yusufu mbayo vs catherine stanslaus another 2008 tzhc 200 14 march 2008

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA (PC) CIVIL APPEAL NO. 222 OF 2004 (Arising from the decision of the District Court of Sengerema at Sengerema in Civil Appeal No. 101/2004) YUSUFU MBAYO............................ APPELLANT Versus 1. CATHERINE STANSLAUS ' 2. REGINA ANDREW J RESPONDENTS JUDGEMENT 30/10/2007 & 14/3/2008 Sumari. 3. This is an appeal from the appellant Yusufu Mbayo who unsuccessfully sued the respondent for a claim of one kiosk (kibanda). Both primary and district court's decisions were infavour of the respondents. Appellant in trying to convince the district court that has right over the claimed kiosk, applied for a review seeking the district court to review its decision on the issue of signature of the witness of the plaintiff (Pw3) one David Werema, which review also failed. t i He has now appealed to this court, the same being the second appeal. m In his appeal, appellant has repeated almost what he complained of in the district court's appeal and application for review save for the 5th ground of appeal which brings in new matter challenging stats quo of the respondent. I am satisfied that the District Court Magistrate well scrutinized the evidence in its decision. This being a second appeal this court is required to entertain only points of law. As can be seen from the memorandum of appeal there is no point of law raised by appellant for this court to consider. What appellant has come up with as new matter is that respondents have produced no will of the deceased which according to him could have been weighed against the agreement which he tendered in the trial court. This issue was not raised at the trial, or first appeal. Neither in the review; so this court can hardly intertain the issue. The issue is therefore of no merit. During the hearing of this appeal appellant also submitted in addition to his memorandum of appeal that both lower court's decisions were not properly reached. That whole proceedings were unfairly conducted. How unfairly could not further explained. He further submitted that there were three cases involving the same land and building (kiosk). These were civil case No. 37/2000 at the primary court of Kazunzu, Criminal Case No.25i of 2000 at the same Primary court and Civil case No.57 of 2000 in the same court. i He is challenging the ruling of the district court in the application for review saying that the learned District Magistrate i erred in ruling out that Pw3 David Werema failed to ascertain his signature despite the fact that he presented an affidavit to ascertain his signature. The learned district court magistrate properly found 2 that the said witness did not ascertain his signature!' Another new matter which appellant came with in this appeal is that the respondents never proved that they were relatives of the deceased one Emmanuel Andrew. According to him, respondents ought to have come up with an exhibit to prove that they were administrators of the deceased's estate. He prays for his appeal to be allowed with costs. The 1st respondent in reply strongly objected that the said plot and kiosk had three disputes as submitted by appellant. She maintained that his son died on 1/5/2001 leaving behind no case and it was after a long period of one year when appellant came up with this case. That even during the burial ceremony there was announcement for those claiming any debt from the deceased but appellant could not identify himself as one. As for there relationship with the deceased respondents * wondered why this issue is coming up at that stage. She submitted that it is a new matter altogether as he never challenged the same in the trial court. She further submitted that appellant is the one who sued them as he knows well that 1st applicant is the mother of the deceased and 2nd respondent a sister of the deceased. If ever appellant thought they were not entitled as administrators of the deceased's estate why then could he sue them. i In addition to 1st respondent submission 2nd respondent submitted that she has never come across any claim over the same land or kiosk. Appellant failed to prove that the kiosk is his therefore prays for the appeal to be dismissed with costs. As I earlier pointed out, no point of law has been raised in this appeal by the appellant. As well submitted by respondents what appellant has come up with are all new issues which in law cannot be entertained by this court at this stage. The appeal is therefore devoid of merits. It is hereby dismissed with costs. A.N.M. Sumari Judge TO BE DELIVERED BY THE DISTRICT REGISTRAR Judge At Mwanza 14/3/2008