20011208 TZHC Arusha

rl;J(r:1-: .. ·~· .. IN TIIE i!IGH COU~T OF TliliZJi.NIA AT Ai1UJHA CIVIL APPEAL NO., 21 OF ·2000 • ( Ori:j..nal !Ibulu District Court Civil Case No. r; /1r:;c;.7) • ALEX.. DOGLA;; AP?ELLAHT Versus BunA 1muro ,f. • • •• 0 •• 0 •• * JUDGH~NT: This appeal arises out of a dispute over the· oimersltl.:J of a ¾ acre parcel of land situatec: at Jobaji Villa;~e Mang 1 ola l.farrl of Karatu District in A.1."llsha ::te(P.on betueen_ the parties herein•. _ It 1·1as the Appellant who referred the suit to the iH:.ulu District Court seeking to be declared the absolute aimer of the disputed parcel of land or the· suit land. He lost. the suit and hence this appeal. -' Before the trial !)istrict Court, the; Appellant testified that t_he suit land was his proper·~y as he \•Jas given the same by his raaternal gram.father 1 one Ilitandu ltahanza. in 196G v1hen he (Ap;1ellant) Nas only three· years old. The :::;uit, lancl re11a3.ned in the possession of his mother Elifa Kitam.u i,,bo, testified as P1'! 2, from 1968 until 1:-ihen he became of. a 6 e in 1981 \·1hen he completed his 'primary euucation when he took possession of it,. ~t -via.s the evidence of the· Appell_ant 'Defore -tlhe trial District Coµrt. that uuring Operation Viji~·ji in 1975 the·. suit_ .land; was given to PU 2 El.:l.fa, as his (Ap1:iellant 1 ~) fathe1~ _l'J_as in Arus~. From his own evidence it is .clear. that· the· appellant

meant Joui)..as Nl~.nge, his step father ,-iho : ~ot, married to PH 2 El..ifa in 1973. I am saying so advisedly because after so testifyin.8 he. ;µn.rnediately ado.eci. that: ·,. 11 I have ev:i.c:ence ti:'>-4:t Douc;.1.as· ·1,Jas··at· Arusha therefore he coulcl not b2 .j.ven that :piece of land". I should point out at thi~ juncturer hm·iever 7 that the a:0pellant I s mother was very a.mbivc¼en\:. ::)n this allenation, In her e-Ji<lence she demurrely stat.eel tl}at: a a C •• /2 • ,, 11 2 11 :Uurine 1975 tl1e oper&tion found me on tliat fai~inn • · ·. If she had been allocatecl the suit land.. duri.r1;t5 Operation Vi,jiji as alle[:;ed by the api)elluht;· · she definetily could not have failed. to so .. • ,: testify in plain lan2;ua 0e. . ··- ·- .. to work as a 11 misdon2ryn and left the suit land. under· the care of his mother and it was in the same year -~t§.t l~s grandfathert Kitandu, died. Accordini::, to the cviden&e of the Appellant after the death and hlrial of his step-father Dou;;tan in January 1 1994 he retu.rne:.l to Jo~§ij_;i ....-. Villac;e only to learn that the suit land had been sold.. I-le then found the aesponclent~ Bura Klrufo., Norking on the suit land. 7 who on being ., questioned t61tl him that lie had bought the same from lri.::. father (Dou[;l.as). Be went home to croso--check 1,;ith his family members incluµinG _PN' 2 Elifa and i-Jas assured by tl1er.1

