Ezekiel Kapugi vs Said Hatibu (PC Civil Appeal No. 51 of 1997) [1998] TZHC 2123 (24 April 1998)

II\ THE HIGH COURT OF T.ANZA1UA DAR ES SALAAI"i DISTRICT REC}I:3TRY AT DAR ES SALAAlV1 FC CIVIL At-PEAL NO. 51 OF 1997 EZEKIEL KAPUGI AFFELLANT VERSUS SAID HATIBU • ·o o • o • o • o o o o o o o o o o o o o RESfONDEiVr J U D G E M E N T fil_JgSHI .a J: The appellant Ezekiel Kapugj_ has filed this appeal to challenge the decision entered on 31/1/97 whereby the appeal filed by the appellant was dismissed in toto. There had been another case between same parties - PC Criminal Appeal No.11 of 1993 which was heard by my brother judge Hon 0 l'lackanja on 16/2/94. That case was instituted by the respo~flent against the appellant on a charge of conteu;pt of court, and that case trace its genesis to Civil Case No.61 of 1991 - whose appeal to this court was summarily rejected by the late Mkucie J. I have deemed necessary to refer to the two previous cases since the appellant before me has complained aga::..nst the judgment delivered by let Mkude. That he had occup.:'...ed the piece of land for not less than 20 years arrl that his case i.s similar to the HOLE case (Mohamed i-Iassani Hole vs Keya Jumanne Ramadhani Civil Appeal No.1992). ,,. The appellant has insisted that the High Court erred / to evict him fron1 that piece of land which he .claims he had acquired suring 0peration Vijiji. He ,;ne.·refore wants this court to review that judgment in terms of the (/ .Hon. Chief Justice Circular on the matt.er. It has to be understood however,that the matter which is· before me - FC Civil Appre.£i"' No .51/97 - erigti. nal Civil Case No .81/96 and/DC Civil Appeal No. 2 of 1997 is centred on the ~ppei'iants claim for 1500 bricks ' ( valued at Shs.375,000/=, to rwhich the appellant claims were taken by _the respondent who then put up his own ( i house. ( \ .... /2 I . , ....... ~ zzl <ta'',·

2 This claim does not concern the ownership of the Plot. The trial court after hearing the matter dismissed the claim. On appeaJ_ the ap1-;ellant also losto The appellant has canvassed the same grounds of appeal before me. Having carefully perused both the proceedings and judgment of the lower court, I am satisfied that this appeal has no merit and I would dismiss it without further ado. On the issue whether the appellant case that was summarily rejected by the Late hkude J, can be reviewed in terms of the Hon. Chief Justice's circular. The issue I have to determine is whether 9 the appellants claim to the land in dispute is on all fours with the HOLE' s case. The appellant was allocated piece of land by the CCJ.Vl village authority in 1976. The condition was that no. Perrnanant _ crops were to be Planted and by .:.983 the appellant had a disagreement with one of his neighbours the respondent. The respondents complaint was that the appellant was encroaching on his land and in fact cut down a cashewnut tree which both parties claimeJ ownership. If the appellant had been prohibited to Plant permanent crops how come he claims, ✓ to have owned a cashewrn.1t tree. From the facts o.f.:---his case the principle of adverse possession that- laid down in the HOLEs case cannot apply here. /8:'h~ principle a of adverse possession is where/claimant 1as been iJl:possession of land and developed it fqt' a considerable length of time and /' 11 without being disturbed,by the ( owners 11 - - - - - - - .,. - - - as per ,· • the cases of Shabani assoro v Rajabu Simba I • ♦·•-, (19q7) H.C.D 233, II Balikulije 1v1purnagi _(v Nzwili Mashangu 1968 HCD 20 and f Simeon Osita v Adianus Serere (1968) _ HCD Noo21~ · \ \ , I ! ( .... /3

/' 3 What haf,; ened in this case is that the appellant had been allocated a piece of land for purposes of building a residential house only. He had no permission to Plant permanant crop/trees or cut down any trees on the '-plot. The trial court on visiting the site found that the appellant had put laid his foundation on the respondents shamba. What is disclosed by the facts here is not sj_milar to the. facts in the HOLE' s case. And after a careful study of the whole matter I decline to review the decisi_on entered in the PC. CIVIL APPEAL NO .16 OF 1992 Appeal is dismissed in its en-tr.rely Delivered before Parties. j \ with costso A.G. BUBESHI JVDGE 24/4/98 t