PC CIVIL APPEAL NO

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB - REGISTRY OF DAR ES SALAAM AT DAR ES SALAAM (PC) CIVIL APPEAL NO. 132 OF 2023 {Arising from Civil Case No. 6 of2022 of the District Court of Kibaha before Hon. J. Lyimo RM, Original Civil Case No. 20 of2022 of the Primary Court of Kibaha District at Maili Moja) JOSEPH MKENDA.................................... .......................APPELLANT VERSUS LADSISLAUS WHINCHISLAUS......... ........... RESPONDENT JUDGMENT 24 April2024, & C June, 2024 DING’OHI, J; Joseph M ken da, the appellant herein, is aggrieved with the decision of the District Court of Kibaha at Kibaha/Maili moja in Civil Appeal No. 6 of 2022 which was in favour of the respondent, Ladislaus Winchislaus. The appeal originates from the decision of the primary court of Kibaha district at Maili Moja vide civil case No...20 of 2022. In that court, the trial Magistrate believed that the respondent was guilty of the breach of contract of sale of the shamba in Page 1 of 20 that he sold the shamba, which is not his property, to the appellant. The trial court therefore endorsed the appellant's claim of the refund of the sum of Tshs. 4,500,000/=which he paid to the respondent as the purchase price of the shamba and the sum of Tshs 220,000/= as compensation/damage. That decision of the trial court was overturned by the first appellate court hence, the present appeal. The brief background of the matter which resulted in the instant appeal is to the effect that; The appellant bought a piece of land from the respondent for the consideration of Tshs, 4,500,000 which he paid by way of giving the respondent the tricycle (Bajaji) valued at Tshs. 3,000,000/= and cash Tshs. 1,500,000/=. The appellant later discovered that the shamba land he purchased had encumbrances in that it was not the property of the person who sold it to him(respondent). After the respondent refused to refund the purchase price, the appellant decided to take the matter to the trial court which decided in favour of the appellant as aforesaid. In a further appeal in the first appellate court by the respondent herein, the decision of the trial court was quashed and set aside. That decision, as expected, was against the appellant's wish. He commenced this appeal with the following grounds: Page 2 of 20 1. That, the Honourable Resident Magistrate erred in Jaw and fact by holding that the appellant failed to prove his claim beyond the balance of probability 2. That, the honourable Resident Magistrate erred in law and fact by improperly re evaluated and assessed the evidence of the trial court 3. That, the honourable Resident Magistrate erred in law and fact by holding that the appellant needed to prove his claim by documentary evidence and that testimonies given were hearsay hence not worthy a reliance. 4. That, the Honourable Resident Magistrate erred in law and fact by holding that the Respondent legally passed his land in title and there was no any dispute at the same passed to the appellant 5. That, the Honourable Resident Magistrate erred in law and fact by treating the matter as land dispute and decided the rightful owner of the same white that was not a land matter thus landjurisdiction was wanting. 6. That, the Honourable Resident magistrate erred in Jaw and fact by formulating her issue at breach of contract due to misrepresentation and decided on the same. In this appeal/ the appellant was represented by Mr, Tumaini Mgonjaz the learned advocate. The respondent was in person/ unrepresented. The appeal Page 3 of 20 was argued by way of written submissions. In support of the appeal, Mr. Tumaini opted to consolidate the 4th and 5th grounds and argued them together. The remaining grounds of appeal were argued separately. Submitting on the first ground of appeal, Mr. Mgonja faulted the first appellate court for holding that the appellant failed to prove his claims on the balance of probabilities. He argued that the issue of the burden of proof was not one of the grounds of appeal raised by the respondent before the first appellate court. According to him, the issue was raised Suo-moto by the first appellate court without affording the parties an opportunity to be heard. It is said, that led to the miscarriage of justice. To bolster his arguments, the learned advocate referred me to the case of Ex- B.8356 S/Sgt Sylvester S. Nyanda vs. the Inspector General of Police & The Attorney General, Civil Appeal No. 64 of 2014 (Unreported) Where it was observed that: " There is similarly no controversy that the trial judge did not decide the case on the issues which were framed, but her decision anchored on an issue she framed suo motu which related to the jurisdiction of the court. On this again, we wish P?ge4of20 to say that it is an elementary and fundamental principle