IN THE COURT OF APPEAL OF TANZANIA
(CORAM: LUBUVA, J.A; MROSO, J.A. And NSEKELA, J.A.)
CIVIL APPEAL NO.5 OF 1999
DAMSON NDAWEKA …………………. APPELLANT
ALLY SAIDI MTERA …………………. RESPONDENT
(Appeal from the Judgment and decree of the High Court of Tanzania At Moshi)
dated the 15th day of January, 1998 in
Civil Appeal No. 38 of 1993
JUDGMENT OF THE COURT
This is a second appeal. The case arises from a dispute involving the appellant and the respondent over the suit land. In the Court of Resident Magistrate at Moshi the appellant, Damas Ndaweka, sued the respondent for among other things, a declaration that the appellant is the lawful owner of the disputed land.
The trial magistrate found the witnesses supporting the case for the respondent credible, he dismissed the suit. On appeal to the High Court, the appellant was also unsuccessful. Dismissing the appeal, the learned judge of the first appellate high Court (Munuo, J. as she then was) held that the trial court had properly determined the suit on the evidence laid before it. Consequently, the appeal was dismissed. Still dissatisfied, the appellant has preferred this appeal.
In this appeal, Mr. D’Souza, learned counsel, appeared for the appellant. On the other hand, the respondent had the service of Mr. Chadha, learned counsel who had throughout represented him at the trial court and the High Court on first appeal.
The final amended grounds of appeal filed by Mr. D’Souza were as follows:
1. The 1st appellate court erred in law in not in effect considering and weighing the evidence for both sides in the case and not testing the finding of the trial court against the evidence.
2. The 1st appellate court erred in law in not considering and giving its decision on the grounds of appeal one by one or in combination.
3. The 1st appellate court erred in law in upholding a decision of the trial magistrate who had failed to appreciate the weight, bearing and circumstances admitted or proved.
Before dealing with these grounds of appeal, we think it is desirable to preface the judgment with a brief outline of the salient features of the case. As pointed out earlier, the suit involved a dispute over a piece of land at Mkonga, Pumwani area Moshi District. According to the appellant, the six acre piece of land belonged to him through inheritance from his father Valendine Ndaweka (PW2) in 1980. In 1955, PW2 was allocated the land by the Village headman, Michel Kifai Msaki (PW4). From 1980, the appellant had been cultivating the land until 1987 when the respondent trespassed into the land.
On the other hand the respondent (DW1) claimed that the suit land consisting of about 5 acres, was part of 18 acres of land which he inherited from his late father, Mzee Mtera in 1985. He was supported in his evidence by his neighbours, Kalima Lugezo (DW2), Fidelis Bakari Chalube (DW3), Joseph Bakari Kaduri (DW4), August Omari (DW5) and Mwajabu Mtera (DW6), the second wife of his late father, Mzee Mtera.
On scale, the trial magistrate found the case for the respondent more credible than that of the appellant. In the view of the magistrate, the defendant’s witnesses who are neighbours of the respondent, independent and credible. Consequently, and as observed earlier, the trial magistrate entered judgment in favour of the respondent. On appeal to the High Court, the learned judge dismissed the appeal.
Arguing on ground one, Mr. D’Souza, learned counsel strongly criticized the learned judge on first appeal for dealing with the matter before her in what he called very superficial manner. In the process, he charged that the judge fell victim of the following errors: First, the learned judge did not consider and weigh the evidence for both side, in the case and testing the finding of the trial court against the evidence. This, he said was a serious error in law. From the record, he went on, it is clear that the learned judge on first appeal to use Mr. D’Souza’s own language, merely rubber stamped the trial court’s finding and decision. That is that the judge did not make an assessment of the evidence adduced at the trial and test such evidence against the finding of the trial court. For instance, Mr. D’Sauza further urged, the evidence of PW4, a village headman, the local authority in the area who allocated the land in dispute to the father of the appellant was not considered by the judge on first appeal. Had this evidence been considered together with the rest of the evidence for the plaintiff, the appellant, the judge would have found that the appellant’s case was more probable and credible than that of the defence, he urged. He said it was important to consider the evidence of PW4 especially so in this case which was highly contentious and its decision hinged on the credibility of the witnesses. For the proposition that the first High Court as the appellate court was duty bound to weigh and evaluate the evidence for both the appellant as against that for the respondent, Mr. D’Souza cited the cases of Ruwala V R  E.A 570 and Dinkerai Ramkrishua Pandya V R  EA 336.
