isac sepetu vs fatuma ally fidin 1991 tzhc 1993 15 april 1991

ifc l' jJ jjJ X Lj O O iiJU A iU li OaiGLNAL JURISDICTION CIVIL,APPEAL I OF 19^-9 ISAAC SEPETU*........ .......... APPELLANT , versus FATUMA A^LY FIBIN............... RESPONDENT JUDGMENT RPBAMA.Jl The faot3 in this case are relatively simple and largely not in dispute* The contested subject is the ownership of plot No*51, BAHARI BEAOH arta, FATMA ALYFDIN’s claim on the plot is based on customary tenure, she haring purchased the land in dispute on 2nd October, 19^3 at Tshs. 9»330/- frOB one Omary Mwinyitnkuu in the presence of three witnesses* (see exhbit B- the »ale Agreement). ISAAC SKPETU on the other hand baaes his claim to the ott9T of Occupancy to him by the Lar es Salaam City Council in June, 1907 (#96 Exhibit Dl) and his payment of fees for the land in dispute to the appropriate authorities (see iixhibit D2). It is not disputed by both parti** %»d the trial court so held that plot 51 Bahari Beach is within the boundari#p Of the Dar es Salaam City Council (See G.N. 66 of 1st July, 19^3 - exhibit 5 D4)« It is inferable from the above that FATiviA ALYFDIN, the plaintiff, purchased the land in dispute as found established by the trial court after eoaing into effect of G.N. No.03 of 1963* After detailing the evidence for the plaintiff, the defendant and the w»itte8 submissions of learned counsels for the plaintiff and the defendant, the learned tjial magistrate stated: ”1 think I have to concur with the plaintiff’s submissions and therefore I adopt it. In addition I have gone through GN 160 of 1975 in relation to the submissions given by my: learned brother for the defendant regarding control and disposition of land. He argued that since there was no evidence to the effect that villagecouncil authorised the disposition of the shamba in favour of the plaintiff then the purported sale was void and of no legal effect, In principal I agree with the law. But the sale had the blessing of the village and that is why PWI (the plaintiff) was allowed to be a member of the village. Since the plot is in a registered village an issue not An dispute, - the law as it stands is clear that the City Council could not reallocate the same as clarified by the defence." B*6*fittably the above quote from the judgment of the learned trial magistrate all the analysis and evaluation of the evidence before the court, it is hardly necessary to point out that the learned trial magistrate had evaluated the evidence before her to reach or arrive to her conclusion* ajro? has led to. he*- finding as established ot undisputed -r^aXr* tbtrt needed resolving eg. there was dispute, contrary to the finding of the trial court that th9 land in dispute was in registered -village. This apart, the provisions of Order XIV Rule 1 (5 ) of the Civil Procedure ;t$de, 1966 were noj com^l-ied with. No issues were framed and recorded by the trial court. For the fact that the facts are simple and mostly not in dispute, this court's duty to reevaluate the evidence afresh would have been that harder. There is no dispute that Mtangani Ujamaa Village is a registered Ujamaa Village. There is however, dispute that Plot No Bahari Beach is within the Mtongani Village. The letter of protest by the Mtongani Village to the Dar as Salaam City Director (exhibit E) on the survey of same land without involving the village authorities is no evidence that the land being surveyed belongs to the Mtongani Village, Prom this letter (exhibit E) I read that some of the land, being surveyed without involving the Mtongani Village authorities belonged to the Mtongani Villagers and nothing more. There is another dispute of who between the plaintiff and one Etutu mentioned in exhibit 5 &nd ty Theobald Msafiri (DW4 ) the liar es Salaam City Council fcatfd Officer Grade III, owned the land in dispute, The plaintiff maintains that the land now forming plot no 51 Bahari Beach was purchased by her. In this (the is supported by Swedi Swaleh (PW2), the