Chibuga Bulete vs Katana Magere (PC Civil Appeal No. 14 of 2000) [2000] TZHC 270 (6 November 2000)

IN THE HIGH COURT OF TANZANIA AT MWANZA PC CIVIL APPEAL NO. 14 OF 2000, ORIGINATIM3 FROM SENGEPEMA DISTRICT COOP' CIVIL APPEAL NO • 20 OF 1999 AND BUPANDWA PRIMARY COURT CIVIL CASE NO.201'1999 CHIBUGA BULETE . • • • • . .,. . . APPELlANT Versus KATAMPL MAGERE • • . • , ,''•.• • . RESPONDENT J U D G M E N T In. the primary court at Bupandwa in Sengererna District the .apndent Katama Magere sued the appellant Chibuga Bulete for ewzerehip of a, shamba of the size of one acre which is situated in Lherngma' village in Sengerenia District, and the same jr, thus vi- 11sge land held under customary law. The respondent won the suit and was declared to be the rightful owner of that law. The present appe- liant was dissatisfied with the decision of the trial primary court, he appealed to the District court against that decision but once again lest on appeal, hence this second appeal. In his appeal, the appellant argues that the two lower courts erred in fact and in law in declaring the respondent as the rigtttul. •swne of.the suitland while the evidence of the respondent (SMI) and that of his witness one Paskali Legezi (SM2)was contradictory. While the respondent testified that be bought the suitland from one Mbuli iufu by paying. 6 fronsheeta and 000/= and that the 4000/= was to be ..peid later, on the contrary SM2 testified that the respondent bought that ).and from one . Magesa Mkuft and that the respondent paid 6 .ron- aheets plus 6220= which was to be paid later. No doubt the evidence ,of SMI and SM 2 is quit contradictory first as to the name of the ers4t who is alleged to have sold the suitland to the respondent. .../2,

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V V -2 - The respondent said it was Mbuli Mkufu, while SM2 said it was Magesa Mkufu, There is no evidence in the record to show that Mbuli Mkufu and Magesa I'Ucufu is one and the same person. Further, the respondent said he had to paj an additional 4000/— to the vendor of the suitland, while SM 2 said it was 6000/=. 5M2 claimed to have witnessed the sale which was not even reduced in writing. Why did SM! contradict the version of the respondent? Thir court finds that the respondent and SM2 lied to the court hence their evidence is incredible and should not have been acted upon by the two lower courts in arriving at their decision. I may add that while the respondent stated that the son of the vender by the name of Mabele L Mbuli a lso witnessed the alleged sale, the respondent never called him to testify on his aide. This court infers that the said son of the aUeged vendor was not called to testify on the respondent's side presumably because he would have testified against him as one of respondent'sbrother did. Respondent's brother who testified against him is one Mpeta Magera (5.15.2). That witness told the trial court that the suitland belongs to"tho appellant who was allocated the same by the Luorongoma village Ceunil on 6/7/78. It is not usual for ones orn brother to testify agairt hifl own brother as S.U.2 did unless there is evidence to prve that the said brother has a grudge with the respondent. However, there is no evidence on record to show that S.IJ.2 and the respondent who are proved to be brothers were at loggerheads at the material time, So, I take the evidence of S.U.2 to be true. That evidence supported the appellant's version. Further, the appellant complained that he was denied opportunity to call witnesses from the Luhorongoma village Land Allocation Cemmtr ttee to support that they had allocated the suitland to him. The trial court denied him opportunity to call those witnesses and wrogly eeordd him as having told the court that he had no more witness to a1' ./3.

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• 3 I am inclined to believe this complaint by the appellant because even the trial court had seen the need to call additional witnesses in rder to arrive at a just decision in the land dispute. On 29/6/99 the trial court made the following order and I quote: f? An.i: Kwa kuwa ushahidj ulictolewa unaonekana. ubishi upo mkubwa ni bora ushahidi wa ziada uchukuliwe pande zote mbili hapo tarehe 12/7/99. Sgd: P.K. Lizaro I 2/7/99' The trial primary court did not abide by its order to record additional evidence from both parties. Instead the trial court for no apparent reason proceeded to write its judgment without assigning aty reasons, to be recorded,.why it had vacated its order which it had made on 29/6/99 or 12/7/99 (the record is confusing on the date the order in uestion was made). In my considered view I find that the trial court was not justified in law to decide the case in favour of the plaintiff, the present respondent, because from its •rder that additidnal evidence be taken, there is a clear indication that the respondent had at that stage i provod hi claim. And, indeed, I share. the trial cou - t's position in its order that from the evidence which had been recorded from both sides on 29/6/99, the respondent's evidence which was too ort 'ory, had not proved his claim on the standard required. For this reasoft I find this appeal to be meritorious and I allow it with costs 0 I therefore quash the concurrent decisions of the two lower courts and set aside any orders that were made therein. I ordor accordingly. Appeal allowed. JJ Mb 'J&LIA 5/11/2000 .1k..

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0i'er: Ffbr avoidance of doubts, the suitland which was in the reaaaio,n and use of the appellant one Chibuga Bulete before the suit was oominenced against him in the trial primary court in respect of that land, shall continue to be in his poresion and ocàupation until the contrary is ruled by a superior court. M.D. NCHALL& JUDGE 6/11/2000 tram.:. M.D. Nchalla, J. Appellant - Present in person Repoitderit: Absent with notice C,C. Restituta 9der:. Judgment delivered in open court at Mianza, in the presence of the appellant alone as the respondent defaulted appear ance with due ntie •f the date of judgment, this the 6th day of November, 2000. V Right of appeal ic according to law. H M.D. NCHALIA JUDGE AT MWANZA 6/11/2000