Tati Land Board (TLB) recently lost a land dispute case against Angelina Sebonge, a farmer from Mowana village in the North East District. The case was before Francistown High Court Judge Barnabas Nyamadzabo.
The judgment concerns an appeal made by Sebonge over the decision of the Land Tribunal in granting an enforcement order against her.
Tati Land Board is cited as first respondent, while Emily Kachana, one of its clients, is cited as second respondent.
The enforcement order confirmed an earlier decision made by Tati Land Board for the appellant (Sebonge) to vacate the second respondent (Kachana)’s poultry plot by removing the fence she had erected around it to give Kachana undisturbed vacant possession within six weeks from the date of judgment of the Land Tribunal.
In addition to this relief Tati Land Board was to issue a new certificate of Customary Land Grant to the appellant clearly depicting the new measurements excluding the portion which had been carved to the second respondent (Kachana)
As a background to the dispute, Sebonge had on the May 2, 1998 been allocated a ploughing field at Mowana village by Tati Land Board. According to the appellant, sometime in 1998 the second Kachana lodged an application with Tati Land Board for a plot to conduct a poultry business.
Tati Land Board contended on the other hand that after the Sebonge was allocated the field in question she decided to donate a portion of the field to Kachana and her husband to carry out their poultry business.
Kachana’s husband is also Sebonge’s brother.
However, according to Tati Land Board submissions, it is after the donation that Kachana approached it seeking the transfer of the donated portion into her names and the board acceded.
On the other hand, the Sebonge contested such a move.
Tati Land Board attributed Sebonge’s change of heart on an apparent soured relationship between the two. Sebonge had fenced the entire field encompassing Kachana’s poultry plot.
The issue that was to be determined by the High Court was whether there was a donation agreement, whether it was as a matter of fact entered into by the parties and whether there is any cogent evidence signifying such agreement.
Delivering judgment, Justice Nyamadzabo said that the Land Tribunal was quite aware in its judgment that the dispute before it revolved around the nature of the agreement alleged to have been entered into in respect of the portion of the Sebonge’s field which subsequently led to the Kachana seeking registration in her names.
“It is in the treatment of the evidence adduced in proof of such an agreement that the Land Tribunal fell into error. The same error had also been committed by the first respondent when the dispute first came before it.
“To start with, no clear evidence was adduced by the second respondent and her husband regarding the donation agreement entered into with the Appellant,” the judge said.
The judge also took issue with the fact that both Tati Land Board and the Land Tribunal seem to have taken their decisions on an undated letter by Kachana’s husband. The letter reads: “I Mr G.B Kachana agree with Mrs T Kachana’s application to conduct a poultry business”
Justice Nyamadzabo said that the problem with the letter is that it does not say anything about the purported donation agreement. He also said in part of his judgment that from the evidence it is not clear whether the second respondent’s husband was in any joint ownership of the field with his sister (Appellant) in which case he would have been able to alienate a portion of that plot.
“The fact that there were misunderstandings between the second respondent on one side and the appellant and her brother on the other, subsequently does not detract from or negate the original agreement as having been only a “temporary use” agreement, said Nyamadzabo
“The result is that the appellant appeal is upheld with costs as the first respondent (Tati Land Board) were not justified in issuing and confirming the enforcement order against the appellant. The appellant’s appeal succeeds with costs,” he said coin conclusion.
Sebengo was represented by attorney Tshekiso Tshekiso while Ms W. Nyeku represented Tati Land Board.