Buskined Fufula v. Nswanzi Fufula (PC) Civ. App. 193-M-69; 22/1/70; Seaton J.

Buskined Fufula v. Nswanzi Fufula (PC) Civ. App. 193-M-69; 22/1/70; Seaton J.

The appellant sued the respondent for a shamba containing palm trees and banana trees valued at Shs. 600/-.  The appellant’s case was that the shamba was given to her by her late mother, who had cleared and planted the shamba and also built a house there. After the death of the appellant’s father the appellant continued to live there as a concubine of one Fufula. On the death of the appellant’s mother, some ten years ago, Fufula remained with the shamba, took care of the appellant and her sister and built three houses there. The respondent used to visit the shamba during Fufula’s lifetime but was neither a relative nor a son of Fufula. Upon Fufula’s death, the respondent chased the appellant from the shamba and remained in possession of it. The respondent’s case was that he was Fufula’s son, that Fufula had been given the shamba by the elders while it was still a forest. Thus the shamba was lawfully inherited by him. At the primary court hearing the appellant testified and called two witnesses. The respondent did not testify, but called two witnesses. The primary court believed the appellant and decided for her. The District court called additional evidence, without recording any reasons therefore and reversed the judgment.

            Held: (1) “An appellate court should not, without good reasons, take additional evidence when the parties have had ample opportunity to call witnesses in the trial court. Otherwise litigation will be endless. Where good reasons exist for calling additional evidence, they should be noted in the record. In the present case, no reasons were recorded and it is difficult to see if they existed. It seems to me to be unfair to allow the defendant, who chose to remain silent during the trial, to come before an appellate court and adduce his own testimony and that of his witnesses in rebuttal of a case made out by the plaintiff in the court of first instance. Different considerations would arise if the defendant was prevented, through no fault of his own, in calling his witnesses at the trial or if the evidence came to the defendant’s notice for the first time after the trial.” (2) “There was ample evidence to support the appellant’s case.” (3) Appeal allowed.