that they 1vere unaware ·of the a1leced sale. However 1 when he made inquiries at the vD.la.:-:;e office he, wa::; told that the suit land had. inc1.eecl been sold by his father. to the :1.es;,ondent and • •••:.;, .: I •· • .I. that his whole f&:nilY: PH 2 inclusive, . part~c~pateo. in the sale. After failing to .resolve the dispute -tlirou;;;l1. the OffiGes of ti"1e ·;r;ird E:cecutti.ve Officer, the Di:.,t1·:'._ct Cornrilissioner and th<:') Police, he c-:.ecided to insti:tute the c:Lvil suit wh..i...ch has g:i ven rise. to, this a::-,:peai~ The Appellant had two uitneu3es,- his· motl1er PF 2 El.ifa and PW 3 Arni &llle. PW 2 test,ified to tlle effect th:J.t the .Ap},ell8nt acquired the suit land, .. . : :. inter vivos from her fa.the1;, in 1968. PJ.t:1ough not cate:-~or:l.cal in her . ·: evi,.9-ence, she :i!:'lpliec:..i~t denie~t havin3 pa,r~i~ipated in the sale of the suit land to the :les;,onclent. PW 3 Sulle uo.s the :!a.rel .Executive Offic.er,_ at OlG.eani at th~ ·t:irrif .. he testified. He tole.;_ the trial Court that l'll.'1en .he w2s the Hard Ex:ecutive Officer ut Dm~8;)-"; the Appellant lodged a complaint to· him to the effect that the :;:,e::;pooclent had tres;,,asseo.- onto hie. fnrm { the suit lanp.). He carried out aome investigations and he came to the conclusion that the suit land 1·1;,.;,; not the one tihich Douglas had. sc,ld to the : . . Respondent, He never

elaborated on thi.s, . all the same :Ln his evidence~ ... . 3 The evidence of the nesj_Jondent ttas to the effec.t that sometime before the sale t1~<1nsact:Lon 1 p:,s 2 EI.ifa t1eY1t to his ho1:1e and told him that :her husband ( 0ou;_;las) vJas in nee0: of h:L11. He hee.J.c0. the call and called. on Dou['.;)_as. - The latter told hi:-,1 that he had j_,:toblems an<J. wanired to sell his farm uh:Lch uas ad.ioinin~~ the Res;?ond.ent I s farn. Hot~ever, Dou[slas hastene0. tc aclc.l that he 11ioulc1. 11 call leaders· to bis home as he t-ias sick". TvJo o.nyr. late:,, the. Il.e.B1)ondont t1as follm:ecl at his home l;w DouJ.].as 's son :JaJ.lace.. On at·rival at :)ou;:;1.as I s home ·the latter informed the n_espoment to ~;o 1·1ith ":fallace to 1:le shmm the boundcries of the land he (Dou,;Las) \~antec.:. to cell. That was done and. the seJJ_in:.:; and purcha- sing price was a;J.,eec1 u: ,on. On the day the sale a.[9'.'eemcnt ~Jas entered into the t-:ife an.i. cli:Llc.lren of DoueJ_as ;-iere present, Also :rresent as t-vitnesses were DvI 2 :Lamad.hani. Ilinf$u who was the Chairr,1o.i1 of the Village Govern.-i1ent from 1)'87 to 1?98, and DW 3 Samuel Tl.a.a. . The ~es~1ondent specifically tole} tl~e, tri.:il Court that he only chose DU J as hie witness because he \·Jas the: pastor of Doue,las I church., According to the ;.~GS)Ond.cnt aftei' the signing of the sale a{;r'eement \.Jhen

