19940415 TZHC Dar es Salaam

IN THE HIGH COill1T OF TANlAIHA AT _.DJ-I.R,_:C$ ___ ~AJfMN HISC o CIVIL AP:FE.b.L NO. 2 OF 1991, ATHUNANI M. f-iATULI ••••••••••••.• APPELLANT versus RASHIDI A. MANGULE e • • t O O O O O ~ 0 0 • RESPONDENT JUDGKENT ..---·---=--o•..-·~~- CHUA, J. _, This appeal is about an unsurveyed piece of land at ' Temeke District Dar es Salaam. In the 1 rimary Court of Temeke Athumani Matuli sued Rashidi Nangule for a piece of land whose size was not specified. The Primary Court decided the case in favour of Athuruani Ma tL1li. Rashidi Mangule appealed to the District Court Temeke where the decision of the Primary Court was reversed. Athumani Matuli appealed to this court but before the case could be heard he died •. His son Saidi Athum2.ni Natuli having been appoint_ed administrator of his estate applied to be allowed to prosecute the appeal and was duly granted perm~ssion by this court on the 10/2/94. I shall refer to the administrator of the estate of the deceased as the appellant and Rashidi M2ngul€3 as the respondent. It was the contention of Atpumani i·Iatul:i. at the 1'rimary Court that he had occupied the land in dispute since 1965. He built a 11 banda 11 which subsequently fell down and-the land remained under the use of his d2,ughter Salima Athumani (P.W •.4). The respondent is alleged to have_ put his bricks on the land and claimed the area to be his. The respondent -also claimed to have been given the land by his father in 1 ;law Mohamed Omari (D.W.4). That was as for taek as 1969. A neighbour ·o:t the parties, Omari Ivlhungule (D.W!5) deposed that the ~_Fpellant a· after his band.collapsed moved out of the area and sold his land to r~e Mzee Ally who is now deceased. The appellant therefore no longer he~ any plot in the area • "I· .... /2 2 The learned Principal District Magistrate who heard the appeal at the District Court allowed four additional witnesses to testify. These were Se.idi Mkayahdo, Moshi Kondo, -Omar;i. Mchumbika and Augustina Salirnu l.\ipanduka. Though in the proceed- ings of the case it is not shown why additional witnesses were called, it is clear in the judgment that -the learned Principal District Magistrate had good re~sons to allow additional evidence !! . to be adduced. The magistrate also visited ~he land under dispute and drew a sketch plan which differed from that o_f the Primary Court, I~ his momemorandum of appeal the appellant challenges the evidence of the father in law of the respondent as being unreliable because he 5.s blind. But I am not aware of any law which prohibits a blind person from testifying especially if the matter under dispute arose when the witness had his power of vision. The a~pellant again contends ~n his memo- rundum of appeal that the decision of ,his 10 cell leader which was in his favour should be adopted and not that of the 6oncilliation Board which was against him. But it was the duty of the trial and the AppellateDistrict Court to assess ·the evio,ence that was adduced before them and they were not bound by the decisions of some other body. The appellant challenged the evJ.den~e of rvirisho Kondo (D. W. 2) which was in fayour of the respondent~ ~is r22sons for challenging that evidence is that the witness wes a Frimary Court assessor who had decided the case in his fa~our. But leaking at the proceedings of the Prim:1ry.Court it :J,s noted that Nrisho Kondo was the first assessor and that his opnion was that the land ~- .·. ) ;;_ , ! -1.o:ngei.Lget to t_he respondent. His svidence was not therefore- J.1.. . in contradiction to his verdict at the trial. It was important to note that whereaB the respondent claims to hav~ been in possession of. the land since 1969 wh~n he was given by his father in lRW: the.suit was brought in 1988 long t after the appellant had vacated the land. That was i think a material factor to weigh against the appellant. 1· •..• /3 3 - In the result~ co_nsidering the preponderance of evidence I am unable to find fault / in the decision of the Distric 4 C6urt and h~reby dismiss the appeal with costs~ ., ,, ; Le J :· 'R• CHUI' JUDGE 15/4/94 Judgment Delivered in the presence of both parties •. / ·r/1, / ---"~ ,,..·· .' ,• L. J. Ro CHUA JUDGE 15/4/94