19911023 TZCA Dar es Salaam

J t· IN ~;:::....,_;;.- COURT . OF l.iPPEli.L OF TlJl ZtiNiil. AT l.RUSIJ,[l. ( COI~h KISJJWI.. 1 J,.i~u OM1.R 2 J .1:.. 1 L.nd Mll.PIG/J'W, 1$1, J 1/u) CIVIL 1J'PE/.I, rm. 31 OF :1990 BET W E.E lJ • • • • • • • • • • • • 1.PPELLJJil'r l. N D ·.fm:_ ·rurotST~ TRUSTL:ES _OF TEE . ,.· LUT!ri:RJ11 CITUROII OF NORT".J.ERI,T T/Ji.ZliNIJ~. • .RESPONDEN!r (lppeal from the ju~ent of the Eigh Court of Tanzania. at Aru.Eiha) ,. (!.lunuo, J 0 (Mrs)) dated the 11th day of Deownber, 1989 in Ci Vil lJJ?Peal No~ 75, of' 1989 JUIXJMENT OF TITE COURT This is a second appeal by ICulasaukwa Swai, The appellant is dissatisfied with tlle judgr.lent of the High Court at Arusha (Mrs. Nunuo, J.) dismissing his appeal from the judgment of the Resider1t I1Iagistra;'iie at 1-Ioshi. There · are four . g.t'ounds of appeal, . ' ~ . T.b.-e t,lispute be·~ween the parties is over a patch· of land si tua.ted a.t lfasama Som.1. in the B:ai District• Each side ola.ims to be the rightful owner of that land, The appellant brought a suit in the Court e;f ·Resident I..i:agis•crate at Noshi, asserting, as he stil,1 does, tha.t the land was pa1•t qf a· shamba that was ailooated. t_o hi.s father Werankira Swai by a Hchili (headman), one .lllla.eli Msue,. -way back in 1935, and that the tit1·e over the land was transferred to him 1n 1976. when Wera.11kira was still alive, Werankira died in 1987, that is after the appellant b.ad instituted the suit • • 2 ... The respondents contested the cla.iln and. tl:iei» oese is tllaii the land was part of a. piece of the land that was "2!ertted to ·the . Lutheran Ohur'ch of Northern Tanzania- {hereinafter "the Ohuroh11 ) by · . I . .· mr.2 Mangi (Chief) anael Shangali in 1948; that previously the land WBS public or rescrve land; and that Werankira and other peopie had been oooupying it as mere licenoees. fls mentioned above, thc Courts below dismissed the appellant's olaim. . The Courts tb.en went on to declare the Church the owi1er of - the land in dispute. and to order the appellant to stop intel"t'ering· with the property a.ud erecting pemanent s·truotures thereon. One ef the complaints raised before us and set out as first ground in the memorandl.un of appeal is t.b.a.t ''the iea.med judge erred in law in upholclli.1g the lowe~ Court's gral1ting o:f' reliefs to tho respondents when no oou.'"ltcrolaim had been pl eaded11 • !lhe reliefs i.i1 question are the declaration that the Church is ; the owner of the land in dispute and tho restrictive and perpetual ·injunotion which requires the appellant to ref'rahi :from d.otng anything . en the land which i;,1fringes the rights of -t:ie dhurah. Arguing tl1e appeal before tis i\Ir. Ua.ruma., learned advocate, submitted on behalf of the appellG.t-it tha;'i; the learned magistra-'.;e sl'iould not have granted the Church any relief boyo11d 4ismissing tho suit ,o.nd a:ward.ill&' tha respondents the cos•iis. te~ed Couns<d for the respondents, Er. Shayo, disagreed. Mr. Shc\Yo pointed out, correctly, that tb.e reliefs in question were founded on paragraphs 3, ·4 and 5 of the Writton Statement of Defence, which he _to.med as cl: logica!. reply to the plaint, ~d that they . wore among the principal reliefs that the respondents had specifically •••/3 -· 3 olaimcd in paragraph 6 of th0ir pleadings. Citing the decision in ' Panjwani v1 A. Hir ji & Co.,. ( 1971) HCD 177, Hr• S.r.,wo subni ttcd that it was not a material ir!'