NA TZHC Mwanza 5

-= IN THE HIGH COURT OF TANZANIA ATMWANZA MISC. LAND CASE APPEAL NUMBER 32 OF 2014 {From The Decision of the· District Land and Housing Tribunal Of Musoma District at Musoma in Land Case Appeal Number 135 Of 2012 and Original Ward Tribunal of Bukabwa Ward Applicati(Jn Number 38 Of 2011} NYANGIGE NYANGO ................................ .APPELLANT VERSUS MWITA NYAMASYA ................. ~ .............. RESPONDENT JUDGMENT S.B.M.G. MA TUPA, J. This is an appeal from the decision of the DLHT of Musoma sitting at Musoma, confirmed the decision of the Ward Tribunal of Bukabwa in favour of the respondent. The facts of this appeal are rather brief. Typical of disputes of this nature that emanate from that Region, has a chequered history. The appellant was married to one Warioba Nyamosya since 1956. Upon her marriage, she was allocated with a piece of a. land measuring five acres. She claimed that she lived on that piece of land until 1964 when her husband died. At this time ·around "the appellant moved from the clan and went to establish herself elsewhere. The evidence is not 1 clear as to the place the appellant shifted to. She nevertheless took her liberty. There appears to have happened a number of things in between. One according to Mashore Warioba who was 51 years at the time he testified before the tribunal, he barely recollects the whereabouts of this step mother as he left the clan when he was too young. He remembers that in the eighties the place the mother claims had turned to a bush. They therefore decided to clear the same. He together with his brother cleared the land and started to farm on it. In 2008 his father died. It was at this time around that the appellant surfaced to claim the land he had abandoned in mid-sixties. This witness has claimed that when the. step mother left, he was too nascent that he could not recollect her identity. However sometimes in the cause of operation Vijiji, he came across the appellant that is when he came to know of her. . . This testimony is not disputed by the appellant. She claims through the evidence of Mkami Warioba and Nyangige Warioba that she was given the land by the deceased husband. They all claim that the appellant abandoned the land immediately after the death of her husband in the mid-sixties. In between) the respondent came by the farm. Her major claim is that this land . . t, lu- belongs to her on the account of it being given Lbv her late 2 j husband. This contention did not find the favour of the tribunals below. The appellant tries to convince me to buy it. The five grounds canvassed in the memorandum of appeal evolve around this contention. Even the procedural irregularities evolve around the same contention. !I . Before me) both parties were not defended, they appeared in person. The appellant complained that the daughter who gave evidence was threatened. She claimed therefore that she was denied the right of hearing. I have considered this ground · of appeal very closely. It is not meritorious. The daughter gave her evidence which is clear enough as can be recollected from our reference to it we have just made. This daughter is the one who told the tribunal' the story of the abandonment. In this case it is not denied that the appellant was given the land when she got married in 1961. The problem lies in the fact of abandonment. The r~spondent is claiming that_ t~e appellant abandoned the land and they found it furrow. He has -tendered it for almost an age long. The repossession that is sought is against a long possession by the respondent. I will answer the first ground of appeal in the negative for the sole .reason that the appellant abandoned the land for many decades. The tribunals below are right not to dispossess the current holder of the land for the reason that the appellant 3 acquired the land half a century ago by virtue of a short lived marriage and abandoned it. I will also answer the second ground of appeal in the negative because the Chairman could not legitimately write a letter to dispossess an adverse possessor of his rights. On the third ground of appeal, it cannot be true that she acquired the land in 1957 when all through the evidence she contends that the same was given to her upon her marriage in 1961 and also in the light of her admission that she abandoned the land immediately after her husband died in 1964. This ground is therefor·e incredible. I have also considered the 4th ground of appeal. The admission by the appella·nt that she left the suit premises without asserting when did she return to the land, renders.the mistakes if any, in relation to the assessors of no effect to the justice of the case. This was almost a decision on admission. The same would apply to-the fifth ground of appeal. In the result. this appeal is dismissed in entirety. The resgu.H-1~.u. is entitled to his costs here and before the tribunals ·,_ . ~~ ·_ .. · t) S. ~- ivi:o.M~~pa ~ JUDGE 4