Mlange v. Kipipa Civ. App. (PC) 88-A-68; 14/3/70; Bramble J.
The appellant brought a suit against the respondent for an acre of land. After examining all the evidence, the trial magistrate found for the appellant. But the District Magistrate reversed that decision. His reasons were that at the first hearing of the appeal a man brought a letter dated 3rd July, 1969 stating that the kihamba in dispute was in his hands, having being mortgaged to him by the present respondent for a big sum, and that as the litigants are related he was suspicious that there was a trick to make him lose what he had offered for it. With the agreement of the respondent that the land was not in his hand the court found that the wrong party had been sued.
Held: (1) “While the district court has power to hear additional evidence such evidence must be for the clarification of an issue raised on the record. The respondent never alleged that he was not in possession of the Kihamba. In addition the letter referred to was not admissible evidence. Assuming that the court wished to enquire into the contents of the letter the proper thing would have been to call the writer as a witness and give the appellant an opportunity of cross-examining him. The appellant never had such an opportunity and in these circumstances the admission of the evidence could lead to a grave injustice. Moreover, the fact that the Kihamba as mortgaged did not displace the respondent’s claim to ownership since although he may have given possession to mortgagee as a security for a loan he would still be the legal owner. The mortgagee may have a remedy against one or other of the parties but this was never an issue in the present case. There was no foundation in fact or in law for the decision that the respondent was not the right party to the sued.” (2) Appeal allowed.
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