19710303 TZHC Mwanza3

HIGH COURT OF TNZNI T MWNZ. ppul1ate \ \ (Pc)oiviL iFPhiL 1 ,10.87 OF 1 97 0 - (From the d.ecihi\on of the District Court of Ukcroorc District at Kabingo lO of 1970- Original Civil Caau 1,10.46 of 1969 of in Civil appeal !To, the Primary Court of Ukara.) BIL.LI MItJND.4. . . . . . . . .PPELLLiL(Original Plaintiff,) versus uju i'ii. \, . .. ,. . . HSPONDLiTT(Original Dofondant.) JUDGMNNT. LL—KINDY 9 Ig.J. Bilali iLaanf is appealing against the decision of the District Court of Ukereuo si\ttin at Kabingo. The decision of the primary court 9 which woo in his favour was set aside, after fuxthr evidence has been tkun by thc appellate court. The diupute boweon the appellant and the rcapondant 9 Suju Masami, is over a of shamba, the exact size of which is not clearly known. It apears that one Mabai Mataba sold throc pieces of shamba, but ii is a\mattor of disputo as to how many of thuso picoes the respondent 'a father\ bought. Lccording to the appellant, thu rcspondont'sfa thur bouht only one piece of shaoba acijacont to the shamba ho bought, while the respondent said that his father bought 2 pieces one when he pid shs.200/— and the other when h paid a hood of cattle. The iecc in\disputc is claimed by both the appellant and the respondent. sim4 (F.w.i), iagcro (P.t.2) and Iviasigo (P. .3) in clear and siroightforwrd evidence said that the shamba in dispute was the property of the a\poflanto Simba denied that the rospondunt'o fa -thcr bought tIis portion\by paying thu purchase prica in one head of cattle. he admitted thot the respondent's father bought only one piece for shs.200/=. himba\claimed that he was in fact the parson who sold this portion to th appellant on behalf of his friond. Mabai, hager (P.h.2) oaid that the defundnt's father bought one plot, the appellant the second and the t!.ird was\ taken by 1asolole ho said that duo to heavy rains in 19i1, the sharbas were submerged by the rising water of the lake. In 1963 the porti4 dried., the owners resumed cultivation thereof. In croas—examinatio, he gavu in detail the history of the 3 plots of shanibo, and the mannr in which they chanod hands. I am not concornecL with tiiese details. u±fico to say hiat prior to the appellant and. no ruspondcnt s\fathar purcnasiny Gnelr plots from Mabai Mataba, the whole land was owna\d by one Masatu. The two Sons of Masatu emigrated to Ukerowu whie the third son remained, and it is this third son who sold them to\Mabai Mataba. To a further question he said that one liatage, who used tec land, was not the owner of the shambo :2: and that Matad cultivated the d isputod shamba when it was owned by the third eoh of Masatu, called Marungu. ipparently it is this shamba which 1a\cr was diviecd and sold in pieces to 3 people, two of them arc now \arties in this case0 Masigc (P.:.3) gave similar evidence to that\i.vcn by th3 above 2 witnesses. His explanation is slightly different0 He said the appellant .ought a plot which was used by Iluuicrc\. The respondent's father boud'ht the :clot oed by orago. W. the tiird plot bought by Masolele was occupied by Magota. But cach ocouent 41y had the usufruct to the land, as ownership remained with abai\ieataba who sold them as he did later. He, too, repeated the :.istory\ of the land in the same manner as Magere (P. .1.2) did In dlis u:efcnco, thc respondent claimed that in 1952 his father bought the siambas frm Mabai Mtaba for shs.200/— and one very big bull". He estimated -the bull would not be worth shs.300/— in present prices0 He said aftcr\ the portions had dried u in 1968, each party began to cultivate his\Portion. He alleged that in 1969, the appellant began to encroach upon his part of the shamba. said the appellant took the matter to cell \leador to settle the dispute, but the appellant in the end did not accept the elders decision and filed this suit0 Mc alleged that the lower part was sold to thorn bUt the other part, which was sold to habai M\taba was reverted to iiarangu, as Mataba did not fulli pay the purcasc price0 On this issue, Simba (.w.i) said that Mataba haul, fully Paid\for this çortion, and that it was in 1969 the last amount was paid. \'natever be the casc there was no evidence to show that in fact the upper part of the disputed land ever reverted to harungu, nor was there aiy evidence showint th&t Marungu over occupied the land after ho sold t Mataba. In cross—examination, the respondent admitted thatiu had seen the appellant use the disputed part of land, by cu1tivation\bcfore but he raised no objection then that the anol1ant was encroaching upon the land. Ho said he could neither ste'e ..im nor move the ourt to isoec injunction against im Further on, he said, that inian Pdcbwo and iasami hawda saw when his father bouht the shamba. J1arungu Masatu (D.h.1), an oldman of 72 years, said that he nnew notii\ing about the shamba in dispute. Me said he only hiicw Mabai 1 'ataba t whom he sold the shambas. He admitted that abai returned a portion of \land, but this was along—side the lake, and this portion was in fact being used by one Babe Mwamba, although he did not permit this ma\1 to use this land. His evidence 1 therefore, did obviously refuse to\support the respondent's claim in respect of the disputed land. Thcr ' aftcr, the respondent failed to attend the trial on the date fixed f\or hoarin'. is the court did not know th whereabouts of tha respondnt, as no information was sent to the court 1 the trial court olood\thc case ±or the defence. The' genilemen asecesors wrc satifiod that the appellant has established his