Selestine Tegamaisho v Petro Petronida (PC CIVIL APPEAL NO. 446 OF 1991) [2000] TZHC 208 (12 May 2000)

IN THE HIGH COURT OF TANZANIA AT Bill<OBA ~PEbLATE JURISDICTION (Bukoba Registry) PC CIVIL APPEAL NO. · 446 OF,. 1991 . d i i ! (From the decision of the.District court o! Bukoba District at Bukoba :i.n Civil Appeal Noo 67 of 1989 Before C.H. Kalanbola, Resident Magistrate and Urbal\ .Primary CoU:t't original Civil case No. 4 of 1989) SELE.STIN TEG.AMAifilIO • •• o ••• o o o i ,i • •• o ••••••••• o •••••• ,. APPELLANT VERSUS: JUDGEMENI' MREMA 1 J. petronil.a petro, the present reepondent in this a:ppeaJ. 1

• eue.y sd S-ele.at~ Tegamaisho, the present appellant :i.n tb;i.s jltdg~ t~ . ·recry of a parcel of shamba valued at shs.1;000/-. It was in the ! ' . Original; c:i."17'll pase No. 4/89 at Bu.koba t]rba.11 P1·:tmary, COUJ-t.• ~~tP&- was unhappy with that decision and wen on appeal to the District -Court -of oba ]):latrict. Th!,1-e t.h.e appellant was t-ep,I"eee-nted by Mr. s. 'L. Katabalwa, learned advocate. B11t the appellant still lost the appeal and, a.gain, he was dissatisfied, hence the present appeal. :i.n tlti.n -t .. In this court advocate Katabalwa i 9 again a.docating f-or the .appel1.a.nt, whereas Mr.i Josephat Rweyemarnu, iearned advooate is i-e,pl"e.Soti:ng the respondent-• In order to appreciate this judgement I find it worthwhile having the facts relating to this appeal restated, albeit in a nut shell. It was not in dispute at the trial court that the respondent (Petronil~ Petro) was the only child of the late Kigere Rubuga. Autanati.cally she inherited ..... ' ... '.,J• the deceased' s estate _when he died 0 P~t of the inheritance included a shamba contai.Ai.ng banana trees, coffee trees and Mikaratus trees. This shamba situates at Ishozi Rutala r.ut when respondent got married and moved ~ . to her husband at Kabirizi she er::rusted the shamba to her relatives to

. . . .. ·: ···. ,:•· .. 2 take ca.re of it; Th6Se relatives were Michaei Ishambo and Theodozia Ishambo. · After a passage· of t:ime they noted that te appellant had · . vrs'tepped th boundary ( after uproting .-the boundary marks) and entered . . into the re-spon:ie ntt s land, annexed part of· it a_nd then planted banana . plants and coffee trees; Michael and Theodz,ia alerhd the raspondant. The respondent· went to the shamba and she c!,lly confirmed the report l t9 be .rue'• She al.so noted "that. the appallan,t. had al.so forcefull.y cut '10.:Jn many mika.rstusi tra&S e1onging to the respondent. The appella- C he.1-ein:...afte l:"8forred to as PWl, reported the tre:""_?asS· to th..ei.+' tn cell . ' ,. leader. The respond-ent (DWl) refused· to attend a clan's meeting an.a . - therefore PWl..-ref 7 z:red the. complaint to the Primary Court. rt is aJ.s-o the evidence of PWl, as per the evident record, tht-. 9he knows :the .R. ) . boundar;r very -wll becau:sa the und_isputed portion of shamba ocoup . PWl ·was sold to; him ·by her late father. An_d that the boundary between tba:u- shambas waa mal'k@ with 1 :tramuiai 1 · and along t_h,e same bound.aey th9l.'o is a big tree locally known. as nm tome.I. The whole sham1?a., she saiq, was bound,d. by- -t of · trees oell.Gd 1 1misharazi 11 • But all the t;r:-ees on the boundary between the shamba of: PWl and DW1 1 accord:i.ng to PWl.,. 1.-JeTe moved by the respondent cept tll9 J . .o:na Mt1l.ain1tl.a tree which PWl' s aunt prevented pwJ. from cutting it down. But PW1 1 s aunt was also stopped from grovr.tng sweet potatoes on the annexed piece.of land as she was normally doin,g That was her complaint to the Prary Court and her prayer was to haw ~ : that piece of land which Ghe valued at shs.1 1 000/-,. retur:_ned to her. i$ the sa:me·complaint to this court. rt In defence the appellant vehemently denied knowing the respondent,. . The. disputed parcel'' c,f shamba, he reiterated, is the property of his grand . -~ ~ parents and it descended -o him through his father6 He maintained that the •.•:·::1''ath or small passage tht traverses the disputed land has been there time -immemorial and the same had eve_r since been used as a E.:!-g_ht of way or 11 Uembd1• He recognizes the exis·:ance of two (2) mikarat't.U:!i trees and a ' I

