19800314 TZHC Mwanza

LL .: Th T}' HIt H C0UT OP TT7 IIJ (In the Di.strct Reistry) • :.. ;.. Stwn • LNO,,122 CF 1979 (rc/cnrir (Prom the decs on of thc ci - trict court of Puko1a district t Ptko1 n civil prl Ic 95 OF t977) UUSTINI KY0ZI.. • . • . 4. .• • , •• • rFLLNT I SS1 SHtNI. . • . . . . • . . • . • • • . • • • . . • • • • .'• • . • . . . • . . . . •HTSQNDTNT 1. • :., . CLIM Compenstiofl - she. 15001=, for illally fling trees, qorth the above sum. JUDaNT KPTTTI J. Pertürd, Thy the' cOnduct of his fellow i{1l'€rs,. who he thoupht ...... had 'tresrased uon bis rhts y fllfr,c traesin the f.brest. thathe : thought was hi., the juti'ceseekin respohden- Isse Shahani.f-iled -j adti'dn....i'n. Xaähthnu Primary COurt inp ai'áve shown &nount as compensation Iurustn Kayoza, I1rahim \Iashata Cleophace , 'ratukuli, Kalori Mjkez,r all resident of f4agokbra vil1ase were the respcndents Is deep in their hearts, the respondents 1ievd, that the forst in question was the property of the village, - hy virtue of its reglistration and , the villa- e Coun,i1, .designaton as such. Pupustine Kayozo the choir.nn of took up the leadership to argue on behalf of others, and even the villge esta'lishmert, that, the forest was the villoga ccrty, it heing one of 'natuàl reou'rcesi.n the vil1n'e, : • . 7. .5 . ... The respondent on the other hand contended, build4ilri his case on lnherftande& •T -t.... h±s' th'erespc'ridents ftherws given the same forest by late ch4ef Pwogi. The fspond't.. add'ed that he later inheiited the same froth his father. The Primary Court having heard 1 cth parties, Urh4iioul3r veidIcted i that the forest inques'tion:was' nevefthe property.of the respondent at all. The Cot un i'tously p{nted oãt that the forest in question; was or4gi.hally'andcr the then C'hfauthoritr . unde the then local au'thoity,the iespondents father nd latrthë responden 'ein.employecs as forest over—SeGrsi They cor1cidec1., that with' the chiefs trappings of powder plucked totatus 1 low for'nalty,thn thich forest became Governmert pcperty4 The Pri.may Court, therforc d,smssec 1 tic suit. • The P. r i maT y.' Côut d4d not o knto th 'fft ofthellages'and Uarnaa (Begistration, designation, and admin trtion)Act9754 obviousir for reason, that the said Cout may have cnlyhc-nrd aout,ht had neer castá readin èJe on the sme TherepoñdEhtoppOledtO the District Court, Successfully. Althoui'h the reply to memo of 'dppel questioned the appi i ca'ilty, 0 , non applicability of the statute cited aove, the District Couii e ith e r'by oversight, or,'neltnverthadany refrènce to jt. The District Court concluded that, as the reshcndnt had hadundisturhed occupation of the same, for over twenty two yC2rs he could not h unseated. The district Court allowin p th appelöi'd±'ed that the compnei.tion sought, be id.with costs. The appellant is now appealing from ht'Juent and order. Having read this long memo of appeal that knows no lawL%ecicn, I am satisfied, that the village esta'Iishientchairman claims ownership f thcóntested forest - 1 'y virtue of its heingaJjcma cjfliflrll the natural resources under its own Juridict 1icn 1 think i'er4]y, that this case stands or falls depending on the folltIkm 1ues?- •- 2--- (i) Whether the r espond nt, or, his fth, did ow'i tie said sh.amha? (.2) If he did not own St..p.s:.such, th 2nd qucston is wheth=r j upon the d€mi se of ch fs adnistration, such forests, became Govsnnent property0 If answer (2) ië positive, what wculd e the pos 4:ticn, if, thesame fell wi h-in the nrea of the Ujamac village. 1± the answer tc (i) is noaitije, int is thc 1el ,pOsiton,.iftheadpie.of.2nd-fajls within the tTjarnae villape teritory? - First bome, first served is issu No.1, jith-r th respondcnt's father, was raiite the f oresf in quastio 'by the • ch-ef'- t1ye spi.d shathlie cily to e inheri -ted, y the respondent? The evidence petteinng €0 this, had apart 'from the testimony of the resiondent, been scanty The respondent's witnesses, did tetify that the forest belonged to the respondent Thecause the said respondent, had had accsion to,.allcw,them to cut trees therefrom. The iesi-ondent ernphaszing that, kr1sThwnershjp of such property was derived from inheritance, tendered a "To whom it may conbern", paper. When the responden was arP'ulng