Alfred Mkemwa vs Paulo Mfugale (PC Civil Appeal No. 77 of 1990) [1999] TZHC 499 (19 August 1999)

/ .(. ' . ,,---- '

• . ./. ~ ~;,,,,9- .. ',. ._ L""i - ~ Hlc.li CQU'R'.r w· t'~U AT BEYA· PC CIVIL .ArPEAL NO. 77 OF 1990 (From the decision of the Di.strict Court of Iringa at Iringa in Civil Appeal No. 23 of 1990 - Original Civil Case No. . 63 of 1989 of Kilolo Primary Court BEFORE: .A. J. NYINGI - D. Iv,.) ALFRED 't-'.KEMWA • • • • • • • • • • • • • • • APPELLA?-JT VERSUS . PAULO _?;1FUGALE • • • • • • • • • • • • • • • RESPONDENT JUDGEf.'.ENT MWIPQP0 1 J. This is a long standing case,the appeal to this court of _which was filed about 9 years ago on 3/12/1990 and has yet been determined until today •. It started in the - Kilolo Primary Court as a Civil Case No. 63/1989 Qn 19/10/89 · with the present appe;t.lant Alfred s/o ¥.kemwa as the plaintiff and the present respondent Paulo s/o J/fugale as a defendant. Tbe dispute, involve a chunk of land which it was not a disp&ted that it was a small part o-:llarge area of land which was the traditional, ancestral and clan land of the ·flkemwa to which the appellant belongs and for which he pur- ~ ports to be acting for. In law any member of a clan can sue for reeovery, protection etc. of clan land. ( ' The respondent was a new comer ta the ~ea and village
• . Ris corning to th~.area in.disute who had shifted to anoher near1ty are~ from NJombe prior ~o L -· in the early 1970' s. - It was the famous nationally opera- _ · ted villagizatirm programme of 1974 which triggered the events leading to this case. In 1974 the appellant's father Lupijuko Mkemwa and his family )las villagized by being removed . \ • • •A_,;' '' <i'', .-'; ~< . •. , , C • •. I I '_; J•' -.I

2 ;fNJlr! i es.tral. l.aod end ~~sidence zt -tJtemaJ..uge spot to another area in Ipaiama village. Two years later in 1976 according to the respondent,or in 1979 according to the, appellant's views, the appellant's father aportioned 3 acres according o the respondent or l acre according to,the , appellant out of his ancestral iand a.t Utemaluge and gave it to the respondent. According to the appellant the_same aportioned land of only one acre was merely give to the respondent for tempqrary use ,of cultivating seasonal crops as an invitee. That is one of the grounds of appeal filed and argued by the learned Mr. Mwangole Advocate for the appellant who ex-pounded that being such an invitee ·the respondent could never acquire good title of ownership over at any · the land which was not his for everLlength of time he stayed cm it. The respondent has not been represented by an advocate in this court but was represented by the learned :Mr. Mwaki- . . ngwe (Adv.) at the 1st appellate stage of the Iringa District Court at which stage the appellant, to the opposite was . not represented. The respondent's stance was to the contrary that he was given that land for his permanent ownership. I better tackle this ground of appeal at the outs.et for it seems to be the -main bone of contention which will til·t the case one way or another. The Primary Court of Kilolo dealt with this issue and it held that, I will quote the exact .Mr. E.,s. Chawala (PCM) 'words of the gentlemen assessors and the learned.L . himsel.f herein below The 1st gentleman assessor Salum made th~ following verdict:- "Kwel~, sehemu hiyo inaonekana ni ya Baba yake na Mdai. Lakini, sasa mdaiwa amepanda -~ ti, kahawa, ulanzi. Kwa maoni yangu ..• /3

