Court name
Court of Appeal of Tanzania

Morandi Rutakyamirwa vs Petro Joseph () [1990] TZCA 9 (22 June 1990);

Law report citations
1990 TLR 49 (TZCA)
Media neutral citation
[1990] TZCA 9

Nyalali, C.J., Makame and Ramadhani, JJ.A.: The Respondent Petro Joseph instituted a suit in the Primary E Court at Katerero in Bukoba District on the 21st September 1983 against two persons, that is, Wilbrod Joseph, who was the First Defendant, and the appellant, that is, Morandi Rutakyamirwa, who was the Second Defendant, for recovery of possession of a piece of land situated in Rwagati locality in Bukoba District. As the First Defendant F could not be traced, the suit proceeded against the appellant, and was successful. The appellant was aggrieved by that decision and he appealed to the District Court at Bukoba. That court overturned the decision of the trial Primary Court and gave judgment for the appellant. Predictably in cases of this nature from Bukoba District, the G respondent in turn appealed to the High Court at Mwanza. That court, Munyera J., overturned the decision of the District Court and restored the decision of the trial Primary Court. The appellant was also aggrieved by the decision of High Court, and he sought to appeal to this court by asking the High Court to certify a point or points of law H involved in the intended appeal in terms of section 5 (2)(c) of the Appellate Jurisdiction Act 1979.
The High Court, Moshi, J., certified as prayed, hence this appeal. Mr. F. Rutakyamirwa appeared before us for the appellant as a guardian appointed by a judge of this court, whereas Mr. J.S. Rweyemamu, learned advocate, I appeared for the respondent. The

NYALALI CJ, MAKAME JJA and RAMADHANI JJA
Memorandum of appeal filed in this appeal contains three grounds as follows: A
1. The learned judged erred in law by disregarding the explicit provisions of the law relating to the limitation of actions and in not holding that the action by the respondent was time-barred. B
2. The learned judged erred in law by not holding that the learned District Magistrate was justified in law in taking additional evidence. C
3. The learned judged erred in law in not taking into account the additional evidence taken by the District Court.
From the proceedings in the three courts below the following matters of fact appear to have been established. The D appellant was at the time material to this case in occupation of the land in question by the appellant, one Wilbrod Joseph, that is the First Defendant, who is a brother of the respondent, occupied it. The respondent and the said Wilbrod Joseph are sons of the late Joseph Mjunangoma, and are members of the Abainda clan. The appellant is not a member of that clan, to which the land in dispute belongs, but is a member of the Mjubu Clan and a blood E brother of the late Joseph Mjunangoma. Furthermore it was established by the courts below that while the said Wilbrod Joseph was in occupation of the land in dispute, he mortgaged the land to raise some money on four different occasions, and that the appellant advanced some money to him to enable him to redeem it. Thereafter on F the last occasion, the appellant entered into occupation of the land, and the said Wilbrod Joseph vacated it and went away. He has never been seen or heard of ever since. It was established in the trial Primary Court that the appellant did not buy the land in dispute from the said Wilbrod Joseph but merely assisted the latter to redeem it. G The District Court however, after purportedly taking additional evidence on appeal, concluded that the said Wilbrod Joseph sold the land in question to the appellant on the last occasion and that the transaction was recorded in a document. This conclusion was one of the basis which led the District Court to overturn the decision of the trial H Primary Court.
The other basis which led the District Court to overturn the decision of the trial Primary Court, concerns the Law of Limitation. The District Court found that the appellant had been in occupation of the land in dispute for the period of 15 years, and therefore held that the suit for recovery of possession of the land was time-barred by virtue of the I

