thomson k kyaikakila vs anyegile nyakyusa 1987 tzca 64 7 may 1987

IN THE COURT OP APPEAL OP TANZANIA h? KBEYA ^gORAM.i MUSTAFA. AS.,-0. J. » AND OK^R ±i.J_._A> / CIVIL APPEAL NO 17 OF 1986 THOMSON K. K'V'IIKAIIILA .......... APPELLANT And ANYEG-ILS K’.YAKYUSA .. .f......... RESPONDENT (Appeal from the -judgment of the High Court of Tanzania at MbeyaUlCroso, J*) datod .25th June, 1982 j (PC) Civil Appeal* No, 65 of 1981 JUDGEMENT OF-TUB COURT r. . ■MAKAME. J.A. ’ This appeal arises out of a dispute over some land.^Tne respf* ndent is the appellants paternal uncle: The appellant's decaas^d father was KAPTENI, the respondent's elder brother, Kapteni wag holding two groups of pieces of land; those he had acquired on his own; &nd olan lands he had inherited from his father MWAIBABU, after-the same’had been held by a younger brother of Mwaibabu, *t |.MWAKYUSA, upon Mwaibabu1s death, in accordance with Kinyakyusa law | of inheritence. il*u - 4 Mwaibabu load inherited the said clan lands from appellant's paternal great grandfather, a man called KIBBAGA. / The appellant sued in the Primary' Court, Kyela Urban, for all the pieces- of land his father had held, and the present resptjnden^.- was disatisfied with the decision therein which gave some of the pieces to the present appellant. The respondent appealed to the District Court, Kyela,-whichroverturned the Primary Court’s decision and found that "All tho disputed 'shambas' in this case ajre the

properties of the appellant Anyengile Mwakyusa. Judgement lof the lower court is set aside”. • Thomson in turn took an appeal.to the High Court where Mroso, J , mad!’,things quite clear in his judgement. The learned judge /distinguished between the two groups of land and said, 5 / "X*-^ on th® «vidence adduced ori^iaally in the / .Primary Court that the appellant ia not entitled, to the "\/• ■’ •it/ i * JS't>^P3s^mba1,ya:.mpuaga'*,--which ho ,had'been claiming,' Those ! V ' ■^,: ' t. • ? fc-, / " ..kv ■ ' ■ '5' shambas were originally owned by his grandfather Mwaibabu ’ and are now clan property, They w#re not the personal /property of his father Kapiteni, From 1979 the appellant regained from the respondent his legitimate inheritence of his late father’s personal estate. The respondent, with the consent of the clan, way back in 1973 , inherited the clan lands comprising the disputed "mashamba ya mpunga," I therefore dismiss this appeal with costs", k This ia therefore a third appeal and the issue' before us is " ' I ' ' 1' ' V ." ( Lthin a narrow compass. The appellant could not come to us with^u^ |ceptificate, in accordance with Section 4(2)(c) of the Appellate jurisdiction Act 1979 - that a point of law is involved. The ppellant got auch Certificate, from Katiti, J. who, with great "ii’ f > •• * sspeot misread Mroso J ’s views quoted above. The learned judge aid of J/Iroso J

’s views: ’’First, I find disturbing contradictions in that material excerpt, if I read the above excerpt right. That is, if the "mashamba ya mpunga” that were originally being under ''use by the applicant's grand father, were the same'’that the applicant gained in 1979, they must still be clan property, and not the applicant’s ’’father’s personal estate1’! And if they were not personal px-operty of the applicant’^ father Kapiteni, as. the learned judge seemed to think, the .same property could not be said to be the applicant's .[’♦father’s personal estate" sa'id to have been legitimately ^Inherited by the applicant, vny back from ,1979 ^Ssi,1k ■ 1 '■ •%. ’ ’> . ....... The learned judge wondered if jhe had read the excerpt from yidge Mrosors judgement right. With respect, we are of the view j» did not and that, proceeding from that error, and basing imself oh it, he wrongly certified thuss .A ’^ e t h e r where immovable property has not fallen ’bona vacantia' -i .e. where the interstator is outlived by an heir or heirs, .the clan councils' is legally competent to disinherit such hear or'hairs, in particular in view of the provisions of paras (19), (21) to mention a faw, of tho law of inheritance, 2nd Schedule to Cap, 333, applicable to the place of origin of this case, vide Government Notice No. 436/1963," That issue cannot arise. The personal.property regained in L979

was.the appellan t 1 'a. father’s personal property, by the appellant in the appeal before the High Court, who was Thomson Mwaikamila, Jfcis did not involve ,{clan lands comprising the disputed mashamba ya mpunga" mentioned in Liraso J*s judgement, We are unable to iisgern the’disturbing contradictions1 found by Katiti J and we fail to ,und§**spand how the question of ’Bone Vacantia* comes in, When Mwaibabu died the clan lands did not devolve on Kapteni, his 3^1, but vfent to Mwakyusa, Mwaibabu*s brother, before it finally reached Kapteni's hands. It is these sane clan lands Anyegile, the present respondent, got from the clan raoi3bern and which the appellant eou^d not get directly from his father, and cannot now divest the respon­ dent, his deceased's father's brother, of the same. ■ •\v ' i W e are of the considered view that the learned certifying judge *'“ r jgrred' in-.issuing the certificate, because no point of law is invol-* i^d»,v>Wheil- the parties appeared boforo us we indicated our views loidxtbe appellant said he understood the point raised and appre^i- J'■Z&i’"'■ ated 'it. He, however, expressed another grievance - that the respondent; was right now alleniating the clan lands $o people who - •&: -f* » ’ ‘> ” i'doi;n o t ,belong to tho clan. To this'the respondent retorted that if lifesiiv *• - (.TjriaT “was" the case the clan members can always sue him. Tho respondent I 'right. • . . & • . " • i ... . In the last analysis the parties should not ’have been permuted ttcj^ijome to this -Court. The appeal is accordingly rejected with ieosts, .^ •-' ' ;•>«.si ■ - "DATED at MBSYA this 7th day;,of I'ay, 1987. A, MUSTAFA AG. CHIEF JUSTICE l ■ . ■ /. V ■ 'S;T - . si.?- '■* H” i V‘;: ■ ; v-%-.i ■ ■...f i .m ;|m a k a m e — JUSTICE- o f a p p e a l •• A.M.Ay OMAR .

JUSTICE OF APPEAL I certify1that this-is- a trua copy of the original^ (J.H. Msoffe) DEPUTY REGISTRAR •