19860630 TZHC Dar es Salaam

I.N TH~ HIGH COUHT o:r TANz,1-1.NIA A'l' D.1-1.H .i:iS SALAAM PC. CIVIL 1-1.P}~AL NO. 72 -OF l985 (F'rom the decision of the Uistrict Court -of Kilosa I at Kilosa in Civil Appeal No. 24 of 198j) Original Civil Case No .. 44/85 of the Primary Court of hilosa at Gairo JACKSON MFUPL ••••••••••••••••••••• o.; ••• APP£LLANT versus JACKSUN LUPILA ••••••••••••••••• ••·• ....... RESPONDENT JU D GM EJ 'f MAPIGl-lNO, J. the parties in this case are ~t ~ difference over a piece of land. situat&d,-at Masenge in tl"~ Kilosa districL Ja<;kson Lupila, the respondent herein, br~ght a suit in the primary court at Uairo claiming that th~ shamba ~n question belonged to him and that the appellant Jackson Mfupi had trespassed into the shamba and cultivated p.fart of. i:t.• .tie tqld the primary court that he was given thQ ~hawba by his father in-law who had since died and that he has been cultivating it for a period of fourteen years peacefully. '..i.' he pespondent called four wjtnesses to give eviden~e before the primary couI't. The first witsiess Kalaita Mnyandwa gave short supp~rtive evidence that corresponded with the respondent 1 s. The second witness Robison Mavumbi gaTe evidence which can be termed neutral. 'l'he third witness Hudsofl Nwisema stated that the respondent had been cultivating t!i.e suit-shamba "every year" • . '1 'he .fourth wi tnesc Sad~ni Mkase.nye,. gave evidence that was partly contradictory. He said that the shamba belonged to the respondent. But by clear implication he denied that the shamba had been passed to the respondent from his father. tie stressed that the shamba was his (the witnesi) and that he had given it to·the respondent. ·1n his defence the appellant claimed that he had inherit~d the shamba from his dece~sed father and that he has been cultitating it ever since. He denied that the respondent has been cultivating any portion of the shamba for fourteen years. he·called two witnesses, Mbalaji Msigara and Yoramu Mgaila, whose evidence fully supported himo 'l'he primary court weighed the evidence and assessed the credibility of the parties and their witnesses~ The court came to the unamimous conclusion that the shamba was the property of the appellant Jackson Mfupi. 'I'he respbnden~ thus looi the suit and was ordered to pay a sum of ~hs. 18,000/= ~s costs to the appellant. The respondent took it to appeal before the ·••o••/a. - 2 - district court at Kilosa. The avpeal succeeeded and the decision of the primary court was wholly reverse~. ~he appellant is diss~tisfied with the decision of the district court, hence this appeal. In short, his argument i~ th~t there was no good reason for the learned district magistrate to upset the unanimous decision of the primary court. I respectfully agree with the appell~nt. I think this is a case where a first appellate court erred in not giving due consideration to the fact that the trial mugistrate and the assessors who sat with him hud actually seen and heard the parties and their witnessess in the witness box, unlike it. 'i'he issue in this case was purely factual and in the ·last analysis the decision of the case depended on the view of the court as to which side was truthfulo I see no good reason why the opinion of the trial cburt on that point should have been disturbe.d. What's more, the conflict in the respondent's case s~emed to have escaped the district magistr~te•~ Lattention. 8 s shown, while the respondent and his witness Mnyandwa cliimed that the shamba was previously the property of the respondent's father in-law, his other witness Mkasanya claimed that the shamba was previously his.. That, in my opinion, was a material fll$wi and detracted from the rtsp.ondent 's case.· I however agre~ with the learned district magistrate \that there was no material basis for the order of costs. I will set it asiae and remit the matter back to the primary court for retrial. ln the final event, I allow the appeal and restore the decision of the primary except with regard to the award of costs. The·question of costs is remitted back to the primary court for retrial and decisiono ~elivered at Moro~oro Appellant - present nespondent - absent. MOt<OGUkO 30th June, 1986.