komu sasi komu vs makiko monge nyakusira 2020 tzhc 2403 31 august 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MUSOMA AT MUSOMA MISCELLANEOUS LAND CASE APPEAL NO 43 OF 2020 {Arising from the decision of the District Land and Housing Tribunal in Appeal No. 156/2019 and Originating FROM Butiama Ward Tribunal Land Application No. 146/2019) KOMU SASI KOMU...................................... APPELLANT Versus MAKIKO MONGE NYAKUSIRA............................ RESPONDENT JUDGMENT 21stJuly & 31stAugust, 2020 Kahyoza, J. Komu Sasi Komu and Makiko Monge Nyakusira are neighbours owning adjacent pierces of land. Both pierces of land are unsurveyed. Komu Sasi Komu sued Makiko Monge Nyakusira claiming that he trespassed to his land by crossing the border. Komu Sasi Komu sued Makiko Monge Nyakusira in the Ward tribunal. The ward tribunal decided in favour of Makiko Monge Nyakusira. Aggrieved, Komu Sasi Komu (the appellant) appealed to the District Land and Housing Tribunal (DLHT). The DLHT uphold the decision of the ward tribunal declaring Makiko Monge Nyakusira (the respondent) owner of the disputed land. Dissatisfied still, Komu Sasi Komu appealed to this court raising 1 four grounds of appeal. The first and second grounds of appeal faulted the DLHT for failure to hold that the proceedings and the judgment of ward tribunal a nullity for failure to record the corum of the members and to prepare and deliver a judgment per the law, respectively. The appellant alleged in the third and fourth grounds of appeal that the DLHT erred by not holding that the appellant purchased the disputed land in 2004 and that the dispute over land between the parties was amicably settled. The respondent was represented by Mr. Makowe learned advocate. The appellant fended for himself. There basically two issues from the four ground of appeal as follows- 1. Are the proceedings and judgment of the ward tribunal a nullity for failure to properly record the corum or write a judgment as per the law? 2. Did the ward tribunal fail to consider the amicable settlement? Parties were given an opportunity to argue their appeal orally. The appellant argued generally that respondent uprooted the sisal plantations, which marked the boundary. He contended that in 2013 the respondent trespassed into his land the hamlet chairman resolved the dispute amicably. He contended that the respondent encroached again in 2018. He prayed the boundary to be maintained. - The respondent's advocate Mr. Makowe opposed the appeal vehemently. He submitted that the appeal has no merit. He added that the respondent's evidence and the evidence of Mr. Amos M. Kuka 2 depicted that the appellant trespassed to the respondent's land and not the opposite. Mr. Makowe contended that the Mr. Amos M. Kuka was a person who sold land to the appellant. The respondent's advocate submitted further that there was ample evidence given on the date the ward tribunal visited the locus in quo revealing that the appellant's claim was misplaced. In his rejoinder, appellant contended that the tribunal was biased as one of its members was related to the respondent. He mentioned that person as Mr. Majani. He contended Mr. Majani marries to the respondent's step daughter. Countering the issue of the ward tribunal being biased, Mr. Makowe averred that the appellant did not complain to ward tribunal or to the DLHT. He raised that issue for the first time before this Court. Was the ward tribunal biased? I commence with the issue whether the ward tribunal was biased. The appellant contended that the ward tribunal was biased as one of its members was related to the respondent. The respondent's advocate contended that the allegation was baseless as it was not raised before the ward tribunal or the DLHT. I am in total agreement with the respondent's advocate that the allegation is baseless. The appellant had chances to object before the ward tribunal commenced the hearing that one of its members would do not do justice. The appellant kept silent. The appellant had .another opportunity to complain to the DLHT when he appealed, again he muted. He has raised the allegation to this Court. It is settled that a second appellate court should not entertain matters not raised before 3 the trial court or the first appellate court. See the case of Farida and Another v. Domina Kagaruki, Civil Appeal No. 136/2006 (CAT Unreported), where the Court of Appeal held that- "It is the general principle that the appellate court cannot consider or deal with issues that were not canvassed, pleaded and not raised at the lower court." The appellant never raised the issue of impartiality before the tribunal or before the district land. He is trying to impress on this Court that the ward tribunal decided against him because it was biased. I am unable to buy the submission. Had the ward tribunal been impartial, the appellant would have complained immediately to the district land and housing tribunal. I find no merit in the complaint. I dismiss it. Are the proceedings and judgment of the ward tribunal a nullity for failure to properly record the corum or write a judgment as per the law? The appellant faulted the DLHT, in the first and second grounds of appeal, for