Kijori P. Katundu vs Amin Abdallah (PC Civil Appeal No. 120 of 1997) [1998] TZHC 2132 (28 July 1998)

, . JN THE HIGH COURT OF TJJ 1 iZ .. ~IA D.A."'l ES S1J.Ji.Ai'iI DISTRICT REGlSl'RY · AT DAR ES SALJ.AM PCo CIVIL liPPEAL NO., 120/1997

• · KIJORI Po KATQN.DU • ., ., ., ..... ., ., •••• ., •.,.,....... APPELLANT VERSUS :AJ.'\iIN ABDJJ.LAIT ., ............. ., ••••• ., ••••• ., • • • • • RESPONDENT JUDGMENT Clainu Piece of Land Bef ores Kati ti, J. Bagamoyo Primary Court, via Civil Case Noo 47/1996, saw, one KLJORI PAZI . .. . . . . ... KATONDU, the appellant herein, suing .AMIN ABDJJ..I.J'.JI, the respondent deil}.a.ndilg a piece of Land allegedly wrongfuly encroached upon and occupied by the respondent. The respondent demlrring and traversing the claim, the trial took a. course; that culminated in-!,~ the succoss of the claim, though on · appeal, the District Court reveEed, the decision of the Primary Court in . . . . favour of tlie resp_ondent, a..""ld. hence this appeal by the appellant. The fact · that do not easily attract controversy are. as f ollowso. The appellant a relative of the respondent, publicly brought four acres of land f'ran PU2 SUMMA M'!-TINYIGOOO for Sb.s.250,000/= and bounuries shown According to her, a year later, the 1;esponden t and othei. invaded tte . area, and uprooted- . ' coconut· trees and cassava plants, for failure to be paid comp·ensation. .And PU2 in addition of to confirming, the sale disclosed that earlier, the

• e .. . . respondent ha.cy' to buy t:::i sa.1,::i L;; Shs .. 130,000/1::: but,_ that upon _sale of his shamba., to PlTl, . the respondent and others rose up. in .t1l""Ills, that· as they had been occupying the sa.i4 shamba, since the villagi.sation times, the-land was thirs. ,And for this claim, the respondent, found· support from witnesses like Dl'12, DU3, mr4, ·nw6, whose .evalup-tion by the courts below yielided, the incancu- rrent Judgments, and hence this appealo acre~ The questions that univessaily should have been, and has to be appreciated/ . 1 1 wh.Qther· he .. land bought included that owned by the respondent, .and ;..;2- w4ethc . . over twenty yeaxs ago. the same had been allocated dtn:.·ing the villagelisati.on area, The trial Pr:im.ary Court unanimously found, that, the respondent land or part thereof, was-not . . . involved ·at all, and hence .the Judgment in favour of the appellant, while the . District Court, found that the respond-ts · shamba was, . allocated 1,:, the respondent during the vil.ulgisation period, it was within the area sold, and that having so stayed there for so lo;ng,~e resporident could not be --- \

