MORANDI RUTAKYAMIRWA v PETRO JOSEPH 1990 TLR 49 (CA)

 

MORANDI RUTAKYAMIRWA v PETRO JOSEPH 1990 TLR 49 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Nyalali CJ, Makame JJA and Ramadhani JJA

22 June 1990

Flynote

Law of Limitation - Customary limitation rules - Court's discretion to extend time to

file suit. D

Evidence - Additional evidence during appeal proceedings - Submissions made by a

party to an appeal in support of grounds of appeal are not evidence - A memorandum

of appeal is not evidence. E

-Headnote

In a suit for recovery of land, the trial Primary Court found that the appellant had not

bought the land from the respondent. On appeal, the District Court reversed the

decision of the trial Primary Court and entered judgment for F the appellant on the

findings that the appellant was time barred by the Customary Law (Limitation of

Proceedings) Rules, 1963 from recovering possession thereof. On further appeal to the

High Court, the appellant judge found that it was wrong for the District Court to act

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, G and accordingly reversed the decision of the District Court and

restored the decision of the Primary Court. On further appeal to the Court of Appeal.

Held: (i) The trial Primary Court had discretion to admit the suit after the prescribed

limitation period and had H sufficient cause to use its discretion;

(ii) the District Court was wrong to reverse the trial court's decision because

the purported additional evidence supporting the reversal was no evidence in law.

The submissions made by the appellant in the course I

1990 TLR p50

NYALALI CJ, MAKAME JJA and RAMADHANI JJA

A of the appeal arguing that the appellant had bought the land are not evidence but

arguments on the facts and the law raised before the court. There being no evidence

on the fact of sale of the land, the District Court had no basis for its finding;

(iii) the finding of the District Court that the appellant had been in occupation

of the land in dispute for a period B of 15 years and hence the respondent was time

barred to recover possession was based solely on the information contained in the

Memorandum of Appeal, by the appellant to the court and in submissions made by

the appellant in support of his grounds of appeal. Memorandum of Appeal, like

submissions, is not evidence but is purely a C statement of the grounds upon which

the appeal is based.

Case Information

Appeal dismissed.

D Rutakyamirwa (guardian ad liten), for the appellant

Rweyemamu, for the respondent

[zJDz]Judgment

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

1990 TLR p51

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

1990 TLR p52

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.

1990 TLR p53

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

1990 TLR p54

A