Tatu Chigunwa vs Maingu Mujuberi (PC Civil Appeal No 169 1999) [2000] TZHC 255 (31 August 2000)

IN THE HIGH COURT OF TANZANIA ATMWANZA • (PC) CIVIL APPEAL NO. 169 OF 1999 (From the decision of the District Court of Musoma District at Musoma in Civil Appeal No.13 of 1999. Original Bwasi Primary Court Civil Case No.28 of 1998. Before: J.D. Mayaya, Esq. Senior District Magistrate). TATU CHIGUNWA ..,,......... .,,....,".. .. APPElLANT. VTREUS MAINGU MUJUBERI . . ,. . . . . . . . ... . . . . . . . . RESPONDENT - JUDGMENT MROSO, JUDGE. This is an appeal in a case which originated in the Primary Court at Bwasi, Musoma District. The respondent was the plaintiff who claimed from the appellant possession and ownership of a shamba believed to measure about - nine acres. He lost the suit and appealed successfully in the District Court. The appellant felt aggrieved and has appealed to the High Court, Apparently, the dispute was initially taken to a Ward Tribunal and was resolved in favour of the appellant. It was then the respondent filed the suit in the primary court.. The respondent has argued that since the case had started in the Ward Tribunal, there. cannot be an appeal beyond the District Court, and even then, on a point of law only. I think that is a misconception of the law. The Ward Tribunal did not have jurisdiction to adudicate on ownership of the disputed land. According to item (1) of Part III of the Scheduleto the Ward Tribunal Act, No.? of 1985 a ward tribunal • has jurisdiction to adjudicate on minor disputes only relating to • ontravention of customs and traditions regarding land, not involvIng possession. So, the decision by the tribunal relating to ownership of the disputed law was without jurisdiction and of no legal effect. The proceedings which started in the Primary Court

2 were proper and an appeal to the High Court from t hosé' proceedings is valid . Both the appellant andtheresporident claim they inherited the • 1- ., disputed shamba, the respondent èaying he inherited it from his father who in turn had inherited it. On the other hand the appellant claimsshe inharited it from her father who had earlier inherited it from his father. Both parties called witnesses to support their • reasoned respective claims, The trial primary court, in a judgment, 0 found the appellant"s , versionsupported as it was by her witnesses was the more probable. The respondent's was not well supported by some of his witnesses iho diitted was :he arsay.. These .:-'t-r' . -' . .-..• were P142 - Nyekusanga ... Kunyohga, who said "TJshahidi wangu wdte k:a kweli ni wa kuanfoiwa and PW3 - Magesa Paul who said "Fahamu yangu ya shamba hilo ni ya kuelezwa chirnbuko lake" The first appellate court dde not appear to have realised that PW2 and PW3 substantially gave hearsay evidence. It is not certain if that court would still decide in favour of the respondent had it realised the fact that those two witnesses gave hearsay evidence The case before the trial court depended in large measure on credibility of the parties and their respective witnesseS. The trial court was in a far better position than the first appellate court in assessing the credibility of those witnesses because it was the one which saw those witnesses testify. An appellate court would not easily overturn a decision of a trial court which is based on credibilit: unless there was a misdirection on the evidence or such court failed to consider material evidence, What had happeited in the case under appeal is that the first appellate court merely substituted its own view of the evidence for that of the trial court. That was fl0 justification for reversing the decison of that court, .

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