Link to pdf of original judgement
IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR
(CORAM: MROSO, J.A., MSOFFE, J.A., And KAJI, J.A)
CIVIL APPEAL NO. 100 OF 2004
BETWEEN
MAULID MAKAME ALI
APPELLANT
AND
KESI KHAMIS VUAI
RESPONDENT
(Appeal from the Judgment and Decree of the High Court for Zanzibar at Vuga)
(Kihio, J)
dated the 3rd day of April, 2003
in
Civil Appeal No. 7 of 2003
JUDGMENT OF THE COURT KAJI,J.A.:
In this appeal, the appellant MAULID MAKAME ALI is appealing against the decision of the High Court of Zanzibar (Kihio, J.) dated 3rd April, 2003 in Civil Appeal No. 7 of 2003. The matter originated from Mwera Primary Court where the respondent KESI KHAMIS VUAI unsuccessfully sued the appellant for recovery of a piece of land. The respondent unsuccessfully appealed to the District Court and later to the Regional Court. Still dissatisfied he successfully appealed to the High Court. The appellant was dissatisfied with the decision of the High Court; hence this appeal.
2
Since the matter originated from a Primary Court, an appeal can only lie to this Court with certificate by the High Court that a point of law is involved in the decision or order as provided for under Section 5 (2) (c) of the Appellate Jurisdiction Act. This provision provide as follows:
5. (2) (a)
(b)
(c)
No appeal shall lie against any decision or
order-(if LLribH-itgh'• Court in any proceedings
under Head (c) of Part III of the Magistrates
Courts Act 1963 (now 1984) unless the High
Court (jerUfUrb thai a-point of law is involved
in the decision or order/'
This prerequisite applies also in respect of appeals originating in Primary Courts in Zanzibar, as was held in the case of All Vuai Ali v. Suwedi Mzee Suwedi - Civil Appeal No. 38 of 1996 (unreported).
At the commencement of the hearing of the appeal it came to our knowledge that, the record, is not clear whether the appellant applied for certification of a point of law by the High Court, although the same was granted. We asked Mr. Mnkonje, learned counsel for
3
the appellant, to address us on this. Mr. Mnkonje was frank enough. He conceded outrightlythat he did not apply for certification of point of law because, in his view, under section 5 (2) (c) of the Act, it is the duty of the High Court to certify that a point of law is involved in the decision or order. However, he said that since the High Court issued the required certificate even if it was not applied for, this appeal is properly before the Court. The respondent who was not represented by an advocate had nothing useful to say on this.
We have carefully considered the learned counsel's submission on this. We.have also carefully gone through the record. What is clear from the record is that the appellant applied for leave to appeal to this Court under section 5 (1) (c) of the Act But in paragraph 4 of his affidavit accompanying his application he stated as follows:-
M. That there are very important points of law raised in
the judgment which heed determination of the Court
of Appeal as follows
"
He listed six points which in his view, through his advocate, were points of law worth consideration by the Court.
In his ruling the learned judge granted leave as applied for under section 5 (1) (c) of the Act. But he also considered the six points raised and was of the view that only two points were points of
\
lavV. The learned judge had this to say:
"I have gone through the points of law advanced by the learned counsel for the applicant, but I am not convinced points Nos 1, 2, 3 and 5 are points which fit for certification for determination by the Court of Appeal hecadj^ttensscHS wo^e not pleaded-and tested on evidence at the trial court. I therefore find that points Nos 1, 2, 3 and 5 advanced by the l^med counsel for the applicant are not fit for certification for determination by the Court of Appeal of Tanzania and I reject them.
However I find that two points of law are involved in the decision and they fit for certification for determination by the Court of Appeal of Tanzania. The two points of law which are certified to be determined by the Court of Appeal are:-(1) Whether there was any evidence
adduced to support and justify the
5
decisions of the courts below that the
applicant bought the "shamba" under
dispute from the respondent.
(2) Whether the applicant is entitled to
compensation for the improvements he
effected on the "shamba" under dispute
for the period he occupied it for
cultivation purposes only. Leave is
hereby given to the applicant on the two
points as demonstrated above
"
According to what was applied for by the applicant/appellant in his application and what was granted by the learned judge, it is apparent thatthe iearned judge knew what he was ctefog-with, that is, he was dealing with an application for leave to appeal. But it appears he vs^ ^so aware that leave alone w^ nui-^fHeogfc, and that there must also be a certificate on point of law. That is why, we think, he granted the same, although not applied for. The crucial issue is whether it was proper for the learned judge to issue the certificate which was not specifically applied for. Generally speaking a court will only grant a relief which has been applied for. But in the peculiar circumstances of this case where the applicant who had applied for leave to appeal had also raised some points which in his
view were points of law to be considered by the Court, we are satisfied that the learned judge was not wrong in certifying the two points which he believed to be points of law, although not specifically applied for. In that respect, since there is leave and certificate, we think that the requirement of section 5 (2) (c) of the Appellate Jurisdiction Act, 1979 were complied with and, therefore, we hold that the appeal is properly before us.
