Allen Safari vs Shedrack Mtuku (PC Civil Appeal No. 69 of 1988) [1991] TZHC 2734 (5 July 1991)

. ·--···· •,.,. I IN TEE HIGII CCUHT Olt 1 TA.l'-T:t.J,NIA (PC. CIVIL AFPEA.L NO. 99 of 1988) 1 C/F .H1ll ~IVIL AFFBAL NO. 20/88) ALL.E'r'J S.AF 1\RI o o o o ~ o o .o o o • o o o • o o e c o o o o • o o o o -: o e o ."J ,.. o o o ~ o o o .i o t1 3 ' • • APPEl,LANT ViliSUS SHhID11.P.,,.CK :M'IUKU O O O e O O O O O e • (! .. •• 0 0 0 0 0 0 0 0 0 0 0 0 0 0 (I O O O c:, 0 0 0 0 0 0 0 0 0 0 • .d:.£dFONDffiT MUNtJO, · This is a·-second appeal from Hai strict Coud Civil Appeal No. - of 1988 originally Masama Primary Court Civil Case No. 12 of 1988. In the said primary court the rla1ntiff Allen afari, the present appellant, sued the defendant ;:;hedrack -N:tu.1ru: 'for recovery of a piece of land measuring , ' l¼ acres l-rh.ich the plaintiff claims he inherited from his father in 1986 • The defendant denied the claim SaJ'ing. that he inherited the land fn dispute·f'rom his'father. The parties to the suit are patrillineal cousns. The plaintiff is the son of a.fa.ri Nkwawi who gave evidence at the trial as SM.I. The defendant i 0 s the son of SU I Nt.uku Nkwawi o SM I and SU I are brothers, ... tbe sons of the ]..ate Nk-Ja.wi i both brothers are over S(.."v'enty years of age. It is the evidence of tha plaintiff ·that on the 30.8.L 1 7 he found the defendant working on tho .land in dispute which th,;3 plaintiff claims he inherited from his fathor SM ~ Safar.! Nkwatri in 1986. Tho defendant also claimed that hq: inherited __ the land from his f.a.ther SU Ntuku Nkwawi so the plaintiff ~ued. for recov_ery of the land in dispute in tho primar:y court at Ma.:3ama within Hai J.listrict in Kilimanjaro Region. Tho trial primary court unaiumously declared the plaintiff the owner of the suit land because his 0;1-m father :3M I $af ari Nla·ral'li gave him the said land; Safari Nkwawi himself haying inherited the said land from lus late father way back in 1940 in the presence of SM II Ismail Hussein and one late Tab_u ·i-,hen the late Nb1awi planted a traditional ttsalc" plant and a Java plum tree (Mzarnbarau) to mark tho allocation of tho land to SM.I

.. .. , .. .,. 't .... 2 ••• Aggrieved by the decision of the trial court the defendant succesfully appealed / to Hai District Court.. The appellate District Court reversed the decision of thu primary court on the customary la1·I portaining to the case. Dissatisfied vJith the decision of the ai•pcllato District Couc"i; the plaintiff preferred this second appeal seeking the quashin·g of the appellate District Court's decision and the restoration of the primary court decision. In his memora.Yl\lurn of appeal the appellant stated that he had the right to inherit his fat!10r 1 s shamba, the land in dispute 1 whle the raspondent should inherit from his own father but not· cross-over ancl inhori t from the father of the plaintiff as is .the case here. rrhe arpellant complained that th8 appl1ate lJistrict Magistrate imported ex{ernous mat,ters into the case thereby deciding the appeal erroneously. The respondent stated that the ·trial primary court er:..·9d in not observing thl:3 bo1.mdaries of _t}l,e land in dispute and the crop~ thereon despite the trial court's vis_tt to the land in dispute so the appellate District Court ' properly upset t:10 judgement of the primary court. The issue is i'!!u.ch of the subordinate courts 1 differ<:mt decisions is . .supported by the evidencG adduced at the trial• The' evidence on the record of 'the trial court shows that the plaintiff called lu.s f.ather SM ,I ,;;;Jar.i llkt.ralli who confirmed that he gave the Suit land to tho plai11;iff·• . ;:5N I stated that he hiself inherited the land in dispu'i;o from s late father U)CT,Jal'li way back in 1940 and remained in occupation of' t~~. same $in00 them. He stated that before he gave tho land to the plaintiff his ow11:·1ate mother ·was living on the land. Another td tness sr.1 II Isma!l _Hu,ss.en deposed: !in corroboration of. the testimony of SM. I saying that .. he \f!a.$ ,.Presnt ·along with one Tabu, the deceased son of 1Fa,Jm1i, when the la.t$ Nktt•.t·;i./ tte. father of SM,I Safari . ,· ·. . Nkwawi allocatGd t'..10 land in dispute 'to SI 1 i\0I'by planting tho traditional 11 sale 11 plont. and· Jc.Va plum tree vrmzdnibara;u.W to make the o.llocatio' wa;y back in the coloie.l days before S(1f ieft. for the Br.i tish t-ra.i- -(~~obably as a soldier in -i;;;c King•s African Rifles tJ.10 participated in iho Second Jorld 1,!ar.) G1 d,:,f, '., . .,.,. ;- ?- .. ...;; V .:1.wLi..-•.,;.-~-• J . ,,d ,'

