19720922 TZHC Mwanza

C, ->- :S °-J —> N IN TL hIGH COUhT OF ThhZAiIA AT i•_hZA. (p0) CIVIL 2L NO. 126 OF 1971 (From the ciecisionof the District Court of Bulcoblt at Bukoba in Civil Apea1 No. 129 of 1971 Before J.L. Mboneko, Lsc, D.M. and Kaxnachwnu P. C. Civil Case Po. 10 of 1971). JaRhHI.aH BAIIIdiil . ............. .............. AP?hLLiNT versus LI. hLLLdS I1 HOKLS ..................................... JUJ.JGMLNT. JONdTHAN,AGJ, By a majority decision the primary court dismissed a claim brought by the respondent woman against the appellant for a piece of land, On appeal to the £listlict Court the decision WIS reverseci in consequence whereof the present appeal was filed. It was the respondent 's cse in the originalprocesaings that her grandmother callea Daizi Tibagilge had bought the disputed land from one Kanyamunywa ana that on her ucIth, by a will she left, the landpassea. to her daughter called Fatuma. Fatwea subsequently died an. the land psseu to the respondent as Fatuma's dau bhter. l will purporteely mace by Daizia and written for her by one Kyobya (P.i.i.2) dated 9,7,57 was duly produced. In that will the toetatrix claimed that she had bought the land she was sequeathing to Fatuma from Kanyamunywa by paying him two doats. On the death of her mother the responent went away apparently to see her caildron, leaving the land in the care of Yohana (pp.4). On her return, she alleged, she found the appellant having evicted Yohana from the land. Yohana did not completely tear this out in his evidence for he is recorded to have said that, for the period of 4 years during which he looked after the shainba the appellant did not claim it. In defence, the appellant id that tile d.isutcd land was property of his clan, it having passed from his ancestors ditnyamunywa, halikilo, Ken:oma Bahindi and finally down to himself. He went on to say that his grandfather, prsumably Kengoma, had given the land to the responLlent's drandmother, Daizia seemingly in usufruct. On her death Fatuma who, like Daizia, was not married, used that land, but upon her death the appellant took over the land. It was also the appellant's contention that the disputed land had previously been the subject of litigation between himself and those through whom the respondent was claiming ownership, He prouuced, amon a other things, a cop of this court's judgment in (rC) Civil Appeal No, 177/67. There the parties were Musa Abdallah as appellant versus baithasar Bahindi as respondent. The latter is the father of the present a)pellant but it is not clear what relationship there was, if at all, between the rninondent and Musa Abdallah, In that appeal the appellant 's father was the successful party. It is, however, clear from the district maglErtrate's judgment who visited the land with the asseesors assisting him that the land now in dispute is different from the land which-was the subject matter of the case the appellant's father won aginst iiusa abdallah. The district magistrate had visi ec tne land, the ownarship of which was then in dispute and in this case he clearly had an advantage which the trial court dict not have. I have no reason, therefore, to differ from his finding that the case was not res juLicata as the appellant seems to hve urged all along. The learned sistrict magistrate then considered the appellant's statement that Kengoma ilai given the land to Bi. Daizia as a dift because she had no where to stay, against the respondent's claim . . ./ . .. ON"" that her grandmother, Bi. Daizia had inherited the land from her father, Kate-be. He found the respondent's ose more pluusibl. This for two reasons. The appellant had not called any witnesses in support of his defence while he had failed to submit any documajits, except the judgment above referred to, on which he relied. 11th respect, the district magistrate's approach was faulty as it contravened a well established rule that he who a, serts must prove in order to sucoeed In this case the respornhent was claiming that the land then bpparently appel1axt's possession was hers, It was therefore essential that she should establish this in order to succeed, ana it was not sufficient merely to rely on the weakness of a.pellant's title to the land. In the oriina1 proceesings she had claimed that her grandmother, Bi. Daizia had bought the land from Kanyamunywa who, incidentally, is a raat 7 grand parent of the appellant. She claimed there was receipt of such purchase, but neither herself nor h'obya, who claimeu he hod written her grandmother's will, could produce it. It is true the appellant did not call Any witnesses, but it is equally true that tha respondent's case was weak, for apart from the evidence of Ryob:, none of her witnesses could say whet entitled her to the land. One may also question the validity of the will itself 7 for it does not appear to have been signed or thumbprinted by any of the persons named as witnesses. Indeed he purported testatrix herself did not make any such impression on the dociment. Given those circumstances, I could not say that the decision Of the primary court was wrong. It is then a little interesting that the respondent tolu the first appeliata court that, it is Bi. i)izia's father celled Kate-be who had bought the-lath. :phara is no ihdi.oation as to iic-r source of such information which, in the event, sharply contra.icts with the 5tCtL:16flt in the puDported. .ill that Bi. Daizia hen bougat, and not inherited 9 the land. Thb effect of this was to cast considerable doubt against her. The district court referred to the presence of enUamula" trees bornng the disputed lann from another piece of land which the district magistrate's sketch shows as belonging to one Kalumana, and the other side of which borders on the land which was the subject of dispute- betwden the appellant 's fattier and Muse i.hdallah. He considered that the presence of these teus suggested the-re was a permanent eoundary separating what is indisputably appellant's lath from the land now in dispute-. In other words, the presence of the trees is more consistent with the respondent's claim than with that of the appellant that the land had bean given to hdr. predecessors only inusufruct, I cannot follow this argument beouse the dispu- ted land is not contiguous to appellant's land; th,Vc is Kalumuna's land in between. That would explain the presence oftha trees the district magistrate referred to. For the foregoing reasons the appeal is hOrs-by allowed with. costs to be cldtermined by the district court, as the parties appeared.. 22nd heptember, 1972. (p. i, JOKKTIN) iiG. JW)Gh.