NA1
The respondent failed to prove his case on the balance of probabilities, particularly by not calling the alleged seller as a witness and by inconsistencies in his testimony regarding the location and ownership of the land.
Source-derived case information.
- Citation
- NA1
- Parties
- Appellant: John Bubinza; Respondent: Nkongwa Toka
- Court
- TANZLII
- Jurisdiction
- Tanzania
- Judgment Date
- 1 January 1996
- Procedural Posture
- Civil Appeal / High Court (pc) Civil Appeal From District Court, Original From Primary Court
- Outcome
- appeal allowed
- Legal Topics
- Land Ownership Dispute, Burden of Proof, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Bubinza
Appellant
Nkongwa Toka
Respondent
Procedural Posture
Civil Appeal / High Court (pc) Civil Appeal From District Court, Original From Primary Court
Legal Issues
- 1 Whether the respondent proved ownership of the disputed land on a balance of probabilities
- 2 Whether the lower courts properly evaluated the evidence
Ratio Decidendi
The respondent failed to prove his case on the balance of probabilities, particularly by not calling the alleged seller as a witness and by inconsistencies in his testimony regarding the location and ownership of the land.
Court Disposition
appeal allowed
Orders
- decision of the District Court set aside
- decision of the Primary Court restored
Full Case Text
Judgment text and source record
1 paragraphs
I IN .TT. HIOJI COU}IT OF TANZANIA (PC) CIVIL APPEAL NO 41 OF 1998 (FROM TT tC D3ION OF TIE DISTRICT COURT OF BARIADI CIVIL AMAL NO. 20/98 ORI+INAL NKOJ•iA :EIMA.RY COURT CiViL CA NO, 82/97) JOHN 3U13INZA ........................ APPLLAiT Veru IIC014GWA ZA0KA .. ... .,................ RJPOI'TflNT JUD GN ENT Iaanch, 3. The apeU.t ... Jo?n T3ubin-za was sued in tIw piiary Cowt of Nkoma in the Diatrict of Baria&t. He was sued by a pareon cafled N ngwa sonof Up wa The: aibject matter of the case 3 a portion of land meuring eone teaces., It was a].1eed that :jj ubinza bad etcroached iito the domain of Nlcongwá 'blvira by traxnpin the ten p.oes of land wLth a 0 . .. . . tias tractor. The evidence of .flongwa 110k4abso1ute1y shot. :ct.ead: I. Himi ninamdi indaiwa eneo langu 0 ambalo.mdaiwa alilivarniarwaká 1996. Mdaiwa alipovamia eneo laniu nilienda kulalamika Ofisi ya Tawi na mdaiwa alipoitwa 0 alikataa kufika Ofisi ya Kijiji. Ndaiwa alivamia- eneo langu ),.enye ukubwa wa hatuall x 170, Sina 0; / - 2 - The plaintiff was thefl cross.-examined by the defendant and Court assessors. He then replied that the paces trampled upon were part and parcel of his five acres there 0 He also revealed that, in fact, the whole area was sold to him by a person called KisInza. and this person was somewhere in Jubaslit, o Maswa. The person was n t called to testify. At the end of the day, the plaintiff lost the case, The Court with its assessors, of course, had viaited the site. The plaintiff never got satisfied with the decision of the .ilary Court. He appealed to the District Court. Here, he has won. The learned district magistrate has been of the view that "the disputed. lana is from the land of 5 acres of the appellant." ?ow,John Bubinza appeals to this Court. The good thing about this case is that the primary Court visited the scene. The fittappflat court did not.Thi°:.primary Court, aathet 6eoord àa's, has discovered that, in fact the plaintiff, Mr. Nkongwa Toka, ias a liar when he said that his land neighbours that 6f the appollaxt. The piece of land that flr. Nkon:wa Noka talks about Is "ng 'ambo ya into Siriiiyu up&ndo Wa Mashariki." Again, it should be noted that the plaintif, in the primary Court,did not call Kisinza., the person, it is alleged, sold the piece \of land .to the plintiff. This person could easily have been summoned from Bubashi - Maswa,. where. he is. The plaintiff, therefore, in tny view, did not prove his case on the balance