Wilbat Pokela vs Selgestine Nkolela ((PC) Civil Appeal No. 49 of 1996) [2000] TZHC 606 (20 June 2000)

\ If Jc IN 'l1HJ:.; EIGH cot.GT OJJ' TANZAfIA CIVIL Ci:.SE ,NO o 25/95 APPELLANT SEL:GSTINE i:JKOMLA RESPONDENT JUDGMENT: }the appellant hG.d sold his coJ'fee shamba to the responde.nt ':-C-6-• C . ·;,-· • at a consideration of iShs.,- 250..00/=, .'J:hat was on 5.11"3! The respondent pc1id cash bh ~~,,- and he were to 'pay · the be.lance after s2lc: c.f coffee he .wo\lld pick after the said · harvest season 0 The sharnba is said to have _been in a very bad I ondi tion. It wss not E12Deged at al1t, Then in the year 4,994- the. respondept. clid,.ydevE:lop tbe sharnba _ b· putj...i.vig mu}#hing,, prunning the coffee, wee(ing 9 __ o.dding some f€rtilize;rs and applyins the inse.• ·1:hen the .coffe,e started to revive The sharnba ·which l12d- ben ecbsndcned b.eca:rne a 'Jlli()th.ful, propey" In '195, the r.espondent -vrn.:::1ted to make the payment for the bale.nc e. of mone;y in i3te.lments ~ The appellant refused to · the ae,ep~ the money. . Ee wantec~ L. return of his shamba and not the mo~~~--. ,,3~ .. a;rpfil:10:E.,~ ai~~~-d tjlq ♦ Jjj,s- rtla~ ' 7 $',, _ .1 - . '-: · " whicb- h,9.d pl.eined that :00 hacl ::&.old .:the;:a ~J:;..e. [was said to .b a_ family properz.:,.,~~~t hod a total:. ·'Cf. 6'f'-p.o:fW- trees0

2 er.ough to accE:pt the return of the sh2mba 1 brit he wsnted to b0 peid the 0 dJed value to that t;y d2velo;ing that thamba, so he wo.nted to 1x -isirl bhso 3,989,900/== .for its reclemptiono The 2-ppella.:;::t refusf:.:L b/ sa;ying th 0 t the respondent had harvested some coffee fro1r, t~--:i.,.t sll2-1:1ba in tbat ;yearo 1 rhen the respondent found it proper to institute civil proceedings in a court of law so that he could 1:::e ps.i0. 3,989,900/= snd give the sharnba to the ownero :'he lVkur:,-:'.)i primary court, 2fter hearing the evi<;ence from both psrties, visiting the so.id shamba, it accepted that the respondent had greatly improved the said shamba and they assessed. the money to be paid by the appellant at Ghs., 'l ,092,000/=• lihe appellant was not satisfied., He appealed t0 the district court" v1hich court awarded the resp.ondE:::.1t the v(ncle a.mount of money claimed by the respondent, thet ii::, to s1:7 :::bs., 3f989,900/=.· 'I1he appelle,nt was aggrieved EJgain b;r the (ccisicn., He hed expected th-:-:t the amount would be roduced bv.t uni0rtunet2l3·· 9 he 1r,;2s surprised to have jumped the ashE:s ,:tnd stej_)'.':!c en the burning fir-Be He W9.s therefore aggric,,vec_ b;f thet cl2cieic--; of the district court and hence this appeale On sclrn.itinf this r'::;1K:2l, the admitting judge directed as follows: u".d.mi t tc consi::.1.er whether there were the s.ppell2te district court to In his mcnors:c".urn ot' appc:ol 1 the app'-..:llant raised two main ground.~, thot the c'.ii:_;trict court E:rre:-:.l in awarding costs

