19800610 TZHC Bukoba

- !N P H9 HI&H 0OUT OF - MzNL IV~ JURISDICTION NO 82 OF 1979 (From the decilsion o: the District Court of Bukoba District at Bukoba in Civil App(a1 No0 :1.18 of 1978 Before I K, Maohn.0 Bsq District 1agistrate and Nsharnba Primary Court Original Civil, case No10/78) TH.DFJO KAHITA, . . . .. APPELLANT Versus ISAYA BIKWFTiK0 .. 0iSFONDENT is a eeoon. appeal by the appei1ar'p1aiot. He had. sued his u.r.c: ove the estio'. c.t inhe.citan-e o.± he .roperty left behind by he:-.-, ant ore- aJi-. 11 had allkgec1. in court tha'hIs graar, Nd.agai.c 15. four :h.i Ldro:o two cone and two His grand father had ap .nter,. hic twa sous g.ardiarLe ci' his daughters ppel1an's fath€o )twa.-, t.ho elder son wao appointed. the ardiar. of, Xataioak 4,. whL.3 the respon i,!deindaTlsryaJ3±.wreki was appoint.pd the gard.iarr of his cecond aunt usheigu- o1lowin the death af i(a'wa tne appe1lantc f ther 'the a2.Jeut Th:dca J(ahita app ;d u'd.ian of his aunt the said. Kataisaki - The appellant testified furthen that he had taken oars of the said Kataisaki until her death 0 This testimony was uppor ted. by several other witnesses includi.rig Mukak sheia the other daughter of Ndagala and Onesnio K.ahL -twa The appellant also testified that he had bcught the shaniba in dispute for his aunt lateisaki arthe :instruotions of he çand father., This fact has. also been c-onfirmecJ. by Oneerno Kahitwa The resond.ent/defendant maintained that he was he guadi.an of Kataisaki and that he had been tuking care of 'Gha said Kataisaki till her death He produced a sale agreement of the land. in dispute which land he stated had. been bowhn by his father for his doter Kataisaki The Primary Court found that the resporxdent/deferAant was the guardian of the said Kataisaki and that he had taken care cf the said Kataisaki till her deathn The principal reason is that the respondent had produced. the sale agreement of the 3and in dispute and some medical receipts evidencing that he the respondent, had been taking the late Ka -toisaki to hospitai, As ebserved, the receipts were n o t bearing the respondent's name The tnial court did not even attempt to analyse and evaluate the rest of the, evidence for the plaintiff or the defendant0 Indeed, there is no reference whs'bher or not this other evidence is disbelieved or not0 This was a misdirection and a serious one0 The trial court is required to come to a decision after due consideration of the evidence before it and not otherwise This serious omission was not noted by the first appellate court and accordingly the court did not ad3ress itself to the subjects Had it done so, the court would of - course have been in a position to re evaluate and nel'.-: -t he -.dcc' oo.c c.4 s own decieions 'l' -' 2-- This court is now faced with the task that the lower courts should have dischargede Looking through the record, and fuily appreciating the limitations of the court especially in the face of the concurrent findings of facts of the two lower tribunals I see that the evidence on record does not justify the findings reached by the lower courts As I have already pointed out, the lower courts did not discredit the appellant/plaintiffrs witnesses at all, All these witnesses were firm that it was not the respondent who had been the guardian of Kataisaki0 Indeed eve. the svrviving ioister of the respondenl confirms this fact0 This was a crucial point which was not touched and which I find in favour of the appeEant/pWntiff after examining the evidence as a wholeo This evidenoc Qonzly shows the respondent a her. While he admits that he had bought On shamba for Kataisaki a principal witness of his sated that he had actually seen the respondent buy the shamba W. pay money in the precence of the said Kataisaki0 But the evidenco of the headman of the village at the time, Edward Bii -ta confirms that the shamba was bought by the appellant's grand father and handed to appellant and i<.atai.saki to live ine All these important piecs of evidence were ignored by the trial court which went to lay its hands on relatively unimportant pieces of evidence to determine We key issue of the case Having found that the appei1ant.s father and on his.eath the appellant were the guardianFibf the said Kataisaki, the. issue of who is entitled to inherit Xataisakirs property becomes easy to- resolve, Kataisaki's land is not clan land: it had been purchased and given to her by her father before the father died She had n inherited this shamba nor had her father inherited An The said Kataisaki had left no will end in accordance with the Bah.aya c.ust mary L law, this land should have been inherited by her guardian s th appellant I so order nowc Likewisep I order that the nine cows • left by the said Kataisaki be inherited by the appe].lant.... The •grabbing attitude of the respondent which, was unfor't:unately sanctioned by the two lower courts in to be deplored with all the force at the command of the court0 I thus allow the appeal with ots The judgments of the lower courts are hereby quashed and the orders made set aside0 The property left by the said kataisaki. is to be inherited by the appellant •-. her guardian tilJ.. her death