19851217 TZHC Mbeya

ITT 1'HE HIQIi COURT OF TANZ;IA 4TBTh APPI~MLATF. JURISDI CTI ON (Mbeya Registry) CIVIL APPEJL NO, 19 OJ 1983 the Decision of Tukuyu Disrict Court In Civil Appeal we. 55/82 and Tukuyu ~U rban Court £ivi1 Case we, 12/82) :KAJIA . . . . . ... • .. • . . . . . . Versus .JIL'IB$S NQIA ,. ...... . . . . . . . . * . . . . . . . . . .•. . . . . . RESPONDENT JUT MIAU BMS, J, The prceed±ngs before this court and the courts below lye a dispute over ownership. of 22 trees, standing on a certain piece of land. The base started in the Tukuyif Urban COurt. There, the appellant in these' proceedings won the case. The Urban Court adjudged him the owner of the disputed trees - , when JITJTESS - NORà appealed to Rungwe District Court. The District Court was of the view that ownership of land ;jj which the disputed trees stand ought'to have been resolved first before filing a suit for ownership of the dispu±ed treea.. It accordingly set aside the, proceedings before the court of 1st instance and advised the contending parties to have the dispute over ownership of the shariba on which the trees in dis- pute stand resolved first befoi'e ar of them embarked on - claiming ownership of the trees. LUKAJIBLap,pealed to this court against the order. iidafterh'earing,the pa t it be- came abwdant1y clear that neither of them supported the' order of the learned District Magistrate r.acceptedThis advice to file a suit over owrerahip'of land. I agree with the stand of the parties before this court. ThQ dispute as brought to court was over ownership of trees and not over ownership o± land o1rerich tYe dja-pqted tree, stad -. On the. evidence before it the court of 1st insarioewas satisfied the trees belorged to Lugao Xaj.ibahen Witness Tgoka appealed to the District Court.. The dispute over '1and did not eau'e. in the proceedings before the court of 1st distance. T'Tor did it feature in either the grounds of appeal of Witness TTgoka or ip the .argUients before the District Court, on appeal. Andfor that matter the said land could as well be property of a 3rd pal'ty. In which case the advice, to theco 4ndinparties, to have w the dispute over ownership of the piece of latid on which the trees stand resolved first, would be meanIngless. Indeed, according to the evidence of DW.2), the same used to be communal land. It is precisely because of the äoeas.ons that I agDee with the stafld of the parties before--this qourt. iiccordingly the appeal succeeds, the order of the District Court to set asi- dothe prceedings of the court of 1st istnce,:and the ad- ice thereto, are se -b aside. The decisoôf the Urban CQUTt, Tukuru, is restored andthe records of bothcourts below are to be remitted back to the District Oourt with an order that the District Court, in its appellate jurisdiction, deteriiined the appeal on the issue of ownership of the trees, as fi1ed It is so ordered. Costs in the cause. At Mbeya this 17th day of December, 1985. N.J. 7, T7 JUDG9.