CASE 1 KAPASYU S/O MWAIPINGA V.

MWENDILEMO S/O MWAKYUSA, 1968/88

(PC) Civ. App. 149-D-67, 8/11/67,
Duff J. The dispute between the two relatives involved a parcel of land, each claiming it by
inheritance. The assessors in the district court suggested that as the parties are related the dispute
could be brought to an amicable solution by dividing the land equally between the two claimants.
Such a verdict is consistent with Nyakyusa customary law, and the magistrate accepted the
advice of the assessors, and held accordingly.
Held: It is clear that any customary law which dispossesses an owner would be contrary to the
principle of natural justice . The Solomon ruling must be disturbed. On the facts before the
court, including an earlier litigation involving the same plot of land, the disputed plot was
awarded to Mwendilomo, the respondent.

CASE 2 ISSACK S/O NGUVUMALI V. PETRO S/O BIKULAKO (SUBSTITUTED BY

MTALIKWA S/O BIKULAKO), 1972/139 (LC)) Civ. App. 1-DSM-67, 22/6/72,
Onyiuke, J. The suit was instituted in 1961 at the Kalinzi Local Court in Kigoma District. It was
a claim for trespass to a shamba. The original plaintiff was one Petro s/o Bikulako who has since
died. His representative is Mtalikwa Bikulako who is the respondent in this appeal. The original
defendant, Issack s/o Nguvumali, is the appellant. The local court gave judgment for the plaintiff
but ordered him to pay Shs. 100/= to the defendant as compensation for the improvements he had
made while occupying the shamba. The plaintiffs case was that he inherited the shamba from his
father Ntore who had originally cleared it of bush. He claimed that he had planted coffee trees on
the shamba. The defendant claimed that he inherited the shamba from his guardian Mtango. He
claimed to have been using it for 30 years. An appeal was lodged by the plaintiff against the
decision to award 100/= to the unsuccessful defendant. The appeal was lodged in the Kigoma
Federation Appeal Court. The court dismissed the appeal against compensation, but confirmed
Petros title. Then the defendant appealed to the Regional Local Courts Officer, on the ground
that in a previous suit Kilinzi Civil Case 88/1960 he had been awarded the shamba and that
decision bound the court in the present case. He also appealed on the ground of undisturbed
Page 1

possession for 31 years. It appeared that case 88/1960 had been brought by Issack against the
present plaintiffs brother, not the plaintiff himself. The court in that case gave judgment for
issack on the ground that he had cultivated the shamba when his guardians, one of whom was
Mtango, died. The Region Local Courts Officer dismissed the argument of res judicata on the
grounds that Petrol was not a party of the previous case and that the judgment did not give issack
title against all comers that is to say, against the whole world. On the ground of undisturbed
possession, it was the unanimous opinion of the assessors that : The title of the original landholder and his heir is invariably superior to that of any secondary land-holder or tenant no matter
how long the latter may have been in possession. Issack then applied for leave to appeal to the
High Court. Before this was granted the Local Courts Appeals Officer, by order, required
additional evidence to the taken by the Primary Court of Kalinzi .The primary Court inspected
the area and drew up a map. Additional evidence was given as to the shamba in dispute. Two
elderly witnesses, called by Issack, the issues of the late Mtango, said that Issack could not
inherit the shamba from Mtango, because he was in no way related and was in fact Mtangos
servant.
Held: (1) It is clear on the evidence that the respondent could not inherit Mtangos property
assuming that the shamba belonged to him. Furthermore Mtangos title to the shamba was
tenuous and was based on the fact that he cultivated the shamba once and apparently did not live
long enough to reap the harvest. On the other hand the evidence of Ntores title to the shamba
was considerable and was given by elderly witnesses who had nothing to gain by telling lies.
Ntore was a member of the village in which the shamba was situated as opposed to Mtango who
belonged to a different village. I hold on the evidence that the shamba in dispute originally
belonged to Ntore. Mtangos alleged cultivation of the shamba for one season could not defeat
Ntores title to it. The opinions of the Assessors who sat with the Regional Local Courts Appeals
Officer confirmed this view. The appellant cannot therefore base his claim to the shamba on
Mtangos alleged title. (2) I now turn to the second ground of appeal which was founded on
suit 88/60. The respondent as far as the record was concerned was not a party to the case but
Mrisho who was alleged to be his brother was. The question for consideration is whether the
respondent was bound by the decision in that case. I have studied the available record of that
case. The boundaries of the plots of shamba in suit 88/60, one on which he stated he planted
Eucalypty trees and the other coffee trees. The appellant based his claim to these plots of shamba
Page 2

on the fact that the inherited them from Mtango, Bugabo and Barunguza whom he claimed were
his guardians. The Local Court gave Judgment for the appellant on the ground that he cultivated
the plots after his guardians death. Mrisho, be it noted, did not defend the case on behalf of
Ntores family, nor was Ntores title put in issue in that case. It is difficult therefore to see how
the present respondent can be bound by that decision simply because the person who was alleged
to be his brother was the defendant in the case. It is however contended that Mrishos failure to
plead Ntores title amounted, in effect, to a declaration against interest which should be binding
on the respondent. A declaration against interest is an admission but not a conclusive admission.
It does not amount to estoppels. Secondly the respondent was not claiming through Mrisho but
was rather claiming independent of him. Thirdly the boundaries of the plots in dispute in suit
88/60 were not clearly defined and it could not be said with any degree of certainty that Mrisho
knew that Ntores land was involved in the case. The sketch map drawn by the Primary Court
showed that the shamba in which the appellant planted Eucalyptus trees, shamba G, which was
one of the plots involved in suit 88/60 was not being claimed by the respondent. This apparently
was the plot claimed by Mrisho to belong to Rungo and Barunguza. It is noteworthy that the
appellant based his claim on the title of mtango, Bugabo and Barunguza (his alleged guardians)
without specifying which plot belonged to whom. Lastly, the appellant based his claim on the
long user of the shamba without interruption. There was evidence, however, that he occupied the
shamba in the respondents absence and against all warnings. He had notice therefore of Petros
title. Petro had effectively re-asserted his title by planting coffee trees on the shamba which had
matured. The award of 100/= was designed to compensate the appellant for whatever
improvements he might have made on the plot of land and I hold, as the lower courts did, that
this was fair enough (3) In the final result I will dismiss this appeal and confirm the decision of
the Kalinzi Local Court awarding the shamba in dispute to Petro and his heir. I will also confirm
the award of 100/= to the appellant.