.· big stone '·along the common border with the late Kige;re ·( :i,.9. the respopdent1 s \ ·fathk'.r) 1 ·:and that ,thse were th ·oi4y,recognized l::,oundary ma±ks~· It(s the appellant ts strong denial that theid:i.puted piece of shamba is the respndent! s • ' ' ' . • ' ' ' ' • . •' I · whom ·the ,.,ae.llant claim· he does ndt'khow her •.• He alo stated that' . ' .,: •• r ' - • 4 • ' • · ' ·' · • 1 , - 4 . • the· ct-dps. a.nd, .:t;r.ees ,which ae:. -~~ tte. sui-t' ;fand,. e.g. banana t;ree~, ~~s~ava,

• 1, · . , . ·' ~ __ ;· ·· •;:.{ r , . •. · · ~ · .• · · · · coffee·<tree-s M.d- one Umuhute tree 11 were planted or grown by his mother' .. ''" ,.: :·, ·, 'f ·-.i:. ~ . .':, ' . ·-•f ,•: •. - .. ., . ,.sistd by'.i.th graj. __ daughters-~ Slestine vehemently denied that there. -i.';.._· .• ~ •.• ---.. . . ... •j;.,: __ 'f. ;::.:: • ~~- ' ... 1 ever·• Ed:i'sted',,l:!-ny b,o.ary .. marks on; ·die suit'. la:n4, .: nor did.: he eve!'. destroy · · '"".t.i ·;. · , .- ,;,· ,, · · 'r • • ~ · ,c-." It is not. alsp tru,,e, : ·be sa.i, that he , evex: oug):lt . ' ., ' ... any piece 0f·,l;ip.tl f;rom the late Kigere • . ':,.,.·:· As pointed out .above tn;e pr:imary court ·unanimously found for- the ' •t, • ' -1 ' it , -, ...... -·., .. ··r responden·t. ''1.1l:le court visited the area indisputed and w :shown what was being disputed between tl'l. parties.·. Tt doubted ·the: boundaries shown- . py the appellant The -cour:t observed that the two mika,ratusi trees stems which were shown by the appe,:i.lant as being the····boU:ndary .. mkq did not have . ' ~ '. - ,· -:,.: . any bearing with the :pa.th. or. rtght' of way that a:ppellia.nt · claims passes ·•" • '.',' .. l. . • through his 'shamb . The , court said: livils ;iaiki. haviungani ~ i:npaka . . .... J. ,~ . ·.. . wowote 11 from the disputad shapiba, but they· are 'trees which i!;re.w in the . .. . . . . . ~ . ' uncultivated iand. · It was elso observed that the .said "vis:iki" were • admitted by the appel],ant ,to be the property of. the respondent, and hich . . ,,. •:. As to the a;pllanf I s alleged ni:LE;Jmbol_ (right of way) the court· .· . .-· .. .. refused to accept the appellant• s asse1;ti9.n. The alleged right of way, ,; ·· acording to the trial coμrt, p:r;oceeded to nowhere save it psses through . . .. .. :}. . . , llriJbuga 11 and ended· on· the'. rock;y area and, therefoi'~~ · it c'ould not be a right ,, rt· was also the v.:iew of the rilmbers of the·· tri~, court that it is not the Ballaya tr0d,ition to create or. di.reict an vtilembd' ( common right. of way) to a place where that right of' way could not lead to a common and partictil-ar _des.tinntion. However; the '.cour't f.armed openion that the only reason the path ex5, ,ted was to lead· cattle:}:, to that rocky