" 3 sehemu hiyo ni ya mdaiwa kwa sababu ina vitu vya kuduru. 11 Translated into English by pecis the above·quoted verdict means that the.1st gentleman Assessor Salum held that the land in dispute belonged to the father of the appellant. But, that since the respondent had planted trees, coffee and bamboo clusters the land became the property of the respondent because of the permanent crops invested in the land. The second gentleman assessor· Issa gave the same verdict by supporting the verdict of the 1st gentleman assessor. 'rhe learned Mr. s.E. Chawala (P.C.M.) the trial magistrate gave the followir>:g verdict:- 11Mimi na washauri tumekubaliana kuwa sehemu hiyo ni ya mdaiwa, siyo ya mdai, kwasababu imepa- ndwa vitu vya kudunru., pia miaka imepita toka anampa. r,'.:adai ya ardhi ni miaka Kumi na mbili (12). Ndio nru.da wa kikomo cha madai_· kufuatana na kupewa,. pia kuwa n·a vi tu vya kudurnu. Ndiyo maana rnahakama }'amearrua hivyo" The quoted Swahili portion of the trial court 1 s verdict in a precis means in English that the court unanimously held that the land had become the property of the respondent by virtue of the doctrine of adverse possession for there. elapsed years without ·the appellant recovering/reclaiming it within the time limit of 12 years tluring which time li'mi-t the· respondent utilized the land by planting perma- nent 9:r;-ops. The 1st appellate court as presided over by the learned JJlr • .Angundile Nyingi (D.JI'.) of Iringa District Court did not deal with the appeal thoroughly or he dismissed it on th grounds that the appeal was filed, out of. tirre thp_"'.: •.• /4

.. 4 - fore time barred. It was while deciding whether the appeal had overwhelming chances of succ.ess so as to be allowed to. be filed in the district court out of time that the · · detail le~ first appe1late magistrate dealt .ii.IL 'L with the merit of the case. He upheld the trial magistrate's unani- mous judgement that the appellant's claim for recovery of the land of his father from the respondent was time barred since. he opened up his claims with the village government 1n 1988 and filed the suit in the Primary Court in 1989 whereas the respondent had acqu;tred it from their father Lupituko Nkemwa in 1976. Although the prior appeal was not substantially dealt with on merit I allowed this appeal to proceed as it is on the merit of the entire case as a whole instead of remitting for the it l District Court to deal with the substantive appeal before it for reasons given in the relevant ruling of this court of 13/11/1992. It took another 4½ years to hear the appeal here due to various reasons including the death of the late learned I1r. Ndibalerna Advocate who ini t;ially represented the respondent~ At last, it was heard on 4/4/1997 inter-parte with the appellant as represented by the said the learned Mr, Mwangole {Advocate) whereas the respondent with the death o! his advocate responded to the appe.al in person without an advocate. Before judgement was delivered an order was made by • this court on ·.30/9/97 for the District Court to make a locus in quo and take additional evidence .on the scene of dispute ( by the District Court of Iring a) relating the actual acreages ano. position of the land in dispute for the time being. This Wti$ gone QY the l~arned Mr. K.ab.yoaa (R.M.) on 10/6/199$ ana ••• /5

','

• 5 - for the first time tn..a sk.gtclr -pJ.an o:f' the land in di.sputa .. ~ ~'-mdin.g area was drawn without scale in the presen:-e of both parties and other assisting witnesses such as the agricultural .officer expert Mr. Marungu S. Lubigili who drew the sketch map. This judgement will take into account this additional evidence collected on 10/6/98 by the District Court as well as the evidence taken by the trial court together with the minutes of the village council of Ipalama of 19/4/1988 and 2/6/1988 which were already produced as exhibits by the appellant in the trial court when he testified as PW.l. The good thing of this case is that although the case is an old one pending in courts since 19/10/1989 - 10 years ago - the record of all the two lower courts and ttlis court are still intactly safe and legible. The contention of the appellant that the late his father Lupituko gave the land in dispute for temporary use and was merely invited there to cultivate has been strongly put forward in this appeal by the learned Mr. Mwangole and was accepted as the truth by both the Ipalama village government through ·its council and by the Kilolo Primary Court. The contention of the respondent that he was given that land in dispute by Lupituko Mkemwa for his own permanent ownership stands alone based on his own word of mouth with nobody else \s support. The village council's meeting of 19/4/1988 di2/6/1988 all disowned the respondent as having had no land in the ''Lungulun (traditional land) of the Mkemwa's. The respondent's son DW.3 Philip s/o Yohana testified that it was not the village which allocated to the respondent that land. If the late Lupituko Mkemwa gave him the land for his own permanent use as his personal property the responden should have ••• /6 ' I

