19950803 TZCA Dar es Salaam

.,. IN THE C O U R T ~ A N I A AT ARtlS_~A (CORAM: _I\J_Y_A_L_A_L_I_,1,__C_._J_,._...,,_Jl_'i_;,:_<_A_ME_t__J .1 1 j\ ~d KI SAN GA , JoAo) CIVIL APPE!\.L' NO? 8 ~F 1994 t BETWEEN 1. I•LELITA NJ,IKININJh.L 2. LOISHILAA.RI NAIKIMINJAL APPEL~ \ AND SAILEVO LO!Bi1.NGUTI • • • RESPONDENT (Appeal from the Judgment and ·Decree of the High Court of Tanzania at ~rusha) (Munuo, J.) dated the 18th day of June, 1992 in High Court Civil Appeal ~o. '23 of 1991 JUDGEJVJE!!:JT OF THE COURT NY/\LALI, C.J.: This is a second appeal by the two appellarits, namely, MELITA NAIKIMINJAL and LOSHILfJ,.RI r,ii,IKIMINJAL, hereinafter called the appellants. Their first appeal was to the High Cf'urt of Tanzania at hrusha. The appellants' father, namely NAIKIMINJAL LOIBANGUTI, instituted a suit in the Court of the Resident Magist~ate for Arusha Region in July 1988 against the respondent SAILEVO LOIB,\NGUTI in respect of a piece of land situated in Losikito Village, Mwandet Ward, in Arusha District. Subsequently the plaint was amended in November 1988 substituting the appellants for their father. The amendment~ were made consef!uent upon appellants' father giving the pie~e •f lond in ctispute to the appellants. The suit e~u!ht a declaration to the effect that I the piece~9f land in dispute l~wfull~ ~elonged to the appellants and payment of damages by the respondent for trespass. The \. j , I ;. / ), \ -; . 2 respondent in his defence counterclaimed for payment of damages for trespass by the app"=!llants. i', t the cone lusion of the trial, the Court dismissed the appellants' claims and granted the counterclai~ by the respondent with inter2st and co5ts. The appellants were aggrieved by the decision of the trial Court ar.d they appaaled to the High Court.. The appeal was partly successful and partly unsuccessful in that the first appellate Court, MUNUC, J •. allowed the appeal in respect of th'e counter- claim but otherwise dismissed the appeal. The appellants were further aggrieved by the decision of, the High Court and they sought leave to appeal to this Court according to law. The High Court, Mushi, J. rejected the application. The appellants then successfully sought such leave from a single judge of this Court, Ramadhani, J.A. Mr. Lobulu l:2arned advocate, and Mr. Mwale, learned advocate, represented the appellants and respondent respe~tively throughout these proceedings in this Court and the two Courts below. Mr. Sang'ka appeared for the respondent for part of the proce~dings at the trial. It is apparent from the proceedings in this c~urt and the two Courts below that the app8llants and the respondent are closely r1:lated. The appellants are brothers an<l the respondent is their uncle by vi.J;tue of being a brother of their late father 1'ii\IKIMINJAL LOIBhNGUTI. It is common ground that the piece of land in dispute was once part of land belonging t~ one LOIBANGUTI LONDUROT, the father of both the respon<'!ent and appellant~• late father, _and thus the grandfather •f the appellants. The said LOIBANGUTI L01'iDUROT died a long time ago but was survived by many sons and daughters, including the respondent and the late father of the appellants. • • 0 ,./3 . I ' .3 It is common ground also that before the said LOIBANGUTI LONDUROT died, he distributed some of his land between his sons, .. . including the responde~t and the late father of the appellants. There is common ground also tha.t prior to the present dispute, appellants' father was involved in arother dispute concerning ownership of land in his locality. That case was tried and decided by Emaoi Primary Court as Civil Case No. 107 of 1968. It went on appeal to the District Court of Arusha District as Civil Appeal No. 12 of 1969 and to the High Court at Arusha as (PC) Civil Appeal No. 22 of 1970. The judgements of the Primary Court and High Court were produ~ed at the trial collectively as exhibits Pl. It is not in dispute between the parties that besides the present case, MELITA NAIKIMINJAL, (the first appellant in this case) has been involved in a criminal case, that is, Cri~inal Case No. 135 of 1989 for which he was convicted and fined. The record of the case was produced at the trial as exhibit P2. There is also no dispute between the parties to this ' J case that the present dispute has given rise to proceedings before the Arusha Land Tribunal which were still pending between the responnent and the late father of the appellants at the time of hearing of this case. The record of proceedings was produced as exhibit P3 at the trial. It is apparent from the proceedings both in· the Court al').t.i the two