W1C001T
<I>

Judgment

<name/>
This Appellant <name/> together with one <name/> were arraigned and taken before the Resident Magistrate's Court at Mwanza to face the charge containing eleven counts. The appellant was the 1st accused at the trial, while <name/> was the 2nd count.
In the 1st Count, they were jointly charged with the offence of conspiracy to steal c/s 306 of the Penal Code.
The particulars of the offence were stated, that on the 27th of November, 1981, in the Municipality of Mwanza, Mwanza Region, they jointly and together conspired to deceive the Post Office deposit SB 24 B receipt, receipt No. G 880441, purporting to show fraudulently, that Shs.85,000/= was a genuine deposit in Saving Account No. TMWN 20605 whereas it was in fact <-/fals>.
In the 2nd count, the appellant, who was at the material time a Counter Clerk with the Mwanza Post Office was alone charged with the offence of fraudulent false accounting, contrary to section 317(b) of the Penal Code. It was alleged in the particulars of offence for this count that on the 7th of November 1987, being a Clerk with the Mwanza Post Office Bank, with intent to defraud, made or was privy to the making of a false entry in passbook No. TMN 20605 and SB 24(B) receipt No. G 880441 belonging to his employer, purporting to show that one <name/> had deposited Shs.85,000/= whereas it was false.
The appellant also faced a number of counts for stealing with regard to the sums of money the 2nd accused at the trial had withdrawn at different times from the pass book, No. TMWN 20605. Likewise the appellant co-accused also faced separate counts for stealing with regard to the money he withdrew from the said Passbook. There was however an 11th count in respect of the appellant alone and which was preferred in the alternative counts 1, 5, 7 and 9 on the charge. And it was stealing Shs.85,000/= by public servant c/s 270 of the Penal Code. And the particulars of the offence alleged that on the 27th of November 1987, at Mwanza Post Office being an employee by the Tanzania Post Saving Bank as a Clerk did steal Shs.85,000/= the property of his employer which came into possession by virtue of his employment. At the conclusion of the trial, both the appellant and his co-accused at the trial were acquitted of all the counts he stood charged with on the charge. The trial Court found and held that the appellant's co-accused may indeed have deposited Shs.85,000/= as shown in the Passbook No. TMWN 20605 and in SB(B) receipt No. 880441 and he was thus entitled to make the withdrawals he made from the said Passbook. And he could not therefore be said to have stolen the money he withdrew.
The appellant was also acquitted of all the other counts, except count 2 and 11. It held that count 2, fraudulent false accounting was proved as well as the 11th count. That is the appellant stole the money, Shs.85,000/= which his co-accused  deposited with Posts Bank as this deposit and this sum was not reflected in the counter Balance Book and he was the person who had received this money and attended the 2nd accused at the trial. After conviction the appellant was sentenced to three years imprisonment on the 2nd count and five years imprisonment on the 11thcount. The sentences were ordered to run concurrently.
The appellant has now appealed to this Court against conviction and sentence. And he appeared in person at the hearing of the appeal. <name/> learned State Attorney appeared for the Republic and supported conviction.
The background of the case is briefly that, on the 26th March 1988, the 2nd accused at the trial, went to Temeke Post Office in Dar es Salaam to withdraw some money from his Passbook No. TMWN 20605. PW.2, <name/> attended him. And in the course of doing so, she discovered that the intended withdrawal was premature in the sense that it was less than seven days since the last time, a withdrawal was made from that Passbook Exh.A. PW2, then contacted the Post Office saving Bank headquarters in Dar es Salaam seeking authority to allow the 2nd accused at the trial to withdraw the money he wanted, despite the fact that it was not yet seven days since the last withdrawal was made. She also wanted to know whether the Bank headquarters had been advised or was aware of the deposit of Shs.85,000/= made at Mwanza office as was shown in the Passbook, Exhibit P6 and in SB 24(b) receipt, No. G 880441 of 27th November 1987 which was attached of affixed in the Passbook. She talked to one <name/>, PW3. PW3 informed PW2, that they was no advice from Mwanza regarding that deposit. He thus advised that the customer should be held for further investigation and PW4 an investigating officer with the Bank was brought into the picture and ultimately the 2nd accused was arrested in connection with the matter.
Further investigation revealed according to PW1 and PW6 and the handwriting expert report Exhibit P8 that it is the appellant who had issued, the Passbook in question to the 2nd accused at the trial and was one who had made the entries in the Passbook depicting that the 85,000/= had been deposited. And that he also wrote the SB 24(b) receipt No G 880441 which was affixed in the Passbook also depicting that Shs.85,000/= had been deposited. And that the Passbook No. TMWN 20605/0 was one of the books which were issued to the appellant for use. But according to PW2, the Passbook in question was issued to the appellant on the 4th of December 1987. There was therefore a mystery as to how, the Passbook – could have been issued to the 2nd accused on the 7th of November 1987 as shown in the deposit entry in the Passbook or 27th November 1987, as the SB 24(b) receipt No. G 880441 shows.
And further the deposit of Shs.85,000/= was not reflected in the Counter Balance Book Exh.P4. The counter Balance Book carries summary of the financial activities a count clerk undertakes per day. For the day of 27th November 1987, it is indicated that the appellant only receives deposits worth Shs.500 only, and not Shs.85,000/= as shown in SB 24(b) receipt No. G 880441 attached or affixed in the said Passbook as well as in the copy of this receipt which is on the Receipt Book, Exh.P2.
It was on this information or evidence that the appellant and his co-accused were jointly charged.
It would appear the thrust of the prosecution case at the trial was that the alleged deposit of Shs.85,000/= as shown in the Passbook Exh.P.6 and in the SB 24(b) receipt No. G 880441 was fictitious and that the appellant and his co-accused had acted in concert to steal this money from the Post Bank by falsely purporting that a deposit of the said sum had been made in the Passbook Exh.P6.
But as observed above, the trial court found and held that the 2nd accused did indeed deposit this money and acquitted him. And that it is the appellant who failed to account for this money to his employer. He stole it. It would appear the Republic did not appeal against this finding.
I have carefully considered and reflected on the evidence on record as well as on the appellant's grounds of appeal as set out in his position of appeal.
It would appear to me, after the trial court had found and held that the 2nd accused at the trial did not in fact deposit the money, i.e. Shs.85,000/= as reflected in the Passbook Exhibit P6 and in the SB 24(b) Receipt No. G 880441 of 27th November 1987, it should not with respect, in my view, have convicted the appellant on the 2nd count i.e. fraudulent false accounting c/s 317(b) of the Penal Code. For the thrust of this finding is that these entries in the Passbook as well as in the receipt, No. G 880441 reflected the true position of what took place. They were therefore according to this finding genuine entries. As already said this finding has not been appealed against the Republic. It therefore stands. I would and hereby therefore quash the appellant's conviction on this count and I set aside the sentence which was imposed on this count. It is so ordered. For in the light of this finding what was false was the appellant's entry in the counter Balance Book Exh.P4 of 27th November 1987 that he had only received deposit amounting to the Shs.500/=.
This therefore leaves only the 11th count, that is, stealing by servant, Shs.85,000/= which as already was preferred in the alternative against the appellant alone and for which he was also convicted. I have carefully and anxiously perused and considered the evidence with regard to this count.
The thrust of the appellant's defence at the trial as well as in his position of appeal is that he never attended the person who was the 2nd accused at the trial and that he did not make or/and was not privy to the making, of the documents and the entries relating to the alleged deposit of Shs.85,000/=. He does however admit that the Passbook No. TMWN 20605 was issued to him. But that he never issued it to anybody, implying as it were, that it may have been stolen and used without his knowledge by one of his fellow workers at his place of work.
Admittedly, there is considerable confusion with regard to the handling of the Passbook TMWN 20605/0, Exhibit P6. According to PW.1, <name/>, this book was issued to the appellant on the 4th December 1987. According to this evidence the book was therefore not in the appellant's possession at the time he is alleged to have made the deposit entry into it on the 7th of November 1987 or when he is alleged to have written the receipt No. G880441 reflecting the deposit of Shs.85,000/=. On the 27th of November, 1987. And in any case the entry in the Passbook and in the SB 24(b) receipt should have borne the same date. It is perhaps possible the date 7 in the Passbook was mistake. Be that as it may, after carefully reflecting on the evidence as a whole, I am inclined to the view that the appellant was the author of the entry in the Passbook Exh.P6 - depicting Shs.85,000/= was deposited as well as in receipt SB 24(b) of 27th November 1987 also depicting that said sum of money was deposited the same. He may indeed have received the passbook on the 4th of December 1987, but that the entries afore said were back dated, possibly with the collusion of the person who was the 2nd accused at the trial. I am inclined to the view that he authored these entries for the following reasons.
Firstly that the Passbook in question was in his custody before it was used and it was not lost, at least there was no report made to that effort by the appellant to the authorities concerned. I am aware of the fact that the evidence of a co-accused against the other must be acted upon with great caution for the reasons that are obvious to see. But nonetheless the appellant co-accused stated in his testimony in defence that, it is the appellant who attended him and issued him with the Passbook n question. This evidence would not in law need corroboration – see the case of <name/> v R. 1968 HCD 366 though of course one would need to warn himself of the dangers of convicting solely on the evidence of a co-accused. But there is also in this case the handwriting expert's report Exh. P.8 which was admitted into evidence without objection from the appellant. It was only latter in defence when the appellant expressed a need of having the expert called to testify in person a request which was not granted by the trial court as it was felt that he could not be made available without undue delay, at the stage the request was made. And I am inclined to the view the trial court was entitled to so hold at the stage the request was made. In the report, the handwriting expert, clearly opined that the appellant was the one who wrote the entry in the Passbook which indicated that Shs.85,000/= was deposited. The report further indicates that he was also the author of the receipt SB 24 (b) G 880441 of 27th November 1987 also reflecting that the alleged deposit of Shs.85,000/= was made by the 2nd accused at the trial. A copy of this receipt is in the Receipt book, Exh.P2 and the appellant admitted at the trial in his defence that this receipt book Exhibit, P2 and from which the SB 24(b) receipt No. G 880441 was issued was in his custody at the material time. 
</I>
W1C002T
<I>

