Sailes Mwailolo vs Osiah Mwakalambo (DC Civil Appeal No. 32 of 1997) [1998] TZHC 2411 (31 July 1998)

'I I ; '..; I !M TY-m M:!GU oeu.n111 1" '!'AMUN!A AT HBEYA DC CIVIL APPEAL-NO. 32 OF 1997 (Original Civil Case No. 12 of 1995 of the District Court of Mb,eya Dist:i.G.t at Mbeya Before: M_e Sa. Rumanyika ·- Robident ·t-1agieua.t•) SAILJI:S MWAIIDID •• ·• • • • • • • • • • • .. • • APPELIANT Versus OSIAI-I MWPJ¼IAMBO cooooeooooeC11000 RESPONDJi:NT JUDGMENT .. - ............ -- The dispute between the parties ar-cse from, and centred eni. a common boundary between two pieces of land at Mpuguso village in Rungwc distr'ict~ The respondent, Osiah Mwakalambo, preferred the .suH befor" th• Resident Magistrate 1 s Court of Mbeya against the appellant, Sailes Mwaill•, which wa fO'r:

1. A declaration that tho· respl"\ndeia.t wa.s and i~- the lawful -owner of the suit premises. 2e An injunction restraining the appP.llant fr.m interfering in, and trespassg onto ,-.the suit prmiseso
2. General damages.
3. Costs of the suit. The trial court granted prayers ?E., , and fa!:£, and the appellant, feeling aggrieved, preferred this appoo.l through' t}1e services of his learned . advocate, Mr. Mkumbe. The appeal was resisted 'oefor me by the learned advocate ·for the respondent, :Mr. Naali, who .bad also r•vesen the reepondent at the trial. The case far the -respondent was this. His land was surveyed in 1989 and two beacons Nos GJD ·470 and lf71 were affixed on: the bountjary. He was given a Letter of Offer (Ext P2) on 24.4:R9, and grated a Right of Occupancy (Ext P3) dat'ed 2.8,89, He planted banana trees and pine apples, H shamba. shared t~ southern boundary with that of the appellant, Which wan unsUi'veyed .. On 31.12,94 the appellant t:r:_espassed· onto his land by crol?sing that boun~ a.nd cut down fltOOoOC0••/.2

... l :. r 2 his banana trees ancFp·i:n:e ·appre·s worth" sh,so30,000/==. His br0ther, Daniel Mwa:l._alW ·:PW2 sei'd h't::' was tilling the land when the ap::;ielJ.ant trespassed onto it and the a:,ipellant ordered. him to stop ti1l1ng itc PW2 added that there .was a traditional tree ca11Gd. -a'!lde,_ele planted by the appellant at the soutlrnrn Fart of the shamba J.ong ago in the past. PW2 concluded that the appellant had tarnpered with the bou:'.ldE,ry as well. '.:'he respondent's last witness, J.·;1.mes Kasunr:;a PW3t :-:,<1id the respondent inherited the shamba from his ' father .in nineteen--fifties c::md that it is neighbouring r,omworks •. . .·• The version of the ar,peJ.lant was this. In 1993 the respondent tres- :pasd :>'hto his land" and uprooted maize p19.ntcio His two witnesses, 'hwever, 1.,.rho \vere ce11 leaders, Wilson Kane,1tgo DW2 and Lamson Mbucha DW3 said it was the respondent I s brother PW2, and not the respondent<i who tresp&13sed onto the appellant's· 1a.TJ.do They· said ·pwz had, plante~ trees along the poun.dary. They said the matter was rel)"rted to the-village chairman and . ·lt • they settled the matter amicably with P\v2 replacing the maize. They said there were so:ne beaco!ls between the shambas and the appellant nev,ir crossed the boundary. They said the plot in dispute was next to Comworks and that in 1995 -PW2 repeated the wrong. DW3 concluded. that they were surprised when the respond.:ent sent, e appella·;t to court. Nr. Mkumbe preferred three grounds of appeal, tut the learned advocate abandoned grounds two and _three, and. argued only the .[~ ground, which was: • •• • C ,;.,. • • • • A. 1.; Since the substantive suit originated from a disputed boundary bet,,,een the litigant's shambaa, the trial court erred in law and fact in deciding not to visit and see the di.sputed boundary. area On' 7.5._97, the -trial. •urt made an order that the in dispute would be viitec,l. on 23.5.97. This was a:f_t~r th_e ap:i,ellan,t had closed his case. On · . ,·· . . -- 23.5.:9;?, hO¼:,fVer, no visit to the area was ma.de on accot;nt of that the court fil.e was misplaced and. the trial magistra tc was taking his annual leave. 0;.1 22.7.97 Mr. Haali reminded the trial ,court about fixing a date for visiting the disputed area. It was set for 5.8a9'7,. But on tl:-iat day 1fr. naali was absent, so no visit was mc,de. On 27.8097 Hr. Naali, again, reminded the o & o o o c· • o ./ 3