3 me.intai:ice for th2 o~' the.: ;;-;Edd shanbs 2::rE: r,r;er than that wl'L.:rf..;r•.s the res---:,on(.ent did not evid.enbE before th0 rliB-c:bict court to justify the sward of bhs O 3 + 985,000/== -·:-1,'i. :::,?.fo:re this court j h2 further· submitted that tha: res})OE 1 lE:::::::ct lY ci. bt::;e:::1 hsrv•2BtiDtC coffee since that time todate 'j r,nd so -:hat he hes re2lise:i frcu the sale of coffee he picked is enough to n2et those costs... '+1he respondent maintained that thE: decision of the district court was proper for he h:::i/!. eddec1 much value to th2t shamba 9 8.S he is putting f ert il i z er;:::· e::::;.d r1.anure,. qμl c hing, ins 0-:,c te:ide and prunning the eoff'ee. Jefor2 I rroceed 1 1,i th this ju:3-gmc':nt j I should first pu,t proper the corr·eet er2/l. legel terminology whioh the appellant m?tter befote the respondent dici. net cross 2. 1,-;iecl against the decision of the -;:rim2'.ry .our·t nor di( ti12 tri2l district magistrate show the basis of her v:..;.r;yint: the ccraount of Shs o 1C,2 1 octf = awarded to th0.: res·;;:ondent by tbe 1'::kumbi primary court whieh visited. the stsmb2. in. iss~w, sp,:w the extent oJ the development in that shamba. ::1h•2 -;:,:s-rimrc.:;y- court ::v::;.id that the respondent development, .-:hich v 1 a.s e. one ;y-20.r c:Lld o.bout six months developmcnto . 1:hc :;rimary court 1:1es in good fl1'.:lSition to know the vslue of thE; lcbour ussd. in that village than the district ccu:;.t 1 ,..;hicb c1icl not visit the shamba.

Sow th0t the basis of nis S);cal is GS to whether the district court ns2 sufficient roucs to award damages greater not hsvc sufficic::t :_,cunr:Ls to 2.w2.:ec crc::1ter d2rn.sges than those awsrdec_ ·t,y the t::iel ,.our·., I he.ve 2l::::·c2'.l:y- stated thcJ.t there was no cro2s s::,:rcel r: . the court wes not sitting as a revisionaJ eourt o Secondly 9 th2 dis·::;Tic t c :)Urt ·°'.id net show the basis in which it varied tbose cu::m'1ges awn:rdE::d b;y the court which visited the shambso The comr.laint by the appclLmt m his submission that the resr;ondent h;::d. been harvesting the coffee since then todate is immaterialo He WEJ.S ordered to pa.J tne Shs .. '1,092,000/= so that he could redeen;, his shamba from the rc:spondent, but he has not one so todate and therefore the shamba remains properly in the hands of the resfondent Er1ving se.hl. ;3c then., the decision of the district court awar,:iing Ehs. 3,985,000/=. to the respondent in the absence of croE;s 0.1:r;E:al 9 ·T1c7. withcut sufficient grounds for doing so is qu2shul en'.2. th,::: 2.'i:-0.r( of the prime.r;y ccurt of damages amounting to Shso 1,092,000/= is restored with costs before this ccu::::-t :Jr/ the courts below. It is further ordered that in the event the ep:::,'ellant Wilb.s.t lokela pays the money to the tune c,f [;hse '1,C:S2,000/= so thr-it he redeems his shamba, theni the respondent should harvest this years coffee first and had over the stabs to the appellant after the harvest. I say so b2cm1s2 ste resf:,onclent hDd contir;w:::d inv€sting .in the sh:=!.rnba end tLis :,'r,2r the s2.id toffee has more berries than in any other ;year since he bought it. Finally, until he is :paid infu.Tu.l 9 h2 ','iJ_J_ I'2rl1c.'in Vfi th the shs.mba till full payment f Sh /1 QO'' 000 '- , .J...,-. "' C' '- Q __ 1 So 1, JC:::, /- Vv...Llu.J o,-cs.

'; . . . ., .., ........... -, , Subject to dismissed. .) -- .:._ C: .,I varitions l h2v2 mnde. . . ... !.. o }:~ o - tL.~~N1/'-!'IO JUDGi; 20/6/20010 th0 appeal is Order: 'I1he copy cf juc1gm,2r:.t to 1:',2 forwarded to the District Magistrate at Mbinga who would notify the partiss of the day she would read te judgment to themo It is so orcleredo ,.< '• __ :.~ ___ /_ ~~, , ., ! , ,- { ~ ... r:1 ,,tr-,-- • ··• ( ,!l , .... .-J: •'-· fill- ~ \ 1 J!- ~ \ t ·i t • -••,<,;,,•;··• ·\ U·. - ,,'"t,," ' •. .. - ci:·· .,.., ~ .\ Vi!\ yj,., -£.:"!.--·>" r-'S, \ :t, _-s,:- 11 '- ,· "-4", , .. :):!/'' 1i.oRo r.:u{;LJ>Tr.rc\ tTUDGE 20/6/2000. q'