Omary Athumani vs Joseph Tadayo (PC Civil Appeal No. 28 of 1997) [1999] TZHC 130 (22 September 1999)

✓ /41~/<M;,, ·,···f/.lJfa- IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DIS:TRICT REGISTRY ·.-. . . ' . ·.. . - ' · AT 'DAR ES SALAAM . PC. CIVIL APPEAL NO. za·oF 1997 .. '· . - (Ori,ginating. fr?m Kilosa LJistrict Court ·No.23/96 Original ·-?1i:rgol~:" 3/9~ Prim_ary Court) OMARY ATHUMANI • •· ••• ,. •••••••• : •••• APPELLANT . . .... ' ·' VERSUS JOSJ;:PH TADAYO ................ • ·- ... RESPONDENT BUBEStiI 1 !!,: The appellant was dissatisfied with the District Court's decision when it reversed.the findings of the Primary Court to award-possession o{ a piece of land to the appellant. The evidence·which was given during trial was sh.ort . ,' . and clear. The appllant· testi:fied to have been given tht ·piece of land in 1994 by one Shaban~ Makutule~ now de•aased. ', - ' . _The transaction wa~ witnessed by PW 2 Ibrahim Poromoka ~ the Wa:rd Chairman, 'those evidence ga,.ve_support to the appellan~ .-.... . · ·claim~ ',rhe respondent, on the cthe.r hand claimed that the iece of land forms pfirt of a,_. bigger pac1 · of ·1and that he · .... · inherited from his late father, and that.he has been • t • .J. .. • filling the' land ·for 35·: y:ears. now. . The evidence of PW 2 Ibrahim P:oromoka is. crucial in these proceedings/appeal 9 According to his evidence, that piece . . ~ of land belonged to the deceased Shabani and boundaries were ear marked in presence of both parties. I think is is important to observe that if the respondent had :(et aggrieve~, he ought to have sued his relative Shabani ·Makutule or the administrator of the estate if there · iis. &fl~~ .. th. _a,pp~J)afl:t was given that piece of land by ~ ...... ·' ,: ..... _ .... ,- ',•!· t:.,.,"li ... f·' -- ~~ . • Shabani Makutule in presence of t·he p,i 2; Certainly going ••••• /2

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2 by the evidence o• record, the findings of the trial court cannot be faulted. I have failed to see the basis of the reversal of that judgment by the first appellate court. In the premises. I allow the appeal, set aside the d decision of the District Court and fonfirm that of the Primary Court, the· appellant to be awarded costs in this court and those below. Delivered before: Appellant in absence of the Respondent t ·,,. ... t ... i /\ . -- .... , i ' ··.\ {~ A,·, I/ I .J. -·. . ..:.)l _f,¥,Ji:/tA A.G. BUBESHI. JUDGE 22/9/99