abtwalib amir shoko vs kilimamoja village council 2008 tzhc 72 14 march 2008

IN THE HIGH COURT OF TANZANIA AT ARUSHA CIVIL APPEAL NO. 49 OF 2006 (LAND APPEALS TRIBUNAL APPEAL NO. 16 O F2005) (O riginal KARA TU DISTRICT LAND TRIBUNAL LAND CASE NO. 88 OF 1999) ABTWALIB AMIR SH0K0................... APPELLANT •Versus - KILIMAMOJA VILLAGE COUNCIL................RESPONDENT JUDGMENT BWANA, J. 1. The Respondent herein first filed an application before Karatu Land Tribunal (Case No. 88 of 1999) against the Appellant claiming that the latter had encroached village land measuring about 100 acres. The Respondent lost. Aggrieved by that decision it appealed to the Land Appeals Tribunal. That Tribunal reversed the earlier decision of the Karatu Tribunal, it Ordered a fresh trial. 2 2. Having heard the matter de novo, the Karatu Land Tribunal decided in favour of the Respondent herein. The Appellant again appealed to the Land Appeals Tribunal. He was unsuccessful, hence this appeal, in his appeal to this court, he has raised four grounds namely:- 2.1 That in dismissing the appeal with costs the first appellate chairman grossly erred in misdirecting himself on the application of the doctrine of long occupation and possession, a principle which is not part of the laws of this country. 2.2 That the chairman grossly erred in law in relying on the evidence adduced by a witness who is not credible. 2.3 That the first appellate tribunal being the first appellate tribunal was bound to evaluate the whole evidence on the records of the trial 3 tribunal so as to satisfy itself of the correctness of the decision of the trial tribunal. 2.4 That the trial chairman erred in law and fact by not considering the policy of operation vijiji of 1974............. 3. However, in his written submission in support of this appeal, the Appellant decided to argue generally (but not serially) the above grounds of appeal, in so doing, however, it is apparent that he did not discuss those four grounds of appeal albeit generally, instead, he dealt on a novel issue of - if I may paraphrase it here - what should be the implications of a visit to locus in quo. He cited the decision of the Court of Appeal in Nizar M. H. Ladak vs. Gulamali Fazal Janmohamed (1980) tlr 29. 4. The Appellant's departure from arguing the appeal as presented in the grounds of appeal 4 and instead, relying on a novel issue, is strongly resisted by the Respondent, averring that it contradicts the provisions of order XXXIX Rule 2 of the Civil Procedure code (the CPC). The Respondent is correct. That Rule provides:- "The Appellant shall n o t except by leave o f the Court, argue o r be heard in support o f any ground o f objection n o t se t fo rth In the memorandum o f appeal; b u t the court, in deciding the appeal, shall n o t be confined to the grounds o f objection se t fo rth in the memorandum o f appeal o r taken by leave the co u rt under this rule: provided............................. '(emphasis provided), it is clear from this provision of the law that if the Appellant intended to introduce the new ground of appeal related to locus in quo and argue the same, he should have sought and obtained leave of this court first. That is a mandatory requirement. He did not do so. That was a fatal omission. I cannot, therefore, consider his arguments here, in the absence of the arguments on a visit locus in quo, the Appellant has presented no other arguments in support of his grounds of appeal. His appeal, therefore, fails. 5. For reasons stated above, this appeal is dismissed with costs. (SGD) S. J. BWANA JUDGE 14/3/2008 pate: 14/3/2008 Coram: M. P. Mrio, Ag. DR. For the Appellant: Present. For the Respondent: Present. 6 B/c: p.n. Dr. Mchami for the Respondent. Court: Delivered before the parties this 14/3/2008 under court seal. (SCD) M. P. MRIO AG. DISTRICT REGISTRAR ARUSHA 14/3/2008 Court: Right of appeal. (SGD) M. P. MRIO AG. DISTRICT REGISTRAR ARUSHA ____ _____ / I here hv certify this to bo 14/3/2008 a true CoiVJiP’ *-iOriginal, SJB/jn.