.\ .. r.-.tr.: 4 . r area..,for grazin_g._ Tp.e trial cour~. then co:r;icluded (at page 2 of the typed judgem_ent) . ts f_?llow~: : . . . . . . -- . . . . . 0 Na kwa ku.wa ·mdai arneweza kuthibitisha mipruca h:(yo •ria kulima kweye ardhi ya md hiv:yo mdaiwa hawezi kukwepa lawama ya kuvuka. mp!=tka. .. na kuingilia ardhi ya .. ,, .. ;·, mdaiH · ... · ~ . . t .. ·· .. ~.t)n appeal ··to· the district f_Ourt the learned. pellate resident magistrate . - \·,'·t:'}"'.:;'.icir-awn--,map-depi:t~~~-- the en_vir9riment·-'c>f the d,.isputed area. rt would ... , ''appear--,that the. i-15trict magist;a:te relied heavily on. the said sketch • . . .: : • • . J . • •. • •• ··r . .. . . .,: ... . . . .;. --;.-·-<. dra.wing;c . And J :l.t 0 wo_u.l."' appe·ar the· map was not disputed before that . .. ; . .· .. ··• .. ' .. _ .. ·•:, ' Guided by the judgement ~:f,. i;~ district co~:t., the urrliputed map shows the-::a.ppellantt s sharnba and the appellant• s alleged right ·or way/path . . ., --- .. -- ... : . . '(ile'mbo) •. The ~at;h ~r !'ight of way starts from'the a.ppeliantts house up ;.., to· the boundary of. his shamba. From here (appellant• s -sllamba.) the·path . : . (which appell?-nt is referring as ilembo) proceeds on· to ,the responientt s ., ..... ~f" · shaihba,1 · The appe'J_late district court then querried why the appellant is a11· l:>ut urging to· force his so call.ed •.lil.embd 1 ·· fran his own landed property through he respond?nt 1 s land? In my view, if the facts are true ·then any .reasonable mn would, poe the same question,o According to . the learned .. ·appellae -magistrate· the appellant• s path after coming to -t;he end of his sh?IJ1ba 'if ·should have followed or joined another right of way; the latter one being a rea.l ilembo, which·.proceeds on to the village river. The real iJ-~ is· one which is a communal right of way as people use it, to and from, to dra~ ,"ater; et~~ The. appel-l'ate district. court then concluded: . -· . . . .'; . .. .•: .. . . . : .. ' ·.. ' .. .t' 1 Ther:fo~~ ft" is 'not'_ te t:hat the' appellant•s •. • •. • • • ,• • ' • I ·. · ·:: ;ighfof "Y -ruis. ·l:leen blocked by Respondent • . :·::··· . i. Appe{:it.:.aj;e': t~ .. e:ictd his ilembo: up to the ·· hba of ... ·Rspond~-t: wi'ch. thi_ng is·· not right 1 i •

, '• ' ,.; • ,, ,. ,• . ', I• ,' 5 ... . . · Both the learned advocates, Ml'.. s,. Kataba,lwa and, J; Rweyamamu, for the appellant and respop.dent, respectively, submitted in support of the case for their respective client" . Starting ith the advocate for the appellant_, Mr, Katabalwa referred this court to the trial ctirtrs observation at page· 2 of the typed .judgement of the P:dmary Court. It is Mr. KatabaJ.wati1 submission that.from.that judgement the primary court did take cognizance "'."'-of the fact tht there ·existed .a right: of way commonly called in Kihaya . . . ~ c 'nILEMB07 1 originating from the appellantls homestea.g._, •then _proceeds the~~ to the responde.nt• s boundary and then through. 'the· respondent• s shrunba to . an open space •. The :alleged ' 11 ilembd', according to the appelJ.:antt s. advocate, was viewed or appreciated by: .. the trial court to be a cattle·, track or passag.e .. leading to a grazing area. or pasture. · The learnd counsel for ·the appellant strongly-objected to that view -that was centred on. 11 ilemboi . or ·right of way. It is Mr, Rweyemamut s contention that the dispute -in the primary court had not_hing to do .with 11 right of way or ilembd• The king pin of the problem•inter parties at the trial ·court·was ~spass by the appellant on the :Land of the respoment and annexation of a portion of land by. the ·appellant against ·the -lawful possession of' the respondent. · In my considered view, with· respect to· Mr, Kataba.,1.wa, ,I think Mr. ·. Rwe;j'eit11::Ullt., is right. Thi.s pro.i,iosit.ion. is solidified ;ey the evidence on ' . ,,,' 'record.· For instance- Petronida :(Pwl) had· the 'fol+9wing in ~xamination · n O u-: na.-p~~ mdaiwa aliendelea: .kumzuia hata shangazi yangu asiende!ee kul:una.~iazi vit!3,lnu ... kwenye,. sehemu yangu mct·crlwa 8;k,idai kuwa ile, ni njia yake ilemboo B'.ivyo ~da:i. mdaiwa kwa . . . kuvuka mpaka na ~ingilia ardhi l8:D:gu :. yenye El~~ ~ shsc,1 1 000/.Jt (underlined to supply emphasis)" And in cross-examination, petronic.,1 went further to affirm as follows, quoting ipsi ssima verba:

