CIVIL APPEAL NO 51 OF 2022 HASSAN MOHAMED MATANGULA VS AMINA NASSORO

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MWANDAMBO. 3.A.. MWAMPASHI. J.A. And FELESHI. J.A1 CIVIL APPEAL NO. 51 OF 2022 HASSAN MOHAMED MATANGALU (As administrator of the estate MAUA MOHAMED KUNGULILO).................................. APPELLANT VERSUS AMINA NASSORO.................................. ................ .................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania (Land Division) at Dar es Salaam) (Mgonya, 3.) dated the 18th day of August, 2017 in Miscellaneous Land Appeal No. 2 of 2014 JUDGMENT OF THE COURT l l th& 24th February 2025 FELESHI. J.A.: This appeal emanates from the 2009 dispute over ownership of a house located at "Kwa Kopa" Kinondoni Municipality in Dar es Salaam. Its antecedent background can be stated briefly as follows: Hassan Mohamed Matangalu, the appellant, a legal representative of the late Maua Mohamed Kungulilo, appealed to this Court faulting the decision of i the High Court which confirmed the decision of the two lower tribunals, Mwananyamala Ward Tribunal (the trial Tribunal) and the District Land and Housing Tribunal for Kinondoni (the DLHT). Previously, the house in dispute (the suit property) was owned by one Maimuna Mohamed Msakandeo (the deceased) who latter sold it to the respondent herein. The deceased was the mother of Maua Mohamed (also deceased). Upon her mother's death, Maua disowned the sale agreement. The respondent filed a land case against her before the trial Tribunal which determined it in her favour. Discontented, Maua Mohamed unsuccessfully appealed to the DLHT. Still aggrieved, she appealed to the High Court vide Miscellaneous Land Appeal No. 2 of 2014 on the following grounds of appeal: 1. The learned appellate Chairman erred in law by failing to consider the grounds o f appeal as contained in the amended Memorandum o f Appeal filed on I4 h day o f December, 2009. 2. The learned Chairman in iaw (sic) in failing to determine the question o f jurisdiction o f the Ward Tribunal to determine the matter. 3. The learned Chairman erred in iaw by holding by im plication that the Ward Tribunal in Kinondoni M unicipality had jurisdiction to entertain Land m atters as courts o f first instance. 4. The learned Chairman erred in iaw by holding im pliedly that the Ward Tribunal was properly constituted while trying the dispute. 5. The learned Chairman erred in iaw by holding that the registration o f the disputed land in the name o f Appellant did not have any effect on the ownership. 6. The learned Chairman erred in law by holding that the disputed house was not part o f the estate o f the late Maimuna Mohamed Msakandeu hence not subject to the probate cause. 7. The learned Chairman erred in law in failing to allow the Appellant to ca ll additional evidence to prove that the Ward Tribunal did not have pecuniary jurisdiction to entertain the dispute, 8. The learned chairman erred in law by using extraneous m atter which was not in record to determine the appeal. In its judgment in respect of the appellant's appeal above, the High Court framed two issues: one, whether the jurisdiction of the trial Tribunal was addressed; and two, whether the evidence was properly evaluated by the trial Tribunal. It finally resolved that the trial Tribunal 3 had jurisdiction and had properly evaluated the evidence before it so it *dismissed the appeal with costs. Aggrieved, the appellant approached this Court with three grounds of appeal: one, the learned appellate Judge erred in law and fact by holding that the Ward Tribunal had jurisdiction to entertain the suit given the value of the property; two, the learned appellate Judge erred both in law and fact by disallowing the appeal without considering other grounds of appeal; and three, the learned appellate Judge erred in law and fact by deciding the appeal on the issue that was not before her and without hearing the parties. Before the appeal was called on for hearing by the Court, Mr. Josia Noah Samwel, learned counsel for the respondent had filed a notice of preliminary objection on a single point of law that: "the appeal is incom petent for non-com piiance with section 47 (3) o f the Land Disputes Courts Act, Cap. 216 R.E 2019 for failure to seek and obtain a certificate from the High Court certifying that there is a point o fia w involved in the appeal/' The parties appeared for hearing on 11th February, 2025 where Mr. Gabriel Simon Mnyele, learned advocate appeared for the appellant and Mr. Josia Noah Samwel, learned advocate represented the respondent. At the very outset, Mr. Mnyele conceded the preliminary objection and then hastily implored the Court to invoke its revisional powers under section 4 (2) of the Appellate Jurisdiction Act, Chapter 141 (the AJA) to nullify/ quash, and set aside the High Court judgment and order it to compose a fresh judgment because it failed to determine all grounds of appeal before it. On his part, Mr. Samwel acceded to Mr. Mnyele's concession but firmly resisted his new prayer as that would pre-empt their preliminary objection. He contended that, Mr. Mnyele's prayer would have been entertained only if there was a competent appeal before the Court. He thus beseeched the Court to strike out the appeal with costs. In his short rejoinder, Mr. Mnyele maintained that, as much as the appellant conceded to the preliminary objection, there was