bakari mwawa mageuza vs zakia selemani 2021 tzhclandd 6707 22 january 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM MISC. LAND APPLICATION NO. 133 OF 2020 (Arising from Land Revision No. 19 of 2018, High Court of Tanzania, Land Division at Dares Salaam) c BAKARI MWAWA MAGEUZA \.. APPLICANT VERSUS x\ 'C s. \ ZAKIA SELEMANI ^..:.......RESPONDENT Date ofLast Order: 14/12/2020 \ Dhte ofRuling date: 22/01/2021 _ M" ^\ K M N G\ MANGO,3. "X'x ,/;/ Before me applkatioh :fpr l^^to appeal to the Court of Appeal of Tanzapia'^against^the.deGision ofxthis court in Land Revision No. 19 of 2018. The applicatioh jSx^by of a chamber summons made under section 5(1) T' \ ''\ "x; '■> of the Appellate Jurisdiction Act , Cap 141 R. E. 2019] supported by an affidavit sy^orn by ,1 Patrick David. The application is opposed by the respondent wte filed a counter affidavit sworn by Harry A. Mwakalasya. The applicant was represented by Mr. Patrick David learned advocate while the respondent was represented by Mr. Harry Mwakalasya learned advocate. The application was argued by way of written submissions. In his submission in chief, learned counsel for the applicant adopted the contents of the affidavit sworn in support of the application. He also mentioned the points of law that he considers as qualified to be granted leave so that they can be determined by the Court of Appeal of Tanzania. The said points of law are; 1. Whether evidence given under oath by way of.an affidavit on facts in the knowledge of the deponent is hearsay and, \ 2. Whether under regulation 3(1) of the Land Pispufe^ (District Land and Housing Tribunal), Government^l^otice'^No. 174, any proceedings before the tribunal is commenced ^by Tilina of/an^application or payment of filing fees or both. \\ V' N \ N, \ ) Submitting on the first point,^he learned counsel submitted that the when '\\ 'w the matter was before thq (District Land^and V \\ Rojjsing Tribunal for Temeke, V \ \ \ the respondent raised a preliminary objection that the applicant's appeal W "l) was time barred^Tn arguihg^^th^pfeliminary objection, the applicant attached an affidavit kworri\by one Rose Musoma, a clerk of the tribunal \\ / x\ who depohedvthat the appeal was filed on 22"^^ September 2017 which was within time. She depoped further that by that time, the tribunal was facing \ netwofic problems.w^hich"'made payments of filing fees to be effected on 12^^^ October 2017./The learned counsel argued that this court wrongly judged the evidence given by way of affidavit on facts in the knowledge of the deponent to be hearsay while the deponent verified each paragraph to have based on his knowledge. He considered that this is a point of law calling for determination of the Court of Appeal. Another point of law raised by the applicant concerns determination as to when the application can be considered to have been filed between the date of filing the application and the date of payment of filing fees. The learned counsel for the applicant argued that the court failed to consider the provision of section 13 of the Interpretation of Laws Act, [Cap 1 R.E 2019] when interpreting Regulation 3(1) of the Land Disputes (District Land and Housing Tribunal) Government Notice No. 174. He argued that according to Regulation 3(1) of the Land Disputes (District Land and Housing Tribunal) proceedings can be jcommepced thrpugh^ an^ the \\ V.' following three means; filling an applicatioh, payment oTfiling fees or both. The learned counsel is of the vieyv^that this\pdirit also need to be considered by the court of appeal so as\to. establish as to whether any of 'X^-., ■x'x those mentioned processes can be considered to have initiated proceedings before the tribunal or all Ipracesse^must be cbfnpleted in order to initiate Cx \\ proceedings before the tribuhal. The learned counsel prayed that this court x^ J j grant the reliefs, prayed in the Cham^r^Summons. In his /■reply^subbiission^learne^ X \ / X., counsel for the respondent adopted the / X \ , contents of the counter affidavit to form part of his submission. He also submitted that the ^application is not maintainable for three reasons; first, wrong dtatioji of the enabling provision of the law; second, the first point y of law raised by-the applicant does not exist and third, the second point of law raised by the applicant has already been determined by the Court of Appeal in a number of its decisions. Submitting on the first issue, the learned counsel for the respondent argued that the matter sought to be refered to the Court of Appeal originates from the Ward Tribunal. The law section 47(2) of the Land Disputes Courts Act, Cap 216 requires the applicant to seek and obtain certificate on point of law from the High Court before his appeal can be