Furthermore, Mr. D’Sauza said, as the Exhibits P1, P2, P3 and D1 had a great bearing on the credibility of the witnesses, it was important for the judge to consider them. These documents, it is to be observed, relate to the supplementary records supplied by counsel for both parties. They are part of the proceedings in Moshi Urban Primary Court Civil Case No. 30 of 1987. It is further to be observed that the proceedings were quashed by the High Court and a trial de novo was ordered. Then Moshi RM Civil Case no. 74 of 1999, the original case subject of this appeal was instituted. Had the judge considered these Exhibits (P1, P2, P3 and D1) Mr. D’Sauza submitted that she would have found that the evidence in support of the appellant was more preferable than that of the respondent. In his submission on Mr. D’Sauza referred to the cases of Okero V R  EA 32, Peter V Sunday Post  EA 424 and Ali Ahmed Amgara V R  EA 654.
The second point of complaint by Mr. D’Souza was that the learned judge misdirected herself in holding that the respondent’s lie in the affidavit in support of the application for stay of execution that his family depended on the suitland for survival does not negate his titled over the land. He said it was a misdirection because once it was accepted that the respondent had lied, that was sufficient ground for an adverse inference against the credibility of the respondent. Third, Mr. D’Sauza submitted that at the time of the allocation of the suitland in 1955 both the defendant and most of his witnesses, DW2, DW3, DW4 and DW5 were still young persons. In that case, he said, it is highly improbable that they were infact there to see what was happening. In his view, for such young persons, it is not the normal practice to involve them in such serious matters of this kind. For this reason, Mr. D’Souza maintained that their evidence should not have been considered in preference for that in support of the appellant.
Mr. D’Souza abandoned ground one. Also he did not wish to argue on ground 3 which he thought had been covered in his submissions on ground one. He urged the Court to step into the shoes of the High Court, the first appellate court and do what it ought to have done. That is to analyse and evaluate the evidence for the appellant and test it against that of the respondent and the trial court’s finding. With regard to ground one, it was generally accepted by counsel for both parties that the determination of the case turned on the credibility of the witnesses. As Mr. Chadha, learned counsel for the respondent, submitted, it is borne, out from the record that each of the counsel both for parties in their written submissions claimed that on the balance of probabilities, his case was more credible and probable than the others. It was therefore a question of finding of fact on the part of the trial magistrate who had the advantage of hearing, seeing the witnesses and assessing their credibility. In this case, Mr. Chadha firmly countering Mr. D’Sauza’s submission, stated that the learned judge considered and weighed the evidence for both sides. As it is strongly contended that the first appellate court did not consider and weigh the evidence for both sides in the case and did not test the finding of the trial court against the evidence, it is desirable to set out from the record how the learned judge went about the matter: In summary form, having outlined the submissions of counsel for both parties, the judge said:
“The issue is who has title to the suitland.
The evidence of the six defence witnesses consistently established the defendant’s ownership of the land in dispute which land was originally allocated to the defendant’s late father in 1953. The Respondent’s lie that his family depends on the suitland for survival does not negate his title over the material land. The trial court properly determined the suit on the adduced evidence. This appeal is therefore devoid of merit. I find no cause to fault the decision of the trial court.
Accordingly the appeal is dismissed with costs to the respondent.”
