19871013 TZHC Tabora 1

t\1 G 3) tr~ ~A--- . D . .,. ! CIVIL fffPJJL no. 3 OF . 1985 (ORIGINjL !11.~SWA CIVIL C.-,3;; .W. 3/85) CH1\IRMAN 01<., LINGEK.A VILLjGE •••••••••••••• •·• •• APPELLAriT versus MAIGE NYODA .d.ESF'ONDENT ,ru DG ~ T~:.;;-.f T ......._.,...........,......,_.~,. CHIPETA 1 J. The respondent in 'this :.i_,peal, ~hige l'Jyoda, who is a resident of Mwashata village, M3swa District, successfully sued tho appellants, Lingeka village, Maswa District, for recovery of a piece of land measuring some 50 acres. Dissatisfied, the appellants now appeal to this court. The respondent's avidenco at the tri3l wis th:1t in or about 1974 1 the Mwashata vi1L1ge GovGmmGnt and Lingeka V:ill..t 6 e ·Government ( the two vilLtges are neighbours) fo:cmorly drevJ .1 boundary on their common borde.s. The .~)Undary consisted of 3. ridge made by 3, trn.ctor. In or about 1974, the I-hJ3sbata vill.1ge authority allocated the disputed piece of lmd ( .oJLicl; lius ,.:,ioflg tl10 1 border v1ith Lingeka \ village but on the siJ.0 of H1,ns.hata vill'l-gG) to the respondent. The respondent immediately cle~ned the piece' of l:1nd ::i.nd started cultivating it. The respondent cultiv,1t;-)d th:1t land continuously until during the 1984/1985 farming so:1son w~1en trouble erupted. During that season, the rGsponden t cul ti v:i tod tho en ti re 50 ac rEJ s and pl J.n ted solghum. When the plants wero abo~t five feet high, vill~gers of Lingeka village moved in :1nd stJ.rLd weeding the f.J.rm. The Lingeka villagers, led by their ch3.irm1n, one Lyapu Kumaliza (n.w.1) a.nd the village secretary, one Buzuka Kirum-1 ( )D.W.2), 1riere cl.J.iming ti1:1t the farm belonged to their vill~ge. When the respond.ant ,,-Jent to tho farm, he found Lingeki villagers weeding th.J.t farm lnd Lin 6 eka nmilitia. soldiorsll_ a.:r3sted him a.nd led him towards Lingeka villlGG• On the 1rJay to Lingek1 vil1.1ge, an acting ward secrota.ry of Lingeka, · g;.1ve the respondent a document which th0 said ward secretary, one Edward Mungo (D. w. 3) said wc1s II a bail bond form, and told the respondent to sign it. The respondent, who is illiterate,. then 2 thumbprinted the docu:,,0_1to :i:l,,;r8upon Do~'io3 told him• ''The m-1.ttor is o·v . .,_, .101,--i. You h:1ve now SU:i. rond0red and 0 handed ovor tlie 5O.:..J.cr0 solghum farm to Lin 0 ek:i. vill.1ge. You 1r0 allo1;iud to -:'.O homG nOV'Jo 11 It was th0n t:.--dt thu rospondont went to f.bsv-ia District court a.nd filed this suit on 19u. J.:l.nuary 7 1985. The respondent's evidence w:i.s corrobor1tod fully by the evidence of Mwasha.ta vill1ge secrot3.r,Y (P.W,2), the n.,1,1s'..i3.ta vill.1 6 0 chairman (P,Wd) and a peasant of t~1.:i vill-L'-~c; (P.W.'-i-) .. ,fi.l' -~~-,jsc witnesses testified th3,t the disputed piece of l.;.nd is i,-iithin I,h,10.sh:i.tc.1 vill1ge 7 a.nd that it was duly allocated to tho r:.r1pcnd0nt by Mw.J.shJ.t<:1. viJ.l::1.ge authority in or about 1987.• The appellants' ovL,r;;1ce ;-i,:1.s tl:,-1t the v~ll::1;:;e:;:os of Lingeka village had been cultiv::i.tin_; t~1e disputed piece of l.Jnd since 1975 and th:it the · respondent 1tJa.s a.rrc,sLd because ho .:1s found cu.l ti vatin 6 it in the 1984/85 ,,,i . reason. The 1;:pell.1:1 tG fu rtl-10 r claimed th,1 t tho respondent voluntarily .. handed over tho f:i.rm to th0 Lingeka villJ.go Government.· After c.:1refully sv.-:.1u.ati11g tho evid;once, the lea.med trial senior di strict m.J.gi str::1t0 v-J~3 fui_ly sati sfiod th.1 t P. \,f .1 7 P. \~.2, P. w. 3 ..lnd P.w.4 were truthful 1;,iiti-10 ..::sos .-,.nd thJ.t thz:i .1)p01lants witnesses had told the court a pack of li:is. t..::, 1ccordinGlY fou.:1il ~s a f.:i.ct that the piece of land is within tl1e ju1°isdiction of M1,,1as:. :.t:i villJ.ge which lawfully allocated it to tha roupondont who in turn hid b0en cultivating it continuously sincG 1974$ IIo accordingly found fo:i.' tho respondent and described the acts of th.:i o.ppellants on t.!rn pioce of land J.s an encro1chment. During tho hearing of t!1is appe:il, }fr. Kwikima, learned counsel for the appellants, s1..1br,1ittod th'.l.t tho:;:oc ·i-.'-:1,s !10 evidence th.3.t th~ respondent vias c1llocJ.t::id tho piece of 1:..md b,y ::i. properly constituted village authority and tJ,t by ..1 resolution of Lingota villa~3rs, the piece of land had beon J.lloc1tod to Lirigeka vill1ge. Mr. iJ iabaye 1 lo n°:i.ed counsel for the r·Js)ond.ent, submitted that since the disputed pi,Jco of land is within Mwasha.ta village and not in Lingek.a village 1 tho II1·J=l.d-:1.t-:i. villago .l:Ltd the auth.ori ty to 7 and did allocite the piece of llad liwfully to tha rospondent who has been cultivating the same from 1974 to 1985~ Without beJ.tin~ J.i1out tho bush 7 it is qui to cle-3.r on the evidence that the disputed piece of 13.nd li0s ,,.1i th;i.n M1;i,:1s:_.,ita village, that the said village duly alloc~ted the same to thG ras~ondent, and that the •••••• 3/. - 3 respondent has b-en developin 6 tho same for morG than tGn years. On the evidence, therGfore 1 it is inept to suggest th3,t by a resolution, Lingeka villagers alloc1ted the piece of L1nd to tk:mselves. Lingeka village h'ld no semblance of o.uthori ty over that piece of land. Such a resolution,therefore, amo-.:u.1ts to effrontery toJ,hJashata villge Government and assails common sense. The' conduct of Lingeka, villagers was, as the trial magistrate. ,apUy described it, :1n encroachment on the piece of l:1,nd. For these re,3,sons, trio decision of the trial court is he_;reby upheld. In short, this appeal is dismi s::;d vii th costs 3,g3,inst the appellan,ts both in this court and the court below. I