Marias Ngoibel vs Lekumok Seng'eng (PC Civil Appeal No. 90 of 1989) [1990] TZHC 494 (18 December 1990)

.. .,,,.,-, ... IN T . .lE HIGH COURT OF TA1JZANll. . AT ARUSHA. ---.... ' ........ (PC) CIVIL APPZAL N090 OF 1989 From t ,e deicision of the District Court of Arusha at Arusha civil appeal No: 34 of 1988 MARIAS NGO IBEL ••• , •••••••••.•• • •••• • •• • •• • •••• , • • • • APPELLANT VERSUS· -- LEICTJMOK SENG I ENG • • • • • • • • • • ,; • • o::.t• ••~ !.l'i.:!, ·•<, • • • • • ,. • • RESPONDENT MUNUOf J. This is"'a secndappeal from the Arusha District Court Civil Appeal No.34 of 1988 originally .Enaboishu Primary Court ·civil Case no. 132 of . . ~ . 1988. · In the said prim,a,ry court .the_plaintiff Lekumoko Sengei sued for recovery of land from the defendant ia.s Ngoibeli The plaintiff gave ev:iAence at. the trial as' ·sm1 .stating th.at he . inherited ... the shamba in dispute from his father_in 1976, He also stated that the defendant had been allocated the same land in 1967 during operation vijiji. . ..... . . The defendant denied the claim saying that h 1 was allocated the land during . : . • operation vijiji in 1969 after which ·he buflt on the :land and has snc_e remained in effective occupation so he had title, to the land .,j.n question_.,. The primary court unanimously dismissed the suit on·the ground that the plaitiff has never .occupied th~ suit land.. "The · primary court held that tl:ie.defendant had continuously occupied the suit land for 19 yea:rs . ' • . ,t whereas the plaintiff had never occupied or lived on the suit land,. .. On appeal to. the DiG>tti,ci Court, the iearned appellate magistrate upset . ' ,• . the decision of the primary court. , He die.rega:rded the map drawn by the . . .. trial court and draw another map when he visited.the suit land. The first appellate magistrate als~ · re.corded views he g~thered from some people when .. he visited the suit land•: I t point out here that such views are not additional evidence because they were neither given on oath nor tested by cross-examination •. The appellate District Court reversed the decision of of the trial court and declared that_ the land.in question belongs to the plaintiff.. Thereafter the defendant pref erred this second· appeal. · · Mr. Lobulu, learned advocate for the appellaut submitted that the appe llnte Senior District Maigistrate erred in re9ording additional evidence a also in making himself a witness. As observed earlier the purported addJ tional evidence was not recorded on oath so the saia statements are of> ~.. ..,. ' evidential value. \

• 2 - , the . The ·appellant adv ,ooate on~ ,appellate magistrate Is inter_f e.rence. with. te decision of the the trial court.. He submitted· that the Suit is tim,$ ·'bar;ed under the Limitation Act, 1971 ·no. well as Government Notice 311 .ef1964 so the appeal should have be/n pe dismissed with cots in any event. • o • l. I ' ~ ...:.1.' ---:• ....... -.'::· ... _ .• . ..... ;) • .-. Mr. Mirambo, learned advocate for the· respondent-"mipported the district ·' -., . ,. " ... cot•s interference with.the de4ision of the primary ,c9ut •• He stated that .. , the.- appellate Senior district qi 8 g.istra;te p;operiy: re-assessed the evidence Uhd.er stion 21 of the. Magistrates, ~~~rts Act. He ex_p_red- the vie:; tt the Lirμ-tafsm Act, 191i "!as not pleadJd at ;the!'~~fil,.,§!o ... j_,t..--i:,1i.iihot 0 b· .. i~;- #-,,J ,'- •. 1:. ,,,,...,... . . oduc·ed at this late· siage of a. sec6nd 8:PPc·a1. .· ., .,.,- ·;.;.•· ,! .,,, The issue is who of the parties to .. the su.i t .,owns the· suit land. I have ;, ' already fult~~ ~~he District Court for recording un1,wpi statements which were not e:ver/·tsted by cross-examination to estabi-ish the truth. The decision . ·''r" ... . . -: of the· trif diirt is actually supported by tti idence 6f 'th~- respondent . .,_ . ~ i: . . . who stated. at Pg. ·3 of the typed.:; proceedings of the =trial court:- "-- hamba hilo nimepewa na baba ·yangu·ambay8 hivi saaa ni marehemu. Shamba hilo aiihigawia rnwaka 121.2,. wakati vijiji vimegawiwa ardhi.mwaka lg?1 mdaiwa · alipewa shamba hilo na kijiji mwaka 12fil.• ''. The defeudant 'cleposed· that,.the shamba was allocted· to him in 1969. He has since te·n-6ccpied_ an~ orked on the s.aid land for 19 uninterr- upted years to the time of filpg. the Suit •. The appell0nt 1 s neighbours deposed as Su29 Su3, and Sti4 to corrobo;hte the as::;i,rtin that the defendant occupiGd . ' ..·, .. , ··- . ,t·., the suit land for 19 uninterrrup;ted years whereas ··the. responde,nt plaintiff has never lived in the materiai' .vi.ilage: or oc9i.:ped the s\ti,l land •. ♦ • ·Moreover the·. plaintiff acquiesced the: 19. -ye~s oc.cupion by· the· defe~ ndant. The suit ought therefore to have been .. broμght within twelve years as stij_)ulc1.tea.. ·in the law :of Limitation, 1971 - the plaintif.· vF had a genuine claim of land. Under the circumstances it was erroneous for the appellate district court to upset the primary court decision~ .. Accordingly the decision of the aPPellate Diatri-O't Court is .. hereby quA.Shed •and set aside. The judgement and orders of the trial 'primary cau..'t't are restored. The appeal is allowed with costs. It is So Ordered •. E.N. MUNUO JUDG~ 18/12/1990. r- . ............ ... /3

At Arusha this 18/12/1990 Appell~:- Mr. Lobulu for 3 Respondent:- Mr. Mirambo duly notified but 4:Q .. E.N. MUNUO ~) JUDGE ·- ·1s/12/1990. ENM/RJ • absent. .\ :· Si •lt _"'ii' ·, '1j' .•