19700428 TZHC Mwanza2
Preponderance of evidence showed the disputed portion did not belong to the appellant; appellant had no right to cross the pathway and plant boundary trees.
Source-derived case information.
- Citation
- 19700428 TZHC Mwanza2
- Parties
- Appellant: Cyprian Mabebo; Respondent: Mrs. Felista Francis
- Court
- TZHC
- Jurisdiction
- Tanzania
- Judgment Date
- 28 April 1970
- Procedural Posture
- Civil Appeal / Final Appellate Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Land Boundary Dispute, Removal of Fence, Ownership Determination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cyprian Mabebo
Appellant
Mrs. Felista Francis
Respondent
Procedural Posture
Civil Appeal / Final Appellate Judgment
Legal Issues
- 1 whether the disputed portion of land belongs to the appellant or respondent
- 2 whether the appellant had the right to cross the pathway and plant boundary trees
Ratio Decidendi
Preponderance of evidence showed the disputed portion did not belong to the appellant; appellant had no right to cross the pathway and plant boundary trees.
Court Disposition
appeal dismissed
Orders
- respondent awarded costs of shs.39/- for this appeal
- respondent awarded assessed costs in lower courts
Full Case Text
Judgment text and source record
1 paragraphs
IN THL HIGH COURT OF TANZANIA (In the District Registry) AT MWANZA. APPELLATE JURISDICTION. (nc) CIVIL APPEAL NO. 33 OF 1970 (From the decision of the District Court of Bukoba District at Bukoba in Civil Appeal No.316 of 1969. Original Civil Case No.93 of 1969 of the Primary Court of Ndwanilo.) CYPRIAN MABEBO. . . . , . . . . . . . . . . APPELLANT (Original Defdndan) vs. MRS. FELISTA FRANCIS. . . . . •. . . . . .RESPONDENT(Original Plaintiff; JUDGMENT. This appeal arises out of a disputed portion of a shamba. It seems that the appellant claims this uisputed portion which is separated from the undisputed part of his shamba by a narrow pathway (eilembo). Th. respondent (Original plaintiff) claims that the disputed portion is part of her shamba which the appellant has attemjted to take over by wrongfully crossing the eilembo and planting boundary trees on a portion of her shamba. She prayed the court for an order for the removal of the fence erected on the bounuary of her shamba. The assessors of the primary court, after viewing the site and hearing the parties and the respondent's witness Kitwaro s/o Itembwe both found for the respondent. However the primary court magistrate differed on the ground that the pathway (eilembo) belongs not to the respondent but to the public anct the disputed portion beyond it does not belong to the respondent. The District Magistrate on appeal visited the site and heard additional evidence, including that of the ten cell leader, Peter Magongo and Kitwaro Itembwe, a neighbour of both parties. All the additional witnesses heard by the district magistrate, including Peter Magongo called by the appellant, found that the land on which the appellant planted the boundary trees was Kitaro's, not the appellant's. Hence the District Court reversed the deci'sibn of the primary court and made the order in favour of the respondent as prayed. It seems that the preponderance of the evidence is that the disputed portion of land is not the appellant's and he had no right to cross the eilembo and plant the boundary trees wherehe did. The appeal is accordingly dismissed. The respondent will have shs.39/- costs of this appeal as well as her assessed costs in the lower courts. Delivered in Court this 28th day of april, 1 970 - (ii.. SnATON.) JUDGi. S