19960820 TZHC Tanga

-- . IN TBB lllfflI oomr OF '.C.lilZA)Il',A. - 111 TANGA MISCe CIVIL AP:\'LICATION NOe 30 OF 1995 ~ I JU.SSANI•••••••••••••••••••••APPLICANI' vmsus P.HILJt>JONI MPIMBWE •••••••••••••••••.liESPOllDDJ'l'

I

RULING I In 1993 the Respondent :bl this applioation, Philemon Mpimbwe, filed a suit against the applicant herein, W Athunani Hassa.ni, before the Muheza. DistriOt Primary Court at Mbararnoe He was claiming ownership over!even ,-and, a half acre pieoe of land situated at Msowelo Village, Muheza District which the applicant was claiming to be his property too. The applicant resisted the claim. The evidence in-ohiet of the olaimant was starlilq short, It was all in one sentence, which went as follows. " Mimi nada.i shamba la.MU ambalo nime~wa na Jum~ ~~ se.s~ -ma.a/(~io)-~i1~~ 11 ~, . . From questions put to him on eross - examination b,y the Defendant (applicant) and the'-eourt# as·a. whole.-·he' t1'1e4: to· elucidate. He testified that he was given the t:iisp\lted suit land some twenty years ago when it had 4 ·coconut' plants. " •Be' fu:rth et- --s~d · tha:t he was given the said land in the presenc~vof ,Q!Hf;--· Sheakbo«M.· ., This Sllerm.lbome testified on behalf of the Plaintiff a.s Pff' 2e . PW2 told the trial· cfourt tl:ia"t-lie lives :in the same vill888 as the tw9 litigat1ts and, that they a:re• .neighbours. 1 l!e ea.id that he ·beoame ~ :i-esident of .t4a,1;_ Tillage µi~1914, when ~e 'bo:ugbt ..a.1pieoe of. land: J\lna Mpenda, the very persotl who all.egedly gave- tb.e disputed. land ·to ·the·, .·' ResP9fldent.- But in.what appears to ·be a direct assault on

the Ol'Eld4biUty of· the Respondent, P.d.2 told the :trial oourt tbat-he totmd..-tbe B.eswndent .alrCi)ad,J in possession.,of the dis~ted lan~ Je Mpenda. testified as PW' 1. · For h;i.Jn the disputed land once leto~«J \:) 1'.j.i, e1,,tp wotbo who l;ad d;t.ed al>o1J.t 1, J'ears previ,ous~.$1i &is in.12.7q. P\f1 waa eXPliQ1t in his ol,a.un that he gave the dJ,s~ted land to tlle Respondent a.ttei- the death ot his eldei- bl'othe.l"t In so testi~ PW 1 ·not only di~credited the Respcnd~t/PlaJ.ntitt, who ola.imed to ha.ve been 1n··oocl,\pat;i.on of the suit land for about.20 year~ b~ tlle ie# 1993~ but e,l,so PW2f ' . . . . . ....12- r~ .:.J - 2 For his pa.-rt ~e APpl~ant, as De.tend.ant, told the trial court that the disputed larid formerly belonged to one ~aga, Upon his death his brother, Dinze who too died in 1909, sold the said land ~ him sometime in 1983 ( ten years prior to 1993). He told th~ trial court that t~e sale transaction was reduced in writing and. was witnessed by two witnesses, Venans;)e Pons~ano Jifho had died by. the year 0 1993) and Morisi Joseph. The said Me JosepJftestified as DW 3 but not I . on]¥ denied having witnessed the alleged sale but also knowing the location of the suitla.nd. How~ver, the applicant had two more witnesses. These were DW l Misigalo Ndinze, the son of Dinze a1ld DW 3 Juma. Shekhe, a Field Offi~er. DW 1 told the trial court that the land

