Meliani Hoya vs Nchembi Makenza (Civil Appeal No. 266 of 2022) [2024] TZCA 1271 (13 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: LILA. 3.A.. MURUKE. J-A- And MDEMU, 3.A.) CIVIL APPEAL NO. 266 OF 2022 MELIANI H O YA...............................................................................APPELLANT VERSUS NCHEMBI MAKENZA ................................................................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dodoma) (MansoorJU dated the 29th day of March, 2019 in Miscellaneous Land Application No. 24 of 2019 JUDGMENT OF THE COURT 3 rd & 13 th December, 2024 LILA. 3.A.: This is a third appeal. The appellant successfully instituted Land Application No. 6 of 2018 before Chikuyu Ward Tribunal in Manyoni District (the Tribunal) claiming for redemption of her house allegedly sold

• __ by one Bakari, her biological son to the respondent at TZS 300,000.00. Having lost, it took time for the respondent to challenge that decision before the District Land and Housing Tribunal for Manyoni at Manyoni. He preferred Revision Application No. 24 of 2019. He emerged a winner and the Tribunal's decision was somehow reversed. The Tribunal, as a

condition for redemption of the sold house, ordered that the respondent should be paid back by the appellant and her son the purchase price and also he has to be compensated for the unexhausted improvements he had effected on the land which comprised of two permanent houses. Aggrieved, the appellant preferred an appeal to the High Court in Land Appeal No. 86 of 2019. She lost and she is now before this Court determined to challenge that decision. Before the Tribunal, the appellant had, together with her witness one Ntinya Hoya, sought to establish that Bakari sold the house to the respondent when she was sick and had gone to Morogoro for treatment. On his part, the respondent, the sole witness, contended that he bought the house from Bakari who presented himself as the owner of the house. He tendered a sell agreement to that effect executed before the Village Executive Officer for Chikuyu Village which was to the effect that Bakari had sought permission from the office to dispose of the house and land atTZS 300,000.00. As it is a condition precedent that a party who is aggrieved by the High Court decision and wishing to access this Court by way of appeal, should, in terms of section 47(3) of the Land Disputes Courts Act (Cap 216) (the Act), has to seek and obtain a certificate on points law from the 2

High Court, the appellant sought and was granted such a certificate and the following purported points of law were certified: - 7 Whether the 2nd appellate Court was right in law in basing its decision wholly on the unanalysed (evidence). ii. Whether the letter by Village Executive O fficer was sufficient cogent evidence to prove applicant's son has good tittle than the applicant and later sold it to the respondent iii. Whether the High Court has powers to overturn the concurrent findings and arrive a t its own conclusion upon which its decision has rested." Upon being granted the certificate, the appellant has appealed to the Court advancing five (5) grounds of appeal, couched thus: - "1. That, the High Court erred in law by entertaining the appeal which emanated from misc. Land Appeal No. 24 o f 2019 which was filed out o f time in the D istrict Land and Housing Tribunal fo r Manyoni. 2. That, the High Court erred in law in entertaining Misc. Land application No. 24 o f 2019 which was sought through revision in the D istrict Land and Housing Tribunal contrary to the dictates o f the law.

3. That, High Court erred in law by failing to hold that the D istrict Land and Housing Tribunal was not properly moved to entertain Misc. Land application no. 24 o f 2019.
4. That, the High Court erred in law fo r holding in favour o f the respondent basing on the letter o f the Village Executive O fficer which was not cogent evidence to prove that the seller o f the disputed land had good tittle to pass to the buyer.
5. That, the High Court Judge erred in law for overturning the concurrent findings o f facts o f the two low er tribunals and arrive a t its own conclusion upon which its decision has rested. Both parties appeared in person before the Court and unrepresented to prosecute their side of the case. Upon our thorough examination of the grounds of appeal, two issues struck our minds. The first issue is whether all the grounds of appeal accords to the points of law certified by the High Court for the Court's consideration in terms of section 47(3) of the Act, and the second is whether those grounds of appeal which accords with the certified points of law, qualify to be points of law. 4

To both issues, when engaged to address the Court, both parties quite frankly pleaded ignorance of the law hence unable to assist the Court. They left it to the Court to decide. Each of them pleaded for the Court to do justice. It is trite that an appeal to this Court for matters emanating from the Ward Tribunal requires a certificate from the High Court certifying the points of law worth consideration by the Court. Section 47(3) of the Act, in unambiguous terms, sets that position. It provides: - "(3) Where an appeal to the Court o f Appeal originates from the Ward Tribunal, the appellant sh all be required to seek for the Certificate from the High Court certifying that there is point o f law involved in the appeal." Interpreting section 5(2)(c) of the appellate Jurisdiction Act (the AJA) which is couched in identical wordings to section 47(3) of the Act and sets the same requirement to seek and obtain a certificate onpoints of law for appeals to the Court originating from the PrimaryCourt, the Court has, occasionally, maintained that, given the manner the provision is couched, the certified points of law shall form the grounds of appeal before the Court. The Case of Simon Martin vs The D. P. P, Criminal

