amosi manyama and others vs ms biosustain tanzania ltd 2023 tzhc 22931 24 november 2023

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA MISC. LAND CASE APPLICATION No. 85 OF 2022 (C/F Land Case Appeal No. 28 of2016, High Court at Dodoma, originating from the decision of the District Land and Housing Tribunal for Singida at Singida in Land Case No. 52 of2014

AMOSI MANYAMA

GODSON URIO

YUSUPHU SAID

MOSHI YUSUPHU

FARIDA OMARY

PETER FRANKY

ASHJA OMARY

OMARY ATHUMAN APPLICANTS

ISSA YUSUPHU

JUMANNE SALUMU N KIN DA

JUMANNE JUMA

HAMIS HANGO

MOHAMED RAMADHANI

JUMA KIBERITI

MOHAMED IBAD

VERSUS M/S BIOSUSTAIN TANZANIA LTD............ ........................... RESPONDENT Page 1 of 10

RULING Last Order: 12/10/2023 Judgment: 24/11/2023 MASABO, J.:- By a chamber summons filed under section 47(2) of the Land Disputes Courts Act, Cap 206 of 2019, the applicants have jointly moved this court praying that it be pleased to grant them a leave to appeal to the Court of Appeal of Tanzania against a judgment and decree of this court in Land Case Appeal No. 28 of 2022. Their application is accompanied by an affidavit deponed by Sostenes Peter Mselingwa who is identified as their counsel. From this affidavit and its accompanying documents it is deciphered that the applicants were respondents in Land Application No. 52 of 2014 the District Land and Housing Tribunal for Singida at Singida. The respondent had instituted the application suing them jointly for trespassing into his parcel of land identified as Plot 179 Block DD at Unyankhae area within Singida Municipality which he legally owned. On their party, the applicants refuted the allegation and asserted that they were not trespassers as they were occupying it for a long time having acquired the same in diverse dates between 1980 and 1990s. Having assessed the evidence before it, the trial tribunal was convinced that the respondent's evidence comprising of his oral testimony, a title deed of the suit plot and the testimonies of a Municipal Land Officer and a Land Surveyor, was heavier than the applicant's evidence and

consequently entered a judgment and decree in favour of the respondent. Page 2 of 10 The applicants were aggrieved. They appealed to this court in Land Case Appeal No. 28 of 2016. Their major complaint was that the trial court erred as it ignored their long-term occupation of the suit land it overlooked their customary ownership and ignored the fact that being long term occupants of the suit land they deserved a prompt and fair compensation. The appeal ended fruitlessly after it was decided in their disfavour. Aggrieved further, they now intend to appeal to the Court of Appeal. As per the deposition in paragraphs 4,5 and 6 of their affidavit, the intended appeal is meant to challenge the decision of this court for being erroneous as it upheld the decision of the trial tribunal in total disregard of the fact that the applicants were occupying the suit land uninterruptedly for a period of 12 years. Also, in upholding the decision of the trial tribunal this court ignored the fact that the applicants were entitled to prompt and fair compensation before being relocated from the land as they uninterruptedly occupied it for more than 12 years. The hearing of this application proceeded by way of written submissions. Both parties had representation. The applicants were represented by Mr. Sostenes Peter Mselingwa, learned Counsel and the respondents were represented by Mr. Godwin Benda,

learned counsel. Supporting the application, Mr. Mselingwa submitted that, this court wrongly upheld the decision of the trial tribunal without taking into account the fact that the applicants herein were in occupation and ownership of the suit premises for a long time as they acquired their title through customary land tenure offence, they have a customary right of occupancy which has the Page 3 of 10 same status as the granted right of occupancy as held in Charles Mushatshi vs. Nyamiyaga Village Council and Another, Land Case No 8 of 2016 [2020] TZHC 4156 TanzLII. Citing the case of National Agricultural and Food Corporation vs. Mulbadaw Village Council [1985] TLR 88, he submitted that as the applicants had proved their customary right of occupancy, the judgment and decree ought to have been in their favour. Further and relying on the case of Methusela Paul Nyagwaswa vs. Christopher Mbote Nyirabu [1985] TLR 103 he argued that it was lucidly wrong for the trial tribunal and this court to regard the applicants as squatters with no right while they credibly established their customary ownership of the same. They established that they were natives and that they customarily owned the suit land hence, there was no reason for the trial tribunal and this court to treat them as squatters and deny them their right of ownership and occupation. He added that It was similarly a lucid

error for this court to uphold the decision of the trial court without paying any attention to the issue of prompt and fair compensation to the applicants. By overlooking this fact the court offended the law and established practices as to the right to prompt and fair compensation. Concluding his submission, he invited this court to find merit in his application and allow it so that the applicants can lodge their appeal in the apex court. Page 4 of 10 In reply, Mr. Godwin Benda submitted that the three cited cases, that is, Charles Mushatshi vs. Nyamiyaga Village Council and Another, (supra), National Agricultural and Food Corporation vs. Mulbadaw Village Council (supra) and Methusela Paul Nyagwaswa vs. Christopher Mbote Nyirabu (supra) are distinguishable and inapplicable in the present case. Further and citing the decision of the Court of Appeal in Winford Mlagha vs. Daniel Paulo Mwasile & Others (Civil Application 112 of 2022) [2022] TZCA 642 TanzLII and in Gaudenccia Mzungu vs. IDM Mzumbe Civil Application No. 94 of 1994, CAT unreported, he submitted that for an application for leave to appeal to the Court of Appeal to succeed, the applicant must demonstrate that there are grounds worth consideration by the Court of Appeal. To the contrary, in the present application, such ground is missing as when the matter was before the trial court the respondent ably demonstrated

