Chacha Machugu

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CIVIL APPEAL NO. 000032033 OF 2024 REFERENCE NUMBER 202412191000032033 (Arising from the decision ofSerengeti District Court in Civil Appeal No. 18463 of2024, Originating from Mugumu Urban Primary Court in Execution Application No. 36 of 2019) BETWEEN CHACHA MACHUGU................................................................. APPELLANT VERSUS ELIA MWITA KIRIGITI............................................................ RESPONDENT JUDGMENT 2^ March & SP April, 2025 M, L. KO MBA, J. This appeal traces its origin from the decision of Mugumu Urban Primary Court in Execution Application No. 36 of 2019 where respondent herein filed objection proceeding at Mugumu Urban Primary Court (executing court) resisting his land to be attached in execution of Civil Suit No which he was not party. Appellant is decree holder in a civil suit in which one Mwita Kirigiti (not party to this appeal) was ordered to pay compensation to appellant to the tune of TSZ 30,000,000/. In his testimony respondent informed the executing court that he was allocated that farm in 1974 during operation vijiji and by that time his wife was pregnant. The born Page 1 of 7 child in 1974 is now 50 years and therefore that he claimed he has been in occupation of the farm for fifty years. He insisted that the farm is not the property of judgment debtor who is an adult by now. Appellant claimed the farm was owned by judgment debtor and prayed for the court order execution to proceed. The executing court was satisfied that the property belongs to respondent and ordered the appellant to find other property owned by judgment debtor in execution of court order. The decision followed the ruling which decided the Objection Proceedings filed by the appellant at the executing court. Appellant aggrieved by the decision of executing court and decided to appeal to Serengeti District Court (the first appellate court) via Civil Appeal No. 000018463 of 2024 claiming that executing court errored to release the attached property which he believed was owned by the judgment debtor. The first appellate court analysed grounds of appeal and uphold decision of the executing court while advice the respondent to pursue other means of executing decree passed by the same executing court. Discontented again, tireless appellant is in this court with three grounds of appeal which may be summarized as follows; Page 2 of 7 1. The first appellate Magistrate errored in law and in fact to find the first ground of appeal was less merit as he adduce unreasonable reasons to his findings. 2. The first appellate Magistrate errored in law and in fact by shifting burden of proofto appellant while It was the duty of respondent who was objector to prove the farm belongs to respondent. 3. The first appellate Magistrate errored In law and in fact by upholding the execution court position regarding names used by respondent in objection proceedings which filed as Application No. 39 of 2019 and failure to consider and decide that the objection was filed out of time. Basing on the registered ground, the appellant prayed this court to allow the appeal. When the appeal was scheduled for hearing before this court, both appellant and respondent appeared in person, without any representation and was ready for submission. In his submission, appellant submitted that he had a case with Kirigiti Mwita in which he was a decree holder and was ordered to be paid compensation to the tune of TZS 30,000,000/ but he was paid only 8,000,000/. He went on submitting that he attached the land but the sale was objected by respondent. He lost an appeal at the first appellate court Page 3 of 7 and now he is before this court claiming for the property to be attached and be sold. Respondent started by a complaint that appellant had a criminal case with Kirigiti Mwita and not respondent however, appellant attached his cow and sold them in execution of the decree. Appellant went on attaching respondent land is when, respondent was informed by public that there was a notice and his land is planned to be sold. It was his further submission that he decided to file objection in which he succeeded. He went on submitting that Mwita Kirigiti is adult he is not staying in his (respondent) house and therefore it was not proper to attach respondent property. He insisted that the attached land belongs to him since 1974 and prayed the appeal to be found without merit. When given time make a rejoinder, the appellant insisted that the attached land belong to Kirigiti Mwita and prayed to be allowed to sale the property as compensation. I am called upon to decide whether the appeal has merit and in particular whether the dismissal by the 1st appellate court was right. At the first place it has to be known that this is the second appeal and the practice is that Page 4 of 7 the Court should very sparingly depart from concurrent findings of fact by the trial and first appellate court. Only in exceptional circumstances, that any interference may be warranted and it is when it is clearly shown that there was misapprehension of the evidence, miscarriage of justice or violation of some principles of law or procedure by courts below. Salum Mhando vs Republic [1993] TLR 170, Shihobe Seni and Another vs Republic [1992] TLR 330, Michael Haishi vs Republic [1992] TLR 92. In the case at hand executing court and the first appellate court found the property attached, which is land is not the property of the respondent though both maintained that appellant is a decree holder. The first appellate court advised appellant to pursue other means of executing decree passed by the court of law. Appellant had three grounds of appeal in which he complains on finding and reason for decision by the first appellate court, that the first appellate court shifted the burden of prof to appellant while it was the respondent who was supposed to prove his position in objection and; he complained of the contradiction on names of the respondent in objection proceeding filed by respondent. In his grounds of appeal I find only the second ground is the matter of law, to whom burden of proof lies. The rest of the grounds Page 5 of 7 are based on evidence in which it is settled that the first appellate court is final court of facts. See Firmon Mlowe vs Republic (Criminal Appeal 504 of 2020) [2022] TZCA 694. I shall analyse the second ground on shifting the burden as complained by the appellant. At the first appeal the Magistrate while analysing the first ground was of the observation that respondent objected the attachment because the attached land belongs to him and managed to prove his ownership as he acquired before the birth of the judgment debtor. In balancing the analysis, he analysed the evidence adduced by the appellant during objection and noted that appellant did not prove that the attached property belongs to judgment debtor. There is no doubt that it was objector who was supposed to prove ownership and he did. The assertion by the respondent was supposed to be compered with statement by appellant in balancing the probability as required under section 3 (2) (b) of the Evidence Act, Cap. 6 R.E 2019. It does not mean that it is the appellant only who was supposed to prove that the attached property belongs to judgment debtor, rather both sides evidence must be subjected to equipoise before making decision. I find Page 6 of 7 what was done by the first appellate Magistrate was the requirement of the law and the ground is of less merit. Having analysed the only point of law in this appeal, I find the appeal lacks merit and is hereby dismissed for want of merit as the attached property does not belong to judgment debtor. The appellant is advised, as the first appellate Magistrate did, to attach the property of the judgment debtor in honor of the trial court decree. No order to costs. It is so ordered. DATED at MUSOMA this 09th day of April, 2025. M. L. KOMBA Judge Judgment ered in chamber in the presence of appellant and respondent who appeared in person today 09th April, 2025. M. L. KOMBA Judge Page 7 of 7