james mwishagoli vs sudi mundu 2022 tzhcld 55 21 january 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO. 393 OF 2021 (Arising from Land Appeal No. 133 of 2020)

JAMES MWISHAGOLI APPLICANT

VERSUS

SUDI MUNDU R

RULING Date of Last Order: 18/01/2022 & Date of Ruling: 21/01/2022 S.M KALUNDE. J: - In this appj^io appi nt, JAMES MWISHAGOLI has moved trje^ou der on 47(3) and (4) of the Land Disputes Act :216 R.E. 2019 CThe Act") for a ng It there Is a point of law worth of corsaderatlon Court of Appeal of Tanzania C'the CAT"), The ^Sffilicati is supported by an affidavit deponed by the applicant. The dispute between the parties begun at the Mngeta Ward Tribunal CThe trial tribunal") in Land Application No. 17 of 2020 wherein the respondent herein sued the applicant for trespass into a piece of land measuring 10 acres located at Hole Kiwalani, Mkangawalo Village, Mlimba District in Morogor Region C^he suit property"). At the trial tribunal, the respondent asserted to have purchased the property from Mkangawalo Village Government on the 01^ April, 2010 upon deposit of the consideration into the village government account. On the other hand, the applicant herein, and the respondent at the trial tribunal, claimed to be the lawful owner of the suit property having purchased it from the former owner, Saidi Abdallah, for a consideration of Tshs. ^1(20,000.00 in September, 2012. In furtherance of his th nt contended that the transaction to pi%has^ operty was approved and witnessed b^dteamoewoi e village land allocation committee. During trial each tnesses and evidence was produced in of ^'s

claims. Upon hearing of witness's te les iluation of the evidence on record the bun satisfied that the applicant's case (now res iightier than that of the respondent (no^^appl^^T^^ the end the trial tribunal declared SUDI MUlmU, the ®pondent herein, to be the lawful owner of the suit pr^ii^In addition to that, the trial tribunal ordered the applicant to yield up vacant possession to the respondent. In the final, the applicant was permanently restrained from dealing with the suit property in whichever manner. The applicant, JAMES MWISHAGOLI, was not happy with the trial tribunal's decision. He lodged an appeal with District Land and Housing Tribunal for Kilombero/Kilosa District a Ifakara fthe DLHT"). The appeal was registered as Land Appeal No. Ill of 2020. In his appeal at the DLHT the applicant raised three complaints; one, that the trial tribunal's decision was misconceived and bad in law for failure to consider that in terms of the Village Land Act, Cap. 114 R.E. 2002, the village council had no mandate to allocate 100 acres of land. Two, that the trial tribunal erred in failing to properly analyze and evaluate evidence tendered at the^^and three, that the decision of the trial tribunal ^^bgd^fe^l^y for accommodating contradictory evidei^^ o^j^^^pondents' witness testimonies. In the end the DLHT ^teurn^^Tedmsion of the trial tribunal. It allowed tlw^peal^djmt on to quash

the proceedings befor^Jh^ial set aside the resultant judgment and d^^^^^^^^aluation of the evidence on record the J|ffi^as sjfe^ that the applicant was the lawful owner of In arriving at its decision, the DLHT reaped nmtl^^ial tribunal had foiled to consider that the respl^ent hSein had failed to parade any member of the Mkan^rai^iTOge land allocation committee who witnessed the sale of land to him. It also concluded that the respondent had failed to establish how he came into possession of the suit property. When the matter was placed for a second appeal before High Court the respondent raised three complaints. In the first place he contended that the DLHT erred in resolving the appe without joining the person who sold the land to the applicant. In the second and third ground of appeal the respondent cumulatively complained that the DLHT failed to properly evaluate the evidence tendered before the trial tribunal. In resolving the appeal, the High Court refrained to entertain the first ground of appeal for being a new ground, that is, it was not raised before the trial trib^al or decided upon by the DLHT. Upon weighing the evi^nce^BjecordLthe second appellate court was convinced I' "I managed to establish their ownership^fe u^Joit^roperty on the balance of probabilities. that the case presented a case of doubl^Si^ua^y^ village council. Relying on the above fMi^s th^ayj^plied

the principle of priority of allocaton ^ a^P^t^double allocation; and awarded the sui^^^rtf^^^^spondent. In the end, as an outcome d^ro^cor^fa^al, the appeal was allowed. The Court quasW^^^^^^^ of the DLHT thereby upholding the dec^n of^^ tribunal. ;ion of this Court did not go well with the applicanrw intends to appeal to the CAT. He has, therefore, approached this Court in terms of section 47(3) and (4) of the Act seeking for certification that some fundamental points of law are involved worth of consideration of the CAT. The points of law proposed for the CAT consideration contained under paragraph 12 of the affidavit filed in support of the applicatiojrt^ They include: 'XO Whether the 2^ appellate Court was entitled to Invoke the principle of double allocation In a land where there was evidence that allocation of the suit land to the respondent was procured fraudulently. (H) Whether the 2^ Appellate Court, after settling that the applicant legally purchased the suit land from Said Abdallah and not from the date Said! Abdalla was allocated the suit land by the village Council.^ (Ill) Whether the 2^ Appellah urt enb'tied to hold that the auesd and Impropriety of vllla^ nc allocate on hundre^ acres of Village Land^ 'ithout the consent CO 'sionet for lands as requin the ge d regulations was lrre\ ant im rial for payment ofpmch pr (iv) Appellate Court was ed nslder Kikao cha

