Langoi v Loserian ((PC) Civil Appeal Number 39 of 1997) [1998] TZHC 2540 (3 November 1998)

TAL1AN LANGO1 v. MUSEE LOSERIAN 379 In the present case PW1 had been declared a hostile witness. A When cross examined by the appellant she denied to have mentioned his name to the Police as she was unable to identify the rapist due to darkness. PW2 and PW3 whose evidence would probably have corroborated the retracted statement of PW 1, denied to have identified b the rapist. Under those circumstances there was no evidence at all. upon which to convict the appellant. It is rather interesting to note that PW 1 who was raped and felt the pinch denied the appellant to be her assailant. But the trial magistrate insisted he was the one. c This was not a proper case for the court to insist on what has been denied by the victim. It is upon the above reasons that I do hereby quash the conviction and set aside the sentence of 5 years imprisonment. The appellant D is to be released from prison forthwith unless lawfully held in custody for another charge or charges. ------------------------------------------------ E TALIAN LANGOI v. MUSEE LOSERIAN HIGH COURT OF TANZANIA F AT ARUSHA (Mroso, J.) G (PC) CIVIL APPEAL NUMBER 39 OF 1^97) (From the District Court of Arusha in Civil Appeal No. 9 of 1996) Evidence - Witness — Court witnesses — Circumstances under which a court can h call its own witness(es). Amongst his grounds of appeal the appellant criticized the trial court for calling its own witnesses on top of those called by the parties to the suit. I

380 TANZANIA LAW REPORTS [1999]T.L.R. A Held: (i) It was not necessary for the trial court to take it upon itself to call witnesses. (ii) The trial court ’ s decision was based on all the evidence which was adduced for the parties at the trial. B Appeal dismissed Cases refered to: (1) Joseph Marco v. Pascal Rweyemamu [1977] LRT n. 59 C (2) Barka Said Salim v. Mohamed Said [1970] HCD n. 95 (3) Salehe Mohamburi v. Naseni Mrinda [1969] HDC n. 276 Statutory provision referred to: D (1) Magistrats ’ Act 1985, section 25(1) Mr Chadha, for the Appellant JUDGMENT E (Dated 03 November 1998) MROSO J.: Before the merits of the appeal can be considered the respondent raised a preliminary point of objection that the appeal is barred by limitation. The appeal is on a judgment which originates in the Primary Court. According to section 25(1) of the Magistrates ’ Courts Act 1984 the time requisite for lodging an appeal to the High Court from the District Court in a case originating in the Primary G Court is thirty (30) days. The judgment of the first appellate court was delivered on 27 January 1997. The appellant ’ s earlier advocate, Mr Mughwai, applied H for a copy of judgment for appeal purposes on third (3) February 1997. According to Mr Chadha, learned advocate (current) for the appellant, the copy of judgment was supplied on 15 April 1997 and the appeal lodged on 15 May 1997. On the face of it, therefore, the appeal was filed out of time by seven days, even when the time requisite 1 for obtaining a copy of judgment is excluded. But it is submitted

TALIAN LANGOI v. MUSEE LOSERIAN 381 for the appellant that Mr Alute Mughwai who earlier acted for the appellant knew for the first time on 3 February 1997 that judgment had been delivered on 27 January 1997 and therefore that the period between 27 January 1997 and 3 February 1997 should be excluded in computing the time taken to lodge the appeal to the High Court. I have seen an affidavit which was filed by Mr Mughwai in which it is explained that the judgment in the case before the first appellate court had been adjourned twice, on 11 December 1996 and on 20 January 1997, because the magistrate who was to deliver it was not available on those two occassions. He says that on 20 January 1997 the magistrate ’ s clerk “ informed us that ... we were to be informed of the judgment date ” upon the return of the magistrate to the station. He further says that he and his client were never again notified of the date the judgment was to be delivered and that he just fortuitously discovered on 3 February 1997 that the judgment had in fact been delivered on 27 January 1997. The respondent filed a counter-affidavit in connection with the date the judgment was given. He says that on 20 January 1997 a court clerk by the name of Miss Fatina called up the case (although the record was not available), before late Luambano, Resident Magistrate, who orally adjourned it to 27 January 1997 for judgment. On 27 January 1997 the judgment was delivered on the afternoon in the absence of both parties. The respondent does not remember clearly if on 20 January 1997 when late Luambano, Resident Magistrate, allegedly said judgment would be delivered on 27 January 1997 the appellant and or his advocate was present. He uses the words “ we all appeared ” (before Luambano). This court is not sure who the word “ we ” stands for. He repeats the expression “ we all appeared ” in connection with the morning of 27 January 1997. If the term “ we ” means both the appellant and the respondent the inference would be that the appellant knew that judgment would be delivered on 27 January 1997 and that he has himself to blame if he did not wait for the delivery of the judgment on the afternoon of that date. However, considering the affidavit of Mr Mugwai

