Mata Kahangaika vs Lyaga Lyaga ((PC) Civil Appeal No. 37 of 1985) [1985] TZHC 73 (7 December 1985)

nr THE HIGH COURT OF TANZANIA AT DAR ES SAL.MM (PC) CIVIL APPEAL NO. 37 OF 1985 (From the decision of the District Court·of·Kilombero at Ifakara in CiVil Apeal No. 14 of 1984). (Original Civil Case No. 52 of 1984 of Ifakara Pr. Court) MATA KAHANGAIKA ••.•••••••• , ••••••••••••••• • • • .Al'PELLANT (Original Respondent) versus LYAGA LYAGA. • • •• , ••••••••••••• , •••••.••••• , ••• RESPONDEifT (Original Applicant) JUDGMENT BAHATI, J. This is a second appeal concerning a dispute over a piece of land with permanent crops. The appellant Martha Kaha:ngaika was the original plaintiff in the Primary Court and the respondent LyagaLyaga was the original defendant. In the Primary Court the appellant/Plaintiff won the suit and it was ordered that the respondent/defendant be given o:nly a small portion of the disputed land because be had worked on the dis-, 'puted land for a long period of 15 years. The respondent/defendant appealed to the District Court. The judgment of the District Court which allowed the appeal of the respondent/defendant is however not clea. l !Ille judgment of the District Court concludes thus.:- " •••• Al though the Primary Court found that the appellant had no right to live there but this would cost him highly (sic) to move to another place nnd leave the place where• he .has lived for more than 15 years with his family. If the appellant is to be evicted because the person who inv:t_ted him is dead, then the respondent should be ready to aompensate him. This appeal is allowed with costs against the res- pondent.11 With due :respect to the learned District Magistrate his judgment is as vague as it is indecisive, The judgment of the District Court did not decide the issues with which the court was faced. The judgment is something i)f an arbitration clause or conoilio.tiori. It is as if the parties we~t to the District Court to seek an agreement. With resp~~t I

• 2 - I this was wrong on the part of the District Court because the judgment ' left the issues undecided. 1ho issues in this oase were:- (1) who was the :rightful owner o:f the disputed land and (2) If the plaintiff wo.s the rightful owner was the defendant entitled to any compensation for the . unexhauEted improvements. The District Court decided none of these issues. In her memorandum of appeal the appellant/plaintiff has challenged the order for compension of the District Court arguing that the lnnd was hers all along and that the respondent/defendant was a trespasser. In oder to appreciate the issues and arguments in this appeal I ,. will set out briefly the facts in this case. The uppellant/plaintiff 1 s case was that the disputed shamba is hers •having inherled it froID; her father. The respondent/defendant came on the dsputed land while the appelant/plaintiff was undergoing medicnl treatment by local medicine• men and sventually at I\fuhimbili hospital. The treatment lasted 7 years and all this time the appellant/plaintiff was away from her home. Then when she ·got better she went back home where she found the respondent/· defendant on her shamba (the disputed land). The respondent/defendant claimed that he had been given tbat land by one Nyamamboo The appellant/plaintiff took the matter to the CCI~ office who agreed with her case and decided to give the respondent/defendant a snail portion of .. the disputed land because the respondent/defendant had been there for a long ti.it;,. But llihe respondent/defendant refused to accept· the small portion a;.ll- the appellant/plaintiff took the matter to court. The story of·the appellant/plaintiff was corroborated with that of her witnesses, PW.2 and PW.3 and PW.4, whose evidence was that the respondent/defendant just appeared from nowhere and begun cultivating the shamba of the applant(p:J.aintiff, and when asked why he had come there, the res- pondent/defendant claimed that he had been given the shamba by Nyamamboo. Thi stocy of the respondent/defendant was that he came with his :father to stay in the village and one Nyamamboo and Ivlli:ondoa gave them the shamba~ This was in 1969. His wi tr;i.ess Augustino. Mkondoa said that the r,::~pondent/defendant had got the shrnnba from Nyamamboo. At one time l tr ._C.. the witness Augustina I::lk:ondoa said in answer to questions by the I\ court · that his evidence was all lies. ,Tb,e Primary Court was of the u11at1r:cus opinion that the shamba' s l