the seller, the purchaser- and ' the witnesses were in i'uli contrdl. of their mental faculties, he paid the 9urchase price ('i'sl1s. 200tOOO/=). The money was countet~ u;/ the Ghairman (DW 2) trvho then hruitle--: the sa.11e to Douf).as \'Jho in turn ~.'.l.ve it to his wife PW 2 Elifa, The Respoment t>Jas born out on all t]d.G l,y both Dt1 2. Kini::U-•D.nd DW . .3 Sn?-.iucl .TlaD.,. Indeed both mr 2 and mr 3 :further toid ·the• trial Court that they !{new the suit lam. very well am. tl1c'.l'0 iL ,.,1as the very land :::.iouglas solc1. to the Respondent.. DU 2 Iein.-:q. t1ent -~ven further am unequivocally told the t1,iaJ.. Court toot the ou.i·:.:. lMd 1-Jas ~J,.n~t of a 45 - acre parcel of lani originally belon;,in,~ to -the Appellant I s g,:>andfather nW,.ch :-arcel of land, howeverj \'JOS re-al.loco.tee=. to various -villagers durinc o)enrt.:.on Vi,jijti.•. rn·r 2 f.ient further an..1. testifie.:; that the suit land 1w.s :.'.art of the two - acres· out of the so.i<l 45 acres, whi.cl:. uere allocated to ;)ou;_;las during the said Operation.. • He 1-12-::: er.111hatic thut PH 2 Elifa i-ias never aJ.locatecl any land C:urin2, the G;_Jcracion • • After an objectivG ev21uation of the evidence in its entirety and f:ind.~nc the Respol.1llcnt 1 ::i evidence to be co3ent and crccEhle: the learned. . 4 trial. SeniQ.r Jist:cic( lfat~:i.:::;trate arrived at these finclin;::;c of

facts: • ( a) that 'tllo suif ·ian::l ~)rior to Op~~~ation Vijiji Has part of t:1e .45 · acr.es of lartl belon 6;j_n~; to the Appellant I s maternal ;;rancJ.father, ( b) that. tile sa_icl land ,was re-allocated to the Vl"llar,·'">;:.~, ...;;'-'~- v ';,,;~·i nr., "--U..... --..- ll:,. o·-ev-ati" iJ .i.. 011 17 0 rncl ·:,o-- v 1· .J-'1" J1.· 0.. -· LJ_c r,la".::, got two ac;.•es out of the same which he subse- quently ::;oh~ to ·the Respondent; ( c) that the :::;uj_·t, land was ::iart of these 2 acre::; acquirec~ b:· :)oucias G.ur:1-n(; Ope:c ation Vijiji i ( d) that the suit 12nd was the property of Doug)..as at the "cine •it was sold to the Respondent in 1993i (e) that the family of Jou[).as includins his •,:-life ( PH 2) ( e~:ce:c,t the appellant) took part in the sale trar1saction~ and ( f) that Doui:_]_<'\3 tio.s mentally o.k. when he entered into the ::;ale a~~eement. I have car~fully::anci. disppossionately 2,one thr.ou;)1 the entire evidence . • ac1.d.l).qecl )Jy both sides at the t:cial Court as lJell as the . ,.r. :·._. ·-. • ,._.,' . ~· . - . ·- ·, jud@Tlent o.f .the trial Coui,,t. t; ('.I :, \. '~ .· ~ I have also ;3onP~; throue:;h the w:citten submi:::;sions of the i(:-pellant and l''.ir • .Sang 1 ka 1 learned counGel for the -...:.!.'" Re s_j_Jondent -... . ' in this appeal.. I am fully sqti:~fied that the trial District Ma 6istrate 1:a2 perfectly justified. 1

~sine; on the credible and coc;ent evidence of the J.espondent &D(1. his two independent witnesses, to arrive at the2e deci 9i ve findinE,;.s of fae:t• He. couh~ not have held otherwise. I uphold ltl.,s l1~lding th2.t PU '.2 El.ifa was awa:ce of the sale trar1saction but l::ein;~ qie mother ·- of tl~e Ai_:;p~J.ant . ... ( anc:, the1~efore a .. ., \ witness with he1~ mm interests to serve 1 ) s_h,~. had to 6.017:y_ the. sa'11e in an evasive manner to save the interests of her son. That PH 2 could .• not be relied on as a truthful witness is also dcmonstrat.e(l by this _ naked fact. She blatc;..ntly lied on the date.of. death of h9.r busband •. Accordine; to her Jou;_::;)..as fell ill in Au2,ust, ;I-99; anl subsequently died in December} 1~93.. -;1owever 1 accorcl.in;:,, to Pl'J 1; Ale;{ Douglas died on 10/1/1994 and at tho I~.c.H.C. hospital and not as his home as PH 2 •. •. •/5 5 impliedly testified. Mo1~eove:r, aC:_corcli.ng to the undisputed\ evidence on record the sale of the suit land took piace on 24/12/1r:;93. Since PH 2 never testified. that she was ever allocated an;y land during Operation V:ijfji _iet. alone the suit land; I hbld it as an esi:,ablished .. · z_ . : . fact that the suit. lane: l1hich thE3 AJ)pellaht claimed to have .been allocated to Pt1 2 was infact allocated, to Dou;;J..as ( who 1.zy- then hac-:. already married. PU 2) as was truthfully testified to by

