William S/O Mwakatobe vs Samwel Njombe (Civil Appeal No. 83 of 1998) [1999] TZHC 233 (22 October 1999)

IN THE HH COURT OF TANZA1IA AT MBEA (PC) CIVIL APPEAL NO0 83 OF 1998 (From the decision of the District Court of Mbeya at Mbeya in Civil Appeal No. 42 of 1998 Before B.H. Mandawa - Resident Magistrate) WI1LIM S/C) MWPKATOBE APPELL.AT -• Versus SANWEL NJOMBE 0000 0 0 00 0 0 0 00 0 0 0 • R.I±IbPONDENT JUDGMENT __ • • 1 A shamba the size of )4 acre was the centre of dispute between the parties. Tb. respondent, Samwel Njombe, successfully claimed the shamba from the appellant 1 William Mwakatobe, before the primary court of Nwanjelwa. The appellant felt aggrieved and his first appeal to the district court of Mbeya was dismissed. Henee this second appeal pieferred and argued before me by his learned advocate, Mr. Mbise, and resisted by the respondent in person. The shamba in dispute, it would apear, had a protracted history. The respondent's case was.that his deceased brother, Hussein Njombe, hired out his 6everal 3hambas to various persous for cultivating seasonal crops at a price. Tb. 3bamba in dispute was one. of them. It was concededthât : the 4ibè in dispute one belonged to Hussein. In 1968. Hussein hii'ed out the shamba in dispute to the younger sister of the mother of the appellant (Mama mdogo) for ha.200/-_. David Suya (SM2) and Daniel Nwanzanga (SM3) spoke for the respondent on this transaction. In 1973 the mama mdogo of the appellant fell sick and pledgedthe shaniba to the father of SM3. The respondent and SM3 did not say at how much money. The appellant said it was at shs.3001=. The father of SM3 .ied after cultivating the shamba for five years and according to SM3, he ultjvated.the shamba, for another period of three years before the appellant book it from him by ffrce. According to the respondent the appellant paid back ;he money to SM3 and took the shamba from hijn. It would appear that the cult iva- ;ián of the shba by SM3 and his father had the blessing of Hussein. • __ , ;, i' • 0 • S 5505 12

C - Then Hussein died. It is said it was in 1994. He left behind a wife and three children. The respondent became the caretaker of his household and the guardian of the children (baba mlezi). Among the duties of the respondent was the collection of all the property of tlussein and dishing it out to his children in inheritance. The respondent then went about demanding the shambas of Hussein from the persons to whom they had been hired so as to divide them among the dependants of Hussein. This was in 1995. He approached the appellant for the shamba in dispute who replied he would think about it. The following year ( 1 996 ) J . he again approached the appellant who said he did not recognize him claiming that it Was the father bf the respondent who had sold the shamba to him for one cow and not the respondent. The mama mdogo of the appellant was long dead. The appellant wanted his cow back so as to surrender the shamb. In 1997 the appellant refused to attend a meeting of traditional elders called at the iiistance of the respondent to discuss the matter. In 1998 the respondent took the matter before the Usoha/Mporoto ward tribunal which, however, referred the matter to the primary court. Hence the suit which was filed on 9.3.98. The case for the appellant was this .. In 1967 Hussein had a case in court and was after money to meet the expenses. He approached tne father of the, appellant and told him he had a coffee shamba (shamba la kahawa) he was seliing to raise funds. The father of the appellant did not have money but thy agreed orally that the father of the appellant would give him a cow as the price for the shaxnba. The father of the appellant then took the shamba and Hussein the cow. The appellant s witness, Mwakatobe Mioli (St),said he saw the shamba and the cow, but he did not identify the shaniba to be the one in dispute. In 1972 the appellant's father died, and the appellant inherited the shamba. In 1973 the appellant wanted to marry a second wife but did not have money. He then pledged the shamba to the father of SN3 for shs.300y. In 1977 he redeemed the shamba from the father of SM3 by paying the money back to him. In 1982 he handed over the shamba to his new wife. •,•0000000 /3

