20070725 TZHC Moshi2

1 . IN THE HIGH COURT OF TANZANIA ATMOSHI (PC) CIVIL APPEAL NO. 49 OF 2004 [C/F DC HAI CIVIL APPEAL NO. 2/2004] [ORIGINAL SIHA P/C CIVIL CASE NO. 10/2000] ELIBARIKI S. MONGI ------------- APPELLANT VERSUS ALEN SIMEON MWANRI-------- RESPONDENT JUDGMENT 0 HON. JUNDU, J. This is a second appeal. In the trial court, that is Siha Primary Court, in Civil Case No.10/2000, the Appellant with his witnesses had contended that he had bought the suitland from one Hulda Simon on 8/9/1982 vide a written agreement whereby he paid shs.60,000/= as the purchase price. He contended further in the said court that he tilled the suitland but the Respondent trespassed over the same. The Appellant reported the matter to the police, the latter advised him to institute the dispute in the Regional Customary Land Tribunal. He instituted Land Dispute No. 56 of 1983 in the said tribunal. The fatter advised him to institute the dispute [- ·, '. ) in the primary court. He so did and allegedly won the case but the court building was broken into and burnt hence his case file containing all the records was burned. He was subsequently advised to institute a fresh case. He instituted Civil Case No. 10/2000, the subject of the present appeal, having lost the same in the. trial court and the appeal in the District Court of Hai in Civil Appeal No. 2/2004. On the other hand, the Respondent, in his evidence in the trial court had contended that the suitland belonged to him having been given by his late father in 1957. He contended that from the said time he had been using the suitland 1 whereby he had developed the same by planting various plants and trees. He alleged to have known the Appellant when he first saw him before the trial court, and that they had not met in any other forum over the said suitland. In its judgment, the trial court held the clan members of the Respondent had not been involved in the sale of suitland by Hulda Simon to the Appellant. It therefore ordered that the Respondent should refund shs.60,000/= to the Appellant, which the latter had paid as purchase price to Hulda Simon when he boµght the suitland. The Appellant, being aggrieved by the said decision, he appealed to the District Court of Hai vide Civil Appeal No. 2 of 2004. His appeal was dismissed. The Appellant having been aggrieved by the decision of the said District 0 Court had appealed to this court listing six ( 6) grounds of appeal in his Memorandum of Appeal. The Respondent was served with Summons to appear before this court to contest the appeal but he refused service. This prompted this court to allow the Appellant to argue the appeal in the absence of the Respondent. The court, on 8/5/2007, had ordered the Appellant to argue the appeal by way of written submission. He has so complied. He is advocated by Mr. Urio, the learned State Attorney. Now, as I have earlier stated, the Appellant had listed six ground of appeal ·' in his Petition of Appeal. In the course of arguing the appeal, he dropped ground f) Four of the Appeal. He argued grounds One and Two collectively, Ground Three separately and Grounds Five and Six collectively. In my considered view, all the above grounds of appeal centers mainly on the contention of the Appellant that the first appellate court did not review and evaluate the documentary evidence that had been tendered by the Appellant in the trial court including the sale agreement as well as the Judgment of the Regional Customary Land Tribunal in Land Tribunal Case No. 56 of 1983. The Appellant also contends that the contention of the Respondent in the trial court that he had been given the suitland by his father was 2 not corroborated by any close relative ofhi~. The witnesses he had called, it is alleged that they did not know the Respondent got the suitland. ·On the issue of non-evaluation of the exhibits allegedly tendered by the Appellant in the trial court, Mr. Urio, learned counsel for the Appellant, in his submission contends that the Appella11;t in his first appeal before the District Court was in essence disputing the correctness of the decision of the trial court hence the first appellate court was empowered to review and evaluate the decision of the trial court so as to come to its own decision. He further contends that as there was evidence to prove that there were exhibits tendered in the trial court by the Appellant to indicate that there was a sale agreement as well as Customary Land 0 Tribunal Case No. 56 of 1983, it was upon the said court to peruse such exhibits, evaluate the evidential value and come to its own decision. He further contends that the first appellate court was not in law justified to merely centre its decision on irregularities based on the numbering or renumbering of the case. As the said court had the record of the trial court before it in that it was to decide the appeal on the basis of what was on record on the one hand and of the grounds of appeal on the other. Therefore, Mr. Urio contends that given the Appellant's evidence on record, including the sale agreement, there was no reason why the trial court made an order that the Respondent should refund fo the Appellant shs.60,000/=, the {) purchase price. I have carefully considered the contention of the Appellant on the issue of the first appellate court's failure to review and revaluate the exhibits that had allegedly been tendered that is the sale agreement and the judgment of the Customary Land Tribunal. In my considered view, in order for the Appellant to fault the first appellate court on the said matter, there must first be evidence to show that the said exhibits were tendered by the Appellant and admitted by the trial court in the Appellant's evidence. My careful perusal of the record of the two 3 courts below shows me that though in the trial court the Appellant had contended that he was tendering the sale agreement, the judgment of the Customary Land Tribunal, the record of the trial court does not show the existence of the said exhibits nor that were admitted in evidence by the trial court. Had the latter been done, certainly the trial court would have given them admission numbers. There is no such a thing in the record of the trial court. Of course, I have seen photocopies of the said documents in the record of the first appellate court and original copies of the same in the record of this court. However, this in itself is not evidence or proof to show that such documents were tendered by the Appellant in the trial court and admitted by it. Indeed, one wonders why should the original documents be missing in the record of the trial court but be placed in the record of this second appellate court. The only conclusion is that the said documents had not been parted with by the Appellant in the trial court. In the circumstances, I hold that the first appellate court had nothing to review and evaluate before it as far as the alleged exhibits were concerned as there were not available in the record of the trial court. I find therefore, that, the contention of the Appellant on the said exhibits as being baseless. It had no merit. I further move to consider the other contention of the Appellant that the ·' evidence of the Respondent in the trial court lacked corroboration, that is the U'. evidence of close relatives who saw him given the suitland by his father. In my considered view, even if the first appellate court did not on its own re-evaluated the evidence adduced in the trial court on this point, it does not become a point of law worth consideration by this court. It is a rule of thumb that in a second appeal, this court as the second appellate court is only concerned with consideration and determination of points of law emanating from the decision of the first appellate court. My careful reading of the record of the first appellate court does not show that in the said court the Appellant had pursued the issue of lack of corroboration 4 evidence in respect of the evidence of the Respondent. Therefore, pursuing this particular issue before this court is just an afterthought on the part of the Appellant. I so hold. In the upshot, I find and hold that the appeal filed by the Appellant in this court has no merit. I hereby dismiss it with no under as to costs. It is so ordered. :.~~:~,, ~ ...... :- . . ·.,: •. ;f / F.A.R. JUNDU JUDGE , _ :.~X-y:;ic-;:-. ,/ / 25/7/2007 )------ ' __ _,,,. (; ,/ ~ ., ~-=--:::-:;;·--~>-' Right of Appeal Explained. \f\,(A,A/'t-·M,A ~ - -,-<', F.A.R. JUNDU JUDGE 25/7/2007 25.7.2007 Coram: F.A.R. Jundu, J. For the Appellant: Mr. Urio, Advocate For the Respondent: Absent -T~) CIC: Muyungi Court: Judgment delivered in the presence of the Appellant and in the absence of the Respondent. \[\~;\/\/~A._ ~ ~ F.A.R. JUNDU JUDGE 25/7/2007 ATMOSHI 5