Cronel Matofali vs Nestory Mponda (PC Civil Appeal No. 52 of 1998) [1999] TZHC 360 (24 September 1999)

.. ., MOSHI, J. IN THE HIGH COURI' OF TANZANIA AT MBEYA (PC) CIVIL )U'PEAL NOo 52 OF 1998 (From Sumbawanga District Court Civil Appeal Noo 4 of 1998 Before: M.JoD. Hamisi - District Resident Magistrate) CRONEL MATOFALI APPELLANT Versus NESTORY MPONDA RESPONDENT JUDG1ENT The focal point of contention between the parties was the ownemhip of a 3. acres piece of land. The appellant claimed he had lawfully bought it while the respondent claimed he was entitled to ito The appellant successfully claimed it from the respondent before the primary court of Mwazye._ The respondent f"elt aggrieved and preferred an appeal to the district court of · Sumbawanga district at Sumbawanga which allowed the appealo The_ appellant, in turn, felt aggrieved, hence this second appeal whose memorandum of appeal. was ?-!'~~, but not argued, by Mro Materu, learned advocate. · ·Both the appellant and the respondent entered appearances in court for • the hearing of this appeal and asked the court to consider the contents of the '·memorandum of appeal and those of the written reply to it 1 respectively •. The "case for the appellant was that he bought the land from Claudio Minazi (SM2) in November 1QOI). ~M? said his father had given him the land in 1976 and that he sold the land which he had been cultivating throughout with the consent of his father as he was shifting e},sewhere. The sale was . . .in writing and it was witnessed by, among other persons, their _area chairman,.: Bartazari Kapyuku (SM3) and the Village Executive Officer. The respondent as well as other clan members of ~M? 1 ·'"'"'"' "'.,..,..,,,,.,N :::inti A.bout in the village and • ••• 0 •• ··• ••• /2

• 2 - were informed of the sale, but according to Inyas i Ms indo ( SU2) , they did not take any immediate ste~. In January 1997 the respondent invaded the land, stopped the appellant from cultivating it, and ordered him out of it. Hence the suit. The respondent, for his part, had the following as his side of the case. His father Alous Saidi inherited the land from their grand father Ngamila Saidi in 1972. His brothers Petro and Edward Msindo inherited it from their father and were cultivating it. Petro died in 1990 and Edward in 1993. The respondent was charged with the duty of taking care of the children of Petro and Edward. In 1995 he heard that the land was sold. He then invaded the sharnba which the appellant had bought. According to SU2 it was his elder brother Nicholausi -, Minazi and his son Claudio Kapyuku who had sold the land to appellant. Christopher Mponda (SU3) said the area sold was a pori, and he confessed to hav"e lied when he told the trial court that the father of the respondent had . inherited the lando With respect, this second appeal is abundant in merit. As rightly found by the primary court the sale of the land between the appellant and SM2 ·was valid 0 The sale was acquiesced to by clan members. The respondent did not sue for it. He invaded it. On the evidence, the land bought by the appellant was not the land allegedly inherited by Petro and Edward from the father of the I • respondent. The respondent's own witness (SU3) proved the respondent a liar • • The same witness said the land was a pori, which was not the case. The land was· that of SM2 given to him by his father. In the circumstances I agree with the primary court ·that the respondent was using the pretext of caring for the children of Petro and Edward to swindle SM2 and appellant of the land. Quite clearly, the district court was not properly seized of the evidence recorded • by the primary court. For instance, the appellant did not say he bought the . 'land from father of respondent as said by the district court, but from SM2. C /3

.. 3 - A proper .analysis. of the -evidence would establish that the land in dispute was a lawful property of SM2 he had soid to the appellant in a valid sale. I accordingly allow the appeal,_quash the district court's decision, and hereby restore the judgment of the primary court. The respondent is to vacate the shamba for the appellant. immediately and un.cond.itionaJJ.y, and the appellant is also to have his costs here and in the two courts below. AT MBEYAo 24 S~ptemher 1999.

• For Appellant: Present.
• For Respondent: Present • .. B.P. MOSHI JUDGEo