Ramadhani, and Mnzavas, JJ.A. and Mapigano Ag. J.A.: It has never been in dispute that the appellant, F Nkamangi Elifuraha, bought a "shamba" from the respondent, Mwinyishehe, for Shs. 1,500/=. What has brought the parties to court is the plot on which the appellant has built a house.
The respondent claims that he had permitted the appellant to put up a temporary shed as a store for building G materials for the house she was to build on the shamba she had bought. The respondent, who was the plaintiff at the Primary Court of Buguruni, brought two witnesses: John Mgota (S.W.2) and Ramadhani Athumani (S.W.3) in support of his case. The appellant, on the other hand, claimed that the plot in dispute had been a subject matter of H sale between the respondent and another man who defaulted. The appellant then wanted to buy the plot but the respondent decided to give it to her free of charge and this was evidenced in writing, Exhibit B.
The Primary Court, without considering Exhibit B, believed the two witnesses of the plaintiff and decided in his I favour. The
RAMADHANI AND MNZAVAS JJA AND MAPIGANO AG JA
A defendant, i.e. the present appellant, appealed to the District Court which considered Exhibit B and decided in favour of the appellant. The respondent appealed to the High Court where Babati, J. restored the decision of the Primary Court and hence this third appeal.
B In his judgment Babati, J. questioned the genuiness of Exhibit B and also faulted the District Court for regarding Exhibit B as a contract while there was no consideration.
Before us the appellant was advocated for by Mr Maira, learned counsel. He had six grounds of appeal. First, Mr Maira argued that the learned judge was wrong in finding that there was no consideration. Second, it has been C submitted that even if Exhibit B is not taken to be a contract it is evidence of a legal gift. Third, the learned judge erred to hold, in a second appeal, that Exhibit B was fake when that was not contested at the trial. Fourth, the learned judge erred in holding that the contents of Exhibit B were not satisfactorily proved when they had not been D disputed in the two lower courts. Fifth, the learned judge erred in holding that there was a implied consent for the building of the house. Lastly, that the whole proceedings before the Primary Court were null and void as the magistrate, contrary to the law, summed up to the assessors.
E We shall treat the six grounds as three lots. The first lot is the effect of the summing up by the Primary Court Magistrate to the assessors. The second is the legal issues concerning Exhibit B.
Lastly is the issue of consent for the building of the house on the disputed plot. The respondent did not have legal F representation therefore there were no replies to the points of law raised by the appellants.
As for the summing up Mr Maira submitted that it was contrary to Rule 3(3) of the Magistrate's Courts (Primary Courts) (Judgment of Court) Rules, 1987 GN. 2/88 which states:
G (3) For the avoidance of doubt a magistrate shall not, in lieu of or in addition to, the consultation referred to in sub rule (1) of this Rule, be entitled to sum up the other members of the court.
H Mr Maira contended that the use of the word "shall" makes it imperative that the magistrate is not to sum up to the assessors. In this case, Mr Maira said, the magistrate summed up, according to the counsel, the summing up I was fatal as it would appear to have directed the assessors as to what opinion they should give at the end of the day. It is our well considered opinion that though the
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summing up was misconceived, it was innocuous. It was not fatal and it did not occasion any injustice. Thus though A the sub rule is couched in imperative terms that oversight, we feel, is curable.
A number of submissions have been made with regard to Exhibit B. The first one was that the learned judge was wrong to have regarded Exhibit B as fake. Mr Maira said that the learned judge had no right to do so. He cited B Kanji v Gailoy & Roberts Limited [1959] E.A. 521. Mr Maira contended that the respondent did not object to Exhibit B being tendered and its authenticity had not been questioned at any time. Mr Maira conceded that the records do not show when Exhibit B was tendered in evidence though it has been given an identification letter. C
However, we are convinced that it was properly tendered and was never questioned. In fact during the hearing of this appeal the respondent himself admitted that there was a note which was written after their agreement. D Therefore, the learned judge was wrong, at the hearing of a second appeal, to doubt the genuiness of the document or to require its contents to have been proved to the satisfaction of the lower court. The Privy Council in Kanji v Gailey & Roberts gave an opinion that it would be wrong for an appellate court to upset the judgment of the trial E judge on the ground that it was not open to him to arrive at the conclusions of facts which he did. So Exhibit B must be taken to have been genuine. But what is its value?
