nyabise ekokoro nyamkumwa vs clavery etangare 2020 tzhc 2551 25 september 2020

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA LAND APPEAL NO 60 OF 2020 NYABISE EKOKORO NYAMKUMWA APPELLANT VERSUS CLAVERY ETANG’ARE RESPONDENT /Arising from the decision and orders of the district land and housing tribunal for Mara at Musoma, Hon. Kifungulu Chairperson, in land appeal no. 177 of 2019 dated 16.03.2020) JUDGEMENT Dates; 13th August & 25th September 2020 GALEBA, J. This is a second appeal, following MS. NYABISE EKOKORO NYAMKUMWA consistently losing in favour of her adversary, MR. CLAVERY ETANG’ARE not only before Nyegina ward tribunal (the trial tribunal) in civil case no 14 of 2018 but also in the district land and housing tribunal (the DLHT) in land appeal no 177 Of 2019. Moreover, previous to this appeal and before the proceedings in the two tribunals below, MS. EKOKORO had lost three times in favour of MR. ETANG’ARE. She had lost civil case no 30 of 2007 before Etaro ward tribunal followed by a dismissal of land appeal no 66 of 2008 by the DLHT. Her further appeal to this court, Hon. Kalombola J (as she then was) was struck out on 07.10.2013 with orders that the matter be tried de novo. i All along the dispute between the parties has been over a 4-acre piece of land located at Rwamugune hamlet Mkirira village within Musoma district in Mara region. MS. EKOKORO’s account of ownership of the land is that, in 1967 the land in dispute which had been seized by a person called MSOMI was recovered back and its ownership vested in her clan. In the year 2000 she started using it but from around that time the land has been in dispute between her and MR. ETANG’ARE. As for MR. ETANG’ARE, his position was that the land was previously being owned by his father, ETANG’ARE, who had inherited it from his father called BHWEKIBHWEKI. The latter was the grandfather of MR. ETANG’ARE, a party to this appeal. His evidence was that when his father (ETANG’ARE) died he inherited the land. So his submission in the trial tribunal was that the land was his lawful property. As indicate above, MS. EKOKORO’s case in the trial tribunal was dismissed and her further appeal to the DLHT was dismissed as well. She was aggrieved and preferred this appeal in which she raised 4 grounds. The complaints in her grounds of appeal are; first that the DLHT erred when it entertained the matter against MR. ETANG’ARE, whereas the latter had no locus standi. Secondly, that the DLHT erred in law when it held MR. ETANG’ARE’s evidence had more weight than hers while she had tendered a copy of the judgment of Bukwaya primary court in civil case no 12 of 1995 where she had won. Thirdly that the DLHT erred when it disregarded the opinion of 2 assessors who had opined in her favor and fourthly, that the DLHT erred tor reaching a decision without recording clearly the opinion ot it's assessors. In arguing the 1st ground ot appeal the appellant who was appearing in person, submitted that in 1995 she had tiled civil case no 12 of 1995 in Bukwaya primary court and in that case, it was decided that the land was the lawful property of the NYAMKUMWA and LUBAKA clans. She submitted that MR. ETANG’ARE does not belong to either of the two clans that is why he does not have locus standi in the proceedings. In response to the submissions, Mr. Baraka Makowe learned advocate for MR. ETANG’ARE submitted that the on,e who was commencing all the proceedings was MS. EKOKORO. Adding that if she knew that MR. ETANG’ARE had no locus standi she should have sued a proper party and left MR. ETANG’ARE alone. Resolving this ground will not take much effort. MS. EKOKORO told the court that civil case no 12 of 1995 was filed by her against a person called EMMANUEL KYABWI. Her victory if any was as against EMMANUEL KYABWI and not MR. ETANG’ARE, who was not a party to those proceedings. That is one; secondly, as submitted by Mr. Makowe, the proceedings in the ward tribunal and even in all appeals, the party commencing them has always been MS. EKOKORO. That is to say, if MR. ETANG’ARE had no locus standi in any such proceedings, the offender and a party to blame is MS. EKOKORO for joining him in the proceedings that he is not 3- concerned with. It was MS. EKOKORO who did not sue a proper party. In the circumstances, the 1st ground of appeal has no merit and the same is dismissed. The complaint in the 2nd ground of appeal was that MS. EKOKORO having tendered a judgment of Bukwaya primary court in civil case no 12 of 1995, the DLHT erred when it held that MR. ETANG’ARE’s evidence had more weight than hers. In supporting this ground, MS. EKOKORO submitted that the evidence in favour of MR. ETANG’ARE was tendered by her own relatives including her elder sister but the relatives of MR. ETANG’ARE refused to go to the tribunal to testify. In reply to the submission Mr. Makowe, submitted that the judgment in civil case no 12 of 1995 was not tendered in the trial tribunal and that even