Slagwara Qwaray vs Kassi Buu (PC Civil Appeal No. 53 of 1997) [1998] TZHC 2409 (30 July 1998)

IN THE HIGH COURr OF T,\NZANIA AT ARUSHA {PC) =· · CIVIL APPEAL No. 53 OF 1997 (From the decision of the District Court of &bati at in Civil AppeaJ. No.42/1995 SIJI.GW.ARA QWARAY •• • ••••••••••••• APPELLANT versus KASSI BUU ••••• • • •' •• • • •• • ••••.•• • RESPONDENT . J.U D GM ENT: :I J .J. !'llfWAWA, JUDGE . . Hi:$" matter is before this ccn.irt on secord appeal. It originates ·from the decisio of the Babati Primary Court in civil case No.19 of · 199.5 which gave judgment infavolir of the instant respondent(KASI BUU) . whc, had sued t.,!'l_e. appellant ( SLAGWARA QWARAY) over a. parcel of land estimated-1;4:>. be of the .stze of 25 x. 30 paces. The trial court upheld th~ respondent,! s ses. :;;sertion .that he is the lawful owner of the ••'• • •:M. • stiitland. . .f. It is _eommon ground that ;the District Court of Babati upheld the unanimous deision of the trial primary court that had supported the respondent is ownership's claim over the suitland. The. appellant has now come to this .court for te third attempt in this question to assert his jownership elaim over the suitland. This being the second appeal I find it pertinent.to reinterate that it is nc)./liri_te _principle if not a golden rule that on second appeal, the :ppeal · h;·;J·\he· court only _~n a point or points of law. Obviously, this position 'applies only where there ·are·· no misdirections or non-directions on the evidence by the first appellate court. In case where there ~e misdirections or non-directions on evidence, a ourt of recond appeal is entitled to lJok at the relevant evidence and make_ its own findings of fact. (see. D:P.P. V. JAFFARI KAWAWA (1981) T.L°it ·11f.9: at page 155 peF- NYALALI, CoJ). In the instant ease it is apparent that,the appellant is asserting;' that he had obtained judbment in his favour in respect of the same suitland ·in the District Court of Babati in Civil AppeaJ. No.4/1986 • ••••• 2//

( l .:- 2 Happily, the lucid judgment of the first appellate -0ourt puts it beyond doubt that what wa~ decided_in the said civil appeal No.9/86 is independent El:Ild has no bearing with the ·instant matter. In otherwords, the appellant can not vail himelf with the doctrine of res-judicata. s I have not foμnd_any misdirection or non-direction on the part of the first appellate court both on the evidence and lw to warrant this._ court i to depart from the principle: enunciated in the KAWJ'..WA'S case (supra),, I own impel;I.ep ___ Jq. dismiss -this--appeal.

• · Iri the light of the e@ fore going, for the reasons I have attempted to state, I hope at no more than reasonable length, •; I consider that the first appellate court was right in-aismi'ss°ihg the appellant's appeal.· Consequently, this appeal fails and s aordingly dismissed with the costs of this court and those below. It is so ordered • . 'J .J ~ MKWAWA JUDGE 30.7.98 · Delivered at: li.rusha in chambers this 30th day of .July, in the presence . . . of the parties who are present in person. J .J. MKWAWA JUDGE 30.7.98 I hereby certify this to be a true ~opy of the original. --._,,;-- JJM/hj .. =-- :::."':J Ag. DISTRICT REGISTRAR J.RUSHA