20170822 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA u (IN THE DISTRICT REGISTRY) AT MWANZA. MISC. LAND APPEAL No. 154 OF 2015 (Arising from Land Appeal No. 66 of 2008 of the District Land and Housing for Msoma/ originated from Land Dispute No/ 30 of 2007 at Etaro Ward Tribunal) NYABISE EKOKORO ................ ..................................... APPELLANT versus CLAVERY ETANG'ARE ............................................... RESPONDENT JUDGMENT 20TH July & 22ND August, 2017. J. A. DE-MELLO, J; The Ward Tribunal of Etaro had decided in favour of the Respondent Clavery Etang'are after receiving evidence and, visiting the suit land in dispute for ascertaining ownership at 'Locus in Qou'. This is what it held and I borrow from the last page the last paragraph; UAMUZI WA BARAZA: "Baada ya kusikiliza maelezo upande wa mdai na ushahidi wake, na upande wa mdaiwa na ushahidi wake, ndipo Baraza lilihamia k~en.ye eneo la mgogoro kuangalia tarehe 04/0"2008. Shamba h1lo hna upana wa hatua 130 x 99 na urefu h~tua 147 x 140. ' ~ 1 ~- -:. Mashariki !inapakana na shamba la Kirongo Mnyuri. Magharibi kune Magesa Mwoya. Kaskazini kuna shamba la Clavery Tang'are · (mdaiwa). Na K~sini kuna shamba la Nyabise Ekok~ro (Mdai). · Shahidi wa mdaiwa Chausiku Yusuph ambaye ni tumbo moja na mdai alipoapishwa alisema kuwa shamba hilo ni la mdaiwa ndiye anayelima siku zote. Pia Alloys Mwoya Byaro mjukuu wa Nyamukumwa ambaye ni babu wa mdai alipoapishwa alisema kuwa shamba hilo ni la mdaiwa Clavery Tang'are. Sehemu hiyo mdai hajawahi kulima. Hata shahidi wa mdai alisema kuwa babu wa mdai na babu wa mdaiwa hakuwahi kuona wangombania shamba hilo wakati wa uhai wao. Babu wa mdai Myamukumwa na babu wa mdaiwa Bwekibeki ni watu wa tumbo moja. Wamekufa wameshagawana shamba hilo kila mtu na lake. Kwa hiyo familia ya Nyamukumwa inatumia shamba l_ao mpaka ·sasa. Na familia ya Bwekibeki pia wanatumia shamba lao. Kwa hiyo kutokana na maelezo hayo, mdai katika shauri hili ameshindwa madai yake, na mdaiwa katika shauri hili ameshinda madai yake. Mdai arudishe gharama zote alizotuima ·mdaiwa katik 2 03 It .is quite apparent that, the Trial Tribunal analyzed and, evaluated of l,l witnesses and ended apportioning weight on the balance of probability in Civil matters, that gave the Respondent the right of ownership. Dissatisfied, the Appellant on a first Appeal, approached the District land and Housing Tribunal in Application No. 66 of 2008 in which Ilanga Trial C~air confirmed what the Trial Tribunal held as he stated; . f} "Having carefully studied the record of the proceedings, I have found that the evidence adduced by the Respondent at the Trial was watertight. .. That even the blood sister admitted that the suit plot belonged to the Respondent. That the suit-land boundaries are close to the Appellant shamba and one Alloyce Mwoya Byaro as well as Jumanne. Th~t when the ·Respondent's parent was still alive the Appellant did not institute any suit against ~he Respondent's family. For the foregoing reasons I choose to differ with my comrade Assessors a n ~ the Respondent as a. lawful owner of the suit land ... " . ~ _ _ _ · .. · · 3 ~· This being a second Appeal, I am mindful of the principle of law not to temper with the concurrent findings of the two lower Tribunals unless there is 'misapprehension of evidence~ miscarriage of justice and o~ violation of law or procedure. Many cases are in one with this and to mention a few are;· Amuratilan Domadu and Others vs. Al Jaliwald •Trading Zanzibar Hotel ..[1980] pages 31-35, Sylvanius Leornad Nguruwe vs. R ... and ... Isaya Mohamed !sack vs. Republic, Criminal Appeal No. 38 of 2008 (CAT) (Unreported) which held; " ... this being the second appeal, we have not had the advantage of seeing, hearing and assessing the demeanor of the prosecution and defence witnesses to justify interfering with the findings of the Trial Court on the credibility". A similar observation was in the case of Salum Mhando vs. Republic [1993] TLR 170 page 174 stating; " .•. On ·a second Appeal to this Court, we are· only supposed to deal with questions of law. But this approach rests on the premise that the findings of the facts are based on a correct appreciation of the evidence. If as in this c · 4 0 the substance, nature and quality of evidence, resulting in an unfair conviction, this Court must in the interest of justice intervene ... ". I -! ~ ·And that of Mbogo & Another vs. Shah [1'968] E.A. 93 the Court held I 1 that:- ! \ "Court of Appeal shouid not interfere with the exercise of discretion of a judge unless it dissatisfied that, he misdirected himself in some matter and, as a result arrived at a wrong decision or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of discretion and that as a result there has been misjustice ... ". In the Petition of Appeal the following are the grounds; 1. That, the learned Appellate Chairman and the Trial Tribunal erred in law and, fact for failure to evaluate and take into consideration the evidence of PW2 one Costantine Kimodoi wh<;,se evidence·was watertight. 2. That, both Trial and Appellate Tribunal erred. in law and, fact· for not observing that the Appellant had a right inherit her grandfathers land des fact that the Appellate Tribunal 5 admitted that facts and, that both parties appeared to be beneficiaries of the suit land. However, the matter was ever determined in my favour by the Bukwaya Primary court. 3. That, the Appellate Tribunal erred in ~aw and, fact to uphold the decision of the Trial Tribunal contained the evidence of Chausiku who turned hostile during the Trial proceeding who was subjects to disqualification to that effects. While this is the case, my perusal. from this same Court file record revealed the presence of High Court Miscellenious Land Appeal No. 73 of 2009 from the same District land & Housing Tribunal No. 66 of 2008 by the same parties, Nyabise Ekororo and Calvery Etang'are before Hon. Kalombola. In her findings and, based on ground 2 of the Appeal that of opinion Assessors not recorded andbased on section 24 of Cap 216, the Court found the irregularity for not recording the dissenting opinion of the Assessors thus wanting and highly irregular. This was on the 7th of October, . 2013. The whole proceedings and judgement of the Trail Tribunal was . declared a nullity and the matter ordered to be Re Tried De Novo. The matter having reached this same Court and, attended by a fellow senior Judge, renders my self ' F u n ~ ' lest I trade in dreadful waters. It apparent the order still pending was _not complied to with, the Appellant rushing into this same Court for a similar Appeal. The Appeal is with no merit and, is dismissed. Judge 22 nd August, 2017. 7