Lasack s/o Nguvumali v. Petro s/o Bikulako (substituted by Mtalikwa s/o Bikulako), (LC)) Civ. App. 1-DSM-67, 22/6/72, Onyiuke, J.

Lasack s/o Nguvumali v. Petro s/o Bikulako (substituted by Mtalikwa s/o Bikulako), (LC)) Civ. App. 1-DSM-67, 22/6/72, Onyiuke, J.

The suit was instituted in 1961 at the Kalinzi Local Court in Kigoma District. It was a claim for trespass to a shamba. The original plaintiff was one Petro s/o Bikulako who has since died. His representative is Mtalikwa Bikulako who is the respondent in this appeal. The original defendant, Issack s/o Nguvumali, is the appellant. The local court gave judgment for the plaintiff but ordered him to pay Shs. 100/= to the defendant as compensation for the improvements

he had made while occupying the shamba. The plaintiff’s case was that he inherited the shamba from his father Ntore who had originally cleared it of bush. He claimed that he had planted coffee trees on the shamba. The defendant claimed that he inherited the shamba from his guardian Mtango. He claimed to have been using it for 30 years. An appeal was lodged by the plaintiff against the decision to award 100/= to the unsuccessful defendant. The appeal was lodged in the Kigoma Federation Appeal Court. The court dismissed the appeal against compensation, but confirmed Petro’s title. Then the defendant appealed to the Regional Local Courts Officer, on the ground that in a previous suit – Kilinzi Civil Case 88/1960 – he had been awarded the shamba and that decision bound the court in the present case. He also appealed on the ground of undisturbed possession for 31 years. It appeared that case 88/1960 had been brought by Issack against the present plaintiff’s brother, not the plaintiff himself. The court in that case gave judgment for issack on the ground that he had cultivated the shamba when his guardians, one of whom was Mtango, died. The Region Local Courts Officer dismissed the argument of res judicata on the grounds that Petrol was not a party of the previous case and that the judgment did not give issack title against ‘all comers’ that is to say, against the whole world. On the ground of undisturbed possession, it was the unanimous opinion of the assessors that : ‘The title of the original land-holder and his heir is invariably superior to that of any secondary land-holder or tenant no matter how long the latter may have been in possession’. Issack then applied for leave to appeal to the High Court. Before this was granted the Local Courts Appeals Officer, by order, required additional evidence to the taken by the Primary Court of Kalinzi .The primary Court inspected the area and drew up a map. Additional evidence was given as to the shamba in dispute. Two elderly witnesses, called by Issack, the issues of the late Mtango, said that Issack could not inherit the shamba from Mtango, because he was in no way related and was in fact Mtango’s servant.

            Held: (1) “It is clear on the evidence that the respondent could not inherit Mtango’s property assuming that the shamba belonged to him. Furthermore Mtango’s title to the shamba was tenuous and was based on the fact that he cultivated the shamba once and apparently did not live long enough to reap the harvest. On the other hand the evidence of Ntore’s title to the shamba was considerable and was given by elderly witnesses who had nothing to gain by telling lies. Ntore was a member of the village in which the shamba was situated as opposed to Mtango who belonged to a different village. I hold on the evidence that the shamba in dispute originally belonged to Ntore. Mtango’s alleged cultivation of the shamba for one season could not defeat Ntore’s title to it. The opinions of the Assessors who sat with the Regional Local Courts Appeals Officer confirmed this

view. The appellant cannot therefore base his claim to the shamba on Mtango’s alleged title.”  (2) “I now turn to the second ground of appeal which was founded on suit 88/60. The respondent as far as the record was concerned was not a party to the case but Mrisho who was alleged to be his brother was. The question for consideration is whether the respondent was bound by the decision in that case. I have studied the available record of that case. The boundaries of the plots of shamba in suit 88/60, one on which he stated he planted Eucalypty trees and the other coffee trees. The appellant based his claim to these plots of shamba on the fact that the inherited them from Mtango, Bugabo and Barunguza whom he claimed were his guardians. The Local Court gave Judgment for the appellant on the ground that he cultivated the plots after his guardians’ death. Mrisho, be it noted, did not defend the case on behalf of Ntore’s family, nor was Ntore’s title put in issue in that case. It is difficult therefore to see how the present respondent can be bound by that decision simply because the person who was alleged to be his brother was the defendant in the case. It is however contended that Mrisho’s failure to plead Ntore’s title amounted, in effect, to a declaration against interest which should be binding on the respondent. A declaration against interest is an admission but not a conclusive admission. It does not amount to estoppels. Secondly the respondent was not claiming through Mrisho but was rather claiming independent of him. Thirdly the boundaries of the plots in dispute in suit 88/60 were not clearly defined and it could not be said with any degree of certainty that Mrisho knew that Ntore’s land was involved in the case. The sketch map drawn by the Primary Court showed that the shamba in which the appellant planted Eucalyptus trees, shamba  G, which was one of the plots involved in suit 88/60 was not being claimed by the respondent. This apparently was the plot claimed by Mrisho to belong to Rungo and Barunguza. It is noteworthy that the appellant based his claim on the title of mtango, Bugabo and Barunguza (his alleged guardians) without specifying which plot belonged to whom. Lastly, the appellant based his claim on the long user of the shamba without interruption.  There was evidence, however, that he occupied the shamba in the respondent’s absence and against all warnings. He had notice therefore of Petro’s title. Petro had effectively re-asserted his title by planting coffee trees on the shamba which had matured. The award of 100/= was designed to compensate the appellant for whatever improvements he might have made on the plot of land and I hold, as the lower courts did, that this was fair enough (3) “In the final result I will dismiss this appeal and confirm the decision of the Kalinzi Local Court awarding the shamba in dispute to Petro and his heir. I will also confirm the award of 100/= to the appellant.”