Urbano Kanondo vs Konradi Maembe (PC HC. Civil Appeal No. 54 of 1998) [1999] TZHC 456 (4 June 1999)

: . ' oQ.JJt'f r IN THE IITGH CO.URI' OF TANZ!OOA :·:Lr.; .. AT MBEYA ; (PC) . KtGH COURr CIVI,J,. JWPEAL NO . 54 OF I998 ·· · (:From .. Deciaioli o~ .. llistH~ Co~. of. SUmbalfariga . . .. . ! ....••... • > • 1 ,.: : ),•: •,/_: • v•·:l, . ;. :. . Civil ·.Appeal No• 35 of 1997 • 0rigincll: Civil case:"N0• 9 · of I997 of Mwazye. Primary; 900 , . . -... BE!roRE: s.s •.. MBEPWA-- .-;.£STRICT· ·Mi'JlISTRATE} URBANO KANONIX>. • •· • • • • • • • • • • APPELLAllll' .VERSUS KONRJiDI MAEMBE. • • • • • • • • • • • • • • HESPO JUDGMENT · ... :· This i.s. a second appeal. The disp,:d;e. between the pa;rti.es C8l!lre.d 9n. six a.orea s.hnlnbn. the. respondent, ~ --the request of' ·the -appellam..., allowed the appeUan:t; to cultivate. The foool point of contention was·'···· ,: ... · · on duration. It w.~ common gI'Qund that it. was in Jaxw.a.ry 1994 t.hat the·· respondent passed the :shamba. on :to the appella.rrt. . .., ". The appellc1nt told the trial prim~ courl; of. Mwazye that tl:ia agreed· duration period wa.s five ye a.rs. He sumnoned Ln.u.rnt i Chapenuko ( SM2) who claiiwd to have been present and. supported him. In Ociober I996, which was about two yea.rs later, the resJ;?Oderrt cha.sed him from the sba.mbae He claimed he had for th~ ye~ 's se¥on .clea.red Md uultivated the sha1J1ba. · and built on it a h'tit-cum-rain shelter at a cost £ shs.20,000/=• · Ha also claimed_ to have planted bec1ns in one part of ·l;he shamba from which he expe.oted to earn shs.40,000/=, and in another part of the shamba from which he expected to earn shs.80,000/e• Hence the suit which was for shsel52,000/ .... compensation arising from the breach of their co11U'act with the respondent • . The respondent, for his pa.rt, told the trial court that the durtion was for one year only. He summoned Mathias Mwn.nisawa. ( SU2) who ·claioed to have also been p-rescnt and supported him. After one year he extended the

• 2 .. period for two more seasons at the request- of the appella.m;. In October 19.96- hG noti:fisd the eq,pe.J.laJtf; ?lair 'to oulivo:to t.he shainba for -tha;I;. GQaSOn ( I996 /97 season). In Decmber I996 he began to cultivate pa.rt of the obamba with one Elnmanuel Ma.ngazini to whom he had let the shamba. after the sop-order on tho appellant •. They Pl~ ma.i!ze,. ~ on I6.L,9'Tthe. appellant folllld them on the shcμnba.. .It. then occurred.. to the appellant. '-. ~ . ilu:d. the ~m.em; had allowed _bar person to cultivate. The appell then went ahead, al'ld oulti vate'd ·another part of the shamba.. despiw -tM.": · responp.ent •s -direotion. not to--01.il'tivat-e., The respo.ndent t-t a. oomplaint at the village office, and tb.e appellant, who .ood:•.<?ti tJ:i.a .sharriha for three years, was ultimately forced out of it. 1rb.e prim ooi::trt decided in favour of -he respondent. The appellaut. felt aggrieved and preferred his first appeal to the district c'lll"t. of : Sumba.wanga which -upheld the pl'ima:cy oou.rtts. is.io11- noa this. .s,acond appeal wlx>se mennro.ndurn of appeal was drawn and filed by Mr. Mate learned a.d'llt>o, who hzld. represented the appellant; in i;be appeal bef'ore. t.b,e. district .court. At the hearing of this appeal both partios entered appearances. in person and told this court that they abideq. by 'the meroorandum of appeal and the written reply to it respectively. Three grounds of .appeal ~ preferred. They wore: I. That the dist riot court ought as the first pe.llate court to haw recorded tho evidence of the appella.nt I s son which the primary court rafused to record. The appella.rri prnys that the evid.e of the witness be recorded by the High Court. 2 •. That both the primary court and the digf;rict court erred in holding that there was no contz,oot en th.a portie.s. f the appellant ta cultivate the shamba for five years.

