KWIGA MASA v SAMWELI MTUBATWA 1989 TLR 103 (HC)

 

KWIGA MASA v SAMWELI MTUBATWA 1989 TLR 103 (HC)

Court High Court of Tanzania- Dodoma

Judge Samatta J

15 June, 1989

Flynote

Evidence - Objection proceedings - Onus of proof- On whom it lies - Rule 70 of

Magistrates B Courts (Civil Procedure in Primary Courts) Rules 1964 (GN 310) - S.72

(3) of Magistrates' Courts Act 1984.

Evidence - Concession - Failure of the appellant to cross-examine the judgmentdebtor

- Whether amounts to concession. C

-Headnote

A dispute arose between the parties over the attachment of the objector's several head

of cattle in execution of a court judgment against one Mpujila Kusaga. The matter

went to Urban Primary Court of Mpwapwa for purposes of legal settlement. The

appellant D got judgment which decreed him to recover 8 head of cattle, 7 goats, shs.

3,550/= and costs from the defendant and he also obtained a warrant of attachment

which instructed and authorised the District Commissioner to attach the judgment

debtor's ten head of cattle from one Samueli Mtubatwa's cowshed. Samuel executed

the warrant and handed E over the animals to the appellant in the presence of the

Acting Ward Secretary and a member of militia. The respondent was aggrieved by

this action hence this appeal.

Held: (i) The Primary Court was required to determine the issue raised in the

objection F proceedings in accordance with Rule 70 of the Magistrate's Courts (Civil

Procedure in Primary Courts) Rules 1964 (GN 310 of 1964);

(ii) he who seeks a remedy must prove the grounds thereof, in which case it is

G the duty of objector to adduce evidence to show that at the date of attachment he

had some interest in the property attached;

(iii) the failure on the part of the appellant to cross-examine the judgmentdebtor

on his assertion that the ten head of cattle did not belong to him cannot upon

the evidence on record be regarded as amounting to concession by the appellant that

the H assertion was true;

(iv) that the respondent failed to discharge the onus placed on him in this case.

Case Information

Appeal allowed. I

1989 TLR p104

SAMATTA J

Cases referred to. A

1. Lukasi Paskali v Mgwabi Mkaka, (Dodoma Registry) (PC) Civil Appeal

No. 130 of 1987 (unreported).

OBITER:If a litigant who is not familiar with the intricacies of court procedure

appears B before him, a magistrate should explain to him, briefly and in simple

language, the objects of cross-examination.

[zJDz]Judgment

Samatta, J.: This appeal is about ten head of cattle. It raises this question: Is the C

District Court of Mpwapwa right in refusing to share the opinion of the Urban

Primary Court of Mpwapwa that the ten beasts were rightly attached by the

appellant, Kwiga Masa, from the kraal of the respondent's brother, Lazaro Mtubatwa?

The legal battle between the parties over the head of cattle commenced in the

Primary D Court nearly two years ago. On May 18, 1987, the appellant obtained in

that court a judgment against one Mpujila Kusaga. The judgment, inter alia, declared

that he was entitled to recover from the defendant 8 head of cattle, 7 goats,

shs.3,550/= and the costs of the suit. Later, he successfully applied for a warrant of

attachment. The warrant E authorised and directed the District Commissioner to

attach the judgment-debtor's ten head of cattle from Samweli Mtubatwa's cowshed.

Armed with this document, the Acting Ward Secretary, in the company of the

appellant and a member of the People's Militia, among others, proceeded to Samweli

Mtubatwa's cowshed. There, in the F presence of the owner of the kraal and the

respondent, among others, he executed the warrant and handed over the animals to

the appellant. The respondent was "aggrieved" by that step. He summoned the law to

his aid by commencing objection proceedings in G the Primary Court. The burden of

his case was that the attached ten head of cattle were his property and not those of

Mpujila Kusaga, the judgment-debtor.

He called several witnesses in support of that case. He asserted, among other things,

that he had kept the beasts at his brother's kraal because, as a result of the

implementation of H the HADO project, he was not allowed to keep them at his

kraal. He gave the number of cattle he kept at his brother's kraal as being 6 bulls and

18 cows. His brother's evidence on this point, however, differed materially. The

witness said the beasts were 12 in number - 2 bulls and 10 cows. Mpujila Kusaga, who

gave evidence I for the respondent, denied that he was the owner of the ten head of

cattle. The appellant's

1989 TLR p105

SAMATTA J

case was that the animals belonged to Mpujila Kusaga. He, too, adduced evidence

from A several witnesses, including the Acting Ward Secretary and the member of

the People's Militia. Like the appellant, the Secretary and the militiaman asserted that

when he was asked to sign the warrant of attachment, Samweli Mtubatwa refused to

do so, saying that the ten head of cattle were the property of Mpujila Kusaga (the B

judgment-debtor) and not his. The two witnesses also told the trial court that the

respondent was present when the ten head of cattle were attached, but he said

nothing.