Page 3

CASE 3

SWALEHE V. SALIM, 1972/140 (PC) Civ. App. 36-DDM-71, 24/6/72,

Kwikima, Ag. J. The appellant sought to evict the respondent whom he alleged to have
encroached upon his shamba. The parties occupied adjoining plots. The appellant contended that
the respondent encroached upon his land to the extent of 37 acres. When the dispute first arose
some village elders were summoned to the shamba where an indaba was held. Therese elders
told the trial court that they heard the respondent admit encroaching upon his neighbours (the
appellants) land. The indaba then declared the disputed land to be the appellants and apparently
a document was drawn up to show the boundaries of the respective shambas of the parties. This
document was not produced at the trial and despite weighty evidence to support his claim, the
appellant lost at the trial and on his first appeal. The respondent called fewer witnesses than did
his adversary and not all of those supported his case. Most of them knew little or nothing about
the dispute and they said so in court.
Held: (1)The appellants magnanimity seems to be the real source of his trouble on the whole.
For, when the indaba resolved that the respondent had encroached upon him, the appellant
agreed to let the respondent occupy as a mere invitee. Little did he know that his invitee would
turn against him and claim the shamba when called upon to vacate. On this aspect of the dispute,
the learned appeal magistrate observed; Appellant insists only that he lent the piece of land to
respondent. But it must be remembered that even if appellant lent his piece of land to respondent,
but respondent has developed it . This was clearly misdirection on his part, because, as this
court has consistently held, no invitee can exclude his host whatever the length of his occupancy
(Mkakofia Meriananga v. Asha Ndisia (1969) H.C.D. n 204). That the respondent was occupying
and had even made unexhausted improvements on the shamba was not reason for him to oust the
appellant who had invited him ex gratia. (2) The record clearly shows that the appellant proved
his case at the trial and that undue regard was had to his failure to produce the document drawn
at the indaba. He lost his first appeal because the appeal magistrate misdirected himself in law
while the same time falling into the same mistake of placing undue importance on the document
which was not all that crucial really. (3) Appeal allowed with costs. Respondent to give vacant
possession of the shamba to the appellant and if there are permanent crops grown by the
respondent, appellant to compensate him at the appropriate rate.

Page 4

CASE 4 YEROMINO ATHANASE v MUKAMULANI BENEDICTO 1983 TLR 370 (HC)

Court High Court of Tanzania - Bukoba
Judge Mwalusanya J
September 28, 1985
(PC) CIVIL APPEAL 162 OF 1982 B
Flynote
Land Law - Clan land - Redemption of - Sale - Whether sale concluded.
Limitation - Redemption of land held under customary law - Sale purported to have been made 5
years prior to action - Whether time barred - Customary Law (Limitation of C Proceedings)
Rules G.N. 311 of 1964 and s. 50 Law of Limitation Act No. 10 of 1971.
Headnote
The appellant alleged that he had bought clan land from one Laurent Mutore Bulaya (deceased),
who was the respondent's brother. The respondent successfully sued the D appellant in the
Primary Court. She proceeded on the argument that there was no sale, and even if there was one,
she should be entitled to redeem the land. The appellant argued that there was sale and that she
was time barred for an action for redemption since the limitation period for such suits was 3
months. The District Court agreed with the Primary Court's finding that there was no sale. E
Held: (i) There was no sale;
(ii) even if there was sale, the respondent was not time barred in her action for
redemption, the limitation period being 12 years.
(iii) (obiter) Policy considerations should not be used to override clear provisions F of
the law; it is for the legislature to amend the law if it is found wanting. The courts have to
administer the law as they find it.
Per curiam: the decisions courts deliver are not laws but expositions of the law.
Page 5

[zCIz]Case Information
Appeal dismissed. G
Cases referred to:
1.
2.
3.

Luttataza Biteya v Haji Abdu Sulemani [1975] L.R.T. n. 43.

Evarister Martin v Apolinary Eustaad [1968] H.C.D. n. 412. H
Mzee s/o Madirisha v Rwamturaki Malagina, Mwanza (PC) Civ Appeal No. 95 of

1970.
4.
Fulgence Seif v Raphael Rwabwera [1978] L.R.T. n. 46.
5.
Stephania Byabato v Francia Lwehabura & Anor. [1974] L.R.T. 25. I
1983 TLR p371
MWALUSANYA J
6.
Abel Rwebogora v Raphael Mukaja [1970] H.C.D. n. 100. A
7.
Bi Vierdina Kyabuje v Gregory Kyabuje [1968] H.C.D. n. 499.
8.
Swift v Tyson (1842) 16 Pet. 1.
J. Rweyemamu for appellant. B
[zJDz]Judgment
Mwalusanya, J.: This is a dispute over clan land as to whether it had been sold to a stranger the
appellant Yeronimo s/o Athanase or not; and if it had been sold whether the respondent
Mukaulani d/o Benedicto who is clan member had the right to redeem it or not. The shamba in
dispute is worth about Shs. 2,000/=. The Bukondo Primary Court C in a unanimous opinion
decided that the respondent's deceased brother Laurent Mutore Bulaya had not sold the disputed
piece of land to appellant as claimed and that the sale agreement dated 5/8/1970 purporting to
effect the sale was a forgery. The District Court agreed that evidence of sale of the shamba was
indeed wanting and so the D appeal was dismissed. With the help of learned counsel Mr.
Rweyemamu the appellant has appealed to this court challenging the decision of the two courts
below.
After a thorough review of the evidence on record, I am unable to resist the force of the E
concurrent finding of the two courts below that there was no sale of that clan land. Firstly, no
near relative was informed of the sale including the respondent. Although Richard claimed at the
District Court that he was a clan member of the Muheta clan yet even if we were to so concede,
he cannot be a near relative despite the wide definition given in para 557 of Cory and Hartnoll as
he himself conceded that he could not F vouchsafe that he was a descendant of a common
Page 6

