Emmanuel Rugailabanu vs Josephat Ndamugoba ((PC) Civil Appeal No. 147 OF 1979) [1982] TZHC 177 (21 October 1982)

IN THE HIGH COURT OF TANZANIA AT MWANZA APPiLATE JURISDICTION (pc) CIVIL APP&L NO. 147 OF 179 (From the decision of the District Court of Buoba at BuKoba in Civil Appeal No. 171 of 1978 - Before A. N. Russeta, Eeq., District Magictrate and Kolekero Primary Court Original Civil Case No. 30 of 1 975) iMANt.JEL RUGAiLBAIiU............ . . . . . . . . . . ... . . . . . • . • . . . . . . . . . .APPELLANT VERSUS J OSEiHAT NDAi4JJGOLA. . . . I • • • • • • • S • • 0 • S • • • 0 • a • • a a . . I S S • • . RESPONDNT JUDGEMENT MFI.LILA, J.: Before the dissolution of the Nyarubanja Land Tenure System in Kagera Region the respondent JOSEL&LT NDAMUGOBA was the landlord (I41 1 AzI) and the appellant MIANUEL RUGJULABAIVIU KiKE was the tenant (MTWJLRWA) both having inherited their titles and status from their fathers. But with the dissolution of the Nyarubanja Land tenure system, both lost their titlos. However in 1975 the respondent instituted these proceedings in the Primary Court at Kolekero aainst the.appeilant claiming that the appellant had crossed their boundary and entered his shamba. He therefore asked the court to restore the piece of land to him and establish clear boundary marks. - In the Primary Court judgement was entered ex-parte because the defendant (present appellant) failed to turn up on several occasions. The court after oo.nsidering.the eyidence of the plaintiff alone (the present respondent) dismissed the claim saying that there were clear old b-undary marks between the land held by the respondent's father the Landlord and that held by the tenants and that- it was in fact the responaent who had crossed into the former tenants' land. The old boundary marks were thc-re- fore fixed or confirmed as the established boundary betieen the respondent and his former tenants, Against this decision he respondent successfully appealed to the district oort which reversed the decision of the irimary Court on what I consider very inadequate grounds. In his judgement the district Magistrate had thefollowingtc say as reasons for reversing the Primary Court judgement* "Rufuata uchunguzi wa mahakama hii, minajiri ya ushahidi wa pando zote mbili; na kufuata miaka ilivyo na kufuata pia umilikaji wa shambahilo lamipaka, lilivyokimilIkiwa kwa miaka ya zamani minajiri ya upanaji ni wazi arcihi iliyoshindaniwa ni mali ya mdai Josephat Th.icimugoba." Quite clearly this is aaytrg nothing. The 4agistrate assthned what 'wae 1 dispute to be the facts and thenusing his assumptions to conclude or as proof that the land belongs to the respondent. Surely this was a contradiction in terms, forif he based his decision on "kufuata mipaka kama ilivyo," then it must be the same boundarymarksfr'und by the 1'imary Courtand these cannot according to the findings of the Primary Court establish the respondent's ownership. With the dissolution of the Nyarubanja system the tenants aoqu.ired their parcels of land thin ......... ../. -

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• 2 - existing boundaries, hence, if the district Magistrate followed the land ownership "lilivyokimilikiwa kwa miaka ya zamani minajiri ya upangaji' then 'en the ocntrary he should have found 111cc the Primary Court for the appellant. In his written reply to the appeal the respondent had the following to say in his last paragraph:' (f) Naiomba Mahakama Kuu kufukuza rufani hii na kumwamuru muomba rufani aje mbele yangu. tusikilizane ili nimfikirie kuendelea kukaa shambani akiwa mpangaji. 0 By this paragraph the respondent demonstrated that he was under a very serious misapprehension as to his rightse.. ae seems to forget that he is no longer the landlord with tenants. lie cannot have any tenants on his land. For these reasons I agree with the decision of the Primary Court that there are in fact existing i bcund&i'y marks between, the property of the former landlord and his former tenants and that these boundarr marks as found and fixed by the Primary Court form the boundary between the pr'perties of the Parties. Accordingly I allow this appeal with cots, set aside the judgement and order2:ef e district court and restore those of the Primary Court. JUDGE