Appeal No. 457 of 2017 (unreported) is just one in which the Court stated that: - "The provisions o f section 5(2)(c) o f the AJA puts it dear that appeals to the Court from m atters originating from Prim ary Courts are not automatic. A party wishing to appeal has to seek and obtain from the High Court- 3 certificate certifying that there is a point o f law worth consideration by the Court. Jn that sense, a point o f law so certified forms the ground o f appeal before the Court. No more no less. That stance was cemented by the Court in the case ofH ajiM radi v. Linda Sadiki Rupia, C ivil Appeal No. 24 o f 2016 (unreported) where the appellant, apart from the sole certified point o f iawf presented another two grounds not certified by the High Court. The Court rejected those two grounds..." (emphasis added). Similarly, and specific to appeals originating from the Ward tribunal, as is the case herein, in the case of Yakobo Magoiga Gichere v. Peninah Yusuph, Civil Appeal No. 55 of 2017 (unreported), the Court insisted on the need to seek and obtain a certificate on points of law before a party prefers an appeal to the Court on a matter tracing its origin from the Ward Tribunal. 6

Based on the quoted legal position, in answer to the first issue, our recitation of the certified points of law and grounds of appeal lodged was not without a purpose. We meant to vividly show their mismatch. In the case of Yakobo Magoiga Gichere v. Peninah Yusuph (supra), the Court made this observation on grounds not certified by the High Court:- "7o underscore the significance o f the Certificate, we may add that where the High Court certifies points o f law in appeals originating from Ward Tribunals, the grounds o f appeal file d m ust substantially conform to the points o f law which the High Court has certified." In view of this position of the law, grounds 1, 2 and 3 of appeal are not only not among the certified points of law by the High Court, but also have no any bearing or semblance with points of law certified by the High Court. They cannot, therefore, form valid grounds of appeal before this Court. It should not be taken that, by our above finding, we are saying that grounds 1,2 and 3 of appeal are not points of law. In fact, they are points of law which we understand, ordinarly, they can be raised at any stage of the case even in appeals before the Court. For instance, ground 1 is a point of law on jurisdiction which in our decision in the case of Anwar Z. 7

Mohamedi v. Saidi Selemani Masuka, Civil Reference No. 18 of 1997 (unreported), we held that it can be raised at any stage of the proceedings even in appeals in the same manner like violations of law as complained in grounds 2 and 3. The point we wish to underscore here is that such points ought to have been placed before the High Court so that they could be certified for consideration by the Court. This is the import of section 47(3) of the Act. Simply stated, for any legal point or point of law to constitute a ground of appeal before the Court on a matter originating from the Ward Tribunal, it should pass the test of being certified as a point of law by the High Court. Grounds 1, 2 and 3 did not pass through that procedure. They, therefore, do not qualify to form grounds of appeal before this Court. The next issue now turns to be whether the remaining two grounds of appeal (grounds 4 and 5) constitutes points of law. To determine the issue, we find guidance from our earlier decisions in Hezron M. Nyachiya vs Tanzania Union of Industrial and Commercial Workers and Another, Civil Appeal No. 79 of 2001 cited in Haji Mradi vs Linda Rupia, Civil Appeal No.24 of 2016 (unreported). Relying on the former decision, in the latter case, respecting what are certified points of law envisaged under section 47(3) of the Act, the Court observed that: -

"In this regard, it is crucial on what comes by way o f an appeal to be certified points o f law and not fact. We say so because the factual m atters require evidence and are dealt with conclusively by the courts below. Thus, a point o f law should be free from the need to ascertain it by evidence. There can be no point o f law where there are facts that require proof by evidence. See Hezron M. Nyachiya v. Tanzania Union o f Industrial and commercial Workers and Another, C ivil Appeal No. 79 o f2001 (unreported)." Herein, we have, at this juncture, to resolve the validity of grounds 4 and 5 of appeal. They were, indeed, certified by the High Court as points of law for determination by the Court. However, the issue is whether they qualify to be points of law. It is not hard to know what a point of law is as the same may be inferred from what was lucidly elaborated in Mukisa Biscuit Manufacturing Co. Ltd v. West end distributors Ltd [1969] 1 EA 696 at page 701 when considering what a preliminary point of law is in these words: - "...It raises a pure point o f law which is argued on the assumption that a ll the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained..." 9

From the excerpt, it is obvious that a point of law certified by the High Court must address the issue of law only not evidential or factual. In grounds 4 of appeal the appellant questions the sufficiency of the letter by Village Executive Officer as proof of ownership of the suit land (house) by Bakari. It presupposes consideration of evidence proving ownership of the house. Similarly, ground 5 of appeal challenges a concurrent factual finding of the Ward Tribunal and District Land and Housing Tribunal. Both grounds invite the Court to reconsider the evidence so as to determine the propriety of the factual findings by the Ward Tribunal, District Land and Housing Tribunal and the High Court. They do not, therefore, qualify to be points of law envisaged under section 47(3) of the Act. The High Court wrongly certified them for consideration by the Court as grounds of appeal. A lesson to be learnt by the High Court is that certification of points of law is a serious business and should not be taken casually. The High Court has to ascertain the points presented before it for certification are really points of law. For reasons we have endeavoured to explain above, it is our finding that there are no points of law placed before the Court for consideration. Consequently, taking the same course we took in Ndamo Gamaya v. Luhende Seni Darushi (supra) where we found the grounds of appeal 10

wanting in compliance with the then section 47(2) now 47(3) of the Act and held the appeal incompetent before the Court and struck out the appeal, we hold that the appeal before us is incompetent and we strike it out. A party still seeking to appeal to the Court has to abide by the law. All the circumstances of the case considered, we order each party to bear its own costs. DATED at DODOMA this 12th day of December, 2024. S. A. LILA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 13th day of December 2024 in the presence of the Appellant and the Respondent both in persons is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 11