Amon Mwaibila vs Salifu Malamba ((PC) Civil Appeal No. 45 of 1996) [1998] TZHC 2510 (27 November 1998)

AT !iDE°iA (PC) CIVIL Al-·PiG.i:L HO. 45 OF 1996 (From the decision of the District Court of .i<:yela at Kyela in Civil Appeal Noo 109 of 199~- Before: C.B. ivlbezi .. :Senior Distiict Magistrate) AM.OU lYdAIBILA o a o o o a o ., o o ,:, u ·, I) o ., o n o u e a APPi.:LLArl'r Versus SALIFU HA.Li..J::BA ••. • Ooc,.-, l;.l?•.'OlClO!)J',<J(I nJSPOhliEliJ'l' JUDGMENT 'l'he suit centred on a sharnba worth shso50 ,000/==• Each party was claiming that it belonged to him. The appellant successfully claimed the shcrnba from the respo,.1dent before the pri,nary court of Lusungo. '.I'he respondent prefe:rred an appeal to the district court of Kyela and won. 'l'he appelJ.o.nt, in turn, felt ccggrieved, l:encc.? this appec.l in which both parties entered appearance before me and argued thej.1.• r2spective sides of the matter themselves. 'I'he cnse fo:::· the appellant was _that he inherited the shanba. in dispute from hi.s father in 1950. After 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 ;-lwakyusa (F,(:,,), who cultivated it for three yearso In 199L:. the respondent moved into the shas11ba and occupied half of it claiming that it belonged to hin. 'rheir neighbour, Kyalalika '!angomele (PW2), and PV!3 supported the story. '.L'he respondent I s stCJry was this.. ::-le said in examination=i:r1chief that he inherited. the shwnba from his elder brother in 1952. On being cr-ossexaini~ ned by the ap1JelJ.ant, .i:1owcver, he s2,icl he was given the sharnba by village leaderso FJ.oods came and he stopped cultivation. In 1994 he notified thei:· cell leader that he was resuming cultivation and did soo the appel1ant then claimed ownership of the sharnba. He called tln·ee persons who said their sharnbas were adjacent to those of the partieso 'l 1 .~1ey were Anganile Mwand.omele (DW2), Black fv;wakyenda (D\13), and Kalyeml)e Mwarnaja (DVJl1). ':£'hey said the g Q O O 0' 0, 0 0 0 0 g O ,0 /2

2 shamba in dispute belong to the respondent. D.\13 said the rer-,pondent inherited the shamba but m,J2 and. DU4 did not say how tbe respondent acquired ,the shambao Dlr/2 said the respondent started to cultivate the sharnba in 1993 but DW3 said it was in 1994. DW4 said Julius (PW3) cultivated. the shamba in dispute from 1991 to 199Lr but D\13 said. Julius (PW3) d.id not cultivate that shamba. None of the three witnesses supported. the respondent 1 s claim that village leaders gave him the shambao The only reason iven by the district court for reversing the trial court's decision was that the respondent I s wi tnesces v:ere many and more tha.."1 those of tbe appellant .. With respect, that was not the correct approacho 1 rhe numbe::c of witnesses does not necessarily matte::c. In law a fact may be proved by the testimony of a single witness. 1:Jhat matters is the substance and credibility of that witness. Che 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 while the district court had not. The primary court, therefore, had ad.vantage over.the district court witb regard. to deciding 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 the evid.enceo Credibility, hoi,-.,ever, is not assessed entirely on demeanour o Reliability of a witne1:,s can also be establisbed by considering his testimcny in the context of the whole evidence. 'r:beir could, as here, be self,contradictions or conflicts between one witness and another or others. The credibility of the respondent as to ho-.,,, he had acquired. the shamba was questionable. 'rhere was, as explained, tbe self,.•contrad.iction in his evidence which was serious and material regaiding the same. Then there were the conflicts, also serious and material 1 in tbe testimony of bis i-itnesses as to when the respondent resumed. cultivation after the floods and as to the cultivation of. the shamba by Julius (P\v3). 11.11 the foregoing matters /3

were noted and properly considered. and determined by the primary court. For instance, there could not have been a reason for the respondent to re1)ort to cell leader in 1991+ had the shamba truly been his property, and that as it was established that it vias 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. 'l'be self~contrad.iction and conflicts, in my view, rendered the authonticity of the entire case for the respondent questionable. On the evidence c,nd. in the circumstances, I am satisfied that the primary court had arrived at a fair and sound decision and that the decision was improperly impeached. by the district court. The preponderance of probability wa.s clearly in favour of tl1e appellant .. In conseq_uence, I allow the ap;9eal, quash tho district court• s judgment, and hereby r2store the decision of tbe primary court 1;1bich declared. the respondent the lawful m,mer of the land in dispute., The respondent to have his co:sts here and. in both courts below. ii.11 1 MBEYA. 27 November For Appellant: Absent .. For Respondent: Absent. -· B.i. ·MOSHI JUD3Ec I CER'I'IFY 'ff(A'l' THIS IS A TRUE COPY OF 'rHE UJ.i'IGINA.Lc \ / !. / . rt--··· .-+-'-- DISTRICT \ ISTRAR C