19851207 TZHC Dar es Salaam

IN ..,t:J '.,q~ ~-iIG-Ij .! ._,._,,.,,,.._I. ~.:•'::-' qQlffi~l'. 011', +,fil~ZAI\J::p:~ ~~ \1\,}t,,,_1,, •. ,,. ~•-~. .._, .•.;, • . _1 ... •~• • .;.•• AT, ",JJ-u-Z :~S GJ--J..,/J..M ;·.~,~...; .. _· --~ :.:.•~:· ,.,i:;·.. ·-~ ... , :.-::•\:.-~~::~"J!~; ~?S~ 83:~b f~'.·~'Sf:~; ~w~~2 Qf ½?-8:~ the •.. · . : decision o'Z. t:1.e .• ·~:i: ..:_:_!•:,J ••.~:. ,;:. ',,:.,,.' :Uio trict Court of Kilosa _:·:.::.·:::.,:-,:;.,:,:.; \,,: ... ·.:.·_:~..... ·;; <_·-~.: · ...~ .....:--·.1~-~ I4+8Pa . ,,_,;..,_. ;iµ ~-·· 9t'. ·,·".':1t~+. ' ..... 4-i;P,~~:1 ~ _,, --~ .... ,," ~·· qf No.10 ·•'-• Jgp~) .. ·'.•·; ... ~~·,··,, o e o o o • o • o • • • , o. ~ • o o , ., •MFJ..IJME ~Ji.:::>:;.:•r:;~L.[.,ITT .•, L.LL.I :••<•~•: •, c • o~ ~ ~ f ,< ~ ~, Ii' 4 ~ O O • 1 O • • • 0 0 0 • • • • • ' r • I· -;I U •~ 1/. u Q ~ ,i_ (> ' ·• i J "': {, ~ .,.: f" (J i Q ., ~••:--' ~I ; ,I, • .',: • ••'•"f.• /._; •, 1 , • verous ·\;;:·::··:•;·: ::·: ISSI.. J.p~:;m4EH;l' 1~· ,. ... --~· )..., , .._,r.~ , ... . . ..... ... f .•••;oJ, •"~••••-M•~••">I • - ,., .~ ~4li!'•1'4:_,~~- ~ ,Tb,i_s if.? n, second amJeal • T;1.c a-o-;:,ellont :weto the de:f0nC:c:;nt :- : ·-· ;';. . ::..?.:..... {~,i<~<:-:.:.:, ::_~ _._.- :.: ~ ~ - ,::::,: ..L ··- .· __·.-::: .._..~ . :.- ·,·... :,..: ·.. .-;;. ·. ~.-. .._-:: in .tlJ.e ~!-:!'.?'.l l)t~:L.R,.~.~.f'f. , Ti1.e 901.Jrt .1:1:h~.le tJ.10 responc:ent :-'[?\~ · th.E:: . • •·• ! -· . . .

. . ~ ............ , . •• • • • • ~ -~ c.laj_m ., .i.n the ',~ .. },:i;";i,p:;i.;ry . Court voe for Q piece of' land' ii~j:ch , . .th~ .. . ~ , ~cspondqnt claimed that the appellant had entered upon and Ti.le prir:iary court deciG.ed ago.inst the respondent who a:;_Jpealoc:1. to the Dictrict Court. The :U;tc; ·trict Court decided :i..n t'av::i-..1.:r of the respondent. IIcn:.ce this a::,::,pec.l now to ti1io c-:iurto ?he evidence add~ced in the trial court in support of the claim W8.S th2.t the re::;po11.clent/plc1intiff' hes n shar.1ba neJ:::t to T::ie appellcmt/defe~1dnnt c::1tere0. r:bout nhalf an c:cre in 1·1ic~th and one acre in length" into -chc ]_c:mc'. o:f the r0sponde1~t/r::lni:n.ti:ff' • It ia not clear to me whc, t The S,:1ahili used in th.e record of th0 PriEmry 11 Eneo aliloingilia odaiwe. 21.i kiasi cho ½ eka ii.....").yt.•1ay what is cert2,in here is that, the respondent/plcdntiff ~,,as asserting thnt the aJ?pellc1nt/cle:fe:o.1.cant entered and took pa:..... t of his Ghamba (plaintiff's)~ As a r0sul t of this encroac:.::u-:10:nt tho rospcndent/plo~~tiff referred t~G matter to the villaco a"xc~~0:c::'_ ~;:l.GG and ev0ntually to the I'rir:12.ry Court• 1JJ.aintj_f':Z' rn:dnte.ined in cross e::::ar;:,inc:i tion tho t the disputed portion -together with the rest o:Z' hio oh;;,r.m~ hcd been inherited by him :f]:-om his late father m1d that at ono tir::1e ho had given