entertained by the Court of Appeal. The learned Counsel argued that, the proper provision for moving the High Court to grant certificate on point of law is section 47(2) of the Land Disputes Courts Act and not section 5(l)(c) of the Appellate Jurisdiction Act,[Cap 141 R.E 2019]. / He cited the decision of the Court of Appeal in Dorina N. Mkumwa . "v ■ Versus Edwin David, Civil Appeal No. 53 of 2017 in which it was held \\ \ that, "f/7e right ofappeal in Land Disputespriginating from Ward Tribunals \\, \\ • to the Court ofAppeal is conditional upon granf ofa certificate of the High ( \ \ \ \ ^ - Court obtainable under section^d7(2}^ofihe. Land Disputes Courts Act. \\ \\ X'' According to this provision,. sub^ntivd\right to appeal to the Court of Appeal over matters originating from Ward Tribunals cannot be exercised \ ^ -"X by obtaining a certificate \ under V \ any proyision V \ pfthe AJA. \ - \. \ % \ \\ } I On the first point of law, raised^by the applicant, he submitted that there was no any "^affidavit filed as alleged by the applicant rather than mere 'X\ y ^ \\ words/fromthe bar./And^n.interpretation of Regulation 3(1) of the Land Disputes (District^Land and H^Dusing Tribunal), the learned counsel for the defendaht argued, that such interpretation has already been given in ~\ )I several cases that^the date of commencement of proceedings is the date payment of filing fees. In this he cited the decision of the Court of Appeal in John Chuwa versus Anthony Ciza [1992] TLR 233. The learned counsel is of the view that the application deserves to be struck out for wrong citation of the enabling provision of law or dismissed as the applicant failed to establish any point of law to be certified by this court for determination by the Court of Appeal. In his rejoinder submission the applicant's counsel submitted that, it is very clear from the applicant's submission in chief that he seeks certificate on point of law. He reiterated his submission in chief on the points of law that need to be determined by the Court of Appeal. The learned counsel prayed that the court should consider the overriding objective principle and overlook the procedural irregularity and continue to determine the application on merits. I have considered submissions by both parties and Court record. The Court record shows that the applicants seeks leave to. appeal to.the Court of x.\,-y '\.x Appeal of Tanzania against the decision4)f fhis court in Land Revision No. 19 of 2018. This is evident ffdrn th^-fifst.paragraph of the Chamber ''' Summons which reads: X \ "That this honourable court be pleased to^grpnt the applicant leave to appeal to the Court of Apppal of\Tanzanla against the decision of the High Court of \■ i ) Tanzania, Land PMsloh/ dellvered^b)^H^^ A.A BahatU dated 2(P February 2020 In Land^RevisloiiNb, 19^of2018."^ ^ \\; From ,the-^bmissipr)s;itTs npt^^Jisputed that this matter originates from f /' '\^\ the Ward Tribunal and that the applicant was supposed to file an applicWon for a certificate of law under section 47(2) of Cap. 216 R.E 2019. It is^also^not disputed that the chamber summons is not made under 'N, . / I section 47(2) of the Land Disputes Courts Act which is the enabling provision for application for certificate on point of law. Despite that, the certificate of law is not among the reliefs sought in the chamber summons. I agree with the counsel for the respondent that for applications for certificate of law, the proper enabling provision is section 47(2) of Cap 216 R. E. 2019 as it was held by the Court of Appeal of Tanzania in the case of Mabao Ying Versus Mbeya City Council Civil Appeal No. 97 of 2013, Court of Appeal of Tanzania at Mbeya. It is trite law that wrong citation of enabling provision of law makes the "s, application incompetent. Such applications deserveXto be struck out. Subject to special circumstances of the case^^thp cotirt .may ^employ overriding principle and grant such applicatiori\^HoweVer, court cannot employ overriding objective principleTo grant a relief not praydd for in the chamber summons. In this appli^ationXtfie chamber,summons does not \\ \ contain a prayer for a certificate bn\poiht of law>.Tbe prayer emerged in / "'X -v ^ / ^ -« N \ N the submission made frorti the bar. The chamber summons contains only a I -s \ "x.-'' \ • \ prayer for leave which wasxmad^un^er a\Wrong provision of the law and before certification of pointsxbf^law by'this Court. The two orders can be sought in a single'application ^but' leave cannot be granted before certification^f pojnts ofJaw td'be determined by the Court of Appeal. \ / \, Therefore, I find this'application to be incompetent before this Court and it is herebV struck out with tosts. tP. w S/ m m z Z. D. MAN G <^5 JUDGE 45 ■jf 22/01/2021 \ o