The learned judge held that it was not evidence of a contract between the parties as there was no consideration. F That is so. However, Mr Maira submitted that Exhibit B is evidence of a gift by the respondent to the appellant. He cited Section 25(2) of the Law of Contract Ordinance Cap. 433 which provides that:
(2) Nothing in this section shall affect the validity, as between the donor and donee, of any gift actually made. G
In sub section (1) it is provided that "An agreement made without consideration is void ..." and then follows three exceptions. So sub-section (2) saves gifts from the requirements of consideration. We are satisfied that Exhibit B H evidenced a gift that was actually given to the donee, the appellant, by the donor, the respondent.
The last lot of rounds of appeal is whether or not there was consent for the building of the house on the plot by the appellant. Mr Maira submitted that there was at least an implied consent. He asked how could a big house be built I and roofed with iron sheets
RAMADHANI AND MNZAVAS JJA AND MAPIGANO AG JA
A and then rented out without the respondent raising a finger? Admittedly this is a question of fact which does not concern us at this stage of appeal.
However, the determination of this point depends on the determination of certain points of law. Since we have B found that the genuiness of Exhibit B could not legally be challenged by the learned judge and that it was evidence of a gift and as such was unaffected by the absence of consideration, then it follows that there was consent. We feel that we better reproduce Exhibit B which was written on 7/6/81:
C Mimi Fulani Bin Mwishehe Lubaluba natoa kiwanja cha kujenga nyumba kwa Mwalimu Mkamangi Elifuraha bila hata hela moja. Na ana haki ya kuuza bila tatizo moja, na anahaki akifa mwenyewe wanaweza kurisi watoto wake bila tatizo lolote. DNimetowa kiwanja hicho shahidi mbele ya mjumbe Bwana Johari Nyata ni mjumbe wa shina hili. Shahidi wa pili Ramadhani Amani, shahidi wa tatu Jorome Dismasi.
Then there followed the thumb print of the donor, the signature of the donee and that of the cell leader.
E The words of that document are very clear ad unambiguous. The respondent himself said before us:
"Tunagombania shamba na sio kiwanja cha kujengea. Hicho nilimpa na kama ataishi kwa heshima sitamfukuza. Lakini F yeye amechukua shamba na kulifanya lake kwa kuzungusha seng'enge".
The respondent was accompanied to this court by his son, Mohamed Mwinshehe Ubwa, who failed to hold himself G under control but manifested uneasiness by constantly jutting up his finger. As the respondent was extremely old, and as Mr Maira did not object, we allowed Mohamed to speak for the respondent. He started by saying that the H respondent could not give out any piece of land without him, Mohamed, the son, being consulted and in this case he was not. We warned him just to tell us the case of the respondent and no more. He then said that what is in dispute is the plot on which the house has been built. He went on to say that the fence of barbed wire has been put I closely around the house and that it has not enclosed any part of the shamba. This explanation is different from that of the respondent himself.
RAMADHANI AND MNZAVAS JJA AND MAPIGANO AG JA
It is our opinion that the respondent gave the appellant a plot on which to build a house as evidenced by Exhibit B A and as he has himself recapitulated before us. As for that plot on which the house stands there is no dispute between the respondent and the appellant, what the respondent objects to is the enclosure of some parts of his shamba by the appellant. B
We do not have any evidence as to how big or small is the part of the shamba which has been so enclosed by the appellant. In his testimony at the Primary Court the respondent said:
Kesho yake nikaona ile sehemu niliyompa mdaiwa anaweka sen'genge na kuongeza hata sehemu nyingine ambayo C sikumpa.
It has also never been disputed that within the plot given to the appellant there are two coconut trees belonging to the respondent. The appellant wanted to buy these but the respondent refused the offer. D
We are satisfied that the respondent gave the appellant a plot on which to built a house. What is disputed is the piece of land surrounding the house. For lack of evidence of the width of this surrounding land we order the District E Court to go and determine it. A house must have some open space around it. In our opinion a piece of land three meters wide all around the house in reasonable. If the enclosed area is more than three metres then the fence should be pulled towards the house to leave a piece of land three metres wide. But if the open space is three metres or less F than it should be left as it is.
Appeal is allowed as explained above. Each party to bear his own costs. G
Appeal allowed.
A
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