€gularity that the reliefs wore not fo1inally We note that this complaint was also raised before the High Court and at the end of her ju~,::,znent the lea.med judge dismissed it on the ground tl:a.t those reliefs were pr~ed for in paragraph 6 of the Written Statement of Defence. Quite clearly the reliefs in question corresponded with the "f· state of the pleadings. We however agree with the appellant that thoy shou1d havo be::on plGaded and sought under a counterclaim. Still., we feei that substantiv0 justice dcma:inds of us to. ignore the prooedural irregularity, especially given the fact that the appcliant who was legally represented fxom the verJ boginniltg did not raise w1y objection to the respond.onts 1 pleadings in the trial Court. We thus dismiss the first ground.. In ,his judgment the learned mngistrato reached tho follotdng findingss (a) that Wcra.nkira occupiE.d the land in dispute sinoo 1935 having been pell'llitted by the :Mchili to do so which was long bcfore the Chureh W?,S es~ablis.!J.ed· in tl~e locality, and that he builJG a house on tho lal1d - a wattle c'J'ld daub structure; (bl tLa.t the land in dispute was part of a bigger chunk t!iat was granted to the Chu.rah in 1948 by DW'it2 and thaJ.; Wera.nkira who was a member of the Church submi ttcd to that @:r~t,; ( c) that Wcrankira was however allowed by the Churoh to •Continue 1 i ving on the land as, a l iconcco; and ( d) that tho tem of Werankira' s 1 icence was brcaclled vhon his son,. the cppella.nt, started constructing a pc.rmanent house on the land., It is 4 eVid.ent that two documents which were tendered by -the rcsponQ.c.nts, i.e. exhibits D3 -:md D4, weighed heavily with the magistrate. The High Court uphc14 the ,finding of tJ10 learned magistrate that tho land wa.£J allocated to- the Church by DW.2 Mangi Sha.ngali in· 1948• It is manifest tha:t Mangi Shangali's was an account of a. person .whoso.word the judge trusted., So the judge went on to.find that the land was then po.rt of a reserve expanse and that the people who wore then occupying it, the appellant included, were squat~ers and that they were required to give up occupation of tho land. The judge agreed with the finding of tho trial J.lagistrate that Worankira was ·allowed to con~inuo living 01t tho land il1 a. temporary structure, 11 a. wooden mud hut", and .that Werankira complied with that condition~ In the oiroumstanccs, tho judgo ooncl uclod., tho. doctrine of adverse f possession oould not come into play• E,::hibit D4 to which we have already made reforenco was a. copy of a judgment. tha"i; w21.s delivered by the primary court at Masama in CiVil Case No. 79 of 1968,.· Tho parties in that c,.so were the present respondents r:.nd 0110 Invooavit bin Msami and the subjcct-<nattor was a. dif'foront piece of lro1d. In his ~eoond grotu1:d of appeal tho appellant ~ts us to fault tho judge for allegedly· "holding that the judgment against a third party (i.e. exhibit D4) bound t:w appellant or his father, .,tho . judgucnt bcµig Do judgi:lcnt i11 personoi.T"• lt docs ~com to :us that this complaint is misdirected. It is the trial magistrate, and not the judge, who dc.tl t with exhibit D4 in that manner _and wo cannot but hold tha"t tho nagistratc was seriously at fa.ult. CoUJ:isol for tho appellant !1ad resisted the· admission ·,of that documQnt into cVidonce and ru"""ter hearing arguments •• ./5 5 f" frori1 both eides on t!10 point the magistrate overruled t.!le objection, admitted the docroncnt and stated that his rca.Sons for doing would be inoorporatc,d in his judgment. But ~s it ca.