paternal ancestor in the male line. Secondly, as the trial court observed, the sale agreement
Exhibit A appears tampered with, the signature of the deceased appears retraced. Thirdly, there
was a contradiction between the appellant's testimony and that of his key witness Richard
concerning the G amount of purchase price paid. Richard said Shs. 1,000/= only was paid
while the appellant insisted that he paid Shs. 6,150/=. Fourthly if it is true that the appellant
bought the land in question on 5/8/1970 why then did he not occupy it instead he waited till the
death of the alleged vendor Laurent in 1977. Fifthly, after sale according to para 935 of Cory
and Hartnoll on Haya Customary Law, boundaries are to be marked. But H in this case when
the Primary Court visited the disputed piece of shamba on 12/6/1981 they could not see any
boundary marks and the appellant failed to show the same despite the gallant efforts he made.
Indeed the evidence in favour of the respondent was overwhelming. No I 1983 TLR p372
MWALUSANYA J reasonable tribunal could have resisted the conclusion that there was no sale.
At the District Court additional evidence was adduced apparently in last ditch efforts to establish
that there was a sale. The appellant produced a new sale agreement Exhibit B which purported to
show that Laurent sold the disputed piece of shamba to appellant in B 1975 for Shs. 1,000/=.
He also produced a specimen signature of Laurent as Exhibit C from a document of 1960 for
comparison with the disputed signatures in Exhibit A and B. The District Court ignored this new
document of sale as useless and I cannot say it was wrong. The change in strategy by the
appellant was indeed mean and redolent of a lost battle if not the whole war. C
Assuming I am wrong such that there was a sale indeed, is respondent entitled to redeem the clan
shamba? Counsel for the appellant Mr. Rweyemamu submitted that the respondent could not
redeem the clan land as she was time-barred. He said that as per D para 568 of Cory and
Hartnoll a redemption claim has to be filed within three months after hearing of the sale. He said
that as the sale was in 1975 as per Exhibit B and as this case was filed in 1980 then the action
was out of time for some five years. It was counsel's submission that the respondent must have
known of the sale in 1975 or soon E thereafter as she was there in the village.
However according to the respondent she knew of the sale for the first time at the funeral of her
deceased brother Laurent in 1977 when the appellant disclosed the alleged sale documents. The

Page 7

matter was immediately referred to the Arbitration Tribunal which F appeared to decide in
favour of the appellant and so the matter eventually ended in court.
On the evidence on record I find that there is no basis for the contention by the appellants'
counsel Mr. Rweyemamu that the respondent knew of the sale in 1975. No evidence whatsoever
was led to establish that the respondent knew of the sale earlier G than the time of the funeral.
After all the appellant had not entered and occupied the shamba in question and so it cannot be
said that she must have been alerted by the appearance of a trespasser to their clan land. So in
my judgment the respondent was not time-barred. She took action within three months after she
knew of the sale by referring the matter to the Arbitration Tribunal. H
Counsel for appellant took occasion to submit that the period of limitation for redemption of clan
land was three months and not 12 years as some authorities tend to suggest. He gave two
reasons for his stand. First, that if the 12 years limitation period was adopted it would cause
stagnation of economic development as buyers would not I develop and invest in the land they
bought during the 12 years for fear of it being 1983 TLR p373 MWALUSANYA J redeemed.
And he also said that speculative relatives of vendors would wait till the land A is developed
then come up with a redemption claim. And so he said that, that could not be good law at all. In
fact counsel was echoing the sentiments of Mfalila J. in Luttataza Biteya v Haji Abdu Sulemani:
[1975] L.R.T. no. 43 where he expressed the view that: B
'To give security of tenure to buyers of clan shambas and facilitate the development of
agricultural land, redemptions will only be allowed if applications to redeem are lodged within
three months of the sale. After this period, knowledge of the sale will readily be imputed to the
intending redeemer, thereby effectively protecting buyers of clan shambas from possible
fraudulent speculative clan members'.
However my short answer to this point is that however laudable those sentiments are, I am
unpersuaded that such policy considerations should be used to override clear D provisions of
the law. It is for the legislature to amend the law if it is found wanting. As ministers of justice
we are enjoined to administer the law as we find it. And it is my considered view that the law on
the subject is substantially clean and needs no exotic interpolation. E

Page 8

Yet the protagonists for the three month limitation period have another string to their bow. They
argue that the decision of Evarister Martin v Apolinary Eustad [1968] H.C.D. n. 412 by Mustafa
J. (as he then was) does not stand for the proposition that the limitation period for redemption of
clan land is 12 years as, they submit, any observation to that effect was merely obiter dicta in that
case involved the recovery of mortgaged F land and not redemption or recovery of land per se.
They concede that for the recovery of mortgaged land the limitation period is 12 years. The
protagonists attempt at what they consider the correct interpretation of Item 6 of Customary Law
(Limitations of Proceedings) Rules G.N. 311 of 1964 which reads: G
'Proceedings to recover possession of land or money secure on mortgaged land is 12 years'.
It is argued that the para should be read as referring to a suit to recover possession of H land or
money both which have been secured on mortgaged land. In other words the paragraph it is
argued concerns two matters: first a suit to recover possession of land secured on mortgaged land
and secondly a suit to recover possession of money secured on mortgaged land. In the case of
Mzee Madirisha v Rwamturaki Malagina; Mwanza I (PC) Civil Appeal No. 95 of 1970
(unreported) but cited in Fulgence 1983 TLR p374 MWALUSANYA J Seif v Raphael
Rwabwera: [1978] L.R.T. n. 46 Mfalila J. had this to say: A 'I am satisfied that while the right
to recover mortgaged land the mortgagor is limited to 12 years: the right to redeem land from
strangers by clan members other than the original B mortgagor or sellers is still subject to the
customary law limitation period of three months from the time the clan member became aware of
the alienation'.
However like Mustafa J. in Everister case (supra) and Kisanga J. (as he then was) in