if the same was to be tendered MR. ETANG’ARE was not a party to that case in the primary court of Bukwaya and that parties in that case were MS. EKOKORO and EMMANUEL KYABWI. Mr. Makowe added that where there are concurrent decisions of two lower courts, the appellate court is not mandated to interfere unless there are serious issues relating to the evidence. The 2nd ground is self-defeating. The ground is to MS. EKOKORO’s own disadvantage because her own family members came to the ward tribunal and testified that the land does not belong to their clan or family or even to MS. EKOKORO, their sister. They stated that the land is the lawful property of MR. ETANG’ARE, to whom they are not related. This evidence was strong in the trial tribunal and the DLHT 4 had no reason to disbelieve it. This court has no basis to hold a different view either. As submitted by Mr. Makowe, this court cannot overturn two concurrent decisions unless there was complete misapprehension of the substance, nature and quality of the evidence resulting in an unfair decision see Wankuru Mwita Versus the Republic Criminal Appeal No 219 of 2012 (unreported) where it was held that; “...The law well is settled that on second appeal, the court will not readily disturb the concurrent findings of the facts by the trial court and the first appellate court unless if can be shown that they are perverse, demonstrably wrong or clearly unreasonable or are a result of a complete misapprehension of the substance, nature or non-direcfion on the evidence; a violation of some principle of law or procedure or have occasioned a miscarriage of justice." Other cases on the same matter include Salum Mhando Versus R [1993] TLR 170 and Omari Mohamed China and 3 Others Versus the Republic Criminal Appeal No 230 Of 2004 (unreported). In this case there was nothing like the above. In the circumstances, I am satisfied that the 2nd ground of appeal, like the 1st, has no merit and the same is dismissed. The complaint in the 3rd ground of appeal was that the DLHT erred legally because the chairman did not give reasons why he differed with the opinion of assessors in his decision. In reply to this ground Mr. Makowe submitted that the reason of the chairman for departing from the opinion given to him by assessors is contained at pages 3 and 4 of the judgment. It is my view that, this ground raises an issue of mixed law and fact. It is an issue of law because section 24 of the Land Disputes Court Act [Cap 216 RE 2019] (the LDCA) provides that “In reaching decisions the Chairman shall take into account the opinion of the assessors but shall not be bound by it, except that the Chairman shall in the judgment give reasons for differing with such opinion”. The issue is also of fact, because, in order to agree or disagree with the ground raised, I will have to visit the judgment of the DLHT and see whether the reasons for differing with the opinion of assessors are recorded. According to the judgment, the opinion of assessors was that the trial tribunal was not properly constituted and therefore its decision was irregular. In differing with that opinion, at page 5, the chairman stated that the ward tribunal was properly constituted and he listed the members who sat to decide the matter in that tribunal. That was his reason to differ with the opinion of assessors. In the circumstances, the 3rd ground of appeal is dismissed because the chairman gave his reason for differing with the opinion he was given. In the 4th ground of appeal MS. EKOKORO, was challenging the decision of the DLHT because the chairman did not properly record the opinion of assessors in his judgment. In reply Mr. Makowe submitted that recording the opinion of assessors in the judgment or in the proceedings is not a legal requirement and that in not recording the opinion in either, the chairman breached no law. 6 I hove gone through the judgment of the DLHTZ and at page 3 of the judgment of the tribunal, this is what the DLHT stated; "The assessors are of a unanimous opinion that the ward tribunal was improperly constituted and that the proceedings of the Ward Tribunal are irregular." In this case, although the chairman did not record the whole opinion of assessors, but at least he recorded its substance. So both MS. EKOKORO and Mr. Makowe are wrong in their submission that the chairman did not record any opinion in his judgment. For this reason I find the 4th ground of appeal without merit and I dismiss it. Finally, as none of the grounds of appeal has been upheld, this appeal is dismissed with costs for want of merit. DATED at MUSOMA this 25th September 2020 Z. N. Galeba JUDGE 25.09.2020 Court; THIS JUDGMENT has been delivered before Z. N. Galeba JUDGE, today the 25th September 2020 in the absence of parties but with leave not to attend. Mr. Jovian Katundu, RMA is present. A party aggrieve has a right of appeal, to the Court of Appeal of Tanzania after obtaining a certificate under the law to appeal.