BASIL MASARE v PETRO MICHAEL 1996 TLR 226 (HC)

 BASIL MASARE v PETRO MICHAEL 1996 TLR 226 (HC)

Court High Court of Tanzania - Arusha

Judge Mroso J

E

CIVIL APPEAL NO. 30 OF 1994

27 June, 1995 F

Flynote

Land Law - Land cultivated in common - Shamba - ownership of.

Civil Practice and Procedure - Appeal - Legislature's various use of the words

`petition' and `memorandum' - Whether significant difference when referring to

grounds of appeal to a higher G court - Section 25(3) of the Magistrates' Courts Act,

1984, and the Civil and Criminal Procedure Codes of 1966 and 1985 respectively.

-Headnote

The Respondent brought an action in the Primary Court at Maguga to recover about

two acres of land which the Appellant had allegedly wrongfully expropriated in 1990.

The Respondent failed in that action and duly appealed successfully to the District

Court. It found that the parties had cultivated the disputed shamba in common until

1977 when the arrangement between them ceased and `the land remained the

property of the Appellant'.

It is against the District Court's allowing the appeal that the Appellant appeals to this

Court.

1996 TLR p227

Held: A

(i) The trial court, which visited the disputed shamba and found that it

belonged to the Appellant, was correct in so finding and there were no valid reasons

upon which the District Court could have reversed the trial court's decision.

(ii) If an appellant used the word `memorandum' instead of `petition' in

connection B with his grounds of appeal in a case originating in the primary court,

that alone cannot render the appeal incompetent since that would be `making a

mountain out of a mouse mound'.

(iii) The appeal is allowed with costs, and the trial court's decision is

restored. C

Case Information

Ordered accordingly.

Cases referred to:

1. Naigise Likimbalunye v Naibele Loibuke Civil Appeal No 65 of 1993

(unreported) D

[zJDz]Judgment

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

1996 TLR p228

MROSO J

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.

1996 TLR p229

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.

1996 TLR p229

F