JUDGEMENT

<name/>
This civil case has been presented with some sentiments, I am sorry to say. But, in the upshot, the matter is essentially an outcome of the ”mess”, I am sorry to use that word, that is there at Land Office – office that distributes plots and grants people rights of occupancy.
The parcel of land that the parties are fighting over is at Kunduchi Beach. The plot, or plots rub shoulders with the Indian Ocean: What beautiful plots.
What are the facts that have led the parties, <name/> on one side and <name/> on the offer side to send each other to Court? This I will tell.
In 1973, the plaintiff, <name/>, saw a parcel of land (unsurveyed) at Kunduchi Mtongani, in D’Salaam. He liked that piece of land. He went there and cleared the ”bush” as it were. He started cultivating that piece of land. It can reasonably be assumed that he planted bananas, cassava and other, not permanent crops. He himself says that he put a tap there and watered his area, as it were.
Adjacent to his unsurveyed area was his father the late <name/>. The old man died in 1980. Things were peaceful for the plaintiff and his late father to just early 1980’s. I must hasten to point out that the plaintiff was in the area with full consent of the villagers around the area (see the evidence of Saidi Ali PW5).
In 1978, without the knowledge of the plaintiff and his late father, it would appear, the defendant, <name/> came into the area. What the defendant did, from what I gather in the case, is that he first went to either the City Council or Land Office, and there told Surveyors that he had a piece of land he had wanted surveyed. And, indeed, quickly the area got surveyed and was <-/alloted> Plot 24A. <name/> <-/pocessed> all necessary documents, it would appear, and got a Right of Occupancy (full title deed) No.25749 LO No.64136 dated 1/7/78. The area that <name/> asked that it be surveyed or got surveyed included the portion that the Plaintiff was cultivating.
On hearing the news that the whole area had got surveyed, area that included that of the plaintiff, the plaintiff got shocked. In the normal course of events, once an area gets surveyed and there is a person with a structure on any recognisable feature in the area, that person gets the first offer. But the plaintiff was never given an offer. And so, it appeared in the eyes of law, and correctly so, the plaintiff became a trespasser.
What <name/> did immediately he got the right of occupancy over that large area, an area that included the one that formerly belonged to the plaintiff, he first to fence it all and then start building houses on both places; that which he had been given, and that which had belonged to <name/>, the plaintiff. These two structures went up at a frightening big speed. They were going up simultaneously. The ides was to have a main house and a guest house, as  <name/> DW1said.
And so, the two buildings got completed in 1983, and the defendant <name/> got satisfied that all was well.
The plaintiff, however, on seeing that the land had been surveyed, and he had no offer, and in fact no plot in the area, went to the Ministry of Lands and Urban Development to complain. The plaintiff complained that how come, the area had been surveyed and he who had been there already, had not been given a piece of land or a plot. Of course, as one can see, the letters in the file which are either in form of <-/annextures>, or exhibits, some political <-/overstone> went in. For example, in one of the letters of complaint, the plaintiff, to the Director of Land Development Services, dated 28th May, 1982. – Exh.P2, the plaintiff states:
"That I was shocked in October, 1979 to learn that one <name/>, a white man, a German Citizen had in the same month been granted a Right of Occupancy on my <ea/>shamba including the building site and that <name/> had began building operations in the earnest, using my building materials which he found on the site including the water which I caused to be on the site"
<name/> then went on to state:
"I strongly feel that the grant of a right of occupancy to <name/> was irregular for two main reasons: Firstly the land in question was already occupied and plans were underway for developing the land in accordance with Township (Building) Rules. Secondly, as stated above, the village: Council of Mtongani Ujamaa village and myself were not consulted before the grant. I hope that such consultations are necessary whether or not the land in questions is within the boundaries of a township."
<name/> then concluded:
"In these circumstances I could ask you, Sir, to advise the relevant authority to withdraw/revoke <name/>'s right of occupancy immediately, and thereby compel <name/> to vacate the land.
I am prepared to pay any compensation for any development he has made on the said plot."
And, of course, as a result of that complaint by the plaintiff, a revocation order was made and published (see exh.P3) and the defendant found himself without land.
But matters did not end there. The defendant also made his protest to the Minister for Lands Housing and Urban Development (see letter dated 22nd March – as an annexe). The defendant complained that he had done no wrong. He implored with the Minister for Lands to allow him remain in the area, or be re-allocated a portion of the land. That is when <name/> PW2 has <_/depoced>, the Ministry felt it fit to divide the plot into two – one being 24A/1 and the other being 24A/2 How was the distribution made in respect of these two plot? It was made in a funny way:
Plot No.24A/1 was given to the defendant and plot No.24A/2 was given to the plaintiff. A Right of occupancy was made in respect of Plot 24A/1 that belonged to the plaintiff, <name/>. No Right of Occupancy was made in respect of Plot 24A/2 – The plot that had been given to the defendant. Instead, the defendant was made to retain the old title deed (No.25749) which I have pointed out bears the number of Plot 24A. (Plot 24A/1 and Plot 24A/2 inclusive).
That arrangement that the Land Office adopted has as I will demonstrate, been the source of the complaint in this case. The interpretation of all that is this: That Plot No.24A still exists but the Land Office has <-/purpoted> to divide it into two, Plot 24A/1 and Plot 24A/2. However, the plaintiff has been given Plot24A/2 which was given Right of Occupancy No.30378. But, the truth of the matter is that the Defendant has a title which bears the number of 24A which covers the entire area, including the one given to the plaintiff. That arrangement, as I said, was most undesirable. I asked <name/> about that arrangement, and why they thought it was good to make it, and this is what <name/> replied. He said:
"The time the acquisition was made, the land belonged to the defendant. He has absolute interest. The title 24A was not obliterated. We did not issue a new title to avoid confusion with institutions which would have interest in the plot.
After the intention to acquire was announced the defendant made presentation, I think. I do not have the file." (underscoring mine)
<name/> had earlier been asked why they acquired the land that had belonged to the defendant, and this is what he said:
"We used the Land Acquisition Act, to acquire the land. Yes, we acquired on public interest. That was the only way of solving the problem. Yes, the two had <-/quarelled>."
And, again, <name/> had been asked, why they had to advise the Minister to revoke the title of the defendant at all, and this is what he replied:
"We had acquired in order to take a portion of it. The title given to the plaintiff read Title No.24A/2. The plaintiff never complained at the sub-division. I can't remember the date of the sub-division. The defendant has been unco-operative, passive. We have not assessed the reaction of the defendant."
That, in short is the case for the plaintiff.
The plaintiff prays that a declaration be made to say that he is the owner of Plot No.24A/2 and that he be put into possession. The plaintiff also prays that an order be made to allow him enter these premises which as we saw, are fenced off, and are still part and parcel of the old Plot 24A. As there is a house at the Plot that <name/> needs, <name/> asks that this house be demolished or alternatively it be assessed so that he buys it off, as the house stands on his plot. He also asks for damages or <ea/>mesne profits and interest etc etc.
The defendant through <name/>, learned advocate, has complained bitterly over the whole case. If I have understood the defendant's case well, it is this:
The defendant, in the first place, states that Plot 24A had been given to him after it was surveyed by whatever authority is responsible for surveying such plots. After a survey he was given the plot (Plot 24A). A title deed was prepared and given to him – No.25749. Immediately he got the Plot, he developed it, building two structures on the plot. Defendant the, seems to go on to say that the revocation of his title has been without cause. He suggests that obviously the revocation was done in order to take away a portion of the land from him so that it is given to the plaintiff, which, actually is what happened. That assertion, namely, that the land was taken away from him in order that it be given to the plaintiff was supported by <name/> PW2. The defendant suggest, therefore, that the move was a most unfair move. The President, on the Minister, acting under delegated powers, cannot revoke a title deed except for good reasons as propounded in the cases of Patman Garments (1981) TLR at page 303. <name/> has also cited to me three other cases, that of Metal Products  Ltd. V Minister of Lands (DSM), and Misc. Civil Case No.42/91 (DSM), Bahati J. which support Patman's case.
To sum up, therefore, the case for the defendant is that the plaintiff has no cause of complaint against the defendant who was lawfully given the plot, and who lawfully built a house there. He also argues that the revocation was without legal force, and should be declared of no legal effect.
At the beginning of the case, we drew six issues, for the determination of this Court. The issues were:
1.	Whether the plaintiff had been in occupation of the suit premises prior to the grant of the Right of Occupancy to the defendant.
2.	Whether the plaintiff is the lawful owner of Plot 24A/2.
3.	Whether the plaintiff obtained Plot 24A/2 fraudulently and by using his position as a Government Minister.
4.	Whether the defendant is a trespasser.
5.	Whether Plot 24A was acquired by the Government lawfully.
6.	To what <-/reliefs> are the parties entitled to.
I now want to answer those issues, in light of the evidence before <-/ment>.
With all circumspection the answer to issue No.1 is that the plaintiff was indeed, in occupation of the suit premises prior to the grant of Right of Occupancy to the defendant. But, the plaintiff, at all material times before the survey, was a squatter. And it is arguable, as James and Fimbo say, in their book Customary Land Law of Tanzania at page 592, "whether persons <_/occupaying> town land without any grant are using and occupying such land under customary law."
If, the plaintiff, therefore, was a squatter, there was nothing wrong with the <-/Ministery> of Lands surveying the land and giving it to the defendant, as the positive in this case was.
Issue No.2, would therefore be answered by saying that the defendant was, and is, the lawful owner of not only Plot 24A/1 but the entire plot 24A which has not been obliterated. In other words, what I am saying is that Plot 24A/2 and Plot 24A/1 do not, in the eyes of the law, exist. They <-_dont><+_don't> exist because of two things: First, the action of revocation of Plot 24A was unlawful as it did not <-/fonform> with the requirements of s.10 of the Land Ordinance. The case of Patman Garments Industries Ltd. V. Tanzania Manufacturing Limited (1981) TLR at page 303 (originally Civil Appeal No.15 of 1981 (DSM) of the Court of Appeal) is an authority for the preposition that the President may not revoke a right of occupancy over a piece of land unless the requirements in section 10 are satisfied.
In accordance with s.10 of the Land Ordinance, the President may acquire land previously given to another for public interest, but as I dare say, taking away the piece of land and giving it to<name/>, the plaintiff, was not acting in public interest. 
</I>
W1C003T
<I>