... ... 3 - 3- ~ the appellant p:t'~ that tho appeal be allowed: ·~ the respondent be condemned to pay the vnJ:ue of the orops-he l damaged in the shamba as prd on oppeal to 0 -tbe district. -court. The respondent should also be oondernnad to· Pa.Y' costs and advocate's fees. Tha ut in his writn rep1.y to th.a rnemorandUlll ot appeal, as i.t appe a;rs ,.cont ends: I. Thctli the appellants son evidence was not racorded in th~ bo'lh pri.ma:t'y and district .oow:'ts. because was not. an ~~ ~ him before the court, also a;t; the High Court. -tha evi.de.noe. of the said witness not to -be taken• 2. That both .prima,ry-··QOu,:-t and diatie't court .evidence .P --·.t .. ,:, .1··. det.ccted tha.t, there was no co.ntrnc.t between appellant. and , . respondent to ·cultivate the shamba for (5) ;yea.rs, but the . -contra.ct was respond.em borIDHod ·the nppellant that sh~ .t.o cultivate for ( I) ye·<J>' ,·ana. af'tcl' a ye.DX" t-o left the ahasnha.1,Q the. respondent. : .,:· . 3. That· the ·rrispohdent._pr~.: that the. decision of' both lower -courts · · · · and High co·u:M;. be extended and a-ppellant to be -condemned. to pay ·all costs from lower court to High Court end .his cos1,,s and advooate's foes be'qo:ashed. · With respect to Mr. Materu, I am satisfied that the f'i:r>st ground. o-J: .. •.?..:: .. appeal is devoid of merit. The primary court ts record speaks for itself •. It does not appear a:ey- where in the proceedings that the appellant •s re.quest for his son to testify was ma.de. and refused. ,At'ter t.b.e appellant's only witness { SM2) had testified the appellant told ·!;he trial cou:Mi: "Sina. shahidi mwingino• wa. lorii;a. na. huo ndio -mw:isho wa.-ushaidi .wa upande wangu."

• 4 - There is a psumption that judioia.1 ts have been reguiarl.y pei'f'ormed, in other words, that they have been done wi:ic;h due regard to forin and pl'O<)edure. A person who seeics to robtit tha:li presumption must do roore than mereiy ma.k:i?l€ a bal.d allegation that the judicial act was irregular. He JIIUSt;. produce proof of the alleged irregularity, which the appellant has failed to do I thus overrule t,ba first ground of appeal. '! The second ground of appeal, likewise 1 :i..s devoid of merit: A contra.ct is an agreement cnf'or_ceable at law. Fbr a conliro.ct to be valid and legally enforceable the() must. be, among other 'thillt,"'81 vaJ:uahl~ oonsideraid.on. and sufficient certainliy of terms. These matters were wanting in what tre.nspired between the parties. The respond.em simply allowed t.be appellant to ~ the land for, as rightly held by the trial cou:r:'1.; mtspecified period. .Jt.,·::: .. The trial court rejected the five and one yea.i's time limits a.rid gave sound

• •.· . . re~ for doing so• Firstly, the pr:irna.ry court said.there could riot have .. -~~.en time lim;i,t. of five yea.rs on ,account of that the appellant indic~ in .. the statement- of olaim that -there ·was no time limit (nilipatana neye kulima. ·hadi nitakapochoka mwenyewe). Secondly, tho trial court· said that the respondent could net haw allowed the appellant to cultivate the shamba for three years without regis1iering a comp.la.int in the event the;t time. limit was one: year only. There was therefore no agreement between the parties whioh could be breached. The aro,ellant was oul.tiv::i.ting the land at the • will of the respondent who was entitled to hc..ve it back at any time'.in t.he manner he did. In consequence the second ground of appeal is also owrrulecl. There was reliable evidence which estanliarod that the activity on the• shamba upon which the claim for compens[:.tion was based was performed a.t'ter the appellDJlt had received the notice ·l;o stop cultivation. I thus agree with both courts below that the appellnrrt was not U!ld.er those circumstances entitled to arry compensation. The third ground of appeal is, likewise t overruled.

• 5 'In tha event, this second appeal fails, and it is hereby dismissed . . . with costs he,re·:ana.'·in bofh -courts below. ,, :,·. -, '"'.•, --. ·/, - <,;:;;:;: :;L_,_., : ., AT SUMBAWANGA, 4 June 1999.

• For Appellant: Presont. For Respondent: Present. \ Be Pe MOSHI JUDGE..