19991215 TZHC Dar es Salaam

./tB/lNi'/ IN THE HIGH COURT OF TANZANIA /lie--~ DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM PC. CIVIL APPEAL N0.49 OF 1997 ANNA SHIJA •••••••••·• APPELLANT 'VERSUS ALFRED ANDREA ........ RESPONDENT J U D G ME N T BUBESHI 1 J: This is an ·appeal filed by the appellant against the decision of the first appellant court whereby the trial courts finding were upheld. Both parties are represented.by counsel; Mr~ Shayo learned counsel has appeared for the appellant, while the respondent has engaged the services o:f Mr. Tas~ima., learned advoca t?.: .-' The petition of app,~a,i contain twc grounds; summarised, the complaint·· ls that the first appellate court's did,not properly evaluate the evidence adduced in ccurt, hence corning to an imprcper conclusion. The facts of this appeal are simple. The appellant and the respondent share.a.common boundary partioning their two farms. The respondent has claimed to be the first to o'lfm his piece of la,:id frpm J.989:.• That he bought the same from the late Mwimenzi. That after the sale was completed,. he was· shmm the boundaries. That when in 1996 he went to inspect hi.s land, he discovered that the appellant had encroached into his land and the-new·boundary has dePriveq him of some 17 paees of land. The appellant on her part has denied trespassing . ' into . the respondents . ' land. Essentually it is a dispute concerning boundaries between the two pieces of land. The trial court found for th:e re~'pondent·. f Mr. Shayo for the appellant has.critisized.: the Di-str_ict l'-1agistrate fer her failure to . properly evaluate the. evidence a fresh. He prayed for this co1,1rt t9 re evaluate the.evidenoe a frGsh • • . . . /2 2 There is only one issue in this appeal, nam2ly, what is the boundary in view of the shifting river betv,reen the two plots of land" Ac~ording to the respondent, he testified t:1at the boundaries he was shown included michongorna on the western and northern side, and a perment ,3tream on ,che eastern side 8 He also stated that due to irregular farming there is a.t times a shift:::..ng strcamn The respondent stated that the boundary he lenows i:s that p[-)rmanent stream and not the shifting steam. This evidence was given support by SM 2 Ramadhani Mwinyamenzit SM 3 John Nchinga As for the appellant, she also claimed to the ha~,:-c bought / .piece of land in 1988. According to her, there is a. stream runx1ing from the north south wards e She acknowledges that there is a permanent strea11 rl::.lming from the north dm,mwards. The trial court visited the locus in quo an~ established that the area in dispute belongs to the responderit - and ·chat it measures some 17 paces (hatua). The trial court found that although the permanent st'rei3-m 1 changed 1 course, there was still a coconut palm which indicated where the boundary was and which it was claimed belonged to the respondent .. On there reasons I am satisfied that the 'trial court properly directed itself on the evidence on record. The appellant's own witness SU Bakari Ally testified in court that the appellant had encroached onto the respondents land. In sum, I find that the appeal filed lacks merit and therefore dismiss it with costs, both in this court and in the courts below. ~ ,· '· __ JJ / f. ) I " , l I __J~ i.•{,,_::)_; \)(.lY--; Y\. Delivered in A.G. BUBESHI I - absence of Parties JUDGE though duly served. 15/12/99 r I I (