how he acquired the suit land in 2010 by way of purchase from Singida Cotton Ginnery and that prior to the purchase, the suit land was owned by Mr. Rajan. Having bought the same he completed all processes for transfer of the suit land and had the same transferred to him. He proceeded that, it is well on record that Mr. Rajan was the first owner of the suit land. It was granted to him as its first owner after the survey and allocation done by the Singida Municipality. This fact, he argued, was dully considered by the trial tribunal and the first appellate court and in the end, the respondent emerged successful as his evidence was credible compared to the applicants. He Page 5 of 10 concluded by praying that the application be dismissed with costs for want of merit. I have dispassionately considered the submissions by the parties herein and thoroughly read the appended record. Section 47(1) of the Land Disputes Courts Act Cap. 216 requires that appeals from this court to the Court of Appeal should be with the leave of this court. The facts to be considered in granting leave are not expressly stated but it is now settled that the discretionary powers to grant the leave can only be positively exercised if the court is satisfied that the grounds of appeal intended to be raised by the applicant if the leave is granted raise issues of general importance, a novel point of law, a prima

facie or an arguable appeal. Restating this principle in Jireys Nestory Mutalemwa vs. Ngorongoro Conservation Area Authority, Civil Application No. 154 of 2016 [2021] TZCA 9 TanzLII, the Court of Appeal while echoing its previous decisions, it held that: We acknowledge that the law does not expressly state the factors to be considered for the grant of leave to appeal to the Court. However, it is now accepted that the conditions were, lucidly, expounded by the Court in the case of British Broadcasting Corporation vs Eric Sikujua Ng'maryo, Civil Application No. 138 of 2004 (unreported). In that case, as cited in the case of Rutagatina C. L. vs. The Advocates Committee and Another, Civil Application No. 98 of 2010 (unreported), the Court stated that; Page 6 of 10 "Needless to say, leave to appeal is not automatic. It is within the discretion of the court to grant or refuse leave. The discretion must, however be Judiciously exercised and on the materials before the court. As a matter ofgeneral principle, leave to appeal will be granted where the grounds of appeal raise issues ofgeneral importance or a novel point of law or where the grounds show a prima facie or arguable appeal (see: Buckle v Holmes (1926) ALL ER. 90 at page 91). However, where the grounds of appeal are frivolous, vexatious or useless or hypothetical, no leave will be granted." Cementing this position in Safari

Mwazembe vs. Juma Fudisha (Civil Application 503 of 2021) [2022] TZCA 67, TanzLII the Court underlined that, leave cannot be granted if the intended appeal does not raise a novel point of law, a prima facie or arguable appeal or where the grounds of appeal are frivolous, vexatious or hypothetical. And, in the case of Winford Mlagha vs. Daniel Paulo Mwasile & Others (supra), the Court of Appeal held that, leave can only be granted where, prima facie, it appears that there are grounds of appeal which merit serious judicial consideration and not simply because there is an arguable appeal. Page 7 of 10 In the present application, the applicants have deponed that, if this application succeeds, the intended appeal to the Court of Appeal will have the following three grounds: first, the court overlooked the principle of adverse possession and, consequently, it failed to decide in the applicants favour although they adversely occupied the suit land uninterruptedly for more than 12 years. Second, the court overlooked the fact that the applicants customarily acquired and owned the suit land. Hence, they have a customary right of ownership which is not inferior to the granted right of occupancy held by the respondent. Third, the court overlooked the fact that the applicants being the lawful owners of the suit land were entitled to prompt and fair compensation. Accordingly, the issue for

my immediate attention is whether the three potential grounds of appeal above stated are of general importance, constitute novel points of law or show prima facie and arguable appeal. It is a trite law that in answering this question, it is not within the jurisdiction of this court to judge whether or not the grounds of the intended appeal are meritorious as that would entail usurping the powers of the apex court and prematurely determinating the appeal. As instructively expounded by the Court of Appeal in Hamis Mdida & Another vs The Registered Trustees of Islamic Foundation (Civil Appeal 132 of 2018) [2019] TZCA 358, TanzLII:- Page 8 of 10 .... an application for leave does not involve a rehearing of the matter for which leave to appeal is being sought. While the application for leave must state succinctly the factual or legal issues arising from the matter and demonstrate to the court that the proposed grounds of appeal merit an appeal, the court concerned should decide whether the said proposed grounds are prima facie worthy of the consideration of the Court of Appeal. The court would generally look at the judgment or ruling sought to be appealed against to assess whether there are arguable grounds meriting an appeal. Certainly, such a determination will be made at the end of the day after some deliberation but not an adjudication on the merits of the proposed

grounds. Thus, guided and while trading very carefully not to cross the line, I have carefully scrutinized the record placed before me. From this adventure, I am convinced that the applicants herein have passed the test above as the three grounds intended to be raised in the Court of Appeal if this application passes raise an arguable appeal arid merit the determination by the Court of Appeal. The principle of adverse possession and the interface between customary right of occupancy and granted right of occupancy are all pertinent points and deserve the consideration of the Court of Appeal. Through the intended appeal the apex court will have an opportunity to deliberate and finally decide whether the applicants herein were customarily owning the land and whether this court's finding that they have no good claim over it was justified. Page 9 of 10 In the foregoing of the above, the application is allowed. Costs are to be shared. DATED and DELIVERED at DODOMA this 24th day of November 2023 J.L. MASABO

JUDGE 24/11/2023 Page 10 of 10