19760502 TZHC Arusha

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IN THE HICH COURT OP TANZANIA

AT JUSHA (Pa) CIVIL APPEAL NO. 96 OP 1973 (FR0I.: TH DECI3IOIT OP THE DISTRICT COURT OP LUSHOTO AT LUSHOTO IN CIVIL APPEAL NO. 9 OF 1973) LiOHAiTED BEITDiRA ........................ APPELLANT ver sue £.i.UjAa. -nrnrt cJ LiJ.'.Lu. ........e.,. so.. ,...o..s••o. •.RESPONDEFT • .. JUDGLDNT JO1UTi-I.LIT 2 J.. In the Primary COUrt MOHAFTiD BENDERL.successfully sued EUA JU7i for a piece of land. On appeal, however the District Court upset the decision of the Primary Court, thereby giving the land to J\IUSA J'UN, hence MOHAMED now petitioning this court. It scans that the father of the defendant, MUSA who died in 1970 accompanied b the defendant himself in the late fortics or early fifties moved to the village of Mahezangulu where they Were hosted by the plaintiff, MOI-iAMD. Ulttn:Ltely, in or about 1955 upon the plaintiff emninigrating from that village to the village of taalio he sold the house and some land to the defendant's father, these apparently for tao sums of si3.90 and s.110, rospoetvoly. It is the case for Inc plaintifi thai;, as regrds the land, he sold the defendant ' a father only half 'of....he land he had been ocdupying; theae .;•as a. foot-path right: in the m,iddlo ci that land vhich divid(-.d up the land int- o two. To the dcfendntts father, ho said, he sold only the developed piece on which the house stood.. He did not sell:him the other half. It is the contention

of the defendant, on the other hand, that his father had bouht the entire land . The plaintiff called two w iIxiesos, d one of whom (HLSSAN .SHELiDI) testified. that he had boon present during the sale transaction uzid tIa...t 'only part of the entire land was the subject of the tinsaction. The account of the other .;witnoss, ATI-IULA1I i'3GATI was, hovjovr, , that the , transaction was not in reference to only a pice 'o'that land; there, was no 'mnenion 'of that and he understood. the .entirc piece to he involved. The d.1Qnc ant in filS cvlaeLcc said his father had told. him he hd. boun ta ent1f land. They then used i all mii'nterrutud1..y Until 1970 vhon hia fati died. However in .1968 for a'ricf period his father moved to axothr area silinghis .nmas Ic one Rajebu no h also gav. a piece of the dipi.td land.: to build. The 'plaintiff, he said, was:.:. awara of this 1ut hu did not roe it.until.the death of his father. He calleu on.. iitnoss who said hi father had told c. in &"Ja bought so.ac land fro.a the plaintiff. He had not however been pr ..sent when the transaction was concluded and ho would not ' know what land was subject of that transaction. .. I think.... ....... . -2'- I think that on'tho facts as a whole the first appellate court was justifiEd to reverse the decision of the trial court It would ai'ncar that for nearly 17 years the plaintiff showed no desire of

moving back to Mahozangulu, which would seem to me tobe more consistent with the defendantts claim that he moved root and branch than withthe. version that he had intended to go back. Now, the ±'ocord of the evidence does not show if ho had entrusted the disputed piece of land to anyone, but the plaintiff at the hearing of the first appeal told the District Magistrate that he had entrusted that piece tb his uncle, one Ali Shehoza This person not having been called by the plaintiff, and I would say he would have been an all—important witness in support of the plaintiff's case, the first appellate court was entitled to draw an inference that, had he been called he would not have supported the claim. The plaintiff in the present appoal complains that the District Court did not on its Own notion call that person. There was no such obligation esecially as the plaintiff did not seek leave to have him called befoi the District Court. To this aym be added the fact that, although the plaintiff appears to have been aware when the defendantts father not only sold his house to Rajabu but also gave him a piece of the disputed land, he raised no objoctio The defendant's father had the undisputed oieco on which he might have allowed Rajabu to build, and he should have demanded an explanation for giving away a portion of the disputod pioca, if infact he had not sold it out. Overall, as I have said, the defendant appears to have had the bettor case and accordingly, the appeal is dismissed with costs, which I fix at h'.75. (P. JUDGE. The District Court is to have this judgment delivered to the parties. / (\ (P DGNL.THLN) PNJ/MTPI. 2/5/7 6