19791109 TZHC Bukoba

(_j tr1j PPELIATE -tIiON .. (nc) CIVIL APPEAL NO. 69 OF 19T9 (mthe dooiion of the District Court of Bukoba t Blikoba in Civil Appeal Not 78 of 1978 - Before J. S. Mwami, Es, senior Magistrate and Katoro Primary Cou.rtOrigiiial Civil Case No03 of 1978) SEI.1AN ISSA. . . . • • • . • . . . . . . . . . . . . . . . APPELLANT Vcn r;US YUSUFtJ HAMISI. • • .. . . . . . . .. . . . . . . RESPONDEITT T U DG M E N P ; 1UBAMA, J.: This is an appeal against a redemption of a clan sharnba order made by the District Court Bukoba. The following facts are not disputed. by 41 the parties: (i) that the shainba in issue was a clan ohamba that the appellant/defendant bought it in 1974 at 26001= (two thousand, six hundred shillings) that at the conclusion of the sale the resondent/ defendant was not present that the appellant had not immediately moved into the shamba in issue and the seller of this sharnba continued to tend it that the respondent started the proceedings to redeem the clan shamba on 8/2/7 8 . Was the respondent/plaintiff time barred to start the proceedings? Both parties to the appeal were representedo The appeal was thoroughly argued and I am grateful to Mr. Kahangwa, advocate for the appellant and Mr. Rweyemamu, advocate for the respondent for their assistance to the court in this regard. The trial court and the first appellate court found as a fact that the respondent had not known of the sale of the shamba until 6/11/77 He had not been notified of the sale by anybody and the conduct of the seller made him believe that the sharaba had not been sold. He cont±nued to tend it and generally had his ownership of the same felt.-. There was no move by the buyer of the shamba - appellant to make hm auspi.cLoun that the clan shamba had been sold to somebody let alone soi.nebody oatsiie the clan. These concurrent findings of fact are based on the evidence on record and I am not prepared to hold otherwiser They cannot be faulted. The lower courts found that the respondent/plaintiff filed the case without undue delay taking into consideration the :ircumstances of the case. The trial court held that the respondent/plaintiff ou1d redeem the clan shamba. They estimated that the cost of improvements by the appellant on the clan shainba as 4076/50 (four thousand, severity six shillings and fifty cents). This estimate is being challenged by the appellant/defendant who wants it raised to 25, 1 35,1= (twenty five thousand one hundred and thirty five shillings) On this issue, this court mwt, of necessity be guided by the trial court which heard and saw the witnesses and ha v.sitedthe shamba. The court has cost the improvement at 4,076/50. ittedi.y fi±s not easy for one to make such costs but this couthno re'soH to believe that this costing was faulty in any respl/ Tohdld otIr\ise is to move into an arena of specu1atiohnd t6 disregard th\evidence on the rccord. uphold the costing. obrdi'glthe eppoalis dismissed with costs and the decision of the lowrourts upheld. ( . CAAIc BtflOBA YAHYARUBAL