of determination ofdisputes between the parties thatcourts oflaw must limit themselves to the issues raised by the parties in the pleadings as to act otherwise might well result in denying of the parties the right to fair hearing." Regarding the second ground of appeal, the learned advocate faulted the first appellate: court by improperly re-evaluating and assessing the evidence given in the trial court. Mr. Mgonja argues that, instead of evaluating the evidence adduced by parties at the trial according to the pleadings, the first appellate court ventured to formulate new issues that he was not invited to determine. According to the learned advocate, that led to the failure to reevaluate the evidence given in the trial court. He supported his submissions with the case of Wagesa Joseph M. Nyamaisa Vs Chacha Muhogo, Civil Appeal No. 161 of 2016 (Unreported). As to the third ground of appeal, Mr. Mgonja submitted that the trial magistrate erred in law and fact by holding that the appellant was required to prove his case by documentary evidence, and that, all testimonies given were hearsay which is not worth to be relied upon. He further submitted that, in proving the Page 5 of 20 case at hand the appellant brought SM4 (a village chairman) who testified that the whole area with the land in dispute inclusive was declared to be an industrial area by the Regional Commissioner of the Coastal region. He added that the village chairman's testimonies were enough to prove the facts. To support his argument/ he referred this court to the case of Abas Kondo Gede Vs Republic/ Criminal Appeal No. 472 of 2017/ where the court observed as follows/ on page 21; "We must emphasize that oral evidence being one of the methods of receiving evidence in a court of law, is crucial in pro ving a particular fact and the court is entitled to rely on it in reaching its conclusion, By oral evidence, it means that a witness tells the court only a fact of which he has first­ hand personal knowledge or that he perceived the fact from his senses." According to the learned advocate for the appellant/ the appellant's testimonies were not hearsay and were worthy to be relied upon and thus/ the first appellate court erred in holding that the documentary evidence is the only means of proving the facts. Page 6 of 20 Back to the 4th and 5th grounds of appeal. It is the learned advocate's submission that the trial court erred by holding that the respondent legally passed his title and there was no dispute at the time the same passed to the appellant. He went on to submitthat, the act of the first appellate court treating the matter as a land dispute: and proceeded to declare the right owner of the same was not proper. According to the learned advocate, the district court is statutorily ousted jurisdiction to entertain land-related disputes except those Of a criminal nature. That is per the provisions of section 4 (1) & (2) of the Land Disputes Courts Act [GAP. 216] RE 2019. It is further submitted that section 167 of the Land Act, Cap. 113 mentions courts with jurisdiction to entertain Land disputes to be the Court of Appeal, High Court, the District Land and Housing Tribunal, Ward Tribunals, and the Village Land Council. It is therefore argued, by the learned advocate, that as the appeal originated from the criminal case of obtaining property by false pretence, it was wrong for the first appellate court to treat the same as a land matter and continue entertaining as such when the statute ousted jurisdiction of the first appellate Page 7 of 20 court to entertain land matters. On the last ground of appeal, the learned advocate faulted the first appellate court by formulating its issue of breach of contract due to misrepresentation and proceeded to decide the same. He submitted that the issue of breach of contract or misrepresentation was not a ground for appeal before the first appellate court. According to him, even the parties to the case were not invited to address the issue raised which violates the principle of the right to be heard. He supported his arguments with the case of Ex-B.8356 S/Sgt Sylvester S. Nyanda vs, The Inspector General of Police & The Attorney General, Civil Appeal No. 64 of 2014 (Unreported) where it was observed that; "That it is an elementary and fundamentary principle of determination of disputes between the parties that courts oflaw must limit themselves to the issues raised by the parties in the pleadings as to act otherwise might well result in denying any of the parties the right to fair hearing. Before embarking on the arguments submitted by the appellant's learned counsel, the respondent drew up the attention of this court: on what he called the important issue regarding how the appeal was made. He submitted that it Page 8 of 2D is a mandatory requirement