20021106 TZHC Bukoba

IN THE HIGH CC;JT?l' OF TANZANIA AT BUK0BA (PC) CIVIL APPSAL NO. 146 OF 19'."'·', (From the decision of the District Court of Muleba D~.strict cri; Muleba in Civil Appeal No. 67 of 1'939 (A) and original Civil Case No., 40 of 1989 Nshamba Pr.·~ '!1,::ry Court. Before: L.S .NgonyMi, F;sq • Pmti) 1 • J0:-T?HINA R"!i'.W:LIAN ) G O ._. 0 0 0 0 0 0 0 0 0 C O ~• 0 0 ti APPKLL_i:J"\JTS ) 2 o Hf:;V~LIANI KITF.G'.l!A VERSUS oeooo••eoceonooouoooooooc:o m--:SP0NDENT JUDGMENT iviASANCHE. J • •.._.,_.,..,.....,.,_....,.,,L.,,--,:,._ The appellants Josephina Revelian and Hevelian 1.-'.°~ te: ·.,': sv.ed the responr:lent, Jooephat Rusheiga in the primary Court of Nshc3mba in ttiuleba District, in Civil Case No 1+0/89. She had wanted a shan1ba ½ack, which had been pledged for Sh,'3 1000/=, She won the case.. The pr·::.mary Court ordered that she should pay Shs 5~,000/= as damages for une}, 1'<i.Usted improvements. Josephat was ngerieved at that decision. He appealed to the District Court of Mulelta, a.t Mt,leba. Here he won the ease. In other words, the District Court Muleba (Vir Ngonyani PDM) has reversed the decision. of the primary Court. '.l'h-::: _;s.icts of the case were that ,Josephina ReveJ.ian knGw that a Sham:ba, the subje~t matter of this case,nad been pledc2d out to the second defendant, in the primary Court, one Josephat Rushaga•. It we.s aaid that :i.t was pledged r~J.. Shs 1·,000/""o ".MiM waG in 1,e2, So, s:i1e '·'anted -it back •- rc,18'.;m it as it werei The defendants on the oth(-;:,: h2.r..d said that they had boup.;ht the piece of land for Shs 1t,OOO/=- in 1969~. So they said they could not part with it., As correctly pointed out by the trial Court and Mr, Rweyemamu for the res-pendent, t.he issue was whether the shembe. ht:;d been pledged or it had been •hi c.utrightlya The pr:i.mary Court was of the unanimous decision that it was pledged• for ~hs 1.~C/:.. They ho\-✓ever sair:l, as the land u 2 had slightly been developed then, a payment of Shs 50,000./ os•ould be made ;:;y tht, p"!e..intiff, now appellant. The Distr .i.c ~ (;:mrt, on the other hand has said tl·ie.t it was sold,. that One thing is clear in this case! It is I the issue be:'..o ...-s the trial Gour:: vfoS one of fact. Was it sold or was it plec\;e : I agree with the trial Cour~ that it was pledged, for Shs 1/:')0/=• '.!:'he trial Court has commented that the story that the shamba v:as ::ought for Shs 1·1,'000/=,·in 1969, cannot be true, They say it was a lot of money il'I. 19690 ~,hey agree with I •.R. Kitengwa who seid th,3t to sur-.::gest that that piece of land was bought at Shs 10,000/=, in 1969, by a. peasant,· was ,:uoni;o mbaya sana·' [a very bad lii_l. The trial court finding of fact that the piece of land w,3.s pledged is supported by evidence and must not be lightly shed offo As Courts have often said (Duffus v.p. in Sheh v Aguto /19707EcAo 263 at p.265: iiA Court of .nppeal usl1a1ly has the right to interfere with the findings of fact of tLe -'-rial Court; but 1,rhetfJ_-:c' :.,'_ ~s 8n apperu. being bee.rd by th:i-:- ':'ourt fr-r,· · ,, tT.; Rl in the High Court or by the H11,<) c,..,,irt on appeal from a Mtagi ...:tra.~::J 1 f:i ,:;ourt, thi.::. j,::: e. lfraited right to be excrciec,c juc,: ~ >,:i.·1.1· and _ t is not just the substit•,;-:>·.r, of the op:i.nion of the appeal Court for the fir.ding of face made by the trial i-iJa.~;istrate or Judge who had had the opportunity of hearing and assessing the credibility of the w:i tnesses 11 This appeal ie allowed with o•ste. · The primary Court judgment is .. .. ,·,.. •···· .., \~~--~.,(:·~~··,. ::-. ,:· At Bul<cfbai.:.:..-·•·. - JUDGE 6th Nover.nber 2002. Api;eJ.lants.: -•h _ _ ____ absent. Respondent: present. ------ .\