20181220 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA PC cIVIL APPEAL NO. 15 OF 2018 (Arising from Civil Appeal No. 12 of 2017 of Singida District Court. original Puma Primary Court in Civil Case No. 2 of 2017) 3 IJI"IAFINE KIBVJANDA ............. VERSUS 3 LJIv1ANNE SAID II...AL..A................,....I........................RESPOI'4DEP11 0811012018 & 2011212018 JUDGMENT MASAJU, J. The Appellant, Jumanne Rajab Kibwanda, was initially married to one Jamila Issa. The two divorced on the 26th day of July, 2012 vide Civil Case No. I of 2012 in Mungaa Primary Court at Singida. The Court ordered that the matrimonial properties acquired during the subsistence of their marriage be distributed between them. Jamila Issa was to get one house and one three acres land (Farm) amdngst other properties. On the 27th day of August, 2017 Mungaa Primary Court ordered that the said properties be attached and sold by public auction so as to enable the Appellant's divorcee, Jamila Issa, to get the said house and the farm. The intended sale by public auction was advertised and eventually the said farm was sold to the Respondent, Jumanne Said Ilala, by way of public 1 OOJP auction conducted by Mwankoko Action Mart. The Respondent paid TZS 500,000/= as purchase price of the said farm/land on the 14th day of July, 2013. Thereafter, there were Criminal, cases between the Respondent and the Appellant in Puma Primary Court such as Criminal Case No. 51 of 2013, and No. 89 of 2014 in which the Appellant was convicted of the offence of land trespass and sentenced accordingly. Case No. 3 of 2013 was not prosecuted to its finality. Eventually the appellant sued the Respondent in the Primary Court of Puma at Ikungi vide Civil Case No. 2 of 2017 for costs (TZS 3 1 000 1 000/=) of that he had allegedly incurred in pursuit/prosecution of the said cases against the Respondent. In the said suit the trial Court held that the Appeant could not have been able to be paid for the said cases as he had lost them. But the said Court decided that the Appellant was entftled to payment of TZS 2,220,000/= being damages for not using his land the farm that was sold to the Respondent by public auction as per Mungaa Primary Court's order. It will also be recalled that the Appellant, hassüed the Respondent in the District Land and Housing Tribunal for Siñgida at Singida vide Misc. Land Application No. 109 of 2015 for bill of costs amounting to TZS 16,950,0001= he had allegedly incurred in the cases between him and the Respondent, including Land Case Appeal No. 51 of 2015. The Tribunal awarded him TZs, 270,000/= only as costs. 2 The Respondent was aggrieved by the Judgment of the Puma Primary Court that awarded the Appellant TZS 2,220,000/= as damages for loss of use of the Land that was sold to him by public auction so ordered by Mungaa Primary Court. He successfully appealed to the District Court of Singida vide Civil Appeal No. 2 of 2017 against the said Judgment, hence this appeal to the Court. In its decision as it quashed the trial Court's decision and setting it aside, the District Court was of the considered reasoning that the land was the cause for the trial court's order against the Respondent for payment of TZS 2,220,000/= to the Appellant legally belonged to the Respondent having bought it by public auction sanctioned by Mungaa Primary Court. In this appeal, the Appellant had three grounds of appeal as they can be so seen in the Petition of Appeal in which he basically takes issues with the District Court's decision of denying him the award of TZS 2,220,000/= as damages given by Puma Primary Court without assigning plausible reasons thereto. That, the District Court erred in law and fact by declaring the Respondent lawful purchaser of the land in dispute whilst the alleged sale of the said land to the Respondent had been nullified by the - trial Court. That, the learned Resident Magistrate persisted in hearing the appeal despite of his prayer that the said Magistrate recuse from the case. On 'the other hand the Respondent filed his Reply to Petition of Appeal, contesting the appeal and putting the Appellant to strict proof of his grounds of appeal. At the hearing of the appeal on •the 8th day of October, 2018 both parties appeared in person and adopted their pleadings to form part of their submission in the Court but they also made submissions in the Court alongside their pleadings namely, the Petition of Appeal and r Reply to Petition of Appeal respectively. The Appellant prayed the Court to allow the appeal, set aside the District Court's Judgment and uphold the trial Court's Judgment with costs. The Respondent prayed the Court to dismiss the appeal with costs for lack of merits. The Appellant insisted on the nature of the claim that it was for payment of damages not about ownership of the land in question. The court upon going through the record of the trial court and the District Court, is of the settled position that the land that has been the subject of the claim of payment of TZS 2,220,000/= as damages by the Appellant was sold to the Respondent by way of public auction that has been so sanctioned by Mungaa Primary Court. That, the Respondent paid TZS, 500,000/= as purchase price of the said land. The said sale had never so far been nullified by any court. The valuation Report of the lost revenue (Prosecution Exh."B") for the alleged non use of the said land by the Appellant as prepared by the Agricultural officer, one Paulo Munkhoma Augustine (PW2) saves nothing as the said land no longer belonged to the Appellant. The District Court, gave the reasons for quashing the trial court's decision and for the Resident Magistrate's non recusal from the case. The 4 Judgment of the District Court is very categorical on the reasons for its decision and for non recusal, contrary to the Appellant's allegations. The said. Court also reasoned that there had been no any nullification of the public auction through which the Appellant's land was sold to the Respondent. That being the case, the Respondent cannot be condemned to pay damages to the Appellant for occupation and use of his own legally purchased land. Ultimately, the Court upholds and confirms the District Court's.decision/ Judgment.as it dismisses this appeal for want of merit. The parties shall bear their own costs. JUDGE 10/12/2018 .5