Cyprian Clement Muhando vs Constantine John (P.C. Civil Appeal No. 54 of 1996) [1998] TZHC 2481 (27 October 1998)

IN TEE HIGH COUR'r OF TANZANIA AT TABORA ...... -....__..,_ .. ..,..., __ ~ PC. CIVIL APPEAL NO. 54 OF. 1996 (SHINYAHGA CIVIJ.,.APPEAL NO •. 42/96 ORIGINAL CIVIL CASE NO. 89/96 NINDO PRIEARY COlTI1T) CYPRIAN CLENENT MUHANDO •••••• ,,·,.•••••••• APPELLANT Versus CONSTAT INE JOHN ••••••••••••••••••••••• ,, RESPONDENT The appellant 9JLP.!'}::~~~~C}e 11!.~~n~,-•!U_ca}l<i<2, and the respondent Constatine John were workers of a ranch. - •-•-· ··r · -m.:.. ............ .ai- The appellant was a. cattle keeper, and the respondent was an assistant manager., Tho ranch went broke and it . · ·was decided that it be auctioned. The villagers, r the people s_urrounding the ,i:-.a.,nc, decided to contribute moriey among themselves ·and b1.1y the ranch, as· it were. So; in.-·:,.,: .. < auctioning the ranch away, Shs. 8,000,00Qf= (eight million shillings)· was collected. The village cor.mittee sat, and distr.=ibute·d _plots among· the. villagers - an· exercise which I think is c~mmendable. The appellant. r;ot a portion., and the respondent got a portion. Now, __ the evidence shows- that the respondent got a portion which once, before the selling of the ranch, had belonged tc the appellant. -So, the appellant went to the respondent. and told him to quit that piece of land for, as the appellant argued, the· land had belonged

2 to him (appellant) before the ranch was bought over b:'7 the villagers. In s.hort, the appellant had wanted to add to the piece of land already allocated to him,· the portion al_located to the respondent. So, he sued . ., the respo11dent in the primary Court of lTindo. He lost the case. He appealed to" the District Court of Sh:Ln-yanga. There, again, he lost the case. He now appeals to this Court. There. are a lot of ·things in this case which sht'.'IW that the law is, unfortunately, n()i on the side of the appellant. Firstly, proper , I would have assumed the :-', -' ·. person to '-· be . sued in the whole of his case would have been the Chairman of the Allocation Committee and the Committee which allocated the land to the respondent., The respondent did not grab the land on 1':lis own. Secondly, the appellant., i;3 P~'l;'t and parcel of the village, and he was., along with others., also allocated a piece of lando The whole exercise that the arpellant is doing is glutt~neous in nature e . - Thirdly, if I can come back to the village Committee: The village Committee μas ma,1date to allocate oll' re-allocate lan,d in. its domain, provided, of course, it does not d.isposse$$ a person of land . ' . wj_th malic•e. That is what this Court has said in so many case.s - a few of which ar;e:

1. Katen de le Ktfolbina iJnctomo '--·-' CO,.:...;.&.-.---.:.,&:...:..e.-.a&..- -----·---· ----'..:..-..-. Village Hzega v. Shija Kapuli , .. _...__~~---· .. &.----a;--&.- .............................. ►•· ....... •.6:" ~ ·"'" .a,.·-···'"- ...... ·--- ....... -.a.·.-• ...... . and 8 others:: P.c. Civil Appeal .......... ....&;.-•::a,,c;.a;i.-- •. -. . ....----.-.,. . ....-..:11 No. 3 of 1987 1abora r Chipeta J.

3 , . 2 .. E)- i~ JiirfJite2.c1.p._.y;;y K,a_j.i. I•fyJacse]- (1970) R.C.D. n, 6 - Mustafa J. Fourthly., there is this other factor in - the case: I . The appeal before· me is a second appeal: The case of . Amr'atlal Darnodat, and Another v,, A .. H .. Jariwalla [:1989] J-..L- 0.. •• ,1.... ,.l.. ,L..""-.-"· ...::,.. . ...Ji,;...;.,<c..·.... ,, .. ,...--- -<---e.. •--c-~ .. .n...-.&- /4 ".1 . --a..-t:· ....... •· :'"' ---••c ' ·• . • '1 1 .L.R. 32 has held that .11 11 where there are cone urrent find.in~, of. fats by two Courts, t,he Court of appeal, as a wise rule of practice, should not disturb them unless it is clearly shown that there has been a misapprehension of evidence, a miscarriage of just ice or viol at ion of some principle of law ·or procedure. 11 Uhen the appellant was before me I asked him why, in the first place 9 be ciecided to sue the respondent, , t- just an innocent prson~, who was allocated the land by the village Committee; and he replied that he did not think of that. He thought the respondent was the one to su~. I see no merit in the appeal., It is dismissed with costs" C., MAS JJCHE At Shin-yang a 27th October ,t998 . . Part~e1_s: Absent.