20070308 TZHC Arusha

1 IN THE HIGH COURT OF TANZANIA AT ARUSHA CIVIL APPEAL NO. 16 OF 2003 (ORGINATING FROM ARUSHA RESIDENT MAGISTRATE'S COURT CIVIL CASE NO. 58/98) GODLOVE LOKILA ..............................................APPELLANT. VERSUS 1. ELIMANYISA AMINIEL MAFIE} 2. LABANI ISMAIL }................... RESPONDENTS. JUDGMENT. BEFORE:- R. SHEIKH.I. This is an appeal against the decision of the Arusha Resident Magistrate's Court: in Civil Case No. 58 of 1998 instituted by the appellant herein, after duly obtaining the requisite leave of this Court for instating the suit concerning unregistered land in the aforesaid R.M's Court. In 1 998 the appellant GODLOVE LOKI LA (the original plaintiff) the had unsuccessfully Mrs. ELIAMANSIA AMINIEL MAFIE as the legal representative of AMINIEL MAFIE(Originally the 1st defendant) and LABANI ISMAEL (the Original defendants in a claim for the ownership and possession of a piece of land measuring are quantive 1/4 of an acre situated at the plaintiff averred that he had purchased the disputed piece of land an 20/07/1998 from the 1st defendant/1 st respondent's husband who passed away on 4/12/200 while the suit which was originally filed against the late AMINIEL MAFIE and the 2nd defendant was filed on 8/12/1998. In the amended plaint the plaintiff arred that he had purchased the disputed piece of land on 20/07 /19978 from the 1st defendant's/1 st respondent's husband who passed away on 4/1 2/200; According to the plaintiff he brought the land at a price of Shs 20,000/= and that ever since then he had been in continuous uninterrupted occupation and use of the suit land. He for more that 20 Years. Claimed that he developed the same by planting bananas, coffee, fruit and timber trees, and grass for grazing his cattle. The plaintiff averred that on 20/4/1998 more than 20 Years later the two defendants had trespassed into the shamba and destroyed his crops and trees. The plaintiff was generally supported by his four witnesses. 3 This stay was disputed by the defendants. The 1st defendant claimed that the land belonged to her late husband Aminiel Mafie who had been handed the over land his late father. According to the 1st defendant her husband had been using the land as a farm and that he had never neglected or abandoned or sold the farm. The first defendant was generally supported by the 2nd defendant who told the court that in 1998. Ma fie had wanted to exchange his farm with another that belonged to the 2nd defendant but before the agreement could be implemented the appellant started laying claims to the farm. The respondents were generally supported by DW3, DW4, DWS, DW6 and DW7 who told the trial Court that Aminiel Mafie was the one who had been in possession of the farm and that he had never sold the farm. The trial Court in its judgment was of the view that there was vendible evidence to prove that the Aminiel Mafie never sold the land and that he and the 1st defendant had been in interrupted possession of the land since the suit land was handed over to Aminiel in the customary way by his late father. 4 The petition of Appeal Contains 6 grounds of appeal in which the appellant basically complains that the trial court failed in properly evaluating the evidence before it, and that the learned Resident Magistrate had erred in basing her decision on the evidence of the children of the 1st respondent who were too young at the material time to be involved in the sale of the land on 22/11/2004, upon proof of service been furnished this court granted to the appellant leave to proceed with the hearing of this appeal ex- parte and the hearing according proceeded ex-parte on 2/11/2006. In his oral submission the appellant opted to adopt his grounds of appeal and had little more to cold. Upon careful consideration of the record of the Arusha Resident Magistrate's Court I find it clear on the evidence of the appellant and his 4 witnesses that the suit land was sold to the appellant by the late Aminiel Mafie the husband of the 1st respondent in 1978.at a price of shs. 20,000/= and ever since than the appellant had been in uninterrupted possession of the land until 20/04/1998 when the 1st respondent and her land husband trespassed into the land. The evidence of the • 5 purchase of the land/farm by the appellant in 1978 was supported by P.W.3 a neighbor and D.W.4, a clam member who claimed to have witnessed the transaction moreover Petro Mafie (P.W. 5) is the brother of the late Aminiel Mafie also claimed to have eye witnessed the sale of the land to the appellant by the late also testified that on 20/4/1998 the two respondents had trespassed into the appellants farm. I do not see why Peter Mafie would lie against his brother's family. On a totally upon consideration that there is no reliable evidence to support the defendant's case. Indeed DW4 and DW5, who are the children of the late Aminiel born in 1965 and 1967, were in 1978 too young to know anything about the sale of land. In my considered opinion the lower court had failed to properly evaluation the evidence. I am satisfied that an a balance of probabilities the appellant had established his case, there is sufficient credible evidence to prove on a balance of probabilities that he had purchased the land from the late Aminiel Mafie in 1978 in the event I by ninth of the sale . ' 6 agreement the appellant is the lawful owner of the disputed land and is entitled to vacant possession of the land aforesaid. For the above reasons the appeal is allowed with costs. The decision of the Arusha R.M'S Court is quashed and set aside. R. SHEIKH, JUDGE. 5/3/2007. Judgment delivered in the presence of the appellant and in the absence of the respondent, and in the presence of Vero. B/C. R. SHEIKH, JUDGE. 8/3/2007. r- 1 hereby certify this to be a true copy of the original. Arusha