nothing any more to be pre-empted. He thus reiterated his prayer. On our part, we accede to counsel's consensus legal stance that the instant appeal is incompetent for want of a certificate from the High Court certifying existence of point(s) of law per section 47 (3) of the 5 Land Disputes Courts Act. It is also true that the remedy for an incompetent appeal like this one is to strike it out. However, before striking out the appeal we are constrained to consider Mr. Mnyele's prayer urging the Court to invoke its revisional powers under section 4 (2) of the AJA a prayer which, as alluded to above, is opposed by Mr. Samwel on account that it is intended to pre-empt the respondent's preliminary objection. As Mr. Mnyele rightly observed, in our view and with ali due respect to Mr. Samwel, we are settled in our minds that, once the appeal or the application is found incompetent there remains nothing to be pre-empted. So, we will now consider the merit of Mr. Mnyere's prayer premised under section 4(2) of the AJA which reads: - "4 (2) For a ll purposes o f and incidental to the hearing and determination o f any appeal in the exercise o f the jurisdiction conferred upon it by this Act, the Court o f Appeal shall, in addition to any other power, authority and jurisdiction conferred by this Act, have the power o f revision and the power, authority and jurisdiction vested in the court from which the appeal is brought" [Emphasis added] 6 The above provision of law, in effect provides that, the power vested to this Court under subsection (2) above is exercisable for the purpose and incidental to the hearing and determination of any appeal seized with the Court. We thus entertain no doubt in our minds that, as the incompetent appellant's appeal amounts to no appeal, Mr. Mnyele's prayer under section 4(2) of the AJA is unmaintainable. See- Mbeya- Rukwa Autoparts & Transport Ltd. v. Jestina George Mwakyoma [2003] T. L. R. 251, Tanzania Heart Institute v. The Board of Trustees of N.S.S.F [2008] T.L.R. 359 and MIC Tanzania Limited v. Minister for Labour and Youth Development, (Civil Appeal No. 103 of 2004) [2006] TZCA 156, TanzLII (12 December, 2006). Conversely, in Mbeya-Rukwa Autoparts & Transport Ltd. v. Jestina George Mwakyoma (supra) the Court stated that section 4(3) of the AJA vests the Court with power to revise High Court proceedings suo motu. It further referred to its decision in Halais Pro-Chemie v. Wella AG [1996] TLR 296 where it held that "it w iii revise suo motu the proceedings in the High Court where, for instance, the aggrieved party or person has no right o f appeal; it w ill also do so where in the 7 circum stances o f any given case an injustice wouid otherwise be condoned." Section 4 (3) of the AJA provides that: - "W ithout prejudice to subsection (2), the Court o f Appeai shaii have the power, authority and jurisdiction to ca il for and examine the record o f any proceedings before the High Court for the purposes o f satisfying itse lf as to the correctness, legality or propriety o f any finding, order or any other decision made thereon and as to the regularity o f any proceedings o f the High Court." In view of the above, we entertain no doubt whatsoever that the powers of the Court under section 4 (3) of the AJA can be invoked suo motu even where a preliminary objection is raised and sustained as was the case in in Mbeya-Rukwa Autoparts & Transport Ltd (supra) and Tanzania Heart Institute (supra). In the latter case, for example, we stated the following at page 12 and 13: - "Having sustained the prelim inary objection, on this ground, it would follow that the application before us is to be struck out However, the decision to strike out the application has engaged our m inds considerably. This is for the reason that 8 we are seized o f the record o f the High Court in Land Case No. 158 o f 2007. Upon a dose perusal o f the record as a whole, apart from the subm issions made by the learned counsel for both parties in the application which we have held to be incompetent, we are increasingly o f the view that the eviction order is fraught with irregularities, illegality and im propriety. For this reason> we are constrained not to strike out the application in order to retain the record for the purpose o f correcting the illegality and or im propriety. Otherwise, it would take a long tim e to start it a ll over which is not in the interest o fjustice. Therefore, the Court suo motu has decided to invoke its powers o f revision under the provisions o f section 4 (3) o f the Appellate Jurisdiction A ct...to revise the proceedings in High Court record. This is not the first time that the Court takes this course o f action when it transpires that the proceedings in the High Court are fraught with impropriety, illeg ality and or impropriety... " [Emphasis supplied] 9 We think, after demonstrating the course of action we exercised in the above cases, the same course of action is relevant and squarely befits the matter at hand whose redress can no longer be sought under section 4 (1) or (2) of the AJA. As we are seized with the High Court record in Miscellaneous Land Appeal No. 2 of 2014 which is the subject matter of the appellant's complaints, based on that record of a considerably old land matter we shall examine its judgment which is found at pages 252 and 253 of the record of appeal. For easy of reference, we reproduce its operative part: 7 