JUDGEMENT OF THE COURT

<name/>:
This case clearly demonstrates how an understanding of our Country’s past is crucial to a better understanding of our present, and why it is important while understanding our past, to avoid living in that past. The respondents, namely, <name/> and <name/> are father and son, living in the village of Kambi ya Simba, Mbulumbulu Ward, Mbulu District, in Arusha Region. In January 1987 they successfully instituted a suit in the Court of the Resident Magistrate for Arusha Region for recovery of a piece of land held under customary law. An eviction order was subsequently issued for eviction of the judgement debtors and the respondents were given possession of the piece of land in question. There is currently an appeal pending in the High Court at Arusha against the judgement of the trial court. This is Arusha High Court Civil Appeal No. 6 of 1991. While this appeal was pending, a new law, which came into force on the 28th December 1992, was enacted by the Parliament, declaring the extinction of customary rights in land, prohibiting the payment of compensation for such extinction, ousting the jurisdiction of the courts, terminating proceedings pending in the courts, and prohibiting the enforcement of any court decision or decree concerning matters in respect of which jurisdiction was ousted. The law also established, inter alia, a tribunal with exclusive jurisdiction to deal with the matters taken out of the jurisdiction of the courts. This new law is the Regulation of Land Tenure (Established Villages) Act, 1992, Act No.22 of 1992, hereinafter called Act No. 22 of 1992.
Aggrieved by this new law, the respondents petitioned against the Attorney-General in the High Court, under articles 30 (3) and 26 (2) of the Constitution of the United Republic of Tanzania, for a declaration to the effect that the new law is unconstitutional and consequently null and void. The High Court, <name/>, granted the petition and ordered the new law struck off the statute book. The Attorney-General was aggrieved by the judgement and order of the High Court, hence he sought and obtained leave to appeal to this Court. Mr. <name/>, the learned Deputy Attorney-General, assisted by Mr. <name/>, State Attorney, appeared for the Attorney-General, whereas <name/> and <name/>, learned advocates, appeared for the respondents.
From the proceedings in this court and the court below, it is apparent that there is no dispute between the parties that during the colonial days, the respondents acquired a piece of land under customary law. Between 1970 and 1977 there was a country-wide operation undertaken in the rural areas by the Government and the ruling party, to move and settle the majority of the scattered rural population into villages on the mainland of Tanzania. One such village was Kambi ya Simba village where the respondents reside. During this exercise, commonly referred to as Operation Vijiji, there was wide-spread re-allocation of land between the villagers concerned. Among those affected by the operation were the respondents, who were moved away from the land they had acquired during the colonial days to another piece of land within the same village. The respondents were apparently not satisfied with this reallocation and it was for the purpose of recovering their original piece of land that they instituted the legal action already mentioned. Before the case was concluded in 1989, subsidiary legislation was made by the appropriate Minister under the Land Development (Specified Areas) Regulations, 1986 read together with the Rural Land (Planning an <-/Utilization>) Act, 1973, Act No. 14 of 1973 extinguishing all customary rights in land in 92 villages listed in a schedule. This is the Extinction of Customary Land Right Order, 1987 published as Government Notice No. 88 of 13th February 1987. The order vested the land concerned in the respective District Councils having jurisdiction over the area where the land is situated. The respondents’ village is listed as Number 22 in that schedule. All the 92 villages listed under the Order including the respondents’ village, are in areas within Arusha Region.
The Memorandum of appeal submitted to us for the appellant contains nine grounds of appeal, two of which, that is ground number 8 and 9 were abandoned in the course of hearing the appeal. The remaining seven grounds of appeal read as follows:
1.	That the Honourable Trial Judge erred in fact and law in holding that a deemed Right of Occupancy as defined in section 2 of the Land Ordinance Cap 113 is ”property” for the purposes of Article 24(1) of the Constitution of the United Republic of Tanzania 1977 and as such its deprivation is unconstitutional.
2.	That the Honourable trial Judge erred in law and fact in holding that section 4 of the Regulation of Land Tenure (Established Villages) Act, 1992, precludes compensation for unexhausted improvements.
3.	That the Honourable Trial Judge erred in law and fact in holding that any statutory provision ousting the jurisdiction is contrary to the Constitution of the United Republic of Tanzania.
4.	That the Honourable Trial Judge erred in law by holding that the whole of the Regulation of Land Tenure (Established Villages) Act 1992 is unconstitutional.
5.	That the Honourable Trial Judge erred in law and fact in holding that the Regulation of Land Tenure (Established Villages) Act 1992 did acquire the Respondents’ law and reallocated the same to other people and in holding that the Act was discriminatory.
6.	That having declared the Regulation of Land Tenure (Established Villages) Act 1992 unconstitutional, the Honourable Judge erred in law in proceeding to strike it down.
7.	The Honourable Trial Judge erred in fact by quoting and considering a wrong and non-existing section of the law.
The respondents on their part submitted two notices before the hearing of the appeal. The First is a Notice of Motion purportedly under Rule 3 of the Tanzania Court of Appeal Rules, 1979, and the second, is a Notice of Grounds for affirming the decision in terms of Rule 93 of the same. The Notice of Motion sought to have the court strike out the grounds of appeal numbers 1, 5,  8 and 9. After hearing both sides, we were satisfied that the procedure adopted by the respondents was contrary to rules 45 and 55 which require such an application to be made before a single judge. We therefore ordered the Notice of Motion to be struck off the record.
As to the Notice of Grounds for affirming the decision of the High Court, it reads as follows:
1.	As the appellant had not pleaded in his Reply to the Petition facts or points of law showing controversy, the court ought to have held that the petition stands unopposed.
2.	Since the Respondents have a court decree in their favour, the Legislature cannot nullify the said decree as it is against public policy, and against the Constitution of Tanzania.
3.	As the Respondents have improved the land, they are by that reason alone entitled to compensation in the manner stipulated in the Constitution and that compensation is payable before their rights in land could be extinguished.
4.	Possession and use of land constitute ”property” capable of protection under the Constitution of Tanzania. Act No. 22 of 1992 is therefore unconstitutional to the extent that it seeks to deny compensation for loss of use; it denies right to be heard before extinction of the right.
5.	Operation Vijiji gave no person a right to occupy or use somebody else’s land, hence no rights could have been acquired as a result of that ”operation”.
6.	The victims of Operation Vijiji are entitled to reparations, The Constitution cannot therefore be interpreted to worsen their plight.
7.	The land is the Respondents’ only means to sustain life. Their rights therein cannot therefore be extinguished or acquired in the manner the Legislature seeks to do without violating the Respondents’ constitutional right to life.
For purposes of clarity, we are going to deal with the grounds of appeal one by one, and in the process, take into account the grounds submitted by the respondents for affirming the decision wherever they are relevant to our decision.
Ground number one raises an issue which has far-reaching consequences to the majority of the people of this country, who depend on land for their livelihood. Article 24 of the Constitution of the United Republic of Tanzania recognizes the right of every person in Tanzania to acquire and own property and to have such property protected. Sub-article (2) of that provision prohibits the forfeiture or expropriation of such property without fair compensation. It is the contention of the Attorney-General, as eloquently articulated before us by Mr. <name/>, Deputy Attorney-General, that a ”right of occupancy” which includes customary rights in land as defined under section 2 of the Land Ordinance, Cap 113 of the Revised Laws of Tanzania Mainland, is not property within the meaning of article 24 of the Constitution and is therefore not protected by the Constitution. The Deputy Attorney-General cited a number of authorities, including the case of <name/> vs THE SECRETARY SOUTHERN NIGERIA (1921) 2 A.C. 399 and the case of <name/> vs THE ATTORNEY-GENERAL (1953)20 E.A.C.A. 108, the latter arising from our own jurisdiction. The effect of these authorities is that customary rights in land are by their nature not rights of ownership of land, but rights to use or occupy land, the ownership which s vested in the community or communal authority. The Deputy Attorney-General also contended to the effect that the express words of the Constitution under Article 24 makes the right to property, ”subject to the relevant laws of the land”.
Mr. <name/> for the respondents has countered Mr. <name/> contention by submitting to the effect that whatever the nature of customary rights in land, such rights have every characteristic of property, as commonly known, and therefore fall within the scope of article 24 of the Constitution. He cited a number of authorities in support of that position, including the Zimbabwe case of <name/> vs MINISTER OF FINANCE (1981) ZLR 573, and the case of <name/> vs ATTORNEY_GENERAL (N.2) 1970 EA 523 and the scholarly article by Thomas Allen, lecturer in Law, University of Newcastle, published in the International and Comparative Law Quarterly, Vol. 42, July 1993 on ”Commonwealth constitutions and the right not to be deprived of property”.
Undoubtedly the learned trial judge, appears to have been of the view that the customary or deemed rights of occupancy are the property within the scope of article 24 of the Constitution when she stated in her judgement:
”I have already noted earlier on that the petitioner legally possess the suit land under customary land tenure under section 2 of the Land Ordinance Cap 113. They have not in this application sought any special status, rights or privileges and the court has not conferred any on the petitioners. Like all other law abiding citizens of this country, the petitioners are equally entitled to basic human rights including the right to possess the deemed rights of occupancy they lawfully acquired pursuant to Article 24 (1) of the Constitution and section 2 of the Land Ordinance, cap 113.”
Is the trial judge correct? We have considered this momentous issue with the judicial care it deserves. We realize that if the Deputy Attorney-General is correct, then most of the inhabitants of Tanzania mainland are no better than squatters in their country. It is a serious proposition. Of course if that is the correct position in law, it is our duty to agree with the Deputy Attorney-General, without fear or favour, after closely examining the relevant law and he principle underlying it.
In order to ascertain the correct legal position, we have had to look at the historical background of the written law of land tenure on the mainland of Tanzania, since the establishment of British Rule. This exercise has been most helpful in giving us an understanding of the nature of rights or interests in land on the mainland of Tanzania. This historical background shows that the overriding legal concern of the British authorities, no doubt under the influence of the Mandate of the League of Nations and subsequently of the Trusteeship Council, with regard to land, was to safeguard, protect, and not to derogate from, the rights in land of the indigenous inhabitants. This is apparent in the Preamble to what was then known as the Land Tenure Ordinance, Cap 113 which came into force on 26 January, 1923. The Preamble reads:
”Whereas it is expedient that the existing customary rights of the natives of the Tanganyika Territory to use and enjoy the land of the territory and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves their families and their posterity should be assured, protected and preserved;
AND WHEREAS it is expedient that the rights and obligations of the Government in regard to the whole of the lands within the Territory and also the rights and obligations of cultivators or other persons claiming to have an interest in such lands should be defined by law.
</I>
W1C004T
<I>

