19940823 TZHC Dar es Salaam

Lt~R.:f\-Q::) 1tiCi+\CDulLl t \S-f,--L Prfr-rn COURT OJ!' TANZAIHA AT DAR ES BAL 1Af'1 ~IVIL APPEAI NO. ·! 29 0]1 1992 ~ d~c~sion :1 the District Court ~ C1.v1l Apy 1 )al No-.21 gf 1992) ·, 'LUM nnmu l \, ... , ~i:, ••••• ~ • • • • • • • • • APPE.1:i:.AlJTS :-. Versus B •••• , Rb Jl:0 HD.Elfi' MK.UDE, J. This case involves ·a C!h,pute . ver a :.,Jiece of land m-ea;u!'in& thre~quarters (3/4) of an acre located at KinJelezi aree in Ilala District. The appellant, GJ1lDI SA1ill1 Hnrnu, was the or;ig~al de!endant in the Primary court of Buguruni, whil.t the othe~ five appellants and his relatives who were not part1eo at the trial or at the first appeal in the DistriQt Court of Ilala. For th~t reason theJ have no locus standi to prosecute tb1s appeal. Accordingl~ their names are struck out and only the name of the original defendant, Saidi Salwn Mindu shall remain on record. The rest'ondent had sucoessf~ sued the appellant in the PrimarJ court for having sold her pteo• of land without her consent and failing to deliver th• pro•tede Q! sale to ber. The .Primar.t court of Bugurunt .~ed t:iat the plaintiff w.ho is tr.e respcndent in this appea•• sbouia be given her shamba ·oack .. The appellants aamit that the.t sold pert o! the uhemg~ wbioh was originall.Y owned bi their great grandtetller, 'bY.i oleim that the., left a portion for the respcndent and tJie reeptndent is now unreasonably

refusing to accept the 119ri1in lett for her. The evidence as found by the trial court 1e tha·t ..•, -• C atter the deeth of the parties' great grandfather tht land wa divid•d into pertions and the plaintiff's grandmother was given a ptrtion to cultivate. After her death that poft1on Wfi i.nllerited by the plaintiff's mother ano when she too died tbe plaintiff inherited that portion and cultivated it for ~eve;,L Jeare beforr moving to Chanika where she now lives. The other part ot the sbamba was held h.)' th.e grandfather of tlle appellant 1-· - 2 - and when he died the appelJznt's father inherited it. F~llowiog the death -"i" the appellanti,3 fatber the appellant and his itte relatives inherited the sLa;:.1ba. It would appear thut c'.10.r.g tbe six oi' them there were no elear~cut boundaries of th0 several portions of land theJ were cultivating over tte yeRr~ but the portion held by the reePtn~ent was clearly identifiable en shown by the testimony of MGENI MANGARA, MSHINLO ISSA~ and HAJ'.IISI GEA.BAN, PW2, PW3 and PW4 respectively. When the appellant· decided to sell to a thiro party he sold part _of th~i: shamba as well as the respondent's shamba and left out a_po.rtion :for the respondent which forme~ .. part of the appellant's father's shamba. In those oircumst-anoe-s ....... - -th.e respondent was entitled to demand the return of her shamba .•.... -· · Evidence was led by

the appellant to the effect that th•· respondent had sent him a letter instructing bim to find a . b~er and noti!J her as soon as a bu.yer was found. l3ut, as oorrectlJ ~inted out bJ the trial court, that did not amount to a mandate to sell. In m.Y case the appellant's conduct in J,ea'lillg f'or the resp~ndent a piece of lana different from the one ell,~ bad ooan ocoup.y"ing since tlle cteath of' her mother is not c~n~1tent with his cl~im that he sold her portion beoau..se she bad given him a mandate to sell. , ]"·or tlle a°Qove reasons I see no reason to disturb the cou~4 rent l~Ud.ings 'of the two courts below. Accordingly ·t!1is appeal iails and I cismiss it with costs to the respendent. T.L. Mkude Judge 21.1.94 gg~t: Ju.d~m,mt is t,ea t~.y. 2;11d Au~uei. ~~94 °MfQr• the Parties. A. R •.: "it~ifent·;\ GElHOR LfillUTi REGI.bTR.AR - acr 23.s.1994