DU 2 Kinr,u • . Hhatever customary lmi .ri£:,hts which Kitandu and his successors mit;ht have had over the [;aid land were extintuisheclt unceremoniou:-JlY though 1 by operation vij~ji 1 the ).-~1pellant should be reminded and sl1ould accept this fact. !n view of this, I find no merit in the .Appellant. 1 s com:)laint in @"ound nu.111ber one of ld.s memorandum of appeal which is seekin0 to fault the learned trial i.Jistrict Magistrate in failinr; to hol0. that the vendor of the suit land had no property in the suit land to pass to . the Respondent a3 the Glli11G belonc;ec.l to the Appellant. One s:1ould be excused to ask this question: how coul~l the suit land be said to be the property of the Appellant v;l1en by his mm account the same mi.s 11 allocated. 11 to his mother during 0:_Je;_~o.tion Vijiji_? This well cove1qs ;;;.~ound nu.mber three of ar,real as 1r1e11. I eq.ially find no merit in ground of appeal number twq., The courts have consistently helc.l 1 as richtJ..y pointed out by Hr. Sru1;::;•ka, that the question of admissi'oility of an unstamped document cannot be :taised on appeal but at tl1e • t;:·::_aJ..: ,See B. JE::3-IIAH V.3. LUKmIAY [i_s:95J T.L.R.

122. In sr-ound of a:;_);1eal .11Umber four the Appellant is soold.n,:_; this Cmurt to fa.ult the learnec~ trial 1-Iaj,istrate in hol.:i.in5 that the suit land was the property of ::ioui_).. o.s Hkande while there was evidence on record to the effect that 11 even o.fter operation Vijiji the s?.mc Has reallocated to him (Appellant) t: $ I have failed to trace that evidence on record. Furthermore this a:::sortion is wholly irreconcilable with his 8vidence at the trial to the. effoc.t that the suit land was allocated to ?U 2 ... f ./6 6 / ELifa durin2; that Operation. The fact that PU 2. El.ifa was present at the signin[s of the sale agreement and that she .actively .participated in the sale by accepting the purchase price vJitl-:out mw protest was a1.JUnd.antly 1;rovecl' by DW 1, ·~ ,. DW 2 and DW 3. Furtheriqore the fact that she told "pif 3 that the land sold by Douglas~to tho Respondent was not the one beinG contested by the parties put it beyori.d an3r doubt that the Respondent bought land from Douglas before the latter's death am. that PW 2 was aware of this. Tl:1c1.t the said land uas the suit land was established beyond any reasonable doubts by the coc;ent evidence of DW 2 and DW 3 .1-1ho kaew '. the same very well and . had seen ou_~as occupying it. ,,4!3 eai"lY as the days of Operation TJijiji, I .accordingly . ; dismiss grounds of appeal number five and s:iz as lackin6 any ,substance i·1orth any serious consideration. All said, this &)Jpeal in its entirety with costs".'' E.M.K. I:lUTAKANGWA

JUDGE 8/12/2001 I hereby certify this i:,o be a true copy of the original• Al1USI-IA :aum/vm. _j