paulo basondole sweya vs asteria chozaile 2008 tzhc 319 26 february 2008

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY

AT MWANZA HC.CIVIL APP.NO.Ol OF 2004 (Arising from Geita D/court in Civii Case No.5/2003) PAULO BASONDOLE SWEYA.................................APPELLANT Versus ASTERIA CHOZAILE..........................................RESPONDENT

JUDGMENT RWEYEMAMUJ: The appellant Paulo Basondole Sweya unsuccessfully filed Civil Case 5/2003 in Geita District Court (DC) against Asteria Chozale. He was seeking an order for vacant possession against Asteria over plot 114 Block P Geita, a plot he claimed to be his - having been allocated the same by the Land authorities on 6/4/2001. The DC received evidence of the appellant and his two witnesses; Pw2 - the District Land Officer Geita and Pw3another land official. The evidence of those two witnesses was similar in material particulars with that of the defendant now respondent. According to the latter, she had built a foundation on the disputed plot before that land was surveyed and allocated to appellant. On discovering the allocation, she complained to land authorities that she ought to have been given right of 1st refusal. The authorities realizing their mistake, mediated the issue and ordered the appellant to compensate her, but despite having been given sufficient time, he failed to honor the agreement of compensation reached. The appellant's offer was then revoked. On the basis of that evidence, the DC ruled in the respondent's favor. The relevant part of the DC judgment went thus:- "The issue as to whether defendant has any right with the plot in dispute, the important witness to solve this matter was P\rf. the District Land Officer. This witness had told the court

that after the said plot allocated to plaintiff, the defendant brought complaint that there was her foundation there. He went there and he met the said foundation. He said that the said allocation was made bv mistake as it was not known that the defendant had built a foundation at the said plot. However, he said that he sat with the parties and made an agreement the plaintiff to pay compensation for the said foundation, so that he remains with the said plot. The plaintiff was given a long time but he failed to pay the said compensation. They then changed his right of offer and decided to give him another plot. It is my view that the evidence given in this case had established that the defendant that the defendant had buiit a foundation at a plot in dispute before allocated to the plaintiff. It is also my view that the plaintiff was given enough time to pay compensation for the said foundation but he failed to do so. There is a letter produced before this court as Exhibit "P4" which shows that the plaintiff's offer relating to plot No. 114, Bloc P, Geita, which is in dispute, had been changed for another plot." Dissatisfied, the appellant appealed that decision to this court. On the main, he faults the DC for deciding that the plot belonged to the respondent despite evidence that the same had been allocated to him. In my considered opinion, the appellant misunderstood

the reasoning of the DC. The court's reasoning as indicated in the part quoted above, clearly shows that the DC was satisfied that the land J allocation authorities had allocated plot to the appellant, but later reversed its decision for reasons well explained by Pw2. Incidentally, it would be proper to conclude that the appellant's case was disproved by his own witness Pw2- the land officer. The gist of his evidence was to prove that the authorities which had 'offered7 the land to the appellant reversed their offer. If the appellant's title had already been registered i.e., if he had a Right of Occupancy over the plot, its revocation would have followed prescribed procedure and proof of that revocation would have required evidence of revocation documents. In the circumstances of this case and as testified to by Pw2, he had only an offer, and the land authorities acted within their mandate. Their action could only be challenged by the aggrieved party using a different avenue, not by challenging the respondent's title. In view of the above, I find the DC decision proper and the appeal to have no merit. It is dismissed with costs. R. M. RWE JUD 25/ 02j At Mwanza 20/9/2007 Delivered in the presence of both appellant and respondent in person this 26th day of February 2008. R. M. RWEYEM7

JUDGE 26/ 2/2008