William s/o Mwakatobe vs Samwel Njombe (PC Civil Appeal No. 83 of 1998) [1999] TZHC 365 (22 October 1999)

~ - ~~/· ~ ~ vc n/ IN 'filE HIGH CO'UI<'l' OF TANZANIA AT MB.E.'YA (PC) CIVIL APPEAL NOo 83 OF 1998 (From the decision of .the. District Ctiurt of Mbeya at Mbeya in 'civil Appeal No. 42·of 1998 Before: BoH. Mandawa - Resident Magistrate) WILLIAM S/0 MW.AKATOBE • • • • • • • • • • • • • APPELLANT Versus SAMWELNJOMBE·••••••••••··••v•••••• RESPONDENT JUDGMENT -----. A &hamba te size of¾ acre was the centre of dispute between the parties. . '· The reswndent, Samwel Njombe, successfully claimed the shamba from.the appellant, William Mwakatobe, before the primary court of .Mwanjelwa. The appellant felt aggrieved and hi~ first appeal to the district court of Mbeya was dismissedo ' Henc; this second appeal preferred and argued before me by his learned advocate, ~ •. Moise, and resisted by the respondent in per~on. r , .'- , The shamba in dispute, it would appear, ha a protracted history. The regpondent's case was that his deceased ?rather, Hussein Njombe, hired out his .. . . . several ~hambas. to various persons for · c\J.lt.:ivating seasonal crop:; t ·:a.. price· .. The ~hamba in dispute was one of them. It ·was· conceded that the sham:t>a -iii dispute Qnee belonged to Hussein. In 1968 Hussein ···hired out the shamba in ~.l'T' . . . dispute to t younger sister of the mother of the ·appellant . (Mama mdogo) ·for ehs.200/o David Suya (SM2) and Danil Mwanzanga (SM3) spoke for the respondent on this transaction. In 1973 the.mama mdogo.of the appellant fell sick and pledged the.shamba to the father of SM3. The respdhcl.ent and SM3 did not say at how· much money. The appellant said it was at-·•shso300/=• 'l'he father of SM3 died after cultivating the shamba for five years and, according to SM3., he cultivated \he shamba for another period or.three years before the appellant ·. ~ . ' took-,it f!'Oni. _him• by ferce,,· According to the respondent the appellant paid back the money to SM3 and took the sha.inba. from him ... It would appear that the eultiva- tien of the shamba by SM3 and his father had the blessing of Hussein. c•••o•• /2 l \

2 Then Hussein died. It is said it was in 1994. He left behind a wife:and three childreno The respondent became the care---taker 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 Hussein 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 ito 'I'he following year (1996) he again approached the appellant who said he did not recognize him claiming that it was the father of the respondent who had sold the shamba to him fof one cow and not the respondent. 'rhe mama mdogo of the appellant was long dead. The appellant wanted his cow back so as to surrender the shambao In 1997 the appellant refused to attend a meeting of traditional elders called at the instance of the respondent to discuss the matter. In 1998 the respondent took the matter before the Usoha/Nporoto ward tribunal which, however~ refe:r::red. thef~\ matter to the primary court. Hence the suit which was fiJ.ed on 9o3.98o The cru;e for the appellant was this. In 1967 Husseir. had a case in court and was after money to meet the expenses. He approached the father of the appellant and told him he had a coffee shamba (shamba la kahawa) he was selling · to raise funds. 'l'he father of the appellant did not have money, but thy::figreed orally that the father of the appellant would give him a cow as the pric-for the shamba. The father of the appellant then took the shamba and Hus·se{n, the cowo The appellant vs witness, Mwakatobe ivD.oli (so;;), said he saw the ·.shamba: ."and the cow, but he did not identify the shamba to be the one in dispute. In 1972 the appellant's father died, and the appellant inherited the shambao In 1973 the appellant wanted to marry a second wife but did not have money. He then pledged the shamba to the father of SM3 for shs 0 300y;;:.- In 19?? he. redeemed · the shamba from the father of SM3 by paying the money back to h:i.m, handed over the shamba te his new wife. • 0 • • 0 o O O O °It 8. ., - . -4 ii