Mtongani Ujamaa Village chairmaa who had been a resident of the Mtongani Kunduchi rince 196 3 an<l the Village Chairman \since 196 7 to the tine of the hearing of the case in 19GG. Theobald Maafiri (UW4) te stified that the land in dispute had belonged to one Etutu* DW4 was closely, involved in the pyaical inspection of the area in which the land in dispute (plot 51 » Bahari Beach) 1 b situated and the allocation of 142 plots that had been surveyed and allocated to several people among»t whom was the defendant. As pointed out above, the learned trial magistrate never riverted to this conflictj she had found 30 conflict existed. On evaluation of the evidence, I accept that the l.nd in dispute was the same as that purchased by the plaintiff as evi.t need by exhibit B. The Mtongani Village chairman (PW2) had an intimat ) knowledge of the area due to his long Ftay in the neighbourhood. I alsc .ccept Mr. Marando's •ubmission, learned advocate for the plaintiff chat the evidence on ownership of the plot by Theobald Msafiri (DY.V.) was hearoay evidence as it had bean based on the statement by the said E~utu who had not been called t« testify. I further find merit in the submission by Mr. Marando that the said JStutu was an interested party over the lind in dispute and his statement should have been taken with car-tion, I am fortified in this view by the evidence of Maryam Suma (EW2), the wife of the defentJ-jnt (DWl) while under cross examination that she had found on part of the land in dispute an old hut of the plaintiff’s watchm^:! and further that she had out 54 plants on the land in dispute and had the"', counted in the presence of th^ plaintiff's watchman with the intention of making appropriate compensation to the owner of the cleared plants,. .../? m J « - Slfc© {D*i2) was not dealing with the said iituiu. Further it *aa r,ot to iltutu that the City Council bad sent on 9*h October, 19^7 a Stop Order on oomplair-t by Maryam Sume (DW2) that the plaintiff was constructing a "bandja.," But did the plaintiff establish in court, that she held the land in dispute under eustftnary tenure? Die answer to this is an emphatic No. As held in the case of National .agricultural and Food Corporation v. Mulbadaw Village Coancil and vthera. Civil Appeal Ko.J of 19^3 (Court of Appeal) (unreported) at p.5r that it "is for a plaintiff to establish that he was a native before a oourt can hold that ^te was holding land on customary tenancyi' The plaintiff led no evidence to show tkr t she was a native. This fact can not be assumed by rirtme of her residence af Shinyanga as per evidence of her daughter (PWl) or hor membership at the Mtongani Ujarnaa Village as per exhibit C), "Deemed11 right of occupancy is by virtue of s.2 of the Land Ordinance as amended by the Land Law (Miscellaneous Amendment) iict, 1970 (i»ct No.2G of 1970) can only be held by a "native" as defined in the Act. In view of this fact no proprietary rights "deemed" or otherwise were passed to the plaintiff/respondent on the sale of the land in dispute. The land in dispute was thus not owned by ths plaintiff/respofcdent at the time it was allocated to the appellant/defendant by the City Council.. The appellant/defendant was no trespasser to that land in dispute but properly granted by the appropriated authority i.e. the ^ar es Salaam^jjity Council. Accordingly the appeal is allowed with costs. The judgment/the trial court is hereby quashed and orders made thereunder set Aftiie* yahya hub& a JUDGE .15/4/91. I . ’ o ^ ’* T ® * Corami R U B A M A y T ^ Parties abseiVtO Judgment del j W r e YAHYA RU meiMA JUDGE 15/4/91. The Registrar to inform the parties as poon as possible. IAHYA RtfiAMA JUDGE 15/4/91.• - - / 4----- 23/4/91 Coram? S.S.kaija^e (DR) Mr. Mwakasungura for Appellant Mwakaaungura/Marando, for Respondent Orderi In pursuance of an order made on 15/4/91 parties in this matter have been accordingly informed of the contents of the judgment. S. S. KAIJAGE dr/hig h COURT DAR E S SALAAM 23/4/91.