ALI ABDALLAH RAJAB v SAADA ABDALLAH RAJAB AND OTHERS 1994 TLR 132 (CA)

ALI ABDALLAH RAJAB v SAADA ABDALLAH RAJAB AND OTHERS 1994 TLR 132 (CA)

Court Court of Appeal of Tanzania - Zanzibar F

Judge Ramadhani JJA, Mnzavas JJA and Mfalila JJA

CIVIL APPEAL NO. 42 of 1993

13 May, 1994 G

(From the judgment and decree of High Court of Zanzibar at Zanzibar, Mmila,

RM/Extended Jurisdiction).

Flynote

H Evidence - Evidence of a spouse - Failure to warn oneself on evidence from a

spouse.

Evidence - Credibility of - Witnesses - Whether appellate court can assess credibility

of witnesses

-Headnote

The appellant appealed against the decision of the High Court of Zanzibar contending

that it was wrong in believing the testimony of the first I

1994 TLR p133

respondent without taking into account that she was an interested party in the suit,

A and that it failed to warn itself that her testimony could be biased in favour of the

second respondent, her husband.

Held:

(i) Where a case is essentially one of fact, in the absence of any indication

that the trial court failed to take some material point or circumstance into account, it

is improper for the appellate court to say that the trial court has come to an erroneous

conclusion; B

(ii) Where the decision of a case is wholly based on the credibility of the

witnesses then it is the trial court which is better placed to assess their credibility

than an appellate court which merely reads the transcript of the record. C

Case Information

Appeal dismissed.

No case referred.

Mbwezeleni, for appellant.

[zJDz]Judgment

Mnzavas, JA, delivered the following considered judgment of the Court. D

This is an appeal against the decision of Mmila, Regional Magistrate, (Extended

Jurisdiction), which adjudged the second respondent, Mohamed Burhan Mkelle, the

owner of a house build on Plot No 18/25 at Kisima Majongoo area in Zanzibar

township. E

In his memorandum of appeal, the appellant, Ali Abdulla Rajab, argued that the Trial

Magistrate (Ext Jurisdiction) erred in law in assuming that Plot No 18/25 is the same

as Plot No 18/26A and thereby holding against him. F

Secondly, it is alleged that the trial court was wrong in believing the testimony of the

first respondent, Saada Abdulla Rajab without taking into account that she was an

interested party in the suit. In the third ground the appellant alleged that, and we

quote: G

`The learned trial Regional Magistrate erred in law in concluding that the

physical change of the suit premises must of necessity be caused by demolition and

nothing else'.

Finally the fourth ground of appeal was that the trial court erred in law in concluding

H that `undertaking efforts to build a house belonging to ones in law confers one the

right of ownership'.

Before we proceed further we would like to mention that when the appeal came up

for hearing the first, second and the fourth appellants did not appear despite the fact

that they were duly served with notices of hearing. Mr Mbwezeleni, learned Counsel

I

1994 TLR p134

MNZAVAS JA

A for the appellant applied for leave to be heard ex-parte and was allowed to

proceed under Rule 105(2) of the Court of Appeal Rules in respect of the first, second

and fourth appellants.

Elaborating on the grounds of appeal the learned Counsel argued that the learned

Trial Magistrate (Ext Juridiction) failed to warn himself when assessing the evidence

of Saada, the first respondent, that her testimony could be biased in B favour of the

second respondent who is her husband. It was Mr Mbwezeleni's argument that the

trial magistrate's decision was not supported by the evidence before him and asked

the Court to set aside that judgment and declare the appellant and his sister, first

respondent, the owners of the disputed premises. C

In rebuttal the third respondent, Ahmed Suleiman, who bought the disputed house

from the second respondent told the Court that the house the appellant claims to be

his property had been demolished by municipal authorities as it had become

dilapidated; and that after its demolition the second respondent erected a new D

house on the plot which house he later sold to him; third respondent.

