danland temu vs thomas temu 2021 tzhc 7563 24 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI DISTRICT REGISTRY

AT MOSHI MISC. LAND APPLICATION NO. 29 OF 2021 (Arising from Land Case Appeal No. 45 o f 2020 , High Court o f Tanzania a t Moshi, Original Application No. 205 o f 2016 District Land and Housing Tribunal for Moshi) DANLAND TEMU ............. ............................................. APPLICANT

VERSUS THOMAS TEMU ................. .............. RESPONDENT

RULING MUTUNGI .J. The applicant is applying for leave to appeal to the Court of Appeal of Tanzania against the decision of this Court (1st Appellate Court) in Land Appeal No. 45 of 2020 before Hon. Mkapa, J. delivered on 6thAugust, 2021 . Originally the dispute was filed at Moshi District Land and Housing Tribunal (the trial tribunal] as Application No. 205 of 2016. The application is preferred under section 47(2) of Land Disputes Courts Act, R.E. 2019 and is supported by the Page 1 of 9 applicant’s sworn affidavit. The respondent has on the other hand filed a counter affidavit thereto. Historically the respondent herein sued the applicant for trespass over a piece of land measuring 1.87 Acres located at Kitofo village, Kilema Pofo within Njiapanda Ward, Himo in Moshi District, Kilimanjaro Region (the suit land). He claimed was allocated the suit land by the Director of Moshi District Council in 1983. On the other side of the coin, the applicant claimed to have inherited the same from their late father (the late John Philipo Temu) who passed away in 1995. Since then, their brother (the late Rhodes John Temu) utilized the suit land until his demise in 2004. The same was left in possession of his wife, Debora Rhodes Temu, After the trial, the tribunal decided in the respondent’s favour. Dissatisfied, the applicant herein appealed to this Court which consequently upheld the

trial tribunal’s decision. Still aggrieved, the applicant wants to pursue his constitutional right of appeal to the highest Court of the land hence the current application. In his nine paragraphed affidavit, specifically the 7th paragraph, the applicant challenges this Court’s decision on the following grounds: - Page 2 o f 9 i. That, the Learned Madam Judge erred in law and fact in upholding the trial tribunal’s decision without considering that the assessors who sat with the chairman did not write and sign their opinion and incorporated them in the proceedings hence contravened Section 23 (1) and (2) of the Land Disputes Courts Act, Cap 216, R E. 2019 and Regulation 19 (1) and (2) of G.N No. 174/2003. ii. Tha t the Learned Madam Judge erred in law and fact in upholding the trial court’s decision without taking note that the trial chairman contravened the guidelines to be followed when the tribunal decided to visit locus in quo. iii. That, the Learned Madam Judge erred in law and fact in upholding the trial court’s decision without taking note that the trial chairman passed judgment against the applicant in his own capacity instead of as the administrator of Estate of his late brother Rhodes Temu. When the application was called for hearing, the applicant was represented by Mr. Charles Mwanganyi, learned Page 3 of 9 advocate whereas the respondent on the other hand

was represented by Mr. Martin Kilasara learned advocate. Supporting the application, Mr. Mwanganyi prayed for the applicant’s affidavit to be adopted as part of his submission and averred that, in order for leave to be granted, one should demonstrate legal points worth the Court of Appeal's intervention following the authority in the case of Nurbav Raithans Vs. Ministry of Water Construction Energy and Another r20051 TLR 220. That apart, an applicant should either ascertain issues of general importance or a prima facie arguable appeal. The learned counsel went on submitting that, as per the applicant’s affidavit, he has met the above test as found in paragraph 7 already indicated earlier in the ruling. He finally prayed this Court grants the application as sought by the applicant and costs be borne by the respondent. In reply, Mr. Kilasara contested the application, and proceeded to pray the counter-affidavit forms part and parcel of his submission. He outrightly stated the respondent was the decree holder in the trial tribunal, a decision which was upheld by this Court on appeal. He added, there is no Page 4 of 9 dispute that leave is the court’s discretion upon sufficient grounds. However, such grounds should be apparent on record so that the Court can look at the substance of these points on the face of record. He went on expounding, the first ground on opinion of assessors,

