Misc

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 16873 OF 2024 (Arising From Land Appeal No. 7994 of 2024, Land Division) ALLY MDOLI MVUNGI........................................................................... APPLICANT VERSUS KLRK KIMARO........ .......................................................................... RESPONDENT RULING 3rd to 11th October, 2024 E.B. LUVANDA, J The Applicant above named is seeking this Court to certify that there is a point of law involved for determination by the Court of Appeal in the intended appeal against the judgment of this Court in Land Appeal No. 7994 of 2024 which emanate from Land Appeal No. 28 of 2022 Kisarawe District Land and Housing Tribunal, arising from Case No. 5 of 2021 Kiluvya Ward Tribunal. The Applicant herein was a looser at the Kiluvya Ward Tribunal where he was sued by the Respondent. The Applicant also was unsuccessful at the first appellate Tribunal and also knocked down at this Court. Now he is still determined to pursue a third appeal to the apex Court. It is common knowledge that appeal from the Ward Tribunal cannot lie to the apex Court unless the High Court certifies that a point of law is involved in the decision or order intended to be appealed. i At paragraph nine of the affidavit in support, the Applicant grounded that he intend to appeal to the apex Court on the following proposed grounds subject for certification: One, whether the participation of a member of Tribunal one Simon S. Urassa, at the commencement of the matter as member and then turned to be a witness to the case vitiates the whole Ward Tribunal proceedings and all subsequent appeals; Two, whether the participation of one Jonathan I. Juma who was not a valid member of the Ward Tribunal in the proceedings of the case vitiates the whole Ward Tribunal's proceedings and all subsequent appeals; Three, whether the judgment of the first appellate Tribunal was valid for want of an order of Honorable Chairperson directing the wise assessors sat with her to opine their opinions in writing; Four, whether the judgment of the first appellate Tribunal was invalid as it was made without first the opinion of the assessor were read over to the parties; Five, whether the Ward Tribunal had jurisdiction to try the suit. In the counter affidavit, the Respondent stated that the points and reasons for certification were ably and amply decided by this Court and the first appellate Tribunal. Mr. Juma Nassoro learned Counsel for the Applicant submitted that the above issues are point of law fit for determination by the Court of Appeal. He cited 2 regulation 19(2) of the Land Courts (District land and Housing Tribunal) Regulation, GN 174 (sic, 173) of 2003, Edna Adam Kibona vs Absolom Swebe (Shell), Civil Appeal No. 286 of 2017, CAT, for a proposition that the opinion of assessors was not read over to the parties before the first appellate Tribunal. The Respondent did not file a submission in reply. Essentially majority of these points for certification were determined by this Court or the first appellate Court. To start with ground number one pertaining to the participation of a member of Tribunal one Simon S. Urassa who alleged presided over the matter at the same time testified before the Ward Tribunal. This argument was made clear by the first appellate Tribunal which was privileged of reading the records of the Ward Tribunal. According to the first appellate Tribunal, the said Simon S. Urassa indeed testified as a witness, but did not sit to determine the matter. Therefore, there is no any conflict of interest which can be drawn from that angle. In that regard it cannot be said is a point worthy for consideration by the apex Court. Ground number two, that Jonathan I. Juma was not a valid member of the Ward Tribunal. Going by the judgment of Kiluvya Ward Tribunal at item seven, among the seven members who presided and voted for the decision, the name of the 3 alleged Jonathan I. Juma is totally missing. Therefore, this argument has no leg to peg on. Ground number three, that the learned Chairperson did not invite assessors to opine in writing. It is true that regulation 19(2) GN 173 of 2003 require assessors to give their opinion in writing. Herein the learned Chairperson indicated in his judgment that indeed assessors opined, only that he was in disagreement with the assessors' opinion. Therefore, I am not seeing any valid point to be certified for consideration by the superior Court. This also will take into board ground number four. Regarding the last ground that the Ward Tribunal had no jurisdiction to entertain the matter. This argument was considered by both the first appellate Tribunal and this Court, where it was ruled that it is the Applicant who tendered a sale agreement showing that he purchased the suit property for TZS 800,000. The Applicant did not produce any further evidence be it valuation report showing any development carried out on the suit land or that the suit property appreciated on its value. Therefore, the argument regarding jurisdiction remained bare words. In totality, among the five points proposed by the Applicant to be certified by this Court, I was unable to see any ground which is worthy for consideration by the Court of Appeal. 4 I proceed to dismiss the application. Only I spare the Applicant to pay costs. 5