In this appeal the following matters were not in controversy:

One, Mwanabaraka d/o Salim owned a house - No 18/25 at Kisima-Majongoo.

Mwanambaraka died in 1944 and her house was inherited by her daughter one, E

Bimkubwa Ali. Four years later, in 1948, Bimkubwa met her death and the house was

inherited by her two children, the first respondent and the appellant. The first

respondent, Saada, is married to the second respondent, Mohamed Burhan Mkelle. F

The issue that the trial court had to decide was whether the house bought by the

third respondent from the second respondent was the same house inherited by the

appellant and the first respondent after the death of their mother as alleged by the

appellant; or whether it was a brand new house built by the second respondent G

after the house inherited by the appellant and his sister, the first respondent, had

been demolished by municipal authorities as argued by the second respondent.

In his evidence before the Court of first instance the appellant argued that the

disputed house was the same house he and his sister, first respondent, inherited H

from their mother. It was his testimony that while he was in Nairobi he entrusted the

house to his sister to look after it and that he used to repair the house. He also told the

Court that on one occasion he gave his brother-in-law, the second respondent, Shs

3000/= to effect repairs on the house. It was his evidence that the house looked new

because of repairs on it and I

1994 TLR p135

MNZAVAS JA

not because a new house had been built on the plot as alleged by the second A

respondent.

In her defence the first defendant denied that the appellant had entrusted the house

to her. According to her defence the house the appellant claimed was demolished by

the Government because it was in bad shape. B

The second respondent told the Trial Court that after the house which belonged to

the appellant had been demolished by the government he applied for a building

permit to build a house on the vacant plot. He was issued with a permit and built the

house in his name and that it is this house the appellant is claiming to be his property.

He denied receiving Shs 3000/= from the appellant for repair of his house. C

According to his defence the appellant was always in financial difficulties and that on

one occasion he had to find him a job with Rex Hotel in Dar es Salaam. It was also his

defence that on another occasion he advanced the appellant capital to enable him to

start business as a fish-monger. D

In assessing the evidence the learned Trial Magistrate said on page two of the typed

script of the judgment inter alia: E

`However, taking the whole evidence into consideration this Court is of a

clear view that the assertion of the plaintiff that the house was never demolished

cannot stand. Two of his witnesses PW1 and PW2 all ended up conceding that the

previous premises were demolished. PW1 Ramadhani Juma, . . . admitted when crossexamined

by the attorney of the third defendant that the current house in that place

is a modern house, roofed with iron-sheets. He also admitted that all the walls were

physically pulled down and replaced by new ones, and that work was undertaken by

Mohamed Burhan Mkelle'. F

The learned magistrate also believed the evidence of PW2, Sheha Hadji Ali who G

said that document No 1010/1955 dated 14 June 1955 came from his office, the

municipal office; and that it showed that the previous premises which stood on Plot

No 18/25 was demolished. From the evidence of this witness the document No 7/59

dated 10 January 1959 showed that the plot was cleared and that there was no house

on the plot. H

The Trial Magistrate also believed the second respondent when he said the plaintiff

did not give him any money for repair of his (appellant's) house. The decision of this

case was wholly based on the credibility of the witnesses. The learned Trial

Magistrate saw and heard the witnesses as they testified. He was therefore in a I

1994 TLR p136

A better position to assess their credibility than this Court which merely reads the

transcript of the record.

This Court has repeatedly held that where a case is essentially one of fact, in the

absence of any indication that the Trial Magistrate/Judge has failed to take some

material point or circumstance into account, it is improper for the Court to say that

he has come to an erroneous conclusion. B

With respect to Mr Mbwezeleni, learned Counsel for the appellant, the

preponderance of probabilities heavily weighed against the appellant. We see no good

reason to differ with the finding of the trial court, based as it was, on the credibility of

the witnesses. C

In the event the appeal is dismissed.

The respondents to have their costs.

1994 TLR p136

E