david pandakilima emilian mwingira januarius katekula others vs principal secretary ministry of land human settlements development another 2018 tzhclandd 433 20 july 2

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPL. NO. 428 OF 2017 DAVID PANDAKILIMA, EMILIANA MWINGIRA JANUARIUS KATEKULA & 61 OTHERS............................ APPLICANTS Versus PRINCIPAL SECRETARY MINISTRY OF LAND AND HUMAN SETTLEMENTS DEVELOPMENT....................1st RESPONDENT HON. ATTORNEY GENERAL......................... 2nd RESPONDENT . Date o f Last Order: 07 06.2018 Date o f Ruling: 20.07.2018 RULING MZUNA. 3.: The applicants in their representative capacities on behalf of 61 others, filed this application under Section 47 (1) of the Land Disputes Courts Act, Cap. 216 R.E 2002, for orders that: a) That this Honourable court be pleased to grant leave to the Applicants to appeal to the Court o f Appeal o f Tanzania against the whole o f the of representative suit by annexing it. He is of the view that non­ disclosure of such information renders the application incompetent. On the second point, it was submitted that the applicants have not annexed court order which granted them extension of time to file leave out of time and therefore this application is time barred. In response, Mr. Mlinga the learned counsel submitted that there was no notice which was filed to that regard. However he responded that the application at hand originates from Land Case No. 39 of 2007. That before filing that case, the applicants filed Misc. Application No. 5 of 2006 in which they applied for representative suit to represent 61 others. The application which was granted. He was of the view that since they were permitted to sue on behalf of others, they have a right to represent others. That it is a continuous process as it emanates from Land Case No. 39 of 2007. On the issue of time limit of the application, Mr. Mlinga contended that the present application was filed after the applicants were granted extension of time on 22/05/2017 to file leave to appeal in Misc. Land Reading from the filed affidavit especially paragraphs 1 and 2, issue or representative suit was clearly stated. Similarly, in paragraphs 8, 9, 10 issue of extension of time to file leave of appeal out of time was equally clearly demonstrated. The raised preliminary objections are not backed by any law and therefore does not fall within the criteria of preliminary objection as it was so held in the case of Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd (1969) E.A. 696. Otherwise, this court finds that failure to annex copy of representative suit as stated in paragraph 1-4 does not render the application at hand bad in law as there were paragraphs showing that it proceeded from a representative suit. It was not contradicted as per the court record that the application at hand originates from Land Case No. 39/2007 and it is within that suit whereby the applicants filed Misc. Land Application No. 5 of 2006 from which they applied for the representative suit to represent 61 others, the prayer which was granted by this court. In response, Mr. Kajungu argued that the applicants failed to advance appealable legal issues to warrant the intervention of the Court of Appeal. He therefore prayed for dismissal of the application with costs. In a quick rejoinder, Mr. Mlinga reiterated his earlier submission in chief and said that the judgment never disclosed what is on the record like issue of demarcations. Section 47 (1) of the Land Disputes Courts Act Cap. 216 R.E 2002 to which this application relates, requires the applicant to apply for leave from this court to lodge an appeal to the Court of Appeal. The main issue is whether there is arguable points of law to be considered by the Court of Appeal? That position was reiterated by Lubuva J.A (as he then was) in the case of Nurbhain Rattansi vs Ministry of Water Construction Energy Land And Environment and Another [2005] TLR 220. Reading the said grounds as stated in paragraph 11 (i) - (iv) of the affidavit it is said that:- 20/07/2018 Coram: Hon. N. R. Mwaseba DR For applicants: Mr. Sang'udi/Mlinga for For 1st respondent: 1 absent For 2nd respondent: - RMA: Bukuku MR. SANG'UDI: We are ready for ruling. COURT: Ruling delivered in the presence of the applicant but in the absence of the respondent on 20/07/2018. N. R. Mwaseba DEPUTY REGISTRAR 20/07/2018 9