have considered the rival subm issions o f both parties and also gone through the entire record o f this case. I w ill now determine the m erits or otherwise o f this A p p e a lBefore me, the first ground for determ ination is whether the jurisdiction of the trial Tribunal was properly addressed and whether the evidence was property evaluated by the trial Tribunal. The appellant claim s that the value o f the su it property is higher than the pecuniary jurisdiction o f the Ward Tribunal. It is on the record that the 10 respondent bought the su it land at the price o f Tshs. Two M illion Five Hundred (2,500,000)/=only and the Sale Agreem ent was the only evidence adduced in the Trial Tribunal and adm itted as exhibit in order to prove and ascertain the value o f the property in dispute. According to section 15 o f the Land Disputes Courts Act, Cap. 216 [R.E.2002] the Ward Tribunal had jurisdiction to entertain m atter not exceeded three m illion Shillings; Hence the Ward Tribunal had jurisdiction to entertain the matter. Another issue is as to whether the tria l Tribunal properly evaluated the evidence on record. It is a trite law that where a person makes a claim against another in a civ il case, the claim ant ought to prove the case on a balance o f probabilities. This position was re-stated in the case o f Kaiyango Construction and The Buiiding Contractors Lim ited vs. China Chongouing International Construction Corporation (CICO) CIVIL APPEAL NO. 29 OF 2012 (UNREPORTED) where the Court o f Appeal held that: - li "The appellant was the one who sued the respondent Regardless o f whether the m atter proceeded exparte or not, he had the duty o f proving the case against the respondent on the standard required." From the above, and from the records, the Appellant on tria l failed to prove his case on the standard required. It is in the ligh t o f the above, I find that the lower Tribunal property evaluated the evidence before it and came up with ju st and fair decision. In the end the result, I hesitated to depart from the decision o f the low er tribunal because it is proper. Having said a ll that, I hereby endorse the decision o f the D istrict Land and Housing Tribunal and dism iss the appeal with costs..." [Emphasis added] It is clear to us that, as rightly complained by Mr, Mnyele, the High Court impugned judgment above, confined itself to the aspect of the trial Tribunal's jurisdiction only and never addressed other grounds touching different aspects which were before it. Besides, it addressed 12 the issue of evaluation of evidence which was not amongst the eight grounds of appeal before it and without hearing the parties. We are aware that appellate courts per jurisdiction vested in them are enjoined to address and resolve grounds of appeal either separately or jointly depending on the circumstances of each appeal or application. In the case of Malmo Montage Konsult AB Tanzania Branch v, Margret Gama, Civil Appeal No.86 of 2001 (unreported) we stated that: "In the first place, an appellate court is not expected to answer the issues as fram ed a t the trial. That is the role o f the tria l court. It is, however, expected to address the grounds o f appeal before it Even then, it does not have to deal seriatim with the grounds o f appeal as listed in the memorandum o f appeal. It may, if convenient, address the grounds generally or address the decisive grounds o f appeal only or discuss each ground separately. " We have taken the same stance in a number of decisions including, the case of Nyakwama s/o Ondare @ Okware v. Republic (Criminal Appeal No. 507 of 2019) [2021] TZCA 592, Revocatus Mugisha v. 13 Republic, Criminal Appeal No. 200 of 2020, [200] TZCA 1753 and Elly Msalilwa v. Republic, (Criminal Appeal No. 265 of 2021) [2023] TZCA 17991. The essence of resolving grounds presented before an appellate court is to promote fair hearing and observe the principles of natural justice specifically, in our case, the right to be heard which is enshrined under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, Chapter 2. See also Mbeya-Rukwa Autoparts & Transport Ltd. vs Jestina George Mwakyoma (supra). As we conclude, we are of settled view that, the matter at hand, is an ideal one where suo motu invocation of revisional powers of the Court under section 4(3) of the A3A is most desirable. This is because, without such intervention, this being an old case will likely suffer further unwarranted delays due to procedural issues. As demonstrated, substantive justice cannot be realized without affording adequate hearing more so in this old contentious land dispute where only one aspect of trial Tribunal's jurisdiction was addressed by the learned High 14 Court Judge hence rendering the High Court record fraught with illegalities, impropriety and irregularities. Consequently, acting under section 4 (3) of the AJA, we hereby nullify the judgment in Miscellaneous Land Appeal No. 2 of 2014 and remit the record to the High Court for rehearing of the appeal in accordance with the law. We make no order as to costs. DATED at DAR ES SALAAM this 20th February, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgement delivered this 24th day of February, 2025 in the presence of Mr. John Mnyele, learned counsel for the Appellant Ms. Glory Kibona, learned c o l 1 r " " . . . . ire by certjfjed as a true copy of the original. SENIOR DEPUTY REGISTRAR COURT OF APPEAL