maswe mwita vs onesphori nyakirirya 2020 tzhc 4173 11 december 2020

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA LAND APPEAL NO 98 OF 2020 MASWE MWITA APPELLANT VERSUS ONESPHORI NYAKISIRYA RESPONDENT (Arising from the Decision and Orders of the District Land and Housing Tribunal for Mara at Musoma, Hon. Kitungulu Chairman, in Land Appeal no 316 of 2019 dated 30.04.2020) JUDGEMENT 3Cfh November & 11th December2020 GALEBA, J. This is a second appeal in which Mr. Maswe Mwita (Mr. Mwita) is seeking to fault the decision of the District Land and Housing Tribunal at Musoma (the DLHT), in land appeal no 316 of 2019 having lost in favour of Mr. Onesphori Nyakisirya (Mr. Nyakisirya). The land in dispute is located at Kyankoma village in Butiama district and the dispute started in Nyamimange Ward Tribunal as civil case no 15 of 2019 in which Mr. Nyakisirya was alleging trespass. Mr. Mwita filed land appeal no 316 in the DLHT but he lost again. This appeal is against that second appeal. In this appeal the appellant raised 3 grounds of appeal namely that, first, the DLHT upheld a decision which was passed by a ward tribunal i which was not properly constituted, secondly that the DLHT dismissed the appellant's appeal without taking into consideration the fact that at the ward tribunal his evidence was not considered and thirdly that the Chairman of the DLHT did not give reasons why he did not agree with the opinion of assessors. First and foremost, this court must hint that, this appeal is a second appeal which is seeking to overturn two concurrent findings of two lower land courts. In that case the principle to be followed is that this court cannot easily disturb the concurrent findings of the trial court and the first appellate court unless it can be shown that their decisions were, demonstrably wrong or were clearly unreasonable or that they are a result of a complete misapprehension of the substance, nature or non-direction on the evidence or that there was a violation of some principle of law or of procedure or that there has been occasioned a miscarriage of justice. That was held in Wankuru Mwita v the Republic Criminal Appeal no 219 of 2012 (unreported). So that is what is going to guide this court in deciding this appeal. 2 In this matter Mr. Mwita was represented by Mr. Ostack Mligo learned advocate and Mr. Nyakisirya had the services of Mr. Herymick Chagula also leaned counsel and the appeal was argued by way of written submissions in which Mr. Mligo argued the 1st and the 2nd grounds together. Arguing the 1st ground of appeal Mr. Mligo submitted that the proceedings of the Ward Tribunal do not show that the members of the tribunal attended on each day. He submitted that the omission is fatal and cited two decisions of this court; Mwita Sasi v Sabinus Sabanya and Maro Chacha, miscellaneous land appeal no 126 of 2014 and Nuru Mpunda v Ally Abbasi, miscellaneous land appeal no 154 of 2019 (HC both unreported). Mr. Mligo submitted also that the Chairman of the DLHT did not give reasons why he did not agree with the opinion of assessors. In reply to the above submissions especially the 1st limb of having a coram of members of the ward tribunal on each day, counsel for the respondent did not answer anything expected of him. He neither agreed with Mr. Mligo nor did he disagree with him. He did not even distinguish the cases cited or agree with them. Anyhow, the case of Mwita Sasi v 3 Sabinus Sabanya (supra) does not state that the coram of members shall be recorded every day. The judgment provides that there must be members appointed to constitute a cora/nand resolve a dispute presented to the Ward Tribunal, which is not a complaint of Mr. Mligo. The issue is recording a coram on each day. According to Nuru Mpunda v Ally Abbasi, (supra) the requirement to have a coram of members of the tribunal is mandatory. The court was right in the circumstances, but why did that court have to be that tough? In that case according to the judgment, the names of the members of the ward tribunal of Kihonda in Morogoro were not there. It is possible although we are not told, that the names of the members were not indicated throughout the proceedings of the ward tribunal. However in this case, although there is no coram containing the names of members on each day but, in respect of each witness on each day, the members who were assigned the case are recorded as asking questions for clarifications. In other words, in this case, the members were in the coram, but the coram was not recorded. The members were in the coram, that is why they could ask questions to every witness in this case. To say it in fewer words; if it can be 4 demonstrated that the members of the tribunal attended the trial, and where that can be found on record, it is the view of this court that that is enough. In this case as stated above, first the names of members who participate in the trial are on record, secondly, to complement the first argument, even the appellant in this application is not complaining that the members were not there to try the matter thirdly; the appellant does not show that there is any miscourage of justice that ensured. In any event Nuru Mpunda v Ally Abbasi, (supra) case decided that the coram of members must be there in order to ascertain which members tried the matter. In that case it was impossible to ascertain members who participated in the case, but in this one, we can ascertain the members by their names; Emmanuel Matutu, Joshua Chacha, Stanslaus Nyankobenda and Bhoke Machuche. That means the case of Nuru Mpunda vAllyAbbasiis distinguishable. The 2nd limb of argument in respect of the 1st ground was that the substance of the opinion of assessors was not indicated on the record. In trying to reply to that ground, Mr. Herymick Chagula did not get the point. As for him, the complaint of the appellant was relating to the members of 5 the ward tribunal he also referred to as assessors. His response therefore is of no use. Although there was nothing from the respondent's side but still Mr. Mligo is not right in his argument that the substance of the opinion of the assessors was not recorded. In the judgment, the chairman did not read the acknowledgement only as allured by Mr. Mligo, but he stated that the opinion of assessors was that the matter be remitted to the trial tribunal for trial de novo. In any event the written opinion of assessors is on record in free handwritten text. With the above considerations the 1st ground of appeal is dismissed. The complaint in the 2nd ground of appeal was that the trial tribunal did not consider the evidence that was tendered by the appellant. This ground has serious issues; the issues are three; first, no ground was raised in the DLHT that required it to re-evaluate the evidence and come to its own decision as held in Deemay Daati and 3 others v Republic [2005] TLR 132 and secondly even if it was to be taken that the issue was raised at ground 3 in the DLHT, still that ground was not argued before the tribunal so that it could resolve it, which means the same was abandoned. As a matter of law and procedure, this court cannot set aside a 6 * judgment of any court below based on a ground that was not raised before it, argued and decided upon, see Hassan Bundala Swaga v Republic, Criminal Appeal no 416 of 2014 (CAT unreported). Thirdly, although the appellants counsel before that court is heard arguing that his client had very strong and credible evidence in the ward tribunal, but the appellant himself when submitting in supporting the appeal in the DLHT; this is what he submitted as his entire submission; T have appealed because the suit land is mine I was given the suit land by my father in 2010. My father is now dead. It is not true that the respondent is the owner of the suit land. The respondent is related to the chairman of the ward tribunal, a distant brother (kaka yake wa ukoo). My documents were not admitted by the ward tribunal. That is all. ' That means, although the advocate for the appellant is arguing that the latter had more credible evidence than the respondent, but the appellant himself informed the DLHT that he did not tender any documentary evidence in support of his case. In the circumstance the 2nd ground of appeal is misconceived. 7 Finally, although Mr. Mligo did not argue the 3rd ground which means, he abandoned it or dropped it, but Mr. Chagula for respondent replied to it. It is not clear what counsel was up. All in all, as both grounds argued have failed this appeal stands dismissed with no orders as to costs and parties have a right of appeal to the Court of Appeal. DATED at MUSOMA Tanzania this 11th December 2020 8