Mroso J:
The appellant was the successful party in the Primary Court at Magugu but lost when the respondent appealed against that decision to the District Court. Aggrieved by the E loss of victory, he has appealed to this court to have the decision of the Primary Court restored.
The respondent had brought action in the Primary Court to recover about two acres of land which allegedly the appellant had wrongfully expropriated in 1990. The respondent's evidence before the trial court was that the appellant had invited him to cultivate the F disputed shamba in common and that they did so for two years. His witness Nyerei Mkuyu did not support the respondent on the contention that initially-presumably in 1974-the shamba was cultivated in common between the appellant and the respondent. His evidence was that he had been seeking the respondent cultivate the disputed G shamba between 1974 and 1990.
On the other hand, the appellant said in his evidence that he started to cultivate the shamba in dispute from 1974 and in 1976 he helped the respondent to acquire a piece of land to his north and each of them developed their respective shambas on his own. In H 1984 while he was away the respondent allegedly cultivated the appellant's shamba without his consent. The appellant could not confront the respondent until in 1989 because he was ill. The appellant was supported in his evidence by Siriri John and I Stephano Myombo. The trial Primary Court visited the locus inquo and after
considering the available evidence found that the disputed shamba belonged to the A appellant.
The first appellate court reversed the decision of the trial court on the basis that the parties had cultivated the disputed shamba in common until 1977 when the arrangement ceased and `The land remained the property of the appellant'. Further, that the B respondent (then appellant) has a house on the disputed shamba and lives in it.
It is apparent that the first appellate court misconstrued the evidence. The appellant never conceded that he cultivated the disputed shamba in common with the respondent. C Indeed, none of the witnesses of the respondent or of the appellant ever said the shamba was cultivated by the parties in common. Furthermore, the house which the first appellate court referred to is not in fact on the disputed shamba, as the sketch map drawn by the trial court clearly shows the house is on a shamba of the respondent over D which there is no dispute. It follows that there were no valid reasons for the first appellate court to reverse the decision of the trial court.
The respondent filed in this court a memorandum in reply to the appellant's appeal. One of the grounds against the appeal is that the ground of appeal were E entitled--`Memorandum of Appeal', instead of `Petition of Appeal'. It has been argued by the respondent that, for that reason, the appellant's appeal is incompetent. He cited a decision of this court (Munuo J) -- Naigise Likimbalunye v Naibele Loibuke (1) in which it was held that grounds of appeal in a case originating in the primary court which bear a F heading `Memorandum of Appeal' instead of the words `Petition of Appeal', which words are found in s 25(3) of the Magistrates' Courts Act, 1984, is incompetent and must be struck out.
With due respect to my colleague, I am unable to agree. I am aware that the Magistrates' G Courts Act, 1984 uses the words `Petition of Appeal' rather than `Memorandum of Appeal' when referring to grounds of appeal in a case originating in the primary court. The Civil Procedure Code, 1966 on the other hand uses the words `Memorandum of Appeal' when referring to grounds of appeal in a case originating from the District Court H or the Court of Resident Magistrate. The Criminal Procedure Code, 1985 uses the words `petition of appeal' when referring to grounds of appeal in a case originating in the District Court or the Court of Resident Magistrate. The Tanzania Court of Appeal Rules uses the words `Memorandum of Appeal' regarding the grounds of appeal in both I criminal and civil appeals to the Court of Appeal of Tanzania.
What substantive distinction can one make from the use of the words `petition' or A `memorandum' when referring to grounds of appeal to a higher court? I must confess, I can see no such distinction although I would say that it would be preferable if an intending appellant uses the word adopted by the legislature for the relevant type of B appeal. In my view, if an appellant uses the word `memorandum' instead of the word `petition' in connection with his grounds of appeal in a case originating in the primary court, that alone cannot render the appeal incompetent. That would be making a mountain out of a mouse mound unnecessarily. C
The second objection to the appeal is that the grounds of appeal are not accompanied by a copy of the judgment appealed against. This grounds of appeal are in fact accompanied by an irrelevant copy of judgment. That was careless of the appellant but it does not render the appeal incompetent because the law, section 25 of the Magistrates' D Courts Act, 1984, makes not requirement for the petition of appeal to be accompanied by a copy of the judgment or even of the decree appealed against.
For the reasons already given, the appeal is allowed. The decision of the first appellate court is quashed and set aside. The decision of the trial primary court is restored. The E appellant to get his costs.
F