6 and i.nvol:d the ten -oe11 L the al."'ea leaders and the village government. It could not be posible for the late Lupituko Mkemwa to have given the respondent the land as his property hardly two years after he himself had been removed from that area(2 years before in 1974)under the villagiza- tion operation, To do so would have been tantamount to with grave consequences. flouting the villagization operation itself L Those removed from their customary land under the villagization programme were not allowed to live in the abandoned land and houses. But, they were allowed to continue utilizing them for culti- vation and for harvesting their planted seasonal or permanent crops. This being a clan land the same Lupituko. Jvn<emwa could not have permanently disposed the clan land without the approval of the clan members. The respondent the called the eldest son ofLl,ate Lupi tuko l''kemwa as his witness DW.2 Jackson Mkemwa who testified that he was sent by his late father to give 3 acres to the respondent and he did so. But, he testified that the respondent was en6roaching into other areas not given to the respondent by the late his father ("Ila sasa analima sehenn.i ambayo sikumpa mimi ambayo sikumwonyesha".) In the record of the village council's meeting of l~/4/1988 DW2 Jackson Mkemwa wrote his statement that the land given to the respondent was one acre and it was specifically given to the respondent for temporary culti- vation and with the attached condition that the respondent should not plant permanent crops. In 1981 he found the meant respondent planting bamboo clusters in that land1for tempo- agr't!ed that he rary use and he objected to him and the respondent L was not intending ·- to plant permanent crops. Then,he hired his own 3 acres to the respondent for 600/= shilings. In ... /7

..

• 7 - 1987 he found the respondent digging coffee pits and planting coffee in the area borrowed or hired from him and he stopped him from doing so but the respondent did not listen •. That is why in 1988 the clan members took the respondent to the village government. a The respondent himself gaveLwritten statement to the village council on 19/4/1988. He stated that he moved from elsewhere during the villagization programme from Itungulu area to Ipalama village in 1974. In 1976 he went to the late deceased Lupituko Mkemwa to request for a farm to cultivate and the L agreed and he was given 3 acres to cultivate it temporarily ( 0 I'lirni nilienda kwa baba yake na ndugu J·ackson kumwomba sharnba. Mzee alikubali alinipa shamba hilo ekari 3 hivi nilime kwa muda tu •. Basi turneendelea rnirni na Jackson tulikuwa tunapakana naye 76 - 78.f'). From the proceedings of the village council meetings of was 19/4/1988 and 2/6/88 the respondent's stanceLclear that the_ 3 aores/one acre land was given to him for temporary use only as originally intended by the late Lupituko JY.kemwa. The minu- tes of 2/6/88 with reference IP/S/10/1988 of the Ipalama village council dealt with this problem in agenda No. 6 as follows: I quote it:- 11Agenda Na.6. Kuhusu agenda hiyo Katibu alieleza namna kesi ilivyokuwa na mahali lilirnokornea. Alisema ndugu akina Mkemwa walidai lile shamba la Utemaluge kuwa Ndugu Mfugale aliazirna tuu. ~'Jkutano ulipomhoji ndugu Paulo alikubali kuwa aliazirna. Hivyo aliamua kurudisha shamba la watu arnbalo aliazirna la ekari 3 zilizo- kuwa zirnelimwa. • •• /8

• 8 - AZIMIO Mkutano uliona uzi to wake na kumweieza kuwa Ndugu Mfugale arudishe shamba la watu • . , Hasa sana kwa sababu alikubali mwenyewe kuwa al.iazima tuu." Paraphrased the quoted portion means that in the agenda No. 6 the clan of the :Mkemwa claimed back their land at Utemaluge area which was ent to Paulo (the respondet - Paulo Mfugale)o _ The-meeting questioned Paulo-about it and he agreed that he had borrowed the land and therefore he decided to return· ~ ' the farm to their owners which he had bo'rrqwed 3 acres. The council made a resolution that ~~ugale shall return the !arm to their traditional owners especially because he agreed himself to have merely borrowed it for tmporary use. Therefore, the factual findings of th~ trial court that· the land belonged to the Mkernwa clan was.correct. The a~ea given to the respondent.by the late Lupituko '.kemwa through DW2 Jackson l'kcrnwa was for temporary use only and therefore the respondent was merely an invitee. What was the acreage given to the respondent by the late patriarch Lupi tuko o! the Mkemwa clan?. The appellant conte- . nded that it was only one acre. The respondent said it. was 3 acres. When the District Court visited the scene in · dispute last year in 1998 the same area has_ been marked as 1st off,er in the sketch plan marked this: I 0000 '-' It I s I • . . : 0000' ' acreage has not been shown. This area in the record of the· learned Mr. Kahyoza (R.r.) has been shown to the court by DW.2 Jackson Mkemwa as the area his ·father ~ave to the respondent. The same ,v:itness DW.2 in his statement to the village council meeting of 19/4/1988 said it was one acre. In •ourt .•• /9

