atibu mohamed kitutu 9 others vs mohamed ally 32 others 2021 tzhclandd 6859 6 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION No.154 OF 2021 (Arising from the Judgement and Decree of the High Court Land Division in Land Appeal No. 233 of 2019 dated 26/02/2021) ATIBU MOHAMED KITUTU 1^ APPLICANT SAID MOHAMED MUUNILWA 2^° APPLICANT ALLY MUUNILWA 3^° APPLICANT ABDALLAH MKETO APPLICANT ATIBU MOHAMED MUUNILWA 5^" APPLICANT MUSA MOHAMED MUUNILWA G^^APPLICANT RAJABU MUSA MUUNILWA 7™ APPLICANT RAMAZANI OMARI MBOMBWE 8™ APPLICANT JAMAL HATIBU MUUNILA 9^" APPLICANT OMARI HAMISI MSEKETU 10™ APPLICANT VERSUS MOHAMED ALLY isr RESPONDENT BWANA LIPALA 2^° RESPONDENT BWANA LUKOTA 3^° RESPONDENT SUDI MTOPA 4™ RESPONDENT BWANA ALLY MTUGUMWE 5^" RESPONDENT BWANA NYARUANDA 6™ RESPONDENT NURUDINI UPONDA ..7™ RESPONDENT SALEHE NDEKIO 8™ RESPONDENT BWANA MKOMAKULINGA 9^" RESPONDENT KASSIM KILINDO 10™ RESPONDENT SALUMU NANDAJA 11™ RESPONDENT KAPOLO MUBA 12™ RESPONDENT BITIALLY MAGUNGA 13™ RESPONDENT BWANA MCHAYA 14™ RESPONDENT BWANA NGUNYWANE 15™ RESPONDENT OMARI TINDWA 16™ RESPONDENT BWANA NGOBO 17™ RESPONDENT BWANA NDEMBO 18™ RESPONDENT MAMA KOBA 19™ RESPONDENT BWANA ISSA....... 20™ RESPONDENT ISSA LUKUTA 21^ RESPONDENT BWANA KALUNGUYEYE 22"^° RESPONDENT BWANA SHIJA MABAYA... 23"*° RESPONDENT MZEE MOHAMED 24™ RESPONDENT MZEE MAKAUNGU 25™ RESPONDENT BWANA MPOGO 26™ RESPONDENT BWANA ULONGO 27™ RESPONDENT BWANA NGULANGWA 28™ RESPONDENT BIBI MMAKUA 29™ RESPONDENT MPARE WA MBUYUNI 30™ RESPONDENT SULTANI SULTANI MGWAMI 31®^ RESPONDENT HAMADI TINDWA RESPONDENT Date of last Order: 21.11.2021 Date of Ruling: 06.12.2021 RULING V.L MAKANI. J: The applicants named above have moved this Court under section 47 (1) of the Land Courts Act, CAP 216 RE 2019. They are seeking for leave to appeal to the Court of Appeal of Tanzania against the decision of this Court in Land Appeal No.233 of 2019 (Hon. Maige, J)(as he then was). The application is supported by the joint affidavit sworn by the applicants. With leave of the court the application was argued by way of written submissions. The parties drew and filed their submissions personally. Submitting in support of the application, the applicants said they have been aggrieved with the decision of this court delivered by Hon. Maige, J (as he then was) and that they are intending to appeal to the Court of Appeal of Tanzania. That in the said Land Appeal No.223 of 2019, the honourable judge failed to consider properly that the applicants established in their pleadings and evidence that the disputed area was about 100 acres. That they clearly stated that the respondents trespassed in the said land unlawful. That they asserted clearly that there are cemeteries in the suit plots where their relatives were buried before Operation Vijiji. That both the Tribunal and the High Court contradicted the evidence and held that the whole land was 600 acres and that respondents trespassed only on 100 acres. They said that the second intended ground of appeal is that the honourable Judge asserted that from 2010 when respondents trespassed the suit land to 2016 is 16 years while it is 6 years. They relied on the case of Said Salum vs. Republic, Criminal Appeal No.499(CAT-DSM)(unreported). They prayed for the application to be allowed with costs. In reply, respondents said that section 5(1) (c) of the Appellate Jurisdiction Act, Cap 141 RE 2019 and section 47 (2) of the Land Disputes Courts Act does not expressly provide for factors to be considered in granting or refusing leave to appeal to the Court of Appeal. That there are several authorities providing for factors to be considered in granting leave to appeal. They said matters to be considered among others is when there is a point of law which is not the case in this application. That there is nothing arguable according to paragraph 1 to 7 of applicants' affidavit. The applicants relied on the case of Rajabu Kadimwa Ngeni & 7 Others vs. Idd Adam [1991] TLR 38. They insisted that the issue of disputed 100 acres is not a serious issue, and it is not a point of law to be determined by the Court of Appeal. That the issue was long settled by the testimony of both parties. That in the 8^^ and 9^^ pages of the Tribunal's proceedings PWl one Atibu Mohamed Kitutu testified that