382 TANZANIA LAW REPORTS [I999]T.L.R. A it is probable the word “ we ” did not necessarily mean the appellant as well as the respondent or their respective advocates. It may well have meant just the respondent and his advocate. For the respondent ’ s affidavit to have the effect for which it was intended that is to say, B that the appellant was aware of the date of judgment, he should have stated in clear words that both the respondent and the appellant or their respective advocates were informed that judgment would be delivered on 27 January 1997. 1 am, therefore, not going to take the c word “ we ” to mean necessarily the appellant together with the respondent. In effect the preliminary objection has not been susbstantiated and is overruled. Now, to the merits of the appeal. The first and third grounds of appeal relate to evaluation of the d evidence. The second ground of appeal criticizes the trial court for calling its own witnesses and then basing its own witnesses and then basing its decision on the evidence of those witnesses. The fourth and last ground of appeal allege that the trial court denied the appellant E opportunity to call two more named witness. Let me start with the last ground of appeal. The appellant complains that the trial court wrongly refused him opportunity to call his other witnesses Manuel and Mama Natongoraki F (now deceased but was present in court during the trial). The respondent has disputed the complaint and, in fact, the record does not bear out the appellant. According to the court record, after the appellant ’ s witness number 4 -Ayubu Langoi had given evidence he (appellant) G informed the court that that was the close of his case. Since he was trying before me to suggest that the trial court record was not faithful I allowed him as well as anyone else who was in court immediately after the evidence of Ayubu Sangoi who supported his allegation to H file affidavits to the effect that he expressed the need to call the named witnesses but that the trial magistrate refused to take their evidence. No such affidavits were filed, even that of the appellant. I, therefore, find the appellant ’ s criticism against the trial court unfounded j in that regard. That of appeal is dismissed. I shall now consider the second ground of appeal.

TALIAN LANGO1 v. MUSEE LOSERIAN 383 It is true that after both appellant and the respondent had given a their respective evidence and their respective witnesses had testified, the court moved to the locus in quo and then said inter alia: ... baadaya ukaguzi wa shamba hilo lenye madai inaonekana wanaopakana g kabisa na shamba hilo ni Mishooki Wayani Langoi, Lydia Saul na hawa hawakutoa ushahidi wao hapa mahakamani (hawakuitwa na wadaawa) na mahakama hii inawaita kutoa ushahidi wa nyongeza. It would appear that a Primary Court hearing a case can call its own witnesses to give evidence. Rule 37 of the Primary Courts Civil Procedure Rules 1963 published in Government Notice Number 31 of 29 May 1964 says: 37. Where the courts (sic) calls a witness of its own motion it may jj direct that the expenses, if any, in respect of such witness be paid by any of the parties to the proceeding or by all parties in such proportion as it may think fit. The Civil Procedure Rules do not explain in what circumstances E the Primary Court would be entitled to call a witness of its own motion. Mr Chadha, citing Mulla on Civil Procedure (14 ed), Volume II at page 1232 (The Edition is not available in the court Library) on the power of court to call its own witnesses submitted that the power F should not be invoked to assist a weak case of a party. He says that although the provisions of the Civil Procedure Code do not apply to Primary Courts, that is a general principle underscoring the impartiality of courts. G Mr Chadha has the support of the decisions of the High Court. In the case of Joseph Marco v. Pascal Rweyemamu (1). In that case the trial court - which was either a District Court or a Court of Resident Magistrate - called its own witness and substantially based H its judgment on the evidence which was given by that witness. The court had relied on its authority provided by Order XVI, rule 14 of the Civil Procedure Code 1966. When the case went on appeal to the High Court Mfalila, Judge, as he then was, remarked: 1