his case, hc orw my 't±crt,rn to an exhiT,t - hat, was apparently elso shown to the Dstric Curt This paper eppareitay signed y Omukama Fwog-i III, ntr al-in s 1rs - "lim-mp Vlkurpu Sha'anj Kaharnpa zawadi yke ye ms-itu kuurnililçi na kuchukue, It is this document that was showfl to the D'sbriót Court, nd its wordixig ahove h'd a guiding influence pn thc ¶ -' This documert 'atrta. however was a photostat cony0 The recrd h i shws the cocumnt tendered 'efore the r'm - ry Court! wa fcrc the an'cl r tamed to the rsto1iient. Wh'jr this was done, when an npreal was olvious]. i -nminert, c may never know, ut the aprcllant drew, my ttntion - t... the difference of wording in photos -tat copy, and the firet docuient tht was t-adred in the Primary Cour -t . . .. . Forturately-, the Frinary Court nd reproduccd tt-ie- same in his Judgment and I d reproduce same heeunder:— . chiefdom Ref. No.F.3/36, Na-ith Luk.. Kiampz,, Kianja 2nd March 1955 flomlolola Kamachumu. 'hntarafu yemitu V a lukaria Vwenyere, amlayo hata na wewe urayo orodha yenyetie, sasa nakufahamisha kwam1.a mstu .No.16amhao uko • katika ki.jjji cha Makcno'o.ro, sasa, nimeopa mam lake 4kunu5h&'ani Kahambo kuutunza Tafadha1i' es,sumbul,Te wala kuingili, nn mtu 'lwinglne -'".ipc yeye huyu Sh.aliaai.. . V'].e vilc na ml' Z1 ic tu yar'u fliI]'jEWC Trnado wasim-aumbue kungi Shaniban, kwatangu leo. 'hakan, atautunza na kualinda Sign. PWOg, III MUKAP Wfi KIANJ., Nakj21 kwa: •. - •• -. .• -• Pwane Pernado AlujEnenFomp •• - - u1aan-, niurnzi we mis - ta ybnL -- rkungu Shaani. K'aa 1'a nl -i-nzi . .' / - .. - . 1 nistu No. i6. / Th eding of thc two, wll ovicusly , th:t Wiil thpct start / Jcopy vcals thçr' was one absolute arnt, cr_ tr t' e / iierroducrd, the res podrltts father was i&r'- tier cvcrs3r cf the same. / When out cf curosity, -ì ked th rerordnt c'-ut t'ie Jirenc' r / krdin, the responc3nt cnared t 1ic megisti t f i'-ir ialic - iousl ltercd i the sa'ne ut hrvinp rad h s iemc of a'e1, dic ti r-spondent complain a'out thc I'led a1ret , cns t I vine ouflicient ccns-tderat'cnt t v'rnc-' a cle, I rr s-nsf c', ti't n riocu -nent whose contts wrc tzprod-U6ceOny thc fre] Taristrte, wore a out -ti -- right and truthful trans& . I acdpt therefore that, the respondent's father was no more than favoired foreman or ir overseer (f the forest. That means, after the demise of his father Ki.remcs, the respr:nder.t's continuation of doinp what his father had 1 'een dain.ci did not mean he 'scane owner of the / same. It is concluded therefcre that the resrondent did nct inherit the sane.. Tf we take it, 9s liclly we should, that th respcndcnt, may all along 1 een holding out as he did under the authority ol the chief,, ie it wogi- III, or, h,is. s.cb'esor, whose tradi.ticral powers end functiois over- whelmed 'his suY'jcts, and who held tr'l c.n tiu fsr nis people, the year. 1969, witnessea that end. That 's the 'fric"n g ft-ct---99. Act 1969 r .together with African chiefs (Repal)'±96 &clished (a) traditional f tfhZitions, powe is and authority of chiefs, Pr d (1).functicr.s, power or authority cbnfered upon such chief hy cuctc'mery Law. That if the respondent dried himself 1 y thinking the least, that h was an over—seer as was his father, uedr the chief's authority, then 1y the a!eve statute, no more authority could stAll 1'e f1*ing into the reepondnt, with the chiefs out, then the said forests could only e ron under the local council, and ownership couldnr't at all vest .irito the. hitherto cverseer. Now having answered issues (i) and ..(2) that the rescndent did not inherit or otherwise own this forest, and ihmhe forest eceme property of local council, what legal status does th e sc q u4r € , if it fell within the tsrritorial am'race of the Ujomse village? —the question persud Ty issue No.3. While the answer appears o'v.ious, my int:'nticn is to bring home, how the law would normally treat the same. Suh_prs (i) (2) and (3) of the para (5) of. the.'Direct - ons made 1,y the liister under suhdection 4 of section 23 of the viulaaes and Ujamac villagc-d (Registration, Designation and adm4nistretion) ct 1975, have the following to say:— *, 5 (i) The land for use of a villaiee shall comprise such areas of land as may erserved for the rurpose and allocated tothe.v.11age 1'y the Djst;-ict Develonment council. 