joseph moris vs juma batuliko 2023 tzhc 19950 4 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF KIGOMA)

ATK IGO M A MISC.CIVIL APPLICATION NO. 19 OF 2022 (Arising from Misc. Land Appeal No. 19 of 2022 of the High Court of Tanzania at Kigoma, Land case No. 12 of 2020 at the District Land and Housing Tribunal for Kigoma and original Land Case No. 1 of 2020 of Mganza Ward Tribunal.)

JO S E P H M O R IS APPLICANT

VERSUS

JUMA BATULIKO RESPONDENT Date of last Order: 19/07/2023 Date of Judgement: 04/08/2023

R U L IN G MAGOIGA, J. The applicant, JOSEPH MORIS! preferred this application under the provisions of section section 5(2)(c) of the Appellate Jurisdiction Act [Cap 141 of the R.E 2019] and rule 46 (1) of the Court of Appeal Rules, 2019 and any other provision of the law for certification on points of law worth for Court of Appeal of Tanzania consideration, costs of this application and any other relief this court may deem fit to grant. The impugned decision to be challenged was Misc. Land Appeal No. 19 of 2022 delivered on 10th August, 2022. The applicant under paragraph 4 of the affidavit enumerated 3 grounds for certification in the following language:- Page 1 of 9 4. Tha t, my intended appeal before th e Court of appeal will ra ise crucial legal issue for determ ination which this honourable co urt may be pleased to certify for m y app eal; - (i) Whe th er the hono urable High Court Judge was lega lly justified in his decision on app eal when he decla red the resp on den t th e legal o wn er of th e suit lan d con trary to the sa id con curren t fa cts fin ding of the lo wer Ward Tribuna l an d District L an d an d Housing Tribunals wh ich were in m y fa vour rega rding o wn ership of th e suit land. (ii} Wheth er th e h onoura ble High Court Judge m isdirected himself in th e re valua tion of the en tire e viden ce o f both sides on re cord and consequen tly h e wrongly

declare d the applica n t the legal o wn er o f th e suit lan d (iii) Wh ether th e h olding of th e h on o urable High Court Judge in the imp ugned judg em en t against tha t a p erson who did n o t ma ke a documen t canno t sp eak of it or ten der it in co urt is legally prop er. I have carefully considered the three points as enumerated above and have gone through the judgement of this Court and what is complained of as point of law, can be summarized into three Page2 o f9 ~ g ro u n d s th a t; O ne , w h e th e r th e H igh Co u rt d id n o t m is d irect its e lf in its de c is io n b y re ve rs in g the tw o c on c u rre n t fi n d in g s o f th e lo we r tribu n a ls . Tw o , w h e th e r th e H ig h C ou rt d id n o t m is d irec t its e lf in re e va lu a tin g o f th e e n tire e v id e n c e o f b o th s ide s a nd c on s eq ue n tly w ro ng ly rea c h ing a w ro n g d e c is io n a nd th ree , w h e th e r the h o ld ing o f th e h o n o u ra b le H ig h C ou rt J udge in th e imp u g ned ju d g e m e n t a g a in s t th a t a p e rso n w h o d id n o t m a ke a d o c u me n t c ann ot s p e a k o f it o r te n d e r it in c ou rt is lega ll y p ro p e r. U p o n b e in g se rv e d th e resp o n de n t fi le d c oun te r a ff id a v it s tro n g ly re s is tin g the g ran t o f th e a p p lic a tio n a nd p ra ye d the s a m e to b e d is m is se d w ith cos ts . W

