20121024 TZHC Mwanza2

~-'· .. -_,,)('" ,. ,. :.·~ : .'.::: _.; .. : - .. . i IN THE H.IGH COURT OF TANZANIA (LAND DIVISION) MWANZA MISCELLANEOUS LAND CASE APPEAL NO. 107 OF 2008 (From the Decision of the District Land and Housing Tribunal of Tarime District at Tarime in Land Case Appeal No. 4 of 2008 and Original Ward Tribunal of Nyamagaro Ward in Application No. 27 of 2008) MBUSIRO MAGUBU .............................................................. APPELLANT VERSUS MAGONGWE EGINGA ........................................................... RESPONDENTS JUDGMENT ·MWAMBEGELE, J.: In the Ward Tribunal of Nyamagaro (henceforth the trial Tribunal), Mbusiro Magubu; the Appellant sued Magongwe Eginga; the Respondent for trespass into a parcel of land situate at Kyangasaga Village in Tarime District. She won the case and she was declared a lawful owner of the land under dispute. The Respondent was dissatisfied with this decision. He successfully appealed to the . . District Land and Housing Tribunal (henceforth the appellate Tribunal). The • appellate Tribunal held that the Appellant had abandoned tl'Je land under·- dispute and that the Respondent had been in an uninterrupted occupation of the same since 1993. The Appellant felt aggrieved by this decision. She has appealed to this court filing four grounds of appeal all of which challenge the decision of the appellate Tribunal. This appeal was argued before me on 17.10.2012~ Both parties appeared in person and unrepresented. The Appellant, an old lady, did not speak Kiswahili, she speaks Kisweta. She was accompanied with one Rashid Hassan Mabaye; allegedly a grandson who could do the translation for her. As the Respondent claimed to understand Kisweta very well, and in view of the fact that he did not object to Rashid to do the translation, the court proceeded with the hearing of the appeal. Rashid Hassan Mabaye did the translation for the old lady. The respondent was asked to chip in any time he felt the translation was not done properly which he did until the finalisation of the hearing. 2 ;:- . ...,_ ..... .: ·: . .-:..-. . -- > . . ~-. :.:.. .. District Land and Housing Tribunal (henceforth the appellate rribunal). The .appellate Tribunal held that the Appellant had abandoned the land under dispute and that the Respondent had been in an uninterrupted occupation of the same since 1993. The Appellant felt aggrieved by this decision. She has appealed to this court filing four grounds of appeal all of which challenge the decision of the appellate Tribunal. Thfs appeal was argued before me on 17.10.2012. Both parties appeared in person and unrepresented. The Appellant, an old lady,. did not speak Kiswahili, she speaks Kisweta. She was accompanied with one Rashid Hassan Mabaye; · allegedly a grandson who could do· the translation for her. As the Respondent claimed to understand Kisweta very well, and in view of the fact that he did not object to Rashid to do the translation, the court proceeded with the hearing of the appeal. Rashid Hassan Mabaye did the translation for the old lady. The respondent was asked to chip in any time he felt the translation was not done properly which he did until the finalisation of the hearing. 2 ------ - -....:....._• __ ~ - - The Appellant prayed to rely on wh·at she stated in the. Pet~tion of Appeal. She prayed that the same be part of her submissions in support of her appeal. She only added that the decision of the trialTribunal-be endorsed. On the other hand, the Respondent submitted that he has lived in the disputed land from 1993 to 2008 when the case started. He added that during the Villagisation Programme in 1974 all people relocated and original areas were abandoned. After some years; by 1993, people returned to their original places but that they were free to occupy any area irrespective of the fact who occupied the area before villagisation .. That, his family was given the disputed land by one Moheri Okoti who is a relative of the Appellant as the land that they occupied before the Villagisation was allocated to another person by the Village Land Council. That the Appellant was a neighbour and she never complained until 2008. The Respondent submitted further that the Ward Tribunal decided in favour of the Appellant as· some of the members are related to her; the Chairman's son is married to the Appellant's sister's daughter and one of the members is the Appellant's sister in law. The Respondent concluded that as he has occupied the land for more than fourteen years, the Appellant is barred from claiming ownership of the same. 3 · ... • .:• .·' In rejoinder, the A_ppellant retorted that what has been submitted by the Respondent was untrue. However, that it was true that the land was given to the Respondent by Moheri Okoti but that the land. has 27 graves and that they have kept the same "for that purpose. She concluded that the thorn and timber trees in the disputed land belong to her. Having gone thr·ough the entire record, I am satisfied that the appellate Tribunal was not justified to ·reverse the decision of the Ward Tribunal. The basic reason why.the appellate Tribunal decided in favour of the appellant was ® the fact that the Appellant had abandoned the land while .the Respondent had occupied the same for fourteen years. With due respect, I am disinclined to share this view. The evidence on record has it that the disputed land is at the centre of the village. No authority allocated the land to the Respondent. It was given to them by one Moheri Okoti. As the land which belonged to the Respondent's family was allocated to another person by the Village Land Council, the Respondent ought to have followed the same procedure to have the disputed land allocated to him thorough the legal channel. I find and hold that the Respondent is a trespasser in the Appellant's land. 4 - - - - - - - - - - - - - - - - - - - - - - --- - - ,. __ - - - - - - - - - - - - · - - - - - _..._ In the end result, the decision of the District Land and Housing Tribunal is set aside. The decision of the W~rd Tribunal is, in the premises, still valid. This appeal is allowed with costs. th DATED at MWANZA this 24 day of October, 2012 J.C. M. MWAMBEGELE JUDGE " 5