19800507 TZHC Mwanza

CT IN THE HIGH COURTOF TANZANIA CC j4U ' • AT MWANZA Cr APPELLATE J1iRISDI(TION 30 tl'u (Pc)CIvçL APPEALNO. 60(9_ (Prom the decision of the District Coi ukoba at Bkoba in Civil Appeal No 137 of 1978) Before: L.M. Nsimba g Esq., Primary Court Magistrate) S 5 (Original Xaterelo Primary CourtCi,il Caé No. 8 of :197 8 ) SEBAS2IAN..GAI4ANYWA :.::::.::: : : : : : : : :- : : : : : : : : : :.:: : : : : : :: : : : APPELLANT (Original Respondent). VERSUS •.. NESTOR.'LGAMANYJ. :::::::::r::::::. : ::::;:.:: ::: : ::::: RESPONDENT (Original Appellant) - JUDGEMENT —epeli.anLi4.ed a redemption suit before Kate.ierc Primary 'ourt.ageinst the vendor of the clan, land (respondent Nd. 1) andhe buyer tr'eep'ondent No. 2). The trial Court gave judgement for. the • - .-------appe1.1.nt {plaintiff')- Iri -'-adthtion the court ruled that the alleged . sale was no sale at all :and thathe..two 'respondents (the purported and_)xiyer-Y had c pLed .±o defeat the appellant's claim. The court ordered that the - suit shamh& should. be returned ±ó, the clan ---------wi-thou±-- a-ny-'payment. The- -respondents appealed0 The appellate District Magistrate ersèd.the .decision' of the"€ria.lcourt and ordered thatbbuyex -(rasponde.nt No. 2) should berefunded Shs, . 12,0001= ....... -- pha mone.Shs. for improvements done -°!r -the. - s.haitha..-- e.appell.an±. ..got dissatisfied. and appealed to this eort. Th - -ppeflantts,eompLaints are two: that the 'price ..said to have been 'p id.ior:. the shamba is much inflated in order to prevent its redemption • ......-- and far improvemts Is uestic. I shall st4 wthe price of the shaba. The evidence on which the,buyer relied most was .a-doetiment - whic.h .1 call memorandum of sale.. It was dated 14/3/78. It recorded th.at--tbe respondent No. 1 Sold . ...piece of land to • • respondent.o....2 forShs 12,000/. It.listedwelve signatures representing twel3rewitnes.ses. Only three of these signatnries Martin .............. ch' 4 ±i Mussa and Dnil Plip, gave evidence s Martin - Gamanywa is a clai5s-man. He said he did not know for how much the thamba- 'was.. sold. The ether two Khalifanj Mussa and Daniel Martin said ' it was sold for Shs. 12.,000/=. The trial Court after analysing all the - ijdence .unanimous.ly - found that there- was no sale but a conspiracy. S I would not share with the trial .court 1 s view that there was no.sale at all. The first 'respondent could not have given out the shamba to e.. 2n respondent for no gain. In'fact the sale is not desputed, the price is in despute. I 'grea with the argument that there is a tendancy for - -. 'vendors of clan. lands to -inflate, prices in order to prevent redemption. - .Where the -price. c-oies in despute the vendors and buyers-should be ut to strict, proof. In this case the document relied on by the two -. .5 reen- s.cnj,t ie accepted for two reasons. 'First it offended para.. 929- Corry & Hartnoll which provides tha4_ there must be witnesses of - equal •number on each side, vendor and buyer. cere the document listed twelve witnesses without following- the rule so nobody can tell 4ow many 0000/20 . I - 2- were fo -the vendor and how...many'for the buyer. Secondly the docümet is liable to stamp duty and is unstamped. Under s. 46 of stamp duty • Act 1972it should not be acted upon0 Striped of this document, the respondents case rested on evidence the three witnesses. These contradicted so ruch that the trial court did not belLive them. The trial court was the best judge for the credibility of the witnesses and it was not wrong in disbelieving them. Therefore the respondents :d.id not prove that :thepricewas Shs. 12,000/=. The app?llant when he filed his suit he gave the value of the shamba as .Shs. 75.001=. He has also express his Oinion before this. court.:that the value of Shs 0 7500/= had been settled by clarismen a few days before the 1st respondent sold • it without consent. I am of opinion that a Shs 0 7500/= redemption will : The last complaint by the appellant is the award to the buyer by the appellate District Court of compensation for improvements of • ::• Sh 820/=. eadihg: the- tecord: bf: the: trial cpurt I find that the buyer made no claim for compensation for improvements not a word that he incurred any expenditure on the shamba. Moreover the shamba was sold on 14/3/78 and on 10/4/..8, 27 days after the sale the two 4 respondents were in court to answer the suit concerning the same s 11 ba. The buyer could not have, incurred Shs, 820/= on improvements within such a short periO in ddit±on-to this irony, the trial court visited the shamba and the trial Magistrate specifically recorded that "hakuna ulime mpya kwa ajili ya kupanda mazao merigi.ne.." there •wr.e-.any other new thing.s put in by the buyer he should have drawn the attention.of the visiting court to th smd And if the improvements were done while the suit was on, then the buyer is not entitled to be compens a ted. I allow the appeal to the extentthat the decisior of the District Court is. set.,asidejn its entiety. The appellant to redeem the suit shamba for Shs 7560/= and no compensation for improvements. The -. •J•• • • • °• • appellant tohave.his costs. • -• - • - • F. A. MUNYERA • • JUDGE. 2 • • S '1 N.