19910405 TZHC Dar es Salaam

IN THE HIGH COURT OF' T ANZi.NIA. J.T DAR ES SJ,LAAMo CIVIL APPEi,L NO. 55 OF 1988 h.MINA Ri-.M/.DH/JJI 000000000000000000000 APPELLANT versus JAFFER GOMJ,NI 00000000000000000000000 RESPONDENT J U D G M E N To --..-.. . . ...-----~---=----~ LUGAKINGIRA, Jo The appellant sued the respJnclent in the Primary Court at Manzese, Ki.nondoni District, f:'1r :)wnership <)f a piece :if land lying at the back of her house at Mab:l.bo., She was successful. This aggrieved the respondent who appealed to the District court. He was successful. The appellant thet;J. brought the present appeal and was before this court represented by learned counsel, Mro Mairae T.he dispute centered on the ownership ·Jf the piece of land-. At the trial the appellant insisteo that the land was not a shamba, although used as such by the respondent, but was part and parcel of the plot on which her house stoodo She c:! a':1.med to have temporarily permitted the . respondent (who happened to be her tenant) to till the lan~but h~ had since refused to give it upo Accordj_ng to the respondent,. hqwever, the. e, land was ji!nither part of the ,:pp~J.lant ts pl:)t nor was it .,therwise her proper~y~ He claimed to have been permitted t: cultivate .tt·by·on~ Mama Teni ( since deceased)~ an<i t:) have s·::> cultivated the same without ' disturbance since 1970c Th::: c::·} i-;<.:.. .n:.. _v.i.s.1 ·~.ed the land anr'I

established _:::. the undisputed fact that the same was behind the appellant's house. on that basis, nnd on the basis ,f c~.,r::cradic~ions in the defence, the court held that the land belonged t ..., th1:; :e,ppellantA Before the Distr,tct Cou~t the re.spondent was permitted to pr . .~duce a s:t te plan ahrl this indicated beyond question that the dispt:.ted- lElnd did not form part of the ·appellnnt•s appar.ently surveyed plot bt.:t 'wa.s rn1"':;:-c·;::,. '.:'.onti.rJuous thereto,. The Di.strict Court then proceeded to disp0sn -,.1; the responrlent ~ s appeal not on the 1Ja'sis·of ownership of the land but )n the basis Jf l0ng uninterrupted •oo·•n/2 .: 2 Before this Court Mr. Ma1ra £ )!=' t:he ., ppellant ,3ctually argued two points although he happenecl -~o -~ead more _into them~ The ~irst related to th~ production of the site plan bef~re the District Court. Mr. Maira argued that the n:i,strict Me.gistrr:ite erreti in receiving.. thls additional ev;i.dcnce without giving an opportunity t t})e appellant to challenge it. The seconrl po.int· re.1,-:itect to ·the 0wnership of the suit :lane,. .Mr. Maira argl.led that the question u.f presoripti-:>n did not arise ei t}:ler because the responclent used th~ lanrl f ,::ir gr,wing bananas, which ·to Mr. Maira we~e not a permanent crop, or because the ~esp0nctent was only a licensee on the land while -:.iwnership c )ntinued to vest in

the appellant. It may not ·be necessc.1ry to c·)nsirler the seconc'l p0int in the way it was. ~_F~c~f~•,,-i1 -:,·,-1 cert."!inly the sketchy evidence and M_r •. Maira• s trief remarks on the subject are not such us would assist in that exercise.. I think that an answer to the problem of this c.:i.se may be ., ·found in.the disposal of the first pointo · 1 havealready remarked that tne centr2l question was the ownership of the disputed land or, to put it more snccinctlyr whether the land belonged to the nppellant. rt wns the appellant 1 s contention that the land formed part of the plot :in which her house stood. rn her written claim she therefore said: ."Nadai sehemu ya nyumba uchoch9ro ambayo mdi:tl. (sic) amelima mboga mboga .. 11 · At the settlement of issues she said: . . itl "Ninamdai mda.iwa, sehemu yangu. ya nyumba ambayo ameic:hukua ••• " And/ her evidence she said:· 11 Ninamdai mdaiwa huyu amechukua sehemu · ya etieo langu :ia nyumba na kuwa lake na wak2ti mimi ndiye niliyemuazima ••• 11 Faced with such unequivocal claims anrl declarutions, it was both necessary_ and t desirable to call for a sijte plan in order t, res )lVe the dispute. This is becaus~ the evidence · suggests that the land is surveyed:... The appellant was one of the Kariakoo resirlents who were moved by the G.overnment, it seems sometime j..n the 1960s, and resettled at, Mabibo in houses already·

built for them by the Nati-:,na+ Housing Corporation. The C9rporation could not and does n;::it build over u_psurveyed land. In :the circumstances the District Magistrate di·rected himself pr")perly in calling I f.or a .:;ite· plano M~e Maira1s complaint, however, is that the appellant was given no opportunity to challenge this add,itional evicience. Witq due respect to learned counsel, I' do not find that to be the positiono The. record shows that on 2809.88 the magistrnte ordered the production· of the site plan on 3.-11.88 ,and also ordered both parties to attend. On 3.11:-88 tpe record reads "_Baraza kama kwanza", and the site plan was dU;lY ~endered.. ·the.re is no ·ind.:.caU on whc1ts·oever that the appellant ·.:;· ' o•e•e/3 : 3 ever sought tu challenge the st te plan .)r that she was prevented from doing s::>..- -In my underst2n.-ling when the mngistn1te ordered the attendance of both parties on the mab2rial clay he did s,) with a vie-1 to er.iabiing the appelli,nt t::> challenge the site plan, if she so w!sheti; I ·-.. l and that she did not do so can 0nly_ mean that she did n0t wish to~ I therefore respectfully reject Mr .. Maira's nrgumeht ~nd hold th;t the site plan WuS properly received in evidence.- My only complaint is thnt it shou-ld not huve been returned to the respundent after judgment but should have been retail'l.ed i-n the record till the final

determination of the suit. Now, coming bQck to business we find that accorning to thesite plan the disputed l:::nd does not form part of the ::i ppellant' s plot. The appellant knew this too, al though previously stating the contrary I for before the site plan was produced she stated: 11 Hiyo plan anayosema kuonyesha s_ehemu yn mbele ya kiwanja itaonyeshaje sehemu ya uwani mwa nyumba.," rt folluws that the disputed land is not part of the plot over which the appellant has legal title; that is to say, it is not her property. What transpir~s, especially so from the evidence of PW2 Hadija Jafari in cross-examin2.d.on, is that some ex-Kariakoo settlers faun<'! extra lands at the rear of their plots which they proceeded to appropriate for culti- vation. The nppellant presumed herself to be the ··,wner of the disputed land in similnr circumstances but,in 1r view, it was a mere imagination which did not create a title over the lando on the Jther hand; there was uncontroverted evidence that among the parties it is the respondent who was ever knuwn to put the lan0. to use and has d·::>ne so undisturbed since 1970a on this bnsis, and regardless Jf how he came 0¥ the same, the respondent has built up a better claim t,J the use of the lunr:1 i:han anything to be derived fr,)m the appellant's im.:iginary ownershipo I am for these re3sons unable to interfere with the decisiJn of the District court. The appeu.l is dismissed with costs ..

JUDGE DAR ES SAI.iA!.M 5/4/91 Appellant - Present_ in person Respondent - Pr~sent in person Right. of· appe.::ll explained.· ---~-::;_-::;·~vr OO~iRA)

JUDGE 5/4/91