,·.•. ,·. ........ ;-· -:: -.,,. ·· -~ ~ tr~· · ·· -;~- :; ~: : ~ · · ., ., . : -:i.'. ~'. > 6 ... . . ·-- 'Ill. I . "Sehemu aliyoingilia· mdaiwa baada · ya. kung?a mipaka upana ni kama h<;ttua 40 1 ~ _.uref; ni kama hatua . 60 6 - Katika sehem':1- luy_o amepanda l .•·:i. ' If we go by measurement 11 hatual 1 . is 1?-PPrdximately · one ycl!\d .or th:ree feet or one metre and therefore 4o paces (hatua} are':~qua.J. to 40 etres· in . width, and 60 paces in length are 60:· metres in length By _simple ari thmetieal

• 'calca:tions the area of the land in disputed is appromately 4ox6o_ whioh is equal. to ·2~ 4oo square metres of +and - which, if the ":'llegation by tke ,· . complainant is co~"rect that size of the land complained of cannot be a path, right ·of way, OI'. call it a; ilrnbo. / Another corroboration is found in the evidence of t-he appe.llrint. -_himself, for in exainination in chief, he ,stated the following: 1 ~ o O • o sehemu iney:obishaniwa ni mi yetu huwa tukilima humo maza_o ya muda na hata njia yetu ' Ireinbo -(sic) kupitia humo.• 1 Again, the appellant went further to sey; .. . . ardhi hiyo inayo bisb.alμ.v.ra <:11nbayo i .m.,..ma.li yangu ·kuna mti wa muembe, mtgomba .... '4·. ·, ,,... . ., .. -· . ·. .· .: y9 -:(zi ukari,. -mihogo :na, i-~~zrt i:i."changa ••• 11 • : . :.: ' . ·• : ... :,,. ' . . . ' • ,.., • I •• ~ • Fran tho;e. piece·s. 6f --evide_nce _it is unequivocally. apparent that the subject • . :" .• : f .. . . ... '. ,, .. . rnatMr of cont;ov~~sy be't'ween file parties ·at· !the 0 'trial court was not •a right' . .... .· . ' ' . ·, of wa··or 1.1μe11Jbc:f. 9 : but rather over a piece of land. ·,:·, ' .. I_f it were a right of way r ilembo . then it .-would be. absurdity on th .pt of the appellant to •I -.• •• ._ •••,. ~ .: : • ~ .: • • • '.' •, • • · ble>Qk that ·right of way by planting. ·permanent arid ··seasonal plants or crop. ·:·..·'I have endeavoured to find out how this contention, as to whether the· ma·tter under controversy i-s eit.:r · 11 ILEMBd 1 or ?vr a. claim of a piece of shamba, was hatched· outo. The ·defence case at the trial was ei tber in conf~.ict or was not consistento I ha_ve also examined the evidence of the brother of the appella.nt,' one $ostE,nes Tegamaisho (DWl) • For example, in examination in ,chief he is· on reco:·d as having said thus:

