Omari Senkondo vs Athumani Ikurubi (PC Civil Appeal No. 93 of 1988) [1990] TZHC 587 (19 October 1990)

.. IN TnE IGII cmnT OF T !.NZANIA AT .twUSIIA. ·(PC}·,CIVIL APr:JAL NO •. 93 OF 1903 ,·. ( FROM Tim: JBCISION- OF Trt:J DIST1ICT COTl.lT . OF SAME . ,. AT S.Al:!J Dif CIVIL .AflPAli no.· Q ·Ol!, -1908) OMAR!· SENKONDO ••••• , ••• ; ••••• - ., ••••••• .APPELLANT '_ .. .;. VE:RSUS ATIIUIANI IKUIHJJJI._., ••••••••••• · ••.•• ., ••• ;:irJSPONDillJT. JUJX}MENT • .. • ... his The J;.p:pollant l1ad suosfully succu_unclc, the respondent, f'or a picc0 of.land uhioh ho allceod was given to hir.1 absolutely a.s giff"in the Gonja Prioary Court, w4-i'c.,.11 is in tac District of Sano. ·Tho A:ppcllant had stated in that court (trial court) that tho respondent in tho'instant ~ was tho husband. of his a,unt,. It is in evidence tk.t 1952 tho· :r6spoti,i"ont invi tcd tho appellant· to cor:1e and live with, hit1. It is coonon ground that tho, respondent accepted, t::-i.is invitation which indoqd was a gehorous gostpro_. rrosUDclbly, 'because of love and a.ffcct-0(•-.thc· :rcspondon extonted the gesture by giving hio a i)iocc of land.~ As· c.fo:,:os8.icl nll t!iis ;.,.:;l, 1 ,1p0nod i~ :.1_952. It is also coIJ!'",on ground th.:i.t the a:,)o:i.la.nt hc.d bcon enjoying quiet possession of the lnnd in dispute for· well ovo1.···thirty six (36) years. !n tho course of this. period the appollc:m-t ov-ej_1 put up a structure. It is also uncontrov:crtcd, tll.2.t the t'.:.?j_,oll.,nt had used tho sane la.nd as burial @'Ound for his children:, It is c.,lso not in dis1,,"Utc that sonctino in the 1980 1 s tho respondent divorced tho n:i:i1ollant's aunt. It is · aJso in evidence tho long rn::.rriagc "between the x·osj_)onclont and tho ,9-_ppolln.nt' a aunt was not blvsbOd with ?- child. In 1986 the Appellant startec.l putting up anothor house in placencnt of 0110 uhich had collapsed it was then when trouble str..rtocl. Tho res:pondont rono into the pi:cturo and rcfrc.ino"d tho appellant fron continuing wi t:1 tJ-:o dovol:opnont of tho house and hence dpin,:; any dovolopnonts on tho land on tho (j·c,unds - that ho- was a narc liconcoo. Tho appellant on _tho ,ether hand contended ·i;lmt as tho gift of land was absolute tho respondent's .ao-tion was not justi:fi.:-,1Jlo. It was then when ho successfully sued tho rcspondont before tho Gonjo. :Pripa.ry Court. Tho learned trial Magistrate si ttin5 with his -hro · c1,ssossors were unianor:icusly of the view that tho 1~ppollc..11t in tho light of

2 - the fact that he has been therGZ_~~ .. o_i:<:L_tf;{;··years .he should not be disturbed. The respondent being c.isatisf i"ed with . the · decision of the . appeal to the .:· · Primary Court ,,rnn-'· "? -'l. LDistric Cot- atsiet}:_lere_the istrict Court faulted the decision of the District/.Q.ourt anl hence this appeal. The learned District MMistrate in allowing the appeal was _ 9 f the firm view that the appellant was mere lic_encre and that being the s·tate of . affairs he can not now claim ownership of the land in dispute. He was of the view thut possession and use of ld in qustion was not a gift as the appellant did not adduce any ev1derice· t·o that effect. When the porties appeared efore m the appellant urged me to adopt his petition of appeal as he had no further arguments to make. The respondent on the otherhand urged this court not disturb the decisio of ; ... : : ... · ....... . the first appellate court on the grounds that it was sund. He however adva,nead. another groμ.nd which did rise .sol}le onz.ety and concern in me. The respondent argued- tht as the land,in question was clan land the disposition of the land to the Appellant should have received the concunSllee or consent rather of the clan members., Besides, the Appellant.does not belong to the clan of the Respondent. The Respondent further argued that the appellant being a chagga by tribe ho can not over • claim ownersp ·t.,_1a.nd which should belong to the Pare tribee I will first attempt o deal with the question as to whether the · . contention of giftland is tenable under the circumstances of the case and if the ans_wer is in the affirmative. whether or not the gift was not absolute. Next, I will have to determine who has the burden of proving wheth~r the gift ·was absolute or. not., Lookii:ig at the vi_dence in ;ecrdI -. . . '. .. '• hav-- been satisfied that :j;he Re~pondent had given thl:l appell_ant: the ... . ~. . , . . - . . land in dispute and that the appellant had accepted.the other as.he moved_into the land 1952.anμ has been in occupation of the land ever since. I have been satisfied that though the donor.9-id_not excute ajeed of gift and that there has been no consequent registration of the said deed, the prevailing circumstances and the behaviour of the parties in question point to the fulfillment of a valid gift. •••••••••••o/3

3 These are (a) a declaration of the gift by the done»:'. (b) the acceptance of the gift by the dor·e~; and (c) delivery of possession to the donce. But it was upon the respondent to show that the gift was not absolute as he was the. one who was claiming the land. The responden has not discharged this burden. In arriving at this decision I have been guj.ded by the decision in the case of KIDELE-S/0 JUMA V. THOMAS S/0 SHENKUNDE;.~ (1968) H.C.D. 498 where Duff. J. held intealia that the burden of establishing ·that the gift was no absolute lay on the respondent since l . . . it was he who was Lai land. It be~;..::.:::_;:-, me to say that the facts in the instant case are similar to those in KIDELE'S Cuse (Supra). In the hight of the foregoing and taking into consideration the fact that the appellant has been in possession of the land in dispute since 1952 c0.t1pled by the fact he was und!.sturbed for all the period by the respondent who is now in his eighties (80) and the appellant in his · iudacity it late sixties (60) I have the . .:./__ of saying tha!es now lae in the day to dispossess him the land In the event I now allow the appeal~ Appeal allowed and parties to beer their own costs, This judgment is 4elivered in chambers in the presence of the respondent this 19th day of October,1990. The appellant to be notified. J .J. MKl:JAWA, Ag. JUDGE. 19/10/ 1990., I hereby certify this to be atrue copy of the original. \ J''. \·,~/ DISTRICT REGISTRAR, ARUSHA.