20020625 TZHC Bukoba

.IN THE HIGH COURT OF TANZANIA A'1' DUKOBA (PC) CIVIL APPEJ\L NOo 22 OF 1994 (From the decision of the District Court of Bukoba District at Bukoba in Civil App~ai I~;;· :;24/90 and· originaJ Urban Primary Court Civil Case No .. 42/900 Defore: J.K M~Mufungo 1 F.:sqo DM),. 0 GObFRID T -.i.BA.L -l'ruv,. rJ.i. ••.•••••• o • • • • • • • • • • • • • APPELLANT VBRSUS -;1 • YUSUF IRUGA RESPONDENTS 2. AMINA YUSUF r~M3ANCHE 2 ·:.J. The appellant, Godftid Tiba.inuka; a very oldrrtan, appeals against the decision of the District Court of Muleba• The District Court of Muleba (Mufu..11~u m1) had dismissed his a.ppeal from the decision of a primary courti Briefly, the appellant is a brother of a lady called \ Co,,,~ ~;_a. Constansia, this appellant tells ine, is still alive nnd, ,ee in the primary court. The appellant h~d alleged that a portion of land t1~. ~he respondent Yusuf Iruga (deceased) and the wife (Amina Yusuf) had bought h :-. -~onstancia was a c 1 an ,~-cin d anrl ,..,as ecld. to them wi thou-t cc:oscnt of the said <.;~•. -, So, h0 filed a case to redeem it. The case v,as filed in 1990'1 within t 1,-.. 12 years limitation periodo However, the appellant lost the case. The prima:t-;r Court.was of an unanimous opinion th::i.t the respondent were sold the le.wfully: piece of land t_ in other words, that the clan consentedo The appellcint then appealed to the District Court of Bu.koba in Bukoba, and here, clao-ain he lost. He now appeals to this Court;. In other words, the appcJ..lant is on a second appealo The facts of the cnse were simple.. The lady Com,tar.sia, he is at loggerheads with, is his sister .. In '1-964, their brother Mugisha, fell ill and these people wanted money for treatment of their brother.. They 2 consuJ.ted among each other<1 The respondent, Yusuf Iruga (now dead) arid his wife Amina Yusuf, were then sold the piece of land for Sh.2,000/=, a.11d t,he witnesses were Constano:i.a. herself, Petr.9_].~bainuka. DW?., the full brother of the appellilllt, and others noi.1 dead.. A document was signed but that document could not be available at the time of the case~ It is said tho.t the appellnnt is nda.m::mt because he thinks the non-production oft.his document suggests 1 conclusively~ that there was no snle,. The appellants case h.:1s been that the sha,11ba wns sold by Constan,'3ia \'Ji thout the consent of the clan~ an assertion which has been rejected by the two Courts below. This case largely revolved on qeestions of fact. The two Courts below have held that Constan;;ia sold the la.nd after consultdions and it wc..s sold in order to get money for treatr.ient of their brother called Mugish::,.. It has often been said? by this Court, that an appelL,. :~e Court, the way I am sitting, will not lightly disturb concurrent findings of fact of two CouriP,, unless there is shown clearly that tr::: p. ~.nciples applied were wrong or that there WPJS a wrong Ccurt c:f A:r,;xial for 'l'anza'1ia) ~ This ap1,aal i:, devoid of 2xiy merit., .It__ is dismissed with costs. i / \/ \/ ,.,,,,,/ J • E, •; ('}';ASANCHE i Appellant: Absent.., Respondents: Absent.