Ally Shomary vs Salim Abdallah (PC Civil Appeal No 4/99) [2000] TZHC 152 (21 September 2000)

.. INTHE HIGH C OURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM .!l.LLY SHQil.P1RY PC eIVIL APPEAL NO. 4/99 o o e •o o 0 0 0 • 0 0 0 0 0 0 -o o c o o o • o o o • o o o Versus SALIM ABDALLAH �ESHf, J ._

JUDGMENT -- ·- - --·- APPELUNT ,.. RES PONDENT The respondent unsuccessfully sued the appellant over a piece of land measuring some 1¼ acres. She then appealed against the decision of the trial court where upon the District Court reversed the trial court decisiop and upheld the respondent's claim. Aggrieved, the appellant hro now appealed to this Court against the District Court's finding. The appellant has filed three grounds,_ these are:- • tho.t the learned District M"gistrate failed i:o consider the evidence on record. that the learned District Mngistrote erred to hold. that the c�use of action a.rose in 1996 tho.t the learned District Magistrate erred in l�w and fact to hold 'th0t the lc.nd· in dispute b�longed to the _Respondent vrhen she had acquieseed to the applllants pr�se_nc·e· on the disputed land., During the hearing of thie ttpj:)en.l the o.n,pelL:mt • �pperu-ed in p-.,rson and stated that the ·lnnd in- dispute belongs to him. mot Le b 1 )U[;ht it no 11/8/81. The appelln.nt stood by the tr i-'11 courts deciaion. Appearing fo� the _rei:Jpondent., Mr. Mniwasa leorned counsel submitted tno.t the shrunbn in dispute belongs to the R�spondent. He stated that in 1981, the appellant wr_s in need of•� plot to grow seo.sonal crops so he Mked the �espondent for the same nnd th1; latter obliged. He stated thot then the �ppe11,:mt ·ouilt o. house and claimed the sh�mba. to -be his. That when· the rE:sponden t W'.lr•. '.:-00. to ho.ve have her shmnbn. bo.ck� she found the o.ppellc.nt o.lreo.dy in po1Ssassi9::1. Mr. Mniwasa ·informed the court tha.t the clo.im was indeed filed in 1996. According to the evidence on record the Respondent claimz ownership of the shrunba which she alleges she inherited it from her mother. bhe testified that the appellnnt h�d o.sked for tho.t piece so that he plantc vegetable crops but she is surprised that the appellant hns decided to erect a permanent structure nnd claims that piece of lnnd to be his. 1 -. 00000 oo•ooeoooo ♦ oooeocoo••oooo ..12 ••••••••••• / 1

( i ;.. 2 ... Another witness SM 3, Nuru S ·aidi, testified in court that· both her grandmother and mothe.r had been tilling the land. 'lhat the respondent has not given that lend to any=one except that 1¼ acres given to the. appelbnt and that there is a clear boundary sepe:nating what piece df l1zi.hd belongs to the respondent and that which belongs to the appellant. As for th0 appellant it was recorded in evidence that the appellant bought that piece of 12.nd from the respondent's uncle oh 4/8/81 and he built thereon a hou..se in 1982. - Exh I A' for ccmsideration of Tshs. 900. To support the appellant's claim SU 2 Singa Ally cleimed that lite witnessed the sale of.a piece of sgamba for 900/= sometime in 1991? Could it be 1981. New in view of this •evidence wa."" the trial court in error when it awarded the shamba in dispute to the appellant? I think not. After all apart from the evidence of SU 2 Singa Ally who witnessed. the sale transaction as per ,!Rxhi__bit A - , there is the evidence of the respondent's 01rm witness SM 3 Nuru Saidi who testified that the respondent had sold off some 1¼ acres to the appellant for 900/= .. But that the other pe.rt of the plot belongs to the respondent. In fact even the evidence tendered by SM 2 vras given along these lies. Assuming for arguments sake thc:,t the respondent gave a piece of land to the appellant to plant only vegetables. Why has it taken the respondent all those years to find out the ectivities of t he appellant? On this score, I would join hands with the findings of the trial court. In the premises I am satisfied that the trial court WBB 1 on evidence before it, •ntitled to come to the decision it did. I have no reason to fault' it. Tu the premises, I have to reverse the decision of the District Court and uphold that of the trial court. The appeal filed is allowed with no order as to c osts. Delivered before Appellant and in absence of the Respondent. f/,li )') /; {' . ' I yJAJ:_) 1,.J;g.C ., --� AoG .. Bubeshi JUroE . - 21/9/2!JOO (