19710921 TZHC Mwanza

c;4;77 IN TEE HIGH COURT OF TANZANIA AT MWANZA Appellate Jurisdiction (PC) CIVILAPPIEAL NO.20. OF 1971 (From the decision of the District Court of Bukoba in Civil Appeal No. 254 of 1970 before A.,N. Russeta IEsq.., District Magistrate - Original Civil Case No. 81/70 of Kamachumu primary court). Bi. HAMIDA OMARY . . . . . . . .APPELLANT versus LWEKAZA KILTJNGU . . . . . .. . . . * . . . . . rrc1rf' T'rr r' n.t!,rjjjjj J1J]GMENT EL-KINDY, J. Theappellant, HAMIDA OMARI, unsuccessfully sued the respondent, Lwekaza Kihungu.. She alleged that the respondent overstepped their common boundary and trespassed upon Yh er land. The appellant bKought a shamba from one Ibrahim. She told the trial court that the boundary between her shamba and. that of the respondent was marked by "mihu.mila, milinzi and. reeds", but the respondent uprooted the "milinzi" trees and the "reeds". The sketch plan, which was drawn by the appellate magistrate during the visit to the shamba, showed that there were some "mihumila" trees but these covered the portion which was not the subject matter of dispute in this case., She conten ded that the respondent interfered with the boundary, presumably she meant this took place at the disputed portion of the land. When she was asked by the trial court to produce the purchase agreement to help it to discover the correct boundary of the shamba sold to her by one Ibrahim, she could not produce it as she did, not possess it. She alleged that she had given this document to the respondent. She did not explain why she did that, if at all she, did so. •However, she called two witnesses Simon IBitakaile and .Amina Ramadhani. The former contended that the respondent not only overstepped the boundary, hut ,,he had uprooted the "milinzi" trees, but the latter contended that she did not know the boundary although she was called by the appellant when a dispute arose when the appellant cut down some trees which were claimed by both sides. On the other hand, the respondent contended that he had not committed any of the alleged boundary breaches, and that the boundary between them was a path, and a stump of "Mtengo" tree. This path and the stump of the tree was shown in the sketch plan. His witnesses (Mrisho Athumani, Juma Abdalla and Juma Ibrahim) supported the respondent's evidence. They alleged that they witnessed when land was allocated to the respondent way back in 1937. 4 ...2 On this evidence, the trial court held that the appellan failed to prove where the boundary was and therefore she did not show that the appellant had overstepped and trespassed on to her land. With respect, I would agree that the burden of proof was on her to satisfy the lower courts, on prepondarance of probability, that the respondent had crossed the boundary. She could only successfully do so if she could satisfy the trial court where her boundary was. I would respectfully agree that the appellant did not lead adequate evidence in this respect. She alleged, in her memorandum of appeal, that she wanted to call in further evidence by calling witnesses on appea.. at the district court and .that she was not permitted. She prayed that she should be permitted to do so at this stages The record showed that she did not make such an application to the district court when her appeal was heard. The record simply showed that she was permitted to produce •a copy of j'iclg- ment. Therefore, I am unable to accept her contention of being denied opportunity of adducing further evidence. She did not g ive a sufficient cause for allowing her to adduce further evidence. She had opportunity to call these witnesses at the trial, and it is not understood why she did not do so then. I cannot either grant her her application as there is no good cause for having further evidence on the matter. Like the lower courts, I have to go by the evidence on record. She contended that the. judgment of the lower court of Kamachumu Civil Appeal 60/1962 supported her claim. I have perused this judgment, which was produced in court and, like the appellate court, I am satisfied that it did not relate to the portion of the shamba now in dispute. Therefore, this judgment did not support her claim to the disputed portion of the shamba. She also contended that the judgment in favour of the respondent was erroneous in that the respondent did not sho; the traditional marks of the boundary and that according to their customary law a path br a stump of a tree or a stone was not recognised as marks for a boundary. And I agree fith her. But with respect, this did not aid her claim and is based on a middirected burden of proof. It was not for the respon- dent to show where the boundary was, but it was for her to do so.. She was a newcomer to the area by virtue of purchase of land from Ibrahim.. It was for her to show where the boundary was. The respondent has been in occupation of the disputed land, and he had grown some permanent and temporary plants. She was trying to dislodge him, and she admitted that the plants were grovm by 1 the respondent. Therefore, it was for her to prove thahe portion belonged to her. As a result, I find the appellant caimot succeed in this appeal and that I the judgment of the lower courts were fully supported by the evidence. The appeal is dismissed. As neither party appared at the hear±ng of this appeal, I will make no order as to Delivered on the 21st of September, 1971- fl7f/1 1 (Z. N. El-K ndy) JUDGE. 21/9/71.