19721230 TZHC Mwanza2

IN THE HIGH C.OUR? OF TITZAHL. . AT HJNZk (pc) CIVIL AP3EL To. 133 OF 1971 (Pr.cmi the decision of the Dtrict Couri oil Shinyanga at Sbinyan in Civil Appeal No. 39 of 1971 before 1'1.H Bideberi, Esq., DH. &. Shiyga Urban P.0 CO. No 10/68) NGOGANGAGABAZI ........ .................APPE1LJ verus JI1AI SALA'I . . RESPOIWsTT nDGEIAENT Ea_}cLNIr . , IT.. NGOGA NGAGABAZI appea14 agiiit tie udgenent of the Dicict Court of Sbi-nyaiga whieh diiissod hi e:ppea1' The xespondent had subd h5n for a pieee pfshrabt al leed as hai ;1 .. .iVJ..i4u 1C1Y J ..- J _c The rin ground of aopec1, in this couru the appe1l ie U, was iha ces ud1eaa, He alleged that thc. u]. cqi.rt eredin tyin. an is'su i d` wa. already de -teruned in his avc iti. (PQ) (iii Appeo3. N9 48 a 196 NGOGA GABAGNJvL1ff ALAWX doc 0a on thc 17th day c Jily, 1966 by this court. It appes that ho apo.1an and the reaponden take each othàr to co.rt more than onae id'as&.ch, áare is needed to shat the saLe issties are not repeated in cou$evrIJ iev rthe ierntdE2ier of law cour -t in cO1ioting opiiuon pn na uors which out to have et o decisions. I ropse, thcrefore, to look 14Q this ase.j.n s dtpal, d relctJ t to the decision ofhis court n (?C Civ1 Appeal 5No. 48 o 1968 NGGA$/ø NGAGABAZU v JIIjAIff a/oSJI\7I and ocçfcou.rt jitdgaent of the 17th day of Septibe 1964, ini6 the It was the contention of the ape1lan't that these two judgenents esoxed.rthis.dispute aswelithi his - Tho respond ent told the trial court th'.t he 1'aew the :.apeUtmt.who v'as his neighbour. That i'n he appellant LiOved frçir. ki viJae Of issdo o at place, he invited bin and sha'ed vdth hih soi s'anbas v4h the had cleared hetie begthi "raaldng troubles' • Therefore, he d'ecicled to 'emoy'e iuii £ro.i the shanoet H alleged that h si.te the appellant in the ua Court of Chibe and th cc& -t 'derec hin to aov out, bu ou appe-1, the D. aside • He alleged that the appelont as then ivon t1at part of shcb CU1ti,cto He alleged that Malulu 1andoyathon od the appellant or G1O shiib, c.id Malu.0 IvIadorya w again th apo1laa, and, then IaluliLa.onyLi gave hia that shanba which be won from the a)poJ.lant. scad 1he wp siung for this shauba and not for the Shrn'ba which tao appellant had won against him In erOssxaLj.1ation 9 he said that tie appellant, did not appeal against the judgeñen in faTour of Malulu 11adaaya He aod that. hedid ;not su Mltilu Madoia for the t shanb which Malulu Madonya su appellant. He saa.€ tt MaluJ.u. Madonya did not give that land 1. to the apjoltant when ba went t settle there. He sa that they "did not talk" abort dis 'and befoio the 4lisLet nagisra%o ",.n the £.rst case". He stressed taa -t hc did not sue the apc1lant this part of the shanba as the case vif±ó1i iec1ied the High Odurt did not eontctin this disputç. As it can be noted, the c.idnpe jq very-nuch like that of a lay nan who thinks thatthè trial coura'aàww1at he was tallthjg about without any great effort at detailing his evidS. However, the only 1thorn case whih reached the High Court is the case referred to aipa. Itwwzo s there-- fare, r02e afe to take it that -the respondent was in fact saying that the High Cot th Dj.strj Co't) had not prcnioiccd any decision on this paxticu1: shanba. - The next w.tics Ws the court clerk at Chibe Prnary Ccurt PaUl i'Tga'ç 2) Helcaew both pajie, is they were frotent liti s in the court he worked in He said that the respondent was b1ning a shanba whiáh the late Maulu. IvIacTya had sucmessu1ly sued the ppelit. He said that althOgh he could not reeolleet the riwiber of the OasQ fild -0 he was certain that the appellant had not appealed agait the judgenent which was against him and in favour of the late