Stephania Byabato v Francia Lwehabura & Another: [1974] L.R.T. n. 25 I read or interpret Item
6 of G.N. 311/1964 differently. In my judgment I take it that the paragraph envisaged two kinds
of actions: firstly a suit to recover possession of land and D secondly a suit to recover
possession of money secured on mortgaged land. That would appear to be the plain and natural
meaning of that para on its plain construction. If the rules envisaged limitation period for
mortgaged land only as claimed, then it would have been a strange omission indeed because land
disputes are quite prevalent in our varied customary law communities and no limitation period
has been laid down by those E communities except perhaps the Haya Customary law. It is
Page 9

absurd therefore to assign a negative intention to the law makers of 1964 rules that the alleged
lacuna in the law was deliberate. In the event the 1964 rules must be taken to have abrogated
any earlier law on the subject and thus the 12 year period is the correct limitation period for F
redemption of clan land. And Bramble, J. in Abel Rwebogora v Raphael Mukaja: [1970] H.C.D.
n. 100 holds the same view.
Counsel for appellant Mr. Rweyemamu further submitted that, as Hamlyn J. pointed out in Bi.
Verdiana Kyabuje v Gregory Kyabuje: [1968] H.C.D. n. 499 it is wrong for the G courts to
change the law from the three month limitation period for redemption of clan land to a 12 year
limitation period. While I associate myself with the views expressed by counsel and the late
Judge Hamlyn, however I am unable to concur that the courts have changed the limitation period
as contended. It is a truism that the 1964 limitation rules H have been laid down by the
legislature under section 65 the Magistrates' Court Act Cap. 537 and later reapplied by the
legislature again vide s. 50 of the Law of Limitation Act No. 10 of 1971. The courts are just
interpreting the law and it can again be said that the duty and province of the courts is to say
what the law is. On my part I heed and I appreciate what that English writer Francis Bacon once
said in his Essays of Judicature that:
1983 TLR p375
'In the ordinary use of language it will hardly be contended that the decisions of courts A
constitute laws. They are, at most, only evidence of what the laws are and are not of themselves
laws. They are often re-examined, reversed and qualified by the courts themselves, whenever
they are found to be either defective or ill - founded or otherwise incorrect'. B
With those observations I entirely agree. I hope that adequately disposes of Mr. Rweyemamu's
point as regards the role of the courts.
In the event the appeal is dismissed with costs. C
Appeal dismissed.

Page 10

CASE 5 CELESTINA PAULO v MOHAMED HUSSEIN 1983 TLR 291 (HC)

Court High Court of Tanzania - Bukoba
Judge Mushi J
September 5, 1985
CIVIL APPEAL 223 OF 1982
Flynote
Probate and Administration - Religion - Whether the difference of religion can affect an D
ascertained will in appointing an administrator of an estate.
Probate and Administration - Clan linkage - Whether the difference in clan linkage can prevent a
person from administering the property of a deceased person of another clan. E
]Headnote
The appellant appealed against the decision of the District Court of Bukoba which reversed the
decision of the Primary Court which appointed the appellant the administrator of the estate of
Sawia d/o Balegu on the basis of oral evidence and a written will. The District Court had
reversed the Primary Court's decision purportedly F because the appellant was of different
religion and clan from that of the deceased.
Held: (i) Where there is an ascertained will the same must be respected in letter and spirit
notwithstanding the difference of religion between the deceased and the appointed administrator;
(ii) where personal property is bequeathed the person bequeathing the property has an absolute
right to choose an administrator of her own choice and the clan has no right to interfere with the
same. Case Information Appeal allowed
No case referred to.
Judgment

Page 11

Mushi, J.: This is an appeal by Bi Selestina Paulo. The appellant filed an application in the
Primary Court seeking to be appointed an administrator of the estate of the late I Sawia d/o
Balegu.
1983 TLR p292
MUSHI J
There is no dispute as to the beneficiary of the estate. The beneficiary is Zainabu d/o A
Mohamed Hussein. In the Primary Court evidence was adduced which included oral testimony
from the close friends of the deceased as well as documentary evidence in the form of a letter
which the deceased had written to the appellant. The respondent, B Mohamed Hussein, did not
object to anything other than claiming that he should be the administrator of the estate because
he was the father of the beneficiary, Zainabu, who was at that time eight years old. The
respondent did not claim that he was appointed by the deceased to be the administrator of the
estate of the deceased but he thought he was entitled. The Primary Court considered the
evidence and found it conclusively C established that the deceased herself appointed the
appellant the administrator of the estate and accordingly confirmed the appointment of the
appellant as the administrator of the estate of Sawia d/o Balegu. The respondent was ordered to
account for the money D he had received and hand the same to the appellant. The respondent
appealed to the District Court which reversed the Primary Court decision and appointed the
respondent the administrator of the estate of the deceased Sawia d/o Balegu against the will of
the deceased. The appellant was dissatisfied by the District Court decision and hence this appeal
The appellate magistrate was grossly wrong in his decision. For reasons known to himself he
took into account completely strange matters to defeat the will of the deceased - Sawia d/o
Balegu. It is a known fact that an ascertained will of the deceased must be respected in both
letter and spirit. The learned district magistrate did not say that the deceased had not made the
will appointing the appellant an administrator of the F estate, but tried to find uncalled-for
grounds which according to him would make it impossible for the appellant to be an
administrator of the estate. First he invoked religion. He said that the deceased could not
appoint the appellant as administrator of her estate because the appellant was of different religion
and that her estate must be G administered according to Islamic law. Secondly the appeal
Page 12

magistrate brought in clan. He said that the appellant was of a different clan and thus she could
not be an administrator of the property of the deceased. Finally the appeal magistrate said that
the beneficiary was the daughter of the respondent. According to the appellate magistrate, H
because of the above reasons, the respondent was the proper person to be the administrator of the
deceased estate. This was a regrettable decision.
I said earlier that it is an established principle that the will of the deceased must be respected in
letter and spirit. There was no dispute that the deceased in her free will and I fully aware of
what she was doing she decided to appoint the appellant the administrator of her estate and
1983 TLR p293
she did so fully knowing that she was moslem and the appellant was of another religion. A The
property which she bequeathed was her personal property and had nothing to do with her clan.
She had the right to choose her beneficiary and she also had absolute right to choose the
administrator of her own choice. She was aware also that the beneficiary was the daughter of the
respondent but she did not wish the respondent to be the B administrator for reasons known to
her. Why should the appellate magistrate purport to tell the deceased what she should have done
against her clearly expressed wish? The Primary Court decision was very sound and reasonable.
This appeal must be allowed. The District Court decision is set aside. The Primary Court
decision is restored. The appellant is to get costs in this court and costs below. C
Appeal allowed.