Courts below that the appellants contend that the piece of land in dispute belonged to their late father, who subsequently gave it to the appellants after the commencement of this case. It is part of the appellants I case that th.eir father's title to that land was confirmed by Courts of law in the • ' 4 Civil Case referred to in exhibit P1. The appellants further contend that the respondent has on several occasions trespassed into the appellants' land and cut down appellants' trees and banana plants. On the other hand, the respondent's case according to the proceedings in this Court and the two Courts below is that the piece of land in dispute does not belong to the appellants, but belongs in common to the sons of appellants' grandfather, .namely, LOIBANGUTI LONDUROT, who had set it aside as cnmmon pasture or grazing land for cattle of his many sons~ It is part of respondent's case that the iate father of ~he appellants was so troubh~some that LOIB:i..KGUTI LO!~T)UROT gave him his -separate pasture land as part of his patrimony, ~nd excluded him from the common pasture lanrl. Furthermore, it is respondent's case that the Civil Case adjudicated in exhibit P1 conce,rned land which is differPnt from the land in dispute in the recent casee In conclusion, respondent ccntends that t~e late father of the appellants has on divers occasions trespassen i~to the land in dispute and wrongfully planted trees th~rein. The first important point for consideration and decision, and which is the subject of ground number one in the Memorandum of appeal filed for the appellants, is whether the trial Court delivered its judgement, and if not, what are the legal consequences of the failure. Unfortunately, this issue was not raised by the appellants in the first appeal in the High Court. The issue is being raised for the first time before us in ground number one thus: •• 0 ./5 5 11 The Honourable Judge erred in law in not holding that as it is self-evident from the record that the trial Court did not pronounce the ju0gement al"d did not give due notice of day of judgement to parties and their Advocates there is no judgement in law". Obviously, the appellants cannot be heard to complain against the first appellate judge, as that ju~ge was not bound to decide the appeal on issues or matters not raised by the ·appellantso After all, both appellants were represented by experienced counsel and the judge was entitled to assume that any apparent error which has b~en omitted by counsel has been omitted for good reason. As it was stated in a slightly different context by the Court of Appeal for Eastern Africa in the case of f:'!.,WI_J::.:__~G/\F v ABED A. A.LGEREDI (1961) E.A. 777: 11 It may be that there is substance in Mr. Chaddah' s .contention, but, in my opinion, to allow the point to be taken for the first time on second app~al could be grossly unfair to the appellant. The point was never pleaded, was never in issue at th~ trial, and the relevant facts w2re never investigated. The written statement of de.fer.ce was drawn by, and the respon~ent ~as represented at the trial by, a counsel of known experience and ability. rt is difficult· to suppose that he would not have raised so obvious a matter unl~ss he was satisfied there was a good d~fence t~ it ••• ti 'I 6 We think that, al though the above cited statement was made in a slightly different context, the principle is the same. In the present case, counsel for appellants was involved in the preparation of the memorandum of appeal to thP. High Court. It must be remembered that the same Counsel represented the appellants at the trial. He also submitted a lengthy written suhmission in the first appeal. Counsel for the appellants had therefore every opportunity to raise the .issue concerning the judgement of the trial Court not being delivered, if infact it was not. Bearing in mind the expP.rience and ability of counsel for the appellants, we think i t would b~ most unfair to the respondent tq decide this case on this issue, when it was not raised in the first appeal. The second issue for consideration and decision is really the central issue in this case; and it is whether the land in dispute belonged exclusively to the·app2llants' late father, namely NAIKIMINJAL L0IBAl'1GUTI. The trial Court found in effect that the land in dispute did not belong to the appe~lantsr father, but was pasture or grazing land belonging in ccmmon usage to the 17 sons of LOIB!1NGUTI LONDUROT. The High Court generally concurred with the findings of the trial Court. The appellants want us to interfere with the findings of the two Courts below. Should we cto so? The law regarding the powers of an appellate Court to interfere with findings of a trial Court on matters of fact has long been established in East Africa as stated by the Court of Appeal for Eastern Africa in the case of PETERS v SUNDAY POST Ltd, (1958) E.;... 