19760906 TZHC Arusha

IN THE HIGH COURT OF TANZNIA AT ARUSHA (PC); CIVIL APPEAL NO 140 OF 1973 (From the decision of the District Court of Lushoto at Lushoto in Civil Appe1 No0 50 of 1973) MWANAIDI MPNENO ---------------------- - APPELLANT versus . .. . ... .• NKOSA .KI0NDO_T________. --------------- RESPONDENT. . ..'; JUD. G.M E N T . . ••; . Nyalali, J This is a second appeal from the judgment and decree of the primarycourt..of Lushotc district t MlIao whore the present appellant, namely Mwanaidi d/o Maneno filed a suit against the present respondent namely Mkosa Kiondo for rccovry of a piece of agricultural land situated at Makose, Nialo. The trial primary court visited the land in dispute and drow a sketch plan of it. To the North the disputed land adjoine the land of one Kacra iukirá Who is n o w dead rid'9hich the present respondent is apparcniy in idiaputed ocitin ba-t of it, the remainder being occUpied by the sons of Kapchukir, one of them beiPg Sidi bin Kapera who gave .:j .dnforthe . appcllant in the primary court. The.peent rèponderit 1A appai (~ n t ly the step-son of thC deceased Kapera chukira From this land of Kapera Chukira, the disputed land is separated by an old cattle . trck.. whicti is no longer. in.. use. - Tothe.àst, tl,dispute- land. adjoixiS that of KohemMaoone, who gave evidence the present appellant in th primary court and the boundary between them is a new cattle thack. To the south, the diputed lend adjoThs land (hich is ..th undisputed and peateful occupation of the present appellant. i3otweCn th two there is a •ithef:i-1. To the West.hi disputed land adjoins'land which has beefl sold-by'nè Bkari bin .Moo o:the.p±'esentrespondent. 'Ih. said Bkari Modo still owns land to the North adjoining the land of Kapera Chukirci p and he also gav , evidence, for the present:,appellant in the primary cou -t. . .. ,.. The present apellnnts case is 7 that the disputCd land onbe belonqd to:hIs owhfather, namel' Maneno, who moved aw .ay±o.. aother locality.but gave the land to the pre3ent appellant. But as the presentappellant was still young and unmar.ried the lryas"used for sbthétime by oe.Ali Kathiel,a brother of the present appellant's father.. When the present appelnt got married, the said A)i Kathiel, who .Uao gave evidence' for the .pCsent appellant in the .priIary.QUrt, moved away from the disputed land and handed it over to the present appellant. It was also part of the case for the p±esont appellant tha€ when hi,s -father...who. is n dead was still in occupa :tion.of' ithe disputed - land-,. oiñe seeds from 'wattle trees grown on Kaper.a chukira 4 s lánd nearby used to,be blown by wind and fallupon the ,1and',whidhj:now in,ispute... From thosestrayS.eeds there grew, on their own, at1e trees wtp.ch created friction b-e 1tween the present appelLant's father ;.name.y Maneo and.Kaper'chukira : A.pact wasmade between theh whereby Kapera Cthikira was prmitted. to cut theZfrst.rop ofth.e wattle tr,es on Maneno's land ........ . . •: - --- - p -2- After the death of Maneno in the new locality where he had moved and when appellant had b'een handed over his father's land by the above mentioned Ali Kathiel - the brotht.r of appllant's father,. the said Kaperachkira trespassed, into th.lpd which had beerithe sujct of a patbetwéen Kapra ukira.and appellants father. The trespass conisted in the said 'Kapra Chukira. planting a row ofL.SiSal) cutting across the land to mark a new boundary further south, deep ir(to appellant" lard. Appellant lodged a complaint with tho.Arbitrtion Tribunal of.the area and Kapera'Chu1c±ra"waSSUmtndflad and appcaed before the Arbitration Tribunal. This was in 1970. While the matter was being ithestigated by the Atbjtration Tribunal, the present .respondeht also trespassed into the land by dig'ging holes and planting fuit' trees therein. . On this occassion appellant lodged a complaint with the primary öurt at Mialo where "resoncJant was crimInally' charged 'for, ctin nd was cdrivicted and given a conditionl ' -dschavg uport condition that he remained of' good ]2c-iaviour for 12 mpnths -. This was under MialO Primary Court driminal Case No. 65 of 1971. ResponIent did not however abide by the conditions imposed on him and be continued to trespass into the land. On this occassion appe]1ah odgod hr complaint with the primary court at Dochi before which respondent was critninally charged, convicted and sentenced to pay a fin2 of shs. 25/- under Dochi Primary Court Criminal Case No. 477 of 1973. Thereafter the appellant instituted civil procLedings in the primary court at Mlalb clairhing possessIon 'of the disputed land. The prsent respondent's case is that land an dispute once belonged to his own grandfather who cl.ard it from the bi,ish. After the death of the grandfatho.responderit's. own 'father inherited 'the land", àrdthn his father died, . spobIent then inerted the,land inhlsturh. It was also part of respondent's case that when his father died, his mother was 'inherited by the abovthentionedKa.a' Chukira and as respondent was then very young, thQ said Kapra, dhukira looked after. the land left by respohdont's father,untiL espondent reached an age when he took over- his inherItance. ., The txial primary court by unamirnous dcision Of the 'gentiem' assessors and the primary court magistrate gavc judgment for the appellant. .Th -rpdent was aggrieved and heappca1ed to the district court which overturned the judgment of the primary court ,.:.and gáyei judgment instead for the respondunt,. From the deciion-' of thedistrict court, this "appeal is brought by th'o persor o' - won in the primary court. .i •Inovertur,ning the judgment of . the trial pziary court, district court felt that the claimant's case lft much to be doubted. The istrict 'court.reached. that conclusibn after pointing out a ;. number of discrepancies in the evidence adduc-.d for the claimant's casee Firstly, thexe was contradictian bLtwecn the claimant's ei-'on and that of her witnesses concerning the xannr how the wttle trees came to grow on the land in dispute. The claimzint testified that she planted the wattle trees but her witnses testified tha. 