Yesusaria A. Mola vs Adam Anael Mola ((PC) Civil Appeal No. 42 of 1990) [1990] TZHC 344 (11 December 1990)

IN THE HIGd COURT OF TANZANIA AT ARUSHA...!. .(PC) CIVIL APPEAL NO. 42 OF 1990 · (FROM-.=:-:::-:, nECISION OF THE: DISTRICT COURT OF MOSHI AT MOSHI IN CIVIL APPL.NO. 53/88 ) Y:ESUSARIA A. MOLA •••••••.•••• , ....... APPELLANT ADAM ANAEL MOLA ••••.••.•••••• , •••••• RESPONDENT. JUDGMENT. E.N. MUNU0 1 JUDGE. This is a second appeal against the decision in Moshi District Court Civil Appeal No. 53 of 1988 originally Old Moshi Primary Court Civil Case No. 7 of· 1988. In the said Primary Court the plaintiff Adam Anael Mola sued the defe- ndant, his uterine brother Yesusaria Anel Mola for a piece of developed land.at Shia Village in Old Moshi. The plaintiff deposed as SM1 stating that in 1966 his , late father beq80.thed to him the entire 2¼ acre shamba (kihaJba) at Shia, Old Moshi within the Moshi Rural District in Kilimanjaro Region. He said that his defendant brother was allocated a 4¼ acre shamba at Majengo so he has no right to occupy the ¾ piece of land in dispute, it being part and parcel of the kihamba the plaintiff got from his late father. The defendant deposed as SU1 denying the claim. He stated . . that his late father divided the land in question way back in 1966 so thateither party got his share. The defendant has since then effectively occupied and developed his¾ acre piece of land. According to the defendant the Majengo shamba was also equally divided between them. In the c9urt of first instance both assessors found that the def~ndant lawfully possesses the land in dispute beca- ause it was allocated to him by his late father • • • • · ••••• / 2

, . . ""--· . ·'. "!·· .... ' t 2 .. . . ' trial magistrate dissented saying that the plaintiff. t: acquired the· ·entire kiharnba at Shia while the defendant got ;'.::.·'• .. the whole sharnba at Majengo.· The judgment of the primary . --:"" .,, ._ ,-./ P-.:Ol:1,rt ws the majority opinion of both assessors so the , ·' i,.'j.§>:,dt, was dismissed with costs • .. ·. \ ,. . i-··) . . . ' : "'r•,· On: appeal to the Distt-'ict Court, the appellate magistrate ?;jf .. . ,•.···, .reversed the decision of· the trial court by upholding the .. -:· //. aissenting judgment of the trial mgistrate. 'Thereafter the. ·(,'. ·'-. ,.. _., ~ : . : ., ' · efendnt preferred the second appeal seeking reversal of'. · ine appellate District Cour~~8i.etl&estoration of -the prim1ry Court decision.· . . . ' The issue is whether the land in dispute belongs to · ··· · ;appellant defendant or to the respondent plaintiff. · . . ., ~ ' the:'.:. ' . ~ ~ .•·"' ) •.;, w; ,,r · .. r, , The mother of the li t_igant brothers gave evidence as ;-,>. S,J',"' ~ · :'.::'-::-: '.:3.::;.sed. th-- .. t her late husband, the father of the \f:,·-~·p.1rtie·s to the uit ·divided the Shia .shamba in equal "r::; 0

1 : share so th:it either son got his respective ·portlon. That i' .. · ~ . . . . .. ts to say the defend'ant is. entitled to occupy the piece W\ .t,•: : 0 0:( land in diS\JUte becase his father beq;eathed it t~ him •. :A·:·::::{ -'.'f'i ·clan. elder, SU5 Jones Mola corropor-:1.ted SU7's testimony .. ,:!. . : .. ., ' to· the effect th.it either party got his respective equal ··s~~~~~/ df the shamba of their late father at Shia so the land in · ',, .. <1, . . "t ·. ',, ·. 1· ,,.r· . dispute belongs to the defendant. The said clan elder also 1. • t;t · tendered a will Exhibit B which states categorically that · ·, . ,: ·.r .... ~ .. the land. in dispute was beqeathed to .the defendant Yesusaria · ''·:.. .; I • • ,. · ,'-. ! An:.·eli absolutely. That being the position, the appellate .;.·,:( ··. ·,.,• y,:. t ·. District erred in upsetting the decision of the primary ' · ,,., •... .court. . . ,,/ Jo' · AccordinglY, the· decision of the appellate_ District . . .":: . •, ... Gourtis quasl:id and set aside. The decision of the primary.·, 9qurt is hereby restored • 1 .............. /3

3 · The appe,::.l is allowed with costs • It is so orderede At Arusha on Appellant • . Respondent • • C/C . • E.N. MUNUO, JUDGE. 11/12/1990. this 11/12/90 in person in personi; E.N. MUNUO, JUDGE. 11 / 1 2/ 1990,