424. The law, which is adopted from England, is summarized as: ••o•/7 - .' 7 "Whilst an appellate court has jurisdiction to rev~ew the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial court has failed to. appreciate the weight or be3ring of circumstances admitted or proved, or has plainly gone wrong, the appellate court will not hesitate so to decide." The question that arises here is wheth~r the first appellate Court ought to have interfered with the fincing of the trial Court on the issue of ownership of the pi~ce. of land ir. dispute. The trial Court in resolving the issue of ownership relied on the evidence giv0n on both sides concerning the bbundaries and size of the land in question. The trial Court was of ·the view that the evictence on the side of the appellants was conflicting as to boundaries, size and use. It was on the basis of these contradictions or inconsistences in the evidence on the side of the appellants, who were then the plaintiffs, that the trial Court made its findings. The first appellate Court, approaching the evidence differently, also came to the snme conclusion. The learned first appellate judge, discounted the evictence given in support of the appellants on the basis that the late father of the appellants had taken no action to assert his rights Against the respondent , until he died; ond that the primary court magistrate (PW.3) who claimed to have once dealt with another dispute concerning the land in dispute, cannot be.relied upon to identify the land whi•~ is the subY,:!ct of the present case. Furthermore, the first 8 appellate judge relied on the evidence of the clan elder (OW. 3) who testified in fevour of the respondent's case. Like the trial Court, the first appellate judge discounted the relevancy of previous criminal proceedings referred to in exhibit P2~ Also, like the trial court, th2 first app2llate judge was of the view -that the land which was the subject of adjudication in exhibit P1 is not the same as the piece of land in dispute in this case. The appellants' complaint, as ri?.flected in the Memorandum of Appeal and the submissions made by learned counsel against the decision of the first anpellate Court, may be summed up as follows. First, the reasons used ·by thG first appellate Court in confirmi~g the decision of the trial Court are erroneous. Secondj th~ first appeilate judge wrongly concurred with the decision of .the trial Court without considering the entire record ot the .trial Court. With regard to the first point, we agree that the first appellate judge misconeeived th~ evidence concerni·n·g the conduct of the late father of the appellants in asserting his ~laim to the land in dispute. As pointed out earlier, this suit was commenced by appellants' father in July 1988, before the appellants entered the case in November 1988. It is thus not correct to say, as the first appellate juctge says in a part of her judgement that "if it were the same pi2ce of land., the late Naikiminjal Loibanguti would have sued for title against·the respondent defendant when he allegedly trespassed on the land in dispute in 1987 becaus€ at that time the land owner was still alive •••••• The fact that the late Naikiminjal had not •••• /9 j I .' .. • 9 institutect any action for recovery of land from the defendant indicates that apart from Nadooye, the dPfendant in exhibit P1, nobody else trespassed on the land of Ncikiminjal until he di1::d in 1989 in February". We however think that the learnE>d first appellate judge would have come to the same cor-clusion if she h3d properly directed herself on the evidence. We say so because, the mere fact of Naikiminjal instituting the present suit before he died, does not necessarily mean that the land currently in dispute, is the same as the one adjudicated in exhibit P1. After all, the partie.s are not the same in the two cases. In otherwords, there is no nexus between the-_land in exhibit P1 and· the piece of land which is the subj~ct of the present case. At to the second point, Counsel for the appellants submit that since the_record of the trial Court included exhibits P2 and P3 (that is the record of the criminal case against the late Naikiminjal Loibanguti and the proceedings before the Land Tribur.al) it was incumbent upon the first appellate judge, like ' t~e l~arned trial Resident Magistrate, to examine the contents of those exhibits b,1fore deciding the appeal. With due respect to lsarned counsel for the appellants, we do not think that it would have been proper for the first appellate judge to do so. We say so because, the exhibits though admitted at the trial, do not appear to have been used for any purpose permitted by law. This is aprare~t from the record of the trial proceedings. On the 13.03.90, Mr. Lobulu, Counsel for the arpellants, who were the plaintiffs then, is recorded to have told the Court: "Your Honour, I was to close my case but just for the record I requested that criminal case No. 135/89 be produced by a clerk •••• 11, ..