ndson james mwanyingili vs moses mwalwisi others 2002 tzhc 2069 11 october 2002

IN THB III GrH COURT OF TANZ/.IKA AT IxBSYA MISC. CIVIL APPEAL NUMBER 13 OF 2001 (From the d e c is io n o f the D is t r ic t Court o f Rungwe D is t r ic t at TUkuyu in Kisc* C iv il A p p lication No*8 o f £000) 1QS0N JAH3S 1.IV/AI'7¥I NGIJ S L ♦**A?PBLIiAN» V33R3US U MOSES LI,7ALVaaX 4 . S33AU KXBOIU 3* ADAM MPA LA NO 4* KAJELA JAILOS v • s, Mv/iKAaosK* )

JUDGMENT MACKAHJA. ~J . This ayoecuL tr^ ea s i t s o r ig in Ti'<xi ^ c i v i l fjj prt3*'^r> ^rvur a p a reel o f land which was the su b ject matter in *'C iv il Case No* 12 o f 199? o f the Mascbg primary i^airrt in viLl^h. tha apE&lluni .sued Saras-ajti JMUirval>a.na far* rooo^nEry o f that land. The appellant *» Auc«e^4<Ni the la t t e r was orde*£d t o £:QiU3pruia4e tJa£» a sum -af A jr os a hak1 pfrFiriP-nfiLrgL o«f the s u it land; fh e*order f o r compensation quashed in a* oppoal befona* the Rungwe D is t r ic t Court s it t in g at Tukuyu. Samaoni Mwambene l o s t in the second appeal before th is Court. I m. the meantime iSamsoni Mwambene had su ffered sev era l people to occupy the s u it p a rce l o f land, that i s to say, Moses KwalwisiT Ssai Kibona, Adam Kpnlano, K ajela J a ilo s and Mwanyangila ^wakabopela. In order to recover the land from these p eople, wha appear to have become squaters when th e ir le s s o r l o s t the case, Edson Mwsnyingili in s titu te d an a p p lica tio n before Rungwe ..,/ i D is t r ic t Court f o r an order fo r vacant p ossession from the above p eop le. What follow ed was a force in which the D is t r ic t Court tr ie d the case a l l over a/^ain, c a llin g w itnesses and ended up by s e ttin g asside the d e cis io n o f th is Court by which i t was declared that the sv.it p a rce l o f land belonged to the a p p ella n

t. In p a r tic u la r , th is Court held, at page 3 o f the typed eopy o f the judgment th u s ;- "Let me pause here and say that the concurront fin d in g by both cou rts below that the land indispute was throughout the property o f the fa th er o f the respondent which could pass on to the respondent in in h eritcn ce could not be f a u l t e d ..* . The a p p e lla n t’ s claim , as demonstrated, was wholly unsubstantiated* I t was a f u t i l e attempt to d e frcu i the ch ildren o f James, in clu d in g the respondent, o f the land in d is p u t e ..* ” . In sp ite o f the above e x p o s itio n o f the fa c tu a l p o s itio n by the High Court the learned appellate D is t r ic t Magistrate s tre n -^ s ly tr ie d to undo that d e c is io n by holding that the a p p lic a tio n f o r an order by which the respondents were to be e v icte d was barred by op eration o f the d octrin e o f res .judica ta * That, o f course, was a m isa p p lica tion o f the doctrine because what the appellant in s t it u t e d was not a s u it ; i t was an a p p lica tio n . In any case, since the respondents were demonstrably in v ite e s o f Samsoni Mwambene’ s, 3nd the l e t t e r having been found to be a swindler by the High Court, he could not pass any good t i t l e to the respondents. The appellant complain® in the fou rth ground o f appeal that the D is t r ic t Court’ s ru lin g i

s co n tra d icto ry in t e r s e * I fin d a l o t o f m erit in i t because the learned Magistrate who made th is d e c is io n was the same person who uphold the appellant Ts r ig h ts in h is court*s C iv il Appeal N o.28 o f 1998 in which he held that the s u it p a rce l o f land belonged to the appellant, observing that the respondent th erein was an in v ite e because h is only a u th ority over the l f;.nd was that o f being a care-tak er while the appellant was away in Zambia# Mr. Mushokorwci, learned counsel, has made a b r i e f subr.ii 3 s i on » n rbo-half o f the respondents, contending that Samsoni Mwambone did not l it ig a t e on b eh a lf o f the respondents. I e n t ir e ly agree with him that that was the p o s itio n , and the reason i s not fa r to fe t c h . As in v ite e s o f Samsoni Ilwambo ne *s the respondents had no I qcus beoause th e ir r ig h ts were derived from Samsoni Mwambene's 'f " " T -. p o sse ssio a of*lan d. Onee he lo s t p ossession o f the land, the rig h ts o f h is in v it e e s were au tom atically extin gu ish ed . Upon:"', the above observation s the appeal su£>.eeds and i t i s 1 i a ccord in g ly allowed with costfi. I t i s d ire cte d that the respon d en t do give vacant p ossession to the ap pellan t as prayed in h is a p p lic a tio n . D elivered. sgd: J.K. MACKANJA

JTJDGE A 11/ 10/2 0 0 2 Appellant: In Person Respondents: In Porsoni C e r tifie d true copy o f o r ig in a l K3EYA