19851007 TZCA Dar es Salaam

ti., ., ~ -.:}; 0 IN THE CO!.JRT Op APPEAL Op TANZANIA I CORAM; MUSTAfA, J oA.,; MA.KAME°::L J .o ~'; And KISANGA J.oA. CIVJ;L APPEAL NOo 21: OF 1983

BETWEEN MA.RIA d/o SHEYO,; • o O • 0 ANb i NDELE s/o MLOzr e • • O C it O O RESPO ENT (Appeal f.r,om the Judgment of' thE> High Court of Tanzania at Mbeya). (Mroso, Jo) dated the 21st day of May, 1982 . ( ,,.·. ~=15 _);;i.Vil .- - ~- : : : :,__ ., l. JUDGMENT Op TH}~ COURT I :u) 198] \ -~---------~~-~ ffl!,STAF/\, _Jo~.;; This matter f"J)r)cer:ning a hui: on la pie ;e Of \ nd arose in a Primary Court, w.ent on appeal tc a District to the High Court. .And now from the and th.en judgment 9f t e High Court an appeal has been preferred \ : i.s courto ,1 Ndele. was the plaintiff in t 11e Pt;;Lmary Cour,to Ndele _alleged that he had purchased a.n unsurvey.ed plo,t in MwanJel a area Mbera £rem ◊ne Tembo Mwangos1, and in 1955 Ndele built a mall hut on it. Tem,t,o corroborated Ndele on this matter,. and • t Witnesses also gave tes_timony in sc:ppor~. (., othe+ I I ,. Ndele alleged ~at the husbac,l of Maria, the d fondant at the Primary Court and the appellanC in this. appeal, as ill · 1 'I · sometime in 1976 a~ • s a l l - d by ~e1• to stay in that hut free•of Charge, '.lhj_s piece of evidence ,:,as con£i,:,ne by Tembo. Ndele Was a police Officer on.active duty anci was se .ing outside Mbeya. When he returned to Mbeya, in 1978 he iscovered that Maria'$ husband had died and w;cen he asked Maria to vacate his hut, Maria refused and told Nde.Ce that the hut ha beJ,onged to her late husband. Ndele had to 'eave Mbeya aga:j_n •·n the couqe ,••c.o_ao/·.,• ,, 2 ; i 'I ·il of his official duties and when' he returned in 1 he found 1t '1 that the thatched roof of his hut has I been . remo and corrugated iron sheets were put'. on inst!;:!ad .. I( ,i Eventually Ndele brought 'a case against 1 Primary Court which found in fa vour of Ndele.

I JI . • it !: Maria appealed from the Primary Court judg to the . • II District court which allowed Maria's;appeal. ,) ,, As Court judge (Mroso, J.) rightly rema kect, the rict Court ' 11! ; "leaned over backwards and questioned the author Tembo I !l , MwangOsi to allocate building plots in ,1 the " area". The High Court reviewed the evidence and' came ·:;to,, the concl sion that , II the decision of the Primary Court was right, and estored its judgment. ,, That should have been the! end ~f the matter However Maria obtained leave from the High cdurt (Samatta, Jo) to . n appeal to this court. Leave was granted on the g ound: whether I , . ! the High Court "was right in law in dot•consideri g the question I 11 :1 for the improvements the applicant (~oe. Maria) a legedly made to the plot on which the house ktand~i" ,: l ,I • j \! , 11 • It is clear that Maria had put ,;up the c0rru ated iron sheets 1 .~ 11 etc~ knOWiog fully well that the hut and '1plot belo ged to Ndele 1 and there is no question that Maria d:>ul ,1 ' d get com ensation for improvements in the circumst 3 nc,~so However we wi 1 order that I 11 Maria would be at liberty, at her own expense, to remove the !j corrugated iron sheets and whatever o;j:he,;r materia she might • ti / have expended on the hut or on the lahdo'. Maria's right -~ :i l '> to remove such material expires 1on 31,~t December, 1985 or two I months from the date she is informed of /the conte ts of this 1 order, whichever is later. ij I ,: 11 .: ..• / 3• :1 i 11 3 ... - ,1 J The appeal is dismissed. As ne'itb.er party as appeared. ,. . . . l·· r: before us b-y:· c:bunsel or in person, w 71 w~ll make n I order as to, costs.• DATED; at DAR ES SALAAMi-this 7tri .. Ii day of· Oct er, . 1985. ~ . 'I 11

I II ti I! ! Ao MUSTAFA :i 1i JUSTICE OF AI'J?EAL .. :1 tj :I (/ .. ·---~:,_ Ji i L. M. MAKAME .!I

JUSTICE OF APPEAL I I R. H. KI SANGA:, JUSTJCE ;()F APPEAL:! __ .. - .. ' f ,._;,;~ , ·, I certify:.that th~s_('i_s, a -tru:e o:~Y of the .. x.iginal. -----"'-'?~( < :t ·; a:~~-P _.,---MO·s1u:) : . i ,· SENIOR 'DEPUTY REGISTRAR.