19710318 TZHC Mwanza2

' IN THE rUGH COURT OL TAITZAITIA AT IWANZA.

APPELLATE JURISDICTION (pa) CIVIL' 'APPEAL NO. 35 OF 1970' (original Ndwani1oPrimary Court Civil Case io. 242 of 1968 and Bukoba District Coyrt Civil Appeall\To. 368 of 1969 of the District Court of Bukoba District at Bukoba'. Before A.I'T.Russeta Esq..; District 1Tiagistrat). ' ATHANASIO KA1'IABWA................. . . . . . . . . . . . . . . . . .APPELLANT (Original Plaintiff) versus CHRISTOPNER NTO1IGAITI AI!D RUZI?TGA ... .........,....RESPONDENT pARILRS CO_OPERATIkE SOCI.TY LiD. (original Defendants) \ J U D C- M E N T. KISANGA AG-. J. The appelldnt Athanasio Kahabwa filed an action in the Priary Court at dwanilo in Bukoba District against the first respondent Christpher Ntongani for the recovery of a strip of land valued at shs. 400/= In the course of the proceedings the Primary Court fouid that it was necessary for the second defendant tobe joined as alco_defendant. Accordingly Ruzinga Farmers Co-Operative Socity Limited was brought on record duly represented by one Aloys Rubaatuka. The Primary Court Magistrate found for the appellant but on ippQal to the District Court the jud&eent in his favour was rever4d. He has now appealed to this Court. There wasufficiont evidence to show that the land in question originaiU belonged to the appellant's brother, one Ishengoma, who hak granted it to one Kagimbo on Fyarubanja tenancy. Kagirabo' s -tenancy came to an and in or about

1949 whereupon the land reverted to Ishenoma. Ishengorea died in 1954 and the appellant, his brother, inhLrited that land. The a)pelant claimed that after inheriting the land he developed it by planting it with a variety of trees. He therefore alleged that the first respondent Christopher usinl his office as Village Emecutive Officer dispossessed hire of the landd 0- ave it to Ruzinga Farmer's Co-Operative Society of which the secod rosponden -t Aloys is the- representative The first respondent Christopher in his defence said he did not alienate the said lend in his private capacity He was Secretary to the Village Development Committee and he allocated the said land in pursuailco of a resolution of the said V. .D. C. to allocate the land to the Co-Operativs Socioty in question. He , stated that the and in omestion formerly bolonrod to one Kaimbo 2 ......... but after Kagirebo ha. vadatcd it, it remained vacant end it was now for the court to dockdo to whom that lend belongs He said that the - VODC. was allocatin open lands without plants introduced by anybody. The land in question had on it e. variety of trees including mango trees wuich however ircro understood to have been planted by the said Kaginbo and that the V.D.C. allocated the land because it had been loft without care. he said further that the appellant himself attended the general meoting of the Co-operative Society

w..LiCh passed. a resolution to acquire,and in question on application to the V.D.C., but that the aPPellalTt raised no objection t; thc resolution. Again, ho said the appellant also attended the meeting of the V.D.C. which. passed a resolution to allocate the land to the Co-operative Society, but that he did not raise any objection tu that resolution either The respondent called as his witness one Augustine (D.i.2), the Chairran of ti-ic saidV.D.C. who said that his comi:iittee allocated the land in pursuance of the policy of the Arusha Declarationto - purs..no who had no land at all or who had less than two acros. The said land was allocatd after the committee had sought and obtained authority from the Aria Commissioner to do so. Ho said further that at the disputed land the appellant raisd an objection asking if the committee did not knot that the land belonged to him but the witness replied to him that they wore acting in accordance with the decision of the V.D.C. The second respndent Aloys stated in effect that his Society applied to the VB.Cl for thc land in question and that the said committee duly allocted the land to that society. He said that ho was not aware that th land belonged to the alpellant and that had he known that the land bolo]:lgod to - the appellant he would rather have made his application direct to him. The Primary Court Assessors disallowed the

appellant's claim on the ground that when the V.D.C. sought to allocate the land the appellant did not racikel it kno to the committee that the land was his. One of the assessors aftso expressed the view that it was the people' s wish to have the dispuGed land developed communally rather than on individual basis, and oth assessors hold that in any event the action was misconceivod in tht it ought to have been brought against the V.D.C. and not the renondents The Primary Court ilagis•trate in disagreeing with his assessors found it pray ed that tjle land in question belonged te the appellant who inherited it from 1iis deceased brother ishongoma. He further found that the disputed land v!as developed in the sense that there were on it trees whichhad boon plantc.d as distinct from trees which had grown wild, end tii 1 t at the tine of allocating the land the- - - appellant did raise nr objection which however was -..-:- .- ..-- a.......... . - .....,00.o 3 .......•.• He therefore held dhat the laud being.thc appellant's property was rrongly alienated without his consent. The alienation was carried out by the V.D.C. through the first respondent as its servant and represontative He therofore held that the first respondent was rightly nade a defendant to the suit and accordingly he awarded costs against him in his capacity as representative of the V.D.C. and not in his priate

capacity; He made no order for costs against the second respondent whose Society was merely given the land by the V.D.C. The learned district Magistrate in revc-rsin the judginent of the court below said th:.t the. disputed land was open land grown with bushes and natural trees. The land was.originally occupied by Kagiubo as a ITyarubanja tenant of Ishengoua. Upon Ishengona's death appellant in1erited Ishengoma's land which was within the p village but that asi reCards the disputed lan61 which is situate about 2 nibs from the village, it was not estai:lished whose jand that was. He therefore took the view JU- natu this was open land which the V.D.C. properly allocated to the Co-operative Society to develop it in the interest of all. The record slows t1at the District Magistrate visited the land whore he obserjvcd that the disputed land was open land grown with bushes and natiral trees This observation however is in - contradiction with 1 the evidence and other findings on the record The appellant himseOf testified that he planted the said land with a variety of trees including mango, nihumula, podo and eBcalyptus trees'; The' first rpspondont Christopher testified that the disputed land had on it uango trees, mizizino trees miserere treds and other types of trees but Ghat these were understood to have been planted by the tenant Kagimbo. Again the Primary Court Magistrate