On the other hand, the record of the trial magistrate dealt with both sides of the case. Having analysed the evidence of the various witnesses, with regard to the appellant, the magistrate said:
“Going to the constitution of witnesses, we find that PW.4 and PW.2 are son and father respectively and are geared to be sailing in the boat and are definitely interested parties. PW.3 went contrary to what PW.2 and PW.4 said thus joining hands in material particulars with the defence. PW.4 himself is the cause of the whole mess.
As regards the respondent, the magistrate state also stated:
“On the part of the defence there are three witnesses, DW.2, DW and DW.4 who are neighbours of the defendant and are positive that they saw the defendant’s father cultivating the land in issue and there after the defendant inherited it. These are independent witnesses. They are outsiders. They ought to be relied on despite some interpolations by DW3 or the question of finishing school.”
The trial magistrate then concluded:
“In our instance case that rule falls squarely in all fours. I am bound to give due weight to the independent witnesses of the defendant’s neighbours and find them to be telling nothing but the truth. To the contrary the plaintiff did not bring independent witnesses as pointed out earlier. At the end of the day and due to the foregone reasons I find the defendant to be the rightful owner of the land in dispute.”
From these extracts, it appears to us that the trial magistrate analysed evaluated and considered the evidence for both the appellant (the original plaintiff) and the respondent (defendant). It is also borne out from the record that after the evaluation and consideration of the evidence, the trial magistrate came to the view that the respondent’s case was more credible than that of the plaintiff. As a result, judgment was entered for the respondent.
On the other hand, as regards the first appellate High Court, the extract above reveals a different picture. From it we are respectively in agreement with Mr. D’Souza, that the learned judge on first appeal scantly addressed, analysed and weighed the evidence for both sides and tested the finding of the trial court against such evidence. As a matter of fact, the learned judge hardly analysed the evidence of Michael Kifai Msaki (PW4), a village headman. This was an important local authority responsible for the allocation of land in the area including the suitland. The High Court, as the first appellate court was bound to analyse the evidence for both sides with a view to satisfy itself that the finding of the trial court was justified on the evidence. As happened in this case, we think as correctly submitted by Mr. D’Sauza, it was an error on the part of the learned judge on first appeal in not considering and weighing the evidence for both sides. In Dinkerai Ramkrishna Pandya (supra), among other things, the complaint was that the first appellate court’s judgment was tainted by a fundamental misdirection in that its failed to appreciate its duty in law and virtually did no more than analyse and re-state the stages by which the trial magistrate had arrived at his decision to convict.
The Court of Appeal for Eastern Africa inter alia stated:
“That the first appellate court erred in law in that it had not treated the evidence as a whole to that fresh and exhaustive scrutiny which the appellant was entitled to expect …”.
The court after a careful review of the trial record came to the conclusion that the trial court did form an unbalanced view of the evidence and reached a decision which was insupportable if the defence was duly taken into account. The appeal was allowed.
In Ruwala (supra), a case from the High Court of Uganda, the Court of Appeal for Eastern Africa had another occasion to underscore the fact that the first appellate court has a duty to consider and evaluate evidence. Here, unlike in Pandya, the Court dismissed the appeal holding that:
“The High Court had carefully considered and evaluated the facts in all respects before confirming the findings of the magistrate and the correctness of those findings was not open to argument”.
In this case however, as a second appellate court, the Court showed its reluctancy in permitting arguments on findings of facts when it stated:
…if in future attempts are made to raise questions of fact before us on second appeal under the principles of Pandyas’ case, we shall before permitting any general arguments on the facts addressed to us require first to be satisfied that those principles are properly applicable to the case in question.
