fikiri tanganyika vs recton mwanangwa 2003 tzhc 84 7 august 2003

IN THE HIGH COURT OF TANZANI/

AT MBEYA (PC) CIVIL APPEAL NO. 22 OF 2002 (From Civil Appeal No* V? of 2001 of Mbeya District Court - Original Civil Case No* 60 of Mbeya Urban Primary Court)

FIKIRI TANGANYIKA APPELLANT Versus

RECTON MWANANGWA RESPONDENT mma %j . Fikiri Tanganyika and Recton Hwanangwa. are the Appellant and Respondent in this appeal, respectively. Recton (Respondent) instituted Civil Case No* 60/2000 in the Urban Primary Court of Mbeya, at Mbeya, against Fikiri (Appellant) for recovery of 18 acres of Land which the Appellant is alleged to have seized illeguliy from the Respondent* The Respondent’s complaint further alleged that the Appellant after trespassing into the said Land uprooted the trees planted thereon and then boundaries were demarcated in theabsence of the Respondent* Recton lostthe suit but on appeal to the District Court of Mbeya, at Mbeya, thedecision of the Primary Court was upset*' In turn, Fikiri did not agree with the findings and Order of the appellate district court, hence this appeal. * * Two grounds of appeal by Fikiri are the bone of contentions before this court* These grounds assert as follows: «* (1) That the Learned Resident Magistrate erredfin law and * f * fact for disregarding the evidence of the chairman of Mwabowo and other witnesses who testified that the * * land in dispute and the trees planted therein,were the properties of the village* » » (2) That the Learned Resident Magistrate erred in law and fact when he decided for the respondent in that the appl y ant appeared as a party, in the matter wrongly while the defect is curable* Both the parties

are legally unrepresented® The learned appellate Resident Magistrate was satisfied on the evidence of the Respondent (Plaintiff) and his witnesses that the trial primary court’s judgement is against the weight of evidence on record;on the question as who is the legitimate owner of the shamba in dispute. At pages 1 and 2 of the typed judgement the learned Resident Magistrate made the following observation, and I quote ipgi ssima. v^rba, as follows •■The evidence of the appellant was clear tha.t he had inherited that piece of Land from his father riwanangwa Sangawale and has been using it from 19&8 until 2000 when the respondent trespassed it. The appellant explained how the respondent seized it, uprooted the trees and demarcated boundaries and that such an I exercise was done after the appellant was locked up by order of the Ward Tribunal a.t the instance of the' ') respondent who had sent the militiaman to apprehend the appellant and have him locked up.-* ; It was not disputed in evidence that when this case, started the Aprpellant (Defendant) was the Chairman of Mwabowo village within which the disputed shamba situates* The observation quoted above is supported by the! testimony of of one the villagers Inohamed s/^ Tentema (P//if)» The Appellant Fiikiri did not deny that asserted fact of arresting the Respondent, locking .blim in the I Ward Lock-up. While he (FW1) was behind

the bars DW1 (Appellant) and his gr«*up went into the said Land," uprooted trees already grown on thd land and disturbed .the boundaries by putting new ones. I Now, the question is, if D W V s intervention was with clcan Hands v/hy i did he assert his powers as the village chairman to lock-in the Respondent instead of taking appropriate legal action? If the land belongs to the villagers why DW1 did not convene the Village Council to address the I complaint, of PW1 in the latter?s presence? Or, alternatively, if it was PW1 who had criminally trespassed into the said Land against the interests of the villagers why was the Respondent not criminally prosecuted] if civil action by the villagers was not their priority? Thus, in my openion, the *. i i ..... /3 crnduct of the Appellant tends to point some guilt suspecion around his personality as the village chairman- It is in the same vein hr* Dyansobera., Learned Magistrate, doubted - the credibility and intergrity *f the village chairman Fikiri Tanganyika., whether his appearent forceful aet was for the interest of himself or f®r the Mwabowo Village, also whether he had the* authority or saction ®f the village to take the action he did* DW1's testi- * . • • mony and the evidence *f %Wacha.waseme Sikumalike (DW2), Damson Hlangalila (DV./3), Elia Kwasanga (DW^f)-and Asumani Chelewa. (DW5 ) is absolutely silent as to what happened on V

5 / 1999 * But to the contrary PW2, PW3 , PW^ and PW5 who testified strongly in support of the Respondent’s case are also the villagers of Kwabowo. Samson s/o Ndegeulaya (Ftf/5 ) was once “balozi na. Mwenyekiti wa kijiji--. But all these witnesses who were part and parcel of the village .had^Unison stand and testified in both examination in chief and cross-examination to the effect that the suit Land is the property of the respondent, the latter having inherited it from his late father. Coming to the first ground of complaint in the.: Appellant1s Memorandum of Appeal, on the strength of the evidence on record can it be answered positively that the district court the testimonies of DW1, DW2, DV0, and DW5 and gave judgement against that weight of evidence? A thorough examination of that evidence is necessary* : The Respondent (PW1) and ids witnesses did not dispute the fact that on the disputed Land there is a small portion of Land which his father had allowed the villagers through the retired Chairman, one Samson, to plant trees. It is also in evidence by PVJ1 and his witnesses that Samson was warned by PW1}s father not to plant trees beyond the village road (as shown it the sketch -* map) and that the villagers were not to own the parcel of Land but their entitlement was only to harvest the trees. It is not also disputed that the village built a school to conduct adult

