IN THE HIGH COURT OF TANZANIA
AT DARES SALAAM
PC. CIVIL APPEAL NO. 214 OF 2004
(From the Decision of the District Court of Ilala in Civil Appeal No. 54 of2002, Hon. David Asajile )
LUCIANA KOMBA APPELLANT
VERSUS
SELEMANI RAJABU MRUTU RESPONDENT
EXPARTEJUDGMENT
A.Shangwa,J.
The appellant Lusiana Komba was aggrieved with the decision of the District Court of Ilala in Civil Appeal No. 54 of 2002 which arose from the Primary Court of Buguruni in Civil Case No. 1 of 2002. She has now appealed to this Court. Her ground of appeal is as follows:
"That the learned District Court Magistrate erred in law and fact in allowing the appeal on the ground that the respondent sold the plot which is situated within the Tazara reserve, which fact is not supported by evidence tendered in the trial Court".
In his decision, the learned District Court Magistrate Hon. David Asajile overturned the decision of the Primary Court which dismissed the respondents claim for the refund of shs 410,000/= against the appellant being the purchase price of the piece of land which he bought from her in 1996 and built a house thereon. The learned District Magistrate ordered Lusiana Komba who is the appellant in this case to secure another piece of land for Selemani Rajabu Mrutu who is the respondent in this case as the land which she sold to him was later claimed by TAZARA to be its reserve area.
The respondent's claim against the appellant arose from the fact that four years after the appellant had sold a piece of land to him at Kiwalani area, Dar es Salaam and after he had built a house thereon, the officers of TANZANIA RAILWAY AUTHORITY (TAZARA ) put an X on his house for the purpose of demolishing it saying that he had built it on their reserve area.
The appellant submitted that she inherited the piece of land which she sold to the respondent from her father who died in 1982 and who was possessing it from 1956. She contended that the one who is supposed to compensate the respondent or to find him an alternative piece of land is TAZARA which is claiming that the piece of land she sold to him and other plots in its neighborhood are in their reserve area.
In my judgment, I agree with the appellant's contention. As the sale of the piece of land which TAZARA is now claiming to be its reserve area was sold by the appellant to the respondent with a bona fide claim of right that it belongs to her for having inherited it from her father, the one who is supposed to compensate the respondent or to find an alternative piece of land for him is not the appellant. The one who is supposed to do so is TAZARA which put an X on his house and claimed that the piece of land which was sold to him by the respondent and on which his house is built is its reserve area. I would therefore quash the Ilala District Court's decision and restore the decision of the primary court of Buguruni which entered judgment in favour of Lusiana Komba (Appellant). Consequently, I allow this appeal with costs.
A. Shangwa,J.
24/5/2006.
Delivered in open Court this 24th day of May, 2006.
A. Shangwa,
JUDGE
24/5/2006.
