Fidelis Mkoba vs Abdallah Saidi ((PC) Civil Appeal No. 114 of 1997) [1998] TZHC 2136 (7 August 1998)

IN THE HIGH CC-;_JRT OF TANZ.I-.NIA (DAR BS SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM (PC) CIVIL APPOo 114 OF 1997 (Orinijjinating from Kinondoni District Court Noo69.of 1995 Original Kawe Primary Court Civil Case Noo20.of 1990) FID8LIS MKOBA oGoooooooooooooeoooooooooooooooc,oooooooooonoo Versus ABDALLAH Si.IDI 0 0 0 0 0 0 0 0 o, 0 0 0 0 0 O O O O O O O O O O O O O O O O O O O O O O O 0 0 0 O O O 0 JUDGM8NT CHIP:STA 2 J. : In K'J.W'f Primary Court, Kinondoni District, the appellant. Fidelis Mkoba 1 unsuccessfully £med the respondent., Abdalla Saidi? for recovery of a piece of land. The appellant equally unsuccess- fully appealed to Kinondoni District Courto This, tqen, is th.e appellant 1 s second appealo APPELLANT RESPOND.r'.tl'L The appellant's evidence was that originally the piece of land in dispute belonged to the respondent's father who then sold it to one Rashid fvipei. Rashid Mpei later sold it to the appellant. The appella11t produced no documentary evidence. The respondent's evidence was that his late father acquired the piece of land in dispute in 1962 and later built a small hous on the piece of lando il.t one time, the appellant was a tenant of the respondent's father. ) Subsequently I the respondents father moved to Kibaha anrl left the piece of land under the authority of the respondento Sometime in 1966, the house c~ the piece of land was destroyed by fire. 'I'he

2 respondent did not have the means to build another house on the piece of land, and so he decided to sell it. He then asked one Sultani Mohamed Jela -t:) find a buyer. \rJhen they went to see the piece of land, the appellant started claiming that the piece· of land belonged to him. Both courts below believed the respondentvs evidence and rejected that of the appellant, which they found to have fallen far short of proving the appellant 9 s case on a balance of probabilities. This being a second appeal, this Court is only concerned with questions of law and not of facts. It has not been suggest0d by the appellant that the courts below misdirected themselves on any question of law. On my own view of the evidence, I am unable to fault the findings of fact of the courts below. The appellant had the burden of proving his .case on a bala'1ce of probability, but his evidence fell far short of discharging that burden. It appears to me that the appellant tr~ed to take :1.dvantage of the fact that the piece of land in dispute had been lying idle for many years. For these reasons, this appeal fails and so is hereby dismissed with costs. B. b. CHIP.STA JUDGi: ORD.8R

/ ;: ' .· I This judgment shall be certified ;-i•· Kinondoni deli very to the parties. ,/. .·· for AT DAR ES SALAAM. 7TH AUGUST, .• 1998 I ,1, / //, / ///. 11 I ' .-.,;· ;·' . I_ • ~ .' ., ~ ' : . B • D. C HIPE'rA JUDGE District Court