JUDGEMENT OF THE COURT

<name/>:
This is a second appeal by the two appellants, namely, <name/> and <name/>, hereinafter called the appellants. Their first appeal was to the High Court of Tanzania at Arusha. The appellants’ father, namely <name/>, instituted a suit in the High Court of the Resident Magistrate for Arusha Region in July 1988 against the respondent <name/> in respect of a piece of land situated in Losikito Village, Mwandet Ward, in Arusha District. Subsequently the plaint was amended in November 1988 substituting the appellants for their father. The amendments were made consequent upon appellants’ father giving the piece of land in dispute to the appellants. The suit sought a declaration to the effect that the piece of land in dispute lawfully belonged to the appellants and payment of damages by the respondent for trespass. The respondent in his defence counterclaimed for payment of damages for trespass by the appellants. At the conclusion of the trial, the Court dismissed the appellants’ claims and granted the counterclaim by the respondent with interest and costs.
The appellants were aggrieved by the decision of the trial Court and they appealed to the High Court. He appeal was partly successful and partly unsuccessful in that the first appellate Court, <name/> allowed the appeal in respect of the counterclaim but otherwise dismissed the appeal. The appellants were further aggrieved by the decision of the High Court and they sought leave to appeal to this Court according to law. The High Court, <name/> rejected the application. The appellants then successfully sought such leave from a single judge of this Court, <name/> . Mr. <name/> learned advocate, and Mr. <name/>, learned advocate, represented the appellants and respondent respectively throughout these proceedings in this Court and the two Courts below. Mr. <name/> appeared for the respondent for part of the proceedings at the trial. 
It is apparent from the proceedings in this Court and the two Courts below that the appellants and the respondent are closely related. The appellants are brothers and the respondent is their uncle by virtue of being a brother of their late father <name/>. It is common ground that the piece of land in dispute was once part of land belonging to one <name/>, the father of both the respondent and appellants’ late father, and thus grandfather of the appellants. The said <name/> died a long time ago but was survived by many sons and daughters, including the respondent and the late father of the appellants.
It is common ground also that before the said <name/>  died, he distributed some of his land between his sons, including the respondent and the late father of the appellants. There is common ground also that prior to the present dispute, appellants’ father was involved in another dispute concerning ownership of land in his locality. That case was tried and decided by Emaoi Primary Court as Civil Case No.107 of 1968. It went on appeal to the District Court of Arusha District as Civil Appeal No. 12 of 1969 and to the High Court at Arusha as (PC) Civil Appeal No. 22  of 1970. The judgements of the Primary Court and High Court were produced at the trial collectively as exhibits P1. It is not in dispute between the parties that besides the present case, <name/>, (the first appellant in this case) has been involved in a criminal case, that is Criminal Case No. 135 of 1989 for which he was convicted and fined. The record of the case was produced at the trial as exhibit P2. There is also no dispute between the parties to this case that the present dispute has given rise to proceedings before the Arusha Land Tribunal which were still pending between the respondent and the late father of the appellants at the time of hearing this case. The record of proceedings was produced as exhibit P3 at the trial.
It is apparent from the proceedings both in the Court and the two Courts below that the appellants contend that the piece of land in dispute belonged to their late father, who subsequently gave it to the appellants after the commencement of this case. It is part of the appellants’ case that their father’s title to that land was confirmed by Courts of law in the Civil Case referred to in exhibit P1. The appellants further contend that the respondent has on several occasions trespassed into the appellants’ land and cut down appellants’ trees and banana plants.
On the other hand, the respondent’s case according to the proceedings in this Court and the two Courts below is that the piece of land in dispute does not belong to the appellants, but belongs in common to the sons of appellants’ grandfather, namely <name/>, who had set it aside as common pasture or grazing land for cattle of his many sons. It is part of respondent’s case that the late father of the appellants was so troublesome that <name/> gave him his separate pasture land as part of patrimony, and excluded him from the common pasture land. Furthermore, it is respondent’s case that the Civil Case adjudicated in exhibit P1 concerned land which is different from the land in dispute in the recent case. In conclusion, respondent contends that the late father of the appellants has on divers occasions trespassed into the land in dispute and wrongfully planted trees therein.
 The first important point for consideration and decision, and which is the subject of ground number one in the Memorandum of appeal filed for the appellants, is whether the trial Court delivered its judgement, and if not, what are the legal consequences of the failure. Unfortunately, this issue was not raised by the appellants in the first appeal in the High Court. The issue is being raised for the first time before us in ground number one thus:
”The Honourable Judge erred in law in not holding that as it is self-evident from the record that the trial Court did not pronounce the judgement and did not give due notice of day of judgement to parties and their Advocates there is no judgement in law”.
Obviously, the appellants cannot be heard to complain against the first appellate judge, as that judge was not bound to decide the appeal on issues or matters not raised by the appellants. After all, both appellants were represented by experienced counsel and the judge was entitled to assume that any apparent error which has been omitted by counsel has been omitted for good reason. As it was stated in a slightly different context by the Court of Appeal for Eastern Africa in the case of <name/> vs <name/> 81961) E.A.777:
”It may be that there is substance in Mr. <name/>’s contention, but in my opinion, to allow the point to be taken for the first time on second appeal could be grossly unfair to the appellant. The point was never pleaded, was never in issue at the trial, and the relevant facts were never investigated. The written statement of defence was drawn by, and the respondent was represented  at the trial by, a counsel of known experience and ability. It is difficult to suppose that he would not have raised so obvious a matter unless he was satisfied there was a good defence to it ...”
We think that, although the above cited statement was made in a slightly different context, the principle is the same. In the present case, counsel for appellants was involved in the preparation of the memorandum of appeal to the High Court. It must be remembered that the same Counsel represented the appellants at the trial. He also submitted a lengthy written submission in the first appeal. Counsel for the appellants had therefore every opportunity to raise the issue concerning the judgement of the trial Court not being delivered, if <-/infact>  it was not. Bearing in mind the experience and ability of counsel for the appellants, we think it would be most unfair to the respondent to decide this case on this issue, when it was not raised in the first appeal.
The second issue for consideration and decision is really the central issue in this case; and it is whether the land in dispute belonged exclusively to the appellants’ late father, namely <name/>. The trial Court found in effect that the land in dispute did not belong to the appellants’ father, but was pasture or grazing land belonging in common usage to the 17 sons of <name/>. The High Court generally concurred with the findings of the trial Court. The appellants want us to interfere with the findings of the two Courts below. Should we so?
The law regarding the powers of an appellate Court to interfere with findings of a trial Court on matters of fact has long been established in East Africa as stated by the Court of Appeal for eastern Africa in the case of <name/> vs <name/> (1958) E.A. 424. The law, which is adopted from England, is summarized as:
”Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial court has failed to appreciate the weight of bearing of circumstances admitted or proved, or has plainly gone wrong, the appellate court will not hesitate so to decide.”
The question that arises here is whether the first appellate Court ought to have interfered with the finding of the trial Court on the issue of ownership of the piece of land in dispute. The trial Court in resolving the issue of ownership relied on the evidence given on both sides concerning the boundaries and size of the land in question. The trial Court was of the view that the evidence on the side of the appellants was conflicting as to boundaries, size and use. It was on the basis of these contradictions or <-/inconsistences> in the evidence on the side of the appellants, who were then the plaintiffs, that the trial Court made its findings.
The first appellate Court, approaching the evidence differently, also came to the same conclusion. The learned first appellate judge, discounted the evidence given in support of the appellants on the basis that the late father of the appellants had taken no action to assert his rights against the respondent until he died; and that the primary court magistrate (PW.3) who claimed to have once dealt with another dispute concerning the land in dispute, cannot be relied upon to identify the land which is the subject of the present case. Furthermore, the first appellate judge relied on the evidence of the clan elder (DW.3) who testified in favour of the respondent’s case. Like the trial Court, the first appellate judge discounted the relevancy of previous criminal proceedings referred to in exhibit P2. Also, like the trial Court, the first appellate judge was of the view that the land which was the subject of adjudication in exhibit P1 is not the same as the piece of land in dispute in this case. 
The appellants’ complaint, as reflected in the Memorandum of Appeal and the submissions made by learned counsel against the decision of the first appellate Court, may be summed up as follows. First, the reasons used by the first appellate Court in confirming the decision of the trial Court are erroneous. Second, the first appellate judge wrongly concurred with the decision of the trial Court without considering the entire record of the trial Court.
With regard to the first point, we agree that the first appellate judge misconceived the evidence concerning the conduct of the late father of the appellants in asserting his claim to the land in dispute. As pointed out earlier, this suit was commenced by appellants’ father in July 1988. It is thus not correct to say, as the first appellate judge says in a part of her judgement that ”if it were the same piece of land, the late <name/> would have sued for title against the respondent defendant when he allegedly trespassed on the land in dispute in 1987 because at that time the land owner was still alive. ..... The fact that the late <name/> had not instituted any action for recovery of land from the defendant indicates that apart from <name/>, the defendant in exhibit P1, nobody else trespassed on the land of <name/> until he died in 1989 in February”. We however think that the learned first appellate judge would have come to the same conclusion if she had properly directed herself on the evidence. We say so because, the mere fact of <name/> instituting the present suit before he died, does not necessarily mean that the land currently in dispute, is the same as the one adjudicated in exhibit P1. After all, the parties are not the same in the two cases. In <-/otherwords> , there is no nexus between the land in exhibit P1 and the piece of land which is the subject of the present case. 
</I>
W1C005T
<I>

JUDGEMENT OF THE COURT

<name/>:
This is an appeal by one <name/>, hereinafter called, the appellant, against the judgement and decree of the High Court at Arusha where the respondent, namely, <name/>, had successfully instituted a suit against the appellant. In that suit, the respondent sought a declaration to the effect that the sale of the house on Plot No. 64 Block 21 Kaloleni in Arusha municipality between the appellant and respondent’s late husband, namely <name/> is null and void. She also sought vacant possession of the suit premises and costs of the suit. The appellant on his side counter-claimed without success for damages on the ground of trespass by the respondent and in the alternative, a refund of the purchase price of the suit premises. Aggrieved by the decision of the High Court, <name/>, he appeals to this Court. He is represented by <name/>, learned advocate, whereas <name/>, learned counsel from the Tanzania Legal Corporation, represents the respondent. Seven grounds of appeal have been submitted in support of the appeal.
It is common ground between the parties to this case that the respondent was the wife of one <name/> who died in September 1986. Furthermore, it is common ground that sometime before that death, the married couple had agreed to jointly acquire a plot of land and build a matrimonial house thereon. Towards that end the couple applied for a Right of Occupancy in respect of Plot No. 64 Block ‘21’, KALOLENI, in Arusha municipality. In response to the application, the couple were jointly given an offer of Right of Occupancy for a term of 33 years under a letter Ref. No. ARD/1420/7/FAK dated 13th May 1977 from the Land Development Department in Arusha Area Commissioner’s Office. That Offer was produced at the trial as exhibit P.2. Furthermore, the couple jointly paid various fees in satisfaction of the conditions stipulated in the offer of Right of Occupancy and were issued with receipts acknowledging such payments as shown in exhibit P.3.
It is also common ground that the house on Plot No. 64 Block ‘21’ KALOLENI, was built through a loan given by the National Housing Bank on security of a mortgage of this title to the Right of Occupancy. That mortgage was contained in a mortgage deed produced at the trial as exhibit P.4. Furthermore, it is common ground that subsequently, respondent’s husband entered into a written agreement to sell the suit premises to the appellant. The agreement was dated 27th June 1984 and was in two documents produced at the trial as exhibits P.8 and D1 for the respondent and appellant respectively. Both documents read the same except that the purchase price reads as shs. 500,000/= in exhibit P.8, whereas it reads as shs. 900,000/= in exhibit D.1. There is also an addendum in exhibit D.1 permitting the vendor to continue in occupation of the suit premises for a prescribed period.
The respondent’s case is that the agreement between the appellant and respondent’s late husband was fraudulently made for the purpose of depriving the respondent of her rights in the suit premises. It is part of the respondent’s case that in furtherance of that fraud, respondent’s husband fraudulently obtained a title deed, produced at the trial as exhibit D.3, purportedly issued in the sole name of respondent’s husband, instead of the joint names of the respondent and her late husband. It is part of respondent’s case that the appellant was either a party to or knew the fraud. Furthermore, it is respondent’s contention that the appellant is entitled, if at all, to refund of only the purchase price of shs. 500,000/= shown in exhibit P.3, which was deposited in court by respondent on receipt No. ERV No. 654854 dated 29-7-88.
The appellant’s case on the other hand is that the arrangement between the respondent and her late husband to jointly acquire and build a matrimonial house collapsed as a result of matrimonial problems between the couple, and thereafter respondent’s late husband proceeded alone to acquire the plot of land and alone built the house in question. It is appellant’s contention that no fraud was committed either in obtaining the title deed or the sale of the suit premises. It is part of appellant’s case that he is entitled to vacant possession of the suit premises, or in the alternative, to a refund of the purchase price of shs. 900,000/= plus interest, and not the lower sum of shs. 500,000/=, which was shown in exhibit P.8 only for the purpose of enabling respondent’s husband, as vendor, to pay less tax to the Treasury.
It is apparent from the proceedings of this case that there are two main issued upon which the outcome of this case depends. The first issue is whether the title deed, otherwise known as the Certificate to Right of Occupancy, produced at the trial by the appellant as exhibit D.3, was fraudulently obtained. The second issue is whether the sale agreement of the suit premises has any legal effect.
Let us start with the first issue. The learned trial judge made no specific finding on it. The relevant evidence on this issue comprises the testimony of the respondent, supported by exhibits P.2 (letter of Offer of Right of Occupancy), P.3 (four revenue receipts in respect of fees for Certificate of Title), P.4 ( the mortgage deed on Right of Occupancy title No. 68-LRM) and P.5 (Payment Voucher issued by Tanzania Housing Bank for disbursement of loan). This evidence clearly shows that by the end of September 1977 there was a mortgage deed between the Tanzania Housing Bank on the one side and the respondent and her late husband on the other side, under which the Right of Occupancy title No. 686-LRM was made a security for a loan of shs. 80,000/= by the bank to the respondent and her late husband. Consequent upon this mortgage, a sum of shs. 35,900/= was released to the respondent and her late husband on 21st October 1977 as per exhibit P.5.
The question that arises here is in whose name or names the Certificate of title No. 686-LRM supposed to be? Obviously, since a Certificate of title of Right of Occupancy can be mortgaged only by the owners of the title, it must follow that the certificate of title No. 686-LRM which was the subject of the mortgage must have been in the joint names of respondent and her late husband. The answer to the first crucial issue must therefore be that the Certificate of title No. 686-Land Registry Moshi (exhibit D.3) bearing solely the name of respondent’s late husband was obtained fraudulently – that is, by deceit and for the purpose of depriving the respondent of her rights in the suit premises.
With regard to the second main issue, the learned trial judge specifically found that ”... the late <name/> had no capacity to solely sell the house to the defendant because the house was jointly owned by himself and his wife. Without the consent of his wife, the joint owner, the vendor could not pass the title of the house to the defendant purchaser”.
We agree with the learned trial judge. We think that there are two other reasons why the appellant cannot obtain title to the suit premises on the basis of the sale agreement. The first reason was noted by the learned trial judge when she stated in a part of her judgement ”... The vendor and purchaser colluded and in pari delicto signed two different sale agreements in order to pass lower taxes. By agreeing to sign the shs. 500,000/= sale agreement, Exhibit P.8, the purchaser stained his hands and tainted himself with illegality whether for his benefit or for the benefit of the vendor...”
The learned trial judge of course did not sufficiently articulate the law concerning contracts aimed at defrauding the internal revenue. The law on this point, as established throughout the common law system, is that such contracts are unenforceable. See the case of <name/> vs <name/> (1954) 62 T.L.R. 85  and <name/> vs NATIONAL BUSINESS AGENCY (1951) 2 ALL er 264. The contract of sale of the suit premises in this case was made under two documents aimed at deceiving the Treasury as to the proper tax liable to be paid for the transaction. Clearly such contract was void, without any legal effect right from the beginning. Of course this does not mean that the appellant has lost everything including the money he paid as purchase price. In law, he is entitled to the sum of shs. 500,000/= which he paid under the illegal contract and which appears to have been deposited in court by the respondent.
The second reason why the appellant could not have the title to the suit premises, even if the sale agreement had not been tainted with illegality, is the fact that neither document containing the agreement bears any indication of payment of stamp duty according to the Stamp Duty Act. By law, such omission renders the sale agreement inadmissible as evidence in court, unless the party concerned pays the stamp duty before the document is admitted as evidence. See the case of <name/> vs DEVONSHIRE STORES (1958) EA 729 and SUNDERJI NANJI ltd. Vs MOHAMEDALI KASSAN BHALOO E.A. (1958) 762. 
For all the reasons stated above, we are thus satisfied that this appeal has no merits whatsoever and must be dismissed in its entirety with costs. We order accordingly.
</I>
W1C006T
<I>