of law that the appeal from the District Court in the exercise of the appellate jurisdiction shall be filed by way of the Petition of Appeal and not by way of the Memorandum of Appeal as the Appellant did. The learned advocate cited the provision of section 25 (3.) of the Magistrate Court Act Cap. 11 R.E 2019, to back up his position. Also, by way of analogy, the learned advocate cited the case of MIDU DAMIAN LIKILIWIKE (Administrator of the Estate of the Lade DAMIAN BOIMANDA LIKILIWIKE) vs STEVEN TEMBA, Land Appeal NO. 03 OF 2020, when discussing the provisions of section 38 (3) of the Land Disputes Courts which is in pari materia to section 25 (3) of the Magistrates Courts Act, Cap. II RE 2019, it was observed that; "In actual fact there is no gain saying first that there is no difference of memorandum of appeal and petition of appeal. This is because the la w itself has made a distinction. An appeal is preferred by a petition of appeal where it originated from the District Land and Housing Tribunal while exercising appellate or revisionaryjurisdiction in according to Section 38(1) of the Land Dispute Court Act, and the Procedure is that the appeal is to be Page 9 of 20 lodged in the District and Housing Tribunal from which the decision sought to be challenged was decided. But where the appeal originates from the decision ofthe District Land and Housing Tribunal exercising original jurisdiction the same is to be by a memorandum of appeal and must be Hdged to the High Court." It was submitted that the law is clear that the appeal originating from the District Court when in the exercise of its appellate jurisdiction is filed by way of the petition in the High Court; whereas the appeal originating from the District Court in the exercise of the original jurisdiction is filed in the High Court by way of the memorandum of appeal. He added that, in the case cited above, it was found that the anomaly goes to the root of the appeal and cannot be saved by the overriding objective principle since it is a mandatory legal procedure. In reply to the first ground of appeal, the respondent submitted that at any time where the court deals with the weight of the evidence, it should consider the issue of proof of the case and that the standard of proof in civil cases is on the balance of probabilities. He argued that there is an obligation on one party to convince the court of the truth of some proposition of fact which is in issue Page 10 of 20 and which is vital to the case. It was a total misconception from the counsel for the appellant when he believed that the trial magistrate raised the issue of the proof of the case on the balance of probabilities, suo moto. He referred me to the case of CRESCENT IMPEX (T) LIMITED v MTIBWA SUGAR ESTATES LIMITED, CIVIL APPEAL NO. 455 OF 2020/ COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (Unreported) where it was held that; ",.. the burden ofpro ving a fact rest on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for negative is usually incapable Of proof It is ancient rule founded on consideration of good sense and should not be departed from without strong reason.... Until such burden is discharged the other party is not required to be called upon to prove to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrieves at such a conclusion if he cannot proceed on the basis of weakness of the other party... Against the second ground of appeal, the respondent argued that there was a misconception by the counsel for the appellant as what he submitted was Page 11 of 20 different from the ground of appeal. He says so because while the ground of appeal is centered on the improper re-evaluation of evidence the appellant’s submission is based on the rising of new issue suo moto. According to him, this renders that ground to remain unjustified. He thus argued that the first appellate court was justified and properly re-evaluated the evidence that was adduced in the trial court hence it reached the proper decision. Arguing against the third ground of appeal, the respondent opposed what was submitted by the appellant's learned advocate. He argued that the first appellate court was right and quick to discover that the evidence by the appellant witness was full of hearsay and not reliable because it is a principle of law that oral evidence must be direct. Supporting his arguments, he cited the case of NTIGAHELA ELIAS vs. THE REPUBLIC, CRIMINAL APPEAL NO. 150 OF 2017, COURT OF APPEAL OF TANZANIA AT TABORA (Unreported) where it was settled that; ”According to section 62(1) of the Evidence Act (Cap 6 R.E 2019), oral evidence must be direct in ail cases and ifit refes to a fact which could be seen, the relevant evidence must be of a witness who saw it. See also our decision in Vumi Page 12 of 20 Hapenda Mushi '/. R, Criminal