hafidh juma chamkazi vs enna bryson mussa 2021 tzhclandd 743 29 october 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO. 104 OF 2021 (Arising from the District Land and Housing Tribunal for llala in Land Appeal No. 12 of 2021, originating from Ward Tribunal for Buyuni in Land Case No.235 of 2020) HAFIDH JUMA CHAMKAZI................................................ APPELLANT VERSUS ENNA BRYSON MUSSA ................................................... RESPONDENT JUDGMENT Date of Last order: 21.10.2021 Date of Judgment: 29.10.2021 A.Z.MGEYEKWA, J This is a second appeal, it stems from the decision of the Ward Tribunal of Buyuni in Land Dispute No.235 of 2020 and arising from the District Land and Housing Tribunal for llala in Land Appeal No. 12 of 2021. The material background facts to the dispute are briefly as follows; Enna Bryson Mussa, the respondent instituted a case at Buyuni Ward Tribunal i against Hafidhi Juma Chamkazi. The respondent claimed that the appellant was invading his piece of land which she bought from him. The appellant claimed that the respondent sold his piece of land which includes a portion from her plot. Therefore the appellant claimed her piece of land from the appellant. The appellant admitted that he sold her a piece of land. The trial tribunal visited locus in quo, composed its judgment, and decided in favour of the respondent. Aggrieved, the appellant appealed to the District Land and Housing Tribunal for Ilala, at Ilala vide Land Appeal No. 12 of 2021 complaining that the trial tribunal faulted itself to proceed with hearing without including the seller of the suit land and that the trial tribunal did not consider the evidence adduced by the appellant and documentary evidence and that he occupied the suit land first. The District Land and Housing Tribunal upheld the decision of the trial Tribunal and maintained that the respondent is the lawful owner of the suit land. The District Land and Housing Tribunal decision did not amuse the appellant. He decided to challenge it by way of appeal before this court on three grounds of appeal as follows:- 2 1. That the appellate tribunal failed to evaluate the evidence adduced at the trial tribunal. 2. That, the trial tribunal erred in law and fact after they failed to call necessary part. 3. That, the complaint was not proved on the balance of probabilities When the matter came up for orders on 07th October, 2021, the Court acceded to the parties' proposal to have the matter disposed of by way o£ written submissions. Pursuant thereto, a schedule for filing the submissions was duly conformed to. In his submission in support of the appeal, the appellant contended that the trial Ward Tribunal Chairman did not evaluate the evidence of each witness in the case at hand. She submitted that the embryo of the particular matter in question is the size of land. He lamented that he is the one who sold the land to the respondent therefore he knows the size of the disputed land and its boundaries. To support his submission he referred this court to the sale agreement and argued that the measurement and the size of the disputed land are clear but the trial tribunal did not consider it To buttress his contention, Mr. Revocatus 3 cited the decis-on of the Court of Appeal in Obed Mtei v Rukia Omari (1989) TRL 111 where the Court of Appeal observed that:- " This is the first appeal, and this Court has the power to reappraise the evidence and draw an inference of facts I am keenly aware that it is in the rare circumstances that an appellate Court would interfere, tor instance, where the trial Court had omitted to consider or had misconstrued some material evidence, has acted on a wrong principle or had erred in its approach in evaluating the evidence by allowing speculative views to affect his decision," He went on to submit that the above position has been repeated and stated in a number of decisions including Martha Michael Weija v The Hon. Attorney General & 3 others [1982] TLR 35, it decided that the Court is entitled to look at and evaluate the evidence afresn and come to its own conclusion particularly where the trial court or tribunal adopted a wrong approach in evaluating the evidence or omitted to evaluate same of the witnesses or to consider some vitai piece of evidence The so-called second agreement in the instant matter was one of the pieces of evidence on the trial record that called to be reviewed and evaluated. Upon review, it was found wrongly admitted and the court proceeded to expunge it from the record. 4 The appellant continued to submit that the trial court based its decision on visitation of the locus quo as the proof of ownership of the said size of the land on which does not suffice to be proof of the size of the suit land in exclusion of the documents. Insisting he submitted that the task of proving a good title one needs to check the entries and other documents referred to both the trial tribunal failed to evaluate the piece of evidence and rely on visitation only. Fortifying his submission he referred this court to the cases of Mukasa v Uganda (1964) E.A 698 at 700 was relied on by the Court of Appeal of Uganda in Matsiko Edward v Uganda C.A. Crim. Appeal No. 75 of 1999. On the second ground, he claimed that the trial tribunal did not call necessary part. He claimed that the respondent sold the land twice and claimed to be invaded by two people. He submitted that the courts have made a distinction between necessary and non-necessary parts the respondent's aforementioned statement shows that the appellant sold the land twice. It was his view that the other people could have joined as parties to the suit. To support his submission he referred this court to the cases of Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1EA 55 and Benares Bank Ltd v. Bhagwandas AIR (1947) All 18. 