ARCHARD v ASTERIA MULWANI AND THOBIAS TEGAMAISHO 1992 TLR 129 (CA)

 

ARCHARD v ASTERIA MULWANI AND THOBIAS TEGAMAISHO 1992 TLR 129 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Omar JJA, Ramadhani JJA, Mapigano Ag. JA

F

9 June 1992

Flynote

Customary Law - Bahaya Customary law - Whether a woman can sell clan land. G

Civil Practice and Procedure - Powers of the High Court - Whether the High Court

can make any decision or order that could be made by the court of first instance. H

-Headnote

The first respondent, a woman, sold clan land to the second respondent who did not

belong to the same clan. It was not contested that the first respondent being a woman

could not, in Bahaya customary law, dispose of clan land. The appellant clan member,

I sued both respondents for recovery of the said clan land in

1992 TLR p130

RAMADHANI JJA, OMAR JJA, MAPIGANO Ag, JA

Kamachumu Primary Court. The court nullified the sale and gave the land to the A

appellant. The two respondents appealed separately to the District Court of Muleba

which gave contradictory judgment. The appellant appealed to the High Court which

set aside the District Court's decision, restored that of the Primary Court with

justification that the disputed land be restored to the clan and not the appellant in

person. The B appeallant appealed to the Court of Appeal arguing that the High

Court erred in rectifying the judgment of the Primary Court.

Held: Under section 29 (c) of the Magistrate's Courts Act of 1984 the High Court C

has powers to make any decision or order which might have been made by the court

of first instance.

Case Information

Appeal dismissed. D

Rweyemamu, for the Appellant

Augustino Tegamaisho appeared with power of Attorney on behalf of the first

respondent

[zJDz]Judgment

Ramadhani and Omar, JJ.A. and Mapigano, Ag. J.A.: It was not in dispute that E the

first respondent, Asteria Mulwani, sold some clan land to the second respondent,

Thobias Tegamaisho, who though a member of the larger family does not belong to

the same clan or Ihiga as they call it in Bukoba. It was also not contested that the first

respondent being a woman could not in Bahaya customary law dispose of clan land. F

A woman has the right of possessing and utilizing clan land for the duration of her

life. The appellant was aggrieved by that sale by the first respondent who is his

paternal aunt. The appellant filed a suit in the Primary Court of Kamachumu and

sought to nullify that G sale and restore the land to the clan.

The trial court nullified the sale and ordered that "shamba lirudi mikononi mwa

mdai". That is: the land to revert into the hands of the plaintiff (now the appellant).

The respondents were aggrieved and each appealed separately. Thus there were Civil

Appeal No. 52/86 and Civil Appeal No. 53/86 before the District Court of Muleba. H

The two were, and properly so, consolidated by the Senior District Magistrate.

However, at the end of the day the learned Magistrate issued under his hand two

separate and contradicting judgments.

The appellant appealed to the High Court where all parties agreed that there was a I

gross irregularity. So, Mwalusanya, J.

1992 TLR p131

RAMADHANI JJA, OMAR JJA, MAPIGANO Ag, JA

nullified both judgments of the District Court. The learned judge had this to say: A

In view of the fact that the decision of the District Court has been set aside, I

therefore order that the decision of the trial court is restored and so it prevails. The

land in dispute B reverts to the clan. The 1st respondent should hold it in usufruct

i.e. for her life time...

That order of the learned judge that the first respondent should have life-time use of

the land aggrieved the appellant and hence this appeal. There is only one ground of C

appeal on a point of law and that is that the learned judge, after he had declared the

two judgments of the District Court null and void, erred in rectifying the judgments

of the Primary Court as if there was an appeal before him instead of ordering a rehearing

of the appeal by the District Court. D

The appellant was represented by Mr. Rweyemamu, learned advocate, who said that

the learned judge should have stopped at the point of declaring that the judgment of

the Primary Court was restored. He argued that it was wrong for the learned judge to

E have gone on to rectify the judgment of the Primary Court. The only course open

to the judge, Mr. Rweyemamu submitted, was to permit an aggrieved party to go back

to the District Court on appeal. He cited Kasusura and the Attorney General v Kabuye

[1982]T.L.R. 338 as authority for the proposition that if a judgment is fatally defective

F then there is really no judgment and the only course is the unusual one of setting it

aside and ordering a retrial. Mr. Rweyemamu argued further that the High Court

could not even step into the shoes of the District Court and do what that court could

have done. The learned counsel distinguished the present appeal from Morali and

Others v R. G [1971] H.C.D. No. 145. He argued that in Morali there was a judgment

but here was no judgment.