JUDGEMENT

<name/>
The respondent, <name/>, was employed by the appellant, Kilimanjaro Machine Tools Manufacturing Company Limited, as an electrician sometime in 1989. On 20/4/92, the respondent while in the course of his electrical duties at the employer's premises suffered extensive burns on his body as a result of fire which <-/errupted> in the <-/sub station> Distribution board room, where the respondent was checking electric power. The respondent <-_claim><+_claims> that the appellant was the one wholly to blame and thus claimed shs.10,000,000/= (ten million) as damages or compensation for the injuries that he suffered. After full trial, the court granted the whole of damages as prayed. This is an appeal against the decision awarding the amount by the lower court.
Mrs. <name/>, learned counsel for the appellant, has put forward the following grounds of appeal, namely that:
"1. The trial court erred in finding that the appellant was solely responsible for the loss;
2. The trial court erred in not finding that the Respondent was solely responsible for the fire;
3. The trial Court erred in finding that the injuries sustained by the Respondent were aggravated by the nylon dust jacket;
4. The trial court erred in finding that the Appellant had admitted negligence;
5. The trial court erred in not assessing the damages;
6. The trial court erred in analysing the evidence;
7. The trial court erred in admitting Exh. P.2."
It is obvious in reading paragraphs 1, 5, 6 and 7, that they do not contain specific grounds of objection so as to enable the court to know what the objection is as required under Order 39 rule (1) (2) of Civil Procedure Code which for ease of reference reads:
"The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative: and such grounds shall be numbered <-/...cutively>."
Ground No. 1 of the appeal taken by itself it does not make much sense. However at the hearing of the appeal grounds 1 and 2 were argued together. It emerged then that the issue is who was negligent in causing the fire. Mrs <name/>, learned <-/caunsel> for the appellant contended that the respondent was solely to blame for negligently dropping the screw driver and causing short circuit which caused the fire. She said that the learned trial magistrate was wrong in finding that it was the appellant who was negligent. <-/Infact> there was no direct finding by the trial court that the appellant was the negligent party in causing the fire but according to the evidence it was implied. No specific issue was framed to determine this issue although it was in the pleadings. It was the duty for the advocate for the appellant in the lower court to have insisted for a specific issue regarding who was negligent in causing the fire to be framed.
There was very clear evidence as to how the fire was caused. The respondent stated in his evidence in chief, and I quote - page 6 of the proceedings:
"When I wanted to leave with the meter for further checking I knocked myself on the wall. I had a screw driver which dropped on the wires and caused fire which burnt me. It was sort of explosive and I had no way but to get burnt. The dust jacket was the first to catch fire."
and on cross examination by Mr. <name/>, counsel for the appellant, the respondent stated, and I quote:
"The short circuit was caused by my screw driver which dropped incidentally."
On further re-examination by his own counsel, Mr. <name/>, respondent stated, and I quote - page 8 of the proceedings:
"On finding that it was not working I stood up suddenly and the screw driver fell on <-/un insulated> bars of electricity causing explosion."
There was evidence from the respondent to the effect that the <-/Distribution> board room where he was working was too small and thus movement was not free. This fact was admitted by the appellant as per the evidence of DW 1 - <name/> the <-/Senior> <-/Electrical> <-/Engineer> of the appellants company. Replying to questions by the counsel for the respondent, <name/> said:
"XD by Mr. <name/>: In my 13 years service here I have witnessed many shock <-/Electric> accidents. But fire accidents are only two. This was a case of the plaintiff who got burnt by the <-/Electric> fire. The corridor between the wall and the machine is less than a metre. Before <name/>'s accident there was one fire accident. There was no improvement done after the first accident until <name/> entered this accident. We don't have cross ventilation here in the machine room. Had the building been designed by me I would have designed it differently. <-/Bulgerian> technology is <-/efferior> to <-_Tanzania><+_Tanzanian> Technology. When the accident <-/occured> the floor wasn't clear."
and lastly Mr. <name/> concluded by saying, and I quote:
"The plaintiff didn't cause the accident intentionally."
As a result of this evidence the learned trial magistrate came to the following conclusion: namely:
"The fact that a screw driver dropped from the plaintiff's coat pocket he was bending forward and caused short circuit triggering off the accident cannot be said to be negligence. That was a mere misfortune because the same screw would have dropped without causing any short circuit had it not touched the wires."
In my considered view on the evidence as there was in this case, this conclusion by learned trial magistrate cannot be faulted. This was enough to answer framed issue No. 1 in the trial which was that:
"Whether the plaintiff is sustaining serious injuries was negligent."
As already stated above, there was no direct issue as who was negligent in causing the fire but Mrs <name/> has argued that her client was not negligent at all on the evidence before the court. The question is whether had the learned trial magistrate considered this point would he have found some evidence to hold the appellant negligent. I think there was such evidence. The evidence which exonerated the respondent from negligence was enough to hold the appellant negligent. The fact that the distribution board room was too small, it meant that it was a dangerous place to work. The undisputed criticism levelled against such design by the appellant's senior electrical engineer clearly meant that the design was faulty. In fact DW 1 said that there had been another fire before in the same room. In his own words this is what he said:
"Before <name/>'s accident there was one fire accident. There was no improvement done after the 1st accident until <name/> entered this accident."
This is very plain that the distribution board room was not properly designed for the purposes for which it was meant and for that reason the appellant, being aware of such inherent danger, acted negligently in assigning the respondent to work in such a place. The fact that the appellant did not specifically assign the respondent in the distribution board room, does not matter as it was part of the system where power distribution had to be checked.
There was another piece of evidence which does point a finger to the negligence of the appellant which was not discussed. It is not a common phenomenon for screw drivers falling on electricity wires to cause fire or explosions. Why did it happen in this particular instance? The respondent stated that the explosion <-/occured> because the screw driver fell on <-/uninsulated> bars of electricity. Is it a normal thing to have such <-/uninsulated> bars in the area such as the place where the respondent was working. This was an important revelation. The cause of the explosion and fire was the <-/uninsulated> electricity bar, according to the respondent. This most important point was never challenged. Had there been no truth in it learned counsel for the appellant at the trial would have challenged it by cross examining the respondent and would have led
evidence as to the suitability or effect of having <-/uninsulated> bars of electricity in the distribution board room. The fact that the appellant swallowed this piece of evidence clearly exhibits explicit signs of admission of guilt, that is to say admitting negligence. There was therefore sufficient evidence to hold that the appellant was negligent as a result of which the explosion and fire which burnt the respondent was caused.
The next point to consider is the appellant's contention that the trial court erred in finding that the injuries sustained by the respondent were aggravated by the nylon dust jacket which was worn by the respondent at the material time. On this issue the learned trial magistrate stated that the appellant had admitted negligence in supplying nylon dust jackets which are combustible. According to the learned trial magistrate the admission by the appellant was contained in a report which had been prepared by one <name/>. Consequently the learned trial magistrate concluded, and I quote:
"What is important is that as fire <-/errupted> the plaintiff got badly burnt because he was wearing a nylon jacket which is a combustible material."
The report of one <name/> referred to and relied upon by the learned trial magistrate was not tendered as an exhibit at the trial although it was annexed to the plaint. The learned trial magistrate was wrong in acting on a document/evidence which had not been tendered as part of evidence in the case. If the respondent wanted the court to rely on the report which was annexed to the plaint as <-/annexture> P.1, the same should have been tendered as evidence. It was not enough that it was referred to by witnesses in the trial.
The question now is whether there was some other evidence on which the appellant could be found to be negligent in supplying nylon dust jacket as protective clothing to the respondent. My answer is that there was plenty of it. In the first place the respondent stated in his evidence in chief, and I quote: page 6 of proceedings:
"It was a nylon one. We wear those nylon coats instead of the cotton coats we had demanded. The nylon coats are very dangerous because they easily catch fire. They aren't protective at all. They are dangerous clothes so to speak."
and during re-examination the respondent stated, and I quote: - page 9 of the proceedings:
"Cotton doesn't catch fire easily in comparison with nylon. When you have nylon in comparison with cotton, nylon enhances fire. Had I had cotton jacket only the exposed part of my body would have burnt. Contrarily the whole of my body was burnt because of the nylon coat I was wearing."
That nylon dust jacket supplied to the respondent was combustible and <-/inflamable> was admitted by the appellant through the evidence of DW 2 - <name/>, the Senior Electrical Engineer of the appellant's company.
Mr. <name/> stated in his evidence and I quote:
"As a matter of fact we are supposed to wear cotton overall jackets. We wear cotton because it doesn't get dirty easily, it retains <-/bady> temperature and it doesn't catch fire easily. Nylon is almost <-/inflamable>. It melts on other clothes. Had it been me I wouldn't have given my technician nylon jacket for protection."
This was a statement from the Senior Electrical Engineer of the appellant's company. And it constitutes clear admission to the effect that nylon dust jacket supplied to the respondent was <-/inflamable> and it was therefore very dangerous to wear such a jacket while working on electrical work as the one which the respondent was assigned on the material day. Had the learned trial magistrate considered the evidence which I have set out above, he would have come to the conclusion that the appellant was negligent in supplying nylon dust jacket to the respondent because of its <-/inflamable> characteristics. On the evidence, therefore, that the appellant was negligent in supplying nylon dust jacket to the respondent is <-/undisputable>. I have answered grounds Nos. 1 - 4 of the appeal.
I now turn to ground No. 7. This ground alleges that the learned trial magistrate erred in admitting exhibit P.2. This exhibit P.2 was medical report on the injuries which the respondent suffered as a result of the burns he received. The report was prepared by a doctor who had attended the respondent. Mrs <name/> argued that it was wrong for the court to admit the document as an exhibit from the respondent who could not be cross-examined on its contents. The fact that the respondent could not be cross-examined on the contents of the document did not render its production in court irregular. 
</I>
W1C007T
<I>