We ro^ turn to the merits of the appeal. The appellant's memorandum of appeal has the following grounds:-
1.
Tnatthe learned judge erred in law in~nat" considering whether there was any evidence adduced to support and justify the decision of the courts below that the appellant bought the "shamba" under dispute from the respondent.
2.
That the learned judge erred in law in not considering whether the appellant is entitled to compensation for the improvements he effected on the "shamba" under dispute for the period he occupied it for cultivation purposes only.
7
3. Generally the learned judge erred in law in not satisfying himself to the propriety of the proceedings to the injury of the appellant.
\ ,
N In arguing the first ground of appeal Mr. Mnkonje, learned counsel for the appellant, argued that there was ample evidence at the trial that the appellant purchased the shamba in dispute from Omar Kombo Mkadam and Vuai Rajabu Pandu (DW2) in 1987. By then the respondent was away. When the respondent returned in 1990- hechaHenged tn^^:?^t^ea^' with other dan members. The appellant had-to buy it for the second time by paying the respondent shs, 250,000/=. He-said that there was ample evidence to that effect at the trial from the appellant and his witnesses some of whum are the respondent's relatives. It was his submission that the ieamed judge should have concurred with the courts below on this.
In arguing the second ground of appeal the learned counsel stated that the learned judge erred in ordering the respondent to compensate the appellant for the improvements made basing on evaluation by a Government Valuer. He said that the learned judge should have ordered the compensation to be assessed according to market value as provided for under section 51 (1) of the Transfer of
8
Property Ordinance, Cap .150. He said that evaluation by a Government Valuer would result in a less amount to be paid than by market value which fluctuates according to demand.
\
,
In arguing the third ground of appeal the learned counsel stated that, since the respondent had testified that the land in dispute belonged to him and his brother jointly, under the circumstances the learned judge erred when he held that there was no nosssity of having a power of attorney from his brother without givrng:3iry reason for holding so.
The learned counsel also challenged the locus standi of the resporatert in instituting the suit. He said thHtrhe land in dispute belonged to the respondent's late father. After his death the respondent did not show any certificate that he was appointed the administrator of his father's estate or any cogent evidence that he inherited it. The learned counsel also challenged the procedure which was used in accepting the respondent's "Warka" whereby the record is not clear as to how it was accepted as exhibit.
On his part the respondent denied to have sold the land in dispute to the appellant. He said that, had he sold it to him he
9
should have issued him with a "Warka". There is none. He said
further that he inherited the land from his father and that there were
only two heirs, that is, himself and Vuai Khamis Vuai who later died \ without leaving a wife or child. The respondent conceded that the
appellant had been in occupation of the land for a considerable time
whereby he planted fruit trees some of which were already mature
when he came back to the village around 1990. However he
objected to evaluation of compensation based on market value on
the ground that such evatuHnnn is nanreify made by GovOTiment
Valuers.
The question whether tne respondent sold the land in dispute to the appellant is a matter of fact which is subject to proof by evidence. It is common ground that the appellant was the successful party in the Primary Court, District Court and Regional Court. Those courts were satisfied with the evidence available that the respondent sold the land in dispute to the appellant. It is common knowledge that a higher court will not normally interfere with a concurrent finding of fact of the courts below unless there are sufficient grounds.
10
In the instant case, the High Court interfered with the concurrent findings of fact of the courts below. The crucial issue is
whether there were sufficient grounds which justified the High Court
\
^interfering with the findings.
The High Court interfered with the concurrent findings of fact of the courts below for the following reasons:-One, that the sale agreement between the appellant and Omar Kombo Mkadam and Vuai Rajabu Pandu was doubtful in view of the dates shown thereat, and that the explanation on the ^ist i-epai icy in dates given by the appellant was not satisfactory. Two, that thersuirby the respondent was not time barred... Three, that the appellant failed to establish on balance of probability that he bought the shamba in dispute in view of some discrepancies in the testimony of the appellant's witnesses, especially Vuai Rajabu Pandu (DW2), Simai Kombo (DW3) and Asha Chungu Bandala (DW4).
Four, that it was wrong to hold that the respondent had no locus standi merely because he had no power of attorney from his co-owner Vuai Khamis Vuai.
