Paulo v. Balukeki (PC) Civ. App. 184-M-70; 29/7/71; El-Kindy Ag. J.

Paulo v. Balukeki (PC) Civ. App. 184-M-70; 29/7/71; El-Kindy Ag. J.

As a result of a High Court decision which held that a disputed shamba belonged to one Edward Mutesa who was a minor, and not the appellant, the appellant sued the respondent for compensation alleging that he had developed the shamba after the respondent had allocated to him the shamba knowing it to belong to Edward Mutesa that it was reasonable that he should be paid compensation. The respondent’s case was that the appellant was a trespasser. The primary court found for the appellant but the district court reversed on the grounds that: (a) the evidence of two witnesses was inadmissible as per Rule 6 Local Customary Law (Declaration) (No. 4) Order, 1963 G. N. 436/1963 Third Schedule; and (b) the primary court judgment could not be supported in view of the High Court decision on the issue.  Against this decision this appeal was brought.

            Held: (1) “In my opinion, the judgment of the district court is sound in law, although I am satisfied that the appellate court misconstrued Rule 6 relied on. That rule reads:- “6. Watu wanaorithi kitu cho chote kutoka wosia hawawezi kuhesabiwa kama mashahidi kushuhudia wosia ule – isipokuwa mke au wake wa mwenye kutoka wosia.” Although I do not entirely agree that the English translation is correct of the Swahili version, the translation of this provision reads as follows: - “6. Persons who are to inherit anything under the will may not be counted as witnesses to the will. This does not apply to the testator’s wife or wives.” The appellate court took this provision to mean that inheritors as P. W. 2 to P. W. 5 were could not give evidence in court. This in my opinion is mistaken as the provision only relates to witnessing execution of a will and does not cover matters arising out of correct distribution of the will. In my view, they were competent witnesses in this case.” (2) “However, I would still say that heir evidence was inadmissible in the light of this court’s decision on the matter. As it can be seen from the clear wording of Mustafa, J. (as he was then) in the above quoted case, the court held that the respondent did in fact allocate this disputed land to Edward Mutesa and accepted the evidence that the appellant trespassed on this  land and continued to remain in this land in site of written warnings. Such being the factual finding of the trial court, it was not open to the appellant to lead evidence to show that the respondent allocated this land to him soon after their father’s death as the matter was res judicata. It cannot be taken up again. Therefore, the trial court ought not to have permitted the appellant   to lead evidence on this matter to contradict what had already been finally decided by the High Court. The appellate court was therefore right in excluding such evidence. Once this was done, the inevitable conclusion was that the appellant could not succeed as (a) the land was not a allocated to him by the respondent and (b) that he continued in occupation of the land when he ought to have known that he was a trespasser – cannot give him right to claim compensation and he cannot in law or in equity claim to be compensated for the improvements he carried out to this land. It may appear to him to be hard but he cannot legitimately blame the respondent for his own conduct.” (3) Appeal dismissed.