CASE 6

DANIEL MARWA V. SURATI MWITA, 1968/133 (PC) CIF. App. 113-D-66,

8/2/68,
Saudi J. Two neighbors disagreed as to which one of them had the right to an adjacent piece of
land which had recently become vacant. Respondent moved on to the land, claiming the former
owner had given it to him, though he did not produce the former owner as a witness, or other
credible evidence to establish his claim. Appellants claim rests on the fact that he went to the

Page 13

local VDC which allocated the plot to him, notwithstanding (or perhaps in ignorance of )
respondents occupation of the land.
Held: In view of the respondents inability to clearly establish his right to the land, and
appellants inability to show that he had a superior claim to the land, the District Court divided it
equally between the parties. The High Court could see no good ground for interfering with this
decision, and accordingly dismissed the appeal.

CASE 7

IZAAK SEMPANAMA V. LEOKADIA MWOMBEKI 1968/212 (PC) Civ. App.

29-D-67, 20/4/68,
Saudi J. The parties, members of the Haya tribe, ran a partnership business whose assets
consisted of 5 head of cattle. Disagreement between the parties was hampering the operation of
the business.
Held: In view of the fact that the business could not have continued without further disagreement
between the partners, the Court ordered the partnership to be wound up and the assets distributed
equally between the partners. Each was to get two head of cattle; the fifth cow was to be sold and
the proceeds divided between the partners.

CASE 8 KAPASYU S/O MWAIPINGA V. MWENDILEMO S/O MWAKYUSA,1968/88

(PC) Civ. App. 149-D-67, 8/11/67,
Duff J. The dispute between the two relatives involved a parcel of land, each claming it by
inheritance. The assessors in the district court suggested that as the parties are related the dispute
could be brought to an amicable solution by dividing the land equally between the two claimants.
Such a verdict is consistent with Nyakyusa customary law, and the magistrate accepted the
advice of the assessors, and held accordingly.

Page 14

Held: It is clear that any customary law which dispossesses an owner would be contrary to the
principle of natural justice . The Solomon ruling must be disturbed. On the facts before the
court, including an earlier litigation involving the same plot of land, the disputed plot was
awarded to Mwendilomo, the respondent.

CASE 9 SALEHE MAHAMBURI V. NOSENI MRINDA, 1969/276 (PC) Civ. App. 62-D67, 22/9/69
Georges C. J.
This is a dispute over a piece of land in Pare, which the defendant had taken and sub-divided
among tenants, but which the plaintiff claimed to have inherited from his grandfather. The
Primary Court found for plaintiff, but the District Court reversed on the grounds that the
defendant, as the person in possession, did not have to prove anything. It was for the plaintiff to
prove his title, which he had failed to do.
Held: Looking at the matter from the point of view of English land law, I would agree with the
view expressed by the District Magistrate. Proof of title here is, however, quite a difficult thing
where there are no deeds showing ownership of customary land and seldom any documents
evidencing a transfer. To decide cases on the basis of onus of proof, as in England, is not
desirable and would certainly no to be understood. I would, therefore, reverse the decision of the
district Magistrate and order a new trial before the Primary Court. If the parties do not call the
Mlao who originally is supposed to have authorized the defendant to distribute the land, then the
court should call him. The petition of appeal states that he is still alive. The persons actually in
occupation of the land should also be summoned by the court I the parties do not call them.
There will then be available enough material on which justly to arrive at decision of this case. It
must be understood that parties are note legally advised in litigation in the Primary Courts. All
efforts should be made, therefore, to have all the facts brought out, rather than to depend on rules
as to burden of proof which operates fairly when legal advice is available to both sides, but not
other-wise.
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CASE 10 JONES V NATIONAL COAL BOARD [1957] 2 All ER 155

CIVIL PROCEDURE
COURT OF APPEAL
DENNING, ROMER AND PARKER LJJ
26, 27, 28 FEBRUARY, 1, 25 MARCH 1957
Practice Cross-examination Interventions by judge during examination and crossexamination of witnesses Whether new trial should be granted. Judge Function of judge at
trial of civil action Intervention on examination of witnesses.
The part of a judge at the trial of a civil action is to hearken to the evidence, only himself asking
questions of witnesses when it is necessary to clear up any point that has been overlooked or left
obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by
law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he
follows the points that the advocates are making and can assess their worth; and at the end to
make up his mind where the truth lies (see p 159, letter g, post).
During the examination-in-chief of two of the defendants witnesses the judge by his
interventions took a substantial part of the examination out of the hands of counsel for the
defendants; and by judicial interventions in the course of cross-examination of defendants
witnesses counsel for the plaintiff was unduly hampered in his task of testing their evidence.
Insufficient primary facts were found to enable an appellate court to determine the case by
drawing proper inferences.
Held There should be a new trial, since every litigant was entitled to a fair trial at which his
case could properly be put, and without that no cause could be lost nor could the appellate court
affirm that it had been.
Per Curiam: it is only by cross-examination that a witnesss evidence can be properly tested,
the very gist of cross-examination lies in the unbroken sequence of question and answer
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excessive judicial interruption inevitably weakens the effectiveness of cross-examination for

