Hamis Hetaki vs Zeti Mohamed (PC Civil Appeal No. 128 of 1997) [1998] TZHC 2137 (7 August 1998)

. .., __ lit," IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT·REGISTRY AT DAR ES.SALAAM f'Co CIVIL. APPEAL NOo ,,128/97.. HAMIS HE TAKI ••••••••• o ••••••••••••• • •·•• •.• APPELL.AN'!' VERSUS ZETI MOHAMED •••• o ................ • • ..... •·•. RESPONDENT . . JUDGMENT

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CLAIM:- Four Acres of Land -- -== BEFORE: ·· KATITI,_JUDGE: Before·Ifa.kara Primary Court, Kilombera District, ZETI d/r,, MOHAMEDt the respondent stood suing::. HA.MISI s/o :EmrEKI, the appellant, seeg from him, .. the latter party, four acres of Land allegedly wrongfully encroaoted upon, and taken by the appellant. The resondent having therelost, he suooessfuJ.l api,aled to the District Court, and hence this appeal by the appellant. In prosecuting.this appeal, the appellant was repre.ented by the learned advocate Mr Galikano, as the respondent represented tj:Jr.cflf • Mr &·alikano eubmitted 1 that the first appellate court, .Orred in not believing the wife -d children of late HETAKI,. - the ones that 'had been cultivating the ehamba ~ question, but just leaned on the evidence of the IDl;ljority of witnesses,' regardless oj the quality there of. He further contended, that, the respondent · by 1960, being not yet of productive age, C<?mpared to· the age of the appellant, e .·. should not hav·e been believed, and that. in any cruse, there was a misconstruction . . . ·of the sketch plan, as the appellant shamba, could not be near the one in dispute. And reacting to the above submissions, the respondent maintained that 1 when clearing the matrial. land, the appellant.was the one too young, to appreciate anything, while she already had a child. She added, that the Land was allocated to her and her mother, by.Mzee Mboinbe and his wife, after the appellant's fath~, had been contacted, and she has been all along using the same till 1990, when the appellant invaded the four acreso The summary -of evidence, is that the Respondent and her mother, in need of a:gric_ultural productive work, sought- and obtained eighteen acres of Land from Mzee Mbombe, an act witnessed by the appellants late father Mzee Hetaki~ way back as August 1960. The evidence as to ownership of_this area, 'by the respo- ndent,. was to aoartain measu;re confirmed ·byPW2 HAMZA MAKERO (aged 69) 1 and PW2 KASSIM FUNDI (aged 55 yrs), when as tractor drivers~ as way back as 1963 ·- 19~, at 4ifferent times, had bee?J,_J;l;.ired by the respondent to cultivate,or to plough . . the same-area. And to crown it all, the wife of J,ate Mzee Mbombe who gave . ' away the same,confirmed how herself, her late husband and others, including the · appellants father, participated in the allocation of the disputed land, to the respondent. On the other hand, the appellants version, was that the land in question belonged to his late father, and bought his mother DW2 ZAINABU MAMBIID:LA, -· t-

• 2 '. PW3 ABDALLAH HETAKI 1 his had brother, to confirm the s•Dry, and.they faithfully did s0. With ther above evidence, the trial Primary couts Judgment, was by Mojority of votes of assessors in favour of the appellant,the Magistrate dissentng for reasons, that in his view, the preponderance of evidence, was in favour of the respondent, and the Distr_ict Court's evaluation of the evidence, led to allowing of' the appeal, and hence this appeal. I have dutifully exp.csed the evidence, Judgments anp. grounds of appeal, to attendant scrutiny,' and I am satisfied, as any one reasonably, a.d properly directing his minds should, that there is no problem of identification', as to what land in dispute is. Further, it has to be ' appreciated, that the solution to the issue, as the learned Counsel po:i.nted, ·,,.I,• should be based on a proper, Judicial Judgment, on credibility of witnesses, on which the trial Magistrate, diffe_red with the· assessors, but found c9ncUl_'e.n9-eiin _;he District Courts appellate Judgment. The learned defence counsel pointed out, that the credibility•of witnesstes, is not Judged by the majority of witnesses as the mojority, may erras grosely as the few, it has to be based on the quality of the evidence, they have adduced, among other factor The 'learned counsel's complaint here, is that the quality of evidence, has been sacrificed on, the altar of the majority of witnesses. With, due l'.espect, having done my dutiful role, I donot think so, having examined the Judgment, I am justifiably inclining iorword.s the Di_strict Courts position, and so for the following rea.son 9 • First the I'.espo:o,Q.ent"t the number. of witnesses apart,. did use inepende1;t. wi t_nesses, who as I qan discern were straight for "!ant appear:;.ng as nothing to galll or fear C.::./ J ... ... -----, second, even an ye witness testified,, PW4 AWEZAE HBANGA LUKEil, . testified in favour of the respondent,even describing the age of the appellant, 11 Kwa wakati hue alikuwa anajionea kama mchezo tu 11 Third,: it should follow, that ·t:-e appena:t c~:i~·:; tell- what-wen;,,1tt d;;ndj%n hearsay. And fourth, the appellant's witnesses,like his mother, his half sister, not only were they i..tere, sted witnesses, but too,poor witnesses, DW2 saying, ' 11 Mimi sijui karna \yewe 1 unadai eka mbili 1 au zaid sij'!!," DW3 conceding, that the respondent did clear the pori in. question, but saying 11 Huzy mama alilima pare ,l_aani kupasua Jori, lakini al:i:,amic1: 7 :tak~~,!_na mt_u.11 But anybody reasonably directing his Judicial minds, cannot rely on this type of evidence, a;nd in terms of preponderance of evidence,the respondent did,prove hercl..0:3i! to the extent required, as to deserve the verdict she got. For the-above reasons,sI am satisfied, that the District Court did Properly decide the appeal 0 This appeal has no merit, and it is dismissed wi"'th costs. Delivered this 7th day of August, 19,8.