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Judgment

1 IN THED I-LLGH COuRT OF TP3ZAflIA 7 AT DAR ES SI4IIAMI (pa) CIVII APPEAL NO 23 OP 1981 LIAXtJNGACH.ANDE •.... ............................ APPELLANT versus YA.HA.YA. SETE]LBO •• • • ØØ•Q•QO.ODOOotSeOO•4D••b• .......... EESPO1'TDENT JU]-P1ENT This is a second appeal. The appellant was successful in the trial court but on appeal to the District Court the apeUant, Ma1unga Chande.!s award in the Primary Court was ordered to be divided - Into 2 equal parts to be shared by appellant and respondent Yahaya Setembo 0 - Aggrieved by this decision the appellant has appealed now to this court 0 The facts are that the respondent sued the appellant in the Primary Court claiming a piece of shamba of 10 acres which belonged - to respondent's re1atives r-nd which the appellant had converted to his own. The sbaxriba was valued at Sh301700/ because it had pexanent crops, The respondent went about prov±r.g his case in the Prinar y C0urt 0 He said that this shamba belonged t) his brother who had since died, His elder brother was called Makunga Matiwili, The shamba which he was claiming was 50 acres, This is what the respondent Yahaya Setembo sai(l in his evidence in court, He said frrther that he had even taken up the name of his elder brother and he now imown as Yahaya Setembo IViakunga, The respondent had appeared oi Lehaif of his deceased brother Makunga Matiwili to oppose or defend a suit by one Kig0nza Hgana who wanted to take that piece of shamba ±'rom Makunga Liatiwili. :1he respondent in that case and obtained this shanba for LIakunga Matiwili0 Thereafter Liakunga Ma-tiwili died and the respondent inherited his shamba Then the appellant took this shamba and hence the SUit,, In defence the appellant said thai he was Makunga Chande nephew of Tilakinaga Matiwili, He was appointed by the clan -t 0 look after the estate of Makonga L'Iatiwili when Makunga Matiwili died in 19710 Mak.mga Matiwili had children of his owa and the appe1ant administered the deceased 1 s estate and there vmas.no problem, Then the respondent came and took these shambas by force r But the court found him to have done • , • ., .

2 - wrong and he lost the cases in the courts. There followed other cases betwee respondent and appellant and respondent lost in all of them. The Primary C ourt cane to the unanimous decision that the
respondent (plaintiff) had failed to prove his case. The Primary Court reasoned that first of all the respondent had brought a suit whicth included even shambas which appellant had wonin earlier oases making his claim t0 reach 50 acres, Secondly, the respondent was not the heir of the deceased and that it was the appellant who was adjudged heir of that shamba, On appeal to the District Court, the District Iagistrate brought in the question of the parties belonging to a .matrileniaJ. society. He then went on to hold that the respondent had fought a case in respect of this s1&iba on behalf of deceased Makunga Matiwili. He concluded that since the respondent was the brother of deceased Makunga Matiwili he should have bee r made to succeed to the estate of Makunga Matiwili also. The learned District ILlagi- strate then went on to allowS the appeal to the extert that the disputed shamba should be shared, between the appellant and the respondent in equal halves. Dissatisfied by this decision, the appeilant has appealed to this Court setting out various grounds of appeal. In his memo- randizn of appeal the apoallant has stated that the learned Thstriet Magistrate erred in law and fact t o reach to that decision. He also says that the respondent is a mere neighbour and there is nothing to prove that he is an heir, to this shanba. In court there was nothing of substance which was argued for or against this appeal. Like the Primary Court, I have found nothing of weight to show that the respondent is entitled to the disputed shanba, The fact that he appeared on behalf of 1/fakunga Matiwili does not make him an heir to this shamba. Even if the respondent was the brother. of Liakunga Matiwili which is not the case here, he would not auto- matically be an heir t0 the shaniba. After all according to the evidence Hakunga Matiwili had his ovi children. The respondent did not bring any evidence to show that he was an heir or one of the
3 - heirs to Makunga Ha -tiwili. The respondent himself said in his cvi- ence that he was all along knowa as Yahaya Setembo and after Uinga Matiwili died the respondent says he was then known as Makunga Setembo. He says this in his own words: ttBda ya kufa kwake ndio niniekuwa mimi kania Makunga Setembo, t1 In other words, he has decided to be known asMakunga Setembo taldng thereby the name of deceased Liakunga Liatiwili. None of the respo-. •ndent!s witnesses have testified that respondent was related to LIakunga Mtiwili, except one Setembo Setenbo P.W.4 who says in cross- éxaminti 0 n that respondent was a young brother of Makunga Matiwill... But going by the name of the witness one can see that the witness ma be related to the respondent and hence this favourable evidence on behalf of thd respondent. On the other hand the evidence of th appeflant clearly shows that he has been admunistcring the estate of the deaeased Llakunga Matiwili. The fact that the appe1l.nt is bethg sued for this shanba goes on to show that he has been in occupation of these shambas as he alleges in his evidence,. This is the status quo which has been in existence since the death of Liakunga Matiwili in 1971 and up to 1980 when the 'espondent sued the sppeUant. There is no evidence that the respondent is an heir of the de9eased LIakunga Matiwili, It was therefore not correct for the learned District Magistrate to make him an heir. Nor is there any evidence in the Primary Court to show that the parties are of matrilenial society. And even the siii±'icance of the fact that the parties belong to a matrilenial- society has not been made clear by the learned District Magistrate, RLnalty the decisi0n reached by the learned District LIagistiate that the p ztie s should share the die puted shamba does not appear to be logical. II' respondent is an heir to the estate of Makunga Liatiwili, should be then takeha1f the die.. puted shamba? What is the criterion of arriving at such a decision to divide the disputed shamba? The learned District Magistrate did not show any nor can I see any. Is this King Solomon!s wisdom be1ng followed here? It is difficult to say, therefore, how the District Idagistrate arrived at the conclusion in his judgement, As I have said above I am in full agreement with the judgement of the Primary Court. The respondent filed a suit claiming ten acres of shaniba But in court while giving evidence he -was claiming 50 acres. This shows how confused the respondent is. He does not know what he wants. -'

4 - For all what I have said above the appeal succeeds and the judgment of the Primary Court is restored.

