balinangwe mwambungu vs mohamed hamis 2020 tzhclandd 3843 26 october 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION N0.417 OF 2019 (Originating from Land Appeal No.114 of 2017) BALINAGWE MWAMBUNGU APPLICANT VERSUS MOHAMED HAMISI RESPONDENT Date of Last Order: 04.09.2020 Date of Ruling: 26.10.2020 RULING V-L. MAKANl,J The applicant Is BALINAGWE NiWAMBUNGU. He Is seeking for leave to appeal to the Court of Appeal of Tanzania against the decision of this court in Land Appeal No. 114 of 2017. He has moved the court vide section 47(2) of the Land Disputes Courts Act, CAP 216 RE 2002 as amended by the Written Laws (Miscellaneous Amendments) (No.03) Act, 2018, Rule 45(a) of the Court of Appeal Rules, GN No. 368 of 2009 as amended by section 6 of the GN No.362 published on 22/09/2017 and any other enabling provision of the Law. This application is supported by the affidavit sworn by Mr. Benson Pascal Ngowl, Advocate for the applicant who also drew and filed submissions on behalf of the applicant. The counter-affidavit filed was sworn by the respondent himself, his submissions were drawn and filed by Ubaid G. Hamidu, Advocate. The matter proceeded by way of written submissions as per the court's order. Submitting In support of the application Mr. Ngowi prayed to adopt the contents of his affidavit and contended that, paragraph 5(a) and (I) of the supporting affidavit clearly reveal there Is an issue of whether In the absence of evidence of ownership of the suit property, the respondent Is still the lawful owner of the suit property. He said that the argument on, this requires attention of the Court of Appeal. He said that, the trial Judge found that there Is ample evidence on record Indicating that the suit land was Initially owned by Fatuma Salehe who later transferred the same to the respondent. He said this is contrary to what transpired In the Tribunal as the record of the Tribunal does not show that the area In dispute was owned by the late Fatuma Salehe. He said that the only document tendered at the Tribunal was (Exhibit PI), the Sale Agreement between Fatuma Salehe and Respondent. He said the area was sold by the late Fatuma Salehe to the respondent and that the respondent's house was demolished In 2005. He said that there Is no fact which proves that the late Fatuma Swalehe owned the suit land before selling It to the respondent. He said It Is this point that the applicant seeks the opinion of the Court of Appeal to see whether In the absence of the evidence that the seller of the respondent owned the suit land, the same makes the respondent the lawful owner of the suit land. He said that the Interpretation Is based on the principle of neon dat quod non habet. He Insisted that It Is not accounted on how the transferor of the respondent herein obtained and developed the suit property since 1983 and then decided to dispose it to the respondent in 2002. On the other hand, he said that the appiicant gave an account on how he obtained and developed the suit property since 1983 until when the applicant built a residential house in 1999. He said that even in the pleadings there is nowhere the respondent have stated as to how he obtained the suit premises. Counsel further said that, under paragraph 5(c) and (f) of the supporting affidavit the applicant seeks the opinion of the Court of Appeal whether it was right for the learned Judge to disregard the fact that Exhibit PI did not describe the property which was sold to the respondent and also the fact that the same was neither stamped nor witnessed by any authorized officer. Further, he said that it is the position of the law that both vendor and seller must be joined, however the evidence was to the effect that the transferor of the respondent had passed away before the institution of the suit and therefore could not be joined. He said that reference to that evidence could not be made in terms of the exhibit. He said that Ally Omary who is the Administrator of the Estate of the deceased Fatuma Saiehe could have been joined as a party to the proceedings. He prayed for this application to be allowed. In reply, Mr. Ubaid said that the appiicant has moved this court under section 47(2)of the Land Disputes Courts Act which deals with appeals originating from the Ward Tribunal where applicant is required to seek for the Certificate from the High Court certifying that there is a point of law Involved in the appeal. He said that the provision cited Is contrary to what the applicant is seeking for. Mr. Ubaid further stated that the applicant is trying to raise in his submission the issue of evidence that the respondent owned the suit property from the person who was not the rightful owner and therefore the transfer could not be effective. He said that the Sale Agreement on which the respondent alleged to buy the land from Fatuma Salehe was not questioned and PWl,PW2,PW3 and PW4 supported the Sale Agreement (Exhibit PI) that the respondent Is the lawful owner of the suit property. He insisted that leave should only be granted where there are strong grounds showing prima facie case or reasonable chances of success. He said that since the ownership of Fatuma Salehe was not in dispute with the applicant until she decided to sell part of her land and ownership was unquestionable then this ground has no merit for the leave sought. He further said that the appiicant