h e n th e a p p lic a tio n w a s ca ll e d o n fo r h e a rin g , th e a p p lica n t w as re p re s e n te d b y M r. M e th o d R . G . K a b u g u z i S en io r le a rn e d a d v o c a te , w h e re a s the re sp o nd e n t w a s p re s e n t u n re p re s en te d a n d rea d y fo r h ea ring . M a in ly in h is s u b m is s io n , M r. K a bu g u z i fo r th e a pp lic a n t a rg ue d the a pp lica tio n b y a d o p ting the a ffi d a v it o f Jo s ep h M o ris i (the A p p lic a n t) w h ic h c on ta ine d th e reas o n s fo r g ran t o f the a pp lic a tio n in pa rt ic u la r a s s ta te d in p a ra g ra p h 4 . H e a d d e d tha t, th e re is a n o tic e o f a p pea l a nd in o rd e r to g o to C ou rt A pp e a l, c e rt ifi ca tio n o n p o in t o f la w is im p e ra tiv e . O n th e oth e r h a n d , th e resp o nd e n t re s is te d th e a p p lic a tio n b y a do p ting h is c oun te r a ff ida v it a n d p ra y e d th e a pp lic a tio n b e d is m is s e d w ith costs . Page 3 of 9 ~ T h e re s p o n d e n t's c oun te r a ff id a v it in rep ly to p a ra g ra p h 4 o f the c o n ten ts o f the a ff id a v it o f th e a pp lic a tio n sta ted th a t:- 6. That, the contents of paragraph 4 of the applicant's affidavit comprising the alleged points of law to be certified by this court are disputed for being misconceived. i. The Honourable High Court judge was

justified in law in interfering with the concurrent findings of the lower Tribunal since there was a misapprehension of the evidence and violation of a key principle of law leading to miscarriage ofjustice. ii. The Honourable High Court judge was justified in re evaluating the evidence of both sides on record and it was not the applicant who was declared as the lawful owner of the suit property but rather it was the respondent who was declared as the lawful owner of the suit property. iii. The decision of the Honourable High Court judge was legally reached since the one who tendered the sale agreement was not a maker nor a witness to the sale agreement but rather a story teller of the one who is alleged to have sold the land to the applicant and the alleged seller was not called to testify in the trial tribunal. In the totality of the above reasons, the respondent strongly urged this Court to dismiss this application with costs. Page 4 of9 H a v in g ca re ful c o n s id e re d th e c o n te n ts o f th e a ffi d a v it, c ou n te r a ff id a v it a nd the o ra l riva l s u b m issio ns a n d ha v ing re a d th e ju dge m e n t o f the H ig h C ou rt , in m y re spe ct iv e op in io n , th is p o in t is n o n m e rito rio u s b e c a u s e th e c o n ten ts o f p a ra g ra p h s 4 , in p a rt ic u la r, i te m one rais e s p u r e ly fa ct u a l is su e s o f e v ide n c e an

d in m y resp e ctiv e o p in io n n o p o in t o f la w w as ra ised w o rt h fo r c o n s ide ra tio n b y th e C ou rt o f A p p ea l. N o t e v e ry ra ise d p o in t is w o rt h d e te rm in a tio n b y th e c o u rt o f a p pea l. S e e th e c a s e o f Dorina N. Mkumwa vs Edwin David Hamis, Civil Appeal No 53 of 2017, CAT at Mwanza, the court held that; "This Court does not expect the certifying High Court to act as an uncritical conduit to allow whatsoever the intending appellant proposes as point of law to be perfunctorily torwerded to the Court as point of law. " Together with the cited case, in the circumstances, the applicant was required to show what exactly was the point of law which was messed up by the High Court judge in determining his case and not only saying that the declaration of the respondent as a legal owner of the suit land was contrary to the said concurrent facts finding of the lower Ward Tribunal and District Land and Housing Tribunals which were in his favour regarding ownership of the suit land needed to be considered as a point of law worthing determination by the Court of Appeal. According to me, this point has no merits. Page 5 of9 A s to th e s e c o n d p o in t, the a p p lic an t w a n ts th e c ou rt o f a p p e a l to d ete rm in e w heth e r the H igh C ou rt ju d ge w as c o rre ct o r w ron g to re v alu a te the e n tire ev id e n ce

o f bo th s id e s o n re c o rd a n d c o n s e q ue n tly d e cl a rin g the a p p li c a n t th e le ga l o w ne r of th e s uit la nd . I m a y a dd to the p o in t tha t n o t on ly th a t th e H ig h c ou rt jud g e re e v a lu a ted the ev iden ce b u t a ls o th e e v a lu a tio n w as d o n e a t the s e c o n d a p pe ll a te c ou rt w h ic h is n ot c o mm o nly s o d o n e . I h a v e p a s se d th ro u g h th e imp u g ned d eci s io n a n d I foun d fro m pa g e 6 -9 o f the judg e m e n t, m y le a rn e d b ro th e r M la c h a, J, gave out elaborative reasons which attracted him to interfere with the concurrent findings of the lower courts by re-evaluating the evidence. Mainly, the decision was based on a misapprehension of the evidence and a violation of a key principle of law leading to miscarriage of justice. As correctly argued by the respondent herein that the High Court judge was justified in re-evaluating the evidence of both sides on record, I see no point of law worth consideration by the Court of Appeal. On the foregoing reason, the second point of this application fails too. See the case of The Registered Trustees of Joy in the Harvest vs Hamza K. Sungura, Civil Appeal No. 149 of 2017 at page 11 CAT at Tabora in which was held that;- Ordinarily, this Court would not readily disturb such findings, unless it can be demonstrated that the findings Page 6

