20030408 TZHC Bukoba1

IN TH::.: HIGH <;OTJJ1T OF 'l1ANZANIA AT BUKOBA ~~~ .... -,;:, (PC) CIYIL APP-SAL NO. 138 OF 1995 (From the decision of the Distriet Court of Huleba District at Muleba in Civil Appeal Noo 1+3 of 1995 and original civil case 110 18 of 1994 .. Kashesha Primaty Court., Before: \-Jo M2.shauri, Esq. DM). i)EOG:Rt~TIA.S DONIPI·IACE 000000000000•0000•• APH2LAl'l'I' WILLIAM ANS:SJ.,JMI oooc,oocoooo•oocooooocio• RESPONDENT JUDGMTf:NT a ....._ .. ..__.._......,....,,._ The appellant, Dcogratfa.s Doniphaees had sued the respondent1 . . . . . . . , . . . . . , _ .....,_,,_ ______ .:-_a._.; ........ ..- ~ William Angelimi, in the prim:=iry Court of Kash;:.sha in Muleba District, ..-:. .. ............. : .... -_ ,,,...,.--....-~~ for a piece of land valued at Shs 100~000/:,~. Deogratias alleged that he had bought that piE:ce of land from an old man called ivJufundi Kamn.kambi. At the time of the ease Mufunci Ka_rnakanbi had already died. The appellant produced docum,,,nts of sale and the primary Court exai-nined them and found them to be correct., Thc-,y entered judgment for the appellant. 'I'he respondent then e.ppealed to the District •and here he hc1.s. won the case. Appellant, Deogratias, now appee.ls to this Court. He asks me to restore the judgment of th0 primary Cou:~to The main issue in the primary, Court, as I see, was whether the piece of land sold to the appellant by the late Mufundi Kamekarr.bi was a clan land or not., It wa.s a question of fa.ct. A lot of witnesses testified, on behalf Af the appellant, to show that the piece of land was not a clan la:ad. One among the witnesses, \,as the late i'1ufundi I s wife, one Clezensj_a Ka:nagirija Pi·i2.. Ma1w other witnesses were there, including a neir;hbour, Vedas to Ge.spar PW+. At the end of the day, the trial Court unanimously became of the decision that the shamb1:1. sold was not e. clan :Shamba., Rather; it had belonged to the old man exclusively., And, tha.t is why, according to Vedasto PW4, the old man had to divide the le.nd into three portions. 2 One portion was sold to r:. p:·::cson cfl.lJ.ed Benado P1rnlo.. The second portion was sold to the appellant and th,:: thL·d portion was given to his wife. It was said that, actually, the clan land was at a pl~eG --- caJ.Ld. Ijurnbi• Aftf1r reading thn :,,-_:_d ... nce unfurled at the primr:iry Court, the holding of the fact t1wt this piece of laJ1d was not a c1.<>...n land was correct .. One can also notice how free and relaxed. the old man was in disposing of his shc111ba. It, indeed, hnd belon.sed to h:i.m exclusively.. The prii;10ry Court judgment vras correct. After a.11, wh.~t is a cJP.m l.:=md·? Mwc.>.luGiinya J answers that in the case of ,Tibu ,S2.kilu v Petro Mi:mbi /19937 'r.L.R. - ~ - • • - - - - , . ~,,4·•.....,,_•™•----- Tl - - P 75, It is: ;;land which has been inherited successfully without interruption from great grandfathers or from a ?randfather by membel'"s of the sa'lle clan'" There is no evidence on record to suggest the,t the piece of la..--id the appellc.nt bought WBS cJ..J.n land. The appeal is allowed. The primary __Qgµ:r-t judgment is restored. The app0al iG allowed ,.Ji th costs. JUDGE 8th April c003 •. Appellant: ·present. ·-"'-~--.--·-.~ Respondent: absent. r: 1 (