Omary Kwabulili vs John Mwakasako (PC Civil Appeal No. 99 of 1997) [1999] TZHC 406 (9 July 1999)

' , IN THE HIGH COURr O? XAN.Z.ANIA AT MBEYA (PC) CIVIL APPEAL NO. 99 OF 199? (l1'rom- the decision of the District Court of Kyela. t Ky-sla iri. Civil Appeal No.9 of 1997 Before: C.B. Mbezi - Senior Distriot Magistre.te OMARY KWABULILI •••••••••••o••• APPELLANT VERSUS JOHN MWAKASAKO ••••••• 0 •••••••• R!SPONDENT JUDGMENT Thia- .i&- . .a~ .appeaJ.., The d.ispu.t.~ betlf&elt tho -t:t.oc.. ~~:>r ownership ,of .a .s.hamba worth sb.s-.40.,000/=. Each :party claimed rship. ~ it,. The primacy court of Lusungo found in favour of the respondent, and the appellant's first appeal to the d:i.striet court of.Kyela against that e,.ect,s.:Lon was dismissed. Renee this second appeal• in \lhich both -parties entered appearances befon me and said they abided by the contents of the Memorandum of Appeal and the written Reply to it respectively. The case for the appellant was that he inherited the in. from his fathr in 1983 which was the year his father died. He put the shamba to use for ten years i:Uld then left for Morogoro in 1993. He returned in 1996 and found the respondent cultivating the shamba. He registered a complaint with treir cell leader, Peter Mwaipaje (PW.6), before whom the respondent admitted to have encroached onto the appellant's shamba. PW6 thus found the shamba to belong to the appellant. Four witnesses spok in support of the appellant's claim that he inherit~ the shamba in dispute from his father. They were Patson Mwangungulu (PW2), Addingston~ Mwabulili (Pv/3), Angetile Mwasimali (PW4), and Wilson Mwabulili (PW5)o These witnesses .added that the respondent had a shamba given to him by his in-laws which was adjacent to. too shamba in dispute and that when the appellant was awey in'Morogoro the respondent moved into the shamba in dispute which belonged to the appellant and cultivated it. ••••••o•o• /2

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2 - The · case for the respondent, on the other hand, was that the land in dispute was given to him some 35 Years bak by Chief Mwasongwe Mwakalebele who was the brother of his mother-in-law, Ligwile d/o Mwakalebela (DW2). He summoned DW2 to support him, but she gave two conflicting stories. At first she eaid she inherited the land from her brother the Chief, failed to tend it, and she gave it to the respondent. Then she said it was her brother the Chief who gave the land to the respondent. With respect, I find this second appeal abundant in merit. Both courts below, quite obviously, had erred in their evaluation of the evidence on record. The evidence of the appellant as supported by that of his five witnesses, as indicated, had amply established his ownership over the land in dispute. The indicated self-contradiction or conflict in the evidence of DW2, which was relevant and material, put to question the respondent's claim that th& land in dispute belonged to him. What was established in the totality of evidence on record was that the land given to the respondent by his in-laws was different from, and adjacent to, the land in dispute which the a.pl.lant had inhe.rit&d from his father. I am satisfied that the preponderance of probability was in favour of the appellant who was, in consequence, entitled to succe€d in his claim. I accordingly allow the appeal, quash the decisions of both courts below, set aside the order dismissing the suit, and hereby enter judgment for the appellant and declare him to be the lawful owner of the relevant shambao The costs here and in both courts below. B.P. MOSHI AT NBEYA. JUDGE. 9 July 1999. For Appellant: Present in persono

• For Respondent: Present in person.

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