Mohamed Taim vs Anastasi Thadei (PC Civil Appeal No 164 of 1995) [2000] TZHC 116 (1 August 2000)

IN THE HIGH COURr OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM (PC) ,CIVIL,P..Pl?EAL NOo16 1

• OF 1995 MOHAMED TA IM u o • a o o o .o o o o o o o a o.o o-• o o o • o o o APPELLANT Versus ANASTASI THADEI O • • C • e O O O O • 0 O o 0. • 0 0 0 0 0 O Cl RESPONDENT JUDGMENT CHIPETA I Jo : In Turian Primary Court, the appellant, Mohamed Taim, successfully sued the respondent, Anastasi Thadei, for the recc.very of a piece of land. The respondent, however, successfully appealed to Morogoro District Court. Dissatisfied with the decision of the Djstrict Court, the appell,rnt has appealed to this court., The appellant 1 s evidence was th~t he purchased the piece of land in dispute fr'om different people, whom..,, however, he did not name, Then he entrusted it to his relative to supervise its cultivation from 1990 to 1993. In 1994, the appell· nt sent his wife to find a. labourer to work on the piece of lando Sho cultivated;{ of an acre, but a sister of the respondent came- in and ploughed the whole piece of land by nsing a tractor. Thn appellant referred the dispute to village authorities who were of the view that the piece of land belonged to the respondent. The appellant was dissatisfied and so filed this suit. . ..... , : .,· ·;/ ,-,, .. )·· . ~

• 2 Hamisi Kilongozi (Polrl.2) testified that the appellant bought two shambas, one from Issa Makao, and the second from Omari Makaoo The appellant entrusted the shamba.s to his younger brother, one Haruna Juma. The said Haruna Juma later sold one of them to the appellant. Ali Athumani Mkolesi (PoW.3) testified that Haruna Machupa@ Juma bought the two shambas from Omari Mlcoa and Issa Makuo on behalf of the appellant. Sosteni,s Sabuni (PoWo4) testified that the appellant bought; two acres 9 but later Haruna ,Tuma sold one ,a.ere to the respondent. The respondent's evidence was that on 14th May, 1994 Haruna Juma 3.pproached him and said that ho had a shamba measuring one acre which he was offering for sale. The respondent ac;rE,ed to buy ito . The two then went to visit the shamba with their witnesses, and the respondent bought it for Shs. 45,000/=. The agreement was reduced into writing before a village executive officer, one Salimu Kimosa (D.W.2). D.W.2's evidence w2s that on the dRy in question, the said Haruna J\l'11a and the respondent went into his office and entered into an ~g:reement whereby Haruna Juma sold his shamba to the respondento Harunn Jumn assured Dovl.2 that the shrunba was his own property. One Acdul Juma (D.W.3) who was H member of the land allocation committee in the village testifiad to the same effect 1:md he was a witness to the sc.le transactiono This witness knew Haruna Jumo. as well as both the parties.

• 3 - I have carefully consid.ored the evidence on both sides. Like the first appelh\te court, I am of the view that thG appellant• s evidence left much to be desired. Although he stated that he bought the shnmbas from two different people, he did not name those people; and wh8.t is more, he did not so.y when he bought them nor for how much. By contrast, the respondent 9 s evidence was str,~ightforward and unambiguous: he said tho.t he bought the sh'ln:ba from the owner of it, that is, HD.rurta Juma. The rGspondent's testimony is inferentially SUJ?ported by the testimony of P.1:1.3 who said that it was Haruna ,Jurna 'I/ho hD.d bought the shamtas from the original O¼ers, althougn he added.thnt Hnruna Juma did so on behalf of the ar,:xillant something which the apJ)ellant never said. On the totality of th..:) evidence, I respectfully agree with the first ap-pellate court thot the appellant had failed to prove his case on a bnLmce of probabilities. The evidence established th:;:t the respondent lawfully h.our;ht the pie;cc of land from the owner, Haruna Jumao For these reasons, this ai-:ir,c,,il fo.ils Md so is hGreby dismissed with costs. 1/8/2000: Coram: P.S.K. Mutungi -.DR For the Appellant: Absent For the Respondent: !.bsent CC: Maurice I ::' . / ' t ,1/. B • D. CHIPETA JUDGE

/

•

• 4 Court: The parties were served tht Counsel for the nppellant ack:nowledGcd receipt of notice but he has incidentally pa.ssed away before the date of judgmento The respondent was served though not effectively because .Summon/notice h::1s if been returned., but considering _the spc'll' of time lapse ioeo Since 1998 todate I proceed to read judgment in the absence of rarti•:S each party ,shrtll b0 ent.i tled to obtain a co::iY of the res-pectiv~ judgm0nt from our Registry upon ~ayment of requisite fees. Judgment rectd out this 1/8/2000 in the ctbsence of pnrtieso (Sgd): F.SoKo MUTUNGI DEPUTY REGISTRAR 1/,_8/~000 ,. ;. 4