NGHOME BULUNGUTI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA MISC. APPLICATION NO. 22801 OF 2024 NG'HOME BULUNGUTI............................... .... APPLICANT

VERSUS CLEMENT MWENDESHA............................ RESPONDENT

RULING 20/12/2024 & 14/2/2025 ROBERT. J:- This is an application by the applicant, Ng'home Bulunguti, seeking certification of points of law to enable him to appeal to the Court of Appeal against the decision of this Court in PC Criminal Appeal No. 12 of 2023. The application is supported by an affidavit sworn by the applicant. The respondent, Clement Mwendesha, opposed the application through his counter-affidavit. The dispute originates from Criminal Case No. 2 of 2023 at Nyambiti Primary Court, where the respondent, Clement Mwendesha, was charged with contempt of court under section 114(l)(h) of the Penal Code. It was alleged that between 2009 and 2023, the respondent wrongfully retook possession of the land from the applicant, who had obtained judgment from i the Nyambiti Primary Court for the recovery of possession of the disputed land. The respondent was found guilty and sentenced to pay a fine of TZS 100,000/= or, in default, to serve a jail term of three (3) months. Aggrieved by the decision, the respondent appealed to the District Court of Kwimba in Criminal Appeal No. 10 of 2023, which upheld the Primary Court's decision on 30th May 2023. Dissatisfied, the respondent further appealed to this Court in PC Criminal Appeal No. 12 of 2023, where this Court allowed the appeal on the grounds that the applicant failed to establish that the land, which is the subject of the

alleged offence, was part of the 12 acres previously awarded to him by the Primary Court. Dissatisfied with the High Court's decision, the applicant, through his advocate, now seeks certification on the following points of law for determination by the Court of Appeal: 1. Whether it was correct for the 2nd appellate court to decide that there were no specific boundaries to show that the land which is the subject matter o f this case (Criminal Case No. 2/2023 at Nyambiti Primary Court) is the same which was being claimed by the applicant.

2. Whether the 2nd appellate court was correct in determining the issue o f boundaries, which ought to be dealt with by the land courts. 2 The hearing of this application proceeded by way of written submissions. In support of the application, counsel for the applicant, Ms. Ruth Mhingo, submitted on the first point of law that the High Court erred in determining the issue of boundaries in a criminal, arguing that the matter did not concern boundaries as they had been determined in 1998 when the applicant was awarded the 12 acres of land by the Court in a civil case. She referred to the case of Mohamed Al Laar Mar v. Fatuma Bakari & Asha Bakari, Civil Appeal No. 71 of 2012, which established that once a matter is determined by the court, it cannot be reopened as the court becomes functus officio. Regarding the second point of law, Ms. Mhingo argued that the case primarily concerns a land dispute, and since the dispute originated in 1998 when the Primary Court had jurisdiction over land matters, the boundary issues should have been determined by the original court. She contended that by addressing the issue of boundaries, the High Court introduced a new issue suo motu, denying the parties the right to be heard. In response, counsel for the respondent, Mr. Majura Jackson Kiboga, submitted that the issue raised by the applicant is purely factual and not a point of law. He cited the

case of Magige Nyamoyo Kisinja v. Merania 3 Mapambo Machiwa, Civil Appeal No. 87 of 2018, which established criteria for certifying points of law, including novelty, jurisdictional matters, and misinterpretation of the law. Mr. Kiboga argued that the High Court's decision was based on the applicant's failure to prove that the land in question was part of the 12 acres awarded to him. He maintained that the second appellate court did not determine boundaries but merely assessed the sufficiency of evidence presented by the applicant. Regarding the second point, Mr. Kiboga contended that the issue of boundaries was raised by the respondent at the appellate stage and dismissed. He was therefore surprised that the applicant has brought this as a point of law for determination while it was dismissed by the appellate Court having been raised by the respondent. He argued that the applicant failed to show how the High Court usurped the jurisdiction of the land courts, as it did not make a determination on the boundaries of the 12 acres of land but simply concluded that the applicant had not discharged his burden of proof by establishing that the piece of land which the respondent was occupying was within the boundaries of the 12 acres land awarded to the applicant. The main issue for determination is whether the points raised by the applicant qualify as points of law for determination by

the Court of Appeal under section 5(2)(c) of the Appellate Jurisdiction Act. The legal threshold for certifying a point of law is well established. In Magige Nyamoyo Kisinja v. Merania Mapambo Machiwa, Civil Appeal No. 87 of 2018, the Court of Appeal held that a point of law includes issues that are novel, jurisdictional, involve the misinterpretation of the law, or go to the root of the decision. This first point primarily involves the evaluation of evidence and factual findings made by the second appellate court. The second appellate Court deliberated on this issue when determining the third ground of appeal in PC Criminal Appeal No. 12 of 2023. The second appellate Court made a finding that parties in this case had a dispute on land measuring 12 acres before Nyambiti Primary Court which awarded the said land to the applicant. The applicant claimed that the respondent repossessed the said land and went on using it after it was awarded to the applicant by the Court. However, the 5 respondent did not dispute that the said land was awarded to the applicant but claimed that the land which he possesses is different from the 12 acres which were awarded to the applicant. Having examined the evidence on record, the second appellate Court decided that there was no sufficient evidence to establish that the land which constitute the offence charged belonged to the applicant. The Court

noted that the applicant did not specifically provide his boundaries and show the land allegedly repossessed by the respondent was within the said 12 acres awarded to the applicant. As a consequence, the Court decided that the case was not proved beyond reasonable doubt. Therefore, it is clear that, the second appellate court determined that the applicant's land boundaries were not sufficiently established to determine if the land the respondent was occupying was exactly part of the 12 acres land awarded to the applicant, leading to the conclusion that the criminal charge of contempt of court could not be sustained. This finding is rooted in factual evaluation and does not amount to a misapplication of legal principles. Therefore, the first point raised does not qualify as a point of law for certification. 6 The second point raises the question of whether the High Court erred in addressing boundary issues. This contention implies that the High Court wrongfully made a determination on the issue of land boundaries in a criminal matter. However, the record demonstrates that the High Court did not determine the boundary issue but rather found that the applicant had failed to meet the required burden of proof in a criminal matter having failed to establish that the land which the respondent occupied was within the boundaries of the 12 acres land awarded to him. While jurisdictional

issues can constitute points of law, the submissions and judgment in this matter do not reveal any legal misinterpretation or jurisdictional overreach by the High Court. Based on the foregoing analysis, the points raised by the applicant do not qualify as points of law warranting certification under section 5(2)(c) of the Appellate Jurisdiction Act. Accordingly, this application is hereby dismissed. No order as to costs.