. ,L._ .,)/ """''(,,-' 3 :·-':+ .3 _ trial·,court abo.ut sett;i.ng the date for the visit. The trial mRGistr-ate said he .: ··:.. . ... . ,· ...... ·!·,,.., wou1.d ruie· on i~heth·ex-'."tne · <'rder to visit the scene sh•uld .copt:illue to stand. -havind' considered, primarily. the· ·t est-imon:i:es . ~n, ~ec :>r.d : pu , ~~ ?,n•;,1 ic h9.rdshi;'.) 0 . . . • • .. , , I .,, . • ' • , , .•.•... • t. , - ·, .'.' 1,.• : ~ . - . this court· is fa:cin:g: gt' the -now .ti.mD, J μereoy ·vsqd. '.prq~~-- -to v:L-3i t the disputed plot at fu;~~y:·:" J'·dgmerit -dte ·was· set for 3;·•10·097·;· a,nd it was r ;- ... '·•· '•-'. 'j . ~ ~ ~ . . ) - . " r ,. ,.. . • , .• ,., >Mr .• · Mkumbe.subrr\itted t~.:.at a visit to the.dis-outed area vias necessary in ' • • ·: , .,' •• ". • , • ~ ,J • ' •• ,; • • , . ' ., ~ - •• - ~ . ; . J. - ••• ·;,. ,, •• 1 • . • ·- ,' the circUil)stances ,of. this c;as'3 as. thG .suit ceptred on a bo_undary and the area • ' .. ,. • • • > "'II , I was surveyed and had beacns. ·Hr.· Naali; fo:r-- his pa.rt; s_ut'7.Tlitted .that it was ,y,t noOQSoary that tho iand. in 'dieput .sh•uld hiive beeri:visited and that th~ . ' '". "', trial court wae satisf i'ed a.t the end of the tri.al i;ha t the claim wan established. .. . . . ., .. , . . ~ .. : : '·. . \ .. - . . ~ . :. .' .; ... _ r would,-\1t·t£, r;spei:· te si'cte; 'with"M;.- m~~be. · thiyi,dence and the. • • ,-• • I •) • ~ •4, ~ '• :,· ; •. .'4#. ' circumstances spe.}('6.it loudly in favour of his sub:7lis;sionq The core of the • • • J ' ;. ,- ~ ~ I' ; .suit wa~,,a dispute ove;r- a common boundary of two shambas one of which was ' , . " ' ' surveyed and had beacons·. C-n the evidenc·e .before the: trial cou,r the issue .. '. wou1d h{-1._ve been as to who between the respondent r .. ?.\12 _{:l.cl. _the appellant had treepassed •. T'n _evidence, however 9 was such that tJ1e trial court could not have justly d/ra:rrly r·eolved .that' question. without ·-vi·siting. the l,ocus in quo. There was, for m"·s"ce, the evidence 'of the to' vi).lage :leaders ,(D.J2 and Dhl3) j '' _which eemed to suggest that the are9. PW2 was found tilling bel•nged to him. . l , :This could not hav:e been if;!lor<id. _ They had 11,a;ra and settled ·a c·•mplaint • • I • " • " registered by the appellant :against the respondent. · The respondent did not say he reported the trespass or any trespass to any person i.11 authority at the village. Th,ey had seen PW2 plantin3 trees along the boundary, and P\r.12 b.ad ' . ., confessed to them _that he trespassed onto the land of _the appellant. 1be trial magistrate based his deciion i..:.pon firiciing that the appellant hd a customary titl over h lncl' in· di.s-i;>ut which extinguised upon the ,lmd being surveyed and given to the respondent. But the evidence before hirr) was such that he could not have mde that findD1g cofortably. T.e evidence before him did not suport that finding~ In view, however, of the decision I intend to make in this a"!)peal, ••••• • / 4

' . . 1 ' . . . ~ .. ; " - . ,. ... "C~- .·.•-·"~-- •'I. ••• __ ., ......... , •.• 4 I would not get into the established legal aspects of t=i.at finding. The stand now t"3-kr:m 'oy r-r. ifa.ali on the question of a vL;i t, th()ugh understand.ble, is however not, with re.spec·t, appreciable. The learned advocate

• had been per:=:;iste::nt and insistent on a visit at the trial. No dohbt he 1-i.arl. .. . • 'I' ?qpre<;:iated 1 as did the \rial conrt, that a vi.sit to the dis::,uted area was crucial tn the crrcumstances cf the c,;1,,c:;e. 3'..lt I consider it e. disservice to 1Jle interests of justice for the lGarned a:dv-:-cate to now ab-3.ndon that stc..:nd on account of that his client won the c2,se. For, the interests of a client, ,\houg1l · ·-., paramount, carmot, and chould not be ermitted to, override the . interasts of justiceo In sum, I am satisfied that all the fore)ing m;.1.t.ters 1 :1ould h-3.ve ben resolved .with comfort anc. c.e:::-tainty by a visit tc, the c'.isputed area. The trial mag,istrate had fully .realized the i."n})ort,ance a.nd siguifj.c,-..'.<!lce · of doing so, and this wduld account 'for hfs earlier order for -a v:t.sit. ·fl. •-V-'ltt, '• therefore, would have been e.icp,edi.e.nt in ..all the ~~ -.,,f ~ OQfie, I woul-d hm-e- rclsd the ~ ~ t tao U"ial ~~ 't'"• ~ t.~ ,r-i.oH 'ta~ J,nr:~ -in quo and thereafter- wri~ e. j~, bG-t., fc,:- tao 'faet th'~t '!it.; lr i::iu.:Ll «-t:. h'i.s ~ion. ~ ~ ~, 'I ~ew ~~ . d" tl.1!J' -t.'41. o,,.. ~ atld' 1• ~ ~ ~ '-D .a ~ 4o- ~ £,g,,.•.;i,o- ~~tr.: n.f compe ju.r;i,. ·"· ~ :~ollaftt oo ~~ ~ ~. 0 f. thi& a-r,~1._ . . AT !"iB3YA. ,.,,, ,, ,, :ror Appellr-mt:· Mr. Ekurnbe, :?.dvoc:1+.e. For-Respondent: Absent • . :, \ . . . . Jm.xrn.