19880827 TZHC Tanga

j llJ 'I1I@ HIGH COT.LIT OF T/J~ZANLl. AT TAWGA (PC) crvr1 ~i.P?Z1L NO. 3 OF 1987 (FROM TlliJ D3CISIOU OF THI!; DISTRICT COURT OF !Ui.1DTINI AT ILIIDEJ:,TI Il'f CIVIL 4,1?PmttL NO. 20 OF 1986) A.Th'UIJ.iilliI i,UIWili. • ~, • ••• , • • • • • • APPiilLili.N'I' ( ORIGINAL PLAINTIFF) VERslB H.:\SS.ANI SJ\.LIMO' KIVUJO., •,. •, lU!Sl'ONDENT .. . (ORIGJlUL ~ ) ---------·- JUD G I!.l H EJL.IJl._ This is a second appeal, The aj)pello..nt brought' an action in the Chanika P:t.'ima::.,y- C:iuri of Randeni District seeking to be declared tho lawful oocupio::t' of a pi1;1ce of la.nd upon whioh the respondent had trespassed on the pl'etcxt. or ground that the said pie co of land or I sJ:iamba 1 used to oolo~ to his fa.th.er and tho respondent . had inheri f tod the sa.mo, The appellant, in the Court of first instance, ~loaded National Policy and he olaimed with evidential substance that he is entitled to cultivate the 'piece of land in dispute because neither the respo.ndent nor the latter's parents had boon developing(it it was mere bus~ • and furthor that the ~isputod :piece of la.nd was allotted to him by the AgTicul tura.l Field :i.ssistant and tho Commi tteo reaponsiblo for allocating ~apd in tho aroa.. That was way back in 1972. Judg0mont w2.s given in his favour but tho ta.bles; were turned against hi,;, o:c fi1~st appeal to tho District Cottt"t, Handoni, which reversed tlo decision of the Court of Fu~at inst3.nce. '11he Disti'ict ::::r L~t docla;rod that tho disputed shamba bclol".god to tho rosponcl.on-c :mcl H also I ordered I that the appellant bo componsG.tocl ro~ 1.1poxha.ustod inprovor;ionts on tho said pioco of land. - ,2 The position at law is that o, second r,ppca1 c£>.,n only be I cntertain0d on a. question, oI'. questions of l::.w a:nd not on a question of fact(s). Ic1 thif insta,nt appoal 9 as afor·osaid, o. second appeal, tho quostion posed for consideration by this Cot.tt't is whether 01, :not the. decision of the Court of first instance wa.s justifioc1 in· la1, ' !' 0 It hc,s boon hold by the a.pp.ropriato judicial autho:rHios that this is a question of law I I and I, accordingly, thorofoJ~e, doclm-o tb.3.t this is a fit case for consid01,ation by this Cou.,:t on appeal. I Tho evidence which was adduced in the case and which was largely not disputed show~ that the disputed piece of land wo.s originally being used by the grandfather and/or father of tho rospondonto Tho said l)::.occ of land vas, however, left to lie I id.lo for what was doscri bod as a very long time with the result that it reverted back into bush. In 1972, in complianoo with the Na.tional Polic;; 9 '. Dll m:orciso was emba.rkod upon whc1~eby 9 as diroctocl lJy t!io office of tho ~irca (now District) .f Commissioner, idle lc'mcl was allocG.tccl to tho landless or those in neodo Several 1Jiocos of land woro so allocated. One of "' ' I these was the ono nou indic;puto in tho instant p:rocoodings •. It is in ovidenco that SJno of tho o:d 6 inal occupiors of the so-alloca,tod piocos of lcrc.1 c11□0 fo:;:•~rc.rd and 1~oposaessed their rospoctivc pieces of J.221(,. The f2.thor of tho 1~0spona.ent. (now dead) who was then ::o:1/ill alive end mis fully aware of the exercise in g,moi.~0.1, and tho,. allotment of' tho disputed piece of l~nd to tho appellant in pa.rtioula.r did not, so to say, raise a fi:ngor. The respondent t1•iod' to explain this ioobili ty to react a.OJBordingly and pronptlJ by his late father by alleging thnt the old·m~n wns too sick to do so. The allegation is ui thou~ validity bocaus8 the. evidence shows that the rospondont' s I . ol'm older brother - no, 3,+so docoasod ... was p!"esent and availi:l.blo too at the r;1Lteri2.l ·I time. Not only that. It is clear that the father of ·tho respondent had a host of other I relatives inclv.ding h~.s w~fo, DU 4, a11d DW 6. (Yusuf Mohamed) who he could h~wo c.sltocl to lJ.unch tho :protest for and on his behalf. It nust be ompho.q~z9d. th2,t at tho timo tho disputed - 3 - piece of lo.nd wna a.lloco.ted to th.a appellant the proper l)Grson to lay ola.irn, if a.ny, to t~e same ~ th.e fa.tl:l.er of tl)e ·· respondent J not the respondent - not oven the older ~ of the reei:>ond.ent. The question of inhorita.noa does not, therofore, a.rise horc. ~s aforesaid, the father of the respondent did absolutely nothing., Ho simply acquiesced, Tho end result was that the appellant wont into oooupa.tion in 1972 and he has since pla.ntod :pormanent crops on th0 piece of land in question. The respondent too did not do anythillg until 1985 when he wont a.u~octly and bognn to 'cultivatet a.n already cultivated piece of lo.nd. The res:;,,ondont knew that the ea.id piece of land was already under cultivation when ho forced his occupation of tho aamo. Instead of seeking to assort hie title to the disputed piooo of ln.nd ;.10 dooided to take the law into his own hem.els. It uill be r-3oa.