Mhamadi v. Bakari (PC) Civ. app. 47-a-71; 13/4/71 Kwikima Ag. J.

Mhamadi v. Bakari (PC) Civ. app. 47-a-71; 13/4/71 Kwikima Ag. J.

The respondent originally sued the appellant for a piece of land The Primary Court dismissed his claim but the District Court after hearing additional evidence reversed the Primary Court’s decision and allowed the respondent’s appeal. From that judgment this appeal was brought.

            Held: (1) “……. Although “an appellate tribunal may review question of fact in order to see whether the trial court’s conclusion should stand” such powers should be exercised with caution. (Murrary v. Murji 1968 H. C. D. 390). The learned District Magistrate approached the issue without any caution when he, on his own initiative, went out of his way to seek additional evidence by visiting the disputed shamba. The trial court had ruled, on the location of the boundary and as an appeal court the learned Magistrate could not seek additional evidence in order to reverse the original decision and he case of Bukande Fufula v. Nswanzi Fufula 1970 H. C. D. 107 is very much in point ….. In the present case the learned appeal Magistrate did not record any reason for deciding to visit the disputed shamba to see where the land should be demarcated ….. Such procedure is futile and must be discouraged.” (2) Appeal allowed – decision or the Primary Court restored.