of9 of the lower courts, are clearly unreasonable or are a result of a complete misapprehension of the substance of the evidence or that the findings are based on a violation of some principle of law culminating into a miscarriage ofJustice. The Court of Appeal has persistently maintained the above stance in numerous decisions including the Director of Public Prosecutions v. Jafari Mfaume Kawawa [1981] TLR 149 and Salum Mhando v. R [1993] TLR 170. Other decisions on the same point are Omari Mohamed China and Three Others v. R, Criminal Appeal No. 230 of 2004 and Wankuru Mwita v. R, Criminal Appeal No 219 of 2012 (both unreported). This as well goes to the third point raised that a person who did not make a document cannot speak of it or tender it in court. I have gone through the impugned judgement specifically at page 9, the Hon High Court judge wrote and I quote;- He also tendered the sale agreement. Apart from the fact that he had no legal capacity to tender the document but he spoke of what he was told by the one who sold the land. Looking into the wordings of this quotation, my understanding is that, the person who tendered the said exhibit was not competent to tender it. This is because, he was not among the list of the witnesses competent to tender exhibits. See page 4 item 2.4.2.1 of the Page 7 of9 ~ B o o klet "EXHIBIT MANAGEMENT GUIDELINES" Published by the Judiciary

of Tanzania where it is written; Before admitting exhibits in civil cases, the court shall satisfy itself that; (a) the witness is competent to tender the exhibit (i.e. maker, addressee, custodian, owner, possessor). This position was well elaborated in the case of DPP vs. Mirzai Pirbakhsh @ Hadji and Three Others, Criminal Appeal No. 493 of 2016 (unreported). The Court of Appeal listed the categories of people who can tender exhibits in court. It stated thus: "A person who at one point in time possesses anything, a subject matter of trial, as we said in Kristina Case is not only a competent witness to testify but he could also tender the same. It is our view that it is not the law that it must always be tendered by a custodian as initially contended by Mr. Johnson. The test for tendering the exhibit therefore is whether the witness has the knowledge and he possessed the thing in question at some point in time, albeit shortly. So, a possessor or a custodian or an actual owner or alike are legally capable of tendering the intended exhibits in question provided he has the knowledge of the thing in question. " In the circumstances of this suit, there is no any explanation on how the alleged witness came into possession of the said document in order for him to be a competent witness to tender it. To my considered opinion, I P agc8 of9 c1{_ fi nd tha t, th e p rinc ip le s o n h o w

to te n d e r e xh ib its and w h o m a y tende r th e m a re a lre a d y d isc usse d a n d d ec id e d b y th e C ou rt o f A pp e a l a s se e n ab o ve , h e n c e, n o n e ed to re fe r th e case o f this n a tu re to th e Co u rt w h ic h has a lre a d y d id it. T h e refo re , w h a t sh o u ld b e d o ne by the lo w e r co u rt s is co m p lia n c e a nd n o t o th e rw ise . O n th a t n o te , I th e re fo re , fi n d tha t the th ird po in t d o e s n o t q ua lify to be a p o in t o f la w w o rt h co n s id e ra tio n b y th e C o u rt o f A pp e a l be c a u se re fe rrin g it th e re w ill m a ke th e co u rt to w aste tim e to do th e th ing it h ad a lread y done. C o nse q u e n tly , th e a pp lica tio n is h e reb y d ism issed w ith co sts. I t is s o o r d e r e d . D a te d a t K ig o m a this 0 4 th day of Au ust 2023. S. M. MAGOIGA

JUDGE \ 04/08/2023 ·,,.,:I:• _ P age 9 of9