Sisya, J.: The respondent brought an action in the Mlola Primary Court of Lushoto District seeking to recover from the appellant a piece of land upon which the latter had allegedly trespassed. Judgment was given against him. On appeal to the District Court the first appellate Court, in its E Solomonic decision, altered the decision of the Court of first instance and ordered that the piece of land in dispute be divided into two equal parts with each party being awarded a part thereof. Aggrieved by that decision the appellant has now appealed to this Court. The question for F consideration in this second appeal is whether the decision of the Court of first instance was justified and supported by the evidence. This is a point of law.
In support of his case before the Court of first instance the respondent, in addition to himself, called G two witnesses on his side. These were Rashidi Senkondo (PW2) and Saidi Bakari (PW3). These and the respondent swore that the latter bought the disputed piece of land from his grandfather, one Mmasa Tumbatu in 1971 for Shs.160/=. The said Mmasa Tumbatu was not called as a witness and he did not therefore, give evidence in the case. The respondent stated in his evidence that in 1982 H he left and went to Upare. It was during that period of his absence when the appellant trespassed upon his land.
In his defence at the hearing of the case by the Court of first instance the appellant stated that he bought the disputed piece of land from one Abed Musa in 1978. The said Abedi Musa (PW2) I
A gave evidence in the case and he confirmed what the appellant stated on this aspect of the case. The said transaction was reduced to writing and the relevant piece of paper was tendered and admitted in evidence at the hearing of the case. The said piece of paper shows that, in all, nine B persons witnessed the transaction and among them was the respondent: His name is the first on the relevant piece of paper.
Abedi Musa (DW2) swore that the disputed piece of land originally belonged to his father, one Musa Senkondo. He was the one who opened up the said piece of land for cultivation from virgin C land. In 1973 the said Musa Senkondo gave the piece of land to his son Abedi Musa. Later that same year, i.e. 1973, Musa Senkondo died. He, i.e. Abedi Musa, continued to cultivate the piece of land until 1978 when he sold the same to the appellant.
D Another witness, Musa Saidi (DW3), swore that he shares a common boundary with the piece of land in dispute. He told the Court that he has been occupying his piece of land since 1959. At that time the piece of land in dispute was being cultivated by father of the appellant, Musa Senkondo. When the said Musa Senkondo died he saw Abedi Musa and his wife cultivating the said piece of E land. In 1978 he noticed that he had a new neighbour on the disputed piece of land. He was the appellant. In September, 1978, the respondent passed the boundary and trespassed upon his, i.e. DW3's, piece of land. It was Abedi (DW2) who came and settled the boundary dispute.
F After the Court of first instance had heard all the evidence both parties made an application to the Court to visit the piece of land in dispute. A date was then duly fixed for that exercise. However, on the said date the respondent successfully moved the Court to abandon the visit because, according G to him, he had just realised that he had sued the wrong party. The proposed visit, if carried out, would thus amount to a waste of money and time. The Court of first instance then proceeded to pass judgment which it did in favour of this appellant. This decision was, as aforesaid, altered by the District Court where the respondent had resorted to by way of a first appeal.
H The learned District Magistrate found that there was to use his own expression, a tug of war over the disputed piece of land between the parties. If I understood him quite correctly, of course there was, and there still is. The learned District Magistrate then went on to observe that each party had I a good claim to the disputed piece of land. He then came forward with the Solomonic decision and halved the piece of land in question with a portion for each party. The only
substantive reason raised by the appellant is that the learned District Magistrate acted against the A weight of the evidence.
According to law the person whose evidence is heavier than that of the other is the one who must win. In this instance each party called two witnesses in addition to himself at the hearing of the case in the Court of first instance. In measuring the weight of evidence in such cases as the present one B it is not, however, the number of witnesses whom a party calls on his side which matters. It is the quality of the said evidence. In this connection the evidence of a single witness may be a lot heavier than that of ten witnesses. It is to this issue of the weight of the evidence in this case that I now C turn.
Starting with the respondent's side, as aforesaid he, i.e the respondent, alleged that he bought the disputed piece of land from his grandfather, Mmasa Tumbatu. One would, naturally, have expected the respondent to call the said Mmasa Tumbatu to give evidence. He, however, did not do so nor D did he give any reason why the said Mmasa Tumbatu could not be called as a witness. Again, the respondent stated in his evidence that at one stage he lent the same piece of land in dispute to one Almasi Sebarua for cultivation purposes. The said Almasi Sebarua used it for one year and returned E it to the respondent. Like Mmasa Tumbatu, Almasi Sebarua was another material witness whom, for undisclosed reasons, the respondent failed to call as a witness on his side. In such cases the Courts are entitled in law to draw an inference that if these witnesses were called they would have given evidence contrary to the respondent's interests. The duty to call witnesses is not the Courts F but it is for the party who wants to be believed in his story and win the case. As aforesaid, two witnesses gave evidence on the respondent's side. They merely, so to say, sang the respondent's song that the disputed piece of land was given to the respondent by his grandfather in 1971. They G claim to have been present at the time and to have witnessed the handing over. They, however, did not explain their capacities in which they were, presumably, summoned to witness the transaction.
Now turning to the appellant, as aforesaid, he stated that he bought the piece of land in question H from a person who, himself, also gave evidence and confirmed the story. Not only that. The said person, Abedi Musa, told the Court of first instance how the same piece of land came into his possession. This story was supported in material particular by a person, Musa Saidi (D.W.3), I
A who has been neighbour to the disputed piece of land since 1959, and he still is to date.
In his evidence the appellant expressed surprise why the respondent did not react immediately when B he, appellant, went into occupation in 1978. In fact it is even more surprising that he, respondent, chose not to do anything when the father of Abedi Musa occupied the piece of land in 1959 or when Abedi Musa himself occupied the same piece of land in 1973 and continued to do so for five solid years. In short, on my evaluation of the evidence I find that the evidence adduced by the appellant C was a lot weightier than that of the respondent. The decision of the Court of first instance was thus justified in law.
In the final result, this appeal has merit and it is hereby allowed. The judgment and orders of the District Court are quashed and set aside and the decision of the Primary Court, Mlola is restored. D The respondent is condemned in costs.
Appeal allowed.
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