3 ...;. On 11 0 5098 the appe_llant closed his side of the case and the court directed the respondent to arrange for a motor ve 1 .L'-cle to take. the court_ to the shamba in du;pute at Uporoto areao 'I'he date for the visit was on 23o5o98 and both parties were duly notified and directed to proceed to the shamba where the court would find them. On that day (2305.98) a motor vehicle hired by the respondent took the court to the shamba where the respondent was fowid .but ··not the ap,Pellant. The appellant did not report at the sha.mba and did not at any ·time thereafter communicate 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 delivered as fixed. 'l'he respondent was present-but the record is not clear that the appeJ.lant was present as well. The primary court unanimously decided in favour of fhe·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. '1 1 he court ordered that the re;spondent ·he paid . ,,., -~ .. his' costs of the suit, and explained -rights of appeal~ Immediately thereafter···' the respondent said: •·Mdai~ ·-·:-"•- Naiomba mahakama 11iweze kupewa shamba langu pamoja na gharama, zgti_ za kukaguliwa sha.tn::>i?, nilikodi gari na posho kwa wazee Wa.shauri wa Mahakana. I1inigharimu shs.200 1 000/==• ·' The response of the court was; ·nMahakama: ,,,_ ----•· . ..-.=..- Nak-.iba.liana na maomhi ya mdai, mdaiwa arnrudishie ·. mdai gharama zake zote ka'Tla a.livyodai mdai." '.l'he foregoing/ ·was -ig:fi.ed: by the magistrate and hi two assessors. The district court on first.-appectl upheld the decision of the primary cour;; iriclusive of the order for the 'ciippellant to pay the respondent the expenses of shs.200,000/=o Jv'ir •. Mbise pI'e._ferred four grounds of appeal which were: - 1 ° The-· two lower courts erred in the assessment of ev-i'dence op.;·retiord 1 otherwise it is very clear on the evidence on : < -~~:,,·,,. · record that the su:i.t was bopelessly instituted out of time •o••• /4

4 in.that Hussein.Njombe, the Respondent 7 s deceased brother alleged to be the owner of the land in dispute parted with the disputed laP.:i way back in 1968 1 about 30 years ago and did not make any attempt to redeem it till he met his death over 20 years later. 2o 'l'he two· lower courts erred on the question of burden of proof in civil matters. The Respondent v1ho was supposed to prove his case to the preponderance of probabilities failed to discharge that burden, yet the bm lower courts put the Appellt to tasko 3. The order of-compensation of Tshs.200,000/ as costs of hiring a motor vehicle from Mwanjelwa to 'L"poroto (less than 20 km) was arbitrarily made in that Appellant was not heard, and is clearly a fabrication. 4, The two lower courts did not consider material contradictions in the Respondent's case at the trial. With resp~ct to f''rr-. Mbise, l find neither materiel contradictions in the respondent's 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. Mr. Mbise h:i.1;,self did not gjve supportive incidences of these irregularities apart from merely mentioning then,. There was, rather, material and reliable evidence that the land in dispute belonged tC'l Hussein throughout. •rhe terms of the arrangement for the. use of the land between Hussein and mama mdogo of the appellant were such that the ownershi) of the laI?,d could "' not have passed to her or to a.'1y other person for that matter whatever· the length of the useo 'I'he agreed use of the land was cultivation of s,.~ason¥. cropso The advent of the appellant on the sharnba was capable of tw.o·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 agreed between her and Hussein. This would account fer the fact that Hussein was not q,isturbed by that exercise. It wf1uld 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 ifu agreed between Hussein and mama 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 uo••eooooo• /5