On 11.5.98 'th appellant closed his side of the. case and the court directed the respondent to arrange for a motor vehicle to take the court to the shamba in dispute at tJporoto. area. The date for the visit was on 23,5.98 and both parties were duly notified and airectod to proceed to the shamba where the court would find them. On that day (23.598) a motor vehicle hired by the respondent took the bourt to the shamba where the respondent was found but not the appellant. The appellant did not report at the shamba and did not at any time thereafter conmiunicate to the trial court the reason for his failure to report. Judgment

• was reserved for 29,5.98- with a direction for parties to appear.. On that day (29.5.98) judgment was dlivered as fixed. The respondent was present but the record is not clear that the appellant was present as well. The primary court unanimously decided in favour of the respondent holding that the respondent was a competent party to sue and that the land in dispute was the property of the deceased brother of the respondent (Hussein) which could be dished out to his children in inheritance. The court ordered that the respondent be paid his costs of the suit, and explained rights of appeal. Iediately thereafter the respondent said: "Mdai Naiomba mahakama niweze kupewa shabe.langu pamoja na gharama zangu za kukaguliwa shanba nilikodi gari na posho 'kwa wazee \ashauri wa Mahakana. Jlinigharimu shs.200,0001-, . The response of the court was Nahakama: . Nakubaliana na maombi ya mdai, mdaiwa arnrudishie mdai gharama zake zote -kama alivrddai mdai0" The foregoing was signed by the magistrate and his two assessors. The district court on first appeal upheld the decision of the primary court inclusive of the order for the appellant to pay the respondent the eipenses of shs.200,000/=.
• -- - -0 Mr. Nbise preferred four grounds of appeal which were: 14 The two lower courts erred in the assessment of evidence on record, otherwise it is vèry clear on the evidence on record that the suit was hopelessly instituted out of time ..... /k

in that Hussein Njombe, the Respondents deceased brother alleged to be the oner of the land in dispute parted with the disputed lai way back in 1968, about 30 years ago and did not make any attempt to redeem it till he met his death over 20 years later. The two lower courts erred on the question of burden of proof in civil ñiatters. The Respondent who was supposed to prove his case to the preponderance of probabilities failed to discharge that burden, yet the two lower courts put the Appellant to task. . The order of compensation of Tshs0200,000/= as costs of hiring a motor vehicle from Mwanjelwa to Uporoto (less than 20 km) was arbitrarily made in that Appellant was not heard, and is clearly a fabrication. '+h The two lower courts did not consider material contradictions in the Respondents case at the trial. With respCt to r. Mbise, .1 find neither material contradictions in the respo'ndents case nor an error in the assessment of the evidence on record nor a shift of the burden of proof to the appellant on the evidence and in the circumstances of this case. Nr.HMbise hiiiself did not give supportive incidences" of these irregularities apart from merely mentioning then.. There was, rather, material and reliable evidence that the land in dispute belonged to Hussein tloughout. The terms of the arrangement for the use of t.ae land between Hussein and mania mdogo of the appellant were such that the ownership of the land could not have passed to her or to any other person for that matter whatever the length of the use. The agreed use of the land was cultivation of seasonal crops0 The advent of the appellant on the shamba was capable of two probable interpretations. First, it could be taken as an effort to redeem the land from SM3 for continued use by his mama mdogo on the same terms a-eed between her and Hussein0 This would account fcr the fact that Hussein was not disturbed by that exercise. It weuld be recalled that Hussein had acquiesced to the use of the land by SM3 and his father who had put it to use on the same terms as agreed between Hussein and mania mdogo of the appellant. Second, the advent of the appellant on the shamba could be taken as the action of the intruder bent upon swindling 0O104*0000• /5

