Simon E. Mwakapala vs Amos Mwakatuma (DC Civil Appeal No. 11 of 1999) [2000] TZHC 468 (1 September 2000)

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IN THE HIGH COURr OF TAJ.ZANIA AT MB:t'YA DC CIVIL APPEAL NO 11 OF 1999 (From Civil Case No. 37 of Kye;La Dicourt) SIMON E. MWJ-u4APALA.,;.. •;. o. ·;. • •• o ••• ;, ~ •• o .APPELLANT VERSUS AMOS MWAKATUMA. • • •.• • •. • •••• • o • •·• • • ., .• • o .RESPONDENT J U..D G E.M E N .. T • ; The ,qppe,llant ;one Si.mon s/o Mwakapa,la is appealling ·against. ·the decision of Kyela District: ·co1.Jcrt as the trial magistrae acGord.irtg to him. errore.d in various points of· lcl,Wf inJ·tha,t he -said no.thing on~;the·:evidence that the respondent was ~ ,• L • -seen q.istruo.ting hi$ plwrt:i:; and t4,i,?.it, qther witnesses refμsed to witness the sale and •.re-fuse.cl to .ltw his witnes$ to ,giy,e vidence being \me Man;§olas.:Timala Mwimpya.. He fu,rthe_r allegd that :Sinc-e, .sorpe of the/witnesses wer,e .dead then , I ': the evidenc.e .of the J>rimary Court ·,ought ,to have be.en conside·red.-, Hit accordingly ,, \ pra;y,e:;l_tha_t the appeal .be,, allowed with costs as ev;en the sketch map dlawn was not p:r.-0per. . .... • ...... In his reply the respondent one Amos Mwakatuma refused to have tresspassed ,into that shamba saying it was all li'es • _ .- " After ·goi.:hg. thr_ough the court record:, I noted tha_t. the sketch ma:P had '-np signaturs··,;f the parties and ordered that. ano,thr magistrate L 7."L ,;. : visits te scene and draw another sketch mapo_ . It was" receie·a_: 6n 18/7/2000 with a "»otifi\ation tho.t the appellant refed. to sign the same because he wanted the 1t;ial magistrate to amend it to tile way he wanted it to appear. It was worth noting here that all the two sketch maps resemble the only difference being that while the first does not have signatures of both parties the second one only has the signature of the respondent •. I. wou-ldthusi.hold that the fact, tat the appellant refμsed.: to si,gn, .the. same while he JtIB ·,the one ·-;_ ,-J! •! w_qp all~_ged that the other was wrong without gi"Jl'_mg a reaso:tP why th,n ., h~

• 2 - allegation is not tre that the :first ketch _map was drawn wrongly as they all resemble. • ...... , ·: .- • ~ • - ~ r- • - • • • ~ /J.f' ·_ As for the allegation that the appellants witness were refused the right to be summoned t:1at cannot be true. ?or according to the court record the appellant sumn~~~-~~ :fi~~' -.rit~~~~~;. i;i¢ig.i{goles· s/o' T1mD.la who was actually PW4. The appellant was represented by an advocate one Mkurnbeo When PW5 gave evidence thats the only day w.hn Mr. Mkumbe advocate was not present and it --- .. - ··--·- --·-·- ···-··- ...... -- was the appellant himself who prayed to close hjs, ce• There is no where in record .that he prayec.,-to :summon other. :witnesses and he was refused. where . As for the file from the Primary Court I nave noted no. whr/ he prayed · that thG file be calledo, Morever, :being repres8nted his _advoca.te knew of ·the procedures.to be followed so _he cannot b heard to compl<;1.in _if his · advoi:!at,~ .... did ·t make that prayer before the courto,. At the end of the clay then, I accordingly dismiss the apeal wit_h costs :, for want of mer.it. The border td be where it has -geen marked XXX (F) and . . ' - . · ,he sam~ to be recorded before- the village council no one should go beyond that marking.~ It is so ordered. 1/9/2000 . _..,,.....,.'')-i. ~ .. .-.i .. / .. S .{l..N. WAlV.BURA, . PRINCIP.AL RESIDENT MAGISTRATE ( E.J o), _ 7/8/2000 .W'ambura. PtM:{F..J.) For Appellant) Both present- in person • For Respondent) B/C Mathias ·!.1 . • Court: • . Judgement deliv.ered in open chamb_er'S .this 8th "'day of September at the p:resence of both parties. R/A explained. . . ~ .: ' . • Order: The village council or any authority t• certify the said border as .. was seen anc", drawn. . ~ ... . .... S oA. AN o W.AI1BURA PRINCIPAL RESIDT!JJT r-·rn.GISTRATE (E •. J .. ) 1/9/2000