• .. 5·: Hussein of his land. The later would appear to,have·been rnore likely than the former in view of the utterly untenable claims raise9- by the appellant in connection with the land in dispute as I shall explain shortly hereinaftero 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 a.rip degree·of certaintyo Perhaps it was in 1982 when the appellant said he entrysted it to his wife. It could nt therefore be said for certain that Hussein was already out of time, ... let alone hopelessly so, at the time of his death. 'rhe respondent; for. his part t preferred the suit immediately after the death of Hussein, cud so in good time for seeking recovery of the \and in disputeo The appellant vs claim ·that his father bought the land in dispute frtom Hussein in 1967 for one cow 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 dispute. First, it was., in 1967 and the appellant c;taimed it was coffee shamba (shan1ba la Ka..1"1awa). 'U1e shamba in dispute was not a coffee shatJ1ba. ·The shan1ba Hussein hired out to mama mdogo of the appellant on the already mentibne·d agreed terms of use could not have been a coffee sharnba. The agreed terms of the use of the sharnba would have been inconsistent with .. pesence of permanent. coffee trees on the shamba. Second, in his memorandum of appeal'. to the distl;'ict court the aiJpellant claimed that the sharnba in dispute had wheat grevm in it whh, agai~, would have been impossible in a coffee shamba • ...,,_ Third, SM.~ to],.q .the trial court that at one time the sharnba in dispute had . ~·;-· pyrethrum (P~~to) grown on it which was an impo&5ibility in a coffee shamba. ·- • :Jo. And fourt1, n~~n~ mdogo ·6f app€llant coU:ld not have pledged the shamba in dispute to .·SH3 and hi$ /ather for· u;·e on the terms a.greed betvJeen her and Hussein if it were coff_ee sh?J?lba. · . On a comprehensive view, therefore, the shamba .. in dispute ' . . was the shamba •hired out to· mama rndogo of appellant by Hussein and which, as foun9: by· p·oth · 9ourts -be-low·, -v,as·, and remained, the property of Hussein. :.. ~ .. ·:.~ . Proof .in. ~ivil cases is a matter for elementar;y lnwwledge. 'The standard of proof is·· ori the balru1ce of probabilities. He who alleges the existence of a o O C· O o O o O O C /6 ..

6 - 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 probabilities. 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 prove. It remained a mere allegation. On the evidence, I would, for reasons given, agree with, and uphold, the concurrent decision by ... both courts bel9W that the respondent's case stood established on the balance of probabilities • . , Let me, in cnclusion, consider the .1?'-ward of shs.200,0QO/= made to the respondent· as costs of hiring a motr v~,hicle for the visit to the shamba. I would clarify that the money was.not ·only. hire barges but also for petty expenses incidental to the visit which the appellant -could have _witnessed for himself had he cared to attend. With respect to ;/jr. i'lbise·, 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 s_harnba in dispute. The trial court's record speaks for itself. A claim for costs or expees connected with · the visit could not, therefore, have been a fabrication. Mr. Mbise submitted that the appellant was not heard before the order . l : for compensation was made. True, the -appellant was not heard. As earlfe_r· 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 ·•f 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 cUJpellant had displayed a ri_egative at_titude and conduct to the __ issue of the visit to . .the suit land. iie had, despite having notice of the visit, deliberately decided to absent himself. I say 1- deliberately on account of that he did not, then and thereafter, commun1cate to the trial court the reason for his failure to show up at the shamba. It -ms clear the idea of the visit to the .shamba did n'4St .appeal to him. But the visit

7 - was importa...'1t to his case just as it was important to the respondent I s case. it· was in the interests of justice. Lastly, Mro Mbise submitted that the award was exorbitant. 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 court. So the district court did not adjudicate on it. I take the failure by the appellant t• 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 court. I thus c,ns.ider it too late in the day for Mr o l"ibise to raise the issue for the first time on this second appeal and hereby decline to adjudicate on ito 'l'he quantum awarded. remains undisturbedo In the event, I find this second appeal devoid of merit and hereby dis1uiss it in its entirety. l'he appellant is to vacate the shamba in dispute fr the respondent unconditionally, a.'1d the respondent is to have his costs hefe,and in both yOUl"JS below. .. .. J AT MBEYA. · . 22 October_ 1·999. Fpr Appellt: Mr. Mbise, advocate. For Respond,eIJ.t: Present. B.h HOSHI