• 9 - when he testified as DW.2 he said it was 3 acres. That area must be of the size as shown in the sketch plan by him and marke~~~ 1st offer. When the court visited the scene the Respondent showed a large area marked this V;,( j( x \ which on measuring came to l£..2:$- a 15 .acreas size. This is definitely a concootion -- by the respondent with hi_s usual tendency for expansionism into the appellants clan land.· In his testimony in court and in the village meetings of 19/4/1988 and 2/6/1988 he said it was 3 acres. Since both the respondent (DW.1) and Jackson ¥kemwa DW.2 testified it to be 3 acres that is the minimal size which must be taken by this court to have been the area borrowed by the respondent for temporary_use from the pe- triarchLupituko Mkemwa. In physical terms that area is one ---- ·-·-·--r - as marked 1st offer;:;.\ in the sketch plan with whatever ~ ._., . actual acreage it realy measures., The Kilolo Primary Court held that the land had ben planted with permanent crops of bamboo clusters, timber speculative and trees and coffee. It was a bitLexagrative for the trial court to hold so for they did not visit the'scene to see the " what was planted in the farm. But, inL mtnutes of the village council the eye witness to the temporary allocation of the land DW.2 Jackson r-'kemwa wrote in his statement of 19/4/88 that by 1981 after his father had died and been bur· in Iringa in 1980 he went to the area in dispute and found the respondent had planted bamboo clusters. He:rebuked hini for doing so and the respondent apologized. Since that was clan land boorowed by the respondent, that was the best the same DW.2 Jackson Mkemwa time for the eldest son of the late LupitukoLto order ~he. respondent to pull out those bamboo clusters and any other trees planted. He kept quiet until 1988 when he complained ••• /10

..

• 10 - about it to the village council without haying done anything between 1981 up to 1988. Thisuacquiescence by Jackson Mkemwa ( D:W. 2) and .Alfred ¥kmwa ( DW. 1) the ·appelLant.'" and all members o:f the r-'.kemwa family including PW.3 .AnziITilye d/o }1k.emwa who is the real sister of the appellant and who was still living near the clan area of the ffikemwa's and whom the appellant.in his testimony as PW.l testified to have been given the estate's administratorh role in my view amounted to what the Kilolo Primary Court termed as acquisition o:f the landownership by the respondent by adverse possession. This was a proper holding hecause although the respondent was a mere invitee he started using the land contrary to the instructions of the temporary lease by planting permanent crops • .As to when he planted the permanent crops only the respondent knows it but it must have been prior to 1981 for DW.l moved to town in 1978 where he took his father for treatment where he died. Actually, the Mkemwa clan doesn't appear to be very united for not protesting in full force against the respondent when he started planting the bamboo clusters and ,any other trees on.the 3 acres lent to him for temporary use. The invitee who is not stopped or sued for using the land contrary to-the invitation conditions acquires good title if 12 years elapse without being sued or evicted. The Respondent therefore acquired good title of the 3 acres or so as marked First offer shown in the map. That is his own property for ever by the operation of the adverse possession doctrine. "Then, there is another area of 3 acres which the said DW.3 Jackson fJkemwa was using as his own but he stated to the village council on 19/4/88 that he leased it to the respondent for Shs.600/=. The respondent told the village meeting of ••• /11

• 12 - 19/4/88 that he bought that area for Shso6O0/=. He stated as follows:- I quote from his signed statement of 19/4/88:~ ,iNdugu alihama hapa kijiji na mimi nilimfuata rr0ini kuomba seheru ile ambayo alikuwa analima mpaka wakati huo,, Ndugu nilipornwomba alinipa eneo hilo kwa kμdunu akanipangia gharama Shs.6ooi=." · The quoted portion when translated it means that the respo- ndent went to the said Jackson Ivkemwa in the Iringa Town where he had shifted his residence and asked to be given the land he was cultivating in · the are a in dispute at---tnc · village. The same Jackson r-'kemwa agreed and so1d to him the land for permanent ownership for 600/= onlyo Although the said Jackson r-:kemwa had no authority of his clan members to . paid monetary sell the land but being the eldest son and sine he gotL value for the land that sale was quite lawful with a right · of the clan lilem-oers to re-deem it. wj thin 12 years which they didn't do from 1976 - 78 until they filed the suit in ~ court·in 1989. Moreover, Jackson rt.kemwa told the village council.meeting of 19/4/1988 that he found the respondent had dug pits and planted cofJee in his farm., He stopped him from doing·so by an order· of his mouth without suing him in this case · someone else: in court until now forL the ·one who sued is , the appellant. · . . . · .' . . L the ref ore, The same Jackson IV:kemwa! s· share in the clan land,'L amounting L to the said 3 acres was lawfu:J_ly sold to the respondento Whn the court visited the locus in quo such area was marked \1/71}-];"{ and when measured it was actually found, to ------"" . ' be 5.06 acres large· (instead of .3 acres) as testified before the court and state in the village council meeting ••• /12