the court should refer to page 46 of the trial tribunal’s proceedings. The wise opinions of the two assessors are reflected therein and were read out aloud before the parties. In that regard, it is absurd to hold, the same were not in-cooperated. This ground is for that reason neither an issue of general importance. Regarding the 2nd ground on the visit of the locus in quo, it was Mr. Kilasara’s submission, the same lacks merit as parties were present and did participate in the visit as reflected on page 44 and 45 of the typed proceedings. To that end, the trial tribunal did address itself correctly on this aspect. Lastly the 3rd ground pegged on locus standi, the same lacks merits. Throughout the pleadings the applicant was sued in his personal capacity as he personally trespassed on the suit land. The foregoing notwithstanding, the applicant neither pleaded to be his brother’s administrator nor thathehadany Page 5 of 9 authority to represent the said deceased. Further, he never tendered evidence or any letters of administration of the alleged estate. There was neither filed a preliminary objection challenging his locus standi. In such circumstances, since this issue was never pleaded or challenged, it lacks legs to stand on before the Court of Appeal. Mr. Kilasara finally prayed this application be dismissed and each party to bear own costs. In his brief rejoinder, Mr.

Mwanganyi reiterated what he stated in his submission in chief and insisted there are legal issues to be determined which are apparent on record and purely points of law. He added, there is nowhere in the proceedings where assessors’ opinions have been incorporated, thus, the court cannot rely on assumptions. Further, the applicant had pleaded he was the administrator and not the owner of the suit land. After consideration of the rival submissions, the pertinent issue for determination before this court is, whether the applicant has demonstrated points of law worth to be considered by the Court of Appeal. In determining so, the role of the Court is not to stand in the shoes of the Supreme Court, but only to Page 6 of 9 consider whether or not arguable issues have been raised in the proposed grounds of appeal and whether such issues are of such public importance, or contain serious contentious points of law likely to result to failure of justice. This position was laid down in the authoritative decision found in the case of British Broadcasting Corporation Vs. Eric Sikuiua Na’marvo, Civil Application No. 133 of 2004 (UnreportecO that: - “As a matter of general principle, leave to appeal will be granted where the grounds of appeal raise issues of general importance or a novel point of law or where the grounds show a prima facie or arguable appeal. H o w e v e r , where the

grounds of appeal are frivolous, vexatious or useless or hypothetical no leave will be granted.” The same is to be found in the case of Saidi Ramadhani Mnvanaa Vs. Abdaliah Salehe H9961 TLR 74, where it was held interalia, for leave to appeal to be granted, the applicant must demonstrate that, there are serious and contentious issues of law or fact fit for consideration by the Court of Appeal. Page 7 of 9 In the present application, the applicant has demonstrated his grievances through his affidavit and brief submission as to why leave to the Court of Appeal should be granted. On the face of record, there are arguable prim a facie points of law and facts that need the Court of Appeal intervention. I am therefore of the firm opinion in terms of paragraph seven, the three grounds suffice as contentious issues worth the attention of the Apex Court. Additionally, I have as well considered, that the applicant has a justification to exercise his right of appeal as enshrined under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 as amended from time to time. He is thus to be granted such an opportunity to exercise his Constitutional right. In the upshot, I am convinced this is a fit case to be granted leave so that the applicant may appeal to the Court of Appeal of Tanzania. The application stands granted as prayed, costs to follow the event. It is so ordered. 7 b.>r m utung i

JUDGE 24/11/2021 Page 8 of 9 Ruling read this day of 24/11/2021 in presence of the applicant, Mr. Charles Mwangani for the applicant and holding Mr. Kilasara’s brief for the respondent and respondent in person. IF---------------' B. R. MUTUNGI

JUDGE 24 / 11/2021 RIGHT OF APPEAL EXPLAINED. 1— ----------------------------- B. R. MUTUNGI

JUDGE 24 / 11/2021 Page 9 of 9