5 (2) Subject t(-. nvojlaiility of craNe land, the village Council, shall alot a piece of farmlan, to every keya in the village according to the need and a 1 ility to develop it. The village chuncil shall have power to determine the striictural patern of farms in the village, and the use thereof. 5(3) Suhject to the ava 4 lalility of land, CV:iTy keys, shall e entitled to an allctrnent of at least one acre of land, for the purpose of ui.ldin thereon dwel]irg houses, and for other domestic purroses. -4 From the a 1 ove provisions, I read no more and nclass meaning, - than that where land had een incorporated to C; village area, 17 the allocating authority...— the District Develbnm.ent ocuncil, then such land, he it forest, comes undr the Jurisdiction f the village council, which i5 given mandate to determine its USE. It folawa on heels,' - hat if the forest in question h.ed reverted to. the local ouacil, it 1 ccei•ce property of the village in question— iakcnohs, upon its allocation to this.v.ill.age, 17 the relavmnt Di. - trct Development ccuncl. Per such aiJc--ti,on, - 4- tne. villab, council assumes poer over it, and have the liberty t ditermine on how to use the same. If ths-wst1e.:case, and I m su 17 it was p then those allo1 oy the vi1lae ostcblisrrncnt to uo tne forest woods for the purposes a p proved, wcr. t 1i:rti, to cut down the snd. trees. The property or foreut ws n t tnu roierty of tke respondrit at il, and that biii the um, ncL I am the snipe being to nis knowldbe, no invabtflnt was or could b pt in, as to even entitle the rsponuent to any compensaticn Tr .00v be the case issue (4), as to w't would have ocen t posi±1o1 i2, &he forest ws inded he ..resporidnt T s pbprty, becomes unnecessary to deal with. From wnat tao bove s how, this apcal mu.t co and is allowou with costs - the District Courts iudgment set aside and. reinstatect is the Primary Court jitmnt. HIGH COURT OF TANZANIA E. W. KPITI 21ST MAY, 198Q. JUDGE. C _7 tThi Cesu R IN THE HIGH COUiT OF AT i'ANZA ORIGINAL iPPELLTE (PC) CIVIL APPEAL NO. 123 ('F1979 I (From the decsion of the Distric'. Court of Kwimha District at Ngudu in Civil Appeal No. 51 of 1978 - i3efore: J.S. liangwe, Esq., District Magistrate and Original Nyambiti Primary Court Civil Case No. 21 of 1978) SOSTHENES KAP,AIVIA : :: : : APPELLANT VERSUS SHADiACK LULU :::::::::::::::::::::::::;: ::::::: I1ESPONDEIIT J U . )G Fi E N T PFALILAr1,: This is a second appe1 against the decision of the Primary Court of Kwimba District at Nyambiti allowing the respondent's claim for Shs, 675/= the balance of the loan he had earlier advanced to the appellant. The respondent's case in the Primary Court was that on 3/5/76 the appellant approached him and asked for Shs, 700/= as a loan to enable him to run his pothbe brewing business. He said that he. gave the appellant this amount. This transaction was witnessed or, reduced to writing vide Exhibit A. Subsequent to this event,' the apei'ant 'went back to him and asked 'or a further :'hS',: 150/= which was given to him making a total of Shs, 8501=. The aipellant then refunded...Shs. 1757= leaving a balance of Shs, 6751= whih the ' suhet of this suit, The appellant agreed receivinc the sum of Shs. 7001= 'from the respondent but he said that this had been paid off in kind by' h's allowing the respondent to use his brewer's licence and retajn the proceeds. This however was not substantiated arid both th'e Primary Court and the District Court dismissed the"appeal against it. 'This is a further ppeal'. In my view the wording of the document ethibit A is quite Clearp it does not say that the sum of Shs, '700/= would be paid ifl kind. ,y' . .. allowing the respondent the use ofhis appellant's brewer's lidenc.r, It says catogoricelly ththe would'refund the amount later. As to the additional sum of Shs, 150/= I agree that this was not recorded, but - so 'was the refund of Shs, 175/=, I am therefore satisfied on the strength of Exh. A that the, sum of. ,Shs. 675 is still owin.g appellant to th rLspondent. Accocdingly this al - -eal has no merit . and it is d1m1ssLd is neither party a)earLd thc.Lt. will be no order for costs. 'I 'p 1. NN Zit ' •' V\ •')J' •';\ 'ji' 1. .'MFALILK,'' 14T. MARcH,. 1980., JUDGE. ' ,,