NA TZHC Dar es Salaam22

.. .. IN THE HIGH COURT OF TAN~A.1"\J'I:A 1 .. (DAR iE.8 SA.LA.AM DIS'l'RICT l~GISTRY) AT DAR .SS SALAAM \.. (PC) CIVIL APPEAL NO. 11,2 OF 1995 I' AZiiA Si:IZMANl O I) O o O • 0 0 ,g, 0 o O O O • 0 O o O O o O O O • 0 •O O O o O e APPELLANT

VEHSUS JUMA BAK/JU (1 Q O O O O O O O • (I to O O O O O O O O O O •• Q rl O • ~ 0 I~ 0 0 0 " 0 RCSPONDENT .

JUDGMENT ' CHIPE:TA , J. : In Kisarawe Primary Court at Mwarusembe, th~ appellant, Azisa Selemani, successfully sued the.present respohdent,. Juma·Bakari., t I I ... • -. • for recovery of , ~ . a piece of la"ld.~ The~re.spondent,•,:however, success- fully appealed to ~<isarai.-ie District Court. Dissatisfied with the decision of the District Court, the appellant fil~d this appeal through her learned advocate, Dr. N. Ndi ti. I The appellant I s evidenc0 was that her late f~tl1er boutht the disputed piece of lar1d before 1974 from one HamisjJ.I Maghandi, the i ?ather .of one Yahya Ha1nisi Maghandi (P.W.2), a fac't which was 1confirmed by P.W.2 and by one Hamadhani Hassani Di~emela (P.1-J.3). In 1980, the appellant's father died, and so the appellant and her mother took over the piece of land. Shortly after the death of the appellant's father, the appellant 0 s mother was afflicted by some disease of the eyes and so had to 1;0 some other places to look for treatment. ,As the appelle.nt was still. young, her moth~r entrusted the piece of land to one .... , 2 Juma Sultani Nzeru, (PW .4). In about the same yeD.r or som,Jtime later, the respondent entered upon that piece of land and started cultiyating it. From 1982 onwards, P .w .I+ continually and clearly told the r.:spondent to stop cultivating thnt piece of land as it belonged to the appellant's family •. But the respondent

persistently ignored P.W.4 1 s pleas. It was then that the appell=m.t filed the suit on be:.,alf l of her mother. I In his defence, the r~spondent testified that when he arrived in the area in 1980, he started looking for a piece of land to cultivat~, and.one Selemani Ifoghandi (D.~J.2) gave him the piece of land in dispute. It was a bush, and the respondent cleared some five acres a11d planted perennial crops therein. It was not until in the year 1994 that the appellant laid claim to the disputed piece of land. D.W.2 testified that the piece of land had belonged to him and he gave it to the respondent. In cro.-as-exainination, however, D.W.2 conceded that the appellant's father owned.a shamba there - i which was given to the appellant's father by one Dimemelao The trial court believed the appellant and her three witnesses to be truthful and rejected the evidence of the respondent and his witness o It accordingly unanimously held that the piece of larid in dispute belonged to the appellant. On appeal to th8 District Court, the Distric1; Court took .the view that the trial court di<.l not properly assess the credibility of the witnesses, that there was no direct evidence, an~ that the respondent had occupied the piece of land for fourteen yearso On that basis, the District Court allowed the respondent's appealo During the hearing of this appeali Dro Nditi submitted that the first appellate court erred in reversing the find.ings of fact of thr::i trial court which were based on the credibility of the c........ii,- 3 - witnesses in the absence of any misdirection or unraasonableness in the trial court 0 s findingso For this submis~ion, learned t ! l counsel relied on the case of Ibrahim Ahmed v. "Halima Guleti,,_ (1968) H.C.D. n.

76. With regard to prescription, learned counsel submitted that ' i • 1 I on the evidence, the respondent was a trespasser and was so told by P.w.4, and so he could not claim ownership of the piece of land by prescription. 1 I think that it is well settled that when the question arises f which witness is to be believed rather than another, and that question turns upon manner and demeanor, the first appellate court always is, and nrust be, guided by the impression made on the trial judge who saw the witnesses. In other words, a first appellate - court should not interfere with findings of fact of a trial court based on the credibility of witnesses unless it is shown that the trial court has ~isinterpretted the evidence and that it has plainly gone wrong. (See Pandya v.R., (1957) E.Ao 336; Sykes v. A.G., 2 T.L.Ro 143; and Ibrahim Ahmed v. Halima Guleti, (1968) H.C.D. no 76)0 In th.~ insta..'1t case, the appellant called four witnesses. One of these was a son of the person who sold the piece of land to the appellant's father; the other was a person whose sha.mba is near the piece of land in dispute; and the third was the person to whom the appellnnt 0 s mother had entrusted the piece of lando By contrast, l '!' \. / the defence consisted of the respondent himself and D.W .2. did not sa:y how he came to own that piece of land, nor for what consideration he ga'1e it to the

respondent. That is not <:Ill: D.~·J o2 this witness conceded that the appellant 1 s father had a shamba there which was given to the appellant's father by one Dimemela. On balance, therefore, the appellant's evidence was clectrly fax more preponderant than the respondent's evidence, particularly havin2'S regard to the fact that the appellant's Hitnesses were not challenged on all material points by the respondent. 4 After perusing the judgment of the trial court, I have seen t. - no unreasonableness in its findings of fact on the' evidence on record nor a:ny misdirection. I, therefore, respectfully agree with learned counsel for the appellant that the.: first appellate court clearly erred in reversing the findings of fact of the trial courto I now turn to the question of prescription. As I understand the position, the basis of prescription is that if long enjoyment of a right is established, the court will strive to uphold the right ' by presuming that the person in long possession had a lawful origin. But it is not enough to show long enjoyment alone. It must also be established that such person es long user was 11 as of right•·.. In other words, a person cJ!lilot claim own~rship of a piece of land by prescription unless he establishes that he has used' the right as if he were entitled to it. Thus 1 if he has used coercion, or if his possession of the piece of land is

contentious in the sense that the original owner continually and unmistakably protests against such possession or use, the possessor cannot claim ownership by prescription. He is in the position of trespassero In the instant case, there is the clear and unchallenged evidence of F .w .4 1 · to whom -the piece of land was entrusted, that P .\rJ o4, had continually and unmistakably been telling the respondent since 1982 to desist from occupying or using the piece of land because it belonged to the appellant. But the respondent ignored the pleas all those years. So, the respondent 0 s continued possession or occupation of the piece of land was contentious and/or through his coercion., He cannot, therefore, rely on the principlG of prescription. For these reasons, I hereby allow this appeal. The decision of the District Court i& accordingly set aside and that of the trial court restored with costs to the appellant.

JUDGE