A • BAHATI. IAG, JUDGE 3OLl/82 3O/1/82 (brari: Babati, Ag. J. For Appellant: present 'Por Respondent: present. (b.rt: Judgment delivered in Court on 30/11/82. A.

•= \ 30/fl/82

Judgment

2 - wrong and he lost the cases in the courts. There followed other cases betwee respondent and appellant and respondent lost in all of them. The Primary C ourt cane to the unanimous decision that the
respondent (plaintiff) had failed to prove his case. The Primary Court reasoned that first of all the respondent had brought a suit whicth included even shambas which appellant had wonin earlier oases making his claim t0 reach 50 acres, Secondly, the respondent was not the heir of the deceased and that it was the appellant who was adjudged heir of that shamba, On appeal to the District Court, the District Iagistrate brought in the question of the parties belonging to a .matrileniaJ. society. He then went on to hold that the respondent had fought a case in respect of this s1&iba on behalf of deceased Makunga Matiwili. He concluded that since the respondent was the brother of deceased Makunga Matiwili he should have bee r made to succeed to the estate of Makunga Matiwili also. The learned District ILlagi- strate then went on to allowS the appeal to the extert that the disputed shamba should be shared, between the appellant and the respondent in equal halves. Dissatisfied by this decision, the appeilant has appealed to this Court setting out various grounds of appeal. In his memo- randizn of appeal the apoallant has stated that the learned Thstriet Magistrate erred in law and fact t o reach to that decision. He also says that the respondent is a mere neighbour and there is nothing to prove that he is an heir, to this shanba. In court there was nothing of substance which was argued for or against this appeal. Like the Primary Court, I have found nothing of weight to show that the respondent is entitled to the disputed shanba, The fact that he appeared on behalf of 1/fakunga Matiwili does not make him an heir to this shamba. Even if the respondent was the brother. of Liakunga Matiwili which is not the case here, he would not auto- matically be an heir t0 the shaniba. After all according to the evidence Hakunga Matiwili had his ovi children. The respondent did not bring any evidence to show that he was an heir or one of the
3 - heirs to Makunga Ha -tiwili. The respondent himself said in his cvi- ence that he was all along knowa as Yahaya Setembo and after Uinga Matiwili died the respondent says he was then known as Makunga Setembo. He says this in his own words: ttBda ya kufa kwake ndio niniekuwa mimi kania Makunga Setembo, t1 In other words, he has decided to be known asMakunga Setembo taldng thereby the name of deceased Liakunga Liatiwili. None of the respo-. •ndent!s witnesses have testified that respondent was related to LIakunga Mtiwili, except one Setembo Setenbo P.W.4 who says in cross- éxaminti 0 n that respondent was a young brother of Makunga Matiwill... But going by the name of the witness one can see that the witness ma be related to the respondent and hence this favourable evidence on behalf of thd respondent. On the other hand the evidence of th appeflant clearly shows that he has been admunistcring the estate of the deaeased Llakunga Matiwili. The fact that the appe1l.nt is bethg sued for this shanba goes on to show that he has been in occupation of these shambas as he alleges in his evidence,. This is the status quo which has been in existence since the death of Liakunga Matiwili in 1971 and up to 1980 when the 'espondent sued the sppeUant. There is no evidence that the respondent is an heir of the de9eased LIakunga Matiwili, It was therefore not correct for the learned District Magistrate to make him an heir. Nor is there any evidence in the Primary Court to show that the parties are of matrilenial society. And even the siii±'icance of the fact that the parties belong to a matrilenial- society has not been made clear by the learned District Magistrate, RLnalty the decisi0n reached by the learned District LIagistiate that the p ztie s should share the die puted shamba does not appear to be logical. II' respondent is an heir to the estate of Makunga Liatiwili, should be then takeha1f the die.. puted shamba? What is the criterion of arriving at such a decision to divide the disputed shamba? The learned District Magistrate did not show any nor can I see any. Is this King Solomon!s wisdom be1ng followed here? It is difficult to say, therefore, how the District Idagistrate arrived at the conclusion in his judgement, As I have said above I am in full agreement with the judgement of the Primary Court. The respondent filed a suit claiming ten acres of shaniba But in court while giving evidence he -was claiming 50 acres. This shows how confused the respondent is. He does not know what he wants. -'

4 - For all what I have said above the appeal succeeds and the judgment of the Primary Court is restored.

A • BAHATI. IAG, JUDGE 3OLl/82 3O/1/82 (brari: Babati, Ag. J. For Appellant: present 'Por Respondent: present. (b.rt: Judgment delivered in Court on 30/11/82. A.

•= \ 30/fl/82

Makunga Chande vs Yahaya Setembo (PC Civil Appeal No 23 of 1981) [1982] TZHC 604 (30 November 1982)

Judgment

4 - For all what I have said above the appeal succeeds and the judgment of the Primary Court is restored.

Discussion

Makunga Chande vs Yahaya Setembo (PC Civil Appeal No 23 of 1981) [1982] TZHC 604 (30 November 1982)

Judgment

4 - For all what I have said above the appeal succeeds and the judgment of the Primary Court is restored.

Discussion