19950623 TZHC Dar es Salaam

-- IN TttE HIGH COURT OF TANZANIA ' A! DAR ES SALAAM PC o CIV. AFPEAL ·• NO. 69 OF 1993 ' • f - • &.\ID••••••••••·•••;:f"oJ•,••••fl~;,ee,- AFPELLAN'I' · ELIB.\HIKI MAME.ALI . . . . . . . t; • ••••• ~ •••••• JUDGMENT Mac~ja, J. · . •• The facts are..concise. They are ell oquently set forth in the. learned trial r1iagistratei s swnming up to her asse_ssors ahd 1n th4 ·record of proceeding_~ t11e respondent, who was the ~laint.ti'f a~ the ·. tr¥4, boutsht a parcel of land fr~m a .person called Hadija Mohamed• ;n 19~4: T'hc sale- w·as witnessed .by S~edi Jum~ ( PW .2) who testified ·'.·- • , I - - .. regarp.ing wh:-i.t prompted the sale. He said that ;the land was . to ·· ·" be sold in order to rai,Se m,Jnoy with which Hassan Nuru 1 s motb.er, /· (Bass~n .Nuru '.s iE- pv; &3); the· s~L- Had~ja Moham~d; was to spent, on · ./ · ·transport as ·she returned to her b~ - · -p~ - "~: _ ....., ·T .2 describe~: the 1 · location and thE.. -;__;- -.J.~.~CA,r.:.es of· the .shal'~•.-::i . ;-,_j_ch i..Lie piaintifr. bought . . . . . • Some time later during t~e sai£ie year Hc..ssan Nuru, who ·was ~ot present when the plaintiff bought.:his parc.~l of :i,and from PWt' I • 1 $ mother; sold a .piece of land to ~he defend,rn.\e He did not describe the area he sold to the ·o.ef_endartt., bl, t: -it appears . from the record that 'he sold .to the def endaht- part of -er:": land . • • j ' • • -· which was purci:J.ased ·by the plaintiff." Mbwan~ .s!" ·· ·_ (DW .2) was of no assistance as he was shown an area which was c.1.L realy being . djsputed; he did not witness the sale • \:· . • r ••• In J-:.2r ob: ,:--rvations the learned trial magL:·4:r~_t,-, was of the ··. \itew ~ \ . t.b.r: L ·t. \ ... \ "· L::..l~:.,_:•}i pin, hiyo sel-:.emu ya marehemu :r-:r , :u imeuzwa kwo. rnc~,;,iwa na in\e:uzwa ::1a wat'.. wawil.; Jfauti wote ni 1 . nduguze ,ifl:,_reherr.u. SM.111 anatc·.:. · :. __ .....,,patano ya "-~adij·1 nn 1.,dai kwa vile ~:i ml-:.: 1va m.,reneim.r; lakini .. . .. • t . ' t ... .... 2 anadai hiyo s _, ;__",u ambayo mdai amejenga banda la biashara siyo yakc, ,:1 '-cc:-:::J.na na rnipaka aliyoonyeshwa na Hadija ali_,·,-:muuz~a mdai •• o ,; It is frcm ti-iis testimony tb:1t the: t,:--j :_ court ::_ound for the deffendant:, th~reby dismissing tbe: cl:jir;i 1viL1 :::ostsc In essenc 2 the trial court b:ised its dccisic:1 0~1 l ·12 testimony of PW .3 who cl.id not give di:cect evidence:, He told the · trial court thF:1t he wns shown by this ucther t.rL boundar:~ )f the ·shamba which she hn.d sold tu the pl2.intiff a c1n.y before - It may as wel11 be true-: that PW.3 was shown th br-i· l.L'i>s:· 1-- !-. tl:-1.at 0 does not necessarily a.mount to proof of th(; rigLt b( ~- .::: , . · . 1hich were shown to him. There was need for direct ev:Ldence on the issue. This is the approach the learned appellate District Magistrate adopt(Jd and, having re-assessed tho evidence of PW,2 together ~t:.. th dccuL~ ..,ntary evidcmce which supports the purchase of the suit po..rcol of 1.,nd by the plaintiff, he was of the op.1,._nion t that the p..l.2-inti:i:f had· proved his case on a balance of ,. probabilities., He allowed <1e- appeal and hence this appeal. There ~-,.,o three grounds i;1 the mcrnc:r,1.ndun r;f ap·,- :._,,_ it 1s alleger: that the learned District M:-:sistrate c rrcd delivering juclgr;1ent which didi not embody th,'" nee·· -.