19720909 TZHC Mwanza

- Ii'T .t.E' H1GA COIiRP Q: J.ANZANIA at 1iwanza (PC) CIVIL APPEAL i0, 142 01 1971 AJ'TD 51 0 1970 (Prom the decision of the District. Court of Bukoba at Bukoba in Civil Appeal. No. 392 of 1969).before I. K. 1iachumu, Es., District i.agistrate and Bu.hcndangabo Primary Court Civil Case io. 52/69 IAKI AiUEL.NDA ,, , , . Appellant versus J0I-LN MV0BEXI AD STANSLAUFJ OYEI\i)ERA Respondent JUDG4ENT J0NATRA1, Ag. J, - This is an appeal from an order of the District Court, pursuant to an order of this court in its (PC) Civil Appeal No. 59 of 1970, requiring the appellant to pay one John Nwoubeki who was a respondent in the appeal just mentioned and the respondent in the present appeal, a sum of •Shs, 2,232/= as compensation for improvements made to a piece of land which is the subject of dispute in these appeals. The District i"iagistrate assisted by two assessors visited the land in order to assess the compensation. That was in the presence of the parties both of whom called witnesses. It seems to have been undisputed that the respondent had planted 134 banana trees and 54 coffee trees. In developing Itho land he had spent a total sum of Shs. 1 ,022/= as labour charges. This, too, was undisputed. Yhe District )aistrate in concurrence with views of the assessors awarded Shs. 51= as compensation for each banana tree and Shs, io/= as compensation for each coffee tree, while the

expenses incurred for labour were to be reimbursed. The appeal has no merit, It apears that the appellant has misunderstood the judgeinent of my brother Judge in this court's (PC) Civil Appeal No. 59/70. He seems to su 'est that, that decision having been in his favour he could not subsoauently be ordered to poy compensation. lor his information, the essence of the decision in that appeal was that the apeilant should be given back the land su bject to his paying John I'!wouboi compensation for improvements to be assessed by the District Court, After due incuiry the District Court has done precisely what it was directed to do. The appellant has also complained that there is nothing of substance on the land to justify the coapensation ordered and that as the responc.ent had uprooGed banana and coiiee drees the appellan - had plantec, if any compensation was aue, it should have been payabale to the appellant. The lower court was better placed to make an assessment and I have no reason to think it erred in awarding the compensation. .• It is significant, I think, that the appellant and his witnesses did not dispute that the respondent had developed the land to the extent claimed. In his nemorandiui' the appellant sayâ the respodent had uprooted banana and coffee trees he had planted on the land. This was not raised during the hearing in the lower court and cannot now

be entertained. .- .............. ._ ..__..__..._._ ....... Even if there is sone truth in the clai:i,, ht without ore s could no be the basis for not pa. ±fl: ' the respodent coLlpensaiori. ihe app:.al is accorclin5ly dis'.is:ed but as the résondon± did not aper at the hearing :c nahe no order asto costs of is appeal. The respondent is to have undisturbed posession of the land unless the anpellant pays tha coapensation and costs ordorod by the Djtjct Court within one calender :onth following delivery by'the lower court of the substance of thisdeceion to the parties. S . (P. .i. Jonathan) 9th Eepteiber, 1972 A.G. JUDGE •S 4•S ,