19770728 TZHC Mwanza

- IN THE HIGH COURT OF TANZANIA T MWJtNZA . . . (PC) CIVIL P1 itL NO 0 152 OF 1975 (From thc dccision of the disLrict court of Bukoba at Bukoha in Civil /e:peal No 0 47 of 1975. — Before C0H0Tsamati, Esq 0 , District Magistrate). RWECHUNGURA BACHUBILA 000000000000000000000000.o 000 APPELLANT ;. 0• versus ... . . MARTIN BACHUBIL 000000000000000000000.00 0000000000 RESPONDENT. JUDGEMENT: LUGIKINGIRA, Jo: - The appellant suU th' respondept, his elder brother., to he boundaries fixed between their respectiye portions of a shamba. When their fath r died in 1939 or 1940 the respondent was about sixtcen ycrs old and the opr,ellant was about sevcn years 0 They had a youngr bother, Rwejuna, who died in 1943 Their fatnor left a will hut'its contents have, never been revealed in these. proceedin9s0 Itis only.u.nderstoocl thotafter the funeral the'wi11 W35 read but of the deceased's pronerties it was cattle only which were distributed. The sharnba wa not distributed on account of te children's t nder age0 1hen the appellant gri he asked for his share of the shamba from thL resoonderit 0 He was given a portion but no boundaries were fi'ed. In November, 1966 the ao)ella 1t called some. eldLrs to fic the boundoris ofLr the respondent hd refued to do so0 tveh on this occasion th respondent refused to cooperate0 He sLatad that he regarded the appellant., as his son. The elders advised the appellant to go to court. He did so in March, 1967 and the Primary court, having found in his favour, ;fid the boundaries as prayed0 In 1975, eight years 'after the matter was concluded, the reseo- aderit applied to... the. district court at Bukoba to appeal out of tim.. He alleged tht he had not been furnished, with the judgernent of the trial court when he applied for one0 He further alleged that h did not then have money to pay the ap. eel foes and had to traei- - y Sumbawanga and Zambia on business in order to raise the necessary funds 0 His apolication was allowed0 I have however not been able to trace his memorandum of appeal so I cannot tell the nature of his complaint in that court0 His oral representations do not shed much light. Be that as it may, the appeal was alloweth The appel]ate magistrate held that the cause of action arose in 1940 and that as the appellant did not sue until 1967 he was time-barred0 He also said that the proceedings contravened section 15 of the Primary courts ci,il Procedure Rules, G.N. 310/64. The appellant appealed here0 I am unable to see how the action was time-barred.. Certainly, the ape1lant could not sue in 1940 for he was then about eight years of age0 And there was nothing for which to sue. The shamba had not been distributed so no dispute had arisen. In my opinion the cause of action arose in 1966 when the responcluet refused to fix boundaries. He did so on the pretext that the whole shmha was his own, which is what he stated in the pleadinçs, although he admitted in evidence that the appellant was tit1d to a share in their father's shamba. Since the appellant commenced action in 1967, only months a:Eter the respondent's refusal to fix boun - aries or allow them to he fixed, I hold that the action was in time. Secondly, I do notsee how the proceeclivgs contravened secti"n 15, G.N. 310/64. This section provides for the manner in which proceedinqs may be instituted in primary courts0 It states that a proceeding shall he instituted by an coplicaton specifyinq certain particulars, like names, occupations and dresses of the oarties, I have looked through the record and noted that there is no written plaint0 It is ptohably this that the apoellate magistrate had in mind0 It seems to me, though, that in primry C )urts it is not noces ary fLr Lh lintiff to file a formal l.iñt Setion 15 aforosaid provides for an application but it does not 'pecify thEt the a licatian mutt he a written apelicntion I am of the opinion, and so hold, that the application COO ho an iiformal one made orally arovided that it is recorded by the court0 it was so recorded in this case under the hoOding ItM n DIIt) and this ias done in the presence of the respondent0 There was in the event no contravention of section 15. '1 wouldalso observdin passing that the respondent did not .::dvnnce sufficient reasons to be allowed to appeal out of time 0 If ho could travel to. Sambawango and Zambia he definitely had funds to pay for the appeal. The fare alone to those places was I think more than the appeal fees0 The disl­.ute was over the respondntts efuEal to fix boundaries. it was not over the ajDpellant' s right to a share in the shamba or over rho size or locotion of th portion he was given0 I thi k that the re pondent's attemot to Dlay th.. paternal role was intend to dni the appellant title over tnis oortion. He cannot Jo sb. The apiellant is entitled to a cefinite share which he can hdld as his own. The primary court was therefore corret in tho decision it reached and in the action it took0 For allthese reasons, I allow, this appeal and set aside the juclgement of the district court0 I uphold the 1udgemert arid actIon ófthe orimary court0 The boundarieS fixed by that court 5L11 be respected and maintained. The respondent will bear the costs in this:court and in both courts below. cXAA) K. S LUGAKINGIRI JUDGE