5 On the third ground, the appellant contended that the complaint was not proved on the balance of probabilities. He still complained about the size of the suit land. Insisting he said that he gave the respondent a piece of land and the size was explained but the respondent failed to prove the existence and content of the called size of her land and did not produce any document. Stressing he claimed that there is no evidence to prove that he invaded the respondent's land. On the strength of the above submissions, the appellant beckoned upon this court that this Court allows the appeal. Opposing the appeal, the respondent was brief and straight to the point. He contended that the decision was reached after considering the sale agreement which shows clearly the size of the disputed land. To bolster his submission he referred this court to page 6 of the trial tribunal decision. He added that the appellant failed to prove his allegation that the first appellate Court failed to evaluate the evidence. On the second ground, whether the trial tribunal erred in law and fact after they failed to call necessary part? He argued that this is a new issue that is not raised at the first appellate Court. Insisting he argued that one cannot 6 raise an issue that is not raised at the appellate tribunal. Supporting his submission he referred this court to the decision of the appellate tribunal "Nadhani hoja ya mrufani zimekosa pa kutua, na hajui asimame na hoja gani kwa sababu ametoa sababu ya rufaa nyingine tofauti na sababu yake ya kwanza ya rufaa," With respect to the third ground, whether the complaint was not proved on the balance of probabilities. He stated that it trite law that the one who alleges must prove. He contended that the appellant on his submission stated that there is no evidence to prove that he invaded the respondents land this is just like a kick of dying hoers. The respondent strongly contended that this allegation is not true the case has been proved beyond a reasonable doubt. Stressing he claimed that the issue was proved at trial tribunal and even in the appellate tribunal. To support his submission he referred this court to page 3 of the appellate tribunal decision. On the strength of the above submission, the respondent beckoned upon this court to dismiss the appeal for being meritless and upheld the decision of the appellate and trial tribunals. I have subjected the learned rival arguments by the learned counsel for the parties to serious scrutiny they deserve. Having so done, I think, the 7 bone of contention between them hinges on the question whether the appellant had good reasons to warrant this court to allow his appeal. In my determination, I will address all three grounds of appeal separately as they appear. On the first ground, I should make it clear from the beginning that this is a second appellate court. I am fully aware that this is a second appeal. I am therefore supposed to deal with questions of law only. It is a settled principle that the second appellate court can only interfere where there was a misapprehension of the substance or quality of the evidence. This has been the position of the law in this country, Therefore this court must be cautious when deciding to interfere with the lower court's decision as was propounded in the case of Edwin Mhando v R [1993] TLR 174. It is a settled principle that the second appellate court has to deal with the question of law. However, this approach rests on the premise that findings of facts are based on a correct appreciation of the evidence. In the case of Amratlal D.M t/a Zanzibar Hotel [1980] TLR 31, it was held that:- “ An appellate court should not disturb concurrent findings of fact unless it is clearly shown that there has been a misapprehension of the evidence, miscarriage of justice or a violation of some principle of law or practice." 8 With respect to the first ground, the tribunal failed to evaluate the evidence on record, 1 have gone through the evidence on record and it is indisputable tact that the appellant sold her a piece of lana to the appellant and tne size of the suit land was well stated oy the trial tribunal after surveying the suit land ano both parties were present at the locus in quo and even the respondent’s witness one Japhaet Bateson testified to the effect that the size of the disputed area was 15x19 pace -15x8 pace The records reveal that the trial tribunal visited the locus in quo twice and the measurements were the same as before and as reflected in tne sale agreement. Therefore this ground is dement On the second ground the appellant in his submission strongly opposed the appellant s second ground, he contended that the appellant has raised this ground for the first time at this Court. He argued that it was not proper to raise a new ground at the appellate Court or tribunal Raising new ground at the time of submission is not acceptable as it will only prejudice the respondent, who will be taken by surprise. I respectively agree with the learned counsel for the respondent that generally it is not proper to raise a ground of appeal in a higher court based on facts that were not canvassed in the lower courts. Ordinarily, for the Court to be clothed with its appellate powers, the matter in dispute 9 should first go through lower courts or tribunals. The Court of Appeal of Tanzania in the case of Haji Seif v Republic, Criminal Appeal No.66 of 2007 held that:- “Since in our case that was not done, this Court lacks jurisdiction to entertain that ground of appeal. We, therefore, do not find it proper to entertain that new ground of appeal which was raised for the first time before this court. ” [Emphasis added]. Applying the above authority in the instant appeal it is vivid that the first ground which relates to the necessary party to join the case was not raised appellate tribunal. Therefore, I am not in a position to entertain a new ground of appeal which was raised for the first time before this court. The last ground should not detain much time of the court. The appellant’s complaints are unfounded. The appellant sold the suit land thus the ownership was transferred from the appellant to the respondent therefore the ownership of the suit land was transferred to the respondents. Further, the trial tribunal visited locus in quo twice during the hearing of the case after the visitation, the appellant considered that the measurement and the size of the suit land were the same. Therefore he cannot come before this court and raise his claim. 10 In the premise, I hold that in instant appeal there are no extraordinary circumstances that require me to interfere with the findings of the District Land and Housing Tribunal for llala. Therefore, I proceed to dismiss the appeal with costs. Order accordingly. Dated at Dar es Salaam this date 29th October, 2021. A.Z.MGEY^KWA JUDGE 29.10.2021 Judgment delivered on 29th October, 2021 in the presence of both parties. A A.Z.MGEYEKWA , , JUDGE 29.10.2021 Right of Appeal fully explained. ii