Abel Mautho vs Selvasio Machelela (PC Civil Appeal No. 81 of 1988) [1990] TZHC 584 (20 September 1990)

L:, I'ITE a GE COl'.RT OF TAJ."VZA.NIA AT SLl@A:IAiW.,t ( KBEYA REGISTRY ) . (PC) CIVIL APPEAL NOe81 OF .1988. (From the ·decision·of the District Court of Sumbawanga at Sumbawanga in Civil Case (Appo) ilJo. 24 of 1988) AID.:~ s/o M~.UTIIO O O O O O O O O O O .f O O O O O O APPELLANT .. Versus SELVASIO s/o M.ACilELELA 000C006COO RES POlffiENT. JUDGEMENT MWAIICASU 2 J. .. This is a second appeal arising from the dec.ision of Sumbawanga Urban Primary Court in Civil Case Noo53 of 19880 In that-case the Respondent 9 one SILVli.SIO s/o. J\i;Ji.CHELELA. suecl the appeliant' one fEL s/o N.AUTO 9 for. piece of land about l½ a_cres in size 9 and. judgem.ent was ·entered in his favour, the Respondent • .,,) However/ upoh the order of th tr.ial ·;court that the trees planted therein ' belonged to the appellant, the Res,p9ndent appealed t'o the· lower appellate ,court against such ordero Surprisingly, though for all purposes the appeal was dismissed but the.lower appellate court ordered the appellant in this case to have his. tl'.ees. harvested withiri a p·eriod of nine mont1:J.s 9 the ·record shows that the appeal was:ei;llowed with costs. ':nis amounted to unnecessary conf'usiono 11.ga,inst such judgeme·ht of the lower court the appellant, one lJ3EL W.AUTITO, filed this appeal through his counsel one I<Iro r:'.IWJJ>JGOLE, who drew up the memo of appeal bt.J,t cou,.ld not appear to argue this appeal .on account of being faced with some personal poblems •. • The court was howev:e,r rquested to procee" with the hearing of the appeal in the absence of the learnedoounselo Accordingly~ the app_eal · proceeded to a hearing. Among the grounds of appeal, these can be summed to thisg (a) That the lower appellate court erred in l1olding that the land ill dispute belonged to the Respondent as tl1e appellant b,a.d be.e..n. i-n ' effect_iva OOCl.JJ)at.ion. for more than 27 years y . (b) That the lower appellate court erred_in finding -:(;hat the appllant had planted.th euo'a,lyptu,a • I'.,'' • trees in __ the disputaj. pi€.0€ of land in 1978' when the same were 'planted· in 1.961. ( c) That the lower appellate court. erred ih ordering the 11.ant to . . . cut dom+ al iiis. .~uca.].yptus t.rees within nine ·.rnonthso (d) 'l1hat the decision of -the lower appellate court was against the: weight of ev-:Ldence., .

4;_ Up.on perusal o:f the records of the two lower courts_: .it has become evident_ as there was ample evidence to establish the same as also· accepted by the lower courts that the appellant hap. 9 prior -~o t:~~- year 1961 9 given .: J.·,-..:\ .' .. the disputed pieqe of land to oi1e VISEM3IO as a gift~ When tlle said VISEN"SIO found himself unable to cope with agricultural work on the land he decided to .. dispose of the same by selling it to th·e Rspondento was a.lsowitnessed by the wife of the said VISENSI0 9 one SJLL.PI1~ NJJmI • . When sold tl::.e disputed piece of land l1ad; ,alrea,dy three eucalyptus trees two guava trees and twc, or~.nge tree~. _ It seems-- by., the_1:i· :tbe. Respondent ·was a - ..... , ; .. teachero When he was tra.nsf'ered from t:10 viliage,.schooLhc• entrusted the '.'.:;;:_ . .,,: . . . -· . . disputed piece of land to mio-hcr teach cir· w;.,o t:.:en used it as'. a trustee o It was tl'lCl1 in the. abse:i.1ce pf tho :.:i.es;ponder,t that "tlie appellant sought to recover such piece· of lando J:1,l.e appellant planted 'it with' 1000 trees o That ., i'• . • . . i: came to the notice of the .Responq.eμ.t wi1en he i-rcnt ·back ·fo the disputed piecq. of land so~~time 'li/ 19700 '·it :is 0 -_t{~~s ui;fotmdcd as coplai~~d ii{ ti; emo of appeal that the lower ap~~llat-'-our"c ha,d 0:crecl ir, f:tnding that the. ppllant , . , .. ·. . ', .. ··.·· had pla.11.ted his trees in l.21§. 9 aud not in 1961,, Th~ jy.dgement of the lower . - . court contains no finding to i°hat ffcct,,. As efforts to have the dis_pute .setl,pd through various ·other organs .. outside the coili't turned to. be fruitless tl::.u RBspond.ent·:finally -took his complaint to ·6ourt ··6n 10/6(88 9 w101i judgement :was <mtered in his favour. Under such circumstances it is ·che c·•JEsidored opii1ion of this court tl:at • .- .f: ,r :•• the two lower co111•·bif'' en.me tq tl:.c rig::t do·cisio11 ~ For so long as one VISEI;sro was giv.):;.1 t::o disputed piece of land by the appeilant as a gifty ho .. thQ.:r-eby acquired ·abGlute ownership over .i ta Ire was • • • -· '·:· ! ·, .... -,f..- . • • therefore fully entitled to dispose. of it in any! ·way he p1oasedo The same having been sold to• tho RGs~ondent 9 . the Rospodert tllerby a.oqui.red ~ull title to ito ::e thereby became the rightful owner of•ito -.•:' . Tl::e fact that _the trees plc111ted ey t!·.o appellant had been in the . ' disputed piece of lru1d for IJ__iears while tl10 Respondent was away on transfer, could not be ground; .for the claim of adverser p'ossessiou. as the . •·'- . . ·1: " ' ·i ;-Al .. ':}· ., .. ): ' . ~. -- . ii- ' Respondent had no·- opportunity to raise his p.bjcction in • time to·· the appellant's · . encroachment upon·:111s lawful propGrty., H is in .fact,.doubtfu],-whether the planted treos had been on tte disputud la.ad for such a period without objection ·b-.r tz-1e Respondento For tl1cire is cvidonee that as from 1978 the Respondent had eng~ed the appellant in a disputo over the dispu.t.ed r · piece of. land.,

I- \ On the other hand 9 as tt0 appella.n-t planted tho trees while the Respondent was away on transfer upon assumption that the disputed piece of land had been abandoned by one VISEliSIO 9 to whom he had _given i t 9 he is I think, in fairness, entitled to be either compensated for his unexha.usted or improvements in respect of such treosLto be allowed to harvest Sl,lC'D trees within a period set by the lower appellate court as from the date this judgement is brought to the notice of the parties~ This appeal must and ia herel:zy- 9 therefore dismissed with costso I