Amon Mwaibila vs Salifu Malamba ((PC) Civil Appeal No. 45 of 1996) [1998] TZHC 2487 (27 November 1998)

AT hl3EYA (PC) CIVIL i-i.l-P;~;;L HO. 45 OF 1996 (From the decision.of the District Court of Kyela at Kyela · in •civil Appeal Noo _ 109 of 1994 Before: CoBo l 0 'ibezi .. 6enior District Magistrate) AMOI-1 r 1 !','!AIBILA 0 ,:;. ,.J O 'l ;) 0 •• 0 0 :,. Q '; t') Q i) 0 ,i O U O 0 . APP.GLLAN'r Versus SALIFU l'1ALAEBA • " . JUDGMENT 1 1'he suit centred on a shnmba 1mrth shso50,000/::::. Each party was cla:i;r\1ing that it belonged to him. 'I'he 2.p:pellant successfully claimed tb.8 sharnba from the responcl.ent before the pri,nary court of Lusungo. ·'I'he respondent prefe:c-red an appeal to the distrid court of Kyela and won. 1 1 1:.w appellant, in turn, felt aggrieved, l-;.encc t11is a.ppecJ. in which both :pwnties entered appearance before me and argued thei::.~ respective s·ides of the matter themselves. The case fo:- the appellant was that he inherited the shanba ill dispute from his father in 1950. Mter he cultivated it for a year or two floods came and. he stopped cultivation. In 1991, after the floods, he passed it ' on to his son, J·ulius Uwakyusa (PW3), who cultivated it for th.rec years. In 199Lr the respondent moved into the sha.rnba c:•.nd occupied hal:f of it clai..-.ning that it belonged to hir1. 'l'heir neighbour, Xya.lalika \fangomele (PW2) 1 and P'1'13 supported the story. '1.'he respondent I s st::>ry was this.. ::-Ic said in examination-i~1=chief that he inherited the shwnba from his Gld.er brother in 1952. On being c:coss-~exar,1i., ned by the appellant, however, he said he was given the sharnba by village - . leaderso fJ.oodB came and he stopped cult:ivation.. In 1994 .l1e notified t.hei;.• cell leader that he was resuming cultivation and did soo 'i'he appellant then claimed ownership of the sharnba. r.fo called three persons who se.id. their sharnbas w0re adjacent to those of the parties. 'l'.'Jey wer,2 Anganile Mwanrl.omele (DW2), Black fviwakyenda (D/3), and Kalyembe hwamaja (rnJi.J-). l'hey said the OOOOOQOOOOOOO /2

2 shamba in dispub=: beloi1(; to the respondent.. DW3 said the respondent inherited the shamba htit D'd2 and DH4 did not say how tbe respondent acquired. the shamba., DW2 said the respondent started to cultivate the shambain 1993 but DW3 said it was in 1994. DW4 said Julius (PW3) cultivated. the shamba in dispute from 1991 to 199L~ but DW3 said Julius (PW3) did not cultivate that shambao Non~ of the tbree v.,itnesses supported the respondent is claim that villa.ge leaders gave him the sbamba. 'l1he only reD.son given by the district court for reversing the trial court 1 s decision was that the respondent's witnesGes v,;ere many an.d more than those of tbe appellant. With respect, that was not the cor1ect. approach. 'l'he number of witnesses does not necessarily matte1·. In law a fact may be proved by the testiri1ony of a single witness. What matters is the substance and credibility of that witness. The question of credibility of a witness on the basis of demeanour is the monopoly of the trial court .. Here :the primary court had seen and observed the parties and their witnesses testify wb±le the district court had not. The primary court, therefore, had advantage over the district court with regard to deiding wbich evidence to accept as true, and its decision could only have been impeached on sufficient ground, such as, if the decision could not rationally be supported, or if the court had erred in its approach in the evaluation of tbe evidence. Credibility, however, is not asses.sect entirely on demeanour. Reliability of a witness can also be established by considering his testimcny in the context of the whole evidence. Their could, as here, be self~contrad.ictions or conflicts between one witness and another or others. 'I'he credibility of the respondent as to bow he had acquired the shamba was questionableo 'rbere was, as ex-plained, tbe self,.,coritradiction in his evidence vhicb was serious o.nd material regarding the same. Tben there were the conflicts, also serious and material, in the testimony of bis v-,i tnesses as to "';hen the :respondent resumed cultivation after the floods anci as to the cultivation of the shamba by J1.1lius (Piv3). All the foregoing matters /3 ..

3 were noted and properly.considered and determined by the primary court. For instance, there could not have been a reason for the respo11dent to report to cell leader in 1994 had the shamba truly been his property, and that as it was established that it 1;Jas Julius (PW3) who was cultivating the shamba at the time of conflict, it must have been the respondent who had imposed himself on the shamba. Tbe self-:-contradiction and conflicts, in my view, rendered the autbonticity of the entire case for the respondent questionable. On the evidence cmd in the circumstances, I run satisfied that the primary court had arrived at a fair ru'1d sound decision and that the decision was improperly impeached by the district courto The preponderance of probability was clearly in favour of the appellant .. In consequence, I allow the appea.l, quash the district court I s .judgment, and hereby restore the decision of the primary court whicb declared the respondent the lawful owner of the land in dispute., The respondent to have his costs here and in both courts below. I ; ,I i AT MBEYA. 27 November 19]8. For Appellant: A;Jsent6 For Respondent: Absent. (_ B .1=-: ·t10SEI JUDGE:. I CfiliTIFY 'rFA1 1 '.['HIS IS A 'rRUE COPY OF TBE OJ.HGINAL. \ ,, )\ l L--· ,-----r DISTRICT REGISTRAR.