JOSEPH LOMAYANI AND OTHERS v MELEKIZEDECK MICHAEL 1997 TLR 192 (HC)

 JOSEPH LOMAYANI AND OTHERS v MELEKIZEDECK MICHAEL 1997 TLR 192 (HC)

Court High Court of Tanzania - Arusha

Judge Mroso J

B

CIVIL APPEAL 11 OF 1997

21 July 1997

Flynote

C Civil Practice and Procedure - Appeals - Duty of appellate court where there is no

judgment

-Headnote

The appellant appealed to the High Court from a decision of the district court which

had ordered that a case which originated in the trial primary court and which was

before the district court on appeal D be tried de novo. The dispute between the

parties concerned an alleged encroachment and after both parties had called witnesses

the trial court visited the scene of the alleged encroachment and drew a sketch of it.

The court decided the case mainly on the basis of its own observations during the visit

to the disputed land. The district court held that the trial court had not followed the

correct procedure regarding the visit to a locus in quo and nullified the proceedings

and ordered a trial de E novo. On appeal,

Held:

(i) That the trial court had not so much failed to observe the necessary

guidelines but rather that it had failed to discuss the evidence which had been

adduced by the parties and given F a judgment based on that evidence. The

substantive complaint was that there was no judgment in law from the primary court;

(ii) If the appellate court believed that there was no judgment at all it

should have nullified the judgment and remitted the case to the primary court with a

direction that a judgment based on all the evidence which was before it be written;

G (iii) If the appellate court found that there was a judgment but that it was

unsatisfactory then it should have proceeded to consider the other grounds of appeal

and evaluate the evidence and come to its own conclusion;

H (iv) The court cautioned that an order for a trial de novo should only be

made in the clearest of situations.

Case Information

Order accordingly.

Case referred to:

I 1. Nizar M H Ladak v Gulamali Fazal Jan Mohamed [1980] TLR 29

Sabaya for the appellants.

1997 TLR p193

[zJDz]Judgment

Mroso J: A

This is an appeal against an order of the District Court (Mbuge DM) as a first appellate

court that the case which originated in the trial primary court and which was before

the district court on appeal be tried de novo. Let me give a brief background to the

present appeal. B

The appellants brought a suit against the respondent in the primary court at West

Meru claiming that the respondent had encroached on an area measuring about three

acres of their land. Both sides called witnesses and the trial Court visited the locus in

quo and drew a sketch plan of it. C

In a very brief judgment the trial primary court apparently decided the case mainly

on the basis of its observations during the visit to the disputed land.

The respondent was aggrieved by that decision and appealed to the district court by

filing five D grounds of appeal. The district magistrate of the first appellate court did

not discuss any of the grounds of appeal.

Instead it observed that the trial Court did not follow guidelines contained in the case

of Nizar M H Ladak v Gulamali Fazal Jan Mohamed (1) regarding the visit to a locus

in quo by a court. Without E specifically saying so the first appellate court proceeded

to nullify the proceedings and decision of the trial Court. It then ordered a trial de

novo.

The appellants have filed three grounds of appeal and at the hearing the respective

counsel for the parties asked and were granted leave to file written submissions. Mr

Sabaya, learned advocate for F the appellants, did not meet the deadline for filing his

submissions but he explained in writing his failure to beat the deadline and I have

accepted his explanation for his late filing.

The first ground of appeal is that it was unnecessary for the first appellate court to

order a trial de G novo because there was enough evidence on which the case could

have been decided in favour of the appellants. The second ground of appeal is that

having nullified the proceedings in the trial court, it was not necessary to a order a

trial de novo. The first appellate court should have left it open for H the appellants

to choose to institute fresh proceedings. Let me hasten to remark that it was only the

proceedings (and the decision) which were apparently nullified and not the case

which was filed in the primary court, that was why the case which was still in the

primary court was to be tried de novo. If the whole of the case had been I

1997 TLR p194

MROSO J

A nullified there would be nothing to be tried de novo. A fresh case would have to

be filed in court.

The third ground of appeal is the error by the trial court in not taking notes when it

visited the locus in quo was not so fundamental as to justify the order of a trial de

novo.

B The first appellate court had the power to evaluate the recorded evidence and

come to its own conclusion.

It is plain that the trial court did not discuss the relationly lengthy evidence it

recorded but appeared to base its decision substantially on its observations at the locus

in quo, which really means that it C relied mainly on its own `evidence' rather than

on the evidence given on oath by the parties and their respective witness. It could

therefore be said with justification that there was no proper judgment from the

primary court. So, the crucial point really was not so much that the trial court D

failed to observe the guidelines regarding a visit to a locus in quo as contained in the

Nizar Ladak case (supra) which was cited by the district magistrate and the learned

counsel in their respective written submissions but the glaring failure by the trial

Court to discuss the evidence which was adduced by the parties and giving a decision

based on that evidence. There is little doubt that there was enough evidence from

both sides in the case on which a judgment and decision could have E been based.

Indeed, the respondent in his grounds of appeal which he filed on the district court

did not complain against the trial court in visiting the disputed land or for its failure

to take notes of what was observed during the visit and asking the parties to

comment, if they wished, on such notes. His F substantive complaint is that there

was no judgment in law from the primary court.

What then should the first appellate court have done in such circumstances?

First, it would have to consider the ground of appeal alleging that the primary court

judgment was no G judgment at all. If it agreed with that ground of appeal it would

nullify the supposed judgment and remit the case to the primary court with a

direction that a judgment based on all the evidence which was before the trial court

be written.

H However, if the first appellant court found that there was a primary court

judgment but that it was unsatisfactory then it would proceed to consider the other

grounds of appeal. In doing so, as a first appellate court, it would be entitled to

evaluate the entire evidence and come to its own conclusion. A dissatisfied party

could then appeal to the High Court.

I I would agree with the appellants that the non-observance by the trial court of the

guide lines in the Nizar Ladak case (supra) did not

1997 TLR p195

justify nullification of the entire proceedings before the trial court and the order for a

trial de novo. A For that reason I quash and set aside the judgment of the district

court and direct the appellate magistrate to consider first the ground of appeal

whether the primary court judgment was or was not a judgment in law and then

proceed as I have indicated in this judgment. B

I would like to caution the district court as a first appellate court that an order for a

trial de novo should only be made in the clearest of situations and where it is

unavoidable. This is because a fresh trial entails the recalling of witnesses who may or

may no longer be available, not to say that the parties are made to incur expenses and

expend their time all over again. C

If I have not considered all the grounds of the appeal and the learned submissions of

counsel in detail it is not out of disrespect or that they are not worthy but because I

feel that it is premature in view of the direction to the district court which I made

above. D

The parties to bear their own costs so far here and in the two courts below.

1997 TLR p195

E