'thosey- trees grew from stray seeds which were -prsumably'blown to the land by the wind from an adjoining land. The second contradiction concerns the issue whether defendant owned any undisputed land of his own to the west of the land which is in dispute. The claimant had testified' that I -3- to the west of the land inlspute there lay the lafld. , ofone Bakari Modo whereas the .*et.ch p1ai cIran by the trii court showed, that land to belong to defendant and not Bakari Modo. Another discrepancy jitz discovrcd by th... 1istrict court concerned the persohs who were present when the claimant mentioned the names of those who witnessed th lrnriclover but she did not mention Bakara. Modo Who testified that hc also was present at the handing over of th land to thc claimant. The district court also discovered that one of the persons mentioned ]y claimant being present at the hanclover, namely one Ramacihani .Mnepo was not called to give eviience for the claimant. o tart with tha isstM Of Ramadhani Mnnno not being called to 1ve evilence, I have hdt founi anywhere in the claimant's Lvidence given In the primary court civil case No. 51 of 1973 that madhani Maneno was mentioned s being present at the handing over. Even If he was mentioned, the failure to call him to give evidence is ot matefil since the.. la1marit calId two of those mntioned namel Ali Kthiel whodid the actual handing over on behalf of his brother (the father of the claimant) and one SajdibinKapera. As to Bakari Modo testifying about being present at the handing over when he was not m1;oned by the claimant, I think the answer can b found in the used by the claimant in her thstimony. She said . ,. .... . . . . . ,,. "Nakumbuka baba yangulinikabid.h.ishamha lahg.mwaka , 1974. Nakumbuk 9aIdvbiuKapern alishuhudia nikikabidhiwa sharnba langu in inawn 'co na All Kathici. Mashahiui wengine walioshuhudia nikikabidhiwa shamba hilo walikwish'afarlki." t is clear from this part of claimant's tstimony that she was mentioning the persons she remembered. Now slncL a longtime elipSedr before She gave her evidence, a failure of mcmory, was JIkeiy on this Issue4'. to issuejtof the sktch plan showing th dofendat trio own undispu€ed land to the west of the land in dispute when dlaimant testified that it was Bakari Modo who had lnd thre, the answer is apparent from the sketch plan itslf whch shows that land in the west infact once belonged to l3akai Moclpwho later sold it to the defendant. This is obvious from the .words appearing there reading: "Shamba la Bakari Modo alilouza kaMda±wa Mkosa". As to the issuel of the claimant testifvinci that she planted herself the wattle trees on the land in dispute, I agree that her assertion is contradicted by the testimony of those she called to ...... give evidence on h:.r side, but ownership of the wattle trees can b different from ownership of land which really was the subject 6f the case. The reasons advanced by the district court for overturning the decision of the trial primary court were therefore non-existent. It follows therefore that the district court was wrong in upsetting that judgment which was supported by the evidence of persons who own land adjoining, the land in dispute. On the other hand none of the withesses called by the defendant owned any land adjoining the disputed land, and most had got their information from Kapera chukira who also had a dispute over the same land with the claimant before be tied. The next point I have to consider is whethor the respondent, who was the defendant in the primary court, has any right to the wattle trees or the gruit trees growing on the disputeland. •0000 0. /4 t -4- ..' The defendant testified that .he'planted the wattIe trees '1imself., after he got the land fromKaperachukir bu'tthe'evidezce of his' withesse Bhow that the wattle trees were growing there already during Kapera chukira's days before the defendant occupied the disputed land. This isofcourse,in agreement with nos of the: evidence given for the claimaht to the effect that the wattle trees were not planted there by anybody but grew; by themselves from sray seeds whIch fell there:from the adjoinin land of Kapera' Chukira during- the. days of c1aimants father. ". Now, since these Wattle tr es grew there by act of God, without the labours of any person; they go with the land which also4exists by act of God, and the person who is entitled to the land is also entitled to the wattletz.,,as in the absence of agreement to the contrary. This means, since I agree with the judgment of, the trial primary court grarting ownership and possession to the appellant! claimant, I am bound to declare that the wattle trees on that land belong to her as well. :As to the fruit trees.Which the respondent/defendant clearly planted himself, the. evidence shows, that he plantCd them when he was aware that the land was in'dispute between the appellant/claimant' and his step-father, Kaera - chukira. He. acted, therefore t his own risk - and he is .not.entitled.to be paid compensation for the fruit tees. He may cut them down if he so wishes. This appeal therefore succeeds and thejudgmcnt 1. of the district court is set aside, and that of the primary court is rstored. Since appellat/claimant dd not wish to appear in this appeal, -io order as to costs of this appeal will be made0 The respondCnt/defCndant who appeared wished this judgment to be delivered at LuShoto district court to save him frOm the expense and inconvenience 'of travelling' again to Arusha to take judgment. It is hereby directed therefore that this judgment be delivered, to the parties by the district magistrate Lushoto who should e supplied with a copy of the same for that purpose. I F.L. N LALI, . ARUSHA: , ' ' J U D G E 6/9/1976 FLN/KK