In the instant case, the learned judge on first appeal having failed to treat the evidence as a whole and weigh it against the finding of the trial court, we shall step into the showes of the High Court to do what it ought to have done. From our scrutiny of the trial courts’ record, it is the respondents (DW1) case that he got the suitland from his late father. That the land was allocated to his late father in 1953 by the village headman Michael Kifai Msaki (PW4). On this, the respondent is supported in Exhibit D1 by PW4 who states that the respondent’s father was one of the people to whom he allocated land in 1953. Furthermore, the evidence of Kalima Lugenzo (DW2) a labourer of the respondent’s father at the suitland, Fidelis Bakari Chelumbe (DW3) and Joseph Bakari Kaduri (DW4), neighbours to the respondent’s disputed shamba is also consistent with and supportive of the respondent’s case. DW5 and DW6, the second wife of the respondent’s father also support the defendant’s case.
On the other hand, an analysis of the evidence in support of the appellant reveals the following picture the appellant claimed to have inherited the disputed land from his father Valentine Ndeweka (PW.2) who in turn asserted that the land was allocated to him in 1955 by PW4. It is to be observed that while in Exhibit D1 PW4 stated that he allocated the suitland to PW2 and the respondent’s father in 1953, but his evidence in-chief at the trial proceedings, subject of this appeal, he said the allocation was done in 1955. This is not without significance, the allocation was either done in 1953 or 1955, it cannot be both. It does not matter whether PW4 was
testifying during the trial proceedings, subject of the appeal or during previous proceedings in the primary court as reflected in Exhibit D1. Both PW3 and PW4 also stated in their evidence that the suitland was allocated to the appellant in 1955. It is also to be observed that PW3 admits that the respondents’ father, Mtera was in occupation of the land since 1953, yet he said in his evidence that Mtera was allocated another land in 1955, which is the disputed land. If there was a second allocation exercise carried out in 1955 as PW3 claimed, PW4 did not say so. Furthermore, PW3 vacillates in his evidence on who between the respondent’s father and PW2 was allocated the land earlier: Finally, it is also apparent that the witnesses for the appellant (PW1, PW2, PW3, PW4) are not certain on the boundaries and location of the land in dispute.
Therefore on balance, on our own evaluation and weighing of the evidence for both sides, we are with respect, in agreement with the trial magistrate’s finding that the respondent’s case was more credible and probable than that of the appellant. We are also of the view that had the learned first appellate judge considered and evaluated the evidence for both sides and weighed it against the finding of the trial court, she would have come to the same conclusion in support of the trial magistrates’ finding. In that light, we think, the principle in Pandya’s case where the Court interfered on a finding of fact which had the first appellate court considered the trial court’s finding was insupportable. In this case, had the judge considered the evidence as a whole still the finding of the trial magistrate was, as we have found, supportable. For these reasons, ground one fails.
As the decision of the case turned on the credibility of the witnesses, this ground alone is, in our view, sufficient to dispose of this appeal. We need not therefore be delayed in the other two points which were argued by Mr. D’Souza briefly though. Mr. D’Souza had urged that the learned judge misdirected herself on the fact that the respondent had told lies in Exhibit P2 that his family depended on the suitland. The misdirection Mr. D’Sauza stressed was that the judge should have looked at the respondent’s lie in relation to the credibility of his evidence. We agree with Mr. Chadha that it may well be that it is not true that the respondent’s family did not wholly depend on the suitland for its existence as stated in Exhibit P2. That however, does not detract from the central issue in the case that on the totality of the evidence, there was, as found by the trial court, credible evidence in support of the respondent’s claim of ownership over the suitland. This, we think was the import of the learned judge’s observation on the point.
Finally, we find no merit in Mr. D’Souza’s submissions that the witnesses in support of the respondent’s case being young persons not much weight should be attached to their evidence. It is possible that these witnesses were young at the time, but with respect, they testified on what they knew their age notwithstanding. We find this, as no ground for discrediting these witnesses.
All in all therefore, for the foregoing reasons, we find no merit in the appeal. It is dismissed with costs.
DATED AT ARUSHA THIS DAY OF MAY, 2003.
JUSTICE OF APPEAL
JUSTICE OF APPEAL
JUSTICE OF APPEAL