at one and the same time it gives a witness valuable time for thought before answering a difficult
question, and diverts cross-examining counsel from the course which he had intended to pursue
and to which it is by no means easy, sometimes, to return (see p 160, letter c, post).
Appeal allowed.
Notes
As to a new trial by reason of the course taken at the first trial, see 26 Halsburys Laws (2nd
Edn) 124, 125, para 245; and as to the questioning of witnesses by the trial judge, see 15
Halsburys Laws (3rd Edn) 445, para 804, text and note (k).
Cases referred to in judgment
Ex p Lloyd (1822), Mont 70, n, 3 Digest 329, 181.
Yuill v Yuill [1945] 1 All ER 183, [1945] P 15, 114 LJP 1, 172 LT 114, 2nd Digest Supp.
Re Enoch & Zaretsky, Bock & Co [1910] 1 KB 327, 79 LJKB 363, 101 LT 801, 2 Digest 434,
840.
R v Cain (1936), 25 Cr App Rep 204, 14 Digest (Repl) 510, 4936.
R v Bateman (1946), 174 LT 336, 110 JP 133, 31 Cr App Rep 106, 2nd Digest Supp.
Harris v Harris (9 April 1952), The Times.
R v Clewer (1953), 37 Cr App Rep 37, 14 Digest (Repl) 664, 6736.
Appeal
The plaintiff widow appealed against a decision of Hallett J dated 13 June 1956, dismissing her
claim under the Law Reform (Miscellaneous Provisions) 155 Act, 1934, and the Fatal Accidents
Acts, 1846 to 1908, for damages for negligence and breach of statutory duty against the National
Coal Board, the employers of the deceased. Her grounds of appeal included various points based
on the facts of the case, and also a submission that she had not had a fair trial. The National Coal
Page 17

Board resisted the appeal on the points based on the facts, and in the alternative cross-appealed
on the ground that they, too, had not had a fair trial. The facts appear in the judgment.
Gerald Gardiner QC and W L Mars-Jones for the widow.
H Edmund Davies QC and H E Hooson for the National Coal Board.
Cur adv vult
25 March 1957. The following judgments were delivered.
DENNING LJ: The judgment which I am about to read is the judgment of the court.
On 21 January 1953, the deceased coalminer, Emlyn Jones, was buried by a fall of roof in the
Llay Colliery at Wrexham and died. His widow brings this action against his employers, the
National Coal Board, claiming damages on the ground that they were in breach of their statutory
duties, or alternatively were guilty of negligence at common law.
The case gave rise to complicated issues of fact and law which I will try to state in outline. The
deceased was working at a coal face over half a mile below ground. The seam was five feet six
inches think. The face was 125 yards long. It was worked by mechanical cutters, and the coal
was taken away on a conveyor belt. There were two roads leading to the face, one at each end.
As the face moved forward, the space behind (from which coal had been taken) was filled in
which packing, but the roadways were of course kept clear. These roadways had to be made
higher than the five feet six inches (the thickness of the seam) and accordingly, as they moved
forward, men ripped down the material from the roof above the roadway so as to increase the
height. The procedure was for one shift of men to get out the coal from the seam for about eight
feet, and for the next shift to rip down the material from above. The place where these rippers
worked was called the ripping. The edge of the material at that place was called the ripping
lip. The roadway up to a point ten yards from the face was called the road. The last ten yards
was called the roadhead.
Some six or seven weeks before the deceased was killed there had been a previous fall at the
roadhead at this point, and conditions had not yet been restored to normal working. The fallen
debris had been cleared away and the face (of the coal above) had been dressed down. In order
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to fill in the gap from which material had fallen, timber covering was put over the steel arches. In
addition, four rails each nine feet long had been forepoled into the top of the coal seam, so that
five feet of each was embedded in the seam leaving four feet outside. The outer ends of these
four rails were supported on a rolled steel joist, which was itself supported on three wooden
props about five feet high. The space above the rails was also filled with timber. In this way it
was believed that the place had been made secure from any further fall downwards or out-bye.
The next step, in order to get back to normal working, was to get out the coal so as to make a
normal road head again. The whole area was known to be tender because of the previous fall,
and the wet condition of the strata above the coal. It was unwise, therefore, to make a frontal
attack on the face from the road head, but better to make a flank attack by working from the side
by hand. That is the work on which the deceased and his mate were about to engage on the
morning of his death. Previous shifts had made some progress in this flank attack, and had got
out coal from the space underneath two of the rails. The deceased had just come on the work,
and he and his mates were 156 preparing to get more coal, when a large fall occurred completely
burying them. Every effort was made to dig them out. His mate was rescued, but the deceased
died. Afterwards the surveyor found that the rolled steel joist was still in position, but the rails
had broken. This seems to show that the steps taken to secure the place outwards from the
previous fall had been successful, but that those taken to secure the newly exposed roof were not
sufficient.
Such being the facts in outline, counsel for the widow took before us these points:
(i) That the National Coal Board had broken s 49 of the Coal Mines Act, 1911, which says that
The roof and sides of every travelling road and working place shall be made secure
(ii) That the National Coal Board had broken reg 6(2) of the Coal Mines (Support of Roof and
Sides) General Regulations, 1947 (SR & O 1947 No 973), which says that
Where there are any roof rippings within the roadhead, a bar or bars shall be set as near as
practicable to each ripping lip extending across the whole width of the ripping.

