Ramadhani and Omar, JJ.A. and Mapigano, Ag. J.A.: It was not in dispute that E the first respondent, Asteria Mulwani, sold some clan land to the second respondent, Thobias Tegamaisho, who though a member of the larger family does not belong to the same clan or Ihiga as they call it in Bukoba. It was also not contested that the first respondent being a woman could not in Bahaya customary law dispose of clan land. F A woman has the right of possessing and utilizing clan land for the duration of her life. The appellant was aggrieved by that sale by the first respondent who is his paternal aunt. The appellant filed a suit in the Primary Court of Kamachumu and sought to nullify that G sale and restore the land to the clan.
The trial court nullified the sale and ordered that "shamba lirudi mikononi mwa mdai". That is: the land to revert into the hands of the plaintiff (now the appellant). The respondents were aggrieved and each appealed separately. Thus there were Civil Appeal No. 52/86 and Civil Appeal No. 53/86 before the District Court of Muleba. H The two were, and properly so, consolidated by the Senior District Magistrate. However, at the end of the day the learned Magistrate issued under his hand two separate and contradicting judgments.
The appellant appealed to the High Court where all parties agreed that there was a I gross irregularity. So, Mwalusanya, J.
RAMADHANI JJA, OMAR JJA, MAPIGANO Ag, JA
nullified both judgments of the District Court. The learned judge had this to say: A
In view of the fact that the decision of the District Court has been set aside, I therefore order that the decision of the trial court is restored and so it prevails. The land in dispute B reverts to the clan. The 1st respondent should hold it in usufruct i.e. for her life time...
That order of the learned judge that the first respondent should have life-time use of the land aggrieved the appellant and hence this appeal. There is only one ground of C appeal on a point of law and that is that the learned judge, after he had declared the two judgments of the District Court null and void, erred in rectifying the judgments of the Primary Court as if there was an appeal before him instead of ordering a re-hearing of the appeal by the District Court. D
The appellant was represented by Mr. Rweyemamu, learned advocate, who said that the learned judge should have stopped at the point of declaring that the judgment of the Primary Court was restored. He argued that it was wrong for the learned judge to E have gone on to rectify the judgment of the Primary Court. The only course open to the judge, Mr. Rweyemamu submitted, was to permit an aggrieved party to go back to the District Court on appeal. He cited Kasusura and the Attorney General v Kabuye [1982]T.L.R. 338 as authority for the proposition that if a judgment is fatally defective F then there is really no judgment and the only course is the unusual one of setting it aside and ordering a retrial. Mr. Rweyemamu argued further that the High Court could not even step into the shoes of the District Court and do what that court could have done. The learned counsel distinguished the present appeal from Morali and Others v R. G [1971] H.C.D. No. 145. He argued that in Morali there was a judgment but here was no judgment.
On behalf of the first respondent was Mr. Augustino Tegamaisho with powers of attorney to act for her. He contended that the High Court was right in doing what it did H by virtue of section 29(c) of the Magistrates' Courts Act, 1984 (No. 2 of 1984).
The second respondent appeared in person and said that he had nothing to submit as he is no longer an interested party because he has already relinquished the piece of land in issue and that he has been refunded the purchase price he had paid for the plot since I 20/11/1987.
RAMADHANI JJA, OMAR JJA, MAPIGANO Ag, JA
Part III of the Magistrates' Courts Act, 1984 deals with appeals from the Primary A Courts. Powers of the High Court on such appeals are provided in section 29 and what is of particular significance here is paragraph (c) thereof which Mr. Tegamaisho referred us to. That provides as follows:
B 29. In the exercise of its appellate jurisdiction under this Part, The High Court shall have the power -
(a) ...
(b) ...
C (c) make any other decision or order which might have been made by the court of first instance.
Thus in dealing with appeals emanating from the Primary Courts the High Court has the power to make any other decision or order which the Primary Court could have made. D This is crucially important. The decision or order that Mwalusanya, J. made is the one which could have been made by the Primary Court. In fact that order was one which the Primary Court should have made. The prayer, as was properly pointed out by Mr. Tegamaisho, was that the land be returned to the clan. But the Primary Court gave it E to the appellant who at no time had control over it. Besides it is the Bahaya customary law that the first respondent is entitled to use the clan land for her lifetime. Now that is what Mwalusanya, J. ordered.
Mr. Rweyemamu submitted that the High Court could not do what it did since there F was no judgment of the District Court. With respect we do not think so. He referred us to our judgment in Kasusura and the A.G. v Kabuye. But that case is distinguishable from the present one. The circumstances are totaly different as the following passage at p. 339 illustrates:
G We have seriously considered whether we could assess the evidence of the witnesses from the typed record. We however are of the view that it is not possible to do so. We do not have the opportunity of seeing and hearing the witnesses. The trial judge should have evaluated the evidence of each of the witnesses, assessed their credibility and made a H finding on the contested facts in issue. He did not do so. In some cases an appeal court can be in as good a position as a trial court in evaluating the evidence of witnesses, but this is not one of those instances. We have therefore no relevant material before us to I base any finding. (emphasis provided).
RAMADHANI JJA, OMAR JJA, MAPIGANO Ag, JA
The situation in this appeal was that Mwalusanya, J. had at his disposal all that we A complained not to be available to us in the
Kasusura's appeal. The Primary Court of Kamachumu, which tried the case, made them available. Thus though Mwalusanya, J. nullified both judgments of the District Court, he still had relevant material before him on which to base the order he gave. Besides, what were nullified were the judgments while the proceedings before the B District Court were left intact.
Mr. Rweyemamu tried to distinguish the present appeal from that of Merali to which we drew his attention. In Merali the East African Court of Appeal set aside the order for a re-trial given by the High Court of Tanzania and then considered the three options it C had. Two of those options are relevant here and these are: to order a re-hearing of the appeal or to deal with the appeal on its merits. The Court of Appeal decided to do the latter citing section 3(2) of the Appellate Jurisdiction Ordinance (Cap. 451) which gave D it power to step into the shoes of the High Court from which the appeal proceeded. This was what in effect Mwalusanya, J. did under section 29(c) of the Magistrates' Courts Act, 1984 though he did not say so. In fact section 29(c) gives the High Court more powers than these of this Court under section 4(2) of the Appellate Jurisdiction E Act, 1979 (in pari materia with section 3(2) of Cap. 451 cited in Merali's case). The Court of Appeal can only do what the court from which the appeal comes could have done. But the High Court can do what the original court i.e. the Primary Court, and not the District Court, could have done. F
This appeal must then fail. The order of Mwalusanya, J. that:
The land in dispute reverts to the clan. The 1st respondent should hold it in usufruct i.e. for her life time. If the 1st respondent does not take possession of the same, then the clan G council should sit and decide to allocate it to the deserving heir in the clan.
is upheld. The appeal is dismissed with costs.
H Appeal dismissed.
A
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