19890905 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA ,. AT DAR ES SALAAM (PC) CIVIL APPEAL N0.82 of 1988 (Fro □ the decision of the District Court of Temeke at Kivukoni in Civil Appeal- No.16 of 1988)(From original civil case No.166 of 1987 of the Terneke Primary Court). MOHAivlED SALEHE 0000000000 OflOOOOOOOO APPELLANT V e r s u s AMIRI MWALIMU OC"OOf't,oJ-.oO •01"10000-:1,00 RESPONDENT • J U D G ME N T JV"J.APIGANO, J. The dispute in this case is over ownership of a house situate at Chang6mbe in the Temeke District. The appellant Mohamed Salehe is seeking the setting aside of the judgment of the district court of Temeke at Kivukoni Front and the restoration· of the decision of the priraary court at Temeke. The respondent Amir Ivlwalimu was the plaintiff in the primary court. He brought the action on 21/12/1987, claiming that he was the owner of the suit-house and asking the court to declare so. The appellant resisted the action, asserting that he had purchase'd the house from the respondent in ..1.211 at ,a priee of shs.4,500/==. The rspondent adr:iitted having rec~ived shs.4,500/= from the appellant in 1977. He contended, howiver, that the money was a loan and not a purchase-price. As he told it, it was a term of the loan agreement that the appellant should recover the money from the renta! of the house, and that he notified practically every one around inclunding the tena~ts, which ' allegation was confirmed by three witnesses. Upon the agreement, he said, he moved from the house and went to live at Kipawa. · He returned and re-occupied the house in 1984, when he felt that the loan had been repaid in full, ~nd stopped the payment of the rent to the appSllant. Nothing of mocent took place until . in 1987 when the appellant came forwar·d ,,,t.o •1arhm ownership of the house, and that was not in dispute: He'repudieted the document exhibit A which was tendeted by the appellant and to whieh I will shortly recur. On the other hQnd, as I have mentioned above, the contention of the appellant was, and still is, that he purchased the house. According to his account, he paid down the price . L - in two inst2.lments cf shs.500/- and shs.4,500/- ·at the Keko C.C.M. Br8!,l'•h Q+.~•2 where a sale agreement exhibit A was recordelfrJ 1 It ~as t;be observed that exhibit A purports to have been written on 14/10/1978 whereas the event to which it relates undisputably took place in 1977. It has to be ob~erved also that the document purports to bear the signature of the respondent, but it was not in dispute that the respondent was illiterate. Further, it has to be observed that the document purports to show that the event was witnessed by three persons, namely, Musa Abdallah Matibwa, Saidi Salum Mmande and R.S. Lihenga, but none of them appeared to give evidence. Whats mo.re, the appellants witness Hamisi told the court that the price was paid down at Kariakoo in one lump sum, while his other witness Joseph seemed to say that the price was paid down in three instalments after which the parties went to the CCM Office to have the agreement recorded. The primary court, after reviewing and assessing the evidence, held, in unanimity and not in ~ajority as the district court mistakenly observed in its judg□ ent, that the house was actually sold to the appellant. In holding so that court acted upon exhibit A which it found genuine. As indicated Rt the stQrt, the respondent successfully appealed to the district court ngainst the decision of the prim~ry court~ In delivering the judgement the learned princi~nl district magistrate said~ inJime, that there was a material disp2raty between exhibit A and the oral testimony of the appellant nnd his witnesses; that there were material conflicts in tpe appellant's case as to where and how the price was paid; ~~~tit had not been ex~l~lned how the respondent, an illiterate ma:'n, came to subscribe his signature at the foot of exhibit A; and that it was surprising why for a space of four years, from 1984 to 1987, the appellant would not come forward to assert his right. Accordingly, the district court thought that the better view was that there was an understanding between the parties of only the terms recounted by the respondent. In my judgment the district court was right in its assessment of the evidence and in reversing the decision of the trial court. On ~.~,half of the appellant Mr •. Mwajasho, learned advoco. te; has reiterated the point the.t the eionfli.ts that obtained in the appellant's case were not material•· With respect, I have been unable to accept his argument. The appeal is dismissed and the _appellant is to bear the costs .. . •.....·I 3 Delivered, Appellant present in person, Respondent present in person. t1c+1Mt,V . D.P. M A P I G ~ JUDGE - - DAR ES SALAAM 5TH SEPTEMBER, 1989