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(iii) That the National Coal Board had been guilty of negligence at common law in that they had
not taken proper steps to support the place where the deceased was working in that they had only
put posts there, whereas they ought to have put chocks, which are well known to be much better.
Counsel for the National Coal Board denied those charges, and in regard to the alleged breaches
of statutory duty he relied on s 102(8) of the Act of 1911 which excuses the board from liability
for damages if it is shown that it was not reasonably practicable to avoid or prevent the breach.
Thus far the case raised nothing out of the ordinary for our consideration. But counsel for the
widow took a further ground of appeal which is stated in the notice of appeal to be
that the nature and extent of the learned judges interruptions during the hearing of the evidence
called on behalf of the defendants in particular made it virtually impossible for counsel for the
plaintiff to put the plaintiffs case properly or adequately or to cross-examine the witnesses
called on behalf of the defendants adequately or effectively.
Furthermore counsel for the board said that, in case there was any chance of our being persuaded
that counsel for the widows three points on liability were correct, he wished himself to give a
cross-notice of appeal in similar terms complaining that the judges interruptions prevented him
from properly putting his case. We gave him leave to give a cross-notice to this effect.
We much regret that it has fallen to our lot to consider such a complaint against one of Her
Majestys judges: but consider it we must, because we can only do justice between these parties
if we are satisfied that the primary facts have been properly found by the judge on a fair trial
between the parties. Once we have the primary facts fairly found, we are in as good a position as
the judge to draw inferences or conclusions from those facts, but we cannot embark on this task
unless the foundation of primary facts is secure.
In order to consider the complaint we must state the course of the trial. Mr Mars-Jones of
counsel appeared for the widow, and opened the case for her. He relied on s 49 of the Act, and
said it was the duty of the board to make the roof secure, and that the fall showed that they had
not done it. In case that approach was wrong, he relied on the Support Regulations and on the
common law, and he made several specific criticisms in which he said that the board had failed
to do what they ought to have done. He called the widow to give evidence on damages and then
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an expert, Mr William Charles Davies. This expert had 157 not been down the mine, but he
relied on a plan which had been made by the boards surveyor shortly after the accident. This
enabled him to make criticisms on the same lines as those opened by counsel for the widow. The
judge intervened on several occasions during the examination-in-chief of Mr W C Davies and
also during his cross-examination, but this was in order to enable him to understand the technical
points of the case, and cannot properly be made the subject of complaint. Counsel for the widow
then closed his case.
Mr Edmund Davies QC who appeared for the National Coal Board, then called Mr John Kerr.
He was the manager of the Llay Main Colliery at the time of the accident and had inspected the
spot on 19 January 1953, two days before the roof fell. He was accompanied on that occasion by
H M Inspector of Mines, who made no complaint of the manner in which the work was being
done. Mr Kerr explained to the judge exactly what was being done to support the roof, and the
judge, naturally enough, intervened from time to time to see that he understood. Then leading
counsel for the board began to ask Mr Kerr to deal with the criticisms which had been made by
counsel for the widow, and by his expert witness, Mr W C Davies. Now when this happened the
judge, we fear, intervened far too much. He had himself made a note of the criticisms and, in his
anxiety to understand Mr Kerrs replies to these criticisms, he took the examination of the
witness out of the hands of leading counsel for the rest of that day and of his junior counsel next
morning.

Counsel for the widow then cross-examined the witness, but during the cross-

examination the judge intervened on several occasions to protect the witness from what he
thought was a misleading question, and to bring out points in favour of the witnesss point of
view.
Next leading counsel for the board called Mr Thomas George Davies. He was the deputy who
was actually on duty on 21 January 1953, when the accident occurred. He said that he thought
that the roof was secure, and that he told the deceased workman and his mate to get the
remainder of the coal off, and try to get another rolled steel joist up at this point.

His

examination-in-chief proceeded on normal lines, but during his cross-examination by counsel for
the widow the judge seemed to be afraid that he was being misled, and intervened at
considerable length and in effect stopped his cross-examination on the important points of

Page 21

chocks. When leading counsel for the board re-examined, the judge cut him short saying: That
is what has been given again and again.
Then leading counsel for the board called the surveyor, Mr Philip Edgar Roberts, who made the
plan. Nothing untoward occurred in his short evidence. Finally leading counsel for the board
called Mr Cecil Henry Bates, an expert consultant mining engineer. We are afraid that the judge
took the examination-in-chief largely out of the hands of counsel. He took the points of criticism
made against the board, and went through them with the witness, and appeared to accept his
explanations. Counsel for the widow cross-examined the witness, but after a while the judge
disclosed much impatience with him and he brought it to a close.
No one can doubt that the judge, in intervening as he did, was actuated by the best motives. He
was anxious to understand the details of this complicated case, and asked questions to get them
clear in his mind. He was anxious that the witnesses should not be harassed unduly in crossexamination, and intervened to protect them when he thought necessary. He was anxious to
investigate all the various criticisms that had been made against the board, and to see whether
they were well founded or not. Hence he took them up himself with the witnesses from time to
time. He was anxious that the case should not be dragged on too long, and intimated clearly
when he thought that a point had been sufficiently explored. All those are worthy motives on
which judges daily intervene in the conduct of cases and have done for centuries.
Nevertheless, we are quite clear that the interventions, taken together, were far more than they
should have been. In the system of trial which we have evolved in this country, the judge sits to
hear and determine the issues raised by the parties, not to conduct an investigation or
examination on behalf of society at large, as happens, we believe, in some foreign countries.
Even in England, however, a judge is not a mere umpire to answer the question Hows that?
His object above all is to find out the truth, and to do justice according to law; and in the daily
pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon LC
who said in a notable passage that truth is best discovered by powerful statements on both sides
of the question (see Ex p Lloyd (1822), Mont 70, n) and Lord Greene MR who explained that
justice is best done by a judge who holds the balance between the contending parties without

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himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct
the examination of witnesses,
he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of
the conflict.
See Yuill v Yuill ([1945] 1 All ER 183 at p 189).
Yes, he must keep his vision unclouded. It is all very well to paint justice blind, but she does
better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but
clear to see which way lies the truth: and the less dust there is about the better. Let the
advocates one after the other put the weights into the scalesthe nicely calculated less or
morebut the judge at the end decides which way the balance tilts, be it ever so slightly. So
firmly is all this established in our law that the judge is not allowed in a civil dispute to call a
witness whom he thinks might throw some light on the facts. He must rest content with the
witnesses called by the parties; see Re Enoch & Zaretsky, Bock & Co ([1910] 1 KB 327). So
also it is for the advocates, each in his turn, to examine the witnesses, and not for the judge to
take it on himself lest by so doing he appear to favour one side or the other; see R v Cain ((1936),
25 Cr App Rep 204); R v Bateman ((1946), 31 Cr App Rep 106); and Harris v Harris (8 April
1952, The Times, 9 April 1952) by Birkett LJ especially. And it is for the advocate to state his
case as fairly and strongly as he can, without undue interruption, lest the sequence of his
argument be lost; see R v Clewer ((1953), 37 Cr App Rep 37). The judges part in all this is to
hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear
up any point that has been overlooked or left obscure; to see that the advocates behave
themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and
discourage repetition; to make sure by wise intervention that he follows the points that the
advocates are making and can assess their worth; and at the end to make up his mind where the
truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an
advocate; and the change does not become him well. Lord Bacon spoke right when he said that:
Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no
well-tuned cymbal.