JUDGEMENT OF THE COURT

<name/>:
In the Court of the Resident Magistrate at Tanga, the appellant <name/> sued the two respondents with another person <name/> now deceased, claiming that the three should convey to him the house on plot No. 2 Block 86 Central Ngamiani area in Tanga Municipality, the house which had been sold to him by <name/> in his capacity as administrator of the estate of the late <name/>. The two respondents, the sisters <name/> and <name/> are the daughters of the deceased <name/>, while the late <name/> was appointed administrator of the <-/Estate> of the late <name/> by the Primary Court Tanga in <-/Cause> No. 6 of 1984. The appellant won his claim in the Resident
Magistrate's Court which ordered the respondents to convey the house to him and also to refund him all the rents they had been unlawfully collecting from the date of purchase of the house to the date of judgement. The respondents successfully appealed to the High Court at Tanga where <name/> held that since <name/>'s appointment as administrator of the estate was void under Rule 2 (a) of the Fifth Schedule to the Magistrate's Courts Act, he had no power to dispose of the property of the deceased's estate and that therefore his sale of the house to the appellant was null and void. Accordingly he restored the house to the two respondents. The appellant felt greatly aggrieved by this decision, he lodged this appeal complaining in his three point memorandum of appeal first that the learned judge erred in law when he held that the Primary Court had no power to appoint <name/> administrator of the estate of the late <name/> and that he was not properly appointed according to Rule 2(a) of the Fifth Schedule to the Magistrate's Courts Act.
Secondly the appellant complained that the learned judge erred in fact when he held that the sale of the suit house was arbitrary and did not take into consideration the interests of the estate when there was ample evidence to prove that the suit house was at stake.
Thirdly that the learned judge erred in law in holding that there was no consent of the beneficiaries to sell the <-/suit> house when in fact the authority to sell was vested in the administrator by the operation of that grant under which he was appointed.
At the hearing of this appeal, Mr. <name/> learned advocate who appeared for the appellant, argued in support of the first round of appeal that since Rule 2 (a) applies to grants made in the first instance and not replacement, <name/> must have been appointed under Rule 2 (b) and that therefore his appointment was valid.
In opposing this ground, Dr. <name/> learned Counsel who appeared for the respondents, advanced three reasons for his view that <name/> was not properly appointed and that therefore this Court should uphold the <-/appointement> of the first respondent <name/> as administrator of the estate. First, he said that the purported appointment of <name/> was made while <name/>'s was still in force, it had not been revoked as claimed. He conceded that the Primary Court Magistrate (PW5) gave evidence to this effect but he added that that witness did not produce the record of the Primary Court to confirm his evidence. Secondly, he said that <name/> did not qualify to be appointed administrator under Rule 2 (b) because the Court did not state <name/>'s qualifications under that Sub-Rule. Thirdly, he said that since the house was already in <name/>'s name, such transfer was already effective under Rule 4 as there had been no complaint against this transfer.
On our part we do agree with Mr. <name/> that the Primary Court can only use Rule 2 (a) to make first appointments not replacements. We also agree with him that <name/> as a replacement, could only be appointed administrator Under Sub-Rule (b), and that therefore his appointment was made under that Sub-Rule. We are therefore satisfied that the learned judge was wrong to restrict the powers of Primary Courts to appoint <-/aministrators> to Sub-Rule (a). The next question is whether this appointment was valid in the light of the objections raised by Dr. <name/>. As indicated. Dr. <name/>'s first objection was that <name/> could not be appointed administrator to replace <name/> whose <-/appointement> had not been revoked for the reasons which he gave. We are satisfied that this objections has no basis. First, there is the evidence of the Primary Court Magistrate who handled this Administration Cause, i.e. PW.5. According to him, he revoked <name/>'s appointment after receiving complaints from other beneficiaries of the estate and that therefore he appointed <name/> as a replacement. The record shows that the Primary Court record was produced as an exhibit. This objection must therefore fail. The second objection was that the Primary Court did not specifically state in what way <name/> was qualified to be appointed administrator under Sub-Rule (b). This Sub-Rule provides:
"either of its own motion or on the application by any person interested in the administration of the estate, where it considers that it is <-/desireable> so to do for the protection of the estate and the proper administration therefor appoint an officer of the court or one reputable and impartial person able and willing to administer the estate to be administrator either together with or in lieu of the administrator appointed under Sub-paragraph (a)".
It is clear in the circumstances of this case that <name/> was appointed under the second limb as a "reputable and impartial person able and willing to administer the estate." We think that the fact of the <-/appointement> is evidence that the Court was satisfied that the person so appointed is a "reputable and impartial person able and willing to administer the estate", it is therefore up to the person challenging the validity of the appointment to show and establish that the person so appointed does not have these qualifications. It is not enough as Dr. <name/> sought to do in this case merely to say that the court did not indicate in what way the court was satisfied that the appointee possessed these qualifications. This objection must therefore also fail. Lastly, Dr. <name/>'s third objection has no merit because the sale of the house to the appellant was made after not before the revocation of <name/>'s appointment. For three reasons we uphold the appellant's first ground of appeal. We intend to deal with grounds two and three together as these are related. We think and are satisfied that in the circumstances of this case, selling the house and distributing the proceeds among the various contending heirs, was the only sensible option open to the administrator. The record shows that there are two hostile contending groups among the heirs of the late <name/>. The heirs are grouped according to their mothers. There is absolutely no way of reconciling the two groups. We are therefore satisfied that the decision to sell the suit house was not arbitrary, in fact it was in the best interests of the estate and all the heirs. With regard to the question whether consent of all the heirs should have been sought and obtained before selling the house, firstly, it was impossible to obtain such consent from the two hostile groups. Secondly, the administrator was not legally required to obtain such consent. As this court stated in <name/> vs. <name/> & Another Civil Appeal No, 36/90 (Unreported):
"We cannot find in the evidence before the High Court that there was anything wrong with the sale of this house. Once an administrator of the estate was appointed then the house of the deceased owner of the property is changed in all the documents and that of the administrator is substituted and it is left to his discretion to administer the estate in the best way he can....."
Accordingly we uphold the complaints in both grounds two and three.
Before we rest and make the necessary orders we wish only to mention that in the course of the hearing of this appeal, two members of the court thought aloud and wondered whether the Primary Court had jurisdiction to administer this estate involving as it did registered land, in view of the provisions of Section 18 (1) of the Magistrate's Courts Act. But since this was not a substantive issue in this appeal, we do not intend to say any more about it.
Turning now to the appeal, we have already upheld all the grounds in the appeal, but having done so, we are still extremely uneasy about the fairness of the sale. There are two documents, both executed by the late administrator <name/> and each of them bearing a different purchase price. The first document dated
28/3/85 shows that the house was sold to the appellant for Shs. 147,680/= whereas the second document dated 5/10/85 shows that the same house was sold to the appellant for Shs.200,000/=. Which then is which? We think it would be fair both to the estate and the heirs if this difficulty was resolved by ordering a new sale. For the foregoing reasons, we allow the appeal and set aside the judgement and orders of the High Court. But we set aside the two sales dated 28/3/85 and 5/10/85 and order a new sale of the house by public auction in which the present appellant will be allowed to bid. If his bid succeeds then he can have the house and the purchase price so far paid will be credited to him. In the event he is unsuccessful, however, the purchase price is to be refunded to him. The appellant will have his costs both in this Court and in the Courts below.
</I>
W1C008T
<I>
REASONS FOR JUDGEMENT

<name/>:
On the 7th day of September 1994 when this appeal came up for hearing and after hearing arguments from learned defence counsel and the learned State Attorney we allowed the appeal, quashed the conviction for murder, set aside the sentence of death and ordered the release of the appellant from custody - We reserved our reasons for such judgement. We now give our reasons:
The appellant, <name/>, was charged with and convicted of murder by the High Court (<name/>) sitting at Mbeya and sentenced to death.
Aggrieved by the decision of the High Court he has appealed to this Court. The evidence relied upon by the trial court to convict the appellant was that of a single eye witness, <name/>, (PW1), and what the High Court admitted and believed to be appellant's voluntary confession
to a police officer, Sgt. <name/>, (PW6), - exhibit P1. The evidence of <name/>, (PW1), was to the effect that on 19/2/88 as she was returning home from a <*/>pombe party accompanied by her husband, <name/>, bandits attacked and killed her husband. The witness testified in the High Court that she identified the appellant as one of the bandits who fatally attacked her husband <name/>.
Before us Mr. <name/>, learned defence counsel, argued that the learned judge erred in believing the evidence of PW1 that she had properly identified the appellant as one of the bandits who killed the deceased. It was submitted that the killing was committed at night and in darkness and therefore, it was argued, conditions for a correct identification were lacking.
As for the alleged appellant's confession to the police - exhibit P1, Mr. <name/> argued that the learned judge should have found that it was involuntarily made after the appellant was tortured by the police. The learned defence counsel complained that the High Court did not seriously take into account the appellant's extra-judicial statement - (exhibit D1) to the justice of peace in which he denied killing the deceased. The Court was asked to allow the appeal and acquit the appellant.
In rebuttal Miss <name/> learned State Attorney, supported the conviction on the ground that the identifying witness, (PW1), could not have mistaken appellant's identity as he was her <-/fellow-villager> and had known him before the killing. The learned State Attorney urged us to dismiss the appeal. Miss <name/> did not touch on the confession of the appellant to the police officer, (PW6), which confession was relied upon by the learned judge to convict the appellant.
We would first like to deal with the evidence of PW1 who told the trial court that she identified the appellant on the material night. She said in her evidence in chief:
"... We drank and left at about 9 p.m. ... I was in front and my husband behind. Then I heard a sound of something being hit. When I turned I saw my husband fallen down. I saw accused and <name/> lighting deceased with a torch".
On cross-examination by the defence counsel she said inter alia:
"I identified them through the light of their torch. I was not present when they slaughtered my husband".
When cross-examined by one of the assessors she replied:
"There was darkness. I could not have identified them if it were not for the torch".
Dealing with the evidence of the identifying witness, (PW1), the learned judge said inter alia:
"... PW1's identification is quite strong, I must say, but perhaps on it alone one could not rely and convict. Let me look into the other evidence if it strengthens enough this identification".
Thereafter the learned judge talked about appellant's confession - exhibit P1.
"... I ruled that the confession before the police was perhaps not voluntarily made as the accused made another statement to the justice of the peace but I ruled the confession admissible under section 29 of the Evidence Act 1967 ... But this confession has been denied by the accused by another statement before the justice of the peace, exhibit D1, and here in court ...
such confession as a rule of prudence needs corroboration before it can be relied upon. Can PW1's testimony serve as corroboration? I think it can".
With respect to the learned judge we fail to understand his reasoning that PW1's evidence could serve as corroboration of appellant's retracted confession taking into account that he had earlier said he could not rely on PW1's identification alone to convict the appellant; without other evidence to strengthen PW1's evidence regarding identification of the appellant. "A witness who himself requires corroboration cannot corroborate" - <name/> v R - (1934) 1 E.A.C.A. 110 and R v <name/> (1936) 3 E.A.C.A. 39.
At this juncture we would like to reiterate that "where the evidence which implicates an accused is entirely that of identification, the evidence must be water-tight before a conviction could be founded upon it". That this is the law is evident from the decisions in R v <name/> - (1960) EA 174, <name/> v R - (1968) HCD 183 and <name/> and Another v R (1953) 20 E.A.C.A. 166; to mention but a few of the decisions on the question of identification by a single witness. In view of what we have said above regarding PW1's testimony who purported to have identified the appellant it is our considered view that PW1's testimony was unworthy of credit.
Coming to the appellant's confession to the police the learned judge said in his ruling:
"From the evidence it is likely the accused was tortured and gave an involuntary statement before the police. Otherwise he probably could not have made a different one before the justice of the peace. But there is no evidence that the torture or threats he got made him give an untrue statement. Therefore this statement is admissible under section 29 of the Evidence Act not section 27".
We agree with the finding of the learned judge that from the evidence the appellant was tortured by the police and thereby forced to confess the killing "otherwise he could not have made a different statement before the justice of the peace".
Section 29 of the Law of Evidence Act qualifies section 27(3) and says "no confession which is tendered in evidence shall be rejected on the ground that a promise or threat has been held out to the person confessing unless the court is of the opinion that the inducement was made in such circumstances and was of such a nature as was likely to cause an untrue admission of guilt to be made".
It is under section 29 that the trial judge admitted appellant's confession and acted upon it in convicting the appellant of the offence of murder.
Having found that the appellant was tortured before he confessed to the police the provision of section 29 which merely talks of "promise or threat" to the person confessing did not apply in this case where torture was perpetrated; and the appellant had to be sent to hospital for treatment for the injuries he suffered from such torture.
For the above reasons it is our considered view that the learned trial judge erred in basing the conviction on the testimony of PW1 and the confession of the appellant to the police which confession was clearly involuntary.
Before we conclude we would like to discuss the import of section 27(3) of the Law of Evidence Act 1967; the section says:
"A confession shall be held to be involuntary if the court believes that it was induced by any threat, promise or any other prejudice held out by the police officer to whom it was made or by any member of the Police Force or by any other person in authority" -(emphasis supplied).
Our interpretation of the wording "if the court believes" is that if the court does not believe that the "confession was induced by any threat, promise or other prejudice held out by the police officer to whom it was made or by any member of the Police Force or by any other person in authority", the court shall hold the confession to be voluntary. If that is the import of section 27 (3) of the Evidence Act; as we think it is, section 29 of the Evidence Act is <-/superflous> and in our view, unnecessary. It only serves to prejudice the rights of an accused person as it did in this case.
In the event we had no alternative but to quash the conviction, set aside the sentence of death and order the release of the appellant from custody unless he was otherwise lawfully held.
</I>
W1C009T
<I>

