bakari salum 9 others vs prakash bagwanji jiwani 4 others 2023 tzhclandd 16409 25 april 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC.LAND CASE APPLICATION NO. 156 OF 2023 (Arising from the Judgment and Decree of the High Court of Tanzania (Land Division) at Dares Salaam (Honourable Mr. Jusutice Mhina, J.) dated 22nd February 2023 in Land Appeal No. 222 of 2022) BAKARI SALUM............................................................... 1st APPLICANT SEIFU H. CHAMBUSO..................................................... 2nd APPLICANT SALMA SALUM MTAWA........................................................................ 3rdAPPLICANT MAUA SEIF........................................................................ 4th APPLICANT JUMA CHAMBUSO........................................................... 5th APPLICANT MARY JOHN...................................................................... 6th APPLICANT ROSE SHIRIMA................................................................. 7th APPLICANT JUDITH M. CHUMA.................................................................................. 8thAPPLICANT SARA LAURENTI..................................................................................... 9thAPPLICANT SIKUDHANI ANZINGARI........................................................................ 10™APPLICANT VERSUS PRAKASH BAGWANJI JIWANI............................................................... 1stRESPONDEN PRAVIN BAGWANJI JIWANI................................................................... 2ndRESPONDEN DIPESH BAGWANJI JIWANI................................................................... 3rdRESPONDEN JAMES JUMA............................................................................................ 4™RESPONDEN MAJALIWA RASHIDI................................................................................ 5™RESPONDEN RULING Date of last Order 25.04.2023 Date of Ruling 25.04.2023 A.Z.MGEYEKWA, J In this application, the Court is moved to exercise its discretion and grant leave to the applicant to go to the Court of Appeal of Tanzania by way of appeal. The application has been preferred under the provisions of Section 47 (2) of the Land Disputes Courts Act, Cap. 216 [R.E 2019] and Rule 45 (a) i of the Tanzania Court of Appeal Rules, 2009. The Application s premised on the grounds appearing on the Chamber Summons together with the supporting affidavit of Lucas Charles Kamanija, the applicant’s counsel sworn on 22nd March, 2023 setting out grounds on which the prayer for leave is based. The Application is not contested. When the matter was called for hearing on 25th April 2023, the applicant enlisted the legal service of Mr. Lucas Kamanija, learned counsel, and the 1st and 2nd respondents had the legal service of Mr. Bakari Juma, learned counsel. The matter proceeded exparte against the 3rd respondent who was duly been served to appear before this Court. Mr. Bakari Juma, counsel for the 1st and 2nd respondents did not object the application. Mr. Lucas, learned counsel for the applicant had not much to submit. He reiterated what was deposed in the supporting affidavit and urged this court to adopt the applicant’s Chamber Summons and affidavit and grant the applicant’s application without costs. Having heard the submission of the learned counsel for the applicant and the application. A review of the rival depositions is centered on one grand question for settlement by the Court, this is whether the application demonstrates sufficient ground or a disturbing feature that requires the attention of the Court of Appeal of Tanzania. 2 It is trite law that grant of leave to appeal to the Court of Appeal is premised on the applicant's ability to demonstrate that there are points of law or fact that have been decided by the High Court which need to be revisited by the Court of Appeal before rights of the contending parties are conclusively determined. The grant of leave to appeal is not automatic. Relatively, is discretional and the Court can only exercise such discretion if the party has been able to present a prima facie case. This position was accentuated in the case Gaudensia Mzungu v IDM Mzumbe, Civil Application No. 94 of 1994 (unreported), the Court of Appeal of Tanzania. I am aware that in determining whether or not this court can grant leave, this court will do the same without assuming the power of the appellate Court as this court is bound to assume such power which is vested in the Court of Appeal of Tanzania. In the case of Grupp v Jangwani Sea Breeze Lodge Ltd, Commercial case No.93 of 2002 (unreported) my brother Massati, J (as he then was) expressed the matter this way:- "../ have no jurisdiction to go into merits or deficiencies of the judgment or orders of my sister judge in this application. All that I am required to determine is whether there are arguable issues fit for the consideration of the Court of Appeal." The applicant's argument is based on the grounds deponed in paragraph 9 of his affidavit; the applicant believes that the said grounds are guaranteed 3 a ticket to the Court of Appeal of Tanzania. I have read the alleged arguable grounds raised by the applicant and think that there are pertinent questions that constitute an arguable case, which attracts the Justices of the Court of Appeal. The issues such as whether the failure to join the vendor as a necessary party was fatal, whether it was proper for this Court to hold that the 1st, 2nd and 3rd respondents' ownership commenced in 2010 instead of the year 2016, whether the applicants are the bonafide purchaser of the suit land for value and In my considered view, the above-listed grounds are fit in respect of which the guidance of the Court of Appeal is required. In consequence, this application succeeds. The applicants are granted leave to appeal to the Court of Appeal of Tanzania. Costs to be in the cause. Ruling delivered on 25th April 2023 in the presence of Mr. Lucas Kamanija, learned counsel for the applicants, and Mr. Bakari Juma, learned counsel for the 1st and 2nd respondents. A.Z. MGEYEKWA JUDGE 25.04.2023 4 i