a • • • ~ na hiyo sehemu inayodaiwa.'· mpaka wetu. ni_mikaratus isik:i viwili na tunapoiehia. kuna jiwe kubwa tμ>efu ka fti_ti. 2 ... 4 na hiyo .sehemu..: ni kama?tjia au irinbo (si¢) • 1 2 If the appellant clad that the parcel of land was covered with bahana .. a : , . , . plants, coffee plants; cassava, etc~ how then cotild the sari!~ piece of land . be ,;;:-,. ilenbo ~ p'er the statement of hls brothe~ (DWl)? I fiful something fishy between the two testimonies. - ither both are lying; or bne of them. ...... . . :_ So· which of the ·testimbnies is credible'? ..,,. .· ··: Bt the ILEMBO v:la-vis sh.amba t:ontroversy goos furi;.her than what has been revealed bove. From the totality of evidence it is .. transparent that apart from the day to day cultivated land of thri :respondent. . . . . .. .. her fathet also 'owned a piece of shamba close to the former on Vlh:ich he ,. planted eucaJ..;y'l)·tus .. (mikara.tusi) trees But this ·. eucalyptus: sb.amba is . •, ' part and parcel_o:t the disp'Ute in this case~ But for reasons uknown the appellant did not talk about £he eucalyptus shamba. He simply stated in cross examination to the following effect: mimi nilizal.iwa na kuikuta mj_karatusi pa1e 1 1 ~ : The truth of the .me. tter came· to light fl'<Xll tlle av-:tdenc& of the appellant•.s bJ.ood relative, .D1!Jl·. This witness is on record as , . follows; quoting the only very r-elvant .statement ➔ wh::i.oh was: in cross- _exam::i.M'ti on: ..... . itKando ya. shamba la I<igera kuna miti ya mikaratusi. §_aa sh1:i 1;.:h,:_12:?,yo ni mi yangu· amb,ayq . niliuziwa na mr:t thi wJi_ic}:lal Kige:; aliyeitwa Costa Ndamulani Kempanju lakini ameishafar:iki l • ~ L ini_uz:i.a kwa bei y shs.,4,500/- mwaka 1973. · Lakini wana ukoo wa Kigere hawakuwepo. Lakini mauzo ha.yo yalishuhudiwa na mke wa Kigere. Lakini ukubwa wa shamba hilo • 0 • ~ sifahamu 9 Clesensia hakuwepo ~ti ~kinunua lakini ~ar:~~a alikuwa neyd 1 underlined by me to_provide emphasis). -- ' Before DWl made the above. quoted piece of ~vidence he had tc,ld the trial . . court earlier on ·'(also is XXN) as f ,llows: 11 ••• · sijui mrithi wa Kigere. 11 If that was the case, then how cos-': :1. Ndamulani Kempanju came into the

8 alleged sale of the disputed shamba when DWl knew heir of the late Kigere? DWl also knew that Kigere•s shamba was bai.ng taken· care of by the sister the place, Even if it were true that Crezs,ns!a·was aware of the o,rr6nt bc,d:Wo"Q"n rMl an£1 ~ ~ a- ~~~N 1- .b ,,.._ shamba disposed ·of to DWl, but which I am not ino.l.ined 'to agt-ee, t i.Q.. no ov:t.deJl.Ov from -thia £$ L~~-U-~ ·:t1-'f o.----.:.cr: lll""W ~~~ ' . ... . .. give -eV'iwnc~ ;tn :pon of -that asse;ioo 'b:rt ·.she ref'US8'd,.· ·.And, ~ tb<>rt: ii, .r\Q ~~-lrla<>e i,n. ~ t:o o~~ :th.:a-lJ -&? qc...i.4 c-e-.: .,.... . ..,..c;. . .. .. .. , .. _.. . available far ons reason or the other,.· "l' ~ .. T]:31:>n <)JI' _,j.,.., (11'" ""1r-riA_,,_ Cl1,'lll"'°'JI; ~ ~~ ,('111.11,> and his blood relative Selestina Ptory (Dw2). According :to.~~ 11 Ndiyo l'C:1.goxv ali.lq,w tllll bom.bo l.-m:!.-tt yt. m:Uc-t-t1."Si .l,_Ja.., nani ~ waJ.a si.jui kama kaka yangu. ardhi. yaeye mii . ni mali ya nani 11 (sic). the year of the alleged purchase of the shamba· DW2 was still in darkness as who for that whole passage of time was possessing or owning that disputed shamba. rt is also important to consider in the light of the totality of evidence on record the credibility of these three defence witnesses ( the appellant, DWl and DW2). All these three witnesses, .. in a broad day light, strongly denied under oath and i:μ examination in chief any knowledge of the appellant. Also they denied that the later Kigere was not survived with any child. But the truth was l'Ulearthed by the evidence of among