• 3 - rightful. owner was the appellant/plaintiff. All these.me the court (Primary Court) ordered that the respondent/defendant was to be given a small portion of land to cultivate out of the disputed land because the respondent/defendant had used his energy in developing the disputed land. On appeal to the District Court as shown abov~ none of the issues were decided. The evidence of the appei1ant/plaintiff was more weighty than that of the respondent/defendant. That is what the. Pri- mary Court found and I agree with it. The respondent/defendant was clearl;r a trespasser. The land belongs to the appellant/ plaintiff and it could not be taken from her by anyone, least of all by Nyamaaboo, who had nothing to do with it. Even the contention of the respondent/defendant ant that he was given the land by Nyamamboo could not be established because his witness Augustina at one time declared himself a liar. The only reliable and credible evidence in this case was that of the appellant/plaintiff and her ,vitnesses. I find therefore that the District Court was wrong in disturbing the judgc.e.nt of the Primary Court. The District Court held without giving sufficient reasons that the 11 preponderance of evid.ence was less weighty on the respondent's side (appellant in this appeal)." It would appear from the judgment of the District Court that the learned District Magistrate was influenced in his conclusion more by the fact that the respondent/defendant had been on the plot for 15 years. With respect, this was wrong because the long .duration of stay did not make the respondent/defendant the rightful owner of the plot if he W2S not one at the beginning of the stay. · There was no issue of time limitation raised at any time during the trial ,and appeal of this case, and so I do not inteuq to bring up such an issue now. The decision of tte Primary Court to &rant a small porti9n of land to the respondent/defendant t;1ppears to me to be equi- table and in ~greement with an earlier decision of· the CCM office of the Village of the parties. I would therefore not disturb it. Lastly, the Primary Court did not deal vi th the qustion of unex- hausted improvements on the land. The District Court, mindful of such improvements, purported to order compensation to be paid by the appellant/plaintiff. I find the decision of the Pr;i.ma.it'Y,. Court ,,,. 7S'"- .. :t'" to be more close to reality because it takes into a9count/tthat the · ••••• /4.

the respondent/defendant should get something for the long user of the land, hence the grant of a small portion of land to him. It is unfair and inequitable on the other hcnd to require the appellant/ plaintiff to pay compensation to a trespasi::er as the District Court purported to do. Nor would it be fair 2nd in the interest of the public to allow the respondent/defe:ndnnt to cut down any perm.anent crops· there may be on the land becGuse this would not serve any usef'Ul purpose. It is more consonant with reason to give a portion of land to the res- pondent/defendant for whatever improvement he mny have made on the disputed land. It may be argued thGt the appellant/plaintiff would be unjustly enriched by the decision of the Primary Court because she would, as it were, reap wha.t she did not plant. But this argument cannot stand in this case because the repondent/defend2nt by using lc.nd that did not belong to him has been reaping fruits from land th':1.t did not belong to him and ho.s deprived the appellant of the use of it. The whole thing sort of cancels itself here. And further- ore the respondent/defendant will get land to which he is not enti tled to albeit a very small portion. Since the appellant/plai.ntiff has been in agfeement with the arrangement of giving the respondent/ defendant a small piece of land this arrangement should be implemented as ordered by the Primary Court. For all the above reasons; this appeal succeeds and it is allowed with costs. The judgment of the Primary Court is restored • .......... ·;;/::~: .. ~ .. ··~~:t·,\ v JUDGE . Court: Judgment delivereD, in the presence of 1 the parties on 7th December, 1985. AT MOROGORO 7th DeceJ!lber, 1985.