19760805 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA NiAiZA (PC) CIVIL :L NC. 166 CF 1975 (From the decision of the district Court of Tarimeat Tarirde in Civil Appeal -No.o29 of 1975 9 Before N.H. BIDEBERI, Esq., D 0 M.) . (OriginolNyam':1gura PrimaryCurt Ci.vil.Case'4/75) MAGAIGWA N. SALU • I•PPELLANT - Versus MAGIGE MABYA . . RESPONDENT JU B GENE NT LUGAKINGRA, J.: In the primary court at Nyamwigura, Tarirne District, the appellant successfully sued the respondent for Shs.340/= as compensation for destroyed cropsd, It was alleged that on 31.12.74 the respondent maliciously loughed through one-quarter acre of the appellant's shamba destroying maize seedlings t1ierein The whole episode was a product of competing claim-5,to, the land. Th appellant alleged that he inherite it from his ancestors. The respondent claimed that he was ajiocate&. same by the adminirti. In October., 1974 the res1ride ploghed the land. The appellant followed behind and sowed his own seeds. When the seeds germinated the respondent brought his plough and reploughed the land. The appellant then commenced these uroceedings. Following the appellant's success the respondent appealed to the District Court. The appellate magistrate reviewed the evidence at 1enth and then posed the following question:- "Now, the question is whether the respondent (as he then was) should be congratulated for his entering on to a piece of land a]ready cleared and cultivated/prepared for sowing seeds by someone else even.if the shamba might have been inherited by him from his father?" He answered it in the negative, saying that the appellant should have taken the matter to court rather than sow seeds where he did not cu1tivate He said so after observing that the appellant's litle to the land was itself doubtiful. He therefore allowed the respondent's appeal and set aside the judgement and decree of the primary court. The appellant then brought the present appeal. In its deliberations the court of first instance overlooked one cardinal issue - the ownership of the land. It concentrated on the des- truction of the maize which was an obvious fact. Since this was a case of trespass, it was imperative to resolve the ownership of the land before anyone could be said to have trepassed thereon. On the other hand, the District Court rightly observed that the evidence did not in any way bear out the appellant's contention that he inherited the land. He did not call a single witness to volunteer evidence to that effect. The two witnesses he called came to testify on the fact of destruction only. There was evidence, however, that gave strength of the respondent's claim. The land is situate at Nyakunguru village. It was bush y nay, forest, according to the village TANU Chairman, Tito Chacha (D,W.2), In July, 1974 the respo- ndent applied to the village development committee for allocation of the said land. This was done. When he started clearing it the appellant, who lived at Nyamuma village, came and laid clair. thereover. Tito Chacha and the village secretary, one Israel Marwa, visited the land and adjudged eeo.e/2 9 S AA .2 the appellant's clains baseless., They told the respondent to continue with; .developnent*. The appellant then resorted to acts of sabotage a9aist which he wa warned. He ignored the warnings finally sowing seeds after the t'ebpondent had ploughed the land. In civil proeedirigs the plaintiff has to prove his claim on a b1ance of prohabilit0 it is evident, on the above facts, that the appellant In this case failed to discharge this burden. On the contrary, the vidence 'rd.vdaled a better claim by the respondent. He was therefore entitled to clear and plough the land. On that understanding, the appellant was the trespasser when, against all advice and warnings, .. he went . ontp he land and therein sowed. his own seeds, The respondent was therefore justifioci in det±ojiñg the seeds when they germinated for he was seized of the right to abate the Dtaance. .. For these reasons, I agree with the decision of the District Court. It was inequitable for the court of first ins€ance to pemi from his own wrong. That was an invitation for anarchy to reign. I will, in the circumstanes, dismiss the appeal. with costs . . ...... . . M W A N Z A K.S.K. tJGtKI IRA 5th August, 197. J U D C je