• 2 • . disturbed and hance the rversal ,of the Primary Court decision cittin supporting cases· like -SHABAN! NASSORO VS. SHABANI SHlBA (196?) H.C.D No.233 SIMON OSITA · .-. -..,...,.,..,..,. • .,..ta ..,.., •• aw; ,.,... • ., ·a,a: =• VS.,, ADRINUS ,.SERERE (12,,§__8), H!9.,• 20. . I have preperly'examined the grounds of appeal, the replies thereto 1 and I am satisfied beyond a shaddow of doubt, that the issue is as posed above, it is in this country uni vesap.y aknowled.ged, and the c,ourts -•f law of this colJD.'try, hve been .iaking Judicial notice, that the yee:r 1974• waa memontous villigilasion year• when new villages and new boundaries emerged, thers reorganized ·and others altered and expanded,. without regard to previous ow.ships, or, bc>1mdaries. On . . . . the evidence,. the .village of the parties Kerege was not. spared, ·and it is defying challenge, that, the respondant and par.ents were some of the people that shifted this area, and allocated plots of land. Whether the respondent, was allocated land, in PW'2 SUNNA MWINYIGOOO former shamba has been the question, upon which emotions are 7agi$• The answer does not seem to be for to seek, and its conspicuous ,-eition is as clear as follows. ~ ., ' . ' First from the horses mount, PW2 SUNNA MWINYIGOGO told the· court, that before he sold the shamba he called them, respondent and children, "na kuwajulishakuwa nimeuza shamba langu walliloUvamia huko nyuma.·wazazi wao •. 11 This simply suggest that he had sold, the land that included the respodents iand, or part of tlu1,t· J:and j11:at been allocated to tfiern• secnd in the mmo of appeal he cncedes in no · uncertain terms, that the area in question had bee.n so allocated,. in the following fashion. 11 kwba 1 kukaa kwa muomba ?'Uf aa kama miaka 22· ~ ' ' • • ' l ' • ,, • si kumhalalisha mjibu ru:faa, na wazi wake kuchwrua shamba, amba.lo ni mali ya watu. Eneo hilo walipewa ili kujenga nyumba za kuishi'. tu,,. na kugeuza shamba ilikuwa ni makosa •. Nwakutakiwa kuendeleza ez;eo hilo 11 0peration Pwani 1974 1 1 1 haikuwa• nyang 1 anya wananchi mashamba yao ill wapewe wa.geni." \ . . I can understand the appellant:s bitterness. but what he does seem to make clear, is that, .the piece in dispute was during the Vijiji operation allocatM to the respondent,and that he had been in use of it, he turned it into a shamba for th~ laE1t over twenty ;~ars 1 as comfirmed by comfirmed by DW2NGARIBA RAMADHANI _,·,, . and DW3 ALLY CHEll,"'WA aged 6o and 70 years respectively. But what, r cannot . . . . ' . · cultivate myself to believe, is that the alloeating authority, woua;.d allocate an area as big as that, for just building on, but stop him from indulging in further agricultu.ral economic ~ctivities 9 Third, even the intervention of· . • ~ ',t·. < ' • village government seems o be witness,as to how the i,arties are connected, with.the place in di:spute 1 andDW5..SIJ\JABtJ OMARY KISlNA h this to inter al.so say: It

• Nilipanga 6/5/95 niliwaitavalaJamild.wat wakaja wote kwa pamoja, waliki.ri kuwa wal ipewa, · maeneo hayo na Serikali y~ kijiji wa.kati wa ''Peration Vijiji, na waliendeleza, maneo hayo na kudai we.lipa.nd.a mihogoj minazi miembe, walidai walistushwa,· kwa kuwa hawakupata taarifa • - ............ · ••••• • •• • • • •• • • • • • • ~ • • • • • • • • • • • • •••••••••••••••o•••••••••••••••••••••••••••••••••••• ~ l . . Nikiwa Mtendaji wa Kata niliwaeleza, Bwana Sunna 1 atamke, atawapa maeneo gani, na atawalipa fidia halali ya Kiserikali. - ················································ ········ . . ' Nilimwita Ndugu, Kijori Pi ili aeleze jinsi gani •ataka.vyolipa na aelee mipangilio kama.mnazi, jinsi atakavyowalipa •,•••••••••••••••••••••••••••••••••• ·····•,•!•,,·-·············•~~~-- .. ~ .......•.. Alipokuja Bi. Kijori Pazi, alikubali kulipa, na aliomba aelezwe idadi 1 :na aliahidi kulipa lakini hakulipa. With respect, the exerpt above shows that the piece of land in Dispute 9 , . ~ was a subject of allocation during the villagelisation period, it _had sin·ce been, and by the time of being sold, it had ben:developed by respondent and that is why 1 the question of compeneation which upon expert rvaluation amounted.Shs. 92 1 88/:::, arose. And while the question of compensation to let '- the shambaa go, m?-y be an exercise of volition betwee.n the- parties, the fact issue . that, the the•/•' aro:se, and was acknowledged by the appellant shows, that the respondent had invested value, therein and for eo long about two and half decades, and the Dietriet Court was ri.ght in coming t() that conclusion it reached. The contention in the circumstances of this eaae, that, the respondents plot is different, cannot hold water, for, what would the appellant be contesting, we mean that and whatener plot ,J' part there of, that has been under produetive cultivation for over twenty yeers, interfering with much occupation cannot be accepted at all, I would therefo?'$ cannour with, and uphold the District qourta Judgment, and dismiss the appeal, with costs. · Court: -· Delivered this 2tth day of July, 1'98. E,W. Katiti Judge· All partie$ preent. -~~~ ; . E.W. KATI TI .