• 12 - of 19/4/1988. This area I hold was lawfully acqw.red by the respondent f:l'Qm J"~ Mkenwa on.. J-e.ckson 's own · rights as the eldest son and with a share on the clan land out of his own share in the clan land for a valuable consideration of Shs. 600/= only - poor him! Jackson Mkemwa doesn 1 t appear to know the value of land to have sold 5.06 acres of clan land for only Shs.600/=. His brothers and sisters too had failed to redeem it until when this.suit was filed. The respondent required good title of it for ever. The sketch .plan shows that it is in bet¥een this area and the area acquired by adverse possession where the respo- ndent built his house. In the sketch map there is also a in the key of the map third column from the top indicating the .--------. acres marked! /II Jil ! I field boundary,the 2nd offer of 5.06 , ---·i - Then, and the first offerl~l • L there "'' is a field with boundary of the field and the road. The same area which falls between the 1st offer and 2nd offer is he·re.by deemed t9 belong to the respondent too~ Trie area which _ belongs.to the respondent as upheld by this court is.the 3 acres or as physical:ly can be measured marked the 1st ff i ,.--r-,- .,...,,_,:..-: o er, .... _...., - .............. t ,-:-0.1

land of the field 
the 5.06 acres tnarked the 2fd offer and the 
in between marked with a permanent crops 
boundary of ttST.5<::Jb and field boundary \di fV \-,) ·'/'."' only 
Such same area is marked by this court in the sketch plan 
~.::::::-~- ··---~·--~.__,__. --~~----- .. ___ 
....... 
,,/·· - --...,_ ... ,. with red ink. Thus:- 
( ------ ----- \ 
\ - f 
\ - - - I 
,__ _/ 
·is held te>be--~ 
T,his is the only area whichLpermanently ill;" the o~::_~P o! 
the respondent. -~rest- of the land markedj t' t" ~ i o:f 
about 15 acres and the wood plantation marked! i~-T j:;i- .. :: in the 
: ~~·p/~;3{~~ .. t-~~· ·: _ _\

- 13 - 
6th colum o:f the sketch plan key belong to the appellant 
is 
and his clan. 
the appellant 
The respondent surrounded by the clan land of 
L - --- -· -- - , __ 
-- as marked thus ,.. · . 
1 
at 
in the 4th column estimated .fver 250 acres al.though the area 
land claimed by the appel~ant he alleges is only 50 acres. 
The Respondent had a criminal habit of .trespassing 
into the Mkemwa clan land for a long time. But any 
expansion he did after 19/4/1988 when he promised to return 
the land to the Mkemwa clan and again on 2/6/88 before the 
village council which he developed afterwards outside his 
hereby adjudicated land with the red mark - he did so at his 
own peril- He admitted on 19/4/1988 that he purposely 
encroached to other areas of Mkemwa in these words; I quote 
him:- 
. n1r;.,-filLEZO YA NDUGU PAULO 
• I O • • • e e ♦ • ■ e • e ♦ e • e O • • ♦ • • ♦ e e • ♦ ■ ■ ♦ ■ • ♦ ■ • 
••.•••••••••••••••••••••.••••••••••• 0 ••• ~ ••• 
Kwa kuwa mimi nilihi taji ardhi b_asi nili- 
anza kuendeleza sehemu nyingine. Niliendeleza 
kwasababu nilikuwa nahitaji ardhi. Sikupewa. 
Niliendeleza kidogo sehemu fulani lakini Ndugu 
aliniandikia barua niache." 
means 
Paraphrased the quoted portion Z. that the statement 
of the respondent before the village government of 19/4/88 
confessed that he expanded his cultivation and development 
in other areas without being given by anybody because he needed 
that · 
more land. But_ , Jackson Mkemwa wrote 
J.. 
to him to stop him 
il'ik:emwa clan 
from encraching into the o~her areas of theLl~d• 
It was wrong for·the respondent to grab.other people's 
the . merely · . 
(Mkemwa' s) land for LunlawfuL sake ofL satisfying his greed 
• ..,/14

