Jonathan Barnaba vs Anasimbo Barnaba (PC Civil Appeal No. 50 of 1990) [1990] TZHC 334 (30 November 1990)

IN TH~ lITGH COUR'l 1 Oi 11 T1\1':Ziu1IA AT ARUSHA. PC CIVIL .AIT:.:iAL NO. 50 OF 1990 (From tho qecision of tho District Court of Hai at Hci in Civil Appeal No• 41 of 1990) JONATHAN -BARJ.IJ"ABA •••••• , •••••••••••. ·• , •••.••••••••••• Af PELLPJ-J"T VuRSUS ANASH'!BO BARNABA RESPOND.l!lTT j·u D GM E 1-L..'L, .r@osg9 J. This is a second appeal. The respondent brought a su:i.t against the appellant in the frimary Court of MasaJna, Hai District claiming fr.om him a one acre shamba. She lost in tho PrimC!I'y Court but on appeal to the Hai District Court she became tho successful party. On the other hMd, the appe1lmt who was sucossful in the I'rimary Court but t!ie losing party in tho ·first appeal to District Court, has ar,pelco,d to tJ-:.is court. been seriously dis11Utcd. Th.;; :t:ollowing facts have not The appelh:nt is the son of the respondent. He Wc.',S born (in 1954) 1 brought up, m2.l'ricd and begot children at tl{o sh,;,1;1ba in dispute. That s}1wnba o:~iginally belon!,;od on:e Ba.rrrabas, the father of the respondent and 5 r-,ndfathE.:r of the appellant. He ( the appellant) has been using iho name "Barnabas :. as llis second name in his official documents, that is to ::;;,,. in School, as is evidenit· in his Primary School Certificater his :iili tia identity card and in the development tax receipt, all 1d1ich ,,:ere produced. ir:. evidence at the trial. After tho der,th of Bar.nabas the a.r,pcllant, hi·s mother and grandmother (ViJ .2) all \ived at th0 sLr.mba but his mother n the respondent 1 subsequentl y moved out to live at a different shambao The appellant rema.:i.ned. at the sha.mba in dispute togetJ.-iGJ:' 1,;:i th his ' ; grandmother. He ha,s ,, hous,o at tho sha ·aba and ho sells tb.0 coffee i-,hich is harvested fr(l.El the shamba to t:.1c K.N .c. U. in his m-m name. Last year, ••• /2

• • • 2 ••• • Last yea:r, in 1989, the dispute about tho ownership of the shamba alI'OSe. Tho appellant is 'said to have poured c_of:fee spray insecticide which the respondent brouc;;.1t to the shamba in dispute, presumably to be usod to spray j;he coffee trees in the shamba. The ' appellant is also said to have chased awa;y his grandmother - I'i: .2 - tho wife of late .Barnabas. He cla:i.n10d the: shamba belonged to him, it having been given to him when he was still an infant by his late grandfather have a son. Barnabas, - in 1954 1 boc2,use the late Barnabas did not on· tho cri;her han.d, ;T .2 --· appellant's grandmother - claimed the sh2111ba had been 10ft to her by hor late husband - BD.rnabas - and that she lived peacefully with the appellant until last yoar •· 1989 v:hcm the appellant behaved disrespoctfully to hr. She asJrnd for meeting of clansman i'Iho formally allocated the shamba to the respondent. Tho himary Court unanimously founcJ_ for the aprcllant for the reason that the evj_ctence which 11ias wlduccd in his favour had a prepcmderance over tha.t of the r0spondo;.1t and her wi tnessos. A witness - Zablon Tole (Dl-J .2) who was aged 08 years had t0stified for th0 arpellant th,_·;t; he personally he.:i:cd late Barnabas say during th0 infancy of th:..:: n::,pellant that th'"' af1,ellant would inhori t his The: first arpollo:to c<,urt rev0rsed t1e decision of tho trial , court because it tl:i-ought that if late BarLabas has made al'J. iD.ter vi.Y.2.§. disposition, leaving Li.s proporty, including the shamba, to the arpfll.ant when he Has an," infant, it Wf:l.S not possible for the appellan_t to have hc~d th0 iJOrds consti tu.ting the disposj_tion. At. the hearing of the. present a:rp,~al the arpellant has argued that r.c never claimed to h2;v0 l1Gard his gTandf1.1,ther dispose by will (oral) his property to him. He rel:;led on tho 1:ord of a person D .2 - who said ho hea.rd the L:i.te. Bacnabas male:.:; the oral will. Although there was seinw e•7i_dence th,::.t the putative fa·cher of the appellant was believed -t:o be ono Ismailw yet thore 1,.~as no evidence that the said Ismai 1 ever legitimated the 2,,rpollnnt by paying i'l.ny custor1Y'XY pri cc. So 7 considering thc.t tho 2,·,,pellwt has buen using the n;.'lne of his gra11clf2,tl10r as his second name all along, it isrnor0; prob2.ble thc1J1 not tk,t the c::.ppellant comes under paragraph ••• /3

