dalia burhan nindi vs zainab ismail msami 2020 tzhclandd 10 9 march 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO. 629 OF 2018 (Appeal from the Judgment and Decree o f the High Court o f Tanzania Land Division at Dar es Salaam Madam Judge S.A.N. Wambura, J dated the 7th September 2018 in Land Appeal No. 118 o f 2017) DALIA BURHAN NINDI......................................... APPLICANT VERSUS ZAINABU ISMAIL MSAMI...................................... RESPONDENT RULING S.M. MAGHIMBL J: By way of Chamber Summons supported by the affidavit of Dalia Burhan Nindi (the Applicant), the applicant has moved this court under the provisions of Section 47 (1) of the Land Disputes courts Act, Cap 216 R.E 2002 ("The Act"), seeking for leave to appeal to the Court of Appeal of Tanzania against the decisions of this Court in Land Appeal No. 118 of 2017. Hearing of this application proceeded by way of written submissions. The applicant's submissions were drawn and filed by learned Advocate Mluge Karoli Fabian while the Respondent's submissions were drawn in gratis by Mr. Karilo Mulembe Karilo, learned Advocate. In his submissions to support the Application, Mr. Mluge pointed out that, paragraph 6 of Applicant's affidavit clearly state the intention to challenge the decision of this Court to the Court of Appeal. That since the appeal to the Court of Appeal is not automatic, the current application is necessary under section 47 (1) of the Act. He argued that there is a legal point worth consideration of the Court of Appeal and at this point he cited several cases to support his submissions including the case of Tanzania Electrical Supply Co. Limited Vs. Israel Kwayu, Civil Application No. 118 "A" of 2015 (unreported); Nurbahi N. Rattansi Vs. Minister of Water Construction, Energy, Land and Environment & Another, 2005 TLR 220 and the case of Remadhani Mayonge Vs. Abdallah Saleh, 1996 TLR 74. In his reply Mr. Karilo submitted that leave to appeal to the Court of Appeal is granted only when there us a point of law and fact that calls for determination. She argued that the issue on whether the tribunal erred in raising probate issues instead of making a finding in ownership of the disputed lad was settled by the High Court as the appellant failed to prove ownership of the premises. He cited the case of Harban Haji Mosi & Another Vs. Omary Hilal Seif & Another, 2001 TLR 409 where the Court of Appeal emphasized that leave is grantable where the proposed appeal stands reasonable chances of success or there are irregularity in the proceeding. Mr. Karilo concluded that there is no point of law or fact established by the applicant and prayed that the application be dismissed with costs. Having gone through the records of this application and the parties' submissions therein, I have noted that there is a point of jurisdiction that was raised on whether the matter is a probate matters or Land dispute and it is alleged that the Applicant sued the wife of the deceased over suit property without joining the Administrator of Estate. There are two 2 conflicting decisions between the trial tribunal and the first appellate court. This is sufficient ground to grant leave to the applicant to appeal to the court of appeal. Owing to that, the applicant is hereby granted leave to appeal to the court of appeal against the decision of this court in Land Appeal No. 118/2017. Application Allowed Dated at Dar es Salaam this 09thday of March, 2020. JUDGE