Hamis Mwakyoma vs Nyerere Mwangosi (PC Civil Appeal No. 59 of 1998) [1999] TZHC 309 (6 August 1999)

MOSHI, .J.

IN THE HIGH -COURl' C'JF TANZANIA AT MBEYA (PC) CIVIL.APPEAL NO. 59 OF 1998 · (From Original Civil Appeal No~ 22 of 1998 '· of the District Court of Kyela· at Kyela Before: CoB. Mbezi-- Senior District Magistrat~) RAMIS MWAKYOMA ooc»•ooeoeoo•e•• APPELLANT · Versus NYERERE MWANGOSI RESPONDENT The dispute between the parties centred on a part of·the homestEiad·of the appellant, Hamisi Mwakyoma, which th_~ respondent claimed to have bought from the appellant, whilst .the appellant claimed to have given it .to the respondent for temporary use. The background to the matter was as follows. It was common ground that the appellant" had a big·or large homestead at Ipinda village. In 1996 the respondent came to Ipinda viliage from Kisale village intending to setle 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 shso50,000/=. The sale was ;i.n writing· (Ext. A) and 'it w wit~essed by Alphonce Mwasabaje (PW2). They measur'e'd the sold part· vihich,came to . . . ,, . ~ r. . . . '. ·100 ·x · 50 feet. These measurements were re·c:o!'ded' on ~xt ~ Ao ,• I•• The case 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 propertyo The matter went to court. On account of the eispute between the appellant and John Mwakapala 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 temporary us,e ( thre·e months) pending the outcome of the dispute in court • • • • • • 0 0. /2

2 It was- agreed verbally between the pl'irties d PW2 that the respondent would vacate the latter part, which was the part in dispte, and move to the former ''.." • ·."! ·. . part, which was the subjct matter of the sale, as soon as, and if, the court ruleq in :favour of the appellant .. .i~ the dispute. over the ownership of the former part.- The disput~ .n qour .terminated in favour of the appellant, and when he asked the respondent to·leave the latter part and move to the part he had purchased-·he ref:μsed ·claiming. that it was the part in dispute he had purchased and began to build a house (hut) and to plant permanent crops (bananas and cassava) on it. The _a_ppellant registered his protestations with their cell leader and then filed the suit against the respondent.before-the pr~~ary court of Lusungo • .The case for the·respondent, on the other'haiid, was that· it was the part ,in dispute which·he bought from the appellcii.t as per the agreement of sale (Ext. A). He denied that the appellant gave.him any part·of his homestead for emporary useo He claimed the appellant found him t•aking· •measurements of the part iil dispute and then claimed· it. from. him •. The ·primary court unanimously decided: ·iri favour of the appellant. The court was satisfied that the land in dispute was 'not 'the. on<! 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 ben the land purchased by the respondent ther~ 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 responden~ were taken by the parties at the time of the sale in the presence of their witness to the sale (PW2) andi recorded 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 K'yela. 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 ••• 0 ••• /3

• 3 - permanent.nature on the land in· dispute had that land been given for temporary e. 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 respectively. With respect, I am satisfied that this appeal is abundant in merito The primary court had arrived at the right decision. The case for the appellant 11111111111111 as supported by PW2 who was of a central role in the matter was clearly established on the balance of p~~babilities. The authenticity of the sale agreement (Ext. A) was not in dispute. Quite obviously, therefore, the land in d.is·pute was not, and it could not have been, the one sold to the respondent by the appellant through Ext. Ao The reasoning of the primary court was sound. The district court clearly went astrayo 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 PW2. . .. ... ·, On the evidence and in the circumstances the respondent was a swindler. 1:: :: As rightly remarked by the primary court, the respondent found the:1·ana. ... 1.n· 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 unsb9 .t-t;i~ted 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 boUJJJid 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 appellante As for the land purchased by the respondent, 0 0 ••• 0 •••• 0 /4

4 it would still be there for him to talce, · d in the event he d'clines. to do sa, he will not be entitled to the return of the purchase price as he would be in breach of the agr-eemmt .of sale (Ext. A). I accordingly allow the appeal, quash and set aside the district court I s judgment,·· arid hereby restore the judgment ;of the primary court. The appellant is declared to be the lawful owner of th land in dispute, and he is entitled to its immediate and unconditional possess·ion. The appellant is to have his costs here and in both courts below. Jt:r MBEYA. 6 August 1999, For Appellent: Present. For Respondent i Present. JUDGE. \