Appeal No. 327 of 2016 (unreported) where it was stated that hearsay evidence has no evidential value. Regarding the 4th and 5th grounds of appeal, the respondent responded that it is the appellant who initiated the case, subject to this appeal, in the trial court. While the case involved a contract for the sale of land, the appellant claimed that the appellate court was not supposed to discuss issues relating to land. According to him, if the first appellate court had no jurisdiction to deal with issues relating to a contract for the sale of land even the trial court lacked jurisdiction. He added that both decisions deserve to be quashed with costs to the appellant as being the initiator of the matter in the wrong forum. As against the last ground of appeal, the respondent submitted that the ground lacks merit. He submitted that the issue of misrepresentation was discussed by the first appellate court as part of re-evaluating the evidence of the parties that were adduced by them in the trial court, in which, among the matters that were supposed to be proved were the allegations of misrepresentation. I have carefully gone through the lower court's records, documents of appeal, and submissions by both sides for and against the appeal. Page 13 of 20 The relevant issue for determination at this juncture is whether the instant appeal has merit. I will start to consider what would be termed the preliminary objection raised by the respondent. It is his view that this appeal was improperly brought titled the ''Memorandum of the Appeal" instead of "Petition of the Appeal". I don't think the issue should detain me longer. Section 25 (3) of The Magistrates' Courts Act [CAP. 11 R.E. 2019] provides that; "Every appeal to the High Court shall be by way of petition and shall be filed in the district court from the decision or order in respect of which the appeal is brought." Admittedly, from the above provision of law, and as rightly submitted by the respondent, an appeal originating from the decision of the District Court in the exercise of its appellate jurisdiction is to be filed in the High Court by way of a petition. The petition of appeal and memorandum of appeal may be used interchangeably as there is no harm in the interchanging use of those terminologies. Dealing with the same issue the court in the case of Basil Masare v. Petro Page 14 of 20 Michael (1996) TLR 227 stated that; "If an appeal used the word 'memorandum’instead of 'petition' in connection with his grounds ofappeal in a case originating in the primary court, that alone cannot render the appeal incompetent since that would be 'making a mountain out of mouse: mound'," It follows that there is no problem with the documents of appeal filed by the appellant. The intended objection would not succeed. I will now resume to consider the merit of this appeal. In my view, the 1st, and 6th grounds are similar. They present one major issue of whether it was proper for the appellate court to raise new issues without allowing the parties a right to be heard. I will, therefore, discuss the rest of the grounds separately as they were argued by the party/advocate. On disposing of this appeal, I wish to begin with the 4th and 5th grounds of appeal concerning the validity of the first appellate court to treat the case subject to this appeal as a land matter. That is because, in case I find that it ought to be a land matter then that will be the end of the story. After all, the matter cannot proceed further as it is. Page 15 of 20 It is a settled principle of law that the jurisdiction of a court is a creature of the statute. That being the case, the court cannot assume or exercise the jurisdiction that it does not possess. It is provided under section 167 of the Land Act [Cap 113 R.E. 2019], that; " The following courts are hereby vested with exclusive jurisdiction, subject to the provisions of this Part, to hear and determine ail manner of disputes, actions and proceedings concerning land, that is to say—(a} the Court of Appeal; (b) the High Court; (c) The District Land and Housing Tribunal; (d) Ward Tribunals; and (e) Village Land Council" This court is not silent on what is considered to be a land dispute. In the case of Issa Hamad Kivina & Another vs Equity Bank Tanzania Limited [2023] TZ HC Land D 17088, my brother L. Hemed, J made a reference to the USAD Paper on LAND DISPUTES AND CONFLICTS, composed by John Bruce (March 2013) where the Land dispute is that which; "Involve conflicting claims to rights in land by two or Page 16 Of 20 more parties, focused on a particular piece ofland, which can be addressed within the existing legal framework." My understanding of the above definition of land dispute is that parties must be conflicting in the possession, ownership, or usage of land. In the present