The Primary Court magistrate and the assessors who sat with him unanimously held,

C after a careful consideration of the evidence laid before him, that the respondent

had failed to establish that the ten head of cattle were his property. Accordingly, they

dismissed the objection. As already indicated, the learned District Magistrate found

himself unable to uphold that decision. In the course of his judgment, he said: D

The court below unanimously accepted the respondent's story that the 10 head

of cattle were the judgment-debtor's and so affirmed the seizure. I decline to share

that view. There was no evidence to show that the head of cattle were the judgmentdebtor's.

He merely suspected that E they were the judgment-debtor's but he would

not substantiate it. He said "Nilikamata hizo ng'ombe kumi katika zizi la Lazaro (SM2)

ninavyojua mimi ng'ombe za mdaiwa-mhukumiwa zilikuwa (sio) zinakaa njia panda

ya Msagali." He did not say that the judgment-debtor's head F of cattle were at

Lazaro Mtubatwa's homestead. And none of his witnesses said that the 10 head of

cattle were the judgment-debtor's. Suspicion alone was insufficient. He ought to have

adduced some evidence to show that the 10 head of cattle were the judgmentdebtor's.

The G judgment-debtor denied that the same were not (sic) his. And

strangely enough, the respondent did not cross-examine him on this aspect. And a

failure to cross-examine on an important matter ordinarily implies the acceptance of

the truth of the witness testimony. (see H Twalla Mohamed Mushi v R., Dar es

Salaam Registry Criminal Appeal No. 216 of 1976 (unreported), where the English

case of R. v Halter Berkley Hart [l932] 23 Criminal Appeal R. 202, was followed with

approval. The appellant, on the other hand, adduced evidence to show that the 10

head of cattle were his. There was the evidence of Lazaro Mtubatwa, which was not I

challenged, that the 10 head

1989 TLR p106

SAMATTA J

of cattle were the appellant's. The respondent failed to show on balance of

prependerances A that the 10 head of cattle were the judgment-debtor's.

With respect to the learned District Magistrate, I am of opinion that he was not

entitled B in law to fault the Primary Court's decision in this case. In my view, he

misdirected himself on three points, namely: (1) onus of proof; (2) effect of the failure

by the appellant to cross-examine the judgment-debtor on the latter's assertion that

the ten head of cattle did not belong to him; and (3) the credibility or otherwise of the

evidence given C and adduced by the respondent. I propose to deal with these

matters in turn.

1. ONUS OF PROOF IN OBJECTION PROCEEDINGS

It is clear from his judgment, that the learned District Magistrate entertained the view

that D in objection proceedings the onus of proof lies on the judgment-creditor.

With respect, this notion was wrong in law. In Lukasi Paskali v Mgwabi Mkaka,

(Dodoma Registry) (PC) Civil Appeal No. 13 of 1987 (unreported), I dealt at length

with the issue E of onus of proof in objection proceedings. In the instant case, I can,

I think, do no better than to quote, in extenso, what I said in that case, at pp. 2-4 of

the cyclostyled judgment:

The Primary Court was required to determine the issue raised in the objection

proceedings in F accordance with Rule 70 of the Magistrates' Courts (Civil

Procedure in Primary Courts) Rules, 1964). Unlike the rules in the Primary Courts

Criminal Procedure Code, which on the coming into operation of the Magistates'

Courts Act, 1984, ceased, as a result of being G repealed and replaced by the rules

embodied in the Third Schedule to the Act I have just mentioned, to have any force

of law, the Magistrates' Courts (Civil Procedure in Primary Courts) Rules, 1964

(hereinafter referred to as "the Rules"), were not repealed. They were H saved by the

provisions of s. 72(3) of the Magistrates' Courts Act, 1984, which reads:

"Any applicable regulations made under the Magistrates' Courts Act

1963, and in force prior to the date upon which this Act comes into operation shall

remain in force as if I they have been made under this Act until such time as they

are amended or revoked by rules made under this Act."