••• 3 0 ■ 0 The defenrlant called five wi thesses at the trial. His mm father · SU I Ntu.ku Nla·1at-;i deposed that he gave the land in dispute to t}e defendant a.ft er getting the same from his late father Nkt-.rawi. SU .2 Teiilbea 1,;alii corroborated the evidence· of SU.I and added t;:iat the land in dispute t,as used by the defendant's mother. _ SU 'III ens.el Anasha, SU IV ::3eleman Saidi and SU V .:ia.lim Abro,ham further corroborated the defendant's .evidence • .,, The trial primary court rejected the defendant's assertion over the suit land basically unlike in the plaintiff's father's allocation t'hcn his late father planted p.c tradi tionai "sale" and Hmzamba.rau 11 to mark -the giving of the land to the plaintiff's father SM.I ;:,afari Nkwawi in 1940 in the presence of SMolI Ismail Hussein and the late Taou 1 no such allocating c0remony was performed in r8s1,eet. of the defendant's fn;i;).wr who also allegedly got the from suit bnd/his fa.thcr SU I who in turn also got· the land from the ,same source, the late Nki-iawi. . . ThG appellate District Court cited the case of Mkakofia Meriananga versus Asha Ndisia 1969 !ICD n. 204 iriherein· it i-.:as held that under Chagg:a Customary law, a Jcnancy over land never confers title to the tcnrnt. Hith respect I. find r.lkakofia•s case distinguishable arid irrelevant 0.1 the evidence on record. In Mkalcofia's case, the respondent's husband h~ allowed the aprcllant 's husbc.:.1d to occupy a portion of :.is land for about thirty yea:rs. In order to e,et o,·:norship of tho land, Mkakofia sued for confirmation of . title over th0 said Lmd. The trial primarj' court dismissed the suit for being time be.rrod under the 1963 of t:10 Customary Law (Limitation Proceedings), Govori.1Illcnt NoticG No. 311 of 1964. Platt, J. held on a s_econd appeal th'"ri; the suit was not statut·e barred and continued; "If Asha. and I:Iarusu.la.l had opened up the land and allowed Meriananga and Mkakofia to occupy part of the land as a matter of family arrangement.,. t.hen while Asha occu::,ied adjacent l;JJ:'l.d in dispute, there- was no t;ra,y in which Mkakofia C~)Uld ausert ownership of the la.i.-id n,-ilcss she had taken some steps to deal with it ngainst tho interest of. Asha. As fer as I can soc, there was. no evidence that 1•ikakofia. ever did so•. Accordingly I cannot s~ tho.t she acquired the free title to the land when her husba.1d and hers0lf had only been allol·.icd to occupy as tenants at will. Accordingly Asha's right to t10 12.11d is confirmed. •• o •••••• o But I. would poin _out that if r.Ilcakofia had loft improvements on the land of a permanent nature,. She· may sue Asha for ·[;j10 value of such imrrovcmcnts.

4 ••o Moreover, in accordance with customary law, if she has any crops growing on the land, she shall be allowed to harvest them". The present suit has nothing to do with tenancy relationships so Mkakofia's case is inapplicable here. The parties to the :present case a.re contesting title tq the land in their orm right as respective heirs of t'heir fathers 1-:ho are brothers, the sons of the late Nb_;awi, the original owner of the land in dispute. The appellate istict Court also cited the case of araiya versus Yusuf Taraiya 1971 HCD n. 324 to justify the interference with the primary court decision. In Taraiya's case the respondent sued for a traditional piece of land known as 11 kihamba 11 under Chagg-a customary law :r,1bich he allegedly inherited from his late father. The parties were sons of one Taraiya. The primr::xy court dismissed ·i;:1e suit after finding that the appellant 1rms the last born so he i·ras c:.:nti tled to occupy his parents homestead upon tte death of his parents undor Chagga custoary law. The evidence adduced in the trial court in the rresent case does not speak of the nu.moer of ;;;;ons the late Nkwawi had or who his last born son was or hoiJ ma:c,y wives he had. It \JE.1.S therefore erroneous for tho appellate District Court to import the notion of the last born being entitled to inh0rit the homestead, in tUs case, the defondant 1·1ithout calling evidence or fil1d,ing evidence on tho trial court's record to s~bstantL.te the same. If either party i:7as claiming th;) suit land: as tho last born heir he would have deposed so at the trial as was the case with the 'l'araiya sons• Under tho circumstances the court finds that the decision of the appellate District Court in Hai District Court Civil Appeal No, 20 of 198e is not supported by the evidence adduced at the trial. That being the position tt.0 decision of the appellate District CoUl't is quashed .and set aside. T:10 decision of the trial primary court is horeby restoNld., Tho appeal is allmrnd with costs. It is so ordered.

At P.rusha this 5.7.1991 Appellant? In person. Respondent: In person. nrn/JJM ... 5 E.N. MUNUO, JUDGE. 5.701991 ~--f). E.N. mmuo, JUDG.11 •