• 9 themselves* as elestine.Pastory (DW2). is on teeord as having told the trial court, thus: ( in crose;-examination): . - 11 Ndiyo mume wa· mdai ni mwana ukoo wangu lakini kwa sasa wametengana. Ndiyo wakat;i. mdai akiwa bado msichana nilimfa..1-i.amu •••• hata siku moja wakati vijana v,alipotaka kumtarosha kwenda kwmoa alik=!,m bila. kw5u 11 ( emphasis ., /· is mine). As I stated above these three defence witnesses are brohe.?"S in ood .d · ·are neighbours. One of them (DW2) confirmed in evidence that the respondeac .. . . . . . ; . ··?:°:,_. · is' known to him even before she was married. And that one occasion when some youths wanted to abduct her for marriage she to flight for refuge in the homestead of DW2. From this piece of evidence there is therefc:Jl'& ~~ presumption the respondent was known to the appellant and his relative •. It is even more· s6 when thera is uncont:r-'overted a,;idenco th.at the resp~. is married to ··the relatives o,f Tegama:i..sho• s family~ rt. is immaterial 'Ch.at. the respondent is under enatrsment with the witnesses• relatives • . It follows from the above aynopsis that the appeJ..lanti s endeavour to dny knowledge of the respondent \•fas bent to hide tha truth and · consequently 'to deny justice to whoever was entitled to benefit. Appellant adm:i. ttGd knm-d.ng Mich,.-;iGl 1.sJ:ltl(nbo {PW1) and 1:te, eonf:i.l'med that Pw.l. wes 1(0!'idng on the 1a:te Kigeret s shamba ~ upro.oting weeds, etc. Why then was he not involve·d \vheii DWl allegedly bought the eucalyptus - trees shamba? If it was not the ·presence of PWl at the respondentts shamba it would take a longer period for the re?pondent to realize that the appellant and his . ·,· relat5.ves had encroached on·to her shamba and committed the trespass the ... ' ~ . . way it has been observed a.bove. In the light of uch doubtful conduct of the _appellant ar.rl his brothers, 'Coupled' with the apparent materi_l;ll inconsistences in their ev:l.dence, : am lured to believe' that the evidence of the appellant, DWl and DW2 were concocted lies to injure justict:? at the detriment of the

'. i.;.. : .~ ;• .. 10 ·, resp'onderi.t ... ,They are not credible witnesse?•· .l'J.though_ the two lower courts '.;'. :Ji~ not :analyse\iie .eideric ~~ th~. stanctar'd ol hi court, with respect, ··:•-· .... ·. : hpwever 'they were· in the right footing when they threw over board the '· , •• f , ' • ~ '. , . ,,: ·,.,, . • f;•• -·. e.;,idence ·of . these three wit;nesses and find for the resporident. ( . . . ·. . . .. . . ·.: ..... The appellate.di$fict court was evn less appreciative of the • • ,. ,'•,I••: ' • • • '•• • •••• •,• • • • ' ,.- ...... the 'krnel concern a--~~~- t-~~al court. · h, le1;1ed_ ap_pellate magistrate p:ai:nst'akingl(6oncetrted :oh th/::ilmb 0 ~ ate_r,_,.a Jhing•which was only • • • i . - , , •, •, , l • , • ' ' • • • . • '. • , • • • '. 1 ' : '\ 1 ' ' raised lin evi_denc. jusf:·-by· the _wa~ (obiter). I!l, __ orff ;to be precise_, ·t :· --q· ote··the fei;t -passa·-••iv,lrat--): •• '.' .:--·,· .... o~ . . -:. .. ,., , ' . ... ·.' 11 It_supises. court why is appellant •wants . . ··.·:· ,. : ' . . . ( sic) .tp -force ,·his t,;Lembo to extend to I{espona.ent'i's hba •. His right of way should have joiri (sic) one that .goes t'o river, w_hich _is used by every body •. There- fore it is not true _thc!,t.,_the appellant!?. right 'of way has been blocked b_Resp0ndent .. Appellant wants to extend his Ilembo.μp to •.· ·. shamba of respondent i.-.rhich thing is nqt right. 0 ' . . .... Althou~·1.,. it is tiru~- that .. 'ther~ i/~ passage or th. hat, terns from the appellant•s resic;ienoe and proceeds in that directip as observed by the Learned Resident Magistrate, with._ due. respect, however, that was ;riot the issue at the trial court, or before her court and in this court. This brings me_ to the contention by Mr. Rweyemamu that th alleged existing path was not an ilembo as perceived by er.RI and H.11.RT l'DLL, para 714. I ·-- . ' have had the advantage of seeing authority, and with respect, I thank Mro Rweyemarnu for making it available to me •.. The said authority reads as ,follows:- 11 714. · These 'paths are the· exists of individual owners froin. their ·plantations 1md. connect wh: the avenues leading :trcim: the houseSft • · And pa.r.?graph 715 ·provides: . )· ,' I ... ·.