claim ,end entered judgment in his\favour. The learned appellate :3: magistrata the irt that this jucigmont was 'ox parto". With duo rcspuct, it was as th rospondon t had fully takun part in the iio aring t"till thu last day when .0 failod to appoar for undisciosod oo:.cn. On al, the ruspondont allogad that Inc had not boon iven the opportiity to prove his OOSO, and that thc C asu has boon dotcrminod withou ho.aring the uvidonce of his witnuoucs. He alleged that he. arrivud 11u at thu hoarin as he was dalayud whGn he was attcnding a sick ir\cthcr. Thu EppQllatc magistratu, uith the corisont cl thu alIpollailt, I T:1O did xiot objuct (if rio rually i:now that no could object) to aplicoio:1 and thu r:sj - ondont was allowod to produce his witnussus to tostifo boforo him. Suction 17(a) of thu 1agistratos Courts act, Cap.537\:ovidus that thu appellate District Court shall havo power to diroo1 thu primary court to take additional evidanco, or for ruas ns tobo\rocordod in writing, itsalf hoar additional uvidoncu. Th: oJ\iatc court, no doubt, had the requisite power for doing so and avc.\ its ruasons that it was doind -,$or in thu interest of justice. \i do not wish to consider whother this was adoquoto roason fo rc\ccivin additional evidonco, but as I hopo to do, I shall show that n fact thu course taken did injutice to thu appellant's claim. Masami hauida, Masami s/o Masindo and 1.hranga s/c Ndebo, gave uvidonce. Matuda said that the shamba in disputu ucs :ught by Masami Masinde the ppellant's fathur, upon payment of one bull. Howevur, he said that afcr the floods had rocuded and the shambas dried, the respondent cu\tivatod his shamba and the chamba purchased by his father. It nill 14 soon immediately that the respondent did not say anywhrro toad ho iad a snamba separate from the shamba bought by his fathur. .giurc tos \shamba owned by respondent comes from is not clear. for does toic diff\runcu appear to h ye boon considured unywhurc by the aepellatc agistrato Meimda claimed that he was the one who witnessed thu urchso of this shamba by the rcspondcnt's father. On the other hand,\Masindu, thu ruspondunts father said that the portion ho bought was a \bidder portion for which he paid shs.200/ and 1 bull. ifter tie f1ood, ho said he offered this sriarnba to thu rospondont i.e. his son. I-ie\also claimed that when ho wont to give evidence they euro later, and a docison has already been reached. Both thcs!itnessas gave too size\of thu portion in which the respondent extended his shamba. Both said that he went in by 20 souro yards. It will be seen, thorotore, that the appellant's father did not say that he bought 2 portions of the shhmba. Ho said that ho bought a bigger shamba for the price of shs.200\/— and one bull. Itdcbo said the appollan* fathur said that ho b oug1t 2 smbas h - onu for shs.200/ and the othior for one bull. loithi this ovidcno, the appellate magistrate held that - - :4: the evidence o the respondent with that of 3 additional witnesses ucs believabl end e.ccptod it in preference to that of the eppcllant and !s l-ci icsses0 His reasons for disbelieving the appellant's wit\esocs uas because none of them gave the size of the ehernba as if the\ dcendant had don-c so during the trial. If the copollant 's witnsoge ia disbelieved bc-cause they could not ive the enact SiZe of the\ohacii:aa end thi: shomba in dispute 1 cc it appears rom the judgment, the came reason. 7 rith equal force could be advanced cainst acccpting\ the r:spondcliit's 'evidence. - However, ho learned rneistra -te was in fact not better laccd to weigh fai\rlp the credibility of the witneseoc br cach oidc. The appel1aiIo uitnrcsses gave evidence in the Primary Court0 he did not have tno dvantagc of hearing them speak0 lIe simply hoard 3 of the respondenl':\ cidence. oith due respect, as this case depended almost enti1ely on the issue of orodibility of nitnessos, ho could not PossiolP\leo fair to the appellant's witnes'cs. Ho could only be fair if he lIoo \rd both sides0 He could not therefore hold that the rospondent' \iitnesses wore believable. -Iiib due respect, the sketch plan does nt help detcrmine the issue of credibility at all, as the exlanetioil\ivcn by the appellont and etc nitnesses tends to agree with the shotch plan0 and, therefore, whether or not, the appellant or the rcopondnt 's father bought this disputed land from iiabi Mataba is a qucetin of fact involving the credibility of the eortics. The appellant sid that if the appellate court 1 simply permitted him as ;ieJ. 1 to e.11 Mabal Ivetaba, who was not called by - either side, he would have\ refuted the respondent 'a claim0 It scorns tO me odd that i\iatbc uas I\oi called, although insofar as the appellant ucs concerned, Simba ucs a4quote itncss •as he was present when the - appellant bought the 1-hot i disouto0 ifl this i-jay, therefore, the pellant's claim :eJorod appeal0 Taking the evidence as it 1 -ICS recorded, and as I triod\to show the inconsistency in the evidence of the respondent 1 I am satified that there was rio oufficiont reason Per sotting aside the decisio of the Primary Court. I am satisfied that that decision nec still cmd in spite of the additional evidence on appeal0 The decicion of th District Court is accordingly set aside, and the decision of the \Primary Court restored as before. The respondent to pay tile: oPellant\bs costs which should be fixod by the Primary Court after proper investigation has boon cc.:cried out on the actual expenses. -- Delivered on 3rd day of\March, 1971. - •t - i• / \ T2 tT •' \ (z.N. QTQ.