• 5 Hussein of his land The later would appear to have been more likely than the former in: view of the utterly untenable claiiis raised by the appellant.in connection with theland in dispute as I shall explain shortly hereinafter. The time the appellant began to put the land in dispute in use inconsistent with the rights of Hussein, its true owner, was not established with any degree of certainty. Perhaps it was in 1982 when the appellant said he entrusted it to his wife. It could nt thereore be said for certain that Hussein was already out of time, • let alone hopelessly so, at the time of his death0 The respondent, for his part, 4 preferred the suit irnrxiediately after the death of Hussein, and so in good time for seeking recovery of the land in dispute0 The appellant's claim that his father bought the land in dispute frm Hussein in 1967 for one óow was clearly untenable on the evidence and in the circumstances. Even assuming that there was such a sale, the land involved was not, and it could not have been, the land in dispute0 First, it was in 1967 and the appellant claimed it was coffee shamba (shamba la Kahawa). The sharnba in dispute was not a coffee sharnba0 The shamba Hussein hired out to mama mdogo of the appellant on the already mentioned agreed terms of use could not have been a coffee shamba. The agreed terms of the use of the shamba would have been inconsistent with presence of permanent coffee trees on the sharnba. Second, in his memorandum of appeal t the district court the appellant ôlaimed that the shamba in dispute had wheat gr.wn in it which, again, would have been impossible in a coffee shamba. Third, SM2 told the trial court that at one time the shamba in dispute had pyrethrum (Pareto) grown on it which was an impossibility in a coffee shainba. 0 And fourth, mama mdogo of appellant could not have pledged the shamba in dispute to SM3 and his father for use on the terms agreed between her and Hussein if it were coffee shamba.. On acQmprehensive view, therefore, the shamba in dispute was the shaniba hired out to rrania mdogo of appellant by Hussein and which, as found by both courts below, was, and remained, the property of Hussein. Proof in civil cases is a matter for elementary knowledge. The standard of proof is on the balaace .f' probabilities He who alleges the existence of a /6

b .- certain fact bears the burden of proving that fact, be it the plaintiff or the defendant. The success of the case would depend upon the combined effect of the totality of the affirmative facts established in evidence by the plaintiff weighed on the balance of probabilities0 In this case, it was not shown or explained how the trial court shifted to the appellant the burden of proving matters which were for the respondent to prove0 It remained a mere allegation0 On the evidence, I woul&, for reasons given, agree with, and uphold, the concurrent decision by both courts bL.w that the respondent's case stood established on the balance of probabilities. Let me, in snclusion, . consider the award of shs.200 ,000/= made to the respondeiit as costs of hiring a riotr vehicle for the visit to the sharnba. I would clarify that the money was not only hire charges but also for petty expenses incidental to the visit which the appellant could have witnessed for himself had he cared to attend0 With respect to 4r. Hbise, the claim was not a fabrication. It was a fact that the respondent hired a motor vehicle which was used by the trial court for the visit to the sharnba in dispute. The trial court's record speaks for itself,. A claim for, costs or expenses connected with the visit could not, therefore, have been a fabrication. Mr. Mbise submitted that the appellant was not heard before the order for compensation was made. True, the appellant was not heard.. As earlier said, the record did not indicate'for certain that the appellant was in court when the judgment was delivered. Chances are that he would certainly have been heard were he in court. In the peculiar circumstances of this case, however, I do not think that the trial court could be blamed for failure to hear the appellant. The appellant himself had invited it. The appellant had, displayed a negative attitude and conduct to the issue of the visit to the suit land. He had, despite having notice of the visit, deliberately decided to absent himself. I say deliberately on account of that he did not, then and thereafter, communicate to the trial court the reason for his failure to so.w up at the shamba. It was clear the idea of the visit to the shaniba did xi.t appeal to him. But the visit ............ /7

I 7 - was important to his case just as it was important to the respondent's case0 It was in the interests of justice0 Lastly, Mr. Mbise submitted that the award was exorbitant0 This issue however was first being raised on this second appeal It was not raised by the appellant on his first appeal to the district court0 So the: district court did not adjudicate on it0 I take the failure by the appellant ti have raised the issue on his first appeal to the district court as an indication that he had accepted the quantum as passed by the trial court0 I thus c.nsider it too late in the day for Mr6 Mbise to raise the issue for the first time on this second appeal and hereby decline to adjudicate on it0 The quantum awarded remains undisturbed0 In the event, I find this second appeal devoid of merit and hereby dismiss it in its entirety0 The appellant is to vacate the sharnba in dispute fr the respondent unconditionally, and the respondent is to have his costs here and in both courts below0 'KT ' I •1 I ?' 11 - ; I \ AT nEYA. 22 October 1999

• For Appellant: Mr0 Mbise, advocate0
• For Respondentz Present0 - .'.- 130 P. MOSBI JUDGEO t