Malulu Madonya He said that after judgenent was ciolivored *e alleged that after the appellant had been staying there for —2— he was present when the bouios were fixed lie also recoiled -thc ii prxtias had another ease between then, but he wr ôërtain that that as did not involve the shanbà which the late Malulu LIacionya; had successfully won against the appellant. He was cel'tain that the tv.o eases involved utc ally different shaubas • And in cross-exaaLnatibn, he said that he was one of the persas who took part in fing the boiudary Of the shcba in dls)u a :Kaj1.gwa Iviasanoni(P.w.3) was th -ill.ge .hódach •tiëii. He, 6c5sai.d That the disputed land had becn used byt. lat Miu Madony., .butMalulu Lladoiiya had, in the first Placo y óbtied it f±i1 tlie reoncient, aid that Malulu Madonya eatrusted it to the reBpoiT1r .whenhe:i leaving the village to look for bride waJ..th Saidi Maitiabi (p.w. 4) said that he had accotipanied the Prinair Cott Magistrate Julius Masale when the said na4strato went to denar cate th5 shanba after the conclusion of the case between the late MIulu Madya and the appellant • He gave full description of the bound vthieh was then finod and that he was actually the one who nrked the botthdar by digiig with a ho at the jointed out points and at one nei' e planted a tree he calledShubli uwitu" • The evidence of Ibele Masobego (p, .5) oon±imed what had been sid by other witnesses for the respondent. In - his defeneè, the appellant raInaind that the trini court had no jurisdiction to -try the scn ease agin after it lad been decic 1 ed by tho jst . Court in the cuntzy, cid qued the two udgeants Int1 nied ab-ove. In Ocoss- exanin he aziittd that there was no ucntoa of the .-ase, involvan mi- and tie Ia e Malu.0 Mdonya wha the c.curt as he 1131ng hi dispute Witi '1- p2 1 , repondat, Never -t].ess, he said that that ee between hen cid 9ho rczxnden - irtcolved 'th6 whole amba wiuch, he oloanod belonged. o bin. In its judzien*, the tial ecurt, af -tor prusn, the - vo judenent, held , that theyer irelevant to the ocse before taon and, therefore, they had urisd,ction to try the ease as th9 issue, to i.h.o rft it referred o Jie M. shanba in dsptrte, has not beon decide'd Z held that on the evic once, the respondent bed proved his' Qase on preponde t robability. - The tppell'te court held tht the trial o oTart s judgenent was proper xi upheld it after exanining the ground of api5eL in the light of the two udgement. ZI Hav pertsed the juc3geneni of the District II-gtrate of the 17th of, Septeuber, 1964 (the ease is unuibore), I 'uaswrj,. sed that the apjollant should rely on this case. It ws held against n.a in respect of a shou10 which had nothing to do with the pla 6-it za nown dispute. The pontents at' the 2ud.ei1ent speaJ.t foi itself eleerly. Again I cannot see ho ro1evnce of the deci'ion of Mustafa, T1 in P.C. Civil Appeal N. 43 of 1968 (çuot&d above) to the iuc an hand s Fven the appellant hinseif ad.tted that 1f en the issues were heard at the trial in that Case (48 Of 1968 supra), there w as no uention of the land now in isae • With Th ere±ço, I ould w agree with the well thogh- c -t o.nions of the lower courts that,the defence of res judicctc did not apply in this case. As to the nert -t of the 0050, I would sy - iat there was overwheliiing e.dence -that, on preponderare of pobabiity, un.'- t the disputed shaatha ­ belongod to the responden.t, I would, erefTe, CJ.SLaSS this appeal, with costs The res.ondct appeared in court, I asess the iollnt should pay Sh. 50/= as eosts to the respondent. . ' t DeJ.iered in Court on the 30th day ol' Dece ber, 197 2 . .. .. ..... - .. Mwanza E.Idy .. ... ....... 30th Decnber 1972. J1JGE r