19751210 TZHC Arusha

- • .: :N: THE HIGH. COURO TANZANIA AT ARUSHA (PC) CIVIL APPEAL NO 153 OF 1973 (Frm the decLsion of che Distrct Court of Lsh'to u at Lushto in Civil Appeal N 52 of 1973) J-.BDALLAF S/a IDDI ------------------------- ZPPELLaNT (Oriqiaol Plaintiff) versus ------------ DEFENANT SALIM 3/0 KILVA --------- ----- ----- J U D G F M .E N T Nyalali, Ag0 J. . This is a ec-.nd appeal by.AbdalJ.ah Iddi from the juqgement of the prim..ry Court of Lushtc district at Mtee in respect of a suit he filed against the Respondent Salim Kilua for recovery of possession of a piece of land0 His suit was dismissed by the primary Court and he appealed to the District Court of Lushoto district which dismissed the appeal in its entirety0 He was not satisfied by the decision of the District Court hence this appeal 0 The District Cour.t dismissed the appeal mainly on two grounds. Firstly, it held that the suit was res judicta since w's the same case as another one previoUsly decided by the primary court in Civil Case No. 74 of 1972. 'And cecondly because the evidence adduced at the trial supported the Resoondet's case In his petiticn to this Court, the Appellant submits that the present case is different fr m the previous oae0 I have examined the proceedings in the two cases, and I am h.. urid to agree with the Appellant on this point that the two cases are not the same, firstly because in therfirst case,

the parties were one Iddi Mshuza (the father of the Appellant) on.: one side, and the Respondent.on the other side0 The. parties in the present case are the Appellant on one side and the Respondent on the ether. Secondly, the subject matter in the first case was damages in tespec.t of trues allegedly cut by the Respondent, whereas in th present case the subject, matri.is possession of lafld. So the District Court was wrong in holding th:it the present suit is res judiceta. As to the weight of evid:nce, I thinkLtbe District Court ws right in holding that the evidence clearly supported Respondent's case. With the exception of Athuman! Likuta, the neighbours who hold land adjoining the one which is in dispute supported Respondent claim.0 These are Bakari s/c Kirua and Musa) Maicamula. Apart from Athumani Lkuta, the only cher person who claims to hold land in the neighbourhood who was called by Appeallant is one Hemedi 5/0 Balcari, but undercross examination this witness admitted that he.was the:scn cf 3akari s/o Kirua (the one who gave evidence in support of Respondent). The evidence of Hemedi Sb Bakari has little weight since from his own evidence ar the sketch plan, it appears that he does not own any land in the eighhourheod apart from the land belonging to his father who gave evidence in support of the Respondent. Thus on a balenqe of probahi1ities,..th AppeUant failed

to establish his. claimagoinst rthoR,cs-pcfldt nd I hereby dismiss this appeaL. Since both portias pressd a wish not to appear and did not infact epp;aar.. foc .,tMe,, this appeal, I will make no order.. apayfnent of the cos.cfth appeai but in order to save the parUas from tho inVovanience and expanse of travelling to Arusha to take juJgement ; I . h:;rhrdirec't th.t this case be delivered to the .patios.by.. th ....itct .Mgistrpte of Lushoto District Court whcY shuld he supoorted.- with a copy of judgdment for that purpose. . tRUSHA 10/12/75 - - FLYALJLI, AG. J.. /Kimathi '... . .... - .- ... ..,. ., . . i_• . . . . : - . . ................ ... ........ im