John Kulwa Mwanga vs Matalu Mongobusia (PC Civil Appeal No. 38 of 1998) [1999] TZHC 200 (14 September 1999)

IN THE H'IGH COURT OF TP.NZAl.fIA AT TABoRA (PC) CIVIL APPEAL Ne,. 38 GF 1998 (:from .. .Bea-i.adi. 9:i.viLAppeal No,i: 110 of 1997 and Original Civil Case No .• 33 o-.r--1997. r,:;,_ ·::y-airo.bindi ~--Cottrt) JOHN KULWA MVANGA •• •• MA.TALU MONGOBUSIA •• •• MASANCHE 1 J.: .. . • • V E R S U S3 •• _____ ,,_ •• 00 JUDGMENT o• ••

• APPELLANT ". • • .- RESPONDENT The appellant, John Kulwa Mvanga 1 had sued the respondent Matalu obusia in the Primary C01,lrt of Nyakabindi in B?,riadi District for a reoovery of two acres of land, that it was aJ.leged 1 had been taken away by the respondent forcefully. The appellant won_ the case. The r:=:;1on-:bt respondent then appealed to the District Court of Bariadi. There the ri3epondent won the appeal. In other words the learned .District Magistrate there, Mr. Malarnsh81 has reversed the decision of the Pri'niary Court. John Kulwa Mvanga now appeals to this Court. I have read the record of the two Courts below. These are the facts of the oase as I have come to understand them: The appellant John s/o Kulwa Mvanga P.,W.1 is the son of Kulwa i~ P.W.2. As is sen from the record, both these persons, a son and father testified in Court. I mention this at this early stage because there was an arguement from Mr. Boaz that the one suing should have been the father and not the son. That arguernent cannot be sustained. The truth of the matter is that both have testified. So, the appellant, the father, and three other people oeephat Bunyam P.W.3, Kasuka Masanj PcWc4i Kilenga Mgato P.W.5, testified that the area in dispute covered two acres, and that the oldman P.W.2 and his son had cultivated it since 1955. They argued that there was no justification for the respondent to come and interfer~

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·!{asuka Masanja -PW .4, partieularly called the resp•nden.t a "mkorcfi" • an obstinate person. Another plaintiff's witnesses ,!•W•l (Jcsephat) for ~ ex.ample, wondered° how the respondent, a young man of the age of 21 yearf\ eould know anything about this piece of land which had been cult'ivated by the appellant for 4o yars. The respondent, on. the other h hand, put up an erguemont, which I have been able to understand that he, in fact had not encroached into I ,. - the lsnd of the appellant, for there was no such land. The Primary Court visited the site. They took evidence from'a witness. They went back to Court. They egaluated the evidence. Ther '\hen came to·an unanimous decision that the shamba covered, about less than 2 acres, but indeed belonged to the appellant. They therefore gave verdict for the appellant. One thing which I think is accepted - it is that the appellants have cultivated the pieoe of land since 1955. · Ti-tat is an extremely . long period of time. !f that is the po.sf>tion, then as this Court has often held, it will not lightly dispossess people who have an occupation of a piece of land for that long - and sometimes we go further, depending on circumstances of that partieular case to say that even wwe tho possession was adverse the person should not be disturbed. (see cases Kandia Noa v. Hus;:in Saidi 1976 IRT n. I; Selemani I)adi v. tuta cJ'o fil {"1968J H.C.D. n. 23; Kidela v. Thomas C'1968J H.C.D. n. 8; Serikali '18. Kijiji.Issuna v. Samson Mukenz! (P.C.) Civil Appeal no. 30 of 1990 • ·Dodoma; Nasoro Ubadi v. Musaa Karupge ["-1982.;} TL.R. :5ta_: where the ease of Shabani Nassoro. v. Rajabu Simba C1967J H.c.D. 233 • is quoted . -~ ~ fis mention, but a few)• · · . · · · .. There is also this other matter: The decision in the Primary Court was unanimous, and also given after a visit to a locus in 99;01 These unanimous decisions in Primary Courts, which are arrived at, after visits to locus in quo, should be respectd, unless there is clear evidence th.at the verdict is erve!3e,!.. Let me borrow the words of the ctyprus Court of Appeal, where, in the case of Neophyton v. Edmond! reported in (1963) 9 C.L.B. at page 1224, it is said that: "The findings of a trial Court will not be disturbed unless the appellant oan satisfy

the Court of Appeal that the reasoning behind such findings is unsatisfactory on that they are against the weight of E!Vidence when considered as a whole: When a judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight of balance of their evidence, that judgment is entitled to great respect." Frankly speaking, I do not see the reason why the first appellate eourt overturned the decision of the Primary Court. This appeal is allowed. The judgment of the strict Court is set aside. That of the Primary Court is restored. The appela is allowed with costs. \ At Tabora. 14th Septemerf 1999. Mr. Kayaga.: for the appellant. Mr. Mtaki: for the respondent. MASANCHE, JUDGE.