is daiming to be identified in the counter claim that the respondent did declare Plot No.5, Block M. Mbezi Wami to be owned by him, however Counsel said that there Is no such thing In the records and that the applicant is forcing the court to grant leave on grounds which have no weight. He insisted that the applicant did not reveal how he owned the suit land and he failed to call a witness and he did not manage to show demarcations of his land. He said the applicant also failed to justify how Plot No.5 Block M, Mbezi Wami, came in his ownership. He prayed for this application to be dismissed with costs. In rejoinder Mr. Ngowi reiterated what he stated in the main submissions and added that, section 47(2) of CAP 216 was amended by the Written Laws (Miscellaneous Amendments)(No.3) Act, 2018 and was renumbered and among other things, it caters for leave to appeal to the Court of Appeal. He added that the issue of wrong citation should have been raised at the earliest stage. He prayed for this application to be granted. Having gone through the rival submissions by Counsel for the parties, the issue for determination is whether this application has merit. Starting with the concern by the respondent that this court has improperly been moved under section 47(2) of Cap 216, I am in agreement with Counsel for the applicant that the said section was amended and renumbered in such a way that subsection (2) caters for leave to appeal to the Court of Appeal In matters originating from the High Court in exercise of its appellate or revisionary jurisdiction. For the sake of clarity, I wish to reproduce the said section: 47.-(1)A person who is aggrieved by the decision ofthe High Courtin the exercise ofits originaijurisdiction may appeai to the Court of Appeal in accordance with the provisions ofthe Appellate Jurisdiction Act. (2)A person who is aggrieved by the decision ofthe High Court in the exercise of its revisionai or appellate Jurisdiction may, with leave of the High Court or Court ofAppeai, appeal to the Court ofAppeal. (3) Where an appeal to the Court of Appeal originates from the Ward Tribunal, the appellant shall be required to seek for the Certificate from the High Court certifying that there Is point oflaw Involved in the appeal. The objection by the respondent therefore has no merit. Leave to appeai to the Court of Appeai is granted where the proposed appeai stands reasonabie 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 Appeai. The rationale behind is to spare the Court of Appeai of stream of matters, which have no merit, and or which have already been dealt with the lower courts. In the case of British Broadcasting Corporation vs. Eric Sikujua Ng'maryo, Civii Appiication No. 133 of 2004 (unreported) as follows: - "Needless to say, leave to appeal Is not automatic. It Is within the discretion ofthe Courtto grant orrefuse lea ve. The discretion must, however, be judiciously exercised on the materials before the court. As a matter ofgeneral principle, leave to appeal will be granted where the grounds ofappeal raise Issues ofgeneral 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 at page 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 applicant to demonstrate serious points of law that need to be considered by the Court of Appeai (see Simon Kabaka Daniei vs. Mwita Marwa Nyanga'nyi & 11 others [1989]TLR 64). The grounds upon which the applicant relies for the leave are ail based on the determination of the weight of evidence in Land Appeal No.ll4 of 2017. In his affidavit, the applicant enumerated about 10 grounds (paragraphs 5(a)-(j) of the affidavit) which he thinks are important for the Court of Appeal to intervene. In Land Appeal No.ll4 of 2017 the applicant herein had 9 grounds which he later in the course of hearing consolidated the 1=^, and 6'*^ and then consolidated the 4'\7"^ and 9"", and he abandoned 5'^ and 8^'^ and argued the 2""^ ground separately. In essence the applicant argued three grounds on appeal. This court shall therefore consider whether the three grounds argued by the applicant herein were addressed on appeal: 1. The issue of the seller's title was addressed by the Learned Judge at page 6 of the judgment in Land Appeal No.114 of2017. 2. The Issue that the appellant acaulred the suit land since 1983 and ouaht to have been declared the lawful owner was also addressed on page 6 of the judgment In Land Appeal No. 114 of2017. 3. The change ofland granted to the respondent herein by KInondonI Municipal Council Urban Plannlna which amounted to proof of ownership was also well addressed In page 6ofthejudgment In Land Appeal No. 114 of2017. The above grounds were raised by the applicant on appeal and addressed satisfactorily by the High Court. According to the records, other grounds complained of In this application were never raised by the applicant. In conclusion the proposed appeal stands no chance of success neither are there disturbing features which require the guidance and/or Intervention of the Court of Appeal. It is my humble view and from the guidance of the cited authorities above, that I must not go deep into the merits of the raised grounds as by doing so It would amount to be determining the appeal again. Having said so, I proceed to dismiss this application with costs for want of merit. It is so ordered. o c 2^ % V.L. MAKANI V- JUDGE ★ o 26/10/2020 4Nd