Hamis Mwakyoma vs Nyerere Mwangosi (PC Civil Appeal No. 59 of 1998) [1999] TZHC 229 (6 August 1999)

f IN THE 111GW COJJRTrOF TANZANIA AMEYA .. . - (PC) CIVIL APPEAL NO. 59 OF .1998 (From --Original Civil Appeal No. 22 of .1998. of the District Court of Kyela at Kyela Before: C.B. Mbezi - Senior District Magistrate) -. HPJ4LS NWAKYOMA , . .. .. ,. .. APPELLANT Versus NYREMWANcXSI ........ PSPONDENT JUDGMENT M0SHI J. ... . The dispute between the parties centred on a part of the homestead of the appellant, Hamisi Mwkyoma, -which the respondent claimed to havebought from the appellant, whilst the appellant claimed to have given it to the respondent for temporary use.. The background to .thematter was as follows It was cornmonond that the appelláñt had a big or laromestead at Ipinda village. In 1996 the respondent caine to Ipinda village from Kisale villageintending to settle there. He was after a place to build a house and to develop. He approached the appellant who sold part of his large homestead to him for 6h.s.50,000/=. The sale was in writing (Ext. A) and it was witnessed by Aiphonce Mwasabaje (PW2). They measured the sold part which came to .100 x 50 feet. These measurements were recorded on Ext. A. The ease for the appellant, which was supported by PW2, was that after the sale one John Mwakapala came along and claimed that the part the appellant sold to the respondent was his property. The matter went to court. On account of the e'ispute between the appellant and John Nwakapala over the ownership of the part sold the respondent sent PW2 to the appellant for the purchase money- A consensus: was, however, reached between the appellant and the respondent. The appellant gave the respondent another part of his large homestead for temporry use (three months) pending the outcome of the dispute in court. ........ 12

-2- It was agreed verbally between the parties and PW2 that the respondent would vacate the latter ; part, which was the part in dispute, and move to the former part, which was thesubject matter of the sale, as soon as, and if, the court ruled in favour of the appellant in the dispute over the ownership of the former part. The dispute in court terminated in favour of the appellant, and when he asked the respondit to leave the latter part and move to the part he had purchased he refused claiming that it was the part in dispute he had purchased and began to builda house (hut) and to plant permanent crops (bananas and cassava) on it. The appellant registered his prot'tations with their cell leader and then filed the suit against the respondent before the primary court of Lusungo. The case for the respondent, on the other hand, was that it was the part in dispute which he bought from the appellant as per the, agreement of sale (Ext. A). He denied that the appellant gavehirn any part of his homestead for temporary uSes He claimed the appellant found him taking measurements of the part in dispute and then claimed it from him. The primary court unanimously decided in favour of the appellants The court was satiified that the land in dispute was not the one the respondent purchased from the appellant through Ext. A and that the land in dispute was for temporary use of the respondent. Among the reasons given by the primary court was that had the land in dispute been the lad purchased by. the responden there would not have been the necessity for the respondent to take its measure- ments in the absence of the appellant since it was undisputed that measurements for the part sold to the respondent were taken by the parties at the time of the sale in the presence of their witness to the sale (PW2) and re.corded in the sale agreement (Ext. A). The decision of the primary court aggrieved the respondent who, in consequence, preferred an appeal to the district court of Kyela. The district court allowed the appeal and the only reason it gave for its decision was that the appellant would not have allowed the respondent to effect improvements of .oOa.. 9 /3

-3 rn. perniarent nature on theland in dispute had that land been given for temporary use. The appellant, in turn, feld aggrieved, hence this appeal in which both parties entered appearances in 'court at its hearing and abided by the contents of the memorandum of appeal and the written reply to it respectiyely. With respect, I am satisfie.. that this appeal is abundant in merit The primary court had arrived at the right decision. The case for the appellant as supported by PW2 who was of a central role in the matter was clearly establishes on the balance of probabilities.. The.authenticity of the sale agreement (Ext. A) was not in dispute. Quite obviously, therefore, the land in dispute was not, and it could not have been, the one sold to the respondent by the appellant through Ext. A. The reasoning of the primary court was sound. The district court clearly went astray. The appellant did not allow the respondent improvements to effect permanent on the land in dispute. Evidence established that the respondent effected, them amidst protestations by the appellant and contrary to the verbal agreement of the parties witnessed by PW2O On the evidence and in the circumstances the respondent was a spdler. As rightly remarked by the primary court, the respondent found th land in dispute preferable to the land he had bought and sought to swindle the appellant out of it. But the manner in which he went about the matter was deplorably awkward. His case was not only unsubstantiated but it was extremely lame. I am satisfied that the purported interference by the district court in the sound decision of the primary court was unjustified and unfortunate. The land in dispute was, and still is, the property of the appellant who is entitled to its immediate possession. Questions are bourad to arise touching on compensation for improvements and on the land the respondent purchased from the appellant. In the circumstances of this case, the respondent would not be entitled to any compensation as the improvements were effected amidst, and despite, protestations by the appellant. As for the land purchased by the respondent, ,.....,....e /1+

it would still be there for him to take, and in the event he declines to do so, he will not be entitled to the return of the purchase price es he would be in breach of the agreement of sale(Ext. A).. I accordingly allow the appeal, quash and set aside the district court's judgment, and hereby restore the judgment .of the primary court. The appellant is declared to be the lawful owner of the land in dispute, and he is entitled to its immediate and unconditional possess ion. The appellant is to haVve his costs here and in both courts belOw.

B.?. MOSH1 7 JUDGE. • 6 August 199

• For Appéliaiit: Present. •
• 'or Respondent: Present.