19871107 TZHC Tabora

IN THE COURT 01•· A.f'TBAL OF TANZANIA AT T/~BORA (PC) CIVIL APPEAL N0.3 OF 1987 .. ORIGINAL CIVIL CASE,NOa47/86-URBAN PR,CqNZEGA CIVIL APPEAL NO .. 17 /86 DISTRICT c. NZEGA, KATENDELE KUMBINA •••••••• ., •• i ................ ,, • ? ,, ,, • APPELLANT UNDCMO VILLAGE NZEGA versus SHIJA KAPULI & 8 CTEEI:.S ••••••••••••• ~·••<>•••·••",RE~PCNDENT UNDOMO VILLAGE - NZEGA. JUDGEMENT ._ - ----. . . - - !<HIPETA 1 J • In Nz,ega .Urban Primary !Court, the appellant, Katende,e., . Kumbina•., successfully sued the respondents for the reeOffep:. of a piece of land. The respondents, however, successfu1Jf appealed to the District C.ourt. The appellant now appeaJ-1 to thi.s Court. , The evidence adduced at the trial by t~.e appelant W8f t·,_ ·· .•·· that since 1974, he had been cultivatini·the disputed iQO / acres of land •. In 1981,- hi'.s late father was taken ilJ. 1 and so he had to take his father to various hospit~ls, Eventually his father died. It was not until 1982 tha~ the appellant was able to settle. On his return to the village, he was surprised that the respondents had taken over the disputed piece. of land, and so in september, .498'• be: filed this suit. The respondents• evidence was that the plots were allocated to them by their;village government and that they had been cultivating the same for about ten yeara, It is not in dispute that the disputed piece of land lies within Undomo village. That being so, the Undomo ¥illage government has full authority over that p~ece of land. In other words, it ihas authority to allocate i~ io its residents as and when :need arls·es for development purpose~•· The sketch - ·plan dr~wn by the trial Court shows· no permament crops, -and from· the appellant• s evi~n~e ._ i ~; , , evident that most of the piece of lane had been lying id\e ·••000••·/2,. - :2 - fo• some timeo Indeed the appe~lant tolerated the situation for four years before filing this suit. · That being the position, I would respectfully agree with the first appellate Court th~t the respondents were lawf~l\y allocated the plots on the disputed piece of land. A village has a·utbor:i,_ty to al).ocate l:lnY ·. s;overnment L piece of land in its juris<.iiction to any per~t,n 1 PllOVided that in doing so it ·is' not tictuated b:, ::1alice aad d~es not dispossess a person of his plot which he lawfully aequired and. which he has developed over a long period .• For these reasons, this appeal fails and so is hereby dismissed with costso TABORA l!fJdt' ljMb BoDo CHIPETA, 7/11/87 JUrGE,, designated as the tenants of the premises". After Shariff had left the country it would appear that tl,e respondent decided to remain in the premises without the consent of the landlord, the Registrar of Buildings. As it was held by /=-~.~ cou.rt Rt tWJ> d'a1se of DAM0DAR - above 8 - .q~ot1'.~d - "A person who enters upon the premises of another without his consent, express of implied is a trespasser." On the f~cts of this case the respondent was clearly a trespasser to the premises and he is accordingly not protected by the provisions of the R=.:mt Restriction Act. I agree with Mr. Ra1thatha's argument that the lower court erred in finding that the respondent was lawfully··•in the premises The appeal accordingly succeedes with costs. DAR ES SALAAM 3th February, 1~87