1989 TLR p107

SAMATTA J

Rule 70 of the Rules provides as follows: A

(1) Any person, other than the judgment-debtor, who claims to be the

owner of or to have some interest in property which has been attached by the court

may apply to the court to release the property from attachment. Stating the grounds

on which he bases his B objection.

(2) On receipt of an application under sub-rule (1), the court shall fix a day

and time for hearing the objection and shall cause notices thereof to be served upon

the objector, C the judgment-creditor and the judgment-debtor.

(3) No order for the sale of such property shall be made until the

application has been determined and if any such order has been made, it shall be

postponed. D

(4) On the day fixed for the hearing, the court shall investigate the

objection and shall receive such evidence as the objector, the judgment-creditor and

the judgment-debtor may adduce. E

(5) If the court is satisfied that the property or any part of it does not

belong to the judgment-debtor, it shall make an order releasing it, or such part of it,

from attachment. (the underlining is my own). F

The question that is raised by the present appeal is whether the District Court was

right in law in holding, as it did, that in the objection proceedings the onus of proof

lay on the judgment-creditor. In my opinion, the District Court misdirected itself in

so holding. The G general principles governing the determination of the incidence of

onus is one stated in the Latin Maxim: semper necessitas probandi incumbit illi qui

agit [see s. 110 of the Evidence Act, l967]. Put in a modern language, the maxim

would read something like this: He who seeks a remedy must prove the grounds

thereof. In certain situations the H legislature may, and sometimes does, lay down

rules which are inconsistent with that general principle, but it seems to me, having

regard to the wording of Rule 70(5) of the Rules, that in that rule the general

principle has not been displaced. On the contrary, I am of the settled opinion that the

rule embodies that principle. If the legislature had intended I to effect a departure

from

1989 TLR p108

SAMATTA J

that [principle] and impose the onus of proof on the judgment-creditor it could easily

A have demonstrated that intention by wording sub-rule (5) as follows or to this

effect:

"(5) If the court is not satisfied that the property or any part of it belongs to the

judgment-debtor, B it shall make an order releasing it, or such part of it, from

attachment."

It is instructive to note, I think, that in objection proceedings conducted in higher

courts under the provisions of Order XXI Rules 57 and 58 of the Civil Procedure

Code, 1966, C the objector, to quote the latter rule, "must adduce evidence to show

that at the date of attachment he had some interest in ... the property attached."

I adhere to those words. In my view, the learned District Magistrate in the present

case, like his learned brother in Paskali's case supra, strayed into an error in law in D

entertaining the view that in objection proceedings the onus of proof lies on the

judgment-creditor. As, I hope, clearly demonstrated in the passage I have ventured to

quote, the onus in such proceedings lies on the objector. In the instant case, therefore,

E the burden of proof lay on the respondent. That statement brings me to a

consideration of the second matter.

2. THE EFFECT OF THE FAILURE BY THE APPLICANT TO CROSS-EXAMINE

THE JUDGMENT-DEBTOR ON HIS ASSERTION THAT F THE TEN HEAD OF

CATTLE DID NOT BELONG TO HIM

It is perfectly true, as was remarked by the learned District Magistrate, that the

appellant did not cross-examine Mpujila Kusaga on the point. The two cases the

learned District G Magistrate cited - Twalla Mohamed Mushi's case and Walter

Berkley Hart's case - do not lay down an inflexible rule of law that any important

evidence which is not challenged by way of cross-examination must be taken to be

conceded as being true. A failure to cross-examine is merely a consideration to be

weighed up with all other factors H in the case in deciding the issue of truthfulness

or otherwise of the unchallenged evidence. The failure does not necessarily prevent

the court from accepting the version of the omitting party on the point. The witness'

story may be so improbable, vague or contradictory that the court would be justified

to reject it, notwithstanding the opposite I party's failure to challenge it during

cross-examination. In any case, it may

1989 TLR p109

SAMATTA J

be apparent on the record of the case, as it is in the instant case, that the opposite

party, A in omitting to cross-examine the witness, was not making a concession that

the evidence of the witness was true. It must be emphasized to the magistracy, I

think, that when litigants who appear before them are unrepresented and not the

kind of persons who are likely to understand clearly all the intricacies of court

procedure, ordinarily it is B not right to hold against such persons mistakes they

might make such as failing to cross-examine. It must not be forgotten that in some

customary legal systems in our country, cross-examination was not regarded as an

important procedure in a trial. Sometimes the attitude of an ordinary African litigant

