Hadija Hamis vs Makankasha vs Favian Ilomo (PC Civil Appeal No. 24 of 1999) [1999] TZHC 284 (9 November 1999)

I IN THE HIGH COURT OF TANZANIA 1 I AT TABORA i 1/ (P.C.) CIVIL APPEAL NO. 24 .,OF l-999 (Origbal Civil Case.Ne_. _53- ef 1998': ef' ttrambe Primary C«u"t and Civil Appeal Ne. l •f 1999ief Urambe District C•urt) I ' HAD:tJA HAMIS MAKANKASHA •• •• .. -/ .. ./ •• •• APPELLANT ·· I/ ' FAV'IAN ILOMO , •• •• •• •• •• •• • • ... RESPONDENT i JUD GM E,N T MASANCH:& 1 J •: These two persons a man an<i wonan, ha(! lived tegeth,r for a period• JJ¼ years, before they set!aratEld en what appears to.be the i subje,t matter ef this case -.t•acco moley 1 The resppentt Fl.avian ll•m•, bad sent the appellant, ~~dija Hami.,i Makankaa1'11, t• the Primary Ceurt •f Uramb• alleging that tpe appellant had conned him, if· I rr,,.y use that.','.ferd, seme money t• the ttil\ei•f Shs.901,8691•• The money, it wt.a ./ : \ § ' jad, had been realised frem al ef tebac•o at a Primary Seciety ,,, called Nsanjo. ;., The respondeut lost in the Primary Ceurt • The majority ·( ' ~ j i f • w ef the 'court; the two assesors', dftered with the Primary Cprt Jh.gtstrat-e. ii ,j • •. ; ; ' While the Primary Court Mag'istrate felt ·-tpit the respfndent baa preved hie I case, the assessor were •f the view that: .. Court. "Ushahidi wa:· kuthibitisha kuwa Pti.ai (new resp,ndent} alitea pesa k.a.nunua tumbaku hakuna. ijaku.na h.ati -ya kusaidia deni lake. Na vile vile ilielekea walipe bila ha.ti yeyote. Na walipefarak.a.na ndipo' kuzuka ha.ye. Na pia Bi shamba bakuthibitisha .. ~ ' hayo·kuwa mdai alikuwa na tumbaku." /' /,' ~ ', ,;/ / Se, the resp'ondent Flavian llemo lest the ease in the Primary 'I He appealed'tothe District Court, and here he wen, The appellant ( the woman) now appeals to this Court• The two persons prosecuted thedrr ; •I case befere w me themselves. I I

After reading the entire reed, that of the Primary Cwrt and that . ,- •f the district Ceurt, these are the fact ef the case, as I can gather them: The two persens, as I said before, took·each ether and lived together. They were doing some petty' business, it weuld aear. The business did nQ flourish, because it is said that at ene time the respendent ( the marij had te sell -~ house in order ti get ome money· t• belster 'their petty business. Unf.rtunately it would appear, the money realised frem the sale of the house sunk. ~ as nothing material that came out of it. Then, it would appear, the appellant decided to start cultivting f tobacco. Indeed, she did_cultivate obacco. She went to her father, Harnisi bin Rcl.Shidi n.w.1, and there_ the old man gae her some four acres on which t• cultivate tobacco. It as this eld man who supervised the cultivation. She hat%"1ested tobacco, went to sell it at the Primary ,1 Geciety and had e::x:pected to get the:amount of money mentioned earlier. There is no doubt; at the primary soeiety, it was the woman (the appellant) whose.name was on the register, the pay rell. And, when time for payment_came, it was the appellant who was to be pa.id. She, however, was not paid. The respondent had averred, ' ' and quite seriously, that the mane was his. He argued that he ha advanced the money to her fer the cultivation •f the tobacc•• In fact in the eourse of his demanding te be paid, he vven went to the extent ef loctking the appellant in custedy on the pretxt that f?he had absended from his home after stealing sufurias, clothes, and spooM. 4 She was let free after the same respondent had gone te the police and told them that he was pardoning her. After realising that the appellant was going to get the money frem the respondent he went to Court and opened a case, as I have pointed out before. The Primary Court Magistrate who was in the minity, was ., of the view that the respendent must be believed when he says that the success of the tobacco business of the appellant was caused by him, in the sense that it was his money which was used. I think the Court assess~s were right in dismissing the ease that was brought to them by the reep,ondent. There were several

reasons fer dismissing it: Firstly, it is true, as the essessors said, that the respendent could not just prove that he gave out money to the appellant for purpose§of:' ding tabacco oultifttioni' (In the contrary, there is the evidence of_the father of the appellant, the 68 year eld Handsi bin R<!!, D.W.l ,who emphatically sai<' .. th.::t he gave out to the appellant acme land on which to cultivate tobr·cco, and the.t he himself, supervised the cultivation. Secondly, even when one rea(s the evidence of the respondent's ewn witness, Albatina Fataki P.W.lf• ~ categorioally denied even knowing the respondent having bought any tobacco frem anywhere and selling it to the Primary Societr• Th.is witness,.in fact,added that the oldman Mr. Hamisi Rashid:i, D.W._ was a gotld tobacco farmer. there, and indeed had many farms. Further, n.w.3 ~~ bil'.I: Kali?l,88;, another witness who came to testify on behalf of the responden~ never gave good_testimony for the respondent. He said that the responde~ had no shamba at all. If he was doing tobacco business at all, it was the middle man business of buying and selling. ~:irdly, the truth of the matter, as pointed out by the assessors, was that the respondent•a name was not registered with the Primary Society. In short he had no number there. How could he be involved? I am·therefore of the settled mind that the respondent never proved his case in the Primary Ccurt. The appeal to this C.-urt by Hadija Hamisi Makankasha is allowed• The judgment of the Primary Cal%l"t• is restored with oosts.· / JlJDGE. I - ••• /4. .r I.

. (PC).Civ.App.24/99. 4 AT TAB<RA, 4th Noember ~ 1999. Parties: Absent • ........... Date: 9th November, im Coram: S~ B. Iukelelwa,·I;)ietriet Registrar., Api,eiiant: present in per-ot1 ' .····· Respondent: Absent. Crt Clerk: Mr:-s. Kaombwe. Mr. Mtaki: present for the Respondent. ORDER& Judgment delivered in Ceurt this 9th!", l.9'9,. Rights of appeal explained. ! • ·,t ,,! ' s. B. LUKEtEI.wA ♦ . DISTRICT REGISTRAR, 9th Nlvember _, 1999 •