JUDGEMENT OF THE COURT

<name/>:
The appellant, <name/> s/o <name/>, <-/wassentenced> to death by the High Court sitting in Biharamulo (<name/>), consequent upon his conviction for the murder of one, <name/> s/o <name/> on or about the 8th day of April 1989 at Buhororo village within Ngara district, Kagera region.
Mr. <name/>, learned advocate argued the appeal before us on behalf of the appellant while Mr. <name/>, learned Principal State Attorney argued in support of the High Court decision. Mr. <name/> submitted and argued only one ground of appeal; "that the learned trial judge erred in law in failing to see that conditions favouring identification of the appellant as one of the bandits who assaulted and killed the deceased were lacking."
It was the learned defenceCounsel's submission that there was doubt as to whether the appellant was the perpetrator of the offence and that the trial judge should have resolved the doubt
in favour of the appellant and find him not guilty of the offence charged.
In rebuttal Mr. <name/> argued that the identifying witness, (PW.1), was a neighbour of the appellant and that there was no reason why the witness should have told lies that she identified the appellant as one of the bandits who attacked and killed the deceased.
In this case the case for the prosecution that it was the appellant who assaulted and killed the deceased on the material night stands or falls on the evidence of deceased's daughter, <name/>, PW.1. It was her evidence that at about 2 a.m. on 9/4/89 two people banged at the door of their <-/home-stead> (in which she was sleeping with her father, the deceased), and demanded for her parents to come out. According to her testimony she recognised the voices as those of the <-/Appellant>, <name/> s/o <name/> and <name/> (who was jointly charged with the appellant) but has since died in prison of AIDS after their conviction for murder.
In accepting the evidence of PW.1 as a true account of what happened the learned trial judge said inter alia:
"--- In the first place there is no doubt that PW.1 knew the second accused (appellant) very well. They were villagemates and neighbours, and had known him all her years. She was not a child at the material time but a woman in her own right with a child to boot. --- I am satisfied beyond reasonable doubt that PW.1 recognised the voices and went out to see and recognised the faces of the accused."
The learned judge then proceeded and convicted the appellant and his co-accused of the offence of murder as charged.
We have no quarrel with the judge's assessment of the honesty of PW.1 but the learned trial judge will no doubt agree with us on reflection that a witness may be honest yet mistaken. We have minutely examined PW.1's testimony regarding her identification of the appellant as one of the people who killed the deceased. One aspect of her evidence which has left us baffled is her delay in mentioning the appellant and his co-accused to village authorities as the people who had attacked and killed her father, the deceased. In answer to a question by the defence <-/Counsel> she said:
"When people gathered at the scene I did not announce to them who had committed the deed. I feared if I mentioned them they would escape. --- The police came to the scene the following day - 10th April. I did not tell them who had committed the deed. I mentioned them on the third day."
On being cross-examined by the first assessor she said inter alia:
"--- There was no <-/moon-light>. I saw and recognised the accused persons the moment the deceased got out with the <*/>koroboi."
When cross-examined as to whether the deceased had recognised the bandits she replied: --- "He may not have recognised his murderers because he inquired who they were and they replied that they were Sungusungu."
In his argument in support of the appeal Mr. <name/>, learned defence <-/Counsel>, submitted that conditions favouring correct identification of the bandits were lacking because the offence was committed at night; and that the poor light from a koroboi could not have enabled PW.1 (who was behind the deceased three paces away from the area the attack took place) to identify the bandits. In support of his argument the decision in <name/> v R - (1967) EA 583 was <-/quotted>.
Dealing with the question of identification by a single witness in a case which was in some respects similar to the present one the Eastern Africa Court of Appeal had this to say in <name/> and Another v R (1953) 20 EACA 166:
"Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the <-/greates> care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were lacking. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error."
This Court has times without number pronounced that a conviction based entirely on identity invariably causes a degree of uneasiness. The danger is all the more greater when the only witness against an accused person is identification by one witness; as was in this case. Although this Court would not suggest that a conviction based on such identification should never be upheld it is the duty of the Court to satisfy itself that in all the circumstances it is safe to act on such identification.
In view of what we have said above regarding the only witness, (PW.1), who <-/perported> to have identified the appellant and his co-accused on the material night; it is our considered view that in excluding the possibility of a mistake on the evidence of PW.1 regarding identification of the appellant and his co-accused the learned judge, with respect, erred.
If we do not refer to Mr. <name/>'s argument (in support of the conviction) in detail it is not through lack of respect to the learned Principal State Attorney who argued this appeal with clarity and restraint. We are in agreement however with the argument by Mr. <name/>, learned defence <-/Counsel>, that in this case conditions favouring correct identification of the appellant and his co-accused as the people who killed the deceased were lacking.
In conclusion we would like to reiterate that "where the evidence which implicates an accused is entirely that of identification, the evidence must be water-tight before a conviction could be founded upon it". That this is the law is evident from the decisions in R v <name/> - (1960) EA 174 and <name/> S/O <name/> v R 1968 HCD 183.
In the event it is our considered view that it will not be safe to allow the conviction to stand.
We accordingly quash the conviction of the appellant and set aside the sentence of death passed on him. The appellant is to be released from custody forthwith unless he is otherwise lawfully held.
</I>
W1C010T
<I>

JUDGMENT OF THE COURT

<name/>
The appellants: <name/>, <name/> and <name/> are challenging the conviction and the sentence of the Economic Crimes Court presided by <name/>. The three appellants, together with one <name/>, who jumped bail, was tried in absentia and consequently has not appealed, were convicted of cattle theft contrary to Paragraph 12(1) and (3) of the First Schedule of Act No.13 of 1984 and Sect. 59(2) of the same Act.
<name/> (PW.1) had cattle and goats which were being taken for grazing by his two sons: <name/> (PW.2) and <name/> (PW.3). On 12th July, 1985 the animals were taken out by PW.2 when suddenly a group of eight people armed with bows and arrows confronted him. He was clubbed in the ribs, blind-folded, tied with ropes and was forced to follow the rustlers a distance of about 3 miles only to be abandoned but after they had taken 27 heads of cattle and 35 goats valued at Shs. 160,000/=. A report was made to the <-/Police>.
Constable <name/> (PW.5) had information that at the house of the first appellant a cattle had been slaughtered but the skin was available. PW.5 in the company of two other <-/Policemen> who did not testify, went to the first appellant. They met the first appellant and the second appellant. They also obtained one cattle skin (Exh.P.1) bearing the identification marks of the cattle of PW.1, being dried at the back of the house. Upon inquiries the first appellant said that Exh.P.1 was brought to his house by the second appellant who in turn refuted that allegation. The second appellant escorted PW.5 to the premises of <name/> (PW.4) where they found two head of the stolen cattle in the <ea/>boma of PW.4. Third appellant as well as the fourth accused person were present. PW.4 used to keep animals of the third appellant on "humanitarian grounds", whatever that means. However, in the evening of 15th July he returned home to find two new head of cattle which he was informed had been brought by the third appellant. As he was suspicious he reported the matter to the cell leader and the next day he summoned the third appellant to seek explanation and that is when they were found by PW.5 and his company. The third appellant and the fourth accused admitted to PW.5 that the two head of cattle belonged to them. The three appellants and the fourth accused were all arrested and charged.
The first appellant in his defence said that he had bought Exh.P.1 at an auction intending to use it for bedding. The second appellant alleged that he was at the house of the first appellant to buy millet when they were arrested by PW.5. Both of them denied having escorted PW.5 to PW.4 but as they were proceeding to conduct a search at the place of the second appellant they passed through the premises of PW.4 where they spotted the two head of cattle. They admitted to have found the third appellant, the fourth accused and PW.4 there. The third appellant on his part claimed that he had gone to PW.4 for a chat when they were surprised by the visit of the <-/Policemen> in the company of first and the second <-_appellants><+_appellant>. As already stated these explanations were rejected and hence their conviction of the offence as charged.
On appeal the first appellant advanced five grounds. First he reiterated that he had bought Exh.P.1 even if it had the marks of the cattle of PW.1, and that <-_its><+_it's> being dried at the back of the house is not proof of anything. Second the presence of the second appellant at his house is not proof of participation in the cattle raid. Third he challenged the evaluation of his evidence as well as of his witness regarding Exh.P.1. Lastly that the learned judge erred in referring to <-/Police> statements which were not tendered as exhibits.
The second appellant argued that nothing belonging to PW.1 was found at his home. Second, he was not identified by PW.2 while the raid was in day light. Third, his presence at the place of the first appellant was not criminal. Lastly that he was merely implicated by his co-accused.
The third appellant submitted five points. One, he was not identified by PW.2. Two, the two head of cattle were found with PW.4 and not in his place. Three, the two head were not produced as exhibits. Four, the children of PW.4 were not called to corroborate the evidence of PW.4. Five, he was merely implicated by PW.4 whose demeanour the learned <-/Judge> did not examine.
On behalf of the Republic, the respondent, was Mr. <name/>, the learned State Attorney. He made submissions in reply most of which we are in agreement with.
On the whole the learned trial <-/Judge> believed PW.5 and there is no cause for faulting him in that regard. The appellants have admitted most of what he deposed. He had said that he found Exh.P.1 at the house of the first appellant where the second appellant was also present. PW.5 stated further that together with the first and the second <-_appellants><+_appellant> they went to the home of PW.4 and there they found the third appellant, the fourth accused and two head of the stolen cattle.
The first and the second <-_appellants><+_appellant> contradicted the evidence of PW.5 that there was no dispute as to the ownership of Exh.P.1. They have also disputed that they led PW.5 to PW.4 but they do not deny having gone there with him.
However, the claim by the first appellant that he bought Exh.P.1 is without substance. He could not even know who sold it to him. Admittedly the skin being dried at the back of the house per se is not proof of any crime. However, that fact coupled with others like the dispute as to its ownership and that both of the first and the second <-_appellants><+_appellant> led PW.5 to PW.4 where they found the two head of cattle is significant and this makes their companionship a relevant factor. It is also significant that the first and second <-_appellants><+_appellant> took PW.5 not to the third appellant but to PW.4 who is the one who looked after the cattle of the third appellant. Thus they knew exactly where the stolen cattle were.
Thus we are satisfied that the appeals have no merits at all and we dismiss them in their entirety. As aforesaid, we note that the fourth accused has not appealed.
However, before we finish we have one observation to make. We agree with the objection of the first appellant in the learned trial <-/Judge's> reference to police statements which had not been tendered as exhibits. That was improper. However, there was enough evidence even without that reference on which to convict the first appellant.
Appeal dismissed.
</I>
W1C011T
<I>