NYALALI CJ, MAKAME JJA and RAMADHANI JJA
A provisions of rule 2 and paragraph (6) of the Schedule to The Customary Law (Limitation of Proceedings) Rules, 1963 - Government Notice No. 311 published on 29th May 1964 - which provides for a limitation period of 12 years.
B As already mentioned, subsequently the High Court overturned the decision of the District Court and restored that of the trial Primary Court. The High Court, Munyera J., was of the view that the District Court was wrong in acting on matters which were not raised or dealt with in the trial Primary Court, that is, the additional evidence purportedly taken by the District Court, and the matter of Limitation.
C It is apparent from the record of proceedings that the basis of the finding by the District Court that the appellant had bought the land in dispute from the said Wilbrod Joseph was solely the submissions made by the appellant in the course of the appeal in the District Court. Mr. Rweyemamu, learned advocate for the respondent, contends to D the effect that such submission are not and cannot be treated as evidence. Mr. Rutakyamirwa concedes the point. We, on our part, concur and find that submissions made by a party to an appeal in support of grounds of appeal, are not evidence but are arguments on the fact and the law raised before the court. Such submissions are made E without oath or affirmation, and the party making them is not subject to cross-examination by his opponent. Since, apart from these submissions, there was nothing else by way of evidence upon which the District Court could have properly found that the appellant had bought the land in question, it follows that the finding of the trial Primary Court F that there was no sale of the land in question, cannot be faulted.
We now come to the issue of Limitation. The finding of the District Court that the appellant had been in occupation of the land in dispute for a period of 15 years was based solely on the information contained in the submissions G made by the appellant in support of his grounds of appeal. Since, as already stated, submissions are not evidence, it follows that they have to be disregarded on this point. Mr. Rweyemamu, learned advocate, also contends to the effect that the Memorandum of Appeal is similarly not evidence. Mr. Rutakyamirwa concedes. We, on our part, H concur and find that a memorandum of appeal is not evidence but is purely a statement of the grounds upon which the appeal is based. It follows therefore that there was no evidence whatsoever to support the finding of 15 years' occupation of the land by the appellant.
I The only material which can be used to determine the period of occupation of the land by the appellant is to be found in the pleadings.

NYALALI CJ, MAKAME JJA and RAMADHANI JJA
In his statement of claim in the Primary Court, the respondent admitted that by the 20th January 1971, the land was A already sold to the appellant, and attempts were made to redeem it. It thus seems that the appellant had been in occupation of the land in dispute for a period of 12 years and some 8 months by the time the suit was instituted in the Primary Court. Does this mean that the respondent is time-barred in redeeming the clan land? Undoubtedly the B period of limitation is 12 years as stated by this court in the case of Elizeus Retakubwa v Jason Angelo (Civ. App. No.21 of 1987 - not yet reported). But there is an exception provided under Rule 3 sub-rule (4) of The Customary Law (Limitation of Proceedings) Rules 1963, which states: C
The court may in its discretion admit any proceedings after the expiration of the period of Limitation, if it is satisfied that the person bringing such proceedings was unable for sufficient cause to bring the proceedings earlier. D
Mr. Rweyemamu has submitted to us that the delay of 8 months or so in instituting this suit after the expiration of the period of 12 years, has been due to the conduct of the appellant who has been prevaricating by suggesting to the E respondent that he was willing to settle amicably out of court as soon as the said Wilbrod Joseph turned up. It is apparent from the appellant's evidence adduced in the trial Primary Court that he has continued to protest his willingness to hand back the land amicably, even without payment as soon as the said Wilbrod Joseph appears. We F are thus satisfied that the respondent has been late by 8 months or so in instituting this suit in the Primary Court because of the appellant' s conduct. We are of the view that this conduct of the appellant constitutes sufficient cause for the Primary Court to use its discretion to admit the proceedings after the expiration of the period of 12 G years in terms of sub-rule (4) of Rule 3 above mentioned. The trial court was therefore correct in entertaining the suit.
We therefore dismiss the appeal with costs in this court and the courts below, with liberty as stated by the trial H Primary Court for the appellant to claim compensation for any unexhausted improvements made on the land prior to the institution of the suit.
Appeal dismissed. I

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