Abbi v. Matle (PC) Civ. App. 24-A-71; 1/9/71; Kwikima Ag. J.

Abbi v. Matle (PC) Civ. App. 24-A-71; 1/9/71; Kwikima Ag. J.

The appellant, a Somali, sued the respondent for the recovery of a piece of land allocated to him by the Divisional Executive Officer (Gidamboru) in March, 1965. The respondent asserted title to the land through allocation by the VDC in October of the same year. He sought to impeach the prior allocation on the ground that the appellant is a Somali and land could not be allocated to a Somali under customary law. At the trial the D. E. O. gave evidence that his power of allocation sprung from an authority given by the Executive Officer of Mbulu District council. The authority was not produced though the reference number and date were specified. The trial court found for the respondent on the ground that as there was no law regulating the allocation of land, the power was in the VDC not in the DEO. The decision was affirmed by the District court. In the High Court the appellant sought to tender the authority given to the D. E. O. by the Executive Officer, in evidence but the respondent objected to this on the ground that the document was additional evidence which was not produced in the primary or district courts.

Held: (1) “The admission of additional evidence has always exercised the minds of the courts as the authorities show. I propose to review a few of them in order to determine firstly whether this very important document is additional evidence and secondly whether it can now be taken into consideration at this stage. What has always been rejected is the practice of taking additional evidence on appeal from witnesses who were not called at the trial because if allowed, such practice would make litigation endless (Bukende Fufula v. Mswanzi. Fufula H. C. D. 1970). But even then authorities seem to suggest that

            under section 17(a) of the Magistrate’s Courts Act. Cap. 537, witnesses may be heard on appeal “to clear up any point”’ provided the appeal magistrate records his reasons for taking such evidence (Michael Kombere vs. Kone Paroli, 1970 H. C. D. 115) The Fufula case (supra) seems to suggest further that this court could not interfere where additional evidence was taken without regarding any reasons for its admission if it is felt that reasons existed for such course of action to be taken even if they were not recorded. Indeed in Dausen F. Swawe v. Oforo Semu Swai. 1967 H. C. D. 429 additional evidence taken by the appeal magistrate brought out the fact that the clan to which parties belonged had sat subsequent to the trial and rejected appellant’s claim was accepted by this court, Platt J. (as he then) was holding: - “The Court expressed doubt as to whether he receiving of additional evidence by the District Court was merited. However the clan’s decision seemed to have been correct, and the Court was entitled to accept the evidence in the circumstances.” In the present case the Divisional Executive Officer Mr. Gidamboru told the trial court that he allocated the shamba, then a virgin piece of land, on 17/3?65 and subsequently informed the V. D. C. which was a committee made up of several members. Gidamboru was certain that the allocation was lawful because he was acting under the authority given to him through this document which allowed him unilaterally to allocate land. With respect to the respondent I do not think that this document is additional evidence as such since it has been in the picture all he time. It was identified and referred at the trial. Failure to produce it at the trial cannot make it additional evidence at this stage because the respondent has been aware of it all along. It is a pity that both course below never found it fit to take the document into consideration. The appellant was not represented at any court and it cannot be held against him that he did not insist on its production at the trial or on the first appeal. I would therefore hold that document not to be additional evidence and take it into consideration.” (2) “It is clear from the document before this court that Gidamboru was fully authorised to act the way he did. The trial curt found no by-law in breach of which Gidamboru had acted. It was quite clear that the appellant claimed prior title to the disputed shamba and that the respondent was motivated by spite, envy and even racialism when he grabbed land allocated to and cleared by his neighbour. Here was no requirement at the time of the allocation that the entire VDC should collectively allocate land. Gidamboru’s failure to report to the VDC was not a violation of any existing by-law or instruction of the Executive officer. The instruction in force at the time reads: “With reference to this letter I would like to inform you that our by-law is approved, from now on land should not be dealt with by VDC but executive i. e. Assistant Divisional Executive Officers and Executive Officer. Such lands which will be allocated by you should not be under leasehold (Letter No. MEC/I/16/153 of 27^th May 1964).” This letter

Expressly forbids allocation of land by the VDC. Following the trial Court’s own finding that land allocation was regulated by the directions of the Executive Officer, it would appear that it was the allocation by the VDC to the respondent which was unlawful or unauthorised. The express letter of instruction no. MDC/I/16/153 takes such authority from the VDC and confines it to officials like Gidamboru. For this reason alone the courts below ought to have found for the appellant.” (3) “This court has often deprecated the actions of the VDC’s in allocation (Lukas Masirori Kateti v. Oloo Sebege 1969 H. C. D. II) because such practice breeds discontent among the people whom the VDC is supposed to look after. It is particularly unfair to reallocate occupied land in the absence of the occupier. In this case the respondent was aware of the allocation to the appellant and his approach to the VDC behind the Appellant’s back must have been made in a very bad faith. He was seeking to exploit his neighbour who had spent his energy and resources to clear the land already allocated to him at the time the respondent chose to stir. This court is left in no doubt that the move the respondent took was taken because the appellant was a Somali and not a Mbulu or some other local tribesman. In rejecting he appellant’s claim the trial court was condoning and even encouraging racial considerations to influence above, it would be only just to allow this appeal and overrule the decision of both courts below.” (4) Appeal allowed and appellant is declared the lawful occupant of the disputed shamba.