village chairman igembya village others vs bundala maganga 2014 tzhc 2334 29 august 2014

IN THE HIGH COURT OF TANZANIA viJLAND DIVISION) AT TABORA LAND CASE APPEAL NO. 12 OF 2014 r (From the Decision of the District Land and Housing Tribunal of SHINYANGA District at SHINYANGA in Land Application No. 62 of 2013) VILLAGE CHAIRMAN IGEMBYA .................................... APPELLANT VILLAGE AND 4 OTHERS VERSUS BUNDALA MAGANGA.................................................. RESPONDENT JUDGMENT 14th & 29th August, 2014 S. M. RUMANYIKA. J Before the District Land and Housing Tribunal - Shinyanga (DLHT), the Village Chairman of Igembya and 5 others (the Appellants), lost the war and battle on 14th March, 2014. Whereby Bundala Maganga (the Respondent), was awarded a 150 acres measured percel of land at Igemya village claimed by him. The 15 grounds of appeal may. boil down to only two (2) points canvassed during the hearing by Mr. Salehe Hassan Learned Solicitor. One: the trial chair having evaluated the evidence improperly, two: the trial chairman having not held that the Respondent's claims were time barred for had occupied and utilized the disputed land for about 39 (thirty nine) years. That should the DLHT visited the Locus Inquo, it would have reached at a different conclusion. In his submissions, Mr. Salehe averred substantially that the Appellants had it allocated to them for a some decades by the village authorities previously. That the authorities Butini Village (if at all), allocated it to the Respondent had no mandate at law. It never belonged to them. No land was allocated to him. For the purported land allocator had nothing to give. Leave alone the fact that the DLHT had awarded him more than the disputed sixty (60) acres. Which infact belonged to the 2nd Appellants. Like the elderly Respondent was reproducing his testimonies, he just submitted that the 150 (one--hundred fifty) acres were duly allocated to him orally by authorities from time in memorial. Only that he vacated it after the Iddi Amini War ie. (Early 1980's I suppose!) But left it under care of brother one Kinyange. That indeed the dispute was over boundaries. In his findings and decision, the learned trial Chairman was satisfied on the balance of probabilities. That the disputed land having been occupied for couples of years by the Respondent, and this fact the community knew, yet still the village Authorities this time re allocated it to the Appellants. On this one, the records (evidence of D w l, (one Muhoja Nobashi) speaks it out in blacks and whites: .......what I know is that the Applicant (currently the Respondent) herein, vacated to Nvida during villaqization exercise.......the land was left bare till when the same was allocated to the school herein (the 2nd Appellant)......It is true that there is a tomb which belongs to the Applicants (Respondents currently) relative ........ present before the land being allocated to sch ool............. (emphasis added) In his decision, the learned trial chairman says it free of any ambiguities, very precisely in my considerable view, as hereunder:- .......As the Applicant was lawfully allocated the suit land the Village Council had no authority to re - allocate the suit land to Itubanilo primary school (2nd AppellantsVwithout the consent of the Applicant who was still in possession of the suit land underline is mine). Cited was the case of Village Chairman K.C.U Mateka V. Anthony Hvera (1988) TLR 188 whereby it was held:- The village government may allocate land to one. But that does not mean the village government has power to take a way land from one person and give it to another....... I will add that powers of authorities to allocate land guarantee them no powers to take it back and more importantly so, give it to another one just at the wheems of and fleemsy personal sentiments of the allocators. But for good and or public use. This also is only possible when it is not done on the back of the outgoing occupier. Short of which the land use and management will be at stake thus dangerous to public tranquility. This is to say that the disputed land was, and still belongs to the Respondent.' Just a word or two in passing. As land in Africa societies is fixed by nature and it is common knowledge that the Tanzania population is proven increasing at a higher pace, it can no longer be ideal, leave alone public safety for an individual to be allocated hundreds of acrage of land. Like it happened to the Respondent. All said, appeal is dismissed with costs. Decision and orders of the DLHT upheld entirely. R/A explained. S.M.RUMANYIKA JUDGE 28/ 08/2014 Delivered under my hand and seal of the court in chambers. This 29/08/2014. In the presence of Mr. Salehe Hassan and the Appellant. r S.M.RUMANYIKA JUDGE 29/ 08/2014