19730726 TZHC Mwanza2

IN TilE 111011 COURT Ol TjNZNIA at Mwana. (pc) civii APIAL No. rio OF 1971 (Prai the decision of the District Court of Dukoba at Bukoba in Civil Appeal No, 187 of 1971 - Before: A.N. Russota Esq., District Nagistrato and Kasanbya PriLazxy Court Civil Case No, 22 of 1971). T.11EO1TESTINA PAUL . . . . .. * . $ . . . . . . . . . . . . . ,. . . . . . . . .. AEIiL1lTT (original Plaintiff) versus: LUlCIJd1A NSJDE . ......... . . ........... . . . . . • • • . • • RESPO1IDEITT (Original Defendant) JUDGMEPT. JO1\TATI:LAN, J.'. The original plaintiff, Bi Theonestina successfully brought proceedings in,-. tho. primary court for a piece of irind then in dispute between her and the defendant, Di ilelonciana. The latter s appeal to the district Court was allowed and Di. Thooncetina now petitions this court. It was common ground that the plaintiff lied sold a piece of land to the defendarr!. It was the fornert s claim that the defendant had subse- quently over-stepped the boundary and encroached on another piece of land sho had roseed to horsoif, which is the subject matter of the dispute. The contention of the defendant was however that this land forned port of the ld aho. bou.ght from the p1aintiff'# That then raised the issue: what wore the denarcations, if any, of the land sold by the plaintiff? According to the plaintiff in her evidence no boundaries were fixed apparently because the defendant did not pay the entire agreed price at once. In this she was supported by her witness, one Isliengoma, who claimed to hate been present when the agreement was concluded and who was p notwithstanding the absence of boundaries, niphatic that the disputed land was the pl aintiffst. Fortunately, the agreement had in fact been reduced to writing and witnessed by one Sebastian from which document if is clear the plaintiff and her witness were not being truthful when they said no boundaries were fixed. Indeed it would appear that her witness had not been present when the agreement was concluded, for his name does not appear as a witness in the document while the figires he gave ofthe first payment and the b4cnce to be paid by the defendant are widely different from those shOwn in the document. So far as I can gather from the evidence and the sketch drawn by the trial court when viewing the land, the dispute was whether the southern boundary of the land the defendant bought was one and the sane boundary with the land of one Zena cl/o Salin, as the defendant claimed. The defence stated the boundary comprised sisal stumps which hd demarcated the plaintiff land from that of Zona. Tho written agreement bears this out. During the hearing of the appeal to the district court judent was produned of a ,.. case previously between Zena and the present defendant over the seae bounry. Zena successfully domed that the defendant had over stepped this boundary. In that cso the present plaintiff had been a witness, and it is clear in that judgrient that;;he had told, the CoUrt that, to the SoUth the land she had sold to the defencloxit bordered on Zona 1 s land and that the boundary conprised sisal stunps. Thp plaintiff was accordingly estoppd froti saying in the present case that the boundary was other than sh hd sttod in the earlier disput.o In t1e .roult, I in.sotisficd that the decision of the prinary court which I find difficult to understand, is insupportable on the evidence and that the judaent of thu district court cannot be faulted. The appeal is disnissod \:vitll càtiiàhI fi±'b sh.600 (. N. JONATiLAT) JuDGE.. 27/73.