19800516 TZHC Mwanza

IN THE HIGH COURT OF TANzANrA - A ATMWANZA APPELLATE JURISDICTION \- (PC) CIVIL APPEAL NO. 81 OF79 (From the decision of the District Court of Bukba1t Bukoba in Civil Appeal No. 68 of 1978, - Before A. N. Russeta, Esq., District Magistrate and Original Civil Case No. 130 of 1978 of the Primary Court of Bukoba District at Kamachumu) SWAIBU RAMADHANI. . ••• ..• . . . . . . . ..... e• •00 • 0• S • . APPELLANT VERSUS 1. MATRONY FESTO 2, ARCARD SHWILIMA .................. e00 • S• S •S0.e . .. RESPONDENTS CLAIM: SHAMBA, J U D G M E N T KATITI, J.: This is the second appeal, by the appellant - Swaibu Zeulia Kyabashasha, who has, since the case's inception, been represente4 by her agent - Sulemani Ally. The appellat has not been fortunate, as her action in KmachumuPriniary Court was unanimously dimissed, and het appeal to the District Court also dismissed with costs. This is therefore the second appeal. The appellant seeks to receover a shamba, from the first respondent the buyer, and second respondent the seller, claiming it was clan property, that had been fraudulently sold. The second respondent has all along maintained, that the property in question was his rightful property, which he had unrestricted liberty to gell,.to the first respondent. The Primary Court - Assessors and Magistrate, were unanimously of the view, that, the shamba in question was the property of the second respondent, and a nonclan property at best. The District Court upheld the Primary Court's verdict, and hence this appeal. Admittedly, the appellant is not saying anything worth much in the memo of appeal. It seems, the history of this shamba speaks a language, that is urunistakeably in favour of the respondents. The second respondent is tribally originating from Ngara District, and caine to Bukoba in the era of 1940. The father of the appellant Pontiano Muhamba Kyabashasha, was a landed nobleman, according to the social classification of society, then obtaining, Years before his death - 1948, late Pontiano Muhamba Kyabashasha, had been staying with the second respondent, obviously for no reason other than, that the second respondent was more or less the drawer of water and a cutter of wood - a labourer. Sometime, in his lifetime late Pontiano Muharnba Kyabashasha, curved a piece of land out of his own shamba, and gave it to the second respondent. And as he suspected rightly, that, his death was near s late Pontiano Muhamba Kyabashasha wrote a "will", dated 25/11/1948 that inter alia said, as follows and I quote- "Karidi Omukibanja mwonene nkatungamu Swi].ima alye ebitoke, na wenene muntu wabo na mt. inubasigila, tiyampaile kantu." Approximately translated, the above mean — " Besides, I agranted a piece of land to Wilima, for food purposes, he is your man, I am leaving him to you, he did not pay me anything for it." ....,...,./2. Indeed as was rightly harped by the testator, death came and he went. The second respondent stayed in the said shamba sweating till in 1973, when he sold the same, thereby provoking this litigatiot - that he had sold the shamba, that was not his. The questipn is, whose shamba did the second respondent sell? It is not disputed that, the said shamba originated from late Pontiano Muharnba Kyabashasha. And that, this shamba was given to the second respondent, far before 1948 - defies challenge. Again, that, the second respondent, had been in it and sweating for over twenty-five years is beyond challenge. And yet all this period, nobody claimed ownership of the same. The evidence isalso loud that in 1974 - Kamachumu Civil Case No. 29/1974, when the second respondent successfully ended the ligation, with one Swaibu Ramadhan, the former having pledged the said shamba to the latter, nobody, including the appellant came up with the protest, that the second respondent, had pledged the property that, did not belong to him. Thus although,, the will above cannot be construed to mean the testator was granting what I would liberally call absolute ownership to the second respondent, the period of twenty-five years. the period, he had been left to live therein, is too long a time to allow the unsitting of the second respondent, under the present changing circumstances. Again, reading'the' dvidence broadly one will not fail to appreciate, as did the lower courts, that, the secnd respondent.waS no more than a Nyarubana slave; who in the eyes of the appellant was to be left to stay and sweat therein, but finally be asked to leave bag and baggage. But time and attitudes have since changed, and such customary leaseholds have been enfranchised - see Customary Leaseholds (Enfranchisement) Act No. 47 of 1968, and the people that had hitherto been affected liberated. From the aforecc4ng 4 the decisions of the lower courts, that, the shamba was the property of the second respondent, were impeccably right, and I so find. The appeal is therefore dismissed with costs. !IWANZA ITI 16TH MAY, 1980. JUDGE.