MISC

IN THE HIGH COURT OF TANZANIA MUSOMA SUB REGISTRY AT MUSOMA MISC. LAND APPLICATION NO. 000027892 OF 2023 REFERENCE NO. 20231218000027892 (Arising from decision of Hon, Tarimo, PRM (Ext Jurisdiction) in Misc. Land Appeal No. 17 of2023) ROBERT KABOJA (Administrator of the Estate of the Late REVOCATUS NZOZA).................................. APPLICANT VERSUS MAREGESI BUNYINYIGA.............. ............................................. RESPONDENT RULING 17th & 25th September, 2024 M. L. KO MBA, J.: Applicant has filed chamber summons under section 47 (2) of the Land Disputes Courts Act, Cap 216 R.E 2019 (as amended) asking this court to certify the presence of point of law which has to involve the attention of the Court of Appeal. Application is supported by an affidavit sworn by the counsel for applicant, BAHATI KESIYATABU. From the record, the late Revocatus Nzoza and respondent were contesting over a piece of land located at Bunda stoo where the. matter was heard by Bunda Stoo Ward tribunal and decided in favour of the Page 1 of 7 respondent who later on in appeal, Land Appeal No. 103 of 2022, the District Land and Housing Tribunal for Mara overturn the decision of the trial tribunal. This time respondent was aggrieved and appealed to this court and the matter was assigned to V. A. Tarimo PRM with Extended jurisdiction who allowed the appeal and set aside decision of the DLHT. The appellant now is here with application for certification so that he can appeal to the higher court in this country. He fronted this court with chamber summons requesting certification on; (i) Whether the second appellate court was correct to hold that the respondent failed to prove his allegation to the required standard thereby shifting the burden ofproof (ii) Whether the second appellate court was right to uphold the decision of Bunda Stoo Ward Tribunal which is improperly constituted. (Hi) Whether the second appellate court was correct to invoke the oral testimony to add and alter the written terms of a contract. (iv) Whether the second appellate court was correct to hold that the respondent bought the disputed land from one Mama Mwanjati who had no power to sale the disputed land. During hearing, the applicant was represented by Mr. Bahati Yatabu while the respondent had legal service of Mr. Leonard Magwayega both being advocates. Page 2 of 7 It was counsel for the applicant who started to support his application by praying this court to adopt their affidavit and submitted that the second appellate court errored by shifting the burden of proof to appellant while he was not complainant as reflected at page 13 of the judgment. He went on saying that was contrary to section 110 of the Evidence Act, Cap 6. Arguing on the second point for certification Mr. Bahati said the second appellate court relied on oral testimony while there was a written contract and insisted that when the contract is on writing no further oral testimony is allowed to change the terms and argue me to read section 101 of Cap 6 which provides and insisted no admission of the oral testimony is required. The 3rd point was of the ownership of the property. It was his submission that the person who sold the land did not own it and therefore it was impossible to give what he did not possess. He prayed this court to find there is legal issue worth to be forwarded to the Court of Appeal for determination. Mr. Magwayega who represented respondent registered his position that all issues are facts and evidence and not points of law to be certified as all facts and evidence were tried by the trial court. He went on submitting that the issue of shifting burden of proof has no merit and Page 3 of 7 section 110 of cap 6 should not be applied because the matter was civil which its standard of proof is not strict as in criminal. It is to the balance of probability where both parties have the duty to prove as to whose property is. At 3rd point as raised in the affidavit, it was his submission that the said issue was determined by the lower court as there was evidence on that. However, he submitted that issue of a contract having the name of another person was a new thing as was not tried by the appellate court as required principally. He prayed this court to dismiss the application with costs. During rejoinder counsel Bahati explained that point of law can be raised after reading the facts then you know the shortcomings. He said Mr. Magwayega did not deny that second appellate court invoke oral testimony while there was a written contract, and also, he did not deny the shift of burden as submitted. Counsel insisted that the law is dear, contract has to be read as it is without oral testimony and that is point of law and it is where the center of the dispute is. He prayed the three argued points to be certified worth for determination by the Court of Appeal. Page 4 of 7 Having considered the application's records and the submission advanced by each counsel, the duty of this Court lies to consider whether or not this application is meritorious. It is the trite law, that if a person is not satisfied by the decision of one court has to appeal to the higher court. As this application traces it roots on land disputes which was previously handled at Ward Tribunal, section 47 (2) of Cap 216 (as amended) clearly provides for the right to appeal to the Court of Appeal upon proof of existence of point of law; 47 (2) Where an appeal to the Court ofAppeal originates from the Ward Tribunal, the appellant shall be required to seek for the Certificate from the High Court certifying that there is point of law involved in the appeal. First of all, I wish to state from the onset that this is an application for certification on point of law so that applicant may appeal to the Court of Appeal. This is not an appeal. In certifying, there must be point of law worth to be addressed by the Court of Appeal as per dictates of law as it is settled that the court certifying the point of law has to evaluate the proposed points of law and satisfy itself whether they are worth to be certified to the Court of Appeal. Under the law, the matter has to originate from Ward tribunal. See Dorina N, Mkumwa vs Edwin David Hamis, Civil Appeal No.53 of 2017) [2018] TZCA 221. Page 5 of 7 The matter at hand originated from Bunda Stoo Ward tribunal in Land Case No 01 of 2020. Applicant above named wanted to appeal to the Court of Appeal and he finds the need to file this application. As per dictates of law before he appeals to Court of Appeal, he need certification as he did. Whether this court certify exitance of point of law or not is another issue. Applicant had four issues and. three were submitted. The first issue is burden of proof and complained the second appellate court shift the burden to the other party. Proving the matter is done by evidence and therefore that cannot be point of law worth to be certified. Another issue raised by applicant is name of the owner of the disputed land as it appears in the contract versus the person who sold the said land. He complained that a person who sold possess no good title and therefore no title passed to the buyer. I read proceedings and judgment and find that was not an issue in the second appeal. The law is clear that what is certified to be a point of law worth to be determinable by the Court of Appeal is an error subsequently committed by the High Court, in this case the second appellate court. I have read grounds of appeal during the second appeal and I find non concerning names of owner and the seller. For that reason, this issue lacks qualification. Page 6 of 7 The last issue is existence of written contract and its terms and the analysis of oral testimony in qualifying terms of the contract. Mr. Bahati complained on this and cited section 101 of the Evidence Act. I have read the judgment and find there was contract and oral testimony. As I said am not determining an appeal and there I cannot analyse more, as doing that will amount to stepping into shoes of the appellate court. I find the last point is point of law which need attention of the Court of Appeal. For that reason, I certify it as prayed. In the end the application succeeds without costs. DATED at MUSOMA this 25th day of September, 2024. a M. L. KOMBA Judge Ruling delivered in chamber in the presence of applicant and respondent who both appeared in person. M. L. KOMBA Judge 25th September, 2024 Page 7 of 7