19851123 TZHC Dar es Salaam 1

IN THE HIGH COURT OF Tl,N~ANIA f' (PC) CIVIL APPE,\L NOo 4 OF 1985 (From the decision of the.Distr1ct Cburt of Moro0oro ,:,t Morogoro in civil Appeal No.22/84) · original Primary Court Mkuyuni Civil Case Noo42/83 ALLY KASEBEA. O e. 0 O O . 0 . 0 • 0 0 . 0 0 0 O O o'o • o O O O O oAPP ELLAN'T , VERSUS lo MGOGO ABDALLAH CHANDEi - 2, RI.MADHANI R,'.SHID j •' ' ' ' ' ' 0 ' '• : - .. • •7ENTS JUDGMENT BAHATI, J This is a second appeal by Ally Kasebea. The appellant sued. the respondents in the Frtmary Court claiming land which belonged to the appellant 1 s deceased son. The Primary Court found against the appellant, holding that the appellant had not proved his claim .. The appell~nt appealed to the District Court. The Distdct Court found against the appellant as well after it wns satisfied that the evidence before the Primary Court had proved that the appellant 1 s son had 1eft the shamba a~d the shamba was then ;:,llocnted to th1'? 2nd respondent by the first respondent ancl that the 2rid r(i:sponderit then sold it to the wife of th~ first resporident. on r~wuing through the records of the lower courts I have found thot the appellant 1 s son owned the shamba in dispute but that th'-l appellarit•s son abundoned it for a long time so that it became bush. Even the wjtness of the appellant, Abdallah Rnmndhani, who 1s related to the appellant clearly testified to that effect. Abdallah Ramadhani went on to say 1n his evidence that the app~llant•s son h~d cultivated the shnmi:,n in dispute and had grown paddy and maize only 8 nd not pcrm~t..c.i:ops •. Later on the appellant•s son died. The defence of the ras.pond.en~-we-s b'bo-t the disputed shamba was left by the appellant's son to grow into a bush and so 1,.·, the 1st r0spondent decjded to give it to someone to cultivate • . . . • 12. 2 ·- Later on this 11 someone 11 who is the 2nd respondent in this case sold the shamba to the wife of the 1st respondent.- The appellant does not dispute these factso The appellant 1 s argument is that he {s the only hei.f to the property of his deceased son who origi.nally owned this shambao The point for decision here is whether the 1st respondent W3S justified in giving the disputed shamba whlch belonged to the appellant's son to the 2nd respondent. There is no dispute here but that the appall~nt~ deceased son was the owner of the land in question,having clearet it and cultivated crops. There is no ~idence nor is it bei.ng suggested by the respol"'der:ts thut the deceased son gave this land to any of the respondents. There could not be any question of the 1st respondent g5.ving the shamba to the 2nd respondent because the shamba was not of the 1st respondento Nor can it be said that the rights of the deceased son over the shumb.::l were relir:gu1.shed simply because the deceased son we~t away for a long t1~e. There was noeridence at the trial about the village council givfng authority to the 1st respondent to give the shamba to anyone. The evidence of the 1st resporident in the Pri.mary Court consisted of mere denials. He denied knowing the 2nc: respondent or anyone as the owner of the shamba or how the 2nd respondent got the shambao It is clenr therefore, that the 1st respondent was not justified to give away the $hamba in dispute to the 2nd respondent. The evidence goes on to show that the appellant 1 s son d1ed shortly after leaving the shamba he had been cultivating. I agree with the appellant that he is the right heir to the pr,)perty of his deceased son and that the disputed shamba automatically reverted to him at the death of his so'n. I ca~not see how the responder-it can claim to be entitled to the shamba when they are not the heirs of the deceased son. The •oo•o•/3. - 3 - mere fact ti:iat a bush grew after the shamba had been left uncultivat~d for four ye2rs did not give the respondents a r1ght to assume ownership over the shamba. Although the shamba might have turned into bush through noncultivation that bush was of the appellant 1 s son and after his demise the bush reverted to the he1.rs of the appellant•s son. I find this to be good law because otherwfae people would be encouraged to grab land of other people who leave their laJ),d to grow into bush. For ull the above reasons, I all.ow this appeal with,costs to the appellant. The shamba should be handed over to the appellant forthwith- '!'he 1st respondent may remove the permanent crops if he wishes but the appellant cannot be forc::ed to buy them because it was through the 1st respondent•s fault that the shamba was given away. DAR ES SALAAM 23rd November, 1985.