Senkali ya K to e same as Village Assembly fity to allocate suit Land to the ndent under the village Land Act Cap na^ViHage Land Regulations. hether the 2P^ Appellate Court was entitled to decide rights ofthe parties based on documents to wit payment receipt of 2,000,000/= and minutes of the meeting of Serlkali ya Kljljl which it had not seen and was absent from the original record of the case, and disputed In the trial and the 1st appellate Court without ordering for the reconstruction ofthe Courtfile^^ K (vi) Whether the 2^ Appellate Court, where a ground of appeal dictated on the failure of the 1st Appellate Court to evaluate property the entire adduced evidence, was entitled to not considered the evidence on the illegality of the allocation of 100 acres to the respondent by Serlkali ya KijIjI ya Mkangawab. (vii) Whether the 2^ appellate court was entitled to Ignore the evidence on the ex^spce of fraud and abuse ofpower by ubn ice for reasons that It was not appeal though was^ delh submissions of the^ pa Issues disputed In^ e 1st appellate cout (vlll) Whether ^pe Court was entitled ignor redit the weight and. 1/ testimonies of the sses mety Enoki Mtemele, /us om and Jaz/no Mkuni who inutes of the meeting of of Mkangawab occurred on 16/ V2010 which allocated 100 acres respondent, and whole of the Hocation of suit land to the respondent, ^and whole of the allocation of suit

land to respondent Ox) Whether the 2^ Appellate Court was entitled to apply the principle of double allocation by considering the first developer of the suit land while ownership of the suit land by applicant and respondent was though purchase and location respectively^^ If (x) Whether the 2^ appellate Court was entitled to disregard the respondent's reply to memorandum of appeal and submission is support thereof lodged In the 1st appellate court that he was allocated only 50 acres which contradicted with the evidence in the trial tribunal that he was allocated ICQ acres but upon visiting and measuring the land he only discovered to be allocated less than 50 acres." Following a prayer by the counsel fo ich was also supported by the responde^lea hted for the application to be disposed submissions, Submissions of the applica ere d filed by Mr. Francsi Munuo lea te nrepresented, the respondent drew and hi issions. Having con ings and submissions I gather that the my determination is whether the appli starting point would be to examine the aw applications of the present nature. As poi out ^e the instant application is premised on section 47 3 ct The section provides as follows: "47-(3) Where an appeal to the Court of Appeal originates from the Ward Tribunal, the appellant shall be required to seek for the Certificate from the High Court certifying that there is point of law

involved in the The wording of the above section clearly indicates that the right to appeal to the CAT in matters arising from the Ward Tribunal is conditional upon application and grant of a certificate that a point or points of law are involved. In terms of what was stated in the case of Dorina N. Mkumwa vs Edwin David Hamis (Civil Appeal No.53 of 2017)[2018] TZCA 221; (10 October 2018), my duty is conduct: serious evaluation of the whether what is proposed at int law,is worth to be certifigd to Appeal... [Emp is However, befor elving in considering the substantive applicacio nd 'written arguments, I think somethin said about the applicants' submissio f above the applicant had listed a staggenn gh which he sought the indulgence of thi ourt them as being worth of consideration by the T er, despite having adopted his affidavit filed in suppo application as part of his submissions, the applicant written submissions went on to include a different set of six freshly formulated points some of which were not included in the supporting affidavit. The respondent invited us to ignore the additional grounds as they were not included in the pleadings. To support his position, he cited the decision of this Court in Yara Tanzania Limited vs. Charles Aloyc Msemwa & 2 Others, Commercial Case No. 5 of 2013 (unreported). On my part I have examined the points of law highlighted in the affidavit

in relation to those expounded in the submissions, and I am satisfied that the applicant has to a great extent departed from the points of law included in his affidavit. It is trite law that parties are bour^by their own pleadings and that Courts cannot grant ^enter^n any^fing other than what is pleaded. I am also al^^v^^®d^itlon that submissions, as distinct from af^^te,^^noTOvidence. For that reason, I will not points of law which were not canvassed ii ffi I have also had oppo n examine the substance of the points of c in ler paragraphs (ii), (iii), (v), (vi), (vii) andXx) a ainniiJU'Llied that the points proposed therein r tters facts which do not qualify for certifi to the CAT. Howev^ ^nething Interesting appears to feature in both lBlfefeaffid#it and submissions. This relates to the complaint that the second appellate court considered evidence which was not on record to arrive at a conclusion that both the applicant and the respondent had been allocated the suit property by the Mkangawalo Village Assembly; and thereby wrongly making a find that there was double allocation. This grievance is raised through points (i), (iv), (viii) and (ix) wherein the applicant alleges that as natural flow from a wrong conclusion that ther was double allocatlon, the second appellate court wrongly applied the doctrine of priority of allocation hence awarding the suit property to the

respondent. I am aware that at this stage, I am not the appropriate forum to make any details comment on the subject, relying on the above findings I think the intended appeal is neither frivolous nor vexatious. By the look of it, it rai^ an important point which deserves the attention and ransi^Mon of.the Court of Appeal. I think that the questi^Oll^^T^^^/y/g/? Court, was justified to or properiy^^^i^^e^mncipie of doubie aliocation is a point wnrtrw^^agiMaMi by the Court of Appeal. All said and do xeim^at a point of law is involved in th irf dated 02"^ July, 2021. In the final ana IS for fregoing reasons, the present applicatio ucc circumstances, each party is to bear It IS so t MOROGORO this 21^ day of January, 2022. S.M. KALUNDE

JUDGE 10