Anyitike Mwabulesi vs Yesaya Mwakatobe ((PC) Civil Appeal No. 21 OF 1993) [1999] TZHC 492 (12 February 1999)

• ,,. IN THE lilGH COURr OF TANZANIA AT MBEYA (pc) CIVIL APPEAL NO. 21 OF 199.'5 ·---- ........ __ ~ .... __ ... __

• ···-- (From th; de.cision of ·the ·D~trict Court of . Mbeya at Mbeya in Civil Appeal No.128 of 1992 • ..... ,...,.. ... ......__ Before: _H.J. Mwankenja - District Magistrate)
• .. ---- ... - ... ·----- -. . •. ANYITIKE MWABULES·I·- O •• 0 O O O O O O O O O O APPELLANT VERSUS YES.A.YA. Ml/JAKATOBE RF.SrumEN'l' JUDGMENT. MOSHI 1 ' J. The -appella.n-t f'ull:y ol.a.lmed from- tb.G re;,a·potl:d-(a.xtt a. t'd'O- a-cTe& shamba before the primary ·court of Ruiwa. The respondent, feeling,aggr successfully appealed. to: the district court -of Mbeya against tl'la.t daoi.sj..on. The appellant, in turn; feJ.t··aggrieved, hence this appeal in which both parties entered appearan.c:es ·and argued it out themselves •. The case for the appellant ··was that one·Mgonelasi., a chief,. -allocated . to him 8 acres of bare and undeveloped land (pori) in 1968. He cleared the land, cultivated it, and built houses on it;, He-buried his three .children on it. In 1990 the respondent requested' land from him and he lent·. him two acr~ which the ~pondent uba.equentl:;: ref'used-;to hand back to- him -despite. several demands. Hence the suit. His tw6- witnesses, gelile -Lu.pa {Ptlt). · and Tumbombelege ( PW2 } , supported his case·. · The case for the respondent was that he got the land in dispute from the chief, Mgonelasi, in a year he could not recall. It was a pori and he cleared and cultivated it. His first witness, Pelanje Mwamali (DW1), claimed h was -with Mgonlasi 'When the respondent was gii.ien the pori 1 but on a visit to the land by the primary court DW1 said the land in dispute was·not the one. given to the respondent and pointed at another land which was far from ito His second witness, Amwanya Mwansule (DW2), said he went to Mgonelasi with ..... the respondent for land and that they were given a piece of land which they •••••••oe/ 2 . .

;.;. 2 -- devid.ad. between tv-es. But DlA!Z d not i.deritiiy the .portion the, . ' ' ·-. -- respondent got with .the _land in dispute. Likwise, his third: and fourtli... wit.neases .Junasi ~~ {.Dllk ,llI) and M,.rasyand.i).a Mwatne.sa.b-U:l (:OW IV) did not identify the,land in· dispute with the respondent. Th~ primacy court unanimously found in :favour of the appeJ.Jant af~ I h.a:M.ng_ the. parties .and their witness€6 and after a visit to the land in -IUJil-pute. On the evidence. and in the c..i.iev.matan.ces that finding was e... Th& district court gave three reasons for its inurfrencs; that the,. allegation o£ -gnon,a¢hment. -ra.:is-ed by the appel.l.ant in nj.i&. ~ .: - ,.... . -~ of claim was inconsistent, with ,his claim ·in court that he let the ld to, the riespand.&nt; ~ t,he: "d\u'e.tio of tb,.,;, letting -was not s-:pec1.fi.e<ii -and~_ the boundaries of. the land in, di,spute were- not .clearly' establishe~ •. These_ ., ~ -were- ,cl.ear~ insufficient. The claim that the appellant had let ,the land to the respondnt .was· supported b;)r mate:t"ial and l"el:ia.bl.l -evi<ienc The respondent had become a trespasser on the land the moment he refused to ha.nd. -· ' . . . ,_ . it back to the appellant.. The primary court vited the land _and saw ita bundaries while the district court had not. And th~ case for the respondent, as demonstrat-ed, was tainted with material contradictions an<i incansistenci-es which were duly considered and adjudicated upon by the primary court, but lft unconsidered by the district court. I am satisfied, in consequence, that the. decision of the primary court was justified on the evidence and sound in law and that it "'1aS unjustifiably impeaehed by the district court. I accordingly allow the appeal, quash the judgment of -the district court, and hereby restore the decision of the primary court. The appellant .,., .. ,.:, I , i.E> ta. ha.v-e his .cos ts/,her& and in 'both courts below. / ~ . ' AT MBEYA. ,. :,,;•', /~ .-·. ';, I ... . r ,.- -,. 12 February 1999. ····•· : ' l . \ ' For Appellant: Absent. For Respondent: Absent. B.P. MOSHI JUDGE. 'I,~ • "•1· ,.