(or even an accused person) who is C not formally educated is: "let him (his

opponent) and his witnesses tell their story. I will let the court know my version of

the matter when it is my turn to go into the witness box". It is not, therefore,

surprising that when he is later told that his omission to cross-examine, or to crossexamine

on an important point, has been taken by the court D as demonstrating or

suggesting that he was accepting the witness' version, such a litigant may be tempted

to believe that the law is an ass. In the interest of justice, when a litigant who is not

likely to be familiar with the intricacies of court procedure appears before him, a

magistrate should explain to him, briefly and in a simple language, the E objects of

cross-examination - "to impeach the accuracy, credibility and general value of the

evidence given in chief; to sift the facts already stated by the witness, to detect and

expose discrepancies, or to elicit suppressed facts which will support the case of the F

cross-examining party." It should be made perfectly clear to such a litigant that if

there is anything relevant which the opposite party or his witness has not said or

touched upon in his evidence-in-chief which he would like the court to know and

take into account in deciding the case, he can and should try to elicit the thing from

the opposite party or his G (the opposite party's) witness, as the case may be. The

party should further be informed, in a simple language, that where the witness'

version defers materially from his own version, he should, as briefly as possible, put

his version to the witness with a view of making him (the witness) agree that what is

going to be alleged by him or his witness is H what occurred or was said on the

occasion in question. If the party knows any reason why the opposite party or his (the

opposite party's) witness should lie or be inclined not to tell the whole truth, then,

ordinarily, he should cross-examine him on the point and put the reason to him.

Ordinarily, these matters need be explained to the party (or accused) I only once -

just before he embarks

1989 TLR p110

SAMATTA J

upon the cross-examination of the first witness. I am confident that if magistrates take

A such trouble, irrelevant cross-examination and wrong omissions to cross-examine

by such litigants will be minimised. To revert to the instant case, I am of opinion that

the failure on the part of the appellant to cross-examine the judgment-debtor on his

(the B latter's) assertion that the ten head of cattle did not belong to him cannot,

upon the evidence on record, be regarded as amounting to a concession by the

appellant that the assertion was true. Finally, I must deal with the third point.

3. THE CREDIBILITY OR OTHERWISE OF THE EVIDENCE GIVEN AND C

ADDUCED BY THE RESPONDENT

There were, in my opinion, three principal reasons for disbelieving the evidence

adduced by the respondent. The first reason is that, according to the testimony of the

two D independent witnesses in the case, the Acting Ward Secretary and the

militiaman, although he was present when the attachment of the ten head of cattle

was carried out, the respondent uttered no word. It seems improbable, if, as was

asserted by him in the witness-box, the animals were his property, that the

respondent would not have E protested to the Secretary against the attachment. The

second reason relates to the glaring discrepancy between the evidence of the

respondent and that of his brother, Samweli Mtubatwa, the man in whose kraal the

ten head of cattle were at the time of F attachment. It will be recalled that the

respondent asserted that he kept 24 head of cattle in the kraal, but according to his

brother, the number of the cattle was 12. This inconsistency is, in my judgment,

unresolvable. The gap which yawns between the two assertions demonstrates, in my

opinion, that the assertion that the attached head of cattle G are the respondent's

property is nothing but a moonshine, designed to defeat justice in this case. Thirdly,

according to the evidence of the Acting Ward Secretary and the militiaman, when

asked to append his signature to the warrant of attachment, Samweli Mtubatwa

refused to do so, saying that the ten head of cattle belonged to the H judgmentdebtor.

This piece of evidence shows, in my opinion, that Samweli Mtubatwa's word

in the witness-box cannot safely be relied upon.

The conclusion I reach, without any hesitation, from the foregoing is that the

Primary Court was right in holding, as it did, that the respondent had failed to

discharge the onus I lying on him in this matter. I cannot bring myself to entertain

any doubts as to the

1989 TLR p111

correctness of that court's decision. Unlike the learned District Magistrate, I am of A

opinion that, in the legal battle, the appellant had two powerful allies on his side -

justice and law. Clearly, the learned District Magistrate erred in refusing to share the

opinion of the Primary Court.

The appeal is allowed, the decision of the District Court is recalled and that of the B

Primary Court is restored. The appellant will have his costs in this court as well as in

the District Court.

C Appeal allowed.

1989 TLR p111

D