the disputed land is over 600 acres. That even one Rajabu Musa Munilwa who is one of the appellants testified that the disputed land is 600 acres. On the second issue they said that in the District Tribunal DW4, DWIO, DWll and DW17 testified that they occupied land since 2000,2002,2003, 2004 and other respondents occupied the years afterwards. They said PWl testified that the respondents have been living in the suit land for ten years. That if the respondents were in the suit land uninterrupted for 10 years and the land appeal was filed in 2016, the respondents then asked whether that makes it 16 years? They insisted that there is no serious point of law to be determined by the Court of Appeal of Tanzania. Thus, they prayed for this application to be dismissed with costs. The applicants did not file submissions in rejoinder. Leave to appeal to the Court of Appeal is granted where the proposed appeal stands reasonable chances of success or where, but not necessarily, the proceedings as a whole reveal such disturbing features as to require the guidance of the Court of Appeal. The rationale behind is to spare the Court of Appeal of stream of matters, which have no merit, and or which have already been dealt with by the lower courts. In the case of British Broadcasting Corporation vs. Eric Sikujua Ng'maryo, Civil Application No. 133 of 2004 (unreported) as follows: "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 on the materials before the court. As a matter of general principle, leave to appeal will be granted where the grounds of appeal raise Issues of general Importance or a novelpoint oflaw or where the grounds show a pnma fade or arguable appeal(see: Buckle v Holmes(1926)ALL E.R. Rep. 90 atpage 91). However, where the grounds ofappeal are frivolous, vexatious or useless or hypothetical, no leave will be granted". It is, therefore, the duty of the applicants herein to demonstrate the serious points of law that need to be considered by the Court of Appeal(see Simon Kabaka Daniel vs. Mwita Marwa Nyanga'nyi & 11 Others[1989]TLR 64). I have considered the arguments by the parties and having gone through the affidavit, counter affidavit, together with the available records in this application, the point for determination is whether the applicants have advanced points of law which needs the intervention of the Court of Appeal. There are two points which the applicants alleges that they were not well addressed in this court during appeal. The first is the size of the disputed land and the second is whether or not the respondents had adverse possession over the suit land against applicants. Going through the records, the first and the second issues were well covered in the 5^^ and 6^^ pages of the typed judgment of Land Appeal No.233 of 2019. The court clearly stated that the appellants/applicants herein testified at the Tribunal that the suit property was 600 acres. Further appellants/applicants herein testified the same at 8^'' and 9^^ pages of the tribunals proceedings that the suit land is 600 acres. Therefore, the issue of size of the suit land was well covered basing on applicants claim and evidence, therefore it does not attract the attention of Court of Appeal of Tanzania. The second ground is also well covered at page 6 of the judgment save that there is only a typing error which does not attract attention of the Court of Appeal of Tanzania. In the said page of the judgment, the honourable judge observed that appellants admitted that respondents trespassed the suit land in 2010 and the suit at the tribunal was filed in 2016. The difference was noted as 16 years instead of 6 years. It was simply a typing error which can be rectified by the High Court Land Division. Rectification of this kind do not alter the merit of appeal. Such kind of typing errors cannot be referred to the Court of Appeal as they are not serious one. In that respect, I am of the considered view that, there is nothing serious on the part of the law that needs the attention of the Court of Appeal as the raised issues were well attended by this court. For the above reasons, the application for leave to appeal to the Court of Appeal has no merit and it is hereby dismissed with costs. It is so ordered. OF X 4 V.L. MAKANJG '* JUDCfe ^ O 06/12/2021 o