~lod t~t it was the appello.nt who resorted to the Courts J.lld. chose to follow the proper and oiVilised r.iethod of.t;iet-tling_Civ:i.l Q.i.13putes as distinot fl'om brandishing gull!3 or any other weapons for that matter. • : •• ,~ ,I. ' ' .The Ne.tionai Policy o .1 land lW.a explained by Kwikime. Li.g. J. ( as he then was) i . 1 th~ oaso of Ki ta.mbi :V. Makar.ibi (1272) H.C.D. No. ·12 ·'in the i'ollo1fing terms, and I quote:~ the National Policy on land is that the present 11 ••• ~.o generation holds it in trust for their descendants. Thero is, therefore, no lr.nd ownership here. Instoa.a., ind.ividuals or grou_>s a.re allowed to tclce possession and occupy on concli ;ion 'that their occupation should be effective a.nd ttat they should develop the land they possess.u 'With. this, I 1;1ost. l"OSP9•)-bfully ag;'<30. Tho learned .[10ting Judge went on to say, n li9 ogain, I quote&- - 4 - "This, how(;lver, does not ooan that people can ind.isoriminatoly occupy any piepe of land they find lying idle•••••••••••• The Gover:nmel).t has designated some a.uthorittee to alloc~te ianu., Only by the permission end/or directions of those authorities can anyone claim to have lawfully acquil~ed n. plot." i In the insta.nt matter1 tto ev'idonoe oloa..-17 shows that the appellant was lawfully Qllooatod the disputed piece of 1anci. / The 0vidcncc of Ho..nyondi Da.ka.ri (DW 3) who gave evidence of the res]?Ondonts own sick told the lie o.f the denial by' HassQlli Iiajili (DW 7) th.c.t tho r,rpollont was l~wfully allocated the disputed pioco of l.1n('.. D1T 3 swore that n.t the .tine the a.p11ellant 1ms al],oco.tcu t:.10 clisput0cl piece of land the chai,rman was one ~~lJocLi, novi dcceasocl, and not DU 7• Tho ;f'act of the matter is that tho disputed pieco of lc.nd was nllocated to i tho a.ppello..nt, lD;wfully, in.1972. In his judgement the learned P:rincipn.l District lfa£:,"ist2.~atc dircoted hinse1f in the follow.I.rig terns,a.nd ..•. ~ I 4uoto fron his judgonent1- "Wi tncss for a.ppollc~1t, ?~ndi Bo.ka.ri (i.e. Dl'T 3) who took " • ' ·,, • •' ' f over f-~oo La.wrenco 1,.:,iDn.. (~•c• Plf .2, both being Agrioult~o.l Field Offi~~s/.ii.ssista.nts. ,,, .. .a.t,. ' the . material . I, ' : '. . ' , ~ time), witness ,f.91· tf,.e ~.espo~d.ent . ~~q. olo~l7• •' '' . ' . . ' < • ' ,- ' • ~ • ·• ~ :,,. •,' .,. . ..,. ' . ~ha-- they • had to return sono of tho shamba.s to ownara ·those I • . , ~ which wcr~ giyen ,r.ror._e1y. llhat more evidence did the lower Court re4tt1rO·tc pri:Ne thti~'iih~ shaoba belolJ68Cl to the l?.J.)pello.nt?" ( The unJcrscoring is ,f_nc) Ui th groat ros:pect to tho 1 m·nad :Fi~incipal Diatriot Mo.gistra.te, the 1~0a.soni11g here is fo.llscious. . The lec..rned P.i?inoipal District Mo..l'.,"istrate n.:;_,:;_)et.:T ·cc) have a 11prcciatcd that tho shaoba.s which were 11 1n..~ongly'' 3ivon c;,;·c.y were t]:10 onos which were returned to their O1mc1~s. ·_;\.'.o quos~ion that arises is,. what evidonc0 is there to sho1·: tho sho.r;1 ba under quorry here ·'· ~. ,., J_ y,t. .••. J j was wrongly c..llocatod? T~1c:-,:,::; liD.S none j• . n.nd I s0O none, 5 On my ova.laation of the evidence I am . s2itisfied and I so fil1d · that the dispute piece of l:.111d ·was not su1)ject of inho:ci ta.nee at all by tho respondent; tb.Et tho same wc,r21 allocated to the appellant in 1972 ni th tl:.e con:ti:iv2.nce of -the father and oldci.. brother of tho re:sponclent; cmcl the.t the said allocation ·was lawful. The ap:pel lo..nt is, thorefo:;:-o, the rightful occupier of the dispu.tcd piece o:f lend end he should be left to enjoy peaceful ocoupat.ion thereof. The 1~espondents a.ct in, arbitra.rily, planting permanent crops on a.n already cultivated piGce of la.nd before assorting his claim thoreon was high-handed and no Co...ti:'t of justice prol)OI'ly directing i taelf will oval' support such acts. I t-rould g') further and state that the respondent is not even entitled to a:ny compensation at all. All in all; this cp1)ca.l has mei~i t. T~e judgement of the Dist:rict Court on first arpeal is ho:roby quashed and tho ordors, made thereon a.re set csidoo The judgement of the Court of first inst::i.nco which is justified o;.nd suppo~tod by the evidonoo is, a.ccorcli:ngly rostoz-od. T'D.o rcspondorit will pay the oosts in this Court us well as in .:Jth CoU1?ts below. ,,-, Judgement to be ty:pod a.:td fo1~ra.rded to tho District court, Hu.:ndeni', for delivery to the parties. Tho Pa.rties should also be informed tliat a third a.p;;3al lies to the Court of .Appeal but that .3, point of law- is inyolved.