20070906 TZHC Arusha 1

_5c-._ ' . ,,{-:~~~~~-} ,:· IN THE HIGH COURT OF TANZANIA AT ARUSHA PC CIVIL APPEAL NO. 17 OF 2004 (Relating TO Arusha District Court Civil Appeal 2002) ESRAEL NDUMUNA ...............................................................APPELLANT VERSUS SAIBOKU PAYAN ..............................................................RESPONDENT JUDGEMENT R. SHEIKH, J. This is an appeal against the decision ' of the Arusha . . District Court in the exercise of its appellate jurisdiction in Civil Appeal No. 45 of 2002. In Enaboishu Primary Court Civil Case No. 2 of 2002 the respondent herein SAIBOKU PAYAN (the original Plaintiff) \ .had - unsuccessfully sued the appellant herein ESRAEL NDUMUNA (the original defendant) in a claim for recovery of . , 2 a parcel of land/a shamba measuring (1/2) half an acre. The plaintiff had claimed ownership of the land. He claimed that the shamba was given to him by his father and that on 30/03/99 the defendant had trespassed on the land. He said' that prior to the trespass he had been in uninterrupted possession of the land for 30 years. The plaintiff was supported by his witnesses. The defendant on the other hand denied the plaintiff's claim and told the court that the land in dispute is the property of a woman called Simango Pusindawa Ndatwani. He said that in Emaoi Primary Cour_t Civil Case No. 32/91 in which Simango Pusindawa Ndatwani was the plaintiff and the herein respondent/plaintiff was the 2nd defendant Simanga had successfully sued the plaintiff and further that the Emaoi Primary Court had declared the aforesaid Simango Pusindawa Ndatwani the lawful owner of the shamba. According to the defendant the shamba was later entrusted 3 to him as caretaker by 'Simango upon her sustaining an jnjury Which left her disabled. He too was generally supported by his witnesses. The Primary Court considered the evidence lay_ before it and after making a finding that the matter was res judicata decided against the plaintiff/respondent herein whereupon the plaintiff's claim was dismissed with costs. The Primary Court held that neither party had any lawful interest in the shamba and declared Simanga Pusindawa Ndatwani as the lawful owner of the shamba on the basis of the decision in Emaoi Primary Court Civil Case No. 32/91. On appeal the Arusha District Court reversed the decision of the Primary Court, holding that the plaintiff had proved on a balance of probabilities that he is the lawful owner of the suit land, having been given the land by his parents. The appellant is. aggrieved with that decision, hence this appeal. 4 In his Petition of Appeal, the appellant raises three grounds in which the appellant basically complains that the District Court had erred in reversing the decision of the Primary Court and in holding that the respondent is the lawful owner of the land. He further complains th.at the District Court had erred in holding that there was no evidence to support the .finding of res judicata, and in evaluating the evidence. The appeal is strongly resisted by the respondent. In his oral submission Mr. Merinyo learned counsel for the appellant submitted· that the judgment of the Primary Court was not signed by one assessor. He argued that the District Court had erred in determining the appeal on merit after finding that the decision contravened the law, G.N. No 2/1988. On the second ground he submitted that the District Court .had erred in not finding the matter res judicata, in the light of the decision in Emaoi Primary Court 5 Civil Case No. 32/91. He added that the District Court had failed to properly evaluate the evidence before it. On the other hand the respondent has maintained that the decision of the appellate District Court cannot be faulted. I have carefully considered the evidence on record. It is clear on the evidence of the appellant and his witnesses that the disputed land was given to ,the appellant by the wife of the late Pusindawa and that it is part of the 11 ½ acres which were the subject - matter of the former suit, Emaoi , Primary Court Civil Case No. 32/91, in which case the respondent was a defendant. In the light of this evidence I am satisfied not. only that the respondent has no right or . lawful interest in the land, but also that the matter is res judicata by virtue of the decision in Emaoi Primary Court Civil Case No. 32/91 to which the respondent was indisputably a party as a 2.nd defendant. The complaint about the District Court having erroneously determined the case on merit 6 despite having observed a defect in the judgment to the effect that the judgment of the Primary Court is lacking the signature of one of the members of the court, that is, one of the assessors, contrary to rule 3 (2) G.N. No. 2/1988 has no merit. Upon carefully scrutinising both the typed copy of the judgment and the original hand-written text I am satisfied · that the judgment was duly signed by all the members of the Primary Court including both the assessors. In my view the District Court had wrongly observed that the judgment was lacking one signature of the members of the Primary Court and as a result erroneously made a finding that rule 3 (2) of G.N. No 2 of 1988 had not been complied it. In my considered view on a totality of the evidence on record the plaintiff/ respondent had failed to establish his claim over the disputed piece of land on a balance of probabilities. In any case the matter is clearly res judicata. ' ' 7 In the event the appeal is allowed with costs. The - decision of the Primary Court is hereby upheld, affirmed and restored. N R. SHEIKH ~ JUDGE , 5/09/2007 Judgment delivered this 6/09/2007 in the presence of Mr. Merinyo for the appellant and the respondent in person, and ~r . R.SHEIKH · JUDGE 6/09/2007 · /mm I