Page 23

Such are our standards. They are set so high that we cannot hope to attain them all the time. In
the very pursuit of justice, our keenness may out-run our sureness, and we may trip and fall.
That is what has happened here. A judge of acute perception, acknowledged learning, and
actuated by the best of motives, has nevertheless himself intervened so much in the conduct of
the case that one of the partiesnay, each of themhas come away complaining that he was not
able properly to put his case; and these complaints are, we think, justified.
We have sufficiently indicated the nature of the interventions already, but there is one matter
which we would specially mention. Leading counsel for the widow made particular complaint of
the interference by the judge during the cross-examination of the boards witnesses by junior
counsel for the widow. Now it cannot, of course, be doubted that a judge is not only entitled but
is, indeed, bound to intervene at any stage of a witnesss evidence if he feels that, by reason of
the technical nature of the evidence or otherwise, it is only by putting questions of his own that
he can properly follow and appreciate what the witness is saying. Nevertheless, it is obvious for
more than one reason that such interventions should be as infrequent as possible when the
witness is under cross-examination. It is only by cross-examination that a witnesss evidence
can be properly tested, and it loses much of its effectiveness in counsels hands if the witness is
given time to think out the answer to awkward questions; the very gist of cross-examination lies
in the unbroken sequence of question and answer. Further than this, cross-examining counsel is
at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is,
in his view, most likely to elicit admissions from the witness or qualifications of the evidence
which he has given in chief. Excessive judicial interruption inevitably weakens the effectiveness
of cross-examination in relation to both the aspects which we have mentioned, for at one and the
same time it gives a witness valuable time for thought before answering a difficult question, and
diverts cross-examining counsel from the course which he had intended to pursue, and to which
it is by no means easy, sometimes, to return. Leading counsel for the widow submitted that the
extent of the learned judges interruptions was such that junior counsel for the widow was
unduly hampered in his task of probing and testing the evidence which the boards witnesses
gave. We are reluctantly constrained to hold that this submission is well-founded. It appears to
us that the interventions by the learned judge while junior counsel for the widow was crossexamining went far beyond what was required to enable the judge to follow the witnesses
evidence and on occasion took the form of initiating discussions with counsel on questions of
Page 24

law; further, and all too frequently, the judge interrupted in the middle of a witnesss answer to a
question, or even before the witness had started to answer at all. In our view it is at least possible
that the constant interruptions to which counsel for the widow was subjected from the bench may
well have prevented him from eliciting from the boards witnesses answers which would have
been helpful to the widows case, and correspondingly damaging to that of the board.
The judge seems to have been under the impression on occasions that counsel for the widow was
asking a misleading question. We do not gain that impression ourselves. It seems to us that the
case was conducted by counsel on both sides with complete propriety.
Counsel for the board asked us to say that the decision reached by the judge was the inevitable
decision, but we cannot say that. We have not the material for the purpose. We have some of
the primary facts, but not all of those necessary to a decision. We have an adequate description
of the state of affairs in this mine before and after the first fall, and before and after the second
fall; but we have not sufficient evidence to be sure whether further precautions might not have
been taken to avoid the accident. It seems to us that the widow made a strong case which calls
for an answer. She showed that in the middle of December there was a big fall of roof at the
roadhead notwithstanding that all the Support Regulations were observed, and every normal
precaution was taken. The fall disclosed a dangerous condition of the strata at this point. Seven
weeks later her husband was killed by a second fall at near enough the self-same place by the
self-same danger. Her counsel makes on her behalf this strong plea: If this known danger could
have been avoided by taking extraordinary precautions, why did the board not take those
precautions? If the danger 160 could not be avoided by any known precautions, why was her
husband sent to work there? Better stop getting coal at that point than send him to his death.
The board made answer that they put up many more props than usual. The widows counsel
asked: why did not they use chocks instead of props, since chocks give much better support than
props. The board answered that they knew that it was most desirable to use chocks whenever
possible, but that they could not get them in. The judge seems to have regarded that as a
sufficient answer, though there is little doubt that chocks could have been used if the conveyor
belt had been shortened. The judge gave, as part of his reason for accepting the boards answer,
his view that it was good mining practice not to use chocks, and that it would have been
inconvenient to curtail the conveyor belt; but such considerations carry little if any weight when
Page 25

extreme measures for safety are called for. Again, he wrongly assumed that the shortening of the
conveyor belt would involve exposing more men to the same risk. We are not saying that the
judge was necessarily wrong in accepting the boards answer, but we would like to have more
facts before accepting it as sufficient. In the absence of them, we do not think it would be fair to
either party to pronounce on it.
In these circumstances, we think we must grant the widow a new trial. There is one thing to
which everyone in this country is entitled, and that is a fair trial at which he can put his case
properly before the juge. The widow and the National Coal Board stand in this respect on the
level. No cause is lost until the judge has found it so; and he cannot find it without a fair trial,
nor can we affirm it.
Counsel for the widow urged us in any event to give a ruling on the true interpretation of s 49 of
the Act and of the Support Regulations; but we do not think it desirable so to do. If there was a
breach of the section or regulations there is still the question under s 102(8) whether it was
reasonably practicable to avoid or prevent the breach. This is closely allied to the issue at
common law whether the board took every reasonable precaution that the situation demanded.
So close indeed are these issues that we think that, if the board are exempt from liability at
common law, they will be exempt under s 102(8) also; and if they are liable at common law,
there is no need to consider whether they are also liable by statute.
We have come to the conclusion with much regret that the only thing we can do in this case is to
order a new trial. We allow the appeal accordingly.
Appeal allowed: new trial ordered.
Solicitors: Jaques & Co agents for Cyril Jones, Son & Williams, Wrexham (for the widow);
Donald H Haslam, agent for P E Lissant, Manchester (for the National Coal Board).
Henry Summerfield Esq Barrister.

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