Timothy Mwandebe vs Kijuli Mwakikuba ((PC) Civil Appeal No. 23 of 1979) [1980] TZHC 111 (12 June 1980)

= EHIGBCODBT- Q L— - T NBEYA (PC) CIVIL APPE1L }'O. 23 OP 1979 (Prom the decision of the District Court of Rungwe at Pukuyu in Civil Appeal No, 7 of 1979 and Kandete Primary Court Civil Case No, 17 of 1978) BEIFORE: J.A. ?M.IIH1BiI Esq. v DISICT MIiGISTRIiTE TINOTHY 1MANDEBE . . . . . . . . . . . . , . . . , . . APPELLANT (Original Defendant) V e r U 11 S KI JtJLI NWJJaKUBLi. . . . . . . . . . . . . . . . . . . RESPONDENT (Original Plaintiff) J UDGKI lU NWAKIBETE, J.., - The dispute in this oase is over ownership of'c press' trees numbering 67. Ehe4 t # e ~ p n t, e ,zj dtngnparties olaifli ownership of the property. They both claim toh ;plattcd the trees. There was evidence from two independent witnesses to say that the . fv io'ic piece of l an d on wluhnë dthputec'trees ,- stand , was afloted to the respoxdent when it was ( ±&& é4±?o& 51 i the evidence 1979 flJ 't of one IaKOB t. ,he 0 eq97 person who gave that piece of land to the respondent, in effect the evidence of Kjkobole was one that the-paee of p st used to be under his control. That Kikobole gave the pIece of land to respondent was cniredr other vil1aer — ono Rafiki M vt angoka4 Ki4obo1e1.ki have their homes within the viciniy of the piece fdii) disputed trees stand. 11 T 11 n' ier •hand there is • he evidence of one LMON ri:iral :jyff\ support the appellant's assertior that it was the appellant who planted the disputed. trees. Both the ].ocr courts reected Nwabulili's claim that he witnessed appellant plan %htes. I, too, entertain doubts as to the truth of ?abulili's tetthony. It is on record that Mwabulihi!s home is situate far from the area where the tees are locatea. Nwabulili u i • tK Lz .' )f did. not explain how he :amto áthe 1±ii of the trees a tong ri :: t,O P flfj distance away from his home. 'fll.;rQ ':n ic?icc' i.colt tw-: I wL:'e. t ny t.t tb 4 7

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• 2 - ippellant did not question Kjkoboles right to allot the piece of land to the respondent (IaJtJLI). I an satisfied and so bold that the piece of land was given to IJT3LI by KIKOBOfl. If kikobole and Nwangoka meant to Ue they would as well have zaid.they saw KiJUU plait the disputed trees In the record of the District Court it is stated that the villagers who attended the court at the site informed the court that the disputed trees belonged to KIJULI Strictly speaking that was not evidence because it was not given on oath and therefore the villagers were not subjected to cross—examination. But I entertain no doubt that the sentiments as expressed by the villagers represented the truth in the circuistano.es of this case. •For:ifit wereotherwise,appellant would undoubtedly have at.tempted to dispute or protest on the site. He did not do so nor did he try to .explain either in his memorandum of appeal or before this court why the villagers should hav:o expressed such sentiments in favour of the other party. In my view the sentiments as expressed by the villagers goto strengthen further the case of the respondent. Before• this court the appellawt purported to challenge rspondent's claim that the respondent was at Chunya for some 13 years when appellant j started cutting his trees. He .saldq the respondent was at Chunya for 4. years only. But this question of respondant being away from home for some 13 years was mentioned by the respondent before Kandete Primary Court .ilppellant did not dispute that period before the Primary Court. He did not dispute it before the Disriäourteither. Hecannotbe aIloed to dfspute it before this'courtnbw. On the .facts on record therefore and after hearing the parties,on appeal .1 am satisfied the respondent' s case is stronger than that of the appellant. Accordingly the appeal is dismissed.with cqiits. / At Nteya this 12th'day of June, '198b N.J. NWAKIBETE