..... ' 11 C ? •. 11715. These paths originate from; • ' • ,.••. -• r • + J."", : • .£ r t • (a) 'I1he sub_.division of plantations by inheritance. or -saie.,,·· (b) Te creaton of nyarubanja. (c) · The ·planting of kisi with • 1 ?I .pe:r_-e_nru.a crops_'..• .. 1 In the light of that authority it is Mr. Rweyemamuts cont&ntion that the path under disc1;15sion in this case fll too much short of the :-en.t propounded by CORI .& H-:A...-qT IDLL (Customary Law of the HAYA TRIBE). __ -:-s·e LIBRARY OF AFRIC:f..N_1AJ ID 7. , • I The said path, according to Mr. Rweyerriamu, was no.t leading to 8!1Y avenue or public road but to a bushy -i"~ ~ . •, beyond which there is no exist. 'lh:is, I agree with tlie" learned o~unsel

• . 4 •. ... ' • . .. • -:. j . ... ... - ; ' because there is no evidence showing as to which exist the alleged 11 :ilembdl district court after having been st:tisfied with the sketch map drawn and supplied to the court by the appellant• s advocate it found that it was -v&ry much possible to have an exist through the appellant• s land: and that was to join the path that originates from tho appel.lantss s:1.de to a PUbl.ic <' road or a common public path. The appall.ate magistrate did not see any good Cl:l.USe on the p:3_1.·-t of the appellant to fo1·oe his path thr<>ugh tne :r&apOIQd&ntJ..s shamhao And, in my view, I agree with her because if there was such a dire 1.1.,-a,,,,c_ for thA appG-1] . .::mt to requ:i.:r:e ro1 -exii::t frorll his homestead to a public venue or r-oa.d he ,c;hould ei tber have compromised ,;Ji. th the respondent, or could ·seek the assistance of the administrator of the estate of the deceasedfs .sh~ba (see para 716 - C0RI & HA.i-qT NOLL)• In the upshot, I am left with nothing to observe or comment, the rest of the short canings in the evident record having been ably gued by the respondent 1 s counsel and I see it as a worthless exercise to repeat or restate everything. Accordingly I uphold the judgement of the trial court, and that of the district cour· to the extent of its judgement. The • respondent is entitled to have it b,1ck all the piece of land that was illegally

'-',. 'f .. ,. 12 annexed by tqe,. app~llant into his land, including the whole land grown 4.. • ~. . ' , . . . . . . with eucalyptus tre·es. She is also entitled to compensation to the extent of the'" damage aused,, by the trespass. But i;,. the ·amount of compensation was not pleaded then she. may seek re],ief ,in another suit. In the result • the appeal is dismissed i.1ith costs · from this c9urt and down below. . ·:'hT BUKOt3A:••'' 22/5/2000_., :. Delivered at Bukoba, this 12/5/2000 in the presence of both the --~~ · A. c. MREMA JUDGE·. learned advocates far t}Je appellant and respondent • .. , ~ ;'.>. JUDGE J2/5/2000 ! .