--ac to pass, tho magistrate d~faul tcd 011 his promise, even while, as a:forcticmtioned, ho heavily rcH,ed on that document. As for tJ:o judge, sho hold that exhibit D4 was properly admitted as in :1or. opinion_ it was a piceo of evidonoo that corroborated rr.1.2ts tcstioony that the laud ih dispute;_ was allooa.tcd to tho Church in 1948. we· find ditfj.culty in accepting . . that •ow, It is doubtful w!::.ot~1ar that was tl1o purpose for wh~ah tho ;ospondents •.• tond£rGd tho doouncnt. If it was, then undci' ~ho provisions of soot~on 166 of ,tho Ertdonco A.ct, 1966, it s!1ould not have been tondorod bcforo DW.2 had given cvidcnoc. W'o were; pressed with t!1e cont<mtion that e:r.hibit, D4 was • admissible u..;1dor. sootion 35 and 44 of Th.a Evid.al1cc Act•· We a.re unablo to aoeQpt that con~i;ontion. In ooncll¥!ion i'l'c agi-oc with tho appellant that o,rb.11:!~t D4 was wrongly adr.littcd.. );t is to be observed, howoyor, and this was 0011oe;ded by Ur. Ifu.r_upq., that t!1c ju~c harcU.y .accorded it aq weight• . Tho thi.rfu.gz.-oui1d of appoal is directed against the admission of oxhibits D1 and D3 and the; rclia.noo whi'oh was allogcdl.Y plaood. on tho two documents by tho judgo. Exhibit D1 was a sketch pl;:u1 of the shamba. ilt dispute and we. soc nothing wrong with its ~ission, :But itP eVidcntiazy valu.o_ ,was very minioal. Exhib:i,t D3,was said to ha.vo oontainod minutes of a □ e<>ting oonv.o.i."1.od to discuss tho Churcll•s complaint against pooplo w11osc actions wcl'c prejudicial to its rights on tho land allocated to it by w.2., ·which: nocting was attondod 6 by lfora11ki.ra.. Neither the o.uthor nor the cusiodia>t of that doaw:iont / was produced in tho witnoss-box, which rendered its authenticity highly guestionablc,· Vb.at is cleat" from the, ju.dgnents of the oourts bGlow, howevo,:,, is that noithor tho na,gistre;'cc nor the, judge attached any- weight to the two doOUDcnts. i'J.l that t!ic judge said a.bout. theso dom:unants , was ossentially by tho W'cJ3.• It is oontondcd in the fourth and las"'i; ground 0£ tho a.ppoel 1 in fine, that the, Judge orl'cd in r!ismissing tho appella11t•s claim to tho suit land.: '.This is tho Cl"U.Oial ground and the graatcr ports of counsol 1s ad~ascs .related to it. T1..1G substance of 11r. I;1arur.la's argi.mwnts :i.s as follows, Woranldra. was allocated the land in 1935 by tlw Mchili, w!.1cn DW.2 ha.d not yot been installed as Nangi 1 aitd tho 1:Ic'b.ili had authority to · do so. So if :mf.2 reallocated t.!.ic land to -'i;hc Chu.rob. in 1948 after . l beoor11ing Mangii .,cb.cn t!1c reallocation was nisconcoivcd and lnvalicl and tho authority for that· is Meda.di v, Nawo ( 1971) HCD 33.3-• Tho High Court dicl not consider . t!1c legal implications of. tho . MchiU. ts grant. Rad :Lt done so· it would havo hold .,lihat Wcranld.ra. was no~ a ·- squatter. ' It would instead have lwl-d that ·,roi-a;.1k:ira and his faPily ha.vo had a. quiet tU1d uninterrupted legal occupation of the laitd since 1935• _In the alternative, t!1c judge should have hold that sinco 1948 1ferankira had occupied the land in a. Da,.'11191' that produced the offoot of bar.ring the right of tho Chu.rah, nancly tho creation • • I • of tho wattlo a.nd daub hous€. which has stood 011 the land . for dooadas . and the growing of banana and ooffoo plants. The authorities for that a.ro)~~~SOJ'? UhcJ:li V N~sa. 1982 LRT 302 ~d James·& Fimbo 1 •••/7 7 In .reply II.r. Sllc!J'O first □ ado reference to the testisony of DW.2 that tho land in dispute was pa.rt of an o:x.panse that 11o,cl tor A19rii@a.li ,IHoisJ:o y: Kf!U11a.r<l KiS@O, ( 1968) HOD' 211, th&t a Mo.hili ha.a no p0W€r to ailooa.J.;c such land and tt.a.t the.re Wc1,s. UD WQd of oVidenriG that t!:.o Hohili was cli.:ircotcd by tho ]i~gi. of the dc\V ·'It alleoa.te - . the suit land to .Weraru,i.ra p~ZDe.nenrtli• Ho conceded . that Werankira was given t!20 land by tho 1-!chili, but oontOlldod that. t!iat grant· we..s in, t~1c nature. of n. lioenec, as iJ~ was subjeet io tho ool\ditien that Weranld~. should not put· up a pomahcnt. lunise on the l~d, whieb.