literacy. A The case for the Appellant at the trial court was that the village • - Irianded over the shatnba in dispute to him to its use and cultivation* * ' r' i They grew pyrethrum thereon as property of^the village.' They also constru- \ ^ cted a canal from river Mawilazvtru to the ^ai^i shamba.. He went on to f testify:- r •'Kazi hiyo alinipa meneja Mbeyela. wa. pareto pamoja. na-Mwenyekiti wa Kijiji aliyesimamia kazi* .ooo», Baada ya kua.cha. kulima pareto tukaanza. kupanda miti. Mwaka 19'31 rniti ililiwa na panya. Mwaka 19$2 tuka- panda miti mingine,;. As stated above, FW1 did not object to the fact that some trees belong to the Village because they were grown by the former village chairman on compromise with PvVI’s father. Although DW1 (the appellant) testified as the Village chairman, nothing came out from his mouth as to how much acrage of Land is owned by the village and how much of that land is planted with trees belonging to the village. There is more evidence by the appellant, upon cross-examination by PW1, to the effect that PW1 was sued to the WARD aliogodly TRIBUNAL in 19&9 when the respondent^, trespassed into the Land and tilled it. But the appellant did not go further to tell the trial court what were the results of the complaint to "BARAZA LA KATA,;. 1 would then ask if there was such complaint to the Ward Tribunal by the village against the respondent

in 1989, why that decision of the Tribunal not referred to in the trial coip’t? Or, why the dispute should crop up again in 1999 after 10 years of the alleged complaint to the Tribunal? \ I have attempted to read the evidence of Wa CIIAWa S£M£J SIKUMALIKE (DV/2) quite meticulously to see if there is any tangible corroboration to DW1’$ testimony* This witness simply gave a. general statement as follows:- •'Nakumbuka, eneo hilo lilijengwa jengo la elimu -ya watu wazima.* Tumesomea pale* Baajrta^ ' (emphasse.d by me). The underlined words are to show that the villagers moved out of the area. because they knew that the Land was not theirs# It is not also tangible evidence for DW2‘s statement that ;sHatukupata taarifa. yoy.ote ya kuwa eneo lile lina mtu yeyote**. Also the testimony of Damson Mlangalila (DW3) appears to be guews work. He denied in cr'Jss-examination ac followsi - ,5Sijui kama unalima pale. Miaka mingi sijui kama una shamba1'. That quoted piece of testimony contradicts DW15c testimony who told the trial court that in 19^9 PW1 entened into the said disputed shamba and the village referred the matter to the Ward Tribunal-. If the shamba really belongs to the villagers how then IW1 could till the Land from 19&8 when his father died to 1999 when the trouble started without the villagers noting their trespasser for a. period of ten years? As these questions remain

unanswered, the only inferrence is that DW2 and DW3 are not witnesses of truth but tailored witnesses to accommodate DW1's interests. The evidence of Asumani Chelewa. (DW5 ) does not assist the Defendant's case either because if the disputed £and was set aside exclusively as the property of the village since 19 ^2 , it was not explained in evidence as to why there was no action taken against the respondent (FW1) when he started making use of the Land since 19&& when his father died to 1999 when this problem arose. He claimed that the whole village was involved regarding the allotment of the disputed shamba to the village. This remains a bare statement because the puported document headed 1 "MHUTAoARI WA MAKABIZIANO KWEHYE MKUTANO tn/A SERIKALI YA KIJIJI NA MABAROZI WA MASKINA ULIOFANYIKA 20/7/1992 KATIKA JENGO LA C.C.M. TAWI LA MWABOWO KATI YA MW2NYEKITI MP7A NA WA ZAMANI- (SIC), does not talk anything concerning the disputed shamba. The said document therefore, is a. useless document as far as this case is concerned. Having considered the grounds of appeal generally the way I have done, it only boils down to the effect that there is no material and justifiable ground to upset the judgement of the appellate district court. The Learned appellate Resident I4agistra.te properly reviewed the evidence adduced before the court of first instance and came to a correct and sound

conclusion that the disputed piece of land is the Legitimate property of the respondent, j hence its allocation to a third party, namely, the Mwabowo Village, who was notw a party to the proceedings in the primary court was hot according to Law and, therefore, unlawful* *’I hereby ^confirm the jucJgement of the District Court and the decision of the primary court- stanUs ^uashedf The mt Ordeg of t*ie district court setting aside the primary court's decree and r ' . • any ancillary order consequent thereto is also re-affirmed. Costs of this appeal and in both the courts bellow to be borne by the appellant r " ' ' f‘ FIKlRI TANGANYIKA. Accordingly it is so ordered. O o ft T / \ +/ /* A.C.:'MREKA . or JUDGE. li: 07/08/2003. v At Mbeya in the absence of the panties* \ A.C.'MKEMA

JUDGE 07/08/2003