20170623 TZHC Mwanza

-( ( IN THE HIGH COURT OF !f",ANZANIA/ IN THE DISTRICT REGISTRY ATMWANZA MISC. LAND CASE APPEAL NO. 126 OF 2015 (Arising from the Decision of the District Land and Housing Tribunal of Ukerewe Distria atNansio i/7 Land Case Appeal No. 41 of 201~ originating from Land Case No. 01/2014 at Mukituntu Ward Tribunal) MGONO MAGUMA ------------------------------------------APPELLANT VERSUS MNYAGA MABAGALA ______________________________ ;. ____ RESPONDENT JUDGEMENT · Ebrahim, J.: This is a second· appeal. Having been unsuccessful at both · 1ower Tribunals, the appellant has lodged an appeal in this Court raising five (5) grounds of appeal. However the genesis of his claim is the failure of the Tribunal to decide that the disputed land is a family land belor)ging to the Appellant's father "One Maguma Mayamba. The appellant is also complaining on the disposition of the disputed land that it does not belong to his sister one Nyandalo Maguma who sold the same to the respondent. The brief facts of the case are that the Respondent bought the . disputed land from the sister of the appellant one Nyandalo Maguma on 10th December 2010. He was availed with all the documents pertaining to 1 In r_ejoinder, the appellant repeated what he stated_ earlier. ; The bq,ne of contention of this appeal is that bein'g a clan land as I . alleged by the appellant, the respondent was not rightly sold the same . . ' · As it can be observed this is a second appeal. The general rule is that an appellate court should not disturb the concurrent findings of facts of the u lower courts unless there has been a misapprehension of evidence, a miscarriage of justice or violation of some principles of law or practice. The said position was well pronounced by the Court of Appeal in the case of . Salum Bugu V Mariam Kibwana, Civil Appeal No 29 of 1992. The appellant evidenced before the Tribunal that their father whom they inherited land from died in 1954. Further there is evidence on record as it could be gathered from the document titled "Taarifa Ya Utekelezaji \'Va Tatizo la Shamba La Mgogoro. Baina ya Nyandaro Maguma na . Mgono Maguma Wote Wakazi wa Kijiji Cga Mahande" of 07.12.2012 from the Office of Division Officer (Ofisi ya Afisa Tarafa) Mumlambo that on 07.os·.2003, the Village Authority, Ward Authority and members of the _clan divided the disputed land between the appellant and his sister and put a boundary. The south side of the land was given to Nyandaro Maguma and 4 the north side was given to the appellant. However according to the said document it showed that the appellant forcefully cultivated at the side of Nyandaro Maguma. It was "'further observed that the appellant intends to deny his siste.r from inheriting their father's land following male chauvinism attitude. It ., was advised that the division of the said property should be respected and maintained so that they can both enjoy their father's land equally. J Furthermore there is a letter dated 07.05.2003 tendered by the respondent from the District Council of Ukerewe appended. by the list of the clan members that participated in division of the disputed land; together with Ward Executive Officer, and Village Authority. The letter is titled "Inayohusu: Nyandaro Maguma na Mgono Maguma Wote ni Wakazi Kijiji-Mahande Kuhusu Kuwagawanya . Shamba Baina Yao". As it could be gathered from the said documents, the said disputed land which was found to have. the size of 310 steps was divided equally between the beneficiaries by planting sisal plants in between the said land . . and making the appellant and his sister to occupy 155 steps each. It is evident therefore that the appellant has his own· piece of land different with the one that his sister sold to the respondent. Again on . visiting locus in quo, it was shown that even the said tombs are not in the disputed land bought by the respondent. Wh~_t I could .gather from the proceedings, the behaviour of the appellant su.ggests irrational argument that a woman is not entitled to inherit or has inferior title to land. This argument is obsolete and need not detain me. The appellant is claiming that there is no administrator of the. estate of their father and that the land is a clan land. All in all I find that the land ceased to be a clan land on the date of distribution. The land had already been divided between two beneficiaries by the clan members and the respective Village authority. In the circumstances therefore the respondent bought the land from Nyandaro Maguma and has not invaded appellant's land. Nyandaro has a right to dispose of her share of the said land. In the end result, _I find no new facts to disturb the concurrent findings of the lower Tribunals. I accordingly uphold the findings of both lower Tribunals and declare the respondent a lawful owner of the disputed . land. I find the appeal to be devoid of merits and I dismiss it with costs. 6 7