JUDGEMENT

<name/> (Ex. J.)
<name/> and <name/> filed a joint appeal against conviction for "Store breaking and stealing contrary to sections 296 and 265 of the Penal Code, Cap.16 of the Revised Laws." They were subsequently sentenced to six (6) years imprisonment each, under the Minimum Sentences Act, No.1 of 1972 as amended by Act No.10 of 1989. They were also ordered to pay shs.410,000/= <-/compesation> being the value of the property allegedly stolen in the loot. They have now appealed to this court.
The respondent Republic which was represented by learned State Attorney, Mr. <name/> at the hearing of this appeal did not support the conviction. I straightway allowed the appeals thereby ordering the immediate release of the <-/appelants> having set aside both the sentences and the order of <-/compesation>. However, I reserved my reasons for the decision. I now give those reasons.
The case for the prosecution hinged on identification of both the culprits responsible for the alleged crime and also of the property involved. Put in a nutshell, the prosecution's case was to the effect that <name/> (PW1), a watchman at the garage of one <name/>, was invaded at his work place during the night on 10/12/1991. There were about ten thugs who so invaded <name/> at his work place. They entered inside the garage through an aperture somewhere under the gate. These people gagged him with papers so that he could not speak or raise an alarm. They also tied him up with ropes over his arms and legs and then dumped him somewhere behind the garage. And with that opportunity the thugs looted the garage stealing a number of items from it which were mostly motor-vehicle spare parts.
PW1 claimed that he identified two only among the thugs. He claimed he had known those two thugs quite for <-/sometime>, they being regulars at his work-place. That notwithstanding, the witness could mention no name of any of the culprits <-/through-out> the entirety of the proceedings in the lower court, nor could the witness give an account of the culprits which could help in identifying them. The evidence is also conflicting as to what circumstances <-_lead><+_led> to the apprehension of the appellants. In his evidence, PW1 stated that he was not present when and where the appellants were arrested; that he only directed <name/> who went there with one <name/>. <name/> PW2 and <name/> PW3 however, said that the watchman (PW1) went with them when and where the appellants were arrested and that he pointed them out physically himself.
There was also the evidence of <name/> PW5 who stated he had seen the appellants when they came to his (PW5) employer in an attempt to find a market to sell some motor vehicle spare parts. They (appellants) however, did not have the material glasses nor any other spares and none of the stolen property was recovered let alone to be produced as exhibits during the trial.
In their defence, both appellants denied they were a party to the alleged theft. <name/> who may conveniently be regarded as the 1st appellant in this case told the trial court that he was owed some shs.1500/= by the owner of Ambiyanse Godown where the theft is said to have taken place. <name/> said he therefore went to the godown to demand this money. He was there lured and asked to board a motor-vehicle which PW2 drove to the police station at Chumbageni only to be arrested there after PW2 had gone and stayed inside to confer with some of the officials there. He told the police that he did not know the culprits who had looted at the material garage but the police charged him all the same.
As for the 2nd appellant (<name/>) he also alleged that he was arrested by the police from his work place and connected with the theft which he denied. He also denied an allegation that he had tried to sell some M/V window glasses. Yet he was charged in court his denials notwithstanding.
With all due respect to the trial magistrate, this evidence fell far too short to what could be regarded as sufficient evidence to establish a criminal offence. There was practically no evidence of identification of the culprits sufficient to prove the guilt of the appellants to that degree of certitude required in all criminal prosecutions namely, certainty beyond any other probable hypothesis. It has been stated time and again that:-
"...in every case in which there is a question as to the identity of the accused the fact of there having been a description and the terms of that description are matters of the highest importance of which evidence ought always to be given: first of all, of course, by the person or persons who gave the description and purport to identify the accused, and then by the person or persons to whom the description was given." - see <name/> Vrs <-/REX> (1942) 9 EACA 72
This case has been cited with approval in a number of decisions <foreign/>vide <name/> vrs REPUBLIC (1982) TLR <number/> to mention only but one of such cases. In the instant case, no attempt was made to describe the culprits neither by the <-/prinipal> witness <name/> PW1 who claimed he saw and identified the appellants nor any other person to whom he divulged the information <foreign_>pro tanto<foreign/> which eventually led to their arrest as is alleged. There should have been an attempt to describe the culprits if indeed he saw them. Indeed I earlier pointed out in my brief summary of the evidence that PW1 never even tried to mention any of the appellant's names at any stage throughout the entirety of his testimony before the trial court. Nor did he attempt to describe the appellants in any other manner.
As regards to any presumed "physical" identification of the appellants by the principal witness which might have led to their arrest, the evidence is, again I pointed out earlier, substantially conflicting. Whereas PW1 himself stated in his testimony that he personally did not accompany <name/> PW2 and <name/> PW3 when these went to apprehend the <-/apppellants>, PW2 and 3 claimed that they went together with PW1 on the occasion. With such contradictions, this evidence was unreliable and most unsafe to sustain a conviction. The question is: When and in what circumstances or manner did PW1 start to implicate the appellants - by pointing them out or by describing <-/then> and/or mentioning their names to PW2 and PW3 who went to arrest them? These are material questions in the circumstances of this case. For it is the answer to such questions which eventually <-/occassioned> the appellants' arrest, prosecution and ultimate conviction. If PW1 never attempted to describe the appellants or mention their names at any stage during the trial, and it is not certain whether he went with PW2 and 3 to point them out when and where they were arrested, then how did PW2 and 3 come by the knowledge of the culprits when it is known that they (PW2 and 3) had not seen them commit the crime? But nowhere in the record these vital questions appear to be answered by the prosecution at least not satisfactorily so to the degree required in all criminal trials. It follows, therefore, that the <-_appellant's><+_appellants'> own account as to what circumstances led to their arrest stands uncontroverted and therefore highly probable thereby casting not only doubt but some reasonable doubt too concerning the question of their guilt. As such the prosecution cannot be regarded as having adequately discharged their legal and bounden duty of proving the guilt of the appellants beyond any other probable hypothesis.
In <name/> Vrs REPUBLIC (1980) <number/> (sic) the Court of Appeal (<name/>) held, citing from several other authorities (which please see) that:
"a witness may be honest yet mistaken, and may make erroneous assumptions particularly if he believes that what he thinks is likely to be true must be true ... `(the) Court must (therefore) handle the evidence on identification of the accused with extreme care and caution...'
Before evidence of identification by a single witness can safely be accepted as free of the possibility of error, where conditions favouring a correct identification are difficult, there should be some other evidence, be it circumstantial or direct pointing to guilt."
In yet another case, <name/> vrs REPUBLIC <number/>, the Court of Appeal (<name/> as he was) <-/Stated>, again citing from several other authorities, that:
"...evidence of visual identification, as <-/Courts> in East Africa and England have warned in number of cases, is of the weakest kind and most unreliable. It follows therefore that no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight..."
Although no hard and fast rules can be laid down as to the manner a trial judge should determine questions of disputed identity, it seems clear to us that he could not be said to have properly resolved the issue unless there is shown on record a careful and considered analysis of all the surrounding <-/circumstancs> of the crime being tried. We would, for example, expect to find on record questions such as the following posed and resolved by him: the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation <-/occured>, for instance, whether it was day or night-time, whether there was good or poor lighting at the scene; and further whether the witness knew or had seen the accused before or not..."
In the instant case, it is true there was the allegation that the witness PW1 saw the appellants with the aid of electric lights. We also have the evidence that the witness PW1 had prior knowledge of the culprits before the material day. However, one would also have expected the witness to give, in <-/addition>, an account of the culprits and/or their names. But this he did not do neither during investigations nor before the court during the trial. He could not even tell the role the appellants or any of them played during the commission of the crime. Taking into account the fact that there is normally a state of confusion prevalent in the mind of a person invaded <-/charecterised> by fast movements by both the invader and the invaded, I would take with great caution the uncorroborated evidence of a lone eyewitness as PW1 was in this case. He could have been honest but mistaken. And what of his failure to give an account of the persons who had invaded him on the <-/occassion>? Without the corroborative evidence as required, it was very unsafe to convict the appellants on the lone evidence of PW1 alone. It is the more so when no identification parade was conducted to put to test the credibility and reliability of PW1. And talking of corroborative evidence, we mean
"...additional independent evidence which connects the accused with the crime, confirming in some material particulars not only the evidence that the crime has been committed, but also that the accused committed it." - see headnotes in <name/> Vrs REPUBLIC <number/>.
There was no such corroborative evidence in this case.
Regard is being had of the evidence of an alleged attempt by the appellants to find market where to sell the supposedly stolen items. This also fails the test in <name/>'s case (supra). For one thing, it was all second hand information to the extent that it came from <name/> PW.5. This witness is not the one to whom the appellants spoke - if ever they did at all revealing their intention to sell whatever it was that they mentioned. It was to <name/>'s employer who did not testify at the trial of the appellants, and <name/> who testified on this did not hear the exchange of words between the appellants and his (PW5) employer. Whatever <name/> stated in court, therefore, it was information allegedly divulged to him by his employer. To that extent therefore his evidence was hearsay and consequently inadmissible as against the appellants.
However, even assuming <name/>'s evidence was admissible against the appellants, it still fell short of the test in <name/>'s case (supra) for want of identification of the materials the appellants wanted to sell to <name/>'s employer. For the appellants did not have the goods with them for same to be seen and identified as being those forming the basis of this charge. If anything it was nothing but conjecture and an accused person shall not be convicted on the strength of guess work. Rather his guilt must be established (and by the prosecution) beyond peradventure. Unless one had the opportunity to see and identify the items - not necessarily produce them in court subject, of course, to the strength of the other evidence tendered in court - <name/>'s evidence, even where it was admissible, would still be inadequate corroborative evidence for want of identification of the items alleged.
It is for the foregoing reasons that I quashed the <-_appellant's><+_appellants'> convictions which were not supported by the Republic.
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