:i_Jart of th.is :-:ihe.r;iba~ to one Ifaee Alli for ter.1porcl use o Th0rG was 0vicl0nco fro!:: J..omin Kc..:i_)ili □a Hho averred th2 t she J:1:::irl a husbc.n6. now dec0E.sod -11ho hc1c:. h00:.1. gi von the ohar.iba in dispute by the ::·ntl1.o::· of the plnintif'i' to cultivcte nnd that this husband ::.~otu!:':a1.ec. the sho.1:iba to the plai:ntif'f' uh.en ho could nc longer 2/eoto• .,_ 2 cultivate it. She put the area. on which the defendant r.,,ad encroached to about an acre. There was yet anothe:r.."' piece of evidence from Kolombani I Simon who testified that in 1982 he got complaints fro □ the plaintiff tbout the encroachment of the defendant over the plaintiff's land. Then the:'.'e vms some c~iscussion of the □a tter and i t was decided to plant banana plantations to mark the boundar;J. of the lan1s of the fig disputants. This ,-ri tness also said that there was e. wild/tree as. the mc:rk showing the boundary ,,hich tree was nm·r c~eep into the shamba of the defendant. • J.. The last w1.,ness I-IE:ru.."1. Amili who did not know exactly how far the defendant had gone into the plaintiff's land. But this witnesses confirmed that the piece of land in dispute ,;.ms ·of the plaintiff and that the boundnry between the lands of the disputants was a wild fig tree and banana pla:ntntions. The defence of' the de:fendant °\--ras that the disputed lnnd was hisp having inl~erited it

from his father. The defendant conceded in cross.:.exnrainn tion tlm t Ali Msee now deceased h2d cluir..1ed that the defendant had gone beyond the boundary of his land but the defendant claiii.1Gd that wh2t he found in thcit area WclS ju.st bush which he cleared to gc,t rid o:f destructive animals. It would appear that the d0fendant w1.::s -11sing the nc::mes Alli I'1zee and Mzee Alli inter- changeably to mean the s2~e person. There was a -:-ri tne.ss Ahmed Easoani for the defendant who testified that he hc.d u ohamba next to the defendant's shnr.1ba and the: t he had been given that slmmbo. by th.0 defendant and that he knew nothing about the claim of the plaintiff over the dioputed land. Finally there 1mG Mohamed Mzee 1-Jho testifi0d tr.0 t one Alli Sefu hc:ld lent him a sharriba near the defendant I s sb.ar.ibo. and that he did not know anything .:toout the claim of the plainti.f'f. The ?rimary Court ,·rent to view the land in c:.ispute and a sketch plan wa.o dr.;i:w:n. TJ.:i.c sketch ph::.n shows the c:lis:i_:iuted land which is about 45 yards by 60 yardno The disputed land is shown to contain su 6 crcone plantations of tho defendant. T~wre 2.re also l f the banana. plantations shm·m ,-rhich the plaintiff' clnir1ed to be the bounclclry of' the shambas of the pai~ties. The A::.sessors f'ouncl the l,)l8intiff'' o evidence not 1.'leighty bocnuse he did not sl'1ot·1 any

:;_)ernanent crops 2:nd because he r..ad been late to bring hio claim. On the other hand they :found the defendant had shmm the crops uhichhe had planted there namely the sugar cane plantc.tions which showed that they were there for at least 7 years. Tb.e i?:r-imary Court N:-:,;istrat0 agreed with the 3/ ~ .... 3 assessors. F ,r. ~ott•· The 0istrict/\.found t~e evidence of the p~a~ntiff to be the r.10re weighty than the defendant's evidence.. Tlw Di:::trict Court c.lso found the sketch plan unreliable b0c21..-1se of the banana pla- ntation in the middle of the disputed orea. Considering the state of the evidence in this appeal it is clear th~t the evidence for the case of' the respondent/plnintif'f' is more cogent than that of' the appellant/defendante· There were at least 4 witnesses fo:;_~ the respondent/plaintiff who gave evidence to shoi,r that the sharnba. in dispute belonged to the rcoponden"t/ plaintiff. They pointed out that the boundary consisted of b8nana plantations planted after the mutter hc.d been resolved behrecn the parties. :?J.aintif'f''s witness KoJ.ombnni Simon told the trial court how the boun.dary was made after the dispute h2.d been recolv0cl. He also told the trial court about the wild f'ig tree c.s being the main mark to show the boundnry. :Gut it is surprioing that the sketch plan does not ab.ow where ti.1.is tree is·. I th;;:refore sh8re the views of'

the learned District I'-'.:agistr::.1te that this skotch pl2.n should not be relied upon because it ~ay be incorrect. Whet do we h2ve on tl1.c side o.f' the appellnnt/c1.efenda:1.t by 1-my of evidence? H'"'rdly anything. None of the def0ndant'a witnesses • :t • .,_- • gnvc any reliable and cogent eviaence in "nis cc.se. Doth '!:JW'2, and DWJ had no sl10.r:1bas of theirs at the area• They had been given some shambas in thG t area by other people to cul tiva tc o::.-i a tempora1A bnsis \J only. Ind0ed they did not clcim to know much nbout the bo1..-1ndari0s between the disputants. I ce,:nnot see therefore on this evidence hou the Primary Court could have coi~e to the concluaion that the evidence of the defence wns more ueighty. The fact that the defendant hnd managed to plant sugar cane plantations and banana::; in the disputed shamba c1id not rne2.n thnt the chc::.mba was his. Indeed the defendant -.:·ms claiming in his evidence the t t~e disputed area w2.n juot bush and that ho had cl02trGd it. His earlier claim th2t the disputed ~rea had been inherited by him :from his f'ntb.er is contradictory.- Like the District Court, I find th&t the plaintiff' h2'd esta.- blished his case on the balance of the probabilities. I therefore J.• • find no merit in .,n.1.s nppeal and I cli::;r.1iss it accordingly with costs.

JUDGE 4-/ •••• Court: Judgment deli vored in court in absence o:f the pnrties who fa.iled to turn up on 23/·, 1 /G.5 as fixed for delivery of ( __ _