Yuda Mboya vs Africanus Samki and Another (PC Civil Appeal No. 31 of 1994) [1998] TZHC 2526 (9 October 1998)

tl/'v .-- ,R- EJ-c:f;,;-,?'1,;9,,A1,,. IN THE HIGH COURT OF TANZANIA AT rm.EYA (PC) CIVIL APPEAL N031 OF 1994 (From the decision of the District Court of ·Mbeya District at L/fbeya in Civil Appeal Ifo~ 91/93 ~nd Iawanje:::..wa Primary Court Civil Case No.43 of 1993) YUDA MBOYA •••••• & •••••••• • ••••• o ........ • APPELLANT VERSUS

1. AFRI CANUS SA}illI l .
2. SHALLY LANGI • • • • • • • • • • • • • •.• • • RESPO.NDDNTS . JUJGEME·NT ,., i I This is a useless appeal. for the appellant Yuda lViboya is· the owner of the land n dispute who testified to be the one · who allowed his son Africanus Samki to sell the Plot with trees for shs.30,000/= to the 2nd respondent Shally s/o Langi He received the p_roceeds of the sale of shs.35,000/:: i .• e • the original sale price of shs.30,000/= and an additional sum of be shs;s,ooo/= which he demanded toL~opped up. The appellant ~s brought_ up· an argument that since he was not sued he was·not & party to,the case who should be made a· judgement debtor. This·point has no marit for he vrc;s a witness to the case :iS for the defendant and he ~ea to _rove received the entire sale· pri_ce money of shs;3otOOO/=• His ovm son the 1st · respondent and the 2nd· Respondent Shelly Langi also testified that he received an add.i tional sale price of shs. 5.,oot/== deman-det by him • "./2

2 All the primary court could have done was to have amended the parties so that the defendants were the two father and son. i.e. Africanus Samki as first defenda.."1t and Yuda s/o Hboya as a 2nd defendant ... , . . omission Failure to do so 1s a nun.or . which can be remedied even at this stage. For all purposes of thls case the ·appellant was. a 2nd defendant in this case and he got a chance to defend himself by his ·-;;e_stimony. Actually, if he would have been sued as defendant the Judgement would have been passed by . :. adri1ission at least to the shsJO ,OOO/:=: •. •. The P.rimai"Y Court .. ~ - .. I judgement was correct in ·pa•sing judg,3m.ent against the appellant as DW2 as the person to refund the sale price· of° tlw plot. So, the• appellant's liability is for a t◊t2.i of shs.35,100/=, I hereby hold, as testifi.)d by both Respondents. The other grou.i.d of appeal argued is that the sale was fort trees· only, not the land. · Thi's is- a flimsy groW1d:· If so, why did. the app_ellnt object when the 2nd respondent - made bricks from th.at soil for the 2.and which was done. tnd demanded to be paid money L. The appellant sold the plot which go0s with t~ land and trees or ·crops on it~ The 2nd :.-espondent wanted to buy a plot (kiwanJ·a) not . , tree s ;for building a builting stn~te<l- a house on it. L .· on it housel and that is wha·t he · bought .nd indeed The· plot was public' land already surveyed and earmarked in the tom plan as a rond. _· If the appellant bought it from someone else,well 3nd ground, he has ·a good case- against his <,ri)Ginal seller of the land to himo· He shoul, go and sue him to ref\md his purchase p.ci.ce with interest and costs. ·.- .... ,./3 .

3 This appeal lcks merit it is disnri.ssed with costs to the 2nd respondent Sha ll;y Langi only. _w.o/98 HonMwipopo, J. I \ ' E . ., L.I{L lYIWIPOPO JUDGE 9/10/98 Appellant Yuda Mboya - present in- person 1st Respondent ..:. Africanus Samki - Absent (with notiee) r 2nd Respondent Shally Langi ..,.pre.sent.: bl Re pre sentffGi ve Samston I Langi - as administrator of Estate o·f Shally Langi who has died. c/c: Mrs. Kasubiri Q...92:!!:i: JJ.1,dgernent delivered in the presence of both parties. ,· ---- ' . J",.j... ~ .,·' E tiG.111/ATr~! .11rria .. E. 1.K. MWIP0P0 JUDGE 09/10/9~ \ f