19930915 TZHC Dodoma

IN T~ HIGH COURT (1!' T.:":.Jf~li.NL\ J..T DODOEA (l C) CIVIL A~TJ:Jli.L NO. 115 OF 1 ·,92 Versus .J,.-~ tJ . .,....D G I1 IT: l,'. T -_,....... ----- . ·~ ......... ......... .,.. The appellant '.c..alr.arin s /o J:lnlua. sucessfully sued tha respondent Asheri s/o Hznli a.t Ule-.;10 Drinary Court in Irar.iba . District, ;Jinr:;iclo. Re 0 ion in e. claii:11 of a piece of land. The . trial court held thc.t the nppellants father had not sold the land in disT.:Ute to the }:"Jspo·t";<:e;Jto On .::::,),·,ec:l to Ira.mba District Court,, it w2-.s held that the appelle.nts fo.ther had lawfully sold the land in dispute to the respondent. That has prorrrpted the appello.nt to o:rpeal to this court. It was common ground at the trial tbat tbe 12.nd in disc,ute originally belonBed to tt1e t:i.pp0llants father. 'rhe issue at the trial wa.s as to whether the appellants father in 1967 had sold botl1 his house ancl t~::e land in dispute to the respond.ent.. The respondent t.3stified at the trial that in 1967 when the appel~ants fe.th,3r w~.,..s in the process of e@i~r~ting to Ulemo, he sold hi □ the house was sold for shs-. 400/ = o.nd the land sw:,r•oundin5 tho house was sold for a cm..r.. The l"<::,spendent wag r3u-prort:::d o.t the trie.l by one -:ho.bani s/o :.ikur,1bo ( nn(I 2 ) ~-rt,o :1(-.~-~ l::.:lr ::,c':. to L8:.1:l the cc-:r to tlrn n-)pellanth father. 2 However according to the appellant he is not e.w~re • nvou_t the sa1.e of the lnnd in dispute. He said that, that is why in 1990 when his fr..ther died, he purported to inherit the land in dicpute but the respondent ro.ised nn objection. The two witnesses of the appellant Ilimbe s/o Kingu ( r·1;.2) imcl 1:yunga s/o Usia ( :;:·H. 3 ) testified that they were not aw~-:ire t:Jat the crppi:,1llants father had sold the hmd in ,,..,.,.,, .....;.. ~\ti,• dispute to the respondent in 1967. In my judgment I find the.t tlle Di2tr-ict Court ceine to the Correct Conclusion., The respondents account. which was sup9ortecl by D1J. 2 wns ::,wrG probable than tlrn o.ccount r;iven by the appello.nt. In f~.ct during cross - e:;;:m,1inntion the. appellant conceded. that respondent ho..c1 been us:i.ng the land in dispute for 8. consic.1er[tble lci.nc-:; time. All the i:dtnesseE:, sto.ted that the respondent lwd been in pose- ession of the land in dispute for 21+ ,rears ( 1967 to 1991) and no one ro..ised a protest tho.t he::, wns a trespas -::er. The appellants father did not r,::i.ir:le o µrot30t bec,-:i.trne he lmew he ho.d sold. the land in <.lispute to the rospondent. ~rherefore the r:q.)pGl lant connot corne up at this late stage o.nd allege that the respondent is a t:i.'"'Gspas:3er. In the event tho npDea.J.. fails .. L ,. nnd it is dim;Jisrrnc1 j_ :) -~ with costs. Order QCcordingly. ( J. L.. mm. LU'1;1.::YA ) JUDGE 15/9/1993 CouP°t; t..-~----~--. "'...... 15/9/1993 ••••••• /3·'! •