in distute once belonged to -~is paternal uncle Maka.n_raga Kanyoni and when he died his father, who was the elder brother of Makan,yaga sold the same to the A.pplioant. Be hastened to add that he was so told by his deceased father. DW 2 testified that in 1983/84 while going about his official d1Aties urging people to clear and put to use the bushy lands he came to know the disputed land•. According to him he wa.s told that the same belonged to the applicant and further added that it was the applicant who cleared i:t. The trial court was divided in its decision. One assessor. I ruled in favour of the Respondent who was the Plaintiff, while the other a.s~essor and the magistrate ruled in favour of the Applioant/Dctendant, So the Defendant carried the da.Y"• The Respondent a,ppealed to the District Court of Muheza.. / · On appeal the District Court qua.shed the aeoision of the ti-ial court. The learned appellate District Magistrate in ruling in f'~VO\lr of the appellant (now Respondent) held as follows• "•• •• trom the evidence .given as well as the ma.p drawn 'I ain satisfied that the shamba was for appellant as l:)M 1 Jumanne confirmed he was the person who sold the shamba to appellant.•• (underlining is mine)"• The ,Applicant appealed to this court. In it~ JUdgement delivered on 14.7.95 this court dismissed the appeal with costs. The dismissal of the appeal was predicated on

the · belief by the learned appellate Judge that the appellant.was belied by his ow witness •Oiwi•'' (DW 1) whom he had alleged to be the one who had sold the suit land to him but who .in turn had told the court that - J - '3'Cars agon and was so informed by his father. The learned Judge t\lrther held that on the clear evidehoe on record the ltsha,mba. in dispute was part of the estate •Of the late fa.th er of one Jumanne .. Ml)elld.a, who w~ sol4 it to t9e Respondent i9out 20 years ago1t (-uad.erli.ning is mine). The appellant is aggrieirod ~ Wa decision . and is eager to challenge :on appeal ~o the court of A,ppeal of Tanzania. Hence this application for a certificate on a. point of law under s.5(2)(0,) of The Appellate Jurisdl,Dtion Act, 1979•- The points of law for which the applicant is seeking a oertifioate of this court are• a.) That the courts below erred m law and fact in belicvillg the evidence of the respondent whieh was oontradi.ct~, in tha.t the ~ef\Jl()Jlaent alleged that he was given the shamba by PW· 1 Jumanne while I the latter testified that the saine was previously owned by his ta.ther and when the latter died he sold the same to the J:oepondent. b) That PW 2 had no power to sell the said sharnba. as he wa.s not the adminj etrator of his late fath~s estate. c) That. as ~e _h~ been in occupation of the disput~d sui tland for almol3't 10 years and planted

pe1,nanent . ; , .. the doctrine" ~f -adverse· ~s~.ession aopt;. tb~rein . . ·~ ought to have been applied in his f'~vo~,. ,._ d) 'rhat both -·appellate courts ~rred •-1n ,failing to .' -.. scrutinize· proper~ t!ie entire evidence .and -as ~ result they leached. a.t (;I- wr~r_ig and 'I.Dljust d~cisionc As the Respondent never a,ppeared <;>n the day of hea.ring when he. was no duly served with notice of date of. bearing, the matter wa.s heard ·in his a.bsenoe1 . As a. rosul.t ther~ are no ommte;- arguments: to the ap:plica.tio~ •. After ·careful.ly ~d dispassionately going throush the evidence_ on record I am sa.tisfied that the first poiht is based ·on a misa.ppreh'ension of the evidence of PW 1 Jumanrie Mpe~ thfortunately the saxne misapprehension is explicitly apparent in the Judgements. of . , the two appellate courts• As already shown in this ruling th.is . ~ court and the District Court decided in favpur· of the Respondent because they believed that the land in dispute ~as sold to the Respondent by PW ·2 Jumannee This court went· further and held that this sale of the suit la)id ·which once belonged to Pli2', 8 father .... ,.,•·· -4- •. ' ,. /' took pl.a.c,e "a.bou1r 20 :rears .ago" and. that ·th'=' Resl)Olld.ent has l>een in occupation of this land for all this time..11 However as I have already sufficientl.3' demonstra.te.tthc .,. first ·finding aboue is · not supported