- -,- C'r)ntents of a judgment as required by law, in that it did no·;:; contain the Points for determination and the reasons for the decision~ Mr·•. Mwakajinga, learned advocate fnr the appeJ.lant~ did not say anything regnrding this ground. He inste.J.d deol t at ,c,,(' - : length with the quality of evidence in which the issue of credibil~ty · was quetly persued o In any case the first ground of appeal is unfounde_d and misconceived becaus•0 the lc::irnegu~ppellate District Ma:gistrate doliverecl a sufficiently well laid/,1udgment and which contains the reasons for each finding he madee There was~ in fact, no suggesticn in learned counsels submis :· :ms reg,,·-:• 1__ng any ·finding 1::1ic:1 was made with out a reason behind it.. I viould A ~smi· ss thi U,.4', . r., .J. ,,--e,···unr1 h.J 0 - \.,.. .L---l.~ t - Secondly~ ~--t is ,ontended tt.rt t::10 learned District Magistrate did not visit the locus in quo. This ground was not argued. Even if j_ t had been argued, I find nn mer1 4 in it, j :r- as rn:1.ch as the evidence an the facts in issue j_::- ,--:J c,arly set nut as it is the case· here, :r: would dismiss tb~" ft".'o-u.nd as ve_.:., The langu2 7-e used in the third ground of ~:n:)eal :.tacks all quali tiP.s o': s:' 1t:1ct.5-cal grammar., But the message i·'~ c::arries is clear; J.1a1JE~-Y ~b;:,+; thP. learned appellate Distr-ict f.:,3_gistrate erred in :f2.iLi.1.,:.:; tc recall · . ·j_+ '.1esses who testif :_0d 2"-: the trial 1 because the aPl·!ecal con,:;--,rn L::,:,.~d. Mr,, Mv jke_~ :· .:,;;a tastifully, I 1 suppose~ did not p2rsue this 1:;·round 2s wel:, E-L: arg'J_-2s ~ instead, that PW o2 and I·'J .3 testified that th:: si..,::.... t: l was sold to - the appellant thereby establishin.~~ that the sui .· . -J.rce1 of land was sold to the appellant. He cuncluded b:,r sayJn_; ,., 11 There was therefore no need fo:r che c1·~pellant to recall these two \:ti.triesses to estate what they had already_testifi2d on.r I would have und0::nstood Mr. Mv-1akajinga if he was ap;_:>earing for the respondent, because the issue concerning the trial court's fai ture to reco.l:~ witnesses has, in .fact~ been .i"aised by his client. I arJ surprised to hear learned coun_ l say tha+. P1'L2 supports· his client:s cl2im;-. The record of proGeeJ.ings does not bear out that contention,... On the contrary it GUpports tDe respondent's case •. As to PW . 3 I have already indics.ted that his testimony is limited only to v,h0. t his r;iother told him, which evidence does not establish more: than the fact thc.t in-2.eed I ",3 was told . what he all egcd, To a large ext2n-c thJ.·c "\<'-:1.s he:arsay evid.Pnce; it can prove nothing" The appeal has no merit and it is accordingly dismissed with costs here and in the two courts below. Delivered. For Appellant: Absent For Respondent: Absent_~ J.M. Mackanja JUDGE 23/6/1995 •' .I certify that this is a true a:c1.d ~orrect copy of the od.ginal o ···---=-----