heriapson tariamanga kimambo vs august ngola ngowi 2006 tzhc 314 28 april 2006

IN THE HIGH COURT OF TANZANIA AT MOSHI (PC) CIVIL APPEAL NO. 19 OF 2003 (C/F DC MOSHI CIVIL APPEAL NO. 27/2002) (ORIGINAL MOSHI URBAN P/C CV. CASE NO. 10/2002) HERIAPSON TARIAMANGA KIMAMBO — APPELLANT VERSUS AUGUST NGOLA NGOW I------------------------RESPONDENT JUDGMENT HON. JUNDU, J. This is second appeal. In the trial court, that is the Moshi Urban Primary Court, the Appellant had sued the Respondent for encroaching into his piece o f land. Having heard the evidence o f both parties, the said trial magistrate determined the suit in favour o f the Appellant. However, the Respondent successfully appealed to the District Court o f Moshi hence the Appellant has appealed to this court listing two grounds o f appeal in his Amended Petition o f Appeal namely (1) That the learned District Court Magistrate grossly erred both in law and fact in overruling the decision o f the trial Magistrate despite the fact that on a balance o f probabilities, the Appellant’s evidence greatly overwhelmed that o f the Respondent. (2) That the learned District Court Magistrate further erred both in law and fact in not acknowledging that the Appellant having occupied the disputed land for well over 12 years, his occupation could not be interfered with. Based on the two grounds o f appeal, the Appellant in his Memorandum o f Appeal prayed to this court to allow the appeal. Mr. Njau, learned counsel is advocating for the Appellant whereas the Respondent responded to the appeal in person. On 16th November, 2005, by consent, this court ordered the parties to argue the appeal by way of written submissions which they have fully complied. Judging from the two grounds of appeal and the submission o f parties, two issues which need to be considered and determined by this court are first whether in view o f the evidence o f the Appellant, the first appellate court acted properly to overrule the decision o f the trial court which found in favour o f the Respondent and secondly whether the Appellant had long occupation in the suitland which could not be disturbed. The submission o f the Appellant is that he was among a group o f people moved by the Government (by the District Commissioner) in 1978 from Old Moshi area where they were occupying wastelands to Himo area where they were allocated pieces o f land in an area which used to be a sisal estate. The piece o f land allocated to him measured slightly more than 2 acres and that he gave the Respondent part of the said land for temporary use only that is to cultivate food crops. In 1990, the Appellant claimed his land back from the Respondent but the latter resistated. SM.2 one Eliya Maringo had testified that he was acting Katibu Kata and in 1978 was the one who prepared the list o f people to be moved from Old Moshi to Himo and that the Appellant was one o f them and that he was given a piece o f land towards a ravine. He further testified that the Respondent was not one o f the people who had been allocated a piece o f land. He further testified that in 1993 on being summoned by the District Commissioner he affirmed the same position and even wrote a letter to the Makuyuni Ward Secretary confirming that the Respondent had not been allocated land in the area in dispute. SU 3 Peter Msaki and SM.4 Joel Kisima gave similar evidence before the trial court. On the other hand, the Respondent in his submission and evidence contended that he was an employee o f the sisal estate since 1974 and that the same was nationalized in December, 1976. He contended that all employees including himself who had been using land in the said estate were allowed to remain in their areas apart from the people from Old Moshi who were also given pieces of land in the said estate in 1978 including the Appellant. He contended that the Appellant met him there and his piece o f land boundered his save that the Appellant wanted to expand his area so as to take on the Respondent’s land. However, he contended in his evidence before the trial court that he fell sick and it was only in the year 2001 that he stated to follow up the matter with a view to get back his piece o f land. He complained to the District Commissioner who in turn directed the Ward Executive Officer to follow up the matter and who in turn directed Katibu Kata (SU.2) to resolve the matter. In his evidence, SU.2 testified that they measured the land in dispute and alloted 2 acres to the Appellant and alloted 30 X 154 metres to the Respondent and reserved 30 metres for conservation area. SU.2 testified that they took the said measure just to resolve the dispute having realized that the Respondent had been in that area as an employee of the sisal estate. In its decision, the trial court acting on the evidence o f SM2, SM3 and SM4 held that the Respondent had not been allocated a piece o f land in that area in 1978 when the Government moved people from Old Moshi area to the said area in Himo and that the witnesses of the Respondent were not there when the allocations o f pieces o f land were being made in the said area in 1978 and that SU2 and SU3 simply acted on the direction o f the District Commissioner for whatever they did to resolve the