384 TANZANIA LAW REPORTS [1999]T.L.R. ... it was extremely improper for him (the trial magistrate) to assist the plaintiff so openly in the prosecution of his case. If the trial magistrate or a judge takes upon himself of task of billing additional witnesses on behalf of any party to the dispute, and bias is alleged, it will be very difficult to displace. Secondly, I think such power should be very sparingly used ... Disapproval of the calling of a witness by a court to assist a party who has a weak case was also expressed by the High Court, late Hamlyn, J. in an earlier case. In Barka Said Salum v. Mohamed Said (2) a lady, Barka, had sued her husband, Mohamed, for divorce on the basis of allegations but called no witnesses to substantiate the allegation. The trial court found that her evidence alone was insufficient. On appeal to the District Court, the woman complained that the trial court should have called corroborating evidence. The District Court, however, wisely explained that it was for a party to present his or her own case to court and not for the court to make a case for the litigant. On further appeal to the High Court Hamlyn, J. said, agreeing with the District Court, that the woman was clearly wrong and that “ he litigant should produce what evidence there is to establish her case. ” He added: It is only rarely that a court will, of its own motion, in cases such as this seek to clarify an issue by requiring an additional witness. Perhaps an illustration of a situation in which the court can take initiative to call its own witnesses is provided in the decisions of Georges, C.J. (as he then was) in the case of Salehe Mahamburi v. Naseni Mrinda (3). A dispute over land in Pare was taken to the Primary Court. The plaintiff in the case had claimed that he inherited the disputed piece of land which the defendant had taken and subdivided to tenants.The trial Primary Court found for the plaintiff but on appeal to the District Court by the defendant the trial court decision was reversed on the ground that since the defendant was the person in possession he did not have to prove anything, rather it was for the

TALIAN LANGOI v. MUSEE LOSERIAN 385 plaintiff to prove his title. On further appeal to the High Court Georges, a C.J. said: Looking at the matter from the point of view of English Land Law, I would agree with the view - is however, expressed by the District Magistrate D proof of title here quite a difficult thing where there are no deeds showing ownership of customary land ... To decide cases on the basis of onus of proof, as in England, is not desirable and would certainly not be understood. I would therefore ... order a new trial before the Primary Court. If the parties do not call the Miao who originally is supposed to have authorized c the defendant to distribute the land, than the court should call him ... The persons actually in occupation of the land should also be summoned by the court if the parties do not call them. There will then be available enough material on which justly to arrive at a decision in this case. It D must be understood that parties are not legally advised in litigation in the Primary Courts. All efforts should be made, therefore, to have all the facts brought but ... I have quoted from Georges, C.J. ’ s judgment at some length in order E to see if the rationale in it can answer Mr Chadha ’ s complaint against the trial magistrate in the case under appeal. The trial court shown that the appellant as plaintiff gave evidence and called three witnesses, two of whom supported his claim that the disputed Yz acre piece of land belonged to him after he inherited it from his deceased father. Similarly, the respondent as defendant gave evidence and called four witnesses to support his counter-claim that the disputed piece of land belonged to him after h.e inherited it G from his own deceased father David Langoi (PW3) and Ayubu Langao (PW4) as well as Lokong ’ omwaki Loilojelejaki (DW3), Lobaya Motika (DW4) and (DW5) Lesian Landipitip were all close relatives of the parties. H The two witnesses who were called by the court of its own motion were also close relatives of both parties. They both gave evidence in support of the respondent. The question to be considered is whether 1

386 TANZANIA LAW REPORTS [1999]T.L.R. A it was necessary in order for a just decision in the case to be reached for the trial court to take upon itself to call those witnesses. With respect, it was not necessary at all for the trial court to call witnesses Naishooki Wayani andLyidia Saul. In fact the evidence B which they gave had already been given by witnesses who were called by the respondent. The trial magistrate, therefore, unnecessarily exposed himself to accusations of trying to strengthen respondent ’ s case against the appellant. c It is not true, however, as suggested by the appellant and argued by Mr Chadha that the decision of the trial court was based on the evidence of the court witnesses. Although the trial court made reference to that evidence, it is clear that the decision was based on all the D evidence which was adduced. Note the words in the Primary Court judgment which read: Mahakama hii imechunguza ushahidi wa pande zote mbili kwa makini E na kuona kuwa madai haya hayakuthibitika. I am satisfied that considering the evidence which was adduced for the parties at the trial and even disregarding the evidence of the court witnesses, it was simply a matter of credibility as to who between F the parties should succeed in the case. The two lower courts found the evidence of the respondent and his witnesses as the more credible and I have no valid grounds for disagreeing with them. I must, therefore, dismiss this appeal with costs. G H