HEMEDI SAIDI v MOHAMEDI MBILU 1984 TLR 113 (HC)

HEMEDI SAIDI v MOHAMEDI MBILU 1984 TLR 113 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

July 5, 1986

F (PC) CIVIL APPEAL 31(B) OF 1984

Flynote

Evidence - Credibility - District Court finds witnesses for both parties reliable and

divided the disputed land amongst the parties - Whether proper.

G Civil Practice and Procedure - Failure of party to call material witnesses on his

side - Whether adverse inferences can be drawn against such party.

Land Law - Abandoned shamba occupied and developed by another - Whether

developer is trespasser.

-Headnote

H The appellant and respondent laid conflicting claims to a piece of land. At the

conclusion of the dispute the trial court decided in favour of respondent. On appeal

to a District Court, the decision of I the trial court was overturned and the land was

divided equally among the claimants, the District Court ruling that both parties had

strong claims.

1984 TLR p114

SISYA J

On further appeal to the High Court, the major issue was credibility of witnesses. A

Held:(i) According to law both parties to a suit cannot tie, but the person whose

evidence is heavier than that of the other is the one who must win; B

(ii) in measuring the weight of evidence it is not the number of witnesses that

counts most but the quality of the evidence;

(iii) where, for undisclosed reasons, a party fails to call a material witness on

his side, the court is entitled to draw an inference that if the witnesses were called

they would have given evidence C contrary to the party's interests.

Case Information

Appeal allowed.

No case referred to D

[zJDz]Judgment

Sisya, J.: The respondent brought an action in the Mlola Primary Court of Lushoto

District seeking to recover from the appellant a piece of land upon which the latter

had allegedly trespassed. Judgment was given against him. On appeal to the District

Court the first appellate Court, in its E Solomonic decision, altered the decision of

the Court of first instance and ordered that the piece of land in dispute be divided

into two equal parts with each party being awarded a part thereof. Aggrieved by that

decision the appellant has now appealed to this Court. The question for F

consideration in this second appeal is whether the decision of the Court of first

instance was justified and supported by the evidence. This is a point of law.

In support of his case before the Court of first instance the respondent, in addition to

himself, called G two witnesses on his side. These were Rashidi Senkondo (PW2)

and Saidi Bakari (PW3). These and the respondent swore that the latter bought the

disputed piece of land from his grandfather, one Mmasa Tumbatu in 1971 for

Shs.160/=. The said Mmasa Tumbatu was not called as a witness and he did not

therefore, give evidence in the case. The respondent stated in his evidence that in

1982 H he left and went to Upare. It was during that period of his absence when the

appellant trespassed upon his land.

In his defence at the hearing of the case by the Court of first instance the appellant

stated that he bought the disputed piece of land from one Abed Musa in 1978. The

said Abedi Musa (PW2) I

1984 TLR p115

SISYA J

A gave evidence in the case and he confirmed what the appellant stated on this

aspect of the case. The said transaction was reduced to writing and the relevant piece

of paper was tendered and admitted in evidence at the hearing of the case. The said

piece of paper shows that, in all, nine B persons witnessed the transaction and

among them was the respondent: His name is the first on the relevant piece of paper.

Abedi Musa (DW2) swore that the disputed piece of land originally belonged to his

father, one Musa Senkondo. He was the one who opened up the said piece of land for

cultivation from virgin C land. In 1973 the said Musa Senkondo gave the piece of

land to his son Abedi Musa. Later that same year, i.e. 1973, Musa Senkondo died. He,

i.e. Abedi Musa, continued to cultivate the piece of land until 1978 when he sold the

same to the appellant.

D Another witness, Musa Saidi (DW3), swore that he shares a common boundary

with the piece of land in dispute. He told the Court that he has been occupying his

piece of land since 1959. At that time the piece of land in dispute was being

cultivated by father of the appellant, Musa Senkondo. When the said Musa Senkondo

died he saw Abedi Musa and his wife cultivating the said piece of E land. In 1978 he

noticed that he had a new neighbour on the disputed piece of land. He was the

appellant. In September, 1978, the respondent passed the boundary and trespassed

upon his, i.e. DW3's, piece of land. It was Abedi (DW2) who came and settled the

boundary dispute.