• 10 . and also Regional Customary Tribunal Cas,2 No. 11/87. Unfortunately . the despatch clerk was away. I request she be given time to trace the fil2s, otherwise I have no more witness to call". The record f~rther s~ows that the two case records were produced by PW.7 and PW.8 on 8.08.90 respectively. The contents of those records ware however not ~ubsequently put to any of "the witnesses called for the defence and no opportunity was given t_o any witness to explain any alleged contradiction or inconsistency, if any. As stated by sir Charle~ Newbold, Presicl':'nt of the Court of Appeal for Eastern- Africa in th·e case of DAMOD,\R JINJ.,BHAI & CO. Ltd and .f,..!2£._t_l}_er vs. EUSTACE SIS/i.L ESTAT~~- Ltd. ( 1967) E. /,., p. 156: "While it is not clear from the i:ippeal r~cord why the record of the previous case was put in~ •• I consider that counsel would be entitled to refer to the e~idence of a witness in those proceedings for the purpose, but the sole purpose, of contradictihg or corroborating the evidence of the snme witness given in these proceedi- ngs ••• He would not however, be entitled to refer to evinence of any such witness in those prior proceedings as be,ing evidence of the truth of the statement made in those prior proceedi- ngs". Under the circumstances of the case before us, we are of the c6nsidered opinion that it would be improper, not only for the first appellate Court; but ·for the trial Court as well, to go on a secret search for contradictions, inconsistencies or corroborations in exhibits P2 a~d P3, after the conclusion of the hearing, without ••• • )11 r' ' -{ . ' .• . - 11 \I giving the witn~ss or witnPsses cohcerned OpDortunity to give explanc=ition. The other aspect of appellants• complaint concerning the first appellate judge's failure to consider the material presented at the trial, .sri ses specifically. from ground number 3 of the Memorandum of Appei:11 which reads: "The Honourable Judge ought to have given some indication as to her reasons for not subjecting the evidence of the Responde~t or his witnesses to analysis, scrutiny assessm0nt and evaluation and for prefc,:rring the evidence of the ·Rf-1sponoent ard his witnesses to thRt of the AppellAnts ar.d for overlooking all the ev,irlence that is in favour of the Appellants". We think with due respect to learned Coun~el for the ~ppella~ts, tha~ this complaint is baseless; It is apparent that the learned judge essentially had a full grasp of the case on both sideso This means, in our view, "that she must have considered all the relevant evidence and submissions on each side. As a matter of fact, she even reproduced at length some of the submissions made by counsel on both sides. Admittedly, the learned first appellate judge did not deal separately with each of the eight grounds of appeal contained in the Memorandum of Appeal filed in the High Court. we are hdwever of the considered opinion that an a?pellate court, so long as it gr~sps the essence of the case before it, has discretion to summarize the case and the grounds of appeal for purpbses of conciseness and clarity. This is what the learned first appellate judge did • • • • • /12 12 She stated in her judgP.ment, "The issue is whether the appF-llants plaintiffs established their case on a balance of probabilities". .,, We think she was correct. This case really turns on the weight of evidence on both sides. Bearing in mind the discrepancies pointed out by th~ trial Court in the evidence adduced on the appellants' side, the appellants as plaintiffs cannot be said to have discharged their burnen of provir.g their case on a balance of probabilitiP.s. It follows therefore that this appeal must fail in its entirety with costs and we orcter accordingly. DATED at DAR ES SALAM·1 this 3:r-d day of .August, 1995. F.L. NYI\LALI CHIEF JUSTICE L. M. Mil.KAME JUSTICE OF'APPEAL R.H. KISANGA JU ~;TICE OF .APPEAL I certify that this is a true copy of the original. /). /2 ( M.S •.~ ) DEPUTY REGISTR!,R I I