- 14 - 
·for land. He should have asked the village government to 
allocate him land. He took advantage of the disunity in 
the Mkemwa clan to expand unlawfully to their land. By 
1989 at least,the appellant had guts to face and sue the 
respondent. The appellant continued yet to grab other areas 
of the Mkernwa clan. By 19/7/90 the District Court armed 
a prohibition order as follows:- 
"Order: 
l. Respondent granted as prayed. Therefore 
the respondent is hereby ordered to stop activities 
on the land in dispute pending determination of 
the decision of the appeal. R~spondent to be 
notified the above order so that he stops to 
develop the land in dispute 
2. • •••••.•••....•••••...•.••...••••••••••••• 
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 
Sgd. J.B.C. Massito, D~M~ 
19/7/1990,." 
The respondent purported to have not about this stop 
order. After he was declared the winner of the appeal by the 
District Court. What he had won was in respect of the 3 acres 
borrowed from the late Lupituko Mkemwa and 5.06 bought from 
and the land in between these two blocks granted to him hebein- 
Jackson Mkemw~only. His plantation of wood trees-pine, a ove 
planted in other areas was trespassing into the land of the 
Mkewa clan and shall have to be removed by him by harvesting 
them. He is given 2 years to harvest the same by 19/8/2001 
after which period any trees not harvested shall belong to 
the Mkemwa clan who have already suffered a lot through their 
non use of their land due to the encroachment of the respondent.· 
He is free to negotiate with the appellant and other members 
• ;./15. 
t •

- 15 - 
of the Mcemwa clan for them to buy the trees outside the 
red line on the sketch map. 
The Hon. V.twaikasu, J. in his admission noted some 
legal issues for consideration by this cour't one being of 
time limitation. The acceptable date of the borrowing of 
the land by the respondent from the late Lupituko Mk.emwa in 
respect of the 3 acres so marked as first offer 1· ~ 
. . <:z:::?:::2::2:p_. 
I hold was 1976 as held by the primary court and District 
Court. By 1989 when this suit was filed was the appellant 
time barred? But, since it was · an invitation for him to use ·- l• 
the time 
it temporarily, the time bar operates fromLwhen the responde- 
nt started planting permanent trees. It can be deemed that 
he started planting them in 1976. So, by 1989 the appellant's 
· which the respondent 
clan were time barred as regards the initial 3 acresL~o~rowect 
from-the deceased father. Otherwise,as regards the 5.06 
Ii 
acres bought from Jackson JVkemwa in 1979 for 600/= by 1989 
when the suit was filed in. court there was no tirre bar as 
yet. The rest of the land was grabbed by the respondent 
after the death of Lupituko ~ke1I11Na in 1980. So, there was 
no time bar by 1989 when this suit was filed. 
The other issue raised was of errors in the procedure 
of the primary court in recording evidence twice from the 
same witnesses. This did not occasion injusti·ce to the 
parties concerned. So, it is remedied by this court under 
S.37 of the M.C.A, etc •. 
concerns 
The other iss~e L the bias of the learned Mr. Nyingi 
(DM) in allegedly preparing the memorandum of response to 
the 
the appeal on behalf ofLrespondent in the first appeal, This 
is not sufficiently proved to have indeed taken place. At 
any rate, the respondent had an adTocate the learned Mr. 
· raised for the 
Mwakingwe (Adv.) whereas there~wae~no objecti:m L.i,earne'+ Mr. 
Ny,jp.gi_nMto hear the appeal on that ground by the appellan~) • 
••• /16

- 16 - 
The other issue raised of failure by the 1st 
appellate court to hear the appeal after the preliminary 
objec_tion was· heard has been covered above in this court's 
ruling of 13/11/1992 o_ 
Otherwise, this appeal has partly won to the extend 
explained above, The appeal is partly allowed with costs. 
'\ 
Tt~' 
.... I _ _, E. L. K• ...__MW_I_PO~PO 
JUDGE 
19/8/1999 
19/8/1999 
Mwipopo, ,J. 
Alfred Mkemwa: Appellant - Absent in person 
For Appellant: ~..r. K~angole - Present 
Respondent: Paulo Mfugale: Absent in person··· 
B/C. Mr. Kosam 
COURT: Judgement delivered in the absence of the 
respondent. District Registrar to inform him 
accordingly. 
JUDGE