dispute. The said court further held that the Appellant had been in long occupation o f the disputed piece o f land for 24 years since 1978 and that under G.N. 310/84 his occupation was over 12 years hence he could not be disturbed from the disputed land. Further, the said court held that the Respondent did not produce any evidence to show that he was sick and was being treated for all the years that he did not pursue the issue or his claims over the said disputed land. The first appellate Court in overturning the decision o f the trial court based on the evidence of the Respondent including his exhibits held that he was there in the disputed land before the sisal estate was nationalized and that the Government directed that people who had been in the said sisal estate including the Respondent before being nationalized should be left to remain there. It further held that when Katibu Kata dealt with the dispute on the direction o f the Ward Executive Officer and the District Commissioner the disputed land was measured and found to be in excess o f 2 acres more than the 2 acres allocated to each person when allocation o f land was done in 1978 and that the unutilized open ravine area was the one allocated to the Respondent. It also held that law of limitation did not apply because it was the Respondent who had instituted the suit and not the Appellant and that the dispute only arose in 1990s and not in 1970s. In my considered view, having considered the submissions o f both parties as well as having carefully studied the proceedings and the decisions o f the two courts below and the grounds of appeal, I am o f the firm view that the first appellant court was wrong to overturn the decision of the trial court. Though the District Commissioner vide the Ward Executive Officer and Katibu Kata in 2001 purported to resolve the dispute by measuring the disputed area and re-allocated the same to the Appellant and the Respondent, this measure did not defeat the evidence on the part o f the Appellant’s witnesses that the Appellant had been in occupation o f the disputed piece o f land for 24 years since 1978. It is a matter o f law as found by the trial court that under G.N. 310/84 a person who has been in occupation of land for 12 years should not be disturbed. Therefore, the Appellant who had been in occupation o f the disputed land for 24 years could and should not be disturbed. This finding answers the second issue in this appeal. Further, though the Respondent had contended that he was sick for quite a long time such that he started to follow up the dispute with the District Commissioner in 2 0 0 1 ,1 quite agree with the finding o f the trial court that the Respondent did not adduce any evidence to show that he was sick and was undergoing treatment at KCMC Hospital as alleged in his evidence. Further, the first appellate court was wrong to overturn the decision o f the trial court because in my considered view, the credibility o f the Appellant’s witnesses was never faulted. SM.2 was the acting Katibu Kata and the one who had prepared the list o f those people including the Appellant who had been allocated pieces o f land in 1978 and that the Respondent had not been allocated piece o f land there. SM.3 and SM.4 who were among those allocated pieces o f land in 1978 and were boundaring the piece o f land allocated to the Appellant gave similar evidence that the Respondent had not been allocated a piece of land there in 1978. The trial court believed the said evidence in reaching its decision which I also support fully. Indeed, the said evidence was heavier compared to the evidence o f the Respondent. SU.2 and SU.3 were not present in 1978 when pieces o f land in the said sisal estate were being allocated. They merely acted in 2001 to measure the disputed land and re-allocating the same on the directions o f the District Commissioner on unproven belief that the Respondent had been on the said land before the same was nationalized and allocations made to those people who were shifted to the said area from Old Moshi. The evidence o f SU.4 and SU.5 were not o f any much assistance to the dispute as they did not state how the Respondent got the disputed piece o f land apart from stating that he used to till the said piece o f land. In my considered view, I quite agree with the finding o f the trial court that on the balance o f probabilities, the evidence o f the Appellant was heavier than that of the Respondent hence the first appellate court erred to overturn the decision o f the trial magistrate. This finding answers the first issue in this appeal. In the upshot, the appeal has merit and it is hereby allowed with costs. I hereby quash and set aside the decision o f the first appellate court and restore the decision o f the trial court. The Appellant is the lawful owner of the suitland. It is so ordered. F.A.R. JUNDU, JUDGE, 28/4/2006 Right o f Appeal Explained. F.A.R. JUNDU, JU D G E, 28/4/2006 28/4/2006 Coram: F.A.R. Jundu, J. For the Appellant: Mr. Njau, Advocate For the Respondent: present C/C - Muyungi C ourt: Judgment delivered in the presence o f Mr. Njau, learned counsel for the Appellant and in the presence o f the Respondent. F.A.R. JUNDU, JUD G E, 28/4/2006 AT M OSHI