dina cosmas vs rajabu shanai kiwambwa 2022 tzhclandd 12750 16 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPEAL NO.07 OF 2021 {Originating from LandAppeaiNo. 110 of2014 ofthe District Land and Housing Tribunalfor Kibaha) DINA COSMAS APPELLANT VERSUS RAJABU SHANAI KIWAMBA .....RESPONDENT JUDGMENT \ 07/09/2022 & 16/12/2022 Masoud.3. The respondent instituted Application No. 16 of 2013 at Pera Ward Tribunal against the applicant claiming that the appellant trespassed into his suit land, situated at Pingo Village, Bagamoyo District, Coast Region. The matter was resolved in the favour of the respondent. The appellant was aggrieved by the decision. She appealed against the decision to the District Land and Housing Tribunal for Coast Region at Kibaha in Land Appeal No. 110 of 2014. She lost once again. The Instant appeal is therefore the second appeal in which there is a concurrent finding of facts of the lower tribunals as to ownership of the suit land by the respondent I should point out at the outset that the concurrent finding of facts of the two iower tribunais preciudes this court from interfering with or disturbing such findings unless it Is shown that the findings were based on misdirection or misapprehension of evidence or violation of some principles of law or procedure, or have occasioned serious miscarriage of justice. I am aware of a number of authorities restating the above mentioned principle. They include, for instance, Amratal Damodar Maltaser and Another t/a Zanzibar Silk Stores v A. H.Jariwala t/a Zanzibar Hotel [1980] TLR 31, Neli Manase Foya v Damian Mlinga [2005] TLR 167, and Martin Kikombe v Emmanuel Kunyumba, Civil Appeal No. 201 of 2017. The question is whether the grounds of appeal raised and argued in this appeal, show that the findings in the instant matter were based on misdirection or misapprehension of evidence or violation of some principles of law or procedure, and which have occasioned serious miscarriage of justice. To answer this issue, one needs to appreciate the grounds of appeal raised, and argued whilst mindful of the proceedings and the corresponding submissions of the parties. There were three grounds of appeal raised in this second appeal. The first ground was that the district tribunal erred in law and fact in confirming the decision of the ward tribunal which did not consider the existence of evidence of ownership of the disputed property; the second ground was that the district tribunal erred in law for not answering the issue raised on the illegality of the evidence that was relied on to establish ownership; and thirdly, the Hon. Chairman of the district tribunal erred In law and fact for misleading himself by not considering how the appellant occupied the land in dispute, its legality and how she developed it. The decision of the district tribunal in its appellate jurisdiction as per Hon Njiwa, was based on only one ground of appeal which the appellant raised and argued, having dropped the other two grounds. The said ground was quoted thus: ''That the ward tribunal erred in iaw and fact for notseeingfrom the respondentin thisapplication speech that he was moved by the operation vijiji 1976 to another viiiage called Pera under the lawful procedure leave a right to land granted another right to own piot ofiand, that now the respondent want to daim both right Comparing the above ground with the three grounds raised in this second appeal, I am settled that the three grounds of appeal in the instant appeal were clearly not raised and argued in the first appeal. There Is settled principle of law that forbid introduction of a new ground in a second appeal which was not raised and argued in the first appeal. The principle would necessarily apply in the case at hand. With regard to this principle, the Court of Appeal in Bihan Nyankongo & Another V Republic, Criminal Appeal No. 182 of 2011 (unreported) had it that and I hereby quote thus: The Court in several occasions heid that a ground of appeal not raised in the first appeal cannot be raised in the second appeal. On such principle, I may also refer to Farida & Another v Domina Kagaruki, Civil Appeal No. 136 of 2006. It would therefore mean that there is no ground on the record which is worthwhile to be considered in this appeal. Likewise, since this was the second appeal, it would follow that there was no ground raised showing that the findings in the instant matter were based on misdirection or misapprehension of evidence or violation of some principles of law or procedure, which have occasioned serious miscarriage ofjustice. I so hold as I have already shown herein above that the three grounds were not raised and argued in the first appeal. The rival arguments arising from the submission in chief by the appellant who appeared in person unrepresented, and the corresponding submission in reply by the respondent, who likewise appeared in person unrepresented, were all as was expected dealt with the appeal based on the three grounds of appeal, which were not raised and argued in the first appeal, and which cannot therefore be raised and argued in the second appeal. The rival submissions are on the record. I need not reproduce them here and refer to them in any detail. I may only say that while the appellant's submissions were inclined in inviting this court to find merit in this second appeal based on the grounds raised and argued,the respondent was simply saying in a nutshell that the appeal was in view of the grounds raised and argued not meritorious and should accordingly be dismissed. I am in agreement with the respondent albeit for different reasons herein above shown. In the upshot of the foregoing, there is nothing on the raised and argued grounds of appeal upon which this court as a second appellate court may fault the decision of the district iand and housing tribunal sitting as a first appellate court. The appeal is thus without merit and is herein dismissed with costs. It Is so ordered. DATED and DELIVERED at Dar es Salaam this 16"^ December 2022 oY B. S. Masoud ■'/^7