case, the records show that the appellant was sued for a refund of the purchase price Of the Shamba land. This is to say the matter of ownership of the land was not the issue in the trial court. After going through the trial court's entire records, I was not able to find a place where subordinate courts treated the matter as a land dispute. That is to say, the 4th and 5th grounds of appeal lack merits. There is also a complaint by the appellant in the 1st, and 6th grounds of appeal that the first appellate court raised two issues without availing parties the constitutional right of being heard. The complaint was of two folds; First, it was on the burden of proof in civil matters. He was of the view that the issue of burden of proof was not one of the grounds of appeal raised by the respondent before the first appellate court. Second, the issue of breach of contract due to misrepresentation. He contended that this issue was also not on the grounds of appeal before the appellate court. According to him, even Page 17 of 20 the parties to the case were not invited to address that. I have considered that submission. However, I was asking myself whether the burden of proof is an issue that can be framed by the court in civil cases. Or is it the requirement of law directing courts what to consider from the available evidence as proof of the facts in issue? I am of the view that the burden of proof cannot be taken as the issue to be framed in civil cases. The burden is there already under the law as to what extent parties are to prove depending on the kind of the case. In civil cases for example the plaintiff is to prove the existence of the fact in issue to the balance of probability. In criminal cases, the required proof is beyond reasonable doubt. The 1st and 6th grounds of appeal are also without merits. They are accordingly thrown out. The appellant's 2nd ground of appeal is centered on the alleged failure of the first appellate court to improperly re-evaluate and assess the evidence tendered in the trial court. According to the appellant, the first appellate court ventured to formulate new issues instead of determining the grounds of appeal which led to the failure to re-evaluate the evidence of the trial court. I have considered what has been submitted by the counsel for the appellant on that ground of appeal. I will agree with the respondent that there is a Page 18 of 20 misconception from the appellant's counsel as what he submitted was different from this ground. Since the ground is centred on impropriety of feevaluation of evidence the appellants counsel arguments are based on a. blame of rising new issues suomoto. Under the circumstances, I find this ground to be unjustifiable. There is yet a complaint under the 3rd ground of appeal that the first appellate court failed to hold that the appellant failed to prove documentary evidence as all testimonies given by witnesses were hearsay. I have considered that submission as well. The records in a trial court vividly demonstrate that, in proving his claim against the respondent, the appellant brought Mohamedi Ramadani (SM'2) who is a neighbour, and Ally Hussein (SM4) who is the street chairman. They both testified that the piece of land bought by the appellant was in dispute, and the Regional Commissioner ordered that the said area be allocated for industrial area. Thus, justification for a refund of the purchase price plus damages. From the above piece of evidence, the trial court found that there was a breach of contract and the respondent was aware that the said land was in dispute. I respectfully do not agree. There is no evidence at all on record that suggests that the respondent was aware that the said area was allocated for an industrial Page 19 of 20 area which led to the breach of contract. All the evidence given by SM2 and SM4 was hearsay from the Regional Commissioner. Tbe appellant ought to bring Mr. Nicodemus Banduka who is alleged to be the owner of the whole disputed land and has a certificate of ownership. The law is very clear that in civil cases what is required is the evidence to prove the case on a balance of probabilities, and the court will sustain such evidence which is more credible than the other on a particular fact to be proved. See; Paulina Samson Ndawavya vs Theresia Thomas! Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453. In this case, the evidence was heavy on the respondent's side. It is for the foregoing reasons; that I find this appeal to be without merit. It is hereby dismissed with costs. Dated at DAR ES SALAAM this 4th day of June 2024. Page 20 of 20 COURT: Judgment delivered this 4th day of June, 2024 in the presence of Mr. Tumaini Mgonja, the learned advocate for the appellant, and the Respondent in person. S.R. DING’OHI JUDGE 4/6/2024 Page 21 of 20