F After the Court of first instance had heard all the evidence both parties made an

application to the Court to visit the piece of land in dispute. A date was then duly

fixed for that exercise. However, on the said date the respondent successfully moved

the Court to abandon the visit because, according G to him, he had just realised that

he had sued the wrong party. The proposed visit, if carried out, would thus amount

to a waste of money and time. The Court of first instance then proceeded to pass

judgment which it did in favour of this appellant. This decision was, as aforesaid,

altered by the District Court where the respondent had resorted to by way of a first

appeal.

H The learned District Magistrate found that there was to use his own expression, a

tug of war over the disputed piece of land between the parties. If I understood him

quite correctly, of course there was, and there still is. The learned District Magistrate

then went on to observe that each party had I a good claim to the disputed piece of

land. He then came forward with the Solomonic decision and halved the piece of

land in question with a portion for each party. The only

1984 TLR p116

SISYA J

substantive reason raised by the appellant is that the learned District Magistrate acted

against the A weight of the evidence.

According to law the person whose evidence is heavier than that of the other is the

one who must win. In this instance each party called two witnesses in addition to

himself at the hearing of the case in the Court of first instance. In measuring the

weight of evidence in such cases as the present one B it is not, however, the number

of witnesses whom a party calls on his side which matters. It is the quality of the said

evidence. In this connection the evidence of a single witness may be a lot heavier

than that of ten witnesses. It is to this issue of the weight of the evidence in this case

that I now C turn.

Starting with the respondent's side, as aforesaid he, i.e the respondent, alleged that he

bought the disputed piece of land from his grandfather, Mmasa Tumbatu. One

would, naturally, have expected the respondent to call the said Mmasa Tumbatu to

give evidence. He, however, did not do so nor D did he give any reason why the

said Mmasa Tumbatu could not be called as a witness. Again, the respondent stated in

his evidence that at one stage he lent the same piece of land in dispute to one Almasi

Sebarua for cultivation purposes. The said Almasi Sebarua used it for one year and

returned E it to the respondent. Like Mmasa Tumbatu, Almasi Sebarua was another

material witness whom, for undisclosed reasons, the respondent failed to call as a

witness on his side. In such cases the Courts are entitled in law to draw an inference

that if these witnesses were called they would have given evidence contrary to the

respondent's interests. The duty to call witnesses is not the Courts F but it is for the

party who wants to be believed in his story and win the case. As aforesaid, two

witnesses gave evidence on the respondent's side. They merely, so to say, sang the

respondent's song that the disputed piece of land was given to the respondent by his

grandfather in 1971. They G claim to have been present at the time and to have

witnessed the handing over. They, however, did not explain their capacities in which

they were, presumably, summoned to witness the transaction.

Now turning to the appellant, as aforesaid, he stated that he bought the piece of land

in question H from a person who, himself, also gave evidence and confirmed the

story. Not only that. The said person, Abedi Musa, told the Court of first instance

how the same piece of land came into his possession. This story was supported in

material particular by a person, Musa Saidi (D.W.3), I

1984 TLR p117

A who has been neighbour to the disputed piece of land since 1959, and he still is to

date.

In his evidence the appellant expressed surprise why the respondent did not react

immediately when B he, appellant, went into occupation in 1978. In fact it is even

more surprising that he, respondent, chose not to do anything when the father of

Abedi Musa occupied the piece of land in 1959 or when Abedi Musa himself occupied

the same piece of land in 1973 and continued to do so for five solid years. In short, on

my evaluation of the evidence I find that the evidence adduced by the appellant C

was a lot weightier than that of the respondent. The decision of the Court of first

instance was thus justified in law.

In the final result, this appeal has merit and it is hereby allowed. The judgment and

orders of the District Court are quashed and set aside and the decision of the Primary

Court, Mlola is restored. D The respondent is condemned in costs.

Appeal allowed.

1984 TLR p117

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