. •1 r" of the land in dispute" • • • ·• ~-.. f ~ . 'C" .. ··:-:.~~·., ~' .r: (,,:
2. an order for vacant pos·session of the land in dispute. ,, r , .• :.. •.,:·; .....
3. co'st-s of the suit.
4. .any other relief the triaJ. court deemed fit.'-and ·:jusFfo-; ·, ~ I . ,,' 'i· grant. ' On the other_ hand 9 the case for the rospo11.dent was that in 1980 he planted caliptus and ba.mboo trees to mark the boundary between the land'•, •·.: -...:; •. :.·:.:., allocated to him and that of the appellant. He then occupied and develbped: 'fli.e .land peacefully until 1994 when the appellant crossed the boundary and · cultivated part of his land. :J'/ .. :. 4 .-1:· L. The trial c9urt dismissed the suit with costs on the grounds; . [i,!.s.!2:-J.:., that the claim was time-barred, s_e~•pd~, that the village authoritie. . .• l '. l,. f \ --•~ • :., .;,·'.I •· did not demarcate the boundary between the land of the app8llant and that f '. the respqndent at the time of the c:.llocation, a.nd .l-:}:.r., that the tree& ·. , ' . . '•. ' . planted by the rJspondent in 1980 marked the boundary ·betwen the two. shamba.e. The trial court visited the shamba. in dispute in the :proeence of both parties, as well as PW2 and PW3 • '.r.he court prepared a skeh plan e.ccrcing to which .. , the respondent's shamba. measured 110 x l+O stepe. · B•twe&n this sha.mba and that of the appellant there was a strip of lanct·mea~uring 58 x 39 ~teps which was . the land' in dispute. And the trees planted by the respondent ma.rksd the

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• 3 - boundary between the stri}1 of land ana. the shamba of the ar,pellanto ifro Naali preferred five grounds of appeal, but I need consider only the first ground of a.ppeal for. purposes of disposal of this appeal. It is: ; 1 o :hat the learned· magisyra te erred b_o:th in. law and in fact in giving tl-e decision: in favour of t):ie . respondent whereas the :plaintiff's case was fuJ.ly ·established and ··suy,ported by the v i.llage achninia.traiono I would say at the outset· that the ,suit was not time ... barred. The appellant was away from the viJ.lae a~ Hie tim~ of the allocation and at the • .j I time the respondent planted the trees; Ile had promptly acted upon his return to the village by chaJ.lenging the dishing out to othcr·persons parts of his shamba in his absence, and by instituting the suit against the respondent. In. the circumstances of this case,· therefore, I am satisfied that the suit -vms by far :·r·• within the· pr·estrHied p.er-iod of twelve yearso . ••; t, I It appears in the circumstances.· that the trial court failed to approach ,i the evidence of PH2 and PW.3 with judic_ial objectivity,. 'fhese elderly viJ.lag.e i officials (60 and 57 years old respectively) had taken part in the allocation of ! the land to the respondent o 'Xrney sid in no uncertain terms that the land· measured 110 x 40 steps. This was· the! standard measure applied,. 1.'Jith re$.p_ect· , - ... : ... .... .to. the trial magistrate, it could not .have beeri the case that the land alltce.~ . to the respondent was unmeasured an?, undernarcatedo This ,ould have be'ei1 contrary , . to the who1e idea and purpos'? of allocation. You allocate that which i distinct and determinable. 'l'heS"e· wit1"sses further said that they viaited the shamba in. . , .. ~ .. : dispute and found the resp9.ndent at. :favlt. I am yet to be told the reae;i,n. fo-r ,· •·. the witnesses to have spoken lies,, And more, the sketch plan sp;>ke for itself. ' I . In it the land allocated to the res-:'.·,ond.ent measured 110"':x: 40 stepso The_·st:rip~ «: of land beh,een the shambas of the aupe::.lant and the respendent, therefore, •~-- ·'-" could not have belonged to the respondent. It was '\neariy part of the alipellaat 1 :s ~-1 shambac The trees r,la:nted by the respondent coul-9:. n•t have constitu.ted the official boundary. It would be -reca1led that the respondent had planted the '.1 •· '1 trees on his own without any official blessing. He had rlanted the treesj therefore, 0 0 • 9 C'. 0 Q O O O : 1 4 11J .... i:'t.- ....... -· ,.. ...... ~~-=---,' . r

'' in a manner beneficial to him. ·For the foregoing reasons, l would, ·with respect, agree with !tr$ Naali that the evidence of the a-ppeJ.lant, as su}1ported by that of Pb!2 and PW3, had clearly esta.blished the claim to the required extento The preponderance of probability was clearly in favour .. of the appellant. The allegation of the respondent, ·on the otl}er ,ha.nd, remained unsubstantiated.. ' I would end with the foJ.lot,ring two remarkso f'ir:;stlz, the. repond.ent was .. a greedy person. Gratitude was not listed amon·g his virtues. He was a stranger who hacl been allocated. a piece .q:f somone 1 s land for nothing, and he had expressed his gratitute by grabbing at more o:f that land. _S_e.c?.r.:-.dfX., the reallocation of parts of the appeJ.lant' s land in the circumstances of this case bas caused me cons id era ble .anxiety.- i1he only reason given for that exercise was that the appepan.t'.s portiol'! of la;d was large, possibly meaning too big for one 'individual ••. f.'his reason, w-i th respect, would net have sufficed. i . " .. ~ . . for, or.'justified, the exercise:h.· It wa not aJ.leged or even sucgested ·that the J.and was lying idJ.e or that it_h_ad been abandoned or that the appellant had otherwise contravened his undisputed rights over ito '.l'h1.S court has often· said, and I. \fish to say so yet again, that where land is alreaa_y ocCJ.ip.:i.ed, tl'!.eie must be very stron,g reasons for its ;..reallocation to another person .... - .. .SE:E: M_ctJ\l~~ J(E-~~.a _ v_. __ !8:.r.w.a .. nxfl·P:.?!11]cv, (1967) HCD L,;6, ai1d ,nug_acwa __ v •. Joel, (1972) !WD 122. I would leave the matter at thato · .. ·•· · .rn· the e_vent, I allow the c>.ppeal, qua.sh and set aside the judgment of .,..'the .. t:idal- cqurt I and he~ __ eby enter judgment :for the appellant as he had, prayed . ... :. in the ple.int.. ,The appe1.lant is to have his cost5 here a.nd in. the court bflow. For Appellant; Hr~- Naali, advocate. For Re,spond.ent·: Aefft;- t.TTJDGEo ..... ··- ............ ..