by the evidence on record. All of the witnesses on the side of the plaintiff alleged that the disputed land was given { ex gra.tia) · to the Plaintiff by PW 2 who· is his brother-in-law. Furthermore the evidence of these witnesses shows that the said land was not part of the estate of -PW' 2' s father but part of the estate of PW 2's brother. Whether the Respondent has been in occupation o~ the disputed land for over 20 yea.rs is :·~ubjeot to controvercy. This is because the plaintiff's witnesses have fundamentally oontrodioted one another as already shown in this ruling. Both appellate courts never addressed their minds to these oontradiotions before accepting the plaintitt•s version to be true. This court apparently disbelieved the APplioant' s claim over the disputed shamba because altho'-18h he ola.imod to ha.vo been_ sold the some by Dinza he was bolied by the latter because Dinze "told the court that it was his, late father who sold the ea.id ' sb.amba. to the appellant a.bout four yea.rs ago. n However when one reads the evidence it becomes obvious that when DW1 Ndinze talked Df four yea.rs he was refering to the number of years which had passed since the death of his father Dinze wlio had sold the suit land which bolonsocl initially to hie late uncle Makanyaga -Kan.Yoni, and not when the alleged sale took plaoe. The J.pplioant had earlier givan aimi~ evidence. It is

therefore olear that tho appella.to judge confused oonfused Dillze the alleged seller and brother to MakanY8'a witb DWS. I Msigalo., Ndinze his son. Furthermore the evid,enoe of DW :2 was not considered at alle / In the light of the above it is crystal clear that tho tlfo appellate oourt~either took a mistaken view of tho evidonoe of some of .the witn(;}sse~ and/or totally misapprehended the evidence ~f some of tho witnesses. They also never ccnaidercd the contra.dictions in the Plaintiff's case. Indeed this is the gist of the applicant's fourth ' - complaint to the effect· that the two appellate courts failed to properly strutinize or rather evaluate the eVidence and as a. result reached erroneous decisions. So the question· of law which I ha.ve ineVitably to certify to the_ court of Appeal of Tanzania for its opinion is whether the ,District court and this court would still have come to the conclusion which they did had they not so misapprehended the evidence on :Jecord, had they taken into account the evidence of DW 2 who -was apparently a.n independent witness and/or ha.d they not failed to consider altogether ., . - 5 ... the etteot of the in-eoonc.ilable oo~tradiotiou in "'the evidence of the plain.tiff and his ·witnesses. . . . The issue of the capacity of PW 1 Jumanne either to sell or to give the suit land to the piaintiff neither featured in the trial ... ' court nor

in 8¥f¥ of the two appellate courts. As such no <!ecision was - made on· it -by any of these three courts. It is now rather late in the da3 to introduce it at this stage. It. was the basis of the RcsPondenti s claim of ownership over the suit land that he was givon, f.t-ce of ch~ge, the said land by PW 1 Juma,nne about 20 yea;rs prior to his filing of the suit in 199 J. On the other hand the a.pplioant claimed to have bought the suitland f'rqm the father of DW' 1 a.bout 10 ye~s prior to 1993, and .had b~cn in ~' : . : . ·.' ... ' ;- . ..t" """' •,• ,.. ✓.. ~ ~-- ..~ ......~ ~ ..... <:••~., . effective occupation of the sane since then. oor:rec'h; could~ doctrine., ~ of adverse pasaossion be successtully invoked in the favour of the applicant in tho ciroumstanoes of this oase? This is another . question I am o~tifying for the opinion of the court of Appeal• · All said and done the application ' for a certif'ica.tc on points ' of law to the Court of Appeal of Tanzania. is llcreby granted. with costse Dates 20~.96 Coram, E.M.Ke Rutakangwa., Je A.pplicant: present in person ResPondent, Absent . Miss Consolata - R/A COJJii'!' 1- Ruling _delivered in chambers a.t Tanga. ---.,. (- I ., ,, ' I' ( ~M.K~•·'Rt1rAKANGWA) ••

JUOOE 20/8/1996