19880418 TZHC Mbeya

CCpT b A \ ( lIT THE }GH COURT OF TANZANIA AT MBYA (pa) CIVIL APP:L NO e 2/81 (From the decision of B/Court of Tuk,ru Civil Appeal No 0 19/80 OrI ICaridote Primary Cou Civil Case No.. 215/79 AFIMG YO1'0U9 JUflT - By this ci000iid appeal, the appollcnt one AFIllG] s/a 11 1 13ANJE1 challenges the decision of the lower appollato court at Tuku.yu 7 whereby his appeal against the decision of Mandate Primary Coixt, was dismissed0 The only oentraj. isuo before both the lower court and. thi. dOu1 is whóther in the sal of trees by the Responaoift to the Appellant which was, on 18/12/1975, reduced into writing, the Respondent sold all the tees thn stan ia on his land as olaimoa by the appcllat, or sold only 0 trees as has bo.ni contondod by the Respondent. By 1e record of the lower trial court the following facts stand out olerly 'udisputod. On 18/12/1975, the Respondent sold and the Appellant purchased a number of trees than standing on the Respondent's far/n for 59j, The sale was witnessed. r oie MIJSA .MAIGOMOL (D,.I) on behalf of the Reap 4n1, and one upakisjo t1Wthkajil (P.W. I) on behalf of the appellant. They all visited, and aaw the trees to be so1d Theroaftr they proceeded to the home of the said i'1USt NIIG01401Z who then reduced suqh sale agreement into writing. Such writin was then given to and proscrvQd by the cp9llt It was tnd.ered before the trial court as Exh. I• Such piece of writin' is worded as follows: I8]I2J "Mimi MUS. IITLIGO:.ioL: imcitasama b.FING3E 1Iwacanjc amenunua miti kwa JOHANI lwaibaXijc i52L=. oe pale aioanda. Jous'ro t:'ralipo be bikula imipiki aba Mwasanje na Mwaibanjc Talipo Mwakajila, Joliani,". . . . /2 -2- That means that nter visiting the troos to be sold, in the p,e2en&e of both artics ari llio t•ro witnesses, namely . Nusa Mwaigomole and one Li.pa1cisyo Mwkjila, or the ecjno day, that is, the 18/12/1975, the said 1U3A 1'TAIOCQLE, who had witrioeod the sale for the Respondent r'ecor4ed the aalo thus: LLiJ I-,Las bought tec a from JOBA11I ?LIBAIJ for shs.5O/. He has bought all th4 trees where they Iav boon plI,' Such than aro the oprivo worda of the rocord.ed agreement for the sate of the treoe the subjeoi of this diaput4. rflon shown and called non to i4ntify such piece of writing the Ivii ono 4wa fliiaigomol, adriftt ccl tt he the mthor of such r000r& did not diptto its cotonta. In fact, except that for the Resiondent 4 4t the other evidence waz in all foux'a with the appelints version of th • olaim. Thnu in th light of he wording of such recorded saLe coupled with • the evidence of the appelluit az fully ø'4ppOrted by not oily his witness the P.W.I, one Lupakisyo Miakajila, but also the witness for the iespndnt one Musa 1';4omolo (Dtf.I) there can be no doubt that the Rospom3 444 on I8/I2/975 soil to the ep;ol1rnt, all tz'oes then staiding on US fazn for sh.5 0 ,/v0 I do therefore, allowr this appeal with costs, so1rtirg aside the lor appollato court's decision, Order aorirly. I rc?riorvod my jUotiur ¶;!.lioL2 I now &ve. Dated 18/4/88 R;3;1, At Mboya. JUDGE