On behalf of the first respondent was Mr. Augustino Tegamaisho with powers of

attorney to act for her. He contended that the High Court was right in doing what it

did H by virtue of section 29(c) of the Magistrates' Courts Act, 1984 (No. 2 of 1984).

The second respondent appeared in person and said that he had nothing to submit as

he is no longer an interested party because he has already relinquished the piece of

land in issue and that he has been refunded the purchase price he had paid for the

plot since I 20/11/1987.

1992 TLR p132

RAMADHANI JJA, OMAR JJA, MAPIGANO Ag, JA

Part III of the Magistrates' Courts Act, 1984 deals with appeals from the Primary A

Courts. Powers of the High Court on such appeals are provided in section 29 and

what is of particular significance here is paragraph (c) thereof which Mr. Tegamaisho

referred us to. That provides as follows:

B 29. In the exercise of its appellate jurisdiction under this Part, The High Court

shall have the power -

(a) ...

(b) ...

C (c) make any other decision or order which might have been made by the

court of first instance.

Thus in dealing with appeals emanating from the Primary Courts the High Court has

the power to make any other decision or order which the Primary Court could have

made. D This is crucially important. The decision or order that Mwalusanya, J. made

is the one which could have been made by the Primary Court. In fact that order was

one which the Primary Court should have made. The prayer, as was properly pointed

out by Mr. Tegamaisho, was that the land be returned to the clan. But the Primary

Court gave it E to the appellant who at no time had control over it. Besides it is the

Bahaya customary law that the first respondent is entitled to use the clan land for her

lifetime. Now that is what Mwalusanya, J. ordered.

Mr. Rweyemamu submitted that the High Court could not do what it did since there

F was no judgment of the District Court. With respect we do not think so. He

referred us to our judgment in Kasusura and the A.G. v Kabuye. But that case is

distinguishable from the present one. The circumstances are totaly different as the

following passage at p. 339 illustrates:

G We have seriously considered whether we could assess the evidence of the

witnesses from the typed record. We however are of the view that it is not possible to

do so. We do not have the opportunity of seeing and hearing the witnesses. The trial

judge should have evaluated the evidence of each of the witnesses, assessed their

credibility and made a H finding on the contested facts in issue. He did not do so. In

some cases an appeal court can be in as good a position as a trial court in evaluating

the evidence of witnesses, but this is not one of those instances. We have therefore no

relevant material before us to I base any finding. (emphasis provided).

1992 TLR p133

RAMADHANI JJA, OMAR JJA, MAPIGANO Ag, JA

The situation in this appeal was that Mwalusanya, J. had at his disposal all that we A

complained not to be available to us in the

Kasusura's appeal. The Primary Court of Kamachumu, which tried the case, made

them available. Thus though Mwalusanya, J. nullified both judgments of the District

Court, he still had relevant material before him on which to base the order he gave.

Besides, what were nullified were the judgments while the proceedings before the B

District Court were left intact.

Mr. Rweyemamu tried to distinguish the present appeal from that of Merali to which

we drew his attention. In Merali the East African Court of Appeal set aside the order

for a re-trial given by the High Court of Tanzania and then considered the three

options it C had. Two of those options are relevant here and these are: to order a rehearing

of the appeal or to deal with the appeal on its merits. The Court of Appeal

decided to do the latter citing section 3(2) of the Appellate Jurisdiction Ordinance

(Cap. 451) which gave D it power to step into the shoes of the High Court from

which the appeal proceeded. This was what in effect Mwalusanya, J. did under

section 29(c) of the Magistrates' Courts Act, 1984 though he did not say so. In fact

section 29(c) gives the High Court more powers than these of this Court under section

4(2) of the Appellate Jurisdiction E Act, 1979 (in pari materia with section 3(2) of

Cap. 451 cited in Merali's case). The Court of Appeal can only do what the court from

which the appeal comes could have done. But the High Court can do what the

original court i.e. the Primary Court, and not the District Court, could have done. F

This appeal must then fail. The order of Mwalusanya, J. that:

The land in dispute reverts to the clan. The 1st respondent should hold it in

usufruct i.e. for her life time. If the 1st respondent does not take possession of the

same, then the clan G council should sit and decide to allocate it to the deserving

heir in the clan.

is upheld. The appeal is dismissed with costs.

H Appeal dismissed.

1992 TLR p134

A