Jeremia Kalumyana vs Mwisho Yaseli (DC Civil Appeal No. 10 of 1998) [1999] TZHC 335 (29 June 1999)

. . ~ .. ,.... . . - .. ·:rN HB !irtzH COUR'f OF AN2.Al'JIA • · (DC) CIVIL APPEAL NO. 10 OF 199 · ·{DM CIV1L CASE· NO~ 18. OF 199~· OF THE. DISTRICT CQURT- OF l\iBEYA DIS-rRICT AT MBEYA) JEREMIA KALUMYANA •••••••••••••••• APPELLAN~ VERSUS MWISHO YASEI,I ••••••• • ........... RESPONDENT· ., JUDGEME~ • , .... , ' , . This is a useless appeal by Jeremia Kalumyana the apeln~ ,:._ . ' '· . . who wants the respondent Mwisho Yaseli t9 pay him damges nd · . . " ' . . . . \ ' . ' . compensatJ.on for malicious proseution in Ilembo Primary p9urt '. . ,, . NQ:35/89 ad Mbeya Criminal Appeal No. 5/90 in which he ,was .ehargd I . , . ,., and convicted with criminal trespass in the Primary Court. but· • - ' ;, ' ··was later on acquitted in the District Court Evidence wise the respondent gave . vory ongent arid e;,c:tensive- .. ' evidenee by two defence witnesses namely DWl Mwi sho s/o Y'eseli ad- . . . ~ DW2 Mwile s/o Ndeshamai whereas the appellant testifie alone , .· ·:-" • t · , .. · . , . ., ' ; . , , "' ' . . ' ~ ' ' .. ..,, . ·-·· a : . .ii t incredi bl as PWl Gorimani s/ o Kalumyana. Even the judgement of the ~strict Court as 1st appe_~late court in the.

• i . criminal oaee which acqu.i tted him the late. learned Mr. Kasika3i .. , (SDM):_·while acqu:i. tting him' from th.e Criminal tre~spass .conviction'

2 . • suit; The appellant was acquitted on the basis -that he forcibly '~ , ' . ' . persnective . entered the farm in dispute on a claim of right -,-:.j,, .. ; .. whi oh . ' . ~ ex.one.rated him from any mala fide mens rea necessarily required to be present in his mind at the time of committing.the forcible entry upon the farm at hand. The appellant. has f~+len into.the same folly pit of alleging 0-it- the respondent by suing him criminally he had malice to prosecute~ Malice can't have ,existed -in the mind of the • respondent for he was also complaining with a bone fide cl,im of :tr.llie'ri tance of the farm from his father Yaseli nd after a long use of it· without interuptio from the appellant This is a useless appeal. The fact that the appellant has forcibly retained ·use ·of the farm in dispute without a retaliat:.ry ~ I., • • ' forcible exertion of the respondent by way of .physical co1n-frentation ' and eviction doesn't mean that the respondent has acquiced to ·ms use and posse·sion of the farm. The question of ownership of;'the I farm as to whethr it belongs to the appellant or respondent is still unanswered and can only be determied in a · '.·; ' .'. ! ! . -·· civil suit betwe·en the two part1e s. The same shall be instrt11te.d · by any cine of them in the relevant Primary Court if unrep~sented or in the· District Court with leave of this court_ if as -.- repre·sente·d. by advocates within 12 years. from 16/3/90 when the I . : , . . .. ' ~ . ... appellant was acquitted by the late learned Mr. Kasikazi (SDM) •••• /3

• Cl J - that :from --er:t.~~ ~~ -0011:viction. ·T't means/ the respondent and the appellant have only 2i- years to go to sue eaGh other in respect of who is the rightful owner of the l½ aore in dispute after which they shal.l_ be time barred and doctrines of adverse possessions may start to be evoked in favour and against each other. This appeal is unmari to.us and. frit;olous. It is dismissed with costs. • Coram: Hon. Mwipopa, J. Appellant: Absent E.L.K. MWIPOPO JUDGE 116.99 For Appellant Mr. Mbise, Advocate - Absent on sessiona in Njombe. Respondent: Absent. For Respondent Mr. Naali (Adv;) - present c/Ci Mr. Xiosam. Court: Judgement delivered in the absence of the appellant and

his advocate and in the presence of the Respondent's advocate. District Registrar to inform the appellant accordingly and his Right of appeal; ' E • L. K. IVIWIPOPO JUDGE •