20140625 TZHC Dar es Salaam

• •I - IN THE HIGH COURT OF TANZANIA . (LAND DIVISION) AT DODOMA. LAND CASE APPEAL NO. 11 OF 2007. (From the Pecisjon of the District Land and Housing Tribunal of Dodoma District at · · · Dodoma in Land Case No. 74 of 2006). VICTORIA YO HANA KAZIGE .......................... ............... APPELLANT VERSUS AF RED MANALI KAZI GE ............................................ RESPONDENT JUDGMENT. 7 A.A.Nchimbi, J. This is an appeal originating from the District Land and Housing Tribunal in Land Case No. 74 of 2006. The appellant being dissatisfied with the decision of the District Land and Housing Tribunal for Dodoma complained on two grounds of appeal as follows: [ 1J. Thct, the Honourable Chairman of the District Land and " Housing Tribunal erred in law and in fact in ordering that the suit premises belongs to the respondent without considering the fact that the respondent did not compensate the appellant with regarq to the house demolished by the respondent. 1 0 "' [2]. That, the Honourable Chairman of the District Land and Housing Tribunal erred in. law and in fact in ordering that the applicant is entitled to only stay in the suit premises until her death without considering the rights of the other legal heirs of the appellant. In order to appreciate the events leading to this appeal, I think it is important to narrate, albeit briefly, its background. The appellant who was the applicant in the District Land and Housing Tribunal filed an aoplication against the respondent claiming for declaration that Q__ she is the lawful owner of the suit premises and for costs of the application. The appellant and respondet1t are related as mother and son. The respondent demolished her mother's house built by mud and promised to build for her a modern house. That the two have been living in that house for a longtime. However, sometime later the respondent required the appellant to vacate the suit premises claiming that the house belongs to him. After hearing the application the trial Tribunal ordered the respondent to vacate the suit premises to avoid family conflict. The appellant was ordered to (( \ continue living in the suit premises until her death. It was in those circumstances, the appellant was aggrieved by the said decision; hence this appeal. The appeal was argued by way of written submissions . . In regard to the first ground of appeal, the appellant contended that her and the respondent are mother and son respectively. In 1979 the appellant bought a piece of land through 2 Q • 11 Fimbo ya Mnyonge Ushirika wa Kujenga Nyumba", Plot No. 4 Block 28 situated at CHINANGAL EAST. She added that she has been in occupation of the said land with her children including the respondent for quite a long time . It is also stated that the appellant -built a two bed room and sitting room block house. In 1989, the respondent advised the appellant that he should built a big house, and this was agreed upon by both parties. On that agreement, in 1990 the respondent built a four bedroom house and that they continued to live together. It is also alleged in 1991, the (( respondent defrauded his mother telling her that they should ¥" temporarily transfer the title deed to his name so that he could secure a loan. The appellant, in good faith and innocently, again, consented to that arrangement. The dispute arose after the respondent had successfully transferred the title deed in his name. He did not honour the agreement. The matter was reported to the ward Tribunal where the respondent agreed to built a house for the appellant. In arguing the second ground of appeal the appellant CI contended that the District Land and Housing Tribunal erred in giving the appellant the right of accommodation in the suit premises until her death. It is argued that it w~s wrong to order so considering that the she was instead to agreed to the transfer of her property. Otherwise, she would have beer;-i still in the possession of the suit G premises, and the other children who still live in the same house would have been entitled to·the chore thereof. 3 C j - ... lt,is the appellant's submission that the appeal be allow~d with ~-::1 costs and the decision of the District Land and Housing Tribunal be ordered set aside. In reply the respondent denied all the allegations as submitted by the appellant. He added that he is the lawful owner of the suit plot. It is also argued that the allegation of building another house for the appellant is baseless because that was a family affair and although it got the approval of the local authority of the area. But when the respondent bought the house for the appellant instead (.1. she changed her mind and wanted to stay in the house in question up to the end of her life. Respondent has also denied the allegations of being inhuman, fraudulent and the claim that all the appellant's children live in the house in question. It is contended that some of children had been even before, owning their own houses except the youngest daughter'who is now 36 years old._ · Respondent has further contended that the appellant's rights er·· have not been affected in any way and that the process of the District Land and Housing Tribunal was neither abused nor did it limit its inherent powers by making orders which were not judicious. He reasoned although it did· not find the appellant to be the legal owner of the suit premises, it still ordere'd her to stay in it up to the end of her life, based on cultural and traditional grounds. Having gone through the records pertaining to this appeal as well as the grounds of appeal and the additional evidence taken by 4 0 ' ,. .. the District Land and Housing Tribunal to cover the issue of transfer of title in respect of the suit premises, it is my view the only issue for determination is whether the Tribunal was wrong to order that the suit premises belongs to the respondent. Upon examining the ·evidence on record, there is nothing - which shows that the suit premises belongs to the appellant as she claims. In her submission the appellant is claiming to be the lawful owner of the suit premises because she bought it in 1979 through the name of "Fimbo ya Mnyonge Ushirika wa Kujenga Nyumba". She (1. also contends that the respondent built four bedroom house in the suit premises. She further asserts. that the respondent defrauded her to transfer title deed to his name. I am quick to say that there is nothing to prove the appellant's allegations. In other words the appellant failed to prove that the suit premises belongs to her. It is the law that the one who alleges must prove. The appellant is just rely_ing on mere words. Moving to the second ground of appe.ol,-it is my s.e:ttled view ......_,_,_ ~ - - - - - - .M-<'~ • • • - - ((' \ that the appellant' did not comply with the procedure and rules governing appeals. _ _ _ _ _ ___.1_.. My reasons for the same is that the second ., ground of appeal raises a ·matter which was not pleaded in the trial_ ----------~ Tribunal. It was, there-fore, improper to raise this ~ r io :t.b§ ;ppellate court. The rationale behind this is thatthe matter raised ti need to be proved by evid~nce and the appellate court does not deal with matters of fresh evidencet. This being an appeal the law ' ' forbids the appellate court to deal with issues which were not 5 D . . canvassed or pleaded in the lower court. In the case of Farida Mbaraka and Another Vs Domina Kagaruki Civil Appeal No. 136 of 2006 (unreported) it was held and I quote: "It is the general principle that the appellate court can not consider or deal with the issues that were not canvassed, pleaded and raised at the lower court". In the light of the above decision, I am satisfied that the second ground of appeal lacks merit because of the fundamental flaws in the rules and procedure governing appeals. In the final analysis, I do not find any reason to depart from the decision of the trial Tribunal. I find the decision to be sound, such that, I will not disturb it. I am upholding the said decision. Consequently, I find the appeal to have no merit and is liable to be dismissed. That said, this appeal is dismissed with costs. A.A.Nchimbi, JUDGE. J. S. MGETTA, JUDGE SUCCESSOR IN OFFICE. 6 C· . . - DATE: 2~/6/~014 CORAM: RI. RUTTA DR APPELLANT: Ms. Beatrice Manali for Appellant .RESPONDENT: Mr. plolo Alfred. For Respondent C/c: A. Mwaka Court: Judgment delivered in the presence of the representative of the parties, Right of appeal explained. R.I.RUTTA DISTRICT REGIST 25/6/2014 ti