failure to hold that the proceedings and the judgment of ward tribunal were a nullity for failure to record the corum of the members and to prepare and deliver a judgment as the law respectively. The appellant did not substantiate his complaint during the hearing of the appeal nor make a reference to the grounds of appeal. He might have relinquished them. I surveyed record of the ward tribunal, made a conclusion, like the DLHT, that the appellant's complaint is baseless. The ward tribunal prepared and delivered its judgment. Its judgment is one of the best 4 judgments of at the level of the ward tribunals I have so far seen. The judgment briefly explains the nature of the dispute, summarized the evidence given during the hearing and the evidence collected when the ward tribunal visited of the locus in quo. Further, the judgment contains the opinion of the four members of the war tribunal. The judgment has reasons for its decision. A part of that judgment reads- " Maoni ya wazee wa Baraza waliotoa maoni ni wazee wanne. Wote kwa pamoja katika maoni yao wanampatia ushindi mdaiwa kwa sababu, mdai haujui mwisho wa eneo lake linapofikia kwani mipaka aliyoionyesha inaingia kwenye eneo la mdaiwa kama mita sita (6) kwani siku Baraza HHpohamia kwenye eneo la mgogoro kuwa kwa juu kuna mpaka wa zamani lipo katani hata muuzaji alie, muuzia mdai alisema mdai hafiki anapo ng'ang'ania yeye hajamuuzia hadi hapo. Kwa sababu hizo zinatusababishia sisi kumpatia mdaiwa ushindi." I find no reason at all, to fault the ward tribunal's judgment. I repeat it one of the best judgment at the level of the ward tribunal I have so far seen. The appellant complained that the ward tribunal's proceedings were a nullity for not disclosing the corum of the members of the tribunal. The DHLT considered the appellant's complaint and held that ”Having perused the proceedings of the ward tribunal I found out nothing wrong in the proceedings of the ward tribunal, four members sat and determined the matter, namely Majani Ngingo, Magreth Kyanzi, William Zeure and Ester Wambura and all signed.” I have nothing to add. 5 In the end, I find the first and second grounds of appeal meritless and I dismiss them. Did the ward tribunal fail to consider the amicable settlement? The appellant complained to DLHT and to this Court that the ward tribunal disregarded the amical settlement reached in 2013. It is undisputed that the appellant's dispute was over the boundary. The appellant did not go to the ward tribunal to enforce an amicable settlement reached between him and the respondent. The ward tribunal summarized the appellant's claim as follows- "Mimi Komu Sasi nam/alamikia Ndugu Monge Nyakusira kwa kosa la kuvamia eneo la shamba langu a baadhi ya mipaka ya katani upande wa Mashariki ameng'oa katani tatu (3) bila ridhaa yangu." The ward tribunal determined the dispute over the boundary. It found the appellant's claim that the respondent invaded his land unsubstantiated. The DLHT upheld the decision of the ward tribunal. Mr. Makowe, the respondent's advocate requested this Court to warn itself before interfering with the findings of two tribunals on facts. It is trite law that where there are concurrent findings of facts by two courts, the second appellate court should not disturb the findings, unless, it is clearly shown that there has been a misapprehension of evidencing a miscarriage of justice or violation of some principle of law or procedure. (See Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores Vs. A.H Jariwalla tla Zanzibar Hotel [1980] T.L.R 31.). It is undisputed fact that both tribunals, in instant case, 6 found for the respondent that the disputed land belonged to him. I examined the evidence on record and formed an opinion that I cannot fault the two tribunals, for the following reasons: one, there is unshakable evidence from Mr. Amosi Magagayo Kuka who proved not on the balance of probability but beyond all reasonable doubt that the disputed land (the alleged six paces land) belonged to the respondent. Mr. Amosi Magagayo Kuka is the person who sold the land to the appellant. The appellant cannot, by any standard, know the boundary better than Mr. Amosi Magagayo Kuka who passed title to him; Two, there is evidence from the parties' neighbours and two hamlet chairmen, that is the sitting and outgoing, that the appellant is a trespasser to the disputed land. Had there been an amicable settlement, the hamlet chairmen would have known it and the appellant ought to have applied to enforce it, instead of instituting a fresh claim for trespass. I find the third and fourth grounds of appeal baseless and dismiss them. Finally, I find the appeal meritless and dismiss it with costs. I uphold the decision of the two tribunals below, that the respondent is the legal owner of the disputed land. It is ordered accordingly. J. R. Kahyoza JUDGE 31/8/2020 Court: Judgment delivered in the absence of the parties with leave of absence. The aggrieved party may appeal to the Court of Appeal of Tanzania by lodging a notice of appeal within 30 days and applying for a certificate from this Court that there is a point of law involved in the pending appeal. B/CTenga present. J. R. Kahyoza JUDGE 31/8/2020 8