- was consistent wit!:.. t!1.o land be(11g publ.io iand. le al.so ee1:n:tendGd th8t on the facts ao found by tl:o jtidce tb.o d&ctrine et I'i is tzuo t!'!a·~· tl1e judge did not upsc~ the txia1 Da,Gistrat(j) 's findhg that Woranlti..ra was given the suit lai,'id by Mohili Msue in t935 and that Wcr_e1lkira o~cupicd. it until !iis. doath ih r1987• U~ hewevor o~nCUl," in the judf;c 's finding that Nsue bc:µ-ig a. Dore Me!1ili; he b.a.d ~ ' . . . . . . . no allthel'iiy to aJ.1002,te land. :i.110 tcstir:1ony ef w.2 and the decision in ~iflf»i · Ru:13:sho v Kauna.ra IG,sao2 ~low that undc,.r the custooaiy law of the Wa.e~a. t!J.e:: appropriate a,u.tho:id.ty who. could clietm.rute unoeoupicd land was: tb.o I-fang:i. In tho o~e just· citod the judge eb$crved, rcly,'in0 on a nuobcr of authorities,. that upon alleeo.ti.n by a Mangi the lane'!. was t.'..lcn called 11Kihatlba. ciia Et..Sili" and tb.c holder· could give _out such land on lcaso but: -'li!.io llolclc:t er his sueoessar has a right of ropo~scssion w~thQtit tirn;; limit. We agl'ec with Mr. S!la30 th!!,t t.::icrc was no GVid~nco wfaatcvcr that tho 1,Iohili acted at the inst.e.nec 0f the Mangi of the 0..ay., 8 ·' Tho concurrent f'inding of trio courts b~low was that tho land was allocated to the Church by m1.2 in 1948~ Though tho judge did not oxplicitly Se.¥ so, we understood hor to take the View that the Ma.ngi's action amounted to revoking tho licence that was giVQn 01' purportodly given by the Mchili and that the Mangi !lad ·a.uthor[i.~y to do soe In 01..U' opinion that finding was .reasonably opon to tho judge. So tmlilce l'iiccladi v Na.we this was no.,li a case where the first ' allocation was aadc by a proper authority. In eascnoc adverse possession is an occupation of land that is inconsistent with t~10 right of the true owner, that is tho possession of a person against w'-.100 a right of action has acoruod. to I tho truo owner• We have considcrod wl..icthor tho appellant could successfully canvass possession ad.verse the ·Church and. wo have cooc to the oonolusion that ho could note There we..s evidence froo DWw 1 Liliya Kinaro that whon W'craJ:1kira . started to grow souo perennial plants on the land tho Church rc.oonstratod upon t!::.e natter. Thero was also evidence, indood 1-t was oonmon ground, that when the appellant sta.rtcd const.ructil1t1 a. raodcm house on the land the Church again protested and initiated crioinal proceedings against h:i.r.1, and this suit was a_ppare;1tly the offsprL--ig of those orininal proceedings. Mr. Naruna laid sone stress on the fact that the wattle and cl..."..ub structi..U'o haci c:d.stod for :.iany yca.r;3 anq. he would have us regard it a pcr.,1ai--icn1; dc;vclopuent. Tha"'li is ~ attractive point, but i:r.., 1-!a.runa did not venture any suggestion a.s to what other typo of to.mporary dwelling l~uso Wcl;'ankire could havo erected undor the circunstanccs • We cliSDiss t.'..1c fourth ground• . -· .. __ 9 In the .final event t!lis appeal fails aJ1d we grant tho oosts to the respondents. Uc give tho appellant a period of one year :froin to-day to ~enolich Jlillo offcnoivo building or to deal with it in a R.H. ICTSJ1.HGA \ JUSTICE OF I AfPM& !uM .l;.. O~Il.i.R JUST! CE OF /..PP-g.L