19710319 TZHC Mwanza2

IN THE HIGH COURT OF TATZANIA AT i'IWANZA. 4c Appellate Jurisdiction. (PC) CIVIL APPEAL NO.90 OF 1970 (From the decision of the District Court of Bukoba at Bukobe in Civil Appeal No30 of 1970. Original Civil Case No.121 of 1969 of the Muhutwe Primary Court,) HASSANTE IBRAHIM, . , . .. . . . APPELLANT(Original Plaintiff) vs. ISRAEL KALELERA. . .. . .RESPONDENT(Original Defendant) JUDG1[1TO EL-KINDY, AgJ. Hassani I'orahim is appealing against the decision of the District Court of Bukoba, which set aside the decision of the Primary Court of Muhut\ie. In the trial court, the appellant was judged to receive shamba sold to him by the respondent. In 1941, the respondent sold apiece of shamba, the subject matter of dis ute in this case, to the aepellant for a sum of shs 185/- T e appellant paid for this shainba by instalments, The las instalment the respondent claimed and was paid to him 19 or 25 years later, i.e. shs.65/- The purchase of agreement was reduced to writing and it was a terxn of contract that if t e shamba being sold to the appellant was claimed by a third pa ty, the respondent would replace it by handing over the part of the shamba in occupation by the respondent himself, y 1944, the respondent was aware that the shamba was being claimed by a third party, and tllerei'ore it could not be said that he was not aware that anybody wou].d. claim it later. Indeed, in his evidence he admitted. that the shamba was sold by Reveriani to Pascazia, three years after the appellant had left the shamba. The appellant said that tho respondent resumed occupation of that shainba since 1945. He agreed that the respondent was cutting trees from the sane shamba. It appears that the appellant did not attempt to take possession of the shamba, by court action or otherwise, until this suit was filed in August 1969. The trial court held that the respondent was bound by the terms of sale agreement, a nd therefore he was bouiñ to provide a shamba to the appellant as originally agreed, and ordered that the respondent should provide a shamba to the appellant equal in size to the shamba taken away by Reveriani and Pascazia. On appeal this decision was reversed. on the ground that it was not fair at this stage to order the respondent to provide a shamba since the appellant had slept on his rights for such a long time. Instead it ordered the respondent to refund the purchase price paid plus costs I' :2: amounting to shs.245/- The value of this shanTha was a ssessed at shs.2000/-. I On appeal, Mr. Rugarabarnu d1d not seek the enforce- ment of the original agreement on equity cannot help the indolent. But he argued that since the respondent knew frow the beginning that he could not pass to the purchaser 9 as the agreement suggested 9 it was aainst equity that he Should still be allowed to give the benefit of the purchase price for all these years 9 and in hi view th purchase price, for all these years could have earne. him the profit of shs.2000/-, and that in. all fairnessjthe appellant should get a refund of shs.2000/- The main argibnent in reply was that it was not his fault that the present ocupant.s had edged the appelnt out of the shamba. 1 ith rspect, this argument is contrary to what was originally agreed upon. The respondent undertook to give him another portin of shairba if the respondeii; is dispossessed. Therefore, clearly the argument would not stand at all. He did not think thaft it would be fair for him to pay shs.2000/- to the appellant 4hen the appellant, accord- ing to him, occupied the shantha for/40 years. Obviously, it is not even 40 years from the time he shamba was sold to the appellant. I think it is necessary? find out for how long the appellant in fact occupied thearnba in dispute. Accord- ing to the respondent he occupied for years only before he left, but according to the appent the respondent occupied the shamba as from 1945. If that was so, the appellant could not have occupied he shanTha for more than 4 years, if one accepted the appellat's evidence in this resect.. Thereafter the appellant took no ation until some 25 years later. In my view, he was lucky that he even got an order for refund of the original purchase Price and costs i.e. shs.245/- I am sa ti sf ie d that by c ond.uct the a ppe 1 la nt was r es ily not interested in this shamba. I cannot see how he could have left the shamba in the occupation/of other people since that time. With due respect I do not see how I could order a refund of a sum as high as that caimed. In the result, I see no reason for differing with the lompassionate decision of the District Court. This appeal therefore fails. I dismiss it with costs. I Delivered in Court on 9th liarch, 1971.. 2 (z.N. EI KINDY/ ACTING 31JDGEO