MISC LAND APPLICATION NO

© THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OFTANZANIA AT KIGOMA (CORAM: HON. AUGUSTINE RWIZILE) MISCELLANEOUS LAND APPLICATION NO. 33 OF 2023 AMRI MBARUKU AND ANOTHERS COMPLAINANT/ APPELLANT/ APPLICANT I PLAINTIFF VERSUS HUSSEIN ALLY KAMFUNGE RESPONDENT/ DEFENDANT RULING Fly Notes Facts Ratio Decidendi 30th of August 2024 Hon. RWIZILE.: The applicants filed this application asking this court to certify a point of law for determination by the Court. The chamber summons that file it, is supported by an affidavit of the applicants sworn by Mr. Igatus Kagashe learned advocate who stood for them. It is therefore filed under section 47(3) of the Land Disputes Court Act, [Cap 2 I 6 of R.E.2019] and section 5(2)(c) of the Appellate Jurisdiction Act, [Cap 141 R.E 2019]. The aim of the applicants therefore is to challenge before the Court, the decision of this court in Land Appeal No. 3 of 2023, dated 31st May 2023. The records show that, the first applicant filed the case at Buzebazeba ward tribunal against the second applicant. He was claiming ownership of plot No. 21, Block B, beach plot, Burega area, Kigoma Municipal. The tribunal found for the first applicant. The judgment was delivered on 7th April 2017. The second applicant did not opt to appeal. He made an agreement with the first applicant and paid him TZS 15,000,000.00 as compensation. The matter as between the applicants ended there. The records show further that, while the case was at the ward tribunal the respondent appeared in his personal name of Hussein Ally Kamfunge and said that he had no interest in the land. He left to the primary court to process Page. 1 Hon. AUGUSTINE RWIZILE letters of administration. The tribunal could not wait for him. It heard the applicants and made its decision declaring the first applicant to be the owner of the land. Later, the respondent obtained letters of administration of the estate of his grandfather, the late Masuma Soud Mlombo and came back to the same tribunal. He found everything finalized as aforesaid. He moved to the District Land and Housing Tribunal (DLHT)to find a way to revise the proceedings. He filed an application seeking for extension of time within which to lodge the revision. It was dismissed. He moved to this court on two occasions and succeeded to get orders for extending the time. Arm ed with letters of administration and orders for extension of time from this court, the respondent approached the DLHT and filed an application for revision against the decision of the ward tribunal, where he lost. He was aggrieved and filed Land appeal No. 3 of 2023, (Mlacha J as he then was), on 31st May 2023 revised the proceedings and decisions of the tribunals, vacated them and set them aside. It was advised that whoever is interested may file a fresh suit. This decision is what aggrieved the applicants hence this application. The respondent at the hearing did not contest the applicant. He asked this court to grant it that they meet before their lordships and fight it last. At the hearing, Mr. Kagashe learned advocate asked this court, to grant this application based on paragraph 14 of the affidavit. True of his argument, upon consideration, if find merit in the application and I certify that below are points of law involved; - l. Whether compensation paid out of the court can be based to determine jurisdiction of the court. 2. Whether visiting locus in quo can be done at the appellate stage and if it was properly do/le as held in the case ofNizar MH. Radar vs Ghulamali Fazal [1980] TLR 29. There is no order as to costs. Dated at KIGOMA ZONE this 30th of August 2024. AUGUSTINE RWIZILE JUDGE OF THE IIlGH COURT Page.2 Hon. AUGUSTINE RWIZILE