3 ... parat.;rnrh 178 of ·i;).:,~ Customn;ry Lair J (Doclr..rc1,tion) Order, G.N. No. 279 of 1963 in which it is stipulc.tedi- n178. F<1toto n1.siozali1, 1 c1:' k2.tik.-,., Jr .. li ya ndoa ni m2 .. U y:J. jama2, za kukuni I yc1,ani ni rnali y2s baba ya mama y:, .. o • 11 far.:1graph 180 B of the same order says; nKama babu h2.l1ct, t!tctoto basi huyu mtoto · asiyG halisi anakmm kwna mtoto wake wa halo..li • ;i It is .my considered opinion that evch though this paragra,:h speaks of a si tu~.tion in which t;.c gr211d.fdher of nn illegitim::i.te c)rild hi.wing that no children ::i.t all, yet 2 .. 11 .::nalogy can be mc,de. in the case of the gr211dfather hc,vj ng 110 mo.le children, then 1:m illegi timato r:-,2.lo child under paragrn:ch 178 of the Order wc 1 uld b0 considered as the male child of the gr nndf 2;tl1or. It· tmuld follow that such ;:-., cbi ld i,;ould be entitled to inherit his grandfr .. thor. The custon1i:-.rs inhcri tenco rules in the Second Schedule of G.N. ,,; No. 436 of 1963 \·Jhich wore aprliod to v'lmt was formaly K.ilirnajaro District n.nd whj_ch no- includes Hai D:i.str.ict, by G.N. No. 130/1964, . d th t t. l f. 1- l ., . ld t :.1 nriori ty. · 1 • J f th prov1 e n, 10 · irrTv ma e CiU · 2 cos ... · in iru1erJ. ccncc o o father's property - ooo pJra,era..r,h (19) of tho Second Schedule to the Order. Thoreforoj if :it is accepted -bh:-;t the appellont vms considered a member of late B2.rn2..h·s family and tho only male ch.i.ld., he should take priority in 'inhcr::.-i:;ing Bctrnabas 1 pro::_,orty. 4'!'ising his But did Bu.rn;:-..b~ -ilso mclce c111. oral will !c,i;::.:~ ~ sh2mba to the 8,J:pclla:nt? If ;1e c.itl so, .::i,s cJ.:>:i. ed by mr.2 Zc1blon 'l'cle, such a will wou1d no·~ b\3 vnlid because it did not meet tho conditions for ai.'1 oral will und.or customar.y 1m:. I'ara€,Taph (11) of ·the third Schedule to the Custom.:-,ry (Declaration) Order, G.N. No. 436 of : 1 .963 says as follm~s ~- 11 Wosia ••• /4

... OOOCD 4 "Wosia wa mdc:rno ushuhudi we na mashal:J.j_di i-.iasiopungua wanne - ynani, 1 watu w2 .. ukoo 1;-Q.Sj_o:i_:m1&,u2. wawili n2, t;ntu bnki 1t:asiop1mtv.c1 wawi li. 11 There 1rias no evidence th2.t the supr-oscd oral will by late :/;larnabas uci.s so witnessed. T}.1.l) tr:i.al court erred in holding that there had been a v2c.lid oral will in fr.vour of the a;'pelL:int. The responde1t had also claimed thc,t her later father had left the disruted shamba. fo her as his youn1sest child. But hc:r mother · Alereshasero - f'.·' .2 -- did not support tJ:'.c"t claim;; ;:;h0 sa.i.d, instead, thd the shc..mba was hers, having been lr::ft to her by her Leto husband. .:ihe 112 .. cl support for that clcim from r o3 - Asher Munisi. But both f'L2 211d J"'f .3 claimed th t in 1989 there was a clan meeting at v:hich the shamba was formally allocated to the responcl:.::,.1t. JJut nr .3 did not say ff }L 1,~as one of the cli1l1 elders o Inclcocl, of tho four ,i tnesses of t .•. :·) ·respondent none sro.d h<.: was a member of t:·1u clan of late B2xnabas • D:': .2. - r,ablon 'I'ole was the only wi tncss who cl;:;irned h,; belonged to tho clan and ho so.id, though ap:-n.r<mtly as hecrsay, th,\t th~ s:J:;nbes hnd been left to ar,pcllant o Ho s,,id. nothing, and was no·~ a,skod f, J'.Jx,ut 2Jl .1llt·gecl m:.;et:i.ng of clan people in 1989 which Glloc.::.ted tho. plot tc tho rospondm1to I would thor...;fo:to ,::-..grtJ3 with thc)'.·t;i.m2.ry Court that on .,a balance of probE"bili ties 1 considering all tl.tc recorded ovidcmcc 1 -~:1c disputed shu.111ba belonged to tho ap!;01lant. The first appellate court therefor.a erred in rw.crsing the: doaision of the frirnary Court. Tho judgment of thrJ Distr:lct Court o'-£ Hai is quashed aml the decree rl3sulting from it sot asi.~e. But considering the a:--.parcntly· · impecunious condi tton of -~he res-pon,:~e;nt 1 I order that oCtch pc::.rty to benr their own costs. I should like io ro::.terate an oJ.cLr whic_h t:as m2ilo by tho f'rimary Court th.:t n:.2 .Ueroshc.faro w/o Barnabas has r,i, r:Lght to live on th,; dis·,uted sl1amba o.ncl to be ndequ.3,tcly provicJ.od for in her basic. n_c1;:c.ls by tho a·ppolle11t. Il ~lof aul t .. o/5 ••••

. t , (r. 0 0 •• 5 ••••• In dcfaul t a rerort - should be made to the nearest I'rima.ry Court for an appropride remedial order. At Arusha. 30/11/19900 ~~ '· J.A. Mroso, JJlP~. Mr. Kinabo for A2_,p0llant Respondent rTesont in person. JAM/JJM

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