himself visited the land an found that there were on it wild trees and also planted trees locaLly known as mihunula, uishambya,L1iserere,1 -iieube and mizizimo. I'€ is clear s therefore, that according to the eidonco and the observation of the Primary Court there were planted trees on the disputed land The learned District Magistrate, however, substituted his own finding that it was an open land grown with bushes and natural trees. He gave no reason for preferring his own yiew on the matter and on that account I think that he was in error As indicated above the learned District Magistrate also found that upon Ishengoraats deth the appellant only inherited Ishengouc S land which was vithin the village but that as regards the disputed land which was situ to some two miles away from the village it was not established whoo land it was. With great respect, this was a misdirection'. The appellant said that the land was his because he inherited it from his doceased.brother Ishongor.ia. His witness ...... Alexander Bibasi suported hiu ... 1... 4 ;.......;; He was further supported by an entry in the iTyarubanja Register which shows that the land belonged to the appellant's brother Ishengoma All this evidence was not contradicted, and therefore the District Magistrate erred in holding that it was not established who owned the land in question On this point the Primary Court

Magistrate was right in holding that the lend belonged to the appellant The appellant in his memorandum of appeal repeats that the land belongs to him as he inherited it from his deceased brother Ishengoma and contends that the land was wrongly allocated without his being consulted; The respondents in a joint written statement of reply to the rounds 0± appeal stated that when Isheng,oraa died his brother, the appellant, did not register himself as landlord of .Kagimho and there:ore he cannot claim ownership of his brothcrTs land which the said Kagirobo occupied as a Nyarubanja tenant. I am unable to sustain - this contention by the respondents; It is clear from the evidence that Kagiubo vacated the said land in or about 1949. On his departure therefore the land reverted to the appllant t s brother 'Ishengona who was the registered Nyarubanja landlord. Ishengoina died in 1954 and the 'appellant inherited bhe land.' The appellani; therefore could not have registered as a Nyarubanja landlord of K.gimbo because at the time he succeeded to the land Kagimbo was no longer a tenant of the said Nyarubanja As indicated, the appellant therefore contends that he was dispossessed of his land without being consulted or without his consent and this appears to be supported by the evidence; D.W.2 said that during the actual allocation of the land the appellant raised an objection and asked

whether the people allocating the land did not know that the land belonged to him, and the witness replied to him that they were allocating the land in accordance with the decision of the V.D.C. The second respondent Aloys said that at the tine of the allocation the appellant raised an objection but D...7.2, the Chairman of the V.D.C. asked him, to keep quiet because the land was already alienated by the Council To ray mind this is clear indication that when the gendral meeting of the Co-operative Society and later the meeting of the V.'D.C. resolved to allocate.the disputed land the appellant did not consent to the proposed rove. Had he done so one would expect that when ho raised, the objection at the time of the actual allocation, the first respondent and D.N.2 would challenge his objection on the ground that he had agreed at the relevant m9eting of the V.D.C. to the said alienation. Similarly, the second respondent would have challenged the objection by pointing out that at the relevant meeting of the Society the appellant had agreed to the proposed alienation. It is cloar from the evidence of the first respondent • that the policy of the V.D.C. was to allocate open land, and it is also quite clear from the evidence of the, second respondent that whore the land, belongs to an individual the C.-oporative Society would apply' to that individual for the s..id land The Primary

Court agistrate •.••....• 5 ..••..s.••• found that the disp'ited land belonged to the appellant and there is abundant evidence tD support that finding. He also found that the land was not open lknd, but was developed in the sense that it had e on it trees which wre planted through human labour 'This finding is also, iaply suppokc-a by the evidence. The respondents allege that the appellant conseted to the alienation of his land but there was no evidence to provL this allegation.On the oth:r hand there is evidence to show that at the tiue of alloca'ing the land the appellant did raise an objection but was silenced. To rev mind therefore the Primary Court Maisrate was entitled to find that the appellant did not consent to the lienation of the land because had he done so at the said meetings of the Co—operative Society and the V.D.C., one would not expect him to rise an objection at the time of the actual allocation, and eveii if he did, one would expect that he would be challenged by both responJents and D.V.2 who attended the said moetings by pointing.cut that the appellant 'had consunted to the alienation of his land' In fat the evidence of the first respondent suggests that the allocation proceeded on the understanding that the land did not belong to the a1-peliant. Because this appellant said that after the Nyarubanja tenai3t Kagobo had left the land, the said land

remained vacant and he invitd the court to determine whose property the land was.. In those circumstances it is conceivable that the V.D.C. of which the first resonden -b was secretary would not take any serious steps to sock consc-it of the appellant to acquire what appeared to be an open lands Considering a the circumstances of the case therefore I think that the appeal oug to succeed. Cdnsequently the judgment of the - D1sr1cG Court is s aside and that of the Primary Court is restored. It is further order that the appellant recovers his costs of appeal in this Court and ± the District Court, In order to salve expenses the partibs rocucstod that the results of the appeal be notkf±ed to them through the District Court. Accordingly the judgment is transmitted to the District Court